Reimann & Reimann [2022] – Recovery and Parenting Orders Prioritize Child’s Attachment and Safety

EX-TEMPORE REASONS FOR JUDGMENT

CHRISTIE J:

1. This is an interim application in respect of the child X born 2020 who I will refer to in these reasons as X.
2. The applicant mother seeks orders as set out in exhibit 1. Those include parenting orders and litigation funding orders.
3. The respondent father seeks orders as set out in his Case Outline document at Part E. Those include parenting orders.

BACKGROUND

4. The parties are the parents of one child, X, born 2020. These proceedings concern her parenting arrangements.
5. The parties separated under the one roof in July of 2020 and remained separated under the one roof until the mother vacated the premises occupied by the parties in November 2020.
6. In late 2020 the mother and X travelled to Country B with the consent of the father. The father says he consented to a temporary visit concluding in early 2021. There is some controversy about this but I take into account the findings of the competent court in Country B that concluded X was habitually resident in Australia.
7. In mid-2021 when the mother and X had not returned to Australia, the father filed an application with the Australian Central Authority for return of X pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
8. In early 2022 the City C District Court determined that, as at 1 April 2022, the child’s habitual place of residence was Australia. Orders were made for X’s return to Australia and the mother made an application for those orders to be suspended. The Court ordered enforcement of those orders, which the mother appealed. In late 2022, a higher court dismissed the mother’s appeal.
9. In 2022 the City C District Court made orders following dismissal of the mother’s appeal. Those orders again provided for return of the child X to Australia. Over the period of a month in late 2022, there were difficulties in securing the return of X to Australia notwithstanding the existence of orders for her return.
10. The parties are at issue about the circumstances of X’s return, whether she was well enough to travel and how she came to travel without the mother.
11. In late 2022 X and the father arrived back in Australia. The mother has since also returned. All parties intend, at least in the short term, to live in the Adelaide area.

THE LAW

12. This is an interlocutory application for parenting orders. All parenting orders fall to be determined having regard to the best interests of the child as the paramount consideration: s 60CA of the Family Law Act 1975 (Cth) (“the Act”).
13. When the Court is asked to make interim orders the presumption in favour of the making of an order for equal shared parental responsibility applies except where the Court finds that it would not be appropriate: s 61DA(3) of the Act.
14. Interim applications for parenting orders fall to be considered having regard to the provisions of s 60CC of the Act.
15. The process of hearing an interim application is a curtailed process and the evidence is not tested. That said, it is necessary to consider all relevant considerations in the Act in forming a conclusion as to what orders would be in the best interests of the child.
16. The procedure for assessment of the competing applications has been set out clearly by the Full Court of the Family Court in Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286 at [82].
17. The primary considerations are set out in s 60CC(2) of the Act.
18. Of the two primary considerations, the requirement to make orders which protect against harm or the risk of harm takes precedence. Otherwise, the considerations will assume greater or lesser relevance having regard to the issues in the case.
19. The effect of the abridged hearing is that it may not be possible to make findings of fact in respect of relevant contested issues.
20. Where that is the case (and the untested evidence raises serious risk issues) it is necessary to approach the making of orders cautiously with a view to the alleged risk issues and the manner in which such risks can be addressed (if at all).
21. It is also necessary to consider whether or not, in the circumstances of the individual case, the orders sought by one or other of the parties are reasonably practicable.

CONSIDERATION

22. The issues in this case appeared to be:
    

    (a) What order (if any) should be made about parental responsibility;(b) The parent with whom the child should live;

    (c) The time to be spent with the other parent;

    (d) The conditions imposed on time (if any);

    (e) Injunctions;

    (f) Whether X should be vaccinated; and

    (g) Litigation funding.

