Bailey and Paynter

[2017] FamCA 891

FAMILY COURT OF AUSTRALIA

BAILEY  & PAYNTER [2017] FamCA 891

FAMILY LAW – CHILDREN – Where the Department of Family and Community Services is requested to intervene in the proceedings for a second time – Where the father has unilaterally retained the children in his care – Where the father has disengaged from the proceedings since retaining the children in his care – Where there are concerns as to the father’s physical and psychological abuse of the children – Where there are concerns as to both the father and the older child perpetrating violence against the youngest child – Where the older child has elected to remain in the care of the father – Where the father has been convicted of assaulting the older child – Where the Department has previously assessed the risk of harm to the children in the father’s care to be “very high” – Where the mother appears to be unable to prevent the father from removing the younger child from her care – Where there are concerns that neither parent is a suitable carer for the children.   

Family Law Act 1975 (Cth) s 91B

Bailey & Paynter [2016] FCCA 12
APPLICANT:	Ms Bailey

RESPONDENT: Mr Paynter

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

FILE NUMBER: PAC 5382 of 2015

DATE DELIVERED: 8 November 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Murphy
THE APPLICANT:	Self-represented

THE RESPONDENT: Self-represented, No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

1. The mother is to file and serve an Amended Application setting out the orders she seeks and a complete consolidated affidavit setting out all of the material upon which she relies in support of the orders sought by her by 17 November 2017.  In particular, attention should be made as to how the mother proposes practically implementing the orders that she seeks.

2. The proceedings are listed for an undefended hearing at 2.15pm on 11 December 2017.

3. The father is to file and serve an Amended Response setting out the orders he seeks and a complete consolidated affidavit setting out all the material upon which he relies in support of the orders sought by him by 17 November 2017

4. If the mother’s Affidavit and Amended Application is not filed in accordance with these orders the final hearing on 11 December 2017 will be vacated and consideration given to discharging the Independent Children’s Lawyer.

5. The mother is to file an outline of case by 17 November 2017

6. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

7. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.

8. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

THE COURT NOTES

A.The mother sought leave to make an urgent oral application for recovery order today.  This Application was dismissed in circumstances where the father took the child into his care unilaterally in June 2017 and no prior recovery order has been filed.

B.A short Judgment will be delivered setting out the uncontested matters in relation to inviting the Department to intervene.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5382 of 2015

Ms Bailey 

Applicant

And

Mr Paynter

Respondent

And

Independent Children’s Lawyer 

REASONS FOR JUDGMENT

Introduction

1. Ms Bailey (“the mother”) and Mr Paynter (“the father”) are currently in dispute as to the parenting arrangements for their two children, 14 year old X and his 12 year old brother Y (“the children”).  

2. On 17 October 2017 the matter was listed for an undefended hearing. In the course of that hearing information about the children’s circumstances came to light that raised serious concerns about the risk of harm to the children in the care of each of their parents.

3. On that date I made an order requesting that the Department of Family and Community Services (“the Department”) intervene in the matter for the second time and indicated I would publish Reasons for my decision. These are those Reasons.

4. The reason for requesting that the Department intervene is because the court may conclude that there is an unacceptable risk of harm to the children in each of the parent’s households.    

Background

1. The mother, who is 37, and the father, who is 44, commenced a relationship in 2000 and began living together in 2002.

2. The parties’ first child (“the older child”) was born in 2003 and second child (“the younger child”) was born in 2004.

3. The mother alleges that the father perpetrated family violence against her and the children throughout the relationship and it was this ongoing violence that caused her to separate from the father in early 2007.

4. Following separation the children lived with the mother and spent weekly time during the day with the father.

5. The father’s time with the children did not occur for about 12 months from May 2008 when an Apprehended Domestic Violence Order (“ADVO”) was a made against the father for the protection of the mother.

6. A further ADVO was made against the father for the protection of the mother after he made threats against her and as a result the father spent no time with the children for about six months from mid-2011.

7. After each ADVO was made the parents seem to have agreed between themselves that the father would resume spending time with the children.

8. Initially the father only spent time with the children during the day but it subsequently increased to overnight time and from about early 2014 the children spent alternate weekends with the father.

9. On 30 July 2014 the father retained the children in his care upon learning that the mother had commenced a new relationship. Subsequently the mother spent no time with the children until November 2014 when the father allowed her to spend day time only with the children.

