ASTON & FROST

[2009] FamCA 905

FAMILY COURT OF AUSTRALIA

ASTON & FROST [2009] FamCA 905

FAMILY LAW – CHILDREN - Interim proceedings - Children have recently been removed from the parents by the Department of Human Services - Parental Responsibility - Pending further order the Minister for the Department of Human Services is allocated sole parental responsibility for the children - There is an unacceptable risk of physical and/or emotional abuse being suffered by the children if they are to remain with either the mother or the father - For the next few weeks the children are to spend supervised time for one hour twice per week with each of their two parents, after which time the children will spend time with the mother and father on not less than one occasion per week for a duration of one hour, with the Department to determine whether the time spent should be more frequent or whether any such time should be supervised

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Aston

RESPONDENT: Mr Frost

INTERVENOR: Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: NCC 1864 of 2007

DATE DELIVERED: 2 September 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Honourable Justice Austin

HEARING DATE: 2 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: MR HANAWAY

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: MS FLINTOFF

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER MR SQUIRES

Orders

PENDING FURTHER ORDER, IT IS ORDERED:

1. The New South Wales Minister for the Department of Human Services is allocated sole parental responsibility for G born … December 2001, J born … December 2003 and M born … August 2005.

2. Up until the week ending 26 September 2009, the parties shall take all reasonable steps to ensure that the children spend time with the mother, Ms Aston, on two occasions per week for one hour on each occasion at a place nominated by a delegate of the Director-General of the New South Wales Department of Human Services, with such time to be supervised by an employee of the Department or employees of an agency engaged by the Department to supervise that time.

3. Up until the week ending 26 September 2009, the parties shall take all reasonable steps to ensure that the children spend time with the father, Mr Frost, on two occasions per week for one hour on each occasion at a place nominated by a delegate of the Director-General of the New South Wales Department of Human Services, with such time to be supervised by an employee of the Department or employees of an agency engaged by the Department to supervise that time.

4. On and from the week commencing 27 September 2009, each of the parties shall take all reasonable steps to ensure that the children spend time with the mother on not less than one occasion per week for a duration of one hour at a place nominated by a delegate of the Director-General of the New South Wales Department of Human Services, with the Director-General or his delegate to determine whether the time spent should be more frequent, or whether any such time should be the subject of supervision.    

5. On and from the week commencing 27 September 2009, each of the parties shall take all reasonable steps to ensure that the children spend time with the father on not less than one occasion per week for a duration of one hour at a place nominated by a delegate of the Director-General of the New South Wales Department of Human Services, with the Director-General or his delegate to determine whether the time spent should be more frequent, or whether any such time should be the subject of supervision.    

6. Leave is granted to the Department of Human Services to photocopy material that has been produced on subpoena on condition that that material is not published.

NOTATIONS

A.This matter is to be referred back to the docket of her Honour Justice Ryan with a view to the matter being allocated a date for case management and the making of procedural orders for the purposes of final hearing.

B.Undertaking given by each of the parties through their legal representatives in Court that they will not attend the children’s school or pre-school unless authorised by the Department of Human Services.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1864 of 2007

MS ASTON

Applicant

And

MR FROSt

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These are interim proceedings concerning parenting orders relating to three children, namely, G born in December 2001, J born in December 2003 and M born in August 2005.  Those children are presently aged seven, five and four respectively. 

2. The parties to these proceedings are the applicant mother, Ms Aston, the respondent father, Mr Frost, the Independent Children’s Lawyer, Mr Squires, of the Legal Aid Commission of New South Wales, and the Director-General of the NSW Department of Human Services.

3. The proceedings were commenced on 15 June 2007 by the applicant mother filing an Application.  The Application proposed both final and interim parenting orders.  That Application was the subject of a response from the respondent father.  He filed a Response on 20 June 2007 promulgating different parenting orders from those sought by the mother.  As the case has proceeded before the Court, an Independent Children’s Lawyer was appointed and, as I have indicated, the Department of Human Services (“the Department”) through its functionaries has now intervened in the proceedings.

