Andrews and Lampton and Anor

[2012] FamCA 205

FAMILY COURT OF AUSTRALIA

ANDREWS & LAMPTON AND ANOR [2012] FamCA 205

FAMILY LAW - CHILDREN – Interim Application – With whom a child lives- with whom a child spends time – with whom a child communicates – order that children live with father – order that mother spend unsupervised time with eldest child at such times as sought by the child – order that mother spend supervised time with the three youngest children – order that father and his partner have sole parental responsibility for the children – matter adjourned for mention for trial directions – Department of Child Safety given leave to withdraw

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 61DA(2)

APPLICANT: Ms Andrews

RESPONDENT: Mr Lampton

INTERVENOR: Department of Communities (Child Safety)

INDEPENDENT CHILDREN’S LAWYER: Ms Leeman

FILE NUMBER: CSC 496 of 2011

DATE DELIVERED: 14 March 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 14 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Shuttleworth

SOLICITOR FOR THE RESPONDENT: Cuthberston & Co Lawyers

COUNSEL FOR THE INTERVENOR Ms Waeteford

SOLICITOR FOR THE INTERVENOR Department of Communities (Child Safety)

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Lehmann

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Lehmann Featherstone

Orders

1. The court orders Mr Benson be joined as a party to these proceedings AND IT IS DIRECTED the Independent Children’s Lawyer forward to Mr Benson c/- of his parents Ms & Mr P of … Town B, New South Wales a copy of the originating application, any updated applications and this order,
   by ordinary pre-paid post and inviting him to file a Notice of Address for Service in these proceedings.

   UNTIL FURTHER ORDER

2. BY CONSENT D born … June 1997 (“D”) reside with the father Mr Lampton.

   IT IS FURTHER ORDERED

   UNTIL FURTHER ORDER

3. The father and Ms E have parental responsibility in respect of the children D, Y born … December 2001 (“Y”), N born … October 2004 (“N”) and J born … July 2008 (“J”).

4. The children D, Y, N and J live with the father.

5. D spends time with the mother at times as he may agree to and as arranged between himself and the mother and that the father encourage that relationship.

6. The children Y, N and J spend time with the mother, supervised, at the C Contact Centre (“the Contact Centre”), at times available every second weekend, provided that the child Y is advised by a family consultant that he does not have to attend if he does not wish to do so.

7. Each party shall contact the Contact Centre within seven days and:

   a.      arrange an appointment for assessment for suitability for supervised time;

   b.     attend the assessment;

   c.     comply with any appointments made by the Contact Centre for supervised time;

   d.     comply with all reasonable rules of the Contact Centre; and

   e.     comply with all reasonable requests and direction of the staff of the Contact Centre.

8. If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen days written notice to the other party and to the Court.  (liberty to relist the matter to apply twelve months from the date of this order)

9. The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three days notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).

10. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the mother is to spend time with the child as set out in this order at times nominated by the Contact Centre.

11. In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.

12. The mother shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre and the vicinity when the time with the child is to end.

13. The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.

14. The parties shall contribute equally to the cost of the Contact Centre.

15. The mother be restrained from approaching the children, the father, the father’s partner and in particular at the childrens’ place of education, residence or place of employment or encourage others to do so.

16. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17. These proceedings be listed for mention before me at Family Court Cairns at 10.00am on Monday 3 September 2012.

18. The parties have available at that time any directions they seek in relation to trial including list of witnesses, issues and any further or other expert reports.

19. Leave be given to the Department of Child Safety to withdraw from these proceedings.

20. Leave be given to the Independent Children’s Lawyer to have the matter restored before me on the giving of seven (7) days notice to the other parties and the court.

    IT IS DIRECTED

21. An updated report be provided by Mr H with interviews in late August 2012 and that Mr H comment on whether the court would need a psychiatric assessment of one or either of the parties.

22. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

23. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Andrews & Lampton and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 496 of 2011

Ms Andrews

Applicant

And

Mr Lampton

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms Andrews and Mr Lampton in relation to four children, namely D, born in June 1997, currently aged 14, almost 15, Y, born in December 2001, aged 10, N, born in October 2004, aged 7 and J, born in August 2008, aged three and a half.