10. In February 2015 the father moved to the Suburb B of Sydney, some significant distance from the mother.

11. In May 2015 the younger child began spending overnight time with the mother. The older child did not spend regular time with his mother but on the occasions when he accompanied his younger brother, the older child was violent towards the mother.

12. On two occasions in August 2015 the Department of Family and Community Services (“the Department”) were notified that the father had hit the older child. Subsequently the father was charged with assault of the older child and an Apprehended Violence Order (“AVO”) was taken out to protect the children from the father.

13. On 25 September 2015 the Department conducted a risk assessment on the father’s household. The Department concluded that the risk of harm to the children in the father’s household was “very high” and that the children were in need of care and protection. Despite this assessment, the older child chose to remain living with the father but the younger child went to live with the mother.   

14. Each child spent no time with their non-resident parent until October 2015.

15. On 15 October 2015 the father received a suspended sentence of 18 months imprisonment after pleading guilty to assaulting the older child.

16. On 5 November 2015 the mother initiated proceedings in the Federal Circuit Court at Parramatta.

17. On 12 January 2016 orders were made for X to live with the father and spend time with the mother according to his wishes and for Y to live with the mother and spend time with the father on alternate weekends.[1]

    [1]Bailey & Paynter [2016] FCCA 12.

18. These orders were not complied with and in particular the father retained Y in his care until he delivered the child to Child Dispute Services at the court on 27 January 2016 as ordered. 

19. A Family Consultant at this court conducted interviews with the parents and children on 19 February 2017 and produced a written Memorandum to the court which was also released to the parties. In that Memorandum significant concerns were raised as to family violence and the exposure of the children to family violence. The Family Consultant reported:

    Each parent reported a significant history of physical family violence during and following their relationship. [The father] said that each parent was responsible for the instigation of this violence. [The mother] said that [the father] solely was responsible for the instigation of violence; she conceded that she may have yelled at [the father]. [The mother] alleged that [the father] threatened her with knifes, machetes and had punched her in the face. She said that there had been a number of Apprehended Domestic Violence Orders protecting her. [The mother] said that there was a current Order protecting both children, but not her. [The father] said that being charged for assaulting [X] had been a wakeup call and that he had since changed his behaviour without any therapeutic assistance because he did not want his children to grow up to be violent. [The mother] also reported that when [X] had lived with her he had exhibited unmanageable violent episodes in which he used knifes and machetes. She said that on those occasion her only option was to lock herself and [Y] in her room for safety. (sic)

20. When the parenting application next came before the court on 24 February 2016 it was transferred from the Federal Circuit Court to this Court allocated to the Magellan Protocol.

21. At times throughout the proceedings the parties have been legally represented while at other times they have represented themselves. 

22. Further interviews with a Family Consultant took place on 3 April 2017 in preparation for the final hearing and the subsequently produced Family Report was released on 2 May 2017. 

23. In that report the Family Consultant recommended that X remain living with the father and spend time with the mother as per his wishes. It was also recommended that the mother involve herself in any counselling X undertakes and that she attend the program ‘Tuning into Teens’. The Family Consultant also recommended that the father attend this program as well if he has not attended to his issues as prescribed by the Department. It was recommended that Y live with the mother and spend alternate weekends with the father only if he is not at unacceptable risk in the father’s care.

24. On 15 June 2017 both parties appeared before the Court unrepresented and orders were made for each of the parties to file updated documents setting out the orders they sought and accompanying consolidated affidavits in preparation for the final hearing.

25. At around the time of this court event the father unilaterally retained Y in his care but this was not brought to my attention until the next court date in August 2017. The mother did not seek a recovery order or take other action to have Y returned to live with her.

26. When the matter was next before the Court on 15 August 2017 the father made no appearance. The matter was listed for undefended hearing noting:

    The court is informed by the mother’s legal representative and the Independent Children’s Lawyer that the child [Y] has been retained by the father in his care and not returned to the mother and that the father has moved from the [Suburb A] area to the [Suburb B].  [Y] is currently not enrolled in any school with there being apparently an impasse between [C School] at which [Y] was previously enrolled when living in his mother’s care and [D School] which is the nearest high school to the father’s home.  I am informed that [D School] has refused to facilitate the child’s enrolment and that the home school liaison officer is not engaged with the family.