4. In the course of the litigation orders were made on 25 July 2007, including Order 4 which was an invitation for the Department to intervene.  That invitation was not accepted at that time.  Order 1 made on 30 July 2009 again invited the intervention in the proceedings by the Department and Order 1 made on 24 August 2009 recorded the intervention in the proceedings by the Department. The Department has since filed a Notice of Intervention on 1 September 2009.

5. This is a very sad case.  The parents formed a relationship and began cohabitation in or about August 1992 and they finally separated in or about March 2007.  There has been a history of interim parenting orders between the parties since the time of their separation, following the commencement of the proceedings by the mother by the filing of her Application on 15 June 2007. 

6. On 25 July 2007 some interim orders were made providing generally that the children live with the father and spend time with their mother. 

7. On 22 August 2007 some further interim parenting orders were made varying the orders that had been made a short time before on 25 July 2007.  The effect of those orders was to expand the time that the children would spend with the mother. 

8. On 22 October 2008 some procedural orders were made and one of those orders appointed Ms S, psychologist, as the Court expert in these proceedings.  Following her appointment and her receipt of correspondence from the Independent Children’s Lawyer, Ms S consulted with the parties and the children and authored a report, which is now in evidence, as an annexure to her affidavit sworn on 23 July 2009. 

9. The children were seized from the parents by the Department on 19 August 2009 and I infer that the Department’s action, within the province of the legislation which governs it, was instigated by the matters raised in Ms S’s report which had been drawn to the Department’s attention.

10. Although I have described the mother as the applicant and as having commenced the proceedings in June 2007, for all intents and purposes, the applicant in respect of the application before the Court today is the Department of Human Services.  Recently, Ryan J made an order directing the Department to file a Minute of Orders (as opposed to an Application) setting out the interim orders that were proposed by the Department.  The Department has complied with that order and filed a Minute of Orders.  That minute has been served on the Independent Children’s Lawyer and each of the parties. 

11. Without reciting the document verbatim, the gist of the orders proposed by the Department is that parental responsibility for each of the three children be allocated solely to the Minister for Community Services and that for the next few weeks the children spend supervised time for one hour twice per week with each of their two parents, after which time the Department will review the contact reports relating to the times that the children spend with their parents over the next few weeks and the Department will then make a decision as to what then happens.

12. Each of the parties has filed a Response in answer to that Minute of Orders. 

13. The Response of the father, filed on 1 September 2009, suggests that orders be made vesting in him sole parental responsibility for each of the children, that the children live with him, and spend time with their mother. 

14. The mother also filed a Response on 1 September 2009, in answer to the Minute of Orders proposed by the Department, but I was informed by her solicitor today that she departs from the orders proposed in that document.  She adopts and endorses the regime of parenting orders sought by the father and, in the alternative, then proposes the orders set out in her affidavit.

15. The documents relied upon in evidence by the parties are as follows: 

    a)The Department, in support of its Minute of Orders, relies upon the affidavit of Ms F filed on 1 September 2009. 

    b)The father relies upon his affidavit filed on 1 September 2009. 

    c)The mother relies upon her affidavit filed on 1 September 2009. 

    d)The Independent Children’s Lawyer relies upon the affidavit of Ms S, the Court expert, which was sworn on 23 July 2009.

16. In addition to that affidavit evidence, the Department has tendered a document as Exhibit DHS1 which is a report prepared by a functionary of the Department relating to the time spent by the children yesterday, 1 September 2009, with each of the mother and the father. 

17. That is the evidence brought by the parties.

18. The issues for determination today on an interim basis are, effectively, the allocation of parental responsibility, the time that is to be spent by the children with each of their parents, and the circumstances in which that time is to be spent. 

19. The process of determining the dispute before the Court today has been the subject of authoritative statement in Goode & Goode (2006) FLC 93-286. Orders in respect of children are regulated under Part VII of the Family Law Act. When called upon to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

20. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration and the Act specifies in section 60CC, with precision, the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the children. 

