ATKINS & GATTING

FAMILY COURT OF AUSTRALIA

ATKINS & GATTING

[2016] FamCA 533

FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Best interests – applicant mother and Independent Children’s Lawyer seeking final orders on an undefended basis – where the family has had significant historical involvement with the Department of Health and Human Services – where the evidence is untested – order made that the mother have sole parental responsibility – order that the children live with the mother and spend time with the father as agreed in writing.

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – where the father has failed to comply with orders – where the father has repeatedly failed to attend court – where the father has failed to take any step in the proceedings since his legal representative ceased to act – where procedural fairness has been afforded to the father and no proposals are made by the father.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61B, 61DA, 69ZN(7), 69ZT(1), 69ZW(5), 91B

Allesch & Maunz (2000) 203 CLR 172

APPLICANT:

Ms Atkins

RESPONDENT:

Mr Gatting

INDEPENDENT CHILDREN’S LAWYER:

Schetzer Constantinou

FILE NUMBER:

MLC

7232

2015

DATE DELIVERED:

1 July 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

9 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Devine

SOLICITOR FOR THE APPLICANT:

Lampe Family Lawyers

THE RESPONDENT:

No appearance

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Luddu

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Schetzer Constantinou

Orders made 9 June 2016

IT IS ORDERED THAT

All previous parenting orders be discharged.
The children B born … 2001, C born … 2009 and D born … 2009 (“the children”) live with the mother.
The mother have sole parental responsibility for the children.
The children spend time with the father as agreed between the parents in writing.
The written reasons for judgment in this matter be reserved.
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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkins & Gatting 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 MELBOURNE

FILE NUMBER: MLC 7232 of 2015

Ms Atkins

Applicant

And

Mr Gatting

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The mother seeks final parenting orders in circumstances where the father has not pursued his Response and failed to attend court.
The parents of B and twins C and D have been in dispute as to their ongoing care arrangements since the mother initiated proceedings in the Federal Circuit Court in July 2015. B is aged 14 and a half years old and the twins are aged six and a half years old (“the children”).
The parents commenced an “on and off” relationship in or about 1995, which relationship was marked by domestic violence and mutual drug abuse. They never married and separated on a final basis in or about April 2014.
By her Amended Initiating Application filed 20 April 2016, the mother proposes that she have sole parental responsibility for the children, that they live with her and that they spend time with the father as agreed between the parents. The mother’s proposals were ultimately supported by the Independent Children’s Lawyer with the addition of a condition that any agreement about the father spending time with the children should be in writing. The mother agreed to this condition.
The children have been the subject of Children’s Court proceedings and were placed on a Supervision Order which was revoked on 9 September 2015 when the Children’s Court was informed by the Department of Health and Human Services (“the Department”) of interim parenting orders being made in the Federal Circuit Court and the proceedings being transferred to this Court.
The children are three of a sibship of seven. Of the remaining four siblings, one has reached the age of majority, and two live in foster care and have done since being relinquished by their mother at birth. The fourth child, E (17 and a half years old) currently resides with the mother, and she does not seek any orders in relation to his care.
Interim parenting orders in this Court were made by the Senior Registrar on 27 October 2015 (“the Interim Order”), at which hearing the father was represented by his solicitor. Those orders provided for the children to live with their mother and spend time with their father on a supervised basis at a professional Contact Centre in a manner as directed by the Independent Children’s Lawyer. This has not occurred.
Despite being given an opportunity to participate in the proceedings, the father has not attended the hearing and has not filed any further material in support of his Response filed in the Federal Circuit Court since September 2015. The father has not provided any explanation for his failure to attend and there are no proposals from him. He has not spent any time with the children since 31 August 2015 and indicated to the Independent Children’s Lawyer that he did not intend to participate in the previous listing of this case on 20 May 2016.
The parents and children have an extensive history of involvement with the Department which appears to have ended in September 2015. The Department stated in a letter to the Family Court that it no longer has concerns about the protective issues with regard to the care, safety and stability of B, C and D.
The Independent Children’s Lawyer initially made an application to adjourn the proceedings to ensure that the mother complied with the requests which had been made for her to participate in further drug testing. The mother had provided only one drug screen.
After hearing oral evidence from the mother and discussions with the mother’s housing worker, who was present at Court on the day of the hearing, the Independent Children’s Lawyer supported the mother’s proposals for final parenting orders but ultimately proposed that final parenting orders provide that the children spend time with the father as agreed between the parents in writing. At the conclusion of the hearing, counsel for the mother supported this proposal for the children to spend time with the father.
Counsel for the mother did not seek that any findings be made that the father is an unacceptable risk to the children. She conceded that, given the seriousness of the allegations made by the mother against the father, such findings could not to be made on untested evidence. She sought that the orders be made in accordance with the mother’s proposals on the basis of the court being satisfied that they were in the best interests of the children.