23. The issues narrowed further at hearing. The mother abandoned her application to be physically close to the place where time was occurring with the father. Neither party sought that I determine the issues of vaccination or parental responsibility on an interim basis. Both parties accepted that in the absence of financial proceedings I did not have jurisdiction to make litigation funding orders.
24. There is very little in the way of agreed facts in these proceedings but the following are relevant agreed facts.
25. The child X is currently two years and six months of age.
26. Until the parents’ separation, which they agree occurred in July 2020, and at least until the mother vacated the parents shared home in November 2020, X received care from both of her parents but was in the predominant care of her mother.
27. The father used illicit substances during the parties’ relationship.
28. From late 2020, until she was collected by her father from Country B in late 2022, X has lived exclusively with her mother and contact with her father has been limited to electronic communication.
29. The trip which X took with her mother to Country B was not at all times considered by the mother to be a permanent move.
30. The mother is X’s uncontested primary carer.
31. The contested facts are those which relate to risk factors. The predominant risks identified by the affidavit material relied upon by the mother arise out of allegations that the father was violent to her during their relationship, that he used illicit drugs, that his conduct was neglectful of X and that he may have an obsession or addiction to pornography.
32. In an interim hearing the Court has to take seriously allegations of risk even when those allegations are contested. That is because the Court has a duty to ensure that whatever orders are made do not expose the child to an unacceptable risk.
33. The mother says that during the period after the birth of X, when she and the father were still residing together, the father used a prohibited substance and engaged with a drug dealer from whom he purchased a prohibited substance. The father agrees he used drugs during this period. The father says he has not used drugs since early 2021 and any inconsistencies in his affidavit are typographical in nature. I accept that the evidence the father gives is that he has attended K Organisation since early 2021 and it is from that date (and not any earlier date) that the father claims to have been abstinent.
34. The mother gives evidence that the father lost his driver’s licence and she suggests that it may be related to drug use. The mother annexes to her affidavit text messages which she says demonstrate the father’s use of prohibited substances. The father accepts he has used drugs – he says his loss of licence was unrelated to drug use and was restored after medical tests.
35. The father undertook a hair follicle test both in late 2021 and in mid-2022 which demonstrate that for two periods of approximately three to four months ahead of each of those tests he did not take illicit substances. The issue of whether or not drug use by the father, historically or currently, is an issue which will be a matter for final hearing. His recent hair follicle test provides some comfort that there was not drug use during the stated period. He also says he has maintained attendance at K Organisation. The objective evidence suggests that the father may not currently have an issue with drug use. Further comfort is provided by his consent to a further drug test. I find this protective measure, coupled with other evidence discussed below, provides sufficient protection against any risk arising from drug use. I will make the order that he undertakes a further hair follicle test. The evidence does not establish any current alcohol use disorder and I am not minded to make any orders for alcohol testing. The orders I am making require test results to be provided to the mother. She can bring an application in the event that the test is positive (or in the event the father fails to complete the test he has consented to undertake). I am not making lengthy orders about the conditions of the test as I have no evidence to impugn the existing negative test results.
36. The other risk issue identified in the mother’s affidavit evidence arises out of incidents which she describes as incidents of family violence. Amongst those she suggested that the father had been violent to her while they were having sexual intercourse, hitting her very hard on her body, especially the lower part of her body, and her face on multiple occasions. The mother also says the father pushed her face into a pillow to a point where she could not breathe. The mother says that in mid-2020 the father threw a beer bottle which missed her and hit the wall. The mother says that a few days later in mid-2020 the father grabbed her neck, started choking her and banged her against the wall. The father denies those allegations. His counsel said they are not corroborated. Often allegations of this nature are not corroborated. The way the evidence stands at this point, I cannot make a finding.
37. I must consider the possibility that the mother’s evidence will be accepted at a final hearing. If it is accepted it may speak to the suitability of the father as a primary carer. The fact that the mother does not propose supervised time provides support for the conclusion that she does not see the father’s past conduct (on her evidence) as precluding orders for time between the child and the father.
38. The mother also says that the father’s conduct when they lived together in Australia included conduct which was neglectful as regards X including putting her head under water in the bath, using his foot to push her over, leaving drugs in a place which could have been accessible to the baby and behaving in a way which was aggressive toward X when she was crying. The father denies these allegations and again, I cannot make a finding. That does not mean that I can ignore them but I must place them in two contexts. The first is that they took place at a time when the mother says that the father was using drugs and secondly, I place it in the context that the mother is not seeking that the father’s time with the child be supervised.
39. I also place reliance on the fact that, since that time, the father has voluntarily participated in a Circle of Security course and undertaken counselling. Both of these are protective in nature.
40. I am also able to place some limited reliance on the observations of Ms G from the H Organisation, the Country B child welfare authority, who saw and assessed the father and child interactions.
41. Contained in the mother’s material are also references to the father’s relatives as being involved in drug and bikie culture. The father says he has no ties to these relatives and the mother’s material does not suggest otherwise. I cannot find on this evidence any direct risk to X and, if the evidence of the father about his lack of association with these persons is accepted at final hearing, then the mother’s inclusion of this evidence as relevant to the Court’s determination may in itself be problematic.
42. The mother’s evidence contains reference to the father using internet sites to watch people perform sexual acts while he masturbated. The mother says the father spent the parties’ funds on these activities. The father accepts that while he was using drugs he did engage in these types of activities.
43. Whilst one can understand why the mother might find that particular conduct of the father distressing, there is no apparent direct link at present which would suggest that his engagement in that type of activity, if indeed in due course it is established that the mother’s allegations in their entirety are accurate, place the child at risk at present.
44. The other evidence which the mother gives in respect in the father’s historical drug use and in respect of the allegations of violence pose more of a direct risk in terms of his capacity as a parent. As against that, as outlined above, there is objective evidence demonstrating extended periods of abstinence.
45. Another relevant factor is the fact that the father is in a de facto relationship with Ms J. The mother gives evidence that Ms J was a friend of hers and she and X lived with Ms J for three weeks before the mother and X left for Country B. The mother has filed an affidavit in reply and raises no concerns about Ms J being in the household of the father. The presence of another adult known to X in the house is also an additional protective factor.
46. The father says X should live with him because, only then, will she be able to develop a meaningful relationship with him. I accept that the mother’s actions in removing X from this jurisdiction and resisting orders for return have hampered the relationship between X and the father. On the one hand, the mother’s desire to remain overseas given the chaotic circumstances in which the father’s drug use placed the parties (even on the father’s concessions), is understandable. However, the positions of adults, understandable as they may be, do not govern the Court’s decision. My focus must be squarely on X’s best interests.
47. X is a young child who has lived her whole life in the care of the mother and now that the Court is seized of the matter then the relationship between X and the father can be facilitated by court order – and enforced if necessary. But, more importantly, it can be facilitated by the blocks of time they will spend together.
48. Both parties ultimately consented to a form of geographical restraint. This should address the father’s concern that the mother’s actions to date in removing X from Australia and in resisting efforts of the Central Authority and the City C District Court and higher court to facilitate return are likely to impact on his relationship with his daughter.
49. It is in X’s interests that she be returned to her mother’s predominant care. Her age and the history of care arrangements require this and promptly.
50. I accept that the mother may have witnessed X’s distress in the father’s care and is understandably concerned that she does not know the correct amount of time in each household moving forward, but the amount of time she proposes is not sufficient for a number of reasons:
    