Previous requests to intervene

1. On 15 August 2017 the Department was requested to intervene in the matter.

2. The court was subsequently informed on 16 October 2017 that the Secretary did not intend to intervene in the matter. The decision was apparently made on the basis that the father, the primary carer for the children, had demonstrated “meaningful change” by attending parenting courses, engaging with counselling services and had “acknowledged and accepted alternate discipline methods for the boys and accepted that Y requires ongoing medical attention for his epilepsy”. It was assessed by the Department that the risks to the children had been “substantially reduced”.  

3. At the undefended hearing on 17 October 2017 there was no appearance by or on behalf of the father and it was noted that the father continued to retain the child Y in his care despite the orders of 12 January 2016. The matter was listed for undefended hearing on 11 December 2017 and the Department was again requested to intervene.

The Purpose of the request for Intervention

1. The need to protect the children from harm looms large in the proceedings as there is evidence that there are significant risk factors in the father’s household and that the mother is unable to protect the children from these risks.

Risk factors in the father’s household

1. The Magellan Report reveals that there have been 20 risk of harm reports relating to the children between 2007 and 2016, most of which concerned the children’s exposure to the father perpetrating family violence against the mother and the parents physically abusing the children.

2. On three separate occasions in 2015 the Department conducted a risk assessment on the father’s household that resulted in the outcome of the risk to the children being “very high”. It is to be noted that two of these assessments occurred after the Department developed a case plan with the father requiring him to complete the following tasks:

   ·    Finding alternative parenting strategies for discipline the children

   ·    Attend a parenting course

   ·    Relationship and mediation with [the mother] to help reduce the conflict

   ·    Anger management and domestic violence course

   ·    Referral for [the children] to E Child Protection Counselling Service with the father

   ·    The children to have calm contact with both parents free of conflict

   ·    The father to make appropriate care arrangements for [the older child] and not leave him unsupervised 

3. It is not clear that the father has completed parenting and anger management courses and it is also to be noted that this case plan was developed at a time when the father had the sole care of the older child but not the younger child. The current circumstances are that the father has unilaterally retained both children in his care.

4. Further, the father has not always cooperated with the Department and it is not guaranteed that he will continue to do so particularly in circumstances where the father has now failed to engage in the proceedings in this Court for nearly six months. It is of concern that the Family Consultant reported the following:

   … Although FACS appear to be of the view that [the father] has engaged in tasks asked of him, [the father] denied that this is the case, with the exception of attending counselling at [E]. It does not appear that he has attended any anger management or family violence courses and it may be the case that his issues in this regard remain unaddressed.  

5. The father’s 18 month suspended sentence following his pleading guilty to assaulting the older child is of serious concern. The father has also admitted in these proceedings to hitting both the children, particularly hitting the older child with a cord as a form of discipline. There has already been a finding made in the Federal Circuit Court that there are reasonable grounds to believe the father has perpetrated family violence against the mother and has physically abused the older child.[2] 

   [2]Bailey & Paynter [2016] FCCA 12.

6. The Family Consultant relevantly reported the following about the older child:

   … He said that [the father] used to hit him, but this had not happened for two years. [The older child] considered that it was appropriate for [the father] to hit him, because this is what is acceptable in Samoan culture to discipline children. He reiterated that [the father] did not hit him anymore, because he was not allowed to.

7. The father’s tendency towards violence and physical chastisement of the children raises serious questions about the father’s parenting capacity and the modelling of this behaviour in the father’s home by the older child.   

8. There is very limited mention in the Magellan Report of the concerns raised about the older child’s violence towards his mother and younger brother. However, in his judgment dated 12 January 2016 Dunkley J made the following comments about the risk posed by the older child:

   [The older child] is already a troubled young man disengaged from education and prone to the perpetration of violence.

   …

   Less time with [the older child] will expose [the younger child] to less risk of harm from his brother and less exposure to his poor example.

9. The older child also concerningly reported the following to the Family Consultant:

   [The older child] said that he had hit kids at school and he was suspended. He stated he did this because he could not control himself. [The older child] said that, more recently, he felt more in control of himself because it was “not right”. [The older child] then said that he did not know how people felt when he hit them and he did not care how they felt.

   …

   If [the older child’s] current presentation continues, he is likely to continue to engage in anti-social behaviour, he may become increasingly violent and may experience mental health issues, both in the near future and into adult hood. 

10. The Family Consultant reported that the older child has displayed a “worrying lack of empathy” and that he may continue to deal “with stress and frustration by physical means, particularly if he witnesses [the father] support[ing] the use of physical violence to resolve external conflict or inner emotional turmoil.” The Family Consultant recommended that the older child attend counselling but acknowledged that it is possible the child will be unable to make significant changes to his thinking and behaviour. 