Procedural fairness

On 2 September 2015, the matter was listed before Judge Hartnett in the Federal Circuit Court, at which time the father was represented by his solicitor. On that occasion, Judge Hartnett ordered the preparation of a report in relation to the family pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) and adjourned the matter for further hearing on 4 September 2015.
Following the receipt of the s 11F Report, upon hearing the parties, and the father by his solicitor, interim orders were made that the children live with the mother and spend time with the father in a manner as agreed between the parties. The proceedings were at this stage transferred to the Family Court.
In this Court on 1 October 2015, the father again appeared and was represented by his solicitor before Registrar Field for the making of directions. An Independent Children’s Lawyer was appointed, and it was requested that the Department intervene in the proceedings pursuant to s 91B of the Act.
Interim parenting orders were then made by the Senior Registrar on 27 October 2015, at which hearing the father was represented by his solicitor. While the Order specifically provides the “Applicant” spend time with the children in a supervised manner – and despite the applicant in fact being the mother – it would appear uncontroversial between the mother and the Independent Children’s Lawyer that this is in fact a reference to the father. Such is also apparent from a consideration of the balance of the orders made. The Senior Registrar also ordered that the parties undertake supervised urine and drug screening at the request of the Independent Children’s Lawyer. The parties were restrained, without admission, from abusing, insulting or otherwise denigrating the other in the presence of the children and from discussing the proceedings with the children or otherwise involving them in the dispute. A psychiatric report was also ordered.
The Independent Children’s Lawyer arranged for the parents to attend upon a psychiatrist on 2 February 2016 for the purposes of assessment and the preparation of the psychiatric report. Neither party attended those interviews and, while the mother later advised that the children were unwell and she was prepared to reschedule the interviews, the father did not provide a reason for his non-attendance. Ultimately no assessments were ever undertaken.
The father has not subsequently made contact with the relevant Contact Centre and has not spent time with the children since the making of those orders.
On 29 February 2016, the father’s solicitors filed a Notice of Ceasing to Act. That document reflects that there was, at the time of filing, no upcoming hearing date.
On 6 April 2016, orders were made in Chambers listing the matter for a First Hearing Day on 20 May 2016.
The Chambers orders provided for the filing of further material by each party, including an Amended Application and Response and a summary of issues. The father has not filed either an Amended Response or a summary of the issues in dispute.
The father failed to attend the First Hearing Day on 20 May 2016, and it was noted, by orders made that day, that if he failed to attend the adjourned date, the matter would proceed undefended.
Pursuant to the Interim Order made by the Senior Registrar on 27 October 2015, the Independent Children’s Lawyer made requests of the parties to undertake supervised urinalysis drug screening on five occasions. The father has failed to comply with all drug screening requests.
The Independent Children’s Lawyer tendered Exhibit A, being copies of two letters forwarded to the father explaining the outcome of the last hearing and enclosing copies of the Orders made 20 May 2016.
As High Court authority makes plain (Allesch & Maunz (2000) 203 CLR 172), where a person’s interests may be adversely affected by a Court’s decision, that person must be given the opportunity to place before the Court material and submissions before a decision is made. However, as Kirby J emphasised, what is important is the opportunity to be heard. As his Honour observed, at [38]:
…Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
In circumstances where the father has failed to make arrangements to spend time with his children pursuant to the Interim Orders, has failed to attend to any request of the Independent Children’s Lawyer to undertake supervised urine analysis screening, failed to take any step in the proceedings since his legal representative ceased acting for him, failed to file any document pursuant to the Orders of 6 April 2016, failed to attend the first day of hearing, and failed to attend the final hearing of the matter when orders had previously noted that his failure to appear would result in the matter proceeding undefended, I am satisfied that he has been provided an opportunity to place before the Court material and submissions and to be appropriately heard but has, for whatever reason, failed to do so. I am therefore satisfied that, given the father’s failure to attend the hearing of the matter, it ought to proceed on an undefended basis.

Evidence and Standard of Proof

The applicant mother relies upon the following material in support of her application:
·Amended Initiating Application filed 20 April 2016;
·two Affidavits of the mother filed 31 July 2015 and 22 October 2015;
·a copy of a current intervention order which expires on 16 June 2017 where the father is named as the defendant and the mother, E, B and the twins are named as affected family members protected by the order;
·Exhibit 1: LEAP Sub incident Summary report prepared by Victoria Police in relation to an incident of alleged assault by the father upon the mother, dated 30 June 2007; and
·Exhibit 2: Report of results of the mother’s drug screen on 2 March 2016, indicating that methadone metabolite was detected.
The Independent Children’s Lawyer ultimately supported the mother’s proposals. She did not identify any particular evidence upon which she relied. She tendered one exhibit:
·Exhibit A: Letters from the Independent Children’s Lawyer to the father dated 23 May 2016 and 26 May 2016 informing of these proceedings and of the likely consequences if the father failed to attend including that the matter would proceed undefended.
Admitted into evidence under s 69ZW(5) of the Act were two reports from the Department dated 28 August 2015 and 26 October 2015. These reports were not challenged and remain untested.
A child inclusive conference memorandum from family consultant Mr F dated 4 September 2015 prepared for the hearing in the Federal Circuit Court was admitted into evidence but remains unchallenged and untested.
As already observed, the father did not appear at court to identify any affidavit or other material in his case.
In these circumstances, the only evidence properly before the Court for the purposes of the undefended hearing is the material outlined above which is admitted into evidence unchallenged.
The relevant standard of proof is the balance of probabilities.[1] Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
a)The nature of the cause of action or defence; and
b)The nature of the subject matter of the proceedings; and
c)The gravity of the matters alleged.
[1] Evidence Act 1995 (Cth), s 140
One of the important principles for conducting child-related proceedings under section 69ZN(7) of the Act is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Having regard to those principles the proceedings were conducted by way of short oral evidence from the mother and the Independent Children’s Lawyer, the latter having been satisfied of certain matters by information received from the mother’s housing worker who was present at Court and assisting with the care of the children outside the courtroom. The children had accompanied the mother to Court because it was a curriculum day school holiday.
Under section 69ZT(1) of the Act certain rules of evidence do not apply in child-related proceedings, unless the court decides otherwise.
I am satisfied that the mother has provided evidence to prove her case on the balance of probabilities. The father has not elected to counter her evidence with other credible evidence and there are no proposals before the Court other than those of the mother supported by the Independent Children’s Lawyer.
The father has failed to appear without explanation and is not pursuing his Response. He has been given a reasonable opportunity of participating in the proceedings and has not filed any material since 2 September 2015.