21. The Court is required to apply a rebuttable presumption that it is in the best interests of the children for their parents to be allocated equal shared parental responsibility for them. However, that presumption does not apply or may be rebutted in certain circumstances. 

22. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal or, alternatively, substantial and significant time with each of the parents.  If the presumption of equal shared parental responsibility does not apply or is successfully rebutted and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

23. Having recorded the process of determining interim parenting disputes by reference to provisions of the Family Law Act 1975, I turn to consider section 60CC. 

24. The children have a meaningful relationship with both of their parents.  The evidence of Ms S does not cast any doubt upon that.  The relationships that the children enjoy with each of their parents are important and significant to them.  The contact report, Exhibit DHS1, tendered today demonstrates the joy that the children derive from spending time with their parents.  As the Independent Children’s Lawyer has ably pointed out in his submissions, at this point in time at least, the case is really about analysis of the family dynamic which has the potentiality to cause an unacceptable risk of abuse to the children.  That unacceptable risk arises on the face of the material contained within Ms S’s report, to which I now turn.

25. I accept what the representatives of the parties have said in their submissions, to the effect that Ms S has made certain assumptions on the basis of the histories she has received from the parties and that Ms S has not been tested.  I am unable to resolve today, in the absence of cross‑examination of any parties, those sorts of conflicts which have been adverted to in submissions.  The role of the Court, at an interim level, is to decide a case by reference to facts which are not the subject of controversy and inferences that fairly arise.

26. The Court is obliged to have concern about the welfare of the children having regard to the contents of Ms S’s report which, I hasten to add, is an extremely comprehensive document.  It makes reference to the potentiality of violent conduct on behalf of the father, the mother and the children.  It makes repeated references to the oppressive nature of the relationship between the father and the mother, and the way that has the potential to deleteriously affect the emotional welfare of the children.  On the evidence adduced before the Court thus far, the mother and father are both lacking an extensive or supportive family network.  Unfortunately, both the father and the mother are regarded by Ms S as not functioning at a high intellectual or cognitive level.  The children are afflicted by the same difficulty and their academic progression is less than satisfactory.

27. On the face of the material proffered by Ms S in her report, I am persuaded to accept, at this interim stage, the submission made by the Independent Children’s Lawyer that there is an unacceptable risk of physical and/or emotional abuse being suffered by the children if they are to remain with either the mother or the father. 

28. The Independent Children’s Lawyer, at this point, supports the application being made by the Department, at least insofar as the allocation of parental responsibility is concerned. 

29. The children are really too young to express any views.  I accept that their conduct demonstrates that they would like to be with their parents and, more particularly, the father.  However, the material in Ms S’s report indicates that their emotional maturity is lagging behind their chronological age and for those reasons I repose little weight in the views of the children.

30. I do not doubt for one moment that the mother and the father love their children very dearly.  The issue for immediate determination is whether the relationship the children enjoy with each of their parents is a healthy one, and presently the view of Ms S is that it is not.  In fact, Ms S’s view is that the relationships they enjoy with their mother and father are so susceptible to adverse consequences that she has advocated not just immediate but urgent intervention by the Department.  It is the measure of alarm in the report authored by Ms S which appears to have motivated the Department in taking the action over the last two weeks that it has taken.

31. The change wrought to the lives of the children by their seizure on 19 August 2009, and placement into foster care, is one which, in the short term, will be quite distressing to the children.  Ms S, however, opines in her report that their immersion together in a foster placement where their emotional welfare is catered for is a more beneficial outcome and, on the face of the evidence adduced to this point, I am prepared to accept that as being so. 

32. The evidence so far adduced satisfies me that the father and mother are both presently, individually and collectively incapable of, and lack the capacity to, provide properly for the needs of the children, including their emotional and intellectual needs.  I accept that the mother and the father have been doing the very best they can, but there are limitations to their capacity as things presently stand.