11. The Family Consultant did not recommend that the children live together given the risks to the younger child of such an arrangement. The Family Consultant also did not recommend that the younger child live with the father given the father’s violence towards the child in the past.

12. Given the father’s conviction for assaulting the older child, and the indications in the mother’s affidavit material and the Family Report of the older child mirroring his father’s violent behaviour towards his mother and brother, serious concerns are held for the safety of the younger child while he remains living with both his father and his brother. 

13. The younger child is considered to be a child with additional needs given his medical condition that causes him to have seizures and his possibly displaying signs of having experienced trauma and displaying dissociative tendencies. In addition to being violent towards the children the father has also displayed a diminished parenting capacity by refusing to accept Y’s diagnosis of epilepsy and failing to provide the child with his medication in the past and failing to enrol the child in school after unilaterally retaining him in his care in mid-2017.

1. These concerns are compounded by the father’s recent behaviour in disregarding orders of this Court and disengaging from these proceedings after achieving his desired outcome in having both children in his care and the indications from the Family Report that he has not been truthful with the Department.  

Risk factors in the mother’s household

1. The older child’s relationship with his mother is fractured. He referred to his mother as “[Ms Bailey]” and “bitch” throughout his interview with the Family Consultant and claimed that everything the mother has done is wrong. He told the Family Consultant that all he feels towards his mother is anger and he does not want to live with her.  

2. Given the child’s age and presentation, the Family Consultant was of the opinion that it is unclear whether the relationship between the mother and the older child can be remedied but that the mother may be able to involve herself in any counselling attended by the child to improve the relationship.  

3. The younger child’s relationship with the mother is much more positive. While he reported to the Family Consultant that he would like to live with his father and his older brother he also reported that he would miss his mother and would like to see her “every second day” if this occurred.    

4. The mother admitted to the Family Consultant that she was unable to control the behaviour of either child and that the younger child needed to have “tough treatment” from both his father and older brother. This raises serious concerns about the mother’s willingness and capacity to protect the child from the violent behaviour of the father and older child.

5. The mother’s capacity to behave protectively towards the younger child is also called into question by her inability to prevent the father from collecting and unilaterally retaining the child in his care despite orders of the court that the younger child should live with her and her failure to seek an order for the recovery of the younger child to her care until the matter was before the court in October, four months after the father retained the child.     

6. The Family Consult reported the following about the living situation of the children in April 2017:

   [The older child] has now been living with [the father] for several years and his relationship with [the mother] is limited and strained. It is now likely to be too late for [the older child] to change residence in a way that will be safe for him and [the younger child], and provide for his and [the younger child’s] needs. While [the mother] proposed that he live with her, she was unable to provide any assurance that she could manage this, particularly if [the older child] exhibited significant behavioural problems. [The mother] considered that she would rely on her extended family, although [the older child] did not appear to have much respect for them. It may put [the younger child] and [the mother] at unacceptable risk for [the older child] to be made to change residence, especially considering the allegations [the older child] has reportedly been violent towards both of them in the past. Although it is not necessarily considered that [the father] provides a safe residence for [the older child], it cannot be recommended that [the older child] live with [the mother] due to the risks he may pose to [the younger child] and the nature of his relationship with [the mother].

7. Serious concerns are held for the younger child in the care of the mother as she has demonstrated a lack of capacity to control the child and an inability to prevent the father from taking the child into his care.

8. Further, the mother has at no stage in these proceedings put forward a proposal to the court as to how she will mitigate the risk of the father unilaterally retaining Y in his care in the future and it is unclear whether this failure is the result of inability or unwillingness on the part of the mother. 

CONCLUSION

1. The father has ceased engaging in these proceedings since he retained the children in his care in June 2017.

2. There are significant risks associated with the children remaining in the care of the father, particularly the risk of harm to the younger child posed by both the father and the older child. The mother appears to be unable to control the children or prevent them from returning to the care of the father, a care arrangement that is not in their best interests.

3. In these circumstances it is highly likely that I will be unable to find that either parent is an appropriate carer for these children. There is no other parenting application before the court and the only current active participant is the mother.  

4. It is for these reasons that I have requested the Department intervene in this matter for a second time.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 November 2017.

Legal Associate: 

Date:  8 November 2017