Background

The Department has had extensive involvement with the family since as long ago as 1998. It is unnecessary for the purpose of the current application to traverse all of the detailed historical material produced by the Department save as to record that a number of reports were made in relation to each of the children subject of these proceedings related to their exposure to domestic violence between the parents, the parents’ ongoing substance abuse, neglect and poor care of the children including presenting to school unclean and unfed. These reports appear to have been made in relation to concerns about each child from their birth, including that E and B were born drug dependent.
According to records of the Department, following the initial Federal Circuit Court hearing, there was a hearing in the Melbourne Children’s Court on 2 September 2015. The Department informed the Children’s Court that no interim orders were made in the Federal Circuit Court on that day but that Child Protection intended to withdraw their involvement and seek a revocation of the Supervision Order in place if orders in the family law jurisdiction were made before the next Children’s Court hearing on 9 September 2015.
On 4 September 2015, after receiving oral evidence from a family consultant, Judge Hartnett transferred the proceedings to this Court and made interim orders for the children to live with the mother and spend time with the father as agreed in writing. The Children’s Court was informed of this development on 9 September 2015, on which date Child Protection withdrew from the Children’s Court proceedings and the Supervision Order that had previously been in place in relation to the children B, C and D was revoked.

Family Consultant’s Report dated 4 September 2015

The family consultant’s report which was prepared for the Federal Circuit Court hearing is somewhat dated now having been completed at a time when the father was engaged in the proceedings. Only one of the three children the subject of this hearing, B, was interviewed in the course of the preparation of the child inclusive conference memorandum. Both parents were also interviewed.
It was noted in the report that both parents agreed that the children should spend time with each parent and agreed that the children had been exposed to the family violence, verbal arguments and volatility occurring between the parents prior to their separation.
In this report, it was noted that the father reported two recent relapses in his use of heroin, including one use resulting in overdose and hospitalisation. It was noted that both parents had a history of use of illicit substances, and that the father had a criminal history related to his use of illicit substances. It was noted that the mother alleged a history of significant physical, sexual and emotional violence directed toward her by the father during the course of their relationship.
The family consultant noted that during B’s interview, she indicated that she was happy to visit the father’s home on an ad hoc basis, but was ambivalent about spending time with the father, although she did express a desire to spend time with her brother E, who lived with the father at the time the report was prepared. It was further noted that the Department recommended that the younger children spend two or more overnights with the father now that supervised time was not considered necessary by the Department; however, the mother did not support this view. The memorandum was prepared before the final Children’s Court hearing, and recommended that either no orders be made, so that the Children’s Court proceedings in respect of the father’s relapse could proceed, or the Federal Circuit Court could make orders reflecting the need for interim supervision in light of the father’s relapse and overdose. It was suggested that the results of ongoing urine screens would also assist the court.