2. There were orders made by a Federal Magistrate late last year and the matter came before me on an urgent application in February of this year.  The matter was adjourned to today for full determination of that application.  When the matter came before me in February 2012, I made orders suspending the orders with regard to the mother spending time with the four children, restraining the mother from approaching the children, the father or the father’s partner and stood the matter over to today so that all parties could present evidence and the material upon which they would rely.

3. The first matter which appears not to be in dispute is that the youngest child, J, is not a child of the parties, and the mother asserts that his father is Mr Benson, who lives, she thinks, in Town S, New South Wales, and whose parents, Ms and Mr P live at Town B.  It seems appropriate that I join Mr Benson as a party to the proceedings, and I make an order joining Mr Benson as a party to these proceedings, and I direct the Independent Children’s Lawyer to forward to him a copy of all material, care of his mother and father, by ordinary prepaid post, and invite him to file a notice of address for service in these proceedings.

4. In terms of the child D, there is no issue that D should continue to live with his father, although I note that this ought to only be an interim order, bearing in mind the criticisms that the mother has made in her affidavits upon the father.  Accordingly, I make an interim order by consent at this stage that D, born June 1997, reside with the father, Mr Lampton.

5. The mother, the father, Independent Children’s Lawyer and Department of Child Safety, and I note that the Department of Child Safety have intervened, all seek orders that the younger three children, Y, N and J, live with the father and spend time with the mother at the C Contact Centre.  The mother, substantially, seeks a return, as it were, to the orders made by the Federal Magistrate, that is that J live with her and visit the father on a fortnightly basis, and that Y and N spend time with her each alternate weekend, but up until Sunday rather than the commencement of school on Monday.

6. There has been no order made nor order sought in relation to parental responsibility, and having regard to the significant allegations of both the father and the mother, it is clear that the presumption under s 61DA cannot, or would not, apply in this case. It is not a case where I intend in all the circumstances to make an order for equal shared parental responsibility. I intend to leave the situation as it remains at the present time, that is, that the mother and father each have individual parental responsibility with regard to the elder three children pursuant to legislative operation. I am somewhat concerned, however, in relation to J, in that if the father, as he concedes, is not the biological father of this child, s 61C would not apply to him and therefore he would, in essence, not have parental responsibility in respect of this child. That would create a somewhat difficult circumstance and accordingly I ought to make some form of order.

7. I had overlooked earlier in these reasons that the Independent Children Lawyer, and presumably the Department, seek an order that the father have sole responsibility.  I have some concerns about that approach, bearing in mind the history of the father to which the Independent Children’s Lawyer has articulated in the materials he provided in the Exhibit on the last occasion.  What I intend to do is to make an order that the father and Ms E have parental responsibility, pending further order, and at this stage I will invite the parties, if they have any submissions to the contrary to that approach, to make those submissions.

8. I make an order that the father and Ms E have parental responsibility in respect of the children, D, Y, N and J.

9. The mother relied upon a series of affidavits in these applications, namely her affidavit filed 22 February 2012, her two affidavits filed 27 February 2012 and her affidavit filed on 14 March 2012.  The orders she sought were as set out in her application in a case, filed on 14 March 2012.  They fell into a number of areas, the first of which I have referred to earlier, that is the parenting orders.  The second was that she wanted the appointment of this particular Independent Children’s Lawyer set aside, and a different Independent Children’s Lawyer appointed and, thirdly, she wanted an up-to-date family report.

10. The father relied upon his affidavit filed 10 February 2012, an affidavit of an officer of the Department of Child Safety and the report of Mr H.

11. The Independent Children’s Lawyer relied upon the material of Mr H, and as I understand it, the Department of Child Safety relied upon the affidavit of their officer, to which I have alluded earlier.

12. The Independent Children’s Lawyer has provided a chronology which, is in significant ways, in respect of the factual issues between the parties, in issue.  However, there are some matters which are not in issue, and these seem to be that the father’s present partner, Ms E, is aged about 46, the father is aged 44, Mr M is aged approximately 29, and the mother is aged 35.  The parties were in a relationship for a significant period of time.  There are three children of that relationship, and the fourth child is, of course, J.

