Baines & Baines

[2014] FamCA 1186

FAMILY COURT OF AUSTRALIA

BAINES & BAINES AND ORS [2014] FamCA 1186

FAMILY LAW – CHILDREN – Interlocutory application – where the Secretary, Department of Family and Community Services urgently removed the four children from the care of the father and placed them with the maternal grandparents in a different state – children’s views – sibling relationships – where there has been more than dramatic change of circumstances for the children – where the father does have the capacity to spend time with the children – where there is a benefit to the children in spending time with the father in a natural way – children to spend time with the father every third weekend, subject to his compliance with certain injunctive restraints

Family Law Act 1975 (Cth), ss 60CC, 68B

APPLICANT: Ms Baines

FIRST RESPONDENT:

Mr Baines

SECOND RESPONDENT:

THIRD RESPONDENTS:

Ms Keen

Ms C Keen and Mr Keen

INTERVENER: Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Flintoff Lawyers

FILE NUMBER: (P)NCC 89 of 2013

DATE DELIVERED: 18 December 2014
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 18 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Allen

SOLICITOR FOR THE APPLICANT:

Baker & Borthwick Solicitors

FIRST RESPONDENT:

In person

SOLICITOR FOR THE SECOND

RESPONDENT:

Krstina Wooi

THIRD RESPONDENTS: In person

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office
(Mr Mitrevski)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Flintoff Lawyers

Orders pending further order:

1. That the children D born … 2004; E born … 2006; F and G both born … 2008 (‘the children’) shall spend time with the Father as  follows:

   (a)During the 2014/2015 Christmas school holiday period, on two occasions with changeovers at H House:

   (i)from 9.00 am on Saturday 27 December 2014 until 6.00 pm on Sunday 28 December 2014; and

   (ii)one weekend in January 2015 from 5.00 pm Friday to 6.00 pm Sunday, the exact weekend to be determined by the Intervener, to enable the children to also attend a holiday camp.

2. After school term commences in 2015, the children spend time with the father each third weekend from 5.00 pm Friday to 6.00 pm Sunday, commencing on the second weekend of the first term in 2015, with changeovers to take place at H House.

3. The children shall have telephone communication with the father on one occasion per week for a period of up to 40 minutes, to enable each child to speak if he or she wishes, failing agreement otherwise, on Tuesdays at 4.30 pm with the call to be initiated by the father on a number to be advised by the Intervener.

4. Pursuant to s 68B(1)(c)(i) of the Family Law Act 1975 the father is restrained from:

   (a)entering and/or approaching the home of the maternal grandparents and from contacting either of them by any means other than in accordance with these Orders;

   (b)entering or approaching the school at which the children attend;

   (c)contacting the children or any of them by any means other than in accordance with these Orders.

5. The father is restrained (further to the Orders of 11 September 2013) from questioning the children about the mother and maternal grandparents and further from seeking to draw out from the children information about events in the home where the children are living.

6. The father is restrained from making critical and/or rude and/or insulting remarks to the children about the mother, the maternal grandparents and members of the extended maternal family and shall remove the children from the presence of third parties who do so.

THE COURT NOTES:

(A)The maternal grandparents have common applications and their interests do not conflict to any extent and they have been reclassified as the third respondents.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baines & Keen & Ors 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 NEWCASTLE

FILE NUMBER: NCC 89 of 2013

Ms Baines

Applicant

And

Mr Baines  

First Respondent

And

Ms Keen

Second Respondent

And

Ms C Keen and Mr Keen

Third Respondents

And

Secretary, Department of Family and Community Services

Intervener

And

Flintoff Lawyers 

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application concerning four children, D aged 10, E aged eight and F and G both aged six.  The proceedings had initially begun in I Town Local Court and then continued in the Federal Circuit Court.  The parties had separated in late 2012. 

2. On 13 November 2014, this matter first came before me after a transfer from the Federal Circuit Court.  The children had experienced about three weeks before, a change of residence from the father to the maternal grandparents and to some extent, the mother.

3. On that day, 13 November 2014, a third family report was ordered and the matter adjourned to April 2015.  An application by the paternal grandmother was made or foreshadowed, to seek orders for time and communication with the four children.  The paternal grandmother was joined on 27 November 2014 and she filed an application in a case which was made returnable on 5 December 2014.