Domestic and family violence

In addition to the parties’ history of drug abuse, the mother asserts that the father was frequently physically, emotionally and sexually abusive of her. She particularises a number of the significant incidents in her material, including:
a)The father insisting the mother sleep on the couch throughout the parties’ relationship unless he “wanted something”;
b)The father degrading the mother “constantly” and encouraging the children and his friends to do so as well;
c)The father “forcing” the mother to live in the garage with the three eldest children while the father’s girlfriend lived in the house. The mother says when the Department became aware of the situation, they removed her and the children from the house;
d)The father “regularly” grabbing the mother by her neck and strangling her and holding her against a wall by her neck; and
e)Being woken many times by the father punching her in the head; and
f)The father seriously assaulting the mother in 2007 such that she required hospitalisation and was in an induced coma for a time. She says the fight arose in relation to money she had received from Centrelink for the children as the father wanted to spend the money on drugs. She says when she returned from the shops, having purchased items needed for the house, the father attacked her with a knife in his hands. She says he then knocked her over the head with a rock repeatedly until she fell unconscious. The mother deposes to the children being present in the house at the time of this assault and deposes that at least B and E attempted to assist their mother, with B sustaining two black eyes in the process. She says the father was subsequently arrested by police. The mother sought an Intervention Order against the father.
g)In 2014, the mother says the father pushed her through a window because she had not cooked dinner quickly enough for his liking. She deposes that when police attended the residence at the request of neighbours, she lied and told them that the children had broken the window because she was scared of the ramifications if she told the truth.
The mother also asserts that the father would frequently use B to “score” his drugs for him which led to occasions on which the child was assaulted by the father because his drug dealer had “ripped him off”.
The father does not admit the allegations of domestic violence made by the mother.
It appears between 2006 and 2012 the Department had no involvement with the family. However, further reports were made from 2013 in relation to each of the subject children.
In March 2013, the Department received a report in relation to B, reporting concerns the child might be at risk of emotional and physical harm whilst in the care of the parents arising out of neglect, body odour, smelly clothes, head lice and a failure to provide lunch.
In or about early May 2013, the Department received a report that E and B were presenting to school in dirty clothes, having not bathed, without lunch and having not eaten. They also had recurring nits. The report also recorded that the father had recently attended at the school appearing substance affected. The Department did not consider there was a role for Child Protection at that time as the concerns could be managed in the community and were not significant enough to warrant protective intervention.
On 13 May 2013, the Department received an emergency report, as the mother had discharged herself from hospital, having been admitted for pneumonia, and because the father had left the twins in E’s care. E was then 14 and a half years old and the father appeared unable to identify the risk associated with that decision. The father was interviewed by Departmental workers and reported his concern about the mother’s drug use and reported that she was then using heroin, amphetamines, marijuana and alcohol. He admitted he used alcohol and had historically used drugs, however reported he was not then using drugs. He identified concerns with financial matters and transience as well as the mother’s “undiagnosed mental health status”. The Department assessed the father was appropriate to care for the five children at that time.
On 16 May 2013, Departmental workers interviewed B at her school where concerns were raised about the parents’ ongoing drug use, and the children’s exposure to the same, and that the children did not feel safe living with the parents.
The children were subsequently removed from their parents’ care and placed in out of home care. Following a contested hearing in the Children’s Court on 25 July 2013, the children were place on an Interim Accommodation Order to the father, with the mother residing in the home. The family continued to live together until April 2014.
In April 2014 the parents separated when the mother took the three girls with her to stay at a refuge.
In September 2014, the Department produced a Court Report (Annexure A, Affidavit of the mother filed 31 July 2015). That Report observed that the mother had historically failed to abide by the requirement of Children’s Court Orders to undertake supervised urine testing and that she had “been breached” for both failing to undertake the relevant test and for returning test results positive for amphetamines. The Report also noted that the father elected to undertake urine screens randomly to demonstrate his compliance with the requirement.
There was an incident at the twins’ childcare centre on 3 September 2014. The Department records that the father telephoned the police because the mother had attended the centre and removed the girls when they were due to be in his care. The Centre manager reported the father was banging on doors asking them to call the police. She also reported that the Centre had to lock the doors because when the mother returned the children she would then not leave the centre and was continuously coming inside to see the children.
On 9 September 2014, the twins were assessed by the Victorian Forensic Paediatric Medical Service in relation to allegations made by the mother that the father had sexually abused them; these allegations arose as a result of a red rash each had in their respective groin area. The doctor at the medical service reported there were no signs of sexual abuse but observed each child had eczema. A Departmental worker later reported serious concerns about the mother’s ongoing allegations against the father and the lack of insight as to the impact of having the children invasively examined.
On 17 September 2014, Magistrate Cain of the Children’s Court made an Order returning the children to the mother’s care and listing a hearing to commence 27 October 2014.
The mother deposes that when these orders were made, the father told Departmental workers that he would go to purchase heroin and then kill himself. She says, following that, the Department placed the two older boys in her care for a number of nights before returning them to their father’s care.
Records of the Department indicate that the father became extremely distressed at the children being removed from his care and his mental health significantly deteriorated, and that he relapsed into use of illegal substances, specifically heroin, and expressed suicidal ideation. He reported to the Departmental worker that if the children were returned to the mother that day he would lose faith in the system and leave as he could not deal with the thought of his children being placed in the mother’s care. Once the decision was pronounced, the father left the courtroom yelling things such as, “I’m not a fucking baby-sitter”. The father returned and spoke with the Departmental worker insisting that the mother collect the boys from school that day as “he was done”. Subsequent attempts by the worker to contact the father by telephone resulted in the father indicating he planned on committing suicide and was in the process of taking pills to achieve that end. An ambulance subsequently attended upon the father at the request of the worker and the boys were placed in their mother’s care.
Attempts by the Departmental worker to contact the father in the days following this incident revealed that the father had voluntarily admitted himself to hospital however had subsequently left without any treatment. The worker reported that during a further telephone call the father seemed substance affected, he was slurring his speech and his speech was delayed. The father also reported that he was waiting to get money on Tuesday because then he was going to get “fucked up”. The worker confirmed that by this the father meant that the father intended to use illicit substances and the father reported he had been “using daily” since the court hearing.
On 15 October 2014, the Children’s Court placed B and the twins on a supervision order which provided that they live in the primary care of the mother. The Department withdrew its involvement in relation to E and the eldest son, who went to live with their father.
The mother deposes that from October 2014, the twins were to spend one night per week with their father, with changeovers to be facilitated at a local police station. She asserts that the father failed to attend on most occasions and on at least one occasion the police intervened as he became verbally abusive of the mother.
There also followed a period of approximately six weeks when the father did not spend any time with the children and a further period where the twins stayed two consecutive nights with him.
The mother deposes that in January 2014 (although she was in all likelihood referring to 2015 based on the context within the mother’s material), B and the twins went to spend time with their father, during which time B made numerous frantic phone calls to her mother asking for help because the twins were screaming. The mother says she woke at 11pm that evening to 29 missed phone calls from B and a call telling her that she (B) had called the police because the father had locked himself away in the bathroom all day and had not fed them. The mother subsequently telephoned the police who confirmed what the child had said and reported that they were working on removing the children and returning them into the mother’s care. She said she was further informed that the police had called an ambulance to the house to rouse the father and that she heard nothing further from the police that evening.