13. What does come out is that there have been significant issues between the parties over many years.  The precise fault and nature of those issues is a matter of contest.  The mother says that the father was violent and abusive to her throughout the relationship.  The father says that the mother was violent to him, and the children, at least to Mr H and others, assert that they have been the subject of violence, particularly at the hands of the mother.

14. The mother says, and claims, that those assertions by the children are either fabricated and/or induced by the father.  I am assisted by the report of Mr H and I give it some weight, although I understand and acknowledge that the material contained in that report has not been tested.  There is criticism of Mr H by the mother in terms of the manner in which he collected information, and the mother, as I have said elsewhere, wants an earlier reporter whose report is not in front of me, Mr R, to undertake further reports.  I might interpose at this stage that all parties assert and agree that there ought to be an updated report but it, in the view of the father and the Independent Children’s Lawyer, ought to be later rather than sooner, bearing in mind the significant investigation of the children over recent times.

15. Going back to the report of Mr H, he observes this at paragraphs 214 through to 223, and I will not repeat them, but in the reasons I have had regard to those.  These include Mr H’s opinion that it appears unlikely that the mother has the motivational capacity for honesty or reasonable insight regarding the impacts of her history of abuse.  He strongly recommended that the children be placed in the father’s care, notwithstanding his likely support for unsupervised contact arrangements may not be strong.  He recommended that the mother attend on an experienced mental health practitioner and made significant criticisms of her.  He said the children had complained that they had been abused by the mother and he expressed a view that those complaints by the children were more likely to be true than not to be true.  I note, however, that the mother is more than just critical of these assertions and has made that very clear in her submissions.

16. His report is powerful and his report is concerning.  At paragraph 218 he notes the accounts offered by D and Y concerning the abusive behaviours, and in 219, Mr H alerted the Court that there could be payback in relation to disclosures made by the children to him.  He reported some very strong comments by D in relation to the mother, which are set out in paragraphs 49 through to 61 of the report.  He reported concerns of Y in paragraphs 62 through to 73.  In relation to N, I have before me the school reports, which are deeply troubling in relation to this child, as are the comments of the child contained in the report.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The provisions in the Family Law Act 1975 (Cth) (“the Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.

3. There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.  

4. If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

5. I have had regard to the principles set out in ss 60B, 60CC, 61DA, 61D(2)A and the other relevant sections.

6. There are significant issues of fact in this case which must be addressed.  There are significant issues as to the behaviour of both the mother and the father with regard to these children, which must be assessed.  But in the meantime, of course, the children must be made safe.  In relation to the benefit of the children having meaningful relationships with both parents, it is clear in general terms that children benefit from knowing both of their parents and having a meaningful relationship with them.  In this case, it is the question of the violence and abuse which has been asserted which needs to be examined so it can be determined whether there is a benefit in the children or any of them having a meaningful relationship with one or other parent.  There are serious issues in this matter about what is happening to these children whilst in the care of both their mother and their father.  The report writer has expressed the view that there is an unacceptable level of risk for the children in the mother’s care, and goes on to suggest that the children be placed in the father’s care.  He also suggests that for the protection of the children, such time ought to be supervised and reportable to the Independent Children’s Lawyer.  It seems that these reflect the significant, powerful submissions made by the Independent Children’s Lawyer, and I accept and adopt those submissions.

7. In relation to the views expressed by the children, I have articulated those earlier.  It is significant that the family consultant formed the view that D’s accounts were credible, as were those of the child Y.  There was concern about how the views of N were brought about.  The Independent Children’s Lawyer and the family consultant expressed a view that these may have been induced by the mother.  The mother said that could not have been the case, as she did not have the care of the child prior to the report.  And of course, the views of J were, having regard to his age, not obtained, and that makes sense.

1. In relation to D, he lives with his father and has chosen to live with his father, and bearing in mind his age and maturity and the submission by the Department of Child Safety and the consent of the mother, that’s not likely to change.  In respect of the relationship between the children and the mother, Y reported that he was scared of his mother but not his father.  He reported he got on well with Ms E and had concerns about living with the mother.

2. It is significant that Y is concerned about payback.  N has expressed a view that he wanted to live with his mother.  The question is whether that’s prompted by a genuine desire, or by some promise made to him by the mother and whether, having regard to other matters, even if it is his desire, it ought to be implemented.