4. On 17 December 2014, the matter came back before me.  There was the application of the paternal grandmother and all parties had been given the opportunity to not only respond to that application, but to propose interim orders themselves.  The mother and maternal grandparents were content to be directed by the Intervener in combination with the Court. 

5. The application of the paternal grandmother was resolved by consent after negotiation between the parties and orders were made accordingly.  The application of the father was heard and the decision reserved overnight.

History of relevant events

1. On 11 September 2013, orders were made by consent of the parties, who were then only the parents.  The orders were that parental responsibility be granted to the Secretary, Department of Family and Community Services (‘the Intervener’), and the four children were to live as directed. 

2. The notations to those orders are of some significance.  They are as follows: 

   (A)The children currently live with the father.  The Intervener proposes that the children continue to live with the father pending the outcome of the Intervener’s risk assessment of the father and further order of the court.

   (B)The Court notes should issues arise in relation to the operation of these orders, particularly in relation to the father’s ability to care for the children or his ability to exercise parental responsibility, the Intervener will, in an emergency or if otherwise necessary, exercise his state welfare powers.  The Intervener will also seek to relist this matter, to allow for the court to consider where the children should live. 

   (C)Notation C, D and E refer to the current arrangements and the intention of the Intervener to assess maternal and paternal family members.

3. On 6 February 2014, the first family report was delivered.  The recommendations included[1] a recommendation that the Intervener have parental responsibility for the children for two years from the date of the report; that they live with the father in the Tuncurry area unless the Intervener deemed it fit to change the placement; and also recommendations for time between the children and the mother and other matters.

   [1]Family report dated 06/02/2014, pars 72-80

4. After the release of that report, the maternal grandparents applied to be joined to the proceedings. 

5. On 17 March 2014, a further report was ordered to report on the suitability of the maternal grandparents as carers. 

6. The second report was delivered on 26 August 2014.  The recommendation in the second family report was for the children to live in the care of the maternal grandparents in Queensland for a period of not less than 12 months from the conclusion of these proceedings.

7. In relation to the parents, the children were to spend time with the mother as negotiated, whilst spending one overnight per week with the mother,[2] and for the father, the children to spend eight of nine days with the father each school holiday period except for the Christmas school holidays, where they should spend half of the school holidays with him and in addition one long weekend each mid school term.

   [2] Family Report dated 26/08/2014, par 65

8. On 22 September 2014, the matter was transferred to this Court.  A Registrar directed the filing of an application by the Intervener setting out the orders sought.  On that day also, orders were made that the maternal grandparents, be joined as third respondents and an Independent Children’s Lawyer was appointed. 

9. Events somewhat overtook the process.  The Intervener had acted swiftly, as set out in the affidavit of the designated case worker.[3]  Assessments of the maternal grandparents were undertaken.  Discussions took place with the mother and the maternal grandparents. 

   [3]Affidavit of Raewyn Stinson filed 11/11/2014, par 33 and following

10. On 24 October 2014, the case worker attended the children’s school in Tuncurry and collected the children.  That afternoon, the father was told that the children would not be returning to his care.  The Intervener had exercised its state welfare powers as foreshadowed in the above mentioned notations to the intervention.

11. The reasons for making the move urgently are set out in the same affidavit.[4]  They refer to the maternal grandmother having let the Intervener know that she had rung the police as a result of events involving the children and the father.  From there, the position appeared to deteriorate; the father becoming upset about the intervention of the police.  There are allegations contained in those three pages and in much of the other material filed by the Intervener, of the father questioning the children, pressuring the Intervener about their decision-making, and harassing the maternal grandmother for her decision to call both the police and the Intervener.

    [4]Affidavit of Raewyn Stinson filed 11/11/2014, pages 26-28

12. Their concerns and perhaps a risk assessment, led them to the urgent removal of the children.  There will, no doubt, be an inquiry as an aspect of a final hearing about the transition into the care of the maternal grandparents.  What I am concerned about in this application is the immediate arrangements for the children.  There was no precipitating event arising which put them at risk, but the Intervener had elevated concerns about the behaviour of the father.

The Law

1. Turning then to the considerations of the best interests of the children. The factors which I am obliged to consider are set out in s 60CC of the Family Law Act 1975 (Cth) (‘the Act’).

Section 60CC(2)(a) and (b) – the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

1. There is an impaired capacity in respect of both parents for very different reasons, and the children are presently living with the maternal grandparents, who have been assessed to provide a safe and stable environment for them.