The next morning, the mother deposes that she attended upon the office of the Department and at approximately the same time the three girls arrived at the offices wet and inappropriately clothed (wearing light clothing and no shoes). B reported that the father had taken the children to a train station and told them to go. B also reported that she and the twins initially walked to the mother’s home but when she was not home, walked to the offices of the Department.
The Department records, however, do not substantiate the mother’s recounting. The Department records indicate that the mother attended upon the local police station and reported that B had made numerous distressed phone calls to her throughout the night and the police, being unable to attend themselves, had sent an ambulance to the house. The ambulance reported no concerns in relation to the children’s presentation and indicated that they had woken most of the household on their arrival. Further, insofar as the mother reported the father had effectively abandoned the children at the train station, investigation revealed that the father had taken the children with him to Suburb G to attend to errands and they had left him while he was attending tasks at the bank. The father also reported to the Department that he cooked pasta for dinner and the children’s alleged reports that they had not been fed were incorrect.
The father subsequently told the Department that he no longer wished the children to visit him at home because he was concerned the children were being used by the mother as part of the conflict between the parents.
The father’s time with the children ceased again after this.
In March 2015, the father recommenced spending time with the children, initially at a supervised contact centre; the time was to be gradually increased until they were spending two nights in his care per week. The mother deposes that this time did progress to one night per week, however due to the father’s hospitalisation in July 2015, did not progress to two nights per week.
In March 2015, the Department received a report from the Police in relation to the father possibly dealing drugs. The Department determined to investigate the report given the parties’ extensive history with the welfare authorities, however also observed the history of malicious reports. Departmental workers conducted a home visit at the father’s residence, and spoke with the father. He was observed to be cooperative and denied the allegations, asserting that they had been fabricated by the mother. He also agreed to undertake drug screening.
A report was made to the Department in March 2015 that the mother had assaulted the father at a changeover. Follow up with the police in relation to that incident indicated that the assault did occur but there was no CCTV footage to indicate whether the children witnessed the same, as was contended by the father.
The father then sought to reinstate the arrangement for the twins to spend time with him but on numerous occasions when Departmental workers attempted to transport the children to him, the children became hysterical and fearful and tried to exit the vehicle while in transit.
On 16 June 2015, a final Intervention Order, expiring on 16 June 2016, was made at the Magistrates’ Court. That intervention order has now been extended in the absence of the father after he had been served with the application. The current order was made on 25 May 2016 and expires on 16 June 2017. The order names the mother, E, B and the twins as affected family members protected by the order. There was no evidence before this Court as to the complaint which was the basis of the making of the order but a copy of the order was provided.
In June 2015, the Department prepared a further Court Report. That Report records that the three girls remained living with their mother and were regularly attending school and child care. The mother remained supported by the H Group and I Group. The Report noted that the mother continued to complete supervised drug screens and the results were consistently clear. The Department did not record any concerns about the children’s ongoing care in the mother’s household.
The father consistently reported to the Department that he believed the mother was contacting him on his mobile phone and was sending taxis to his house. He reported this as a breach of orders which required the parents not to denigrate one another. The father also continued to report the assault against him by the mother which occurred in March 2015. The Report observes that Child Protection had previously investigated this report, as had the police, and recorded that the mother did not deny striking the father but reported she had the children wait at a nearby shop before she approached the father.
The Department recorded that the parents had addressed the protective concerns raised by Child Protection and the issues remaining related to the conflict between the parents and as such it was considered to be more appropriately dealt with in the Family Court.
The mother deposes that in July 2015, she found E in a bungalow at the back of her property. She says the child reported to her that on the previous morning the father had left his house saying he was “going to get on” and had not returned since. The mother subsequently reported the father missing. The police and the father’s support workers became involved and located the father and he was returned home. It later came to light that the father was hospitalised due to a drug overdose.
On 5 July 2015, the mother deposes that E attended at her house again and reported that the father had told him (E) that he did not want him anymore and the father was returning to where he had been when he was missing. The father then started calling the child asking him to come back.
The mother deposes that the Department ceased the father’s time with the children because of concerns that the father was refusing to disclose where he had been.
The mother deposes that the father subsequently brought an application in the Children’s Court seeking that the twins spend time with him. The mother deposes that as a result of this application, orders were made for the twins to spend time with their father on a supervised basis twice per week for three hours. That order is not in evidence.
In late-July/early-August 2015, the mother deposes that she received threatening and abusive text messages and voicemail messages from a payphone service. She reported those incidents to police.
In August 2015, the Department records a report in relation to E being present during an incident of family violence between the parents in relation to the mother breaching an existing intervention order by texting the father over 28 days including up to 70 times per day. The Department also recorded that E was making a report to the police in relation to that incident.
The mother deposes that the father continued to attend at her home. Particularly, she details at least one occasion in late August 2015 when the father allegedly attended at her home, banging on her front door and yelling abuse. She also deposes that in early September she heard people in her backyard, however she cannot be sure that this was the father. She made a statement to the police about these incidents.
Significantly the Department report records that in September 2015, the Children’s Court matter was formally withdrawn and the supervision order was revoked.
On 22 October 2015, workers from the Department attended at the mother’s residence and observed it to be clean, appropriate and homely. The children were also observed to be happy and settled. The workers considered that the mother demonstrated that she was maintaining the provision of a safe and stable home to the children. Further, it was observed that the mother remained connected to assistance with the H Group to monitor her ability to continue paying rent and maintaining the house, and to I Group and Early Childhood Intervention Services (ECIS) in relation to her parenting. ECIS had assisted the mother to connect the twins with services including cognitive testing, speech pathology, and medical and dental appointments.
At this time, the Department also followed up with the twins’ kindergarten and B’s school, both of which reported no concerns in relation to the children’s presentation or behaviour and reported that the mother worked collaboratively with each. The Department did identify B’s poor school attendance as an issue, however considered the mother was actively addressing the issue.
The police also informed the Departmental workers that they were investigating alleged breaches of Intervention Orders by both parents. The Department further indicated that the police had been unable to interview the father, and that he had avoided appointments and phone calls and the police were interested in his whereabouts. The police further advised that the alleged breaches related only to the parents’ communication with one another and did not impact upon the children and that they did not hold any concern for the welfare or safety of the children in the mother’s care.
On 26 October 2015, the Department prepared a response to the Court’s request, pursuant to an order made under s 91B of the Act, that it intervene in the proceedings and provide information with respect to the Department’s involvement with the children since 28 August 2015. In this report it was stated that Child Protection had assessed the concerns reported by the father in his affidavit and Notice of Risk as relating to historical information and events that had already been investigated by Child Protection.