    (a) X has a right to know and be cared for by both her parents;(b) X’s best interests will be promoted by having a meaningful relationship with both parents;

    (c) X has spent little time with the father since she left Australia and needs the opportunity to build that relationship;

    (d) Blocks of time where they can undertake normal activities such as lunch, afternoon sleeps, playgroup etc. are important to normalise their interactions;

    (e) Frequent regular time will permit X to become accustomed to the father’s home, family and routine;

    (f) X’s English language skills can develop so that whether (in due course) she lives in Country B with the mother or in Australia with both parents her communication skills with the father will improve; and

    (g) The father’s self-employment means he has the capacity to spend time with X during the week and on weekends.

51. For the above reasons the mother’s proposal of two hours twice a week is not in X’s best interests. I will make orders for regular frequent time.
52. The mother sought various orders designed to address the asserted risk. Those included attendance at courses, attendance at a parenting after separation course, rehabilitation and urinalysis/CDT testing. I do not intend to make the father’s time conditional on any orders requiring him to undertake further courses or tests (other than as set out in my orders and described above). I cannot make a determination about the disputed evidence. If the father has engaged in violent conduct then his attendance at a behavioural change course may be useful (but perhaps limited in its utility if he has not self-referred). If the father has not engaged in such conduct then the course is an unnecessary and intrusive burden. The father has undertaken a highly appropriate parenting course, the Circle of Security. Both parents may well benefit from a parenting after separation course and should make inquiries about the availability of such a course – not to assist in their parenting but to assist in their post separation communication. I will not make an order but hope that in the spirit of future cooperation they make inquiries about availability of courses in their local area. I have not ordered alcohol CDT or urinalysis – absent any current evidence that this is an issue which would impact on X’s time with the father.
53. The child is young and has been separated from her mother. The child should be returned to her mother. The relationship between the child and mother is a good and supportive one. The father identifies no risk factors (save the mother’s disregard for his relationship with X). I can make orders to facilitate the child’s relationship with the father and prevent her from being removed from the country. It is unnecessary for X to live with her father in order to ensure that she spends time with him and, having regard to existing relationships with each parent, is likely to cause her distress.
54. The mother acknowledges that some electronic communication should be in place. I will make an order. I will not order that X communicate with the mother while in the father’s care at this stage in case it causes, rather than alleviates, distress. This can be revisited.
55. The father sought an injunction which would prevent the mother publishing details in respect of the parties, their child, the family law proceedings or related issues which would have the effect of identifying the child or her family. The mother has consented to the injunctive order.
56. The mother started an internet funding page in order to raise funds, it would appear, to stay in Country B. Roughly translated, it is a website to raise funds to allow the child X to stay with her family (in Country B). It appears as though other people have posted to that page. It is not in the interests of the child that there be internet sites dealing with her family law proceedings. While she is too young to be aware of them herself, internet postings are documents which can be viewed by many others and may be viewed by the child in the future and to publish details in respect of the proceedings in Australia would run the risk of breaching s 121 of the Act. I will make an order as the father seeks. The mother, through her counsel, accepted it was appropriate.
57. As these are interim proceedings and neither party ultimately sought an order concerning parental responsibility I find that it would be inappropriate to apply the presumption concerning equal shared parental responsibility. The result is that both parties continue to have parental responsibility at law. Each should keep the other informed about important information concerning X.

Litigation Funding

58. Neither party has as yet filed an application for financial orders. I do not have jurisdiction to consider an interim financial matter. That application will be dismissed.

Single expert

59. The parties have consented to the appointment of a single expert. I will make those orders by consent. The single expert report will be made available fairly promptly in the new year. The parties have indicated a desire to engage in Alternate Dispute Resolution. I am no making an order for Alternate Dispute Resolution but hope that when they have the benefit of the expert evidence, they will voluntarily engage in same.

Transfer

60. The father made an application that the proceedings be transferred to the Adelaide registry of the Federal Circuit and Family Court of Australia. The mother agreed to the making of this order and also asked that the matter be expedited and listed for further interim hearing. I will make an order for the transfer of the matter to the Adelaide Registry but will leave it for those at the Adelaide Registry to determine the application for expedition and further interim hearing.