2. They have been exposed in the past to the risk of harm and psychological abuse as a result of conduct by the mother and conduct by both the parents, which has exposed the children to, at the very least, violent arguments, criticism and, at times, neglect.  The question of their safety has been addressed at the interim level and will be re-addressed in a final hearing.  They do, however, both have meaningful relationships with each of their parents.

Section 60CC(3)(a) – any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

1. There are some views expressed by the children, not so much by the six-year old twins, but by the two older children. 

2. In the second family report, D expressed a view that at that time he was missing the mother ‘a lot’.[5]  He was also unhappy that his paternal uncle had hit him across the head and failed to apologise.  D was at that time concerned about some methods of punishment of the father, although not greatly concerned. D was more worried about the fact that the father continued to denigrate the mother by telling the children that she was an alcoholic and asking them, “How do we know she hasn’t been drinking?”  D was concerned, as the oldest child, about his younger sisters, particularly E who was, in D’s opinion, quite angry at that time. 

   [5] Family Report dated 26/08/2014, Par 49

3. E expressed the view that she also missed the mother and had enjoyed her time in Queensland with the maternal grandparents. E was unhappy that when the father became angry with her, he yelled at her, but she did not seem unduly concerned about the father’s punishment methods.  She said that he took the children to different places and the mother was more inclined to play games with them.  She was expressing a wish at that time to live with the mother. 

4. In the first family report F reported that it had been, to use her word, “yucky” living with her parents; that they were fighting all the time.  She also commented on the fact that the father “uses yucky words like the ‘F’ word to her mother”, which had made her feel bad.  She described the circumstances where the parents were arguing as “bad”; they were fighting, they were yelling at each other, and E added that she regarded it as “scary”.[6] 

Section 60CC(3)(b) – the nature of the relationship of the child with each of their parents and other persons

[6] Family Report dated 06/02/2014, Pars 51, 52 and 57

1. The children clearly have close relationships with the father, the mother, the maternal grandparents and more than anything perhaps, with each other.  They are a group of four children close together in age. 

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including any separation from either of his or her parents, or any other child or other person

1. There has been more than one dramatic change of circumstances for the children.  Their parents separated in high conflict.  They lived with the father for a long period of time and then in October of this year, they moved from the father to live with the maternal grandparents, which enables them to see the mother less often, but for the last two months, to see the father in very limited supervised circumstances. 

2. It must have been disruptive for them, especially to lose their friendships at school so unexpectedly and to move from one state to another.  I am concerned for them suffering the effects of that kind of unexpected change and endeavour to, as much as possible, normalise their life and to reduce the impact of the changes that have already occurred. 

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

1. This is a relevant matter here.  The children are now living on the Sunshine Coast of Queensland, whereas previously they were on the mid north coast of New South Wales.  There is approximately 800 kilometres between them and the father.

2. That means that in the best of circumstances, regular periods of time would not be easy or inexpensive. However, fortunately, the Intervener has been able to assist the mother, when that was relevant, and is now willing to assist the father, in terms of travel and accommodation, at least to some extent.

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child

1. This is a matter of considerable significance.  The father tendered into evidence a letter by Dr J, a consultant psychiatrist, which became Exhibit 1.  Dr J, who has previously reported, although I have not yet seen or read those earlier reports dating from 2012 and earlier in 2014, confirmed his previously expressed view:

   … that there is no evidence of any past or intercurrent mental illness that is afflicting [the father].

2. I give weight to that opinion, given the knowledge of the father over time and to the doctor’s other statements about the reactive nature of the father’s distress over the loss of the children and his anger over the situation of his broken family.  That is not to excuse it, and I do not consider that Dr J was attempting to do so, but rather to understand it as reactive behaviour and not pathology. 

3. Since the children were removed from his care and to some extent, before it, the father had been reacting, to use Dr J’s word, with ‘incontinent anger’.  He is not legally represented and that is unfortunate and a difficulty for him.  He presents in an uncontained emotional state; anger and frustration being the predominate emotions.

4. It is essential for the protection of the relationship between the children and the father that he contains himself and protects them from his feelings on the topic of their removal and his views of the maternal family and the Intervener. 

5. The father described himself to the family consultant as overzealous in his communication and passionate about the children.  I do not doubt he is passionate and I do not doubt that he loves them very much.  It was put to him that he is perceived as aggressive and menacing.  Not, as he suggested, because he is “a big bloke” but because he persists in an indomitable way, creating the impression that he would not give up until he got what he wanted.