Having conducted the home visit on 22 October 2015, the Department concluded:
It is assessed that the children are not currently at risk of harm, the level of care being provided to them by their mother [Ms Atkins] is of a high standard and both the children and their mother appear to be thriving following the withdrawal of Child Protection’s involvement on 9 September 2015.
It was, furthermore, observed that the Department no longer held concerns in relation to the mother’s capacity to provide safe and stable care for the children, nor in relation to the father’s ability to have positive, quality contact with the children and to keep them protected from exposure to his previous substance use.

The mother’s evidence about the children

The mother deposes that B has a mild developmental delay and attends Suburb J Special School. By the mother’s account she is doing well at school.
The mother also deposes that B was frequently the victim of direct abuse from her father. As a consequence of this, and of being indirectly exposed to the violence between the parents, B has suffered from ongoing psychological problems. These have manifested themselves in the child self-harming. The mother says that these incidents of self-harm are often exacerbated by court events in the Children’s Court. She recounts one particularly concerning incident in October 2014: on a day on which the parents had a court hearing to attend, the mother went to the child’s bedroom and discovered the child had inflicted about 70 cuts to her arms and the mother had to call an ambulance.
The mother deposes that since ceasing spending time with the father in 2014 B has ceased this self-harm behaviour.

C and D

Both C and D suffer from speech and learning delays and have a history of behavioural problems. C is receiving early childhood intervention through a program known as Noah’s Ark.
The twins were reviewed by a paediatrician in or about May 2015. That report indicates that since 2014, when C was initially assessed by the Forensic Medical Service, C’s behaviour and development have improved “remarkably”. Having discussed the child’s behaviour with her child care educator, no concerns were raised regarding her behaviour and the concerns which subsisted 12 months prior appeared to have ceased. Her educator did report that C was more reserved than D, and often did not string together more than a few words. It was noted that the child will receive early childhood intervention through Noah’s Ark and speech therapy while at child care. The doctor observed the child’s main medical problems at that time were her speech and her teeth. Department records indicate the child has received dental treatment through the support services offered to the mother, although it is not clear whether this has entirely removed this concern.
In respect of D, her day care educator reported to the paediatrician that the child has been making friends and is confident. They reported no concerns in relation to the child’s behaviour. The paediatrician observed that the behavioural problems encountered by the child in the previous 12 months appeared to have ceased.

The mother

Regarding drug use, in her affidavit filed 31 July 2015, the mother concedes that she has a bad history of drug abuse and states that her preference was methamphetamines. The mother deposes to complying with “most” drug screen requests made by the Department throughout 2014 and all requests made in 2015. She deposes to all but one drug screen result returning clear, with the one result in mid-2014 testing positive for amphetamines. The mother denies using drugs during this time and states that she “[does] not know how the screen tested positive”. She deposes to sharing a drink with a friend two weeks prior to undertaking the drug screen which may have contained a weight loss pill (duromine) that her friend sells.
The mother did not comply with the requests of the Independent Children’s Lawyer to complete the drug screens. However she provided the results of one screen (Exhibit 2) and explained in oral evidence that the second test had been undertaken but she had not collected the results which were to be collected that day. She proffered an explanation in oral evidence which related to her feeling pressured by requests from her housing worker to comply. The explanation was not acceptable but must be viewed in the context of the mother having been subjected to constant drug testing during previous proceedings.
The mother also gave evidence about the daily support of her housing worker who was caring for the children outside the courtroom and the weekly support that she receives from the I Group. She explained that her housing worker rings her at 9:15am every morning.
The mother conceded that she had a history of drug abuse but that she had been on the methadone program for about five years and had completed 236 drug screens in two years. She testified that she was not using any illegal drugs and that she was reducing her methadone dose under the supervision of her doctor.
This evidence was not challenged.