33. There is some evidence to suggest that the children have been subjected to physical abuse, but that does not seem to be a central theme of the family dynamics.  The allegations of physical abuse of the children seem largely confined to historical events in or about 2006.  Of principal concern is the dynamics of the relationship between the parties and how that impacts upon the children.  Having regard to the evidence that I have summarised, the best interests of the children, in my view, are presently served by not having them live presently with either of the parents.

34. Firstly, there is a need to consider the issue of parental responsibility.  I accept the submission that has been made by the solicitor for the father that the father has made efforts within the limit of his capacity to provide for the needs of the children.  The Department has submitted that the efforts of the father have been reactive rather than proactive.  I am not prepared to accept that submission in the manner that it has been put.  I am prepared to accept that the father has done what he can, but that his ability is limited. 

35. I am concerned about vesting or allocating parental responsibility for the children solely to the father because of his inability to have complied with orders already made by this Court. 

36. On 30 July 2009 her Honour Ryan J made a variety of orders concerning the children.  The affidavit filed on behalf of the father on 1 September 2009 indicates at paragraph 24 that efforts have been made by the father to comply with those orders, but the inference plainly arises from the material before the Court that the efforts made by the father have been insufficient to ensure his compliance with the orders.  He did not ensure the enrolment of two of the three children in the programs directed by the Court within the seven-day time period ordered.  He did not notify those details to the Independent Children’s Lawyer within the seven-day timeframe ordered.  He has not ensured that the children do not continue to sleep with him, as was ordered.  I am inclined to the view, in the face of that evidence, that whilst the father does have a tendency to comply with the thrust of Court orders, he is not sufficiently inclined to ensure compliance in all respects.  As the Department has pointed out, that reflects adversely on the nature of his attitude to the exercise of parental responsibility. 

37. These are interim proceedings.  Section 61DA(3) of the Act provides that, when a court is making an interim order, the presumption of the allocation of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. It would not be appropriate in the circumstances for the presumption to be applied and I intend to order that parental responsibility for each of the three children be allocated solely to the Minister of Community Services on an interim basis.  Since I have not allocated parental responsibility on an equal shared basis to the parents, the Court’s discretion is at large in relation to the parenting orders that ought now be made. 

1. The father would like the children to live with him.  They were doing so for a period of years after separation up until the time that Ms S prepared her report.  As I have indicated, I accept, at least at this stage, the veracity of the contents of her report and acceptance of the contents of her report necessitates a finding that it is not in the best interests of the children to continue living, at least for the time being, in the household of the father.  The mother does not suggest that the children ought live with her. 

2. In those circumstances, I intend to make an order that the living arrangements for the children will fall within the embrace of the parental responsibility which would be allocated on an interim basis to the Minister for Community Services.

3. That leaves for determination only the question of the time that the children will spend with each of the parents. 

4. The father has advocated that in the event of a regime of that nature being implemented, he would like to see the children not less than three times per week and he suggests, or implies, that the time the children spend with him ought not be supervised. 

5. For the mother’s part, it is submitted on her behalf that she also should have unsupervised time with the children and that the children should have not less than two visits per week with her. 

6. It is submitted by the mother’s solicitor that the resources of the Department ought not be a factor taken into account in the orders which are to be made.  I cannot accept that submission.  I do not for a minute suggest that the financial resources of the Department will be the sole determinative factor of the proceedings, but it would be implausible for me to ignore it altogether.  It is a feature that will be taken into account with a constellation of other factors in the orders that I make.

7. Rather than make an order, I will just make a notation to the effect that this matter is to be referred back to the docket of her Honour Justice Ryan with a view to the matter being allocated a date for case management and the making of procedural orders for the purposes of final hearing.

8. Having heard the parties, I intend to make orders that will accord with the Minute of Orders proposed by the Department, at least over the next few weeks, where the children will have the opportunity of seeing each of their parents for one hour each on two occasions a week on a supervised basis, but thereafter with a safety net that the visits not be reduced below one visit per week.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  18 September 2009