6. If he cannot be patient with the process and bring his emotions under control, that process which is underway for decisions about residence, time and communication will put the children’s time with him at risk, inevitably to their detriment.  They love him and they love the mother.  They have expressed a view that they wish their parents could still be together; but just not fighting.  It is their feelings and their need for stability and emotional support that I am most focused on.  Nevertheless, despite his conduct, I am satisfied that the father does have the capacity to spend time with the children and to restrain himself if he chooses to do so. 

7. There is enormous benefit to the children in maintaining their important relationships as they try to find their feet in a period of constant change for them.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family

There are proceedings in the Local Court in I Town tomorrow.  Although I am not fully apprised of the details of those proceedings, part of it is, at least, because the father undoubtedly, and on his own admission, harassed a case worker by making 88 phone calls to her to express, not so much the content of the calls, as his opposition and anger about decisions that had been taken.  That matter will be resolved in whatever way the Local Court considers appropriate, but it is another aspect of the potential for destabilisation of the children.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. The children are showing, as observed by the family consultant, signs of emotional disturbance.  Nothing could be more important for the parents and the maternal grandparents to focus on, and I have no doubt that each, in their own way, considers that they are. 

2. One thing that could be of value for the children is some normal holiday time with the father.  The question that is raised by the Intervener is whether or not the children will continue to be exposed to criticism of the other people they love by the father and whether there will be questioning of them to see if they will provide information about events in the mother’s and maternal grandparents’ household and perhaps some insults and ugly comments of the kind that the children themselves have repeated.

Conclusion

1. It is tempting to exclude the father from the lives of the children, other than for limited supervised visits, because of the risk for the children of this conduct, but the benefit to them of spending time with him in a natural way, especially as a group of four aged between six and 10 who have all of the energy and desire to enjoy pleasurable activities that children of that age do, draws me to the conclusion that the better course is to make orders restraining the conduct of the father pursuant to s 68B of the Act.

2. The father is restrained from making contact with the maternal grandparents or going to their home for any reason so that only, pursuant to the orders, should there be any contact; he is restrained him from going to the children’s school; and he is restrained using the kind of language and conduct that has hurt them in the past, although I do not consider he intended it to hurt them. 

3. Accordingly, I have made orders for the father to spend some weekend time with the children in Queensland, the first period to be 26 and 27 December 2014, with changeovers at H House from Saturday morning to Sunday afternoon and for one other period in January, to be determined by the Intervener so that there is no risk that the children will miss out on the holiday camp that is planned, from Friday until Sunday, again, with changeovers in H House. 

4. Once school term resumes, the children are to spend every third weekend with the father, as is reasonably practicable for the father to travel from New South Wales to Queensland and a weekend, again, with all changeovers at H House, from Friday to Sunday will be something that the children can look forward to and is a sufficiently short period of time that it should be able to be pleasurable and not upsetting.  That will be a matter for the father. 

5. I have also made provision for one telephone call per week.  The father pressed for more.  I am focused on the orderly running of the home of the maternal grandparents and I noticed that there is what appears to be an accelerating level of tension between the father and the maternal grandfather.  Each of them became engaged in something that I can only describe as the red herring of whether or not the father showed the maternal grandfather a gun.  It seemed to me that that was a matter between the two men that was enraging them and showed a loss of focus for both. 

6. One phone call per week of up to 40 minutes duration, to enable each of the four children to speak, if they wish to, should be sufficient, especially given the fact that the children will also have a phone call with the paternal grandmother, spend Wednesday nights with the mother and communicate with her at other times. 

7. The maternal grandparents must be given the opportunity to have the usual rules and boundaries of a household, with the children going to school, spending time with friends and perhaps having the opportunity to participate in sport and other extra-curricular activities. 

8. However, I do not consider that it is necessary or beneficial to the children for that phone call to be supervised.

9. The children will be in the maternal grandparents’ home and safe.  If it were to be the case that the father was foolish enough to make critical comments or draw the children into areas of discussion that he is restrained from doing, then the loss of the phone call would follow quickly.  I consider the father has the capacity to enable the children to talk to him and enjoy that phone call without making that kind of mistake and an order for phone contact is made accordingly. 

10. Orders are made accordingly.

I certify that the preceding forth-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 18 December 2014.

Associate: 

Date:  23 December 2014