Findings

The mother has had the full time care of the children during the course of the litigation which began in the Federal Circuit Court in July 2015. The father has not spent time with the children since 31 August 2015 and made no arrangements to spend time with the children at a contact centre pursuant to interim court orders.
There are no proposals before the Court from the father. There is an intervention order currently in place in favour of the mother and the children against the father. This order expires on 16 June 2017 but provides for the father to do anything that is permitted by a Family Law Act order or written agreement about child arrangements. The order also provides for the father to communicate with the mother and children through a lawyer or mediator or arrange and/or participate in counselling or mediation provided he does not commit family violence whilst doing so.
I accept the evidence of the mother that she has been on the methadone program for five years and that she reduced her dose about four months ago. I accept her evidence that she has not been using any illegal drugs. I accept the evidence of the mother’s drug screen in March 2016 that she remains on the methadone program. (Exhibit 2)
I accept the evidence of the mother that she has a close relationship with her housing worker, with whom she communicates every day. I also accept her evidence that she has the support of a worker from I Group whom she sees weekly.
As per information provided by the Independent Children’s Lawyer, I also accept that the mother’s housing worker has not witnessed the mother to be under the influence of illegal drugs and that the housing worker is mandated to report any protective regarding the children to the Department.
I accept the reports by the Department as to the state of the mother’s home on their visit in October 2015 and that no concerns were raised. I accept the opinion contained in the response of the Department that the children are not at risk of harm in the mother’s care and that the mother is providing a high standard of care to the children.
I accept the evidence about the conflict between the parents and find that there has been significant involvement by the Department with the family which has resulted in the children being placed under a supervision order for a period of time by the Children’s Court. I find that while the children were the subject of a supervision order, the mother was the primary carer of the children.
I find that the serious allegations made by the mother about the assaults upon her by the father have not been the subject of any findings in relation to criminal proceedings. On the basis of submissions by counsel for the mother, I find that the mother approached the police and indicated to them that she did not wish to give evidence against the father.
I make no findings in respect of the mother’s serious allegations of violent assaults upon her by the father because the evidence is untested and cannot be proved to the appropriate standard under s 140 of the Evidence Act 1995 (Cth) having regard to the seriousness of the allegations.
On the basis of the LEAP sub incident report of Victoria Police I find that the police attended an incident where police reported that the father had assaulted the mother on 30 June 2007 in breach of an intervention order by punching the mother in the face (contact was also allegedly made to the side of the mother’s abdomen during the incident; the mother was pregnant at the time) (Exhibit 1). However there is no evidence before the Court that the father was charged with this offence or convicted.

The Relevant Law

These proceedings are brought under Part VII of the Act. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.
What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the child’s best interests

Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

Section 60CC(2) Primary Considerations

The primary conditions are:
h)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
i)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[2]
[2] Section 60CC(2A) of the Act.
There is no evidence that the father proposes to have a meaningful relationship with the children at this time and the children have been settled in the primary care of the mother since she has accepted assistance after the Department withdrew their involvement. There are no proposals from the father. There is no evidence that the children need to be protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in the primary care of the mother. The mother has been proactive in seeking the protection of an intervention order against the father which has been made in favour of the mother and the children.
I am satisfied that the children will benefit from having a meaningful relationship with the mother, given the preparedness of the mother to accept assistance from her housing worker and the I Group family support worker.

Section 60CC(3) Additional Considerations

The additional considerations are listed in section 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. I have considered the additional considerations in the context of the primary considerations.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Independent Children’s Lawyer interviewed the three children on 18 May 2016 but there is no evidence before the Court as to their views other than the report from the Family Consultant in September 2015 about B’s views outlined previously.

Section 60CC(3)(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)

On the evidence taken as a whole I accept that the children have a close relationship with the mother and feel safe living with the mother. The children have not spent time or communicated with the father since August 2015. There is no evidence about the relationships of the children with the extended family.

Section 60CC(3)(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, to spend time with the child and to communicate with the child

I accept the evidence of the mother that she alone has arranged for the twins to start school and that the father has not been involved in any decisions about the children’s schooling. The father has not taken up any opportunity to spend time with the children in accordance with the interim Court orders.

Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligation to maintain the child

I accept the evidence of the mother that she has been responsible for the support of the children and that the father pays child support through Centrelink of $5 per fortnight.

Section 60CC(3)(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 parents or any other child, or other person (including any grandparent or other relative of the child), with whom he has been living

On all the evidence the mother has been the children’s primary carer and I am satisfied that any change to this arrangement would have a detrimental effect on the children. The proposals of the mother and Independent Children’s Lawyer would not change the circumstances of the children and there are no competing proposals from the father.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a 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

There is no application by the father to spend time with or communicate with the children and no evidence is before me in relation to this consideration.
The father did not take up any opportunity to spend time with the children at the contact centre in accordance with interim orders.

Section 60CC(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

Again the father makes no application and thus it is not necessary to consider his capacity to provide for the needs of the child.
The mother has been assessed by the Department as acting protectively in relation to the children by making the application to this Court and I accept that the mother has demonstrated a capacity to support the children emotionally, intellectually and to provide for the needs of the children with the support of her workers on all the evidence previously outlined.