3. As to the willingness and ability of each of the parents to facilitate a relationship, there is no doubt that the parents have, from time to time, not done so, and there are real concerns in that regard.  I have noted, accepted and adopted the submissions of the Independent Children’s Lawyer in that regard.

4. In relation to the practical difficulty and expense of the children spending time and communicating with the parents, there is a small cost for the Contact Centre, but of course, the mother is not in employment and does not earn an income.  She has submitted, and I have accepted, that she would need to call upon friends to assist in that regard.

5. There are serious issues with regard to the capacity of the parents to care for these children.  Both have difficult pasts:  the father in the criminal justice system, which has been provided to me in the material from the Independent Children’s Lawyer.  However, the report writer said that the father’s partner has stabilised him.  Whether that, in fact, is real, or is simply a short-term illusion will need to be a matter for determination on a final hearing.  There are serious concerns about the mother and her violence towards the children and the father.  There are also serious concerns about the children’s interaction with the police, the Department of Child Safety and the Department of Education.  There are serious concerns that the report writer, Mr H, had in relation to the mother’s motivation or capacity for honesty or reasonable insight, and he recommended, as I indicated earlier, that the children should be the subject of supervised time with the mother.

6. I have had regard to the maturity and age of all the children and the fact that they have been in their mother’s care for a significant period of time, most of their lives in respect of the youngest child.  Both parents have shown a poor attitude to the responsibilities of parenthood and have maintained a dysfunctional relationship characterised by violence.  Both parents assert this.  Both parents point fingers at each other and say they are the cause of it.  It will be a matter for a final hearing to determine those matters of fact.

7. There are significant issues of family violence which are set out in the various affidavits and in the various submissions.  I have had regard to those.  By not spending time, I do not, in any way, condone or accept them.  It is just that to deal with each of them, item by item, and each allegation item by item, would take hours and hours.  It will need proper and further investigation to determine precisely where that violence arises and the children need to be placed somewhere safe in the meantime.  On the evidence before me, the safe house is not the house of the mother, the safe house, at present, is the home of the father, although I have some concerns about that, bearing in mind the allegations that are raised.

8. Sensibly, the Department of Child Safety has intervened in these proceedings, and has undertaken some investigations.  It is of value to these children that they have done so, and I look forward to further reports from them and further investigations if they consider it warranted, particularly bearing in mind the concerns raised by the mother.

9. Having regard to the material before me and to the matters I have alluded to elsewhere, and particularly the outlines of case submissions made by the Independent Children’s Lawyer and the counsel for the Department of Child Safety, it seems to me that an order ought to be made, as they have suggested.  I intend to require a further report to be obtained in respect of the children in the second half of this year, probably around August/September, or October 2012, so that there can be an assessment on how the children are doing, and in that report there ought to be a recommendation as to whether their mother or father should undertake psychiatric assessment.  The mother should consider whether, in terms of her wellbeing and in terms of these proceedings, she should accept the recommendation by Mr H as to her own health treatment, which is set out in the report.

10. In terms of the person who should prepare that report, it seems to me that Mr H has prepared a report so far and if he is available, then it should be him who prepares the update report, unless I hear submissions to the contrary from anybody at this time. 

    I note the mother does not agree with that course.  Notwithstanding, I will adopt that course at this stage.

11. The final issue to be dealt with was an application by the mother to have the Independent Children’s Lawyer removed, essentially because the mother was of the view that the Independent Children’s Lawyer was not acting independently, and was focusing too much on her and not on enough on the father.  I have seen the material produced by the Independent Children’s Lawyer, and while there may be some or may not be some errors in the chronology, she has provided this Court a scathing appraisal of the father and provided information in relation to the father’s previous criminal history.  There does not, on the material before me at this stage, appear to be any basis upon which it can be reasonably asserted that the Independent Children’s Lawyer was acting other than according to the role to which she has been appointed, and I will take no steps in relation to that.

12. There is an application before me for the Department to withdraw from the proceedings.  The mother objects to the withdrawal on the basis that matters have not been investigated.  The Department made it clear in their submissions that if further disclosures are made, they will, if they consider it appropriate, investigate those proceedings.

13. Having regard to those submissions, I give leave for the Department of Child Safety to withdraw from these proceedings.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 March 2012.

Associate:     

Date:              14 March 2012