Section 60CC(3)(g), (h)

There is no evidence before the court relevant to these considerations.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parents

I accept the evidence of the mother that she has been responsible for maintaining the children since they have been in her full time care and that she takes all responsibility for their day-to-day and long-term care and needs. I am satisfied that the mother has appropriate supports to assist her in the care of the children.
The father does not provide any evidence as to his attitude to the children or responsibilities of parenthood. The father failed to participate in the final hearing without explanation.

Section 60CC(3)(j): any family violence involving the child or a member of the child’s family and section 60CC(3)(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 nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; and any other relevant matter

I am satisfied that there is a long history of the children having been exposed to family violence having regard to the conflict between the parents and that the police have been required to attend incidents at the family home. However the untested evidence and the fact that the mother concedes her history of drug abuse does not allow for a finding as to the circumstances surrounding all of the incidents described by the mother. I am satisfied in a general sense that the children were found to be in need of protection by the Children’s Court, which placed them on a Supervision Order in the past, in the care of the mother.
A further 12 month intervention order was extended in favour of the mother and children against the father and is in force until June 2017. The father did not agree to the order being made and was not present for the hearing, although he was served with a copy of the application. The evidence before me does not disclose the complaint made which formed the basis for the order. Accordingly I am not in a position to draw any inferences from the making of the order other than that the mother has been proactive in making an application for the extension of the previous order and that the Magistrates’ Court found it appropriate to extend the order.

Section 60CC(3)(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

The children have been the subject of proceedings in the Children’s Court which are now concluded.
The parties have been in litigation in the Federal Circuit Court and this Court since 2015 and it is important to bring some finality and certainty to the arrangements for the care of the children. The joint proposals of the mother and the Independent Children’s Lawyer will maintain the current arrangements for the care of children where the mother has been the primary carer. Both the mother and the Independent Children’s Lawyer propose that in the future should the mother agree in writing for the children to spend time with the father that this would be in the best interests of the children. They do not seek to remove the father from the children’s lives but to allow for any spend time arrangements to be settled and carefully considered.

Parental Responsibility

Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61DA of the Act is a mandatory presumption that it is in the best interests of the children that the parties have equal shared parental responsibility.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
In all of the circumstances I am persuaded there has been a longstanding history of conflict and family violence as between the parents to which the children have been exposed. The existence of the intervention order supports the conclusion that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
The mother sought sole parental responsibility for the children. The father does not make any proposals and the mother’s proposal is supported by the Independent Children’s Lawyer.
The mother also has the support of a housing worker and a worker from I Group. The Independent Children’s Lawyer was in communication with the Department in the week before the hearing to confirm that the Department is not involved with the family and does not propose to intervene in these proceedings. The Independent Children’s Lawyer also confirmed with the mother’s housing worker who was present on the day of the hearing, that he is mandated by the Department to notify them in the event that there are any protective concerns regarding the mother’s care of the children. The Independent Children’s Lawyer confirmed with the housing worker that he visits the mother a few times per week and that the worker from I Group sees the mother weekly. He also confirmed the he has never seen the mother in a drug affected state.

I am satisfied that the presumption of equal shared parental responsibility is rebutted on the evidence which satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. This includes the fact that in this case the father has failed to pursue his Response. There is no evidence that he seeks to have a meaningful relationship with the children or that he would cooperate with the mother in exercising all the duties, powers, responsibilities and authority as a parent in relation to the children.
As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that the children spend equal or substantial and significant time with the father. I am at liberty to determine directly which parenting orders are in the best interests of the child.

Whether the children should spend time with the father

The proposal of the Independent Children’s Lawyer and the mother was that the children should spend time with the father as agreed between the parties in writing. This would also allow for supervised time with the father by written agreement in the future.
The father has been involved in the lives of the children until August 2015 and there is no evidence to indicate that it is necessary or appropriate to exclude the father from spending time with the children in the future if a proposal is negotiated and agreed in writing by the mother.
I am satisfied that it is in the best interests of the children to provide for the father to spend time with them as agreed in writing with the mother.

Conclusion

The children have been the subject of investigation by the Department from an early age and the subject of Children’s Court proceedings which have been finalised. The Department has no further involvement with the family. The mother has had the primary care of the children even whilst the children were under a Supervision Order from the Children’s Court. The view of the Department was that family law proceedings were appropriate and intervention from the Department is not necessary at this time.
The evidence in this case is untested and there are grave allegations made by the mother about assaults on her by the father. There is no evidence of the father having been charged with assaulting the mother. The mother has had a history of drug use but I accept her evidence that she has been on the methadone program for a number of years and that she is no longer using illegal drugs. On the evidence it is not appropriate to make specific findings on the historical matters of family violence deposed to by the mother.
The reality here is that the father has not participated in proceedings and there are no proposals from him. The children have not spent time with the father since August 2015. The Department do not hold concerns regarding the mother’s care of the children and the Independent Children’s Lawyer ultimately supports the mother’s proposals.
I am satisfied that it is in the best interests of the children and appropriate to make the orders jointly proposed.

I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 1 July 2016.

Associate:

Date: 1 July 2016

[2016] FamCA 533

1 July 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness