BAINS & MERVIN

[2020] FamCA 569

FAMILY COURT OF AUSTRALIA

BAINS & MERVIN [2020] FamCA 569

FAMILY LAW – CHILDREN – Undefended parenting – Where the mother has not properly engaged in the proceedings – Where the father seeks orders that he have sole parental responsibility for the children and that they spend no time with the mother – Where the mother poses serious risks of harm to the children – Where the mother’s partner poses significant risks of harm to the children – Harm posed to the children by parental drug use – Orders made as sought by the father.

Family Law Act 1975 (Cth) ss 60B, 61B, 60CA, 60CC, 61C, 61DA, 65D, 69ZN
Family Law Rules 2004 (Cth) rr 1.12, 11.02, 16.07

Abboud & Adjani [2019] FamCA 525
G & C [2006] FamCA 994
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Mr Bains

RESPONDENT: Ms Mervin

INDEPENDENT CHILDREN’S LAWYER: Legal Aid

FILE NUMBER: PAC 4922 of 2019

DATE DELIVERED: 15 July 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 25 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mansour

SOLICITOR FOR THE RESPONDENT: Self represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid

Orders

1. The applicant father have sole parental responsibility for the children X born … 2010, Y born … 2011, Z born … 2012 and W born … 2013 (“the children”).

2. The children spend no time with the respondent mother.

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 Bains & Mervin 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 4922 of 2019

Mr Bains

Applicant

And

Ms Mervin

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long term parenting arrangements for four children, aged between seven and 10 (“the children”).

2. The father commenced these proceedings in October 2019 after he unilaterally retained the children from the mother due to concerns that they were at risk in her care. He alleges that the mother has physically abused the children and exposed them to risks posed by her partner, a registered sex offender, with whom she and children lived. The father sought orders that the children live with him, that he hold sole responsibility for them, that the children spend no time with the mother, that she be restrained from removing the children from his care and that the mother be restrained from allowing the children to have any contact with her partner.

3. The mother did not file a Response or any evidence in response to the father’s application and did not participate in most court events. Although the matter proceeded on an undefended basis on 25 March 2020, the mother did appear by telephone on that day unrepresented. On this date the mother did not articulate the orders she sought but submitted that the children should spend time and be able to communicate with her.

4. In the course of the hearing on 25 March 2020, final orders as to the children’s living arrangements and restraints upon the mother were made with the consent of the parties in terms sought by the father. Those orders provide that the children live with the father, that the mother is restrained from removing the children from his care and is restrained from permitting the children to have any contact by any means with her partner.

5. Although the father had not sought orders providing that the mother have telephone contact with the children, the parties also reached agreement that this occur twice a week on an interim basis.

6. The only issues remaining for determination relate to proper orders for parental responsibility for the children and the time, if any, the children should spend with the mother.

7. The Independent Children’s Lawyer (“ICL”) appointed in these proceedings supports the orders sought by the father. The ICL considers that the father’s proposal that he have sole parental responsibility for the children and that the children spend no time with the mother are both “appropriate and essential for the protection of the children”.

8. The questions for me to determine are whether parental responsibility for the children should be jointly shared between the parties, and whether orders for the children’s contact with the mother are proper having regard to the children’s best interests as the paramount consideration.

The Hearing

1. The mother only participated in two court events throughout the course of the proceedings and did not file any material in accordance with directions made on several occasions. The father tendered a text message sent to him from the mother after the children began living with him in which she wrote that if the matter went to court she did not “have it in [her] to fight for them” in the context of a discussion about the children’s care. The father and ICL sought that the Court proceed to deal with the matter to finality on an undefended basis.

2. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

   (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note:   The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

3. Rule 11.02(2)(c) of the rules provides that:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)   determine the case as if it were undefended.

4. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it was in the best interests of the children for the proceedings to be dealt with on an undefended basis on the day they were fixed for final hearing.

   [1] [2014] FamCAFC 14.

   [2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

Background

1. The father who is 35 and the mother who is 34 commenced a relationship in 2009 but never married.

2. At the commencement of their relationship the mother was already involved with the Department now known as Communities and Justice (“the Department”) in relation to child protection concerns regarding her son from a previous relationship (“the mother’s other son”). This child was ultimately placed in his father’s care due to risks relating to the mother including substance abuse, providing poor hygiene and nutrition, lack of parenting skills, transience and exposing the child to adult sexual activity[3].

   [3] See the Magellan Report which sets out the involvement of the Department with the family.

3. The father also has a child from a previous relationship but it is understood from Department records that this child has never been in the father’s care nor do they currently have a relationship.

4. The first of the parties’ children, a daughter, was born in 2010 (“the older daughter”).

5. Just before the birth of this child, the Department received a “pre-natal Risk of Significant Harm” report due to the mother having a previous child removed from her care. At the time the mother participated in urinalysis drug testing as part of an assessment conducted by the Department and returned positive results for methamphetamine use. The child was then assessed as “in need of care [and] protection” and subsequently removed from the care of the parties shortly after her birth. Two months later the older daughter was returned to the care of the parties with both parents being required to undertake to submit to drug testing for 18 months as requested by the Department.

6. The second of the parties’ children, a son, was born in 2011 (“the older son”). A year later the parties’ third child, another son (“the younger son”) was born.

7. On three occasions in mid-2013 the Department received reports relating to psychological harm, abuse/neglect and inadequate supervision of the children. One report noted altercations between the parties which at times became physical and on other occasions involved the parties “yell[ing] and scream[ing] at each other”. Another report raised concerns that the children were left in the care of the mother’s other son who at that time was only six years old.

8. The youngest of the parties’ children, another daughter (“the younger daughter”) was born in 2013.

9. A few weeks after the birth of the younger daughter, it was reported to the Department that the parties’ older son had sustained a bruise under his left eye which had become red and swollen. When asked about the bruise, the mother claimed she had accidentally opened a door which hit the child in the eye. The mother later explained to a caseworker from the Department who attended the home to conduct a safety assessment that the child “is very well known to bang his head on the door when he does not get his own way”. Although the risk was assessed as “high” due to historical reports of the family, after observing this child carry out the same action of banging his head on the door during this visit, it was concluded by the caseworker that the mother’s explanation of the injury was plausible and highly possible.

10. In 2014 two further reports were received by the Department, one involving domestic violence as between the parties and the other involving physical abuse of the mother’s other son. The first of the reports noted the children being exposed to serious family violence including an incident when the mother “grabbed a knife and held the knife towards her wrist and twisted the knife until she bled”. It also was reported that one of the parties’ children (unidentified) had “things thrown at them… and was thrown on the couch” in the course of trying to stop the parties from fighting. The report involving the mother’s other son described the child as sustaining an injury on his face and a bruise on his elbow after being allegedly pushed by the mother. Both reports were later closed without further assessment.

11. In around 2015 the parties separated on a final basis.

12. In the following year the father re-partnered. He and his partner subsequently had a child together who is now aged two.

13. Following separation, the parties agreed that the children were to live with the mother and spend time with the father at the mother’s house on an ad hoc basis. The father contends that the mother did not permit him to spend time with the children at any place other than her home and was abusive towards him when he attempted to do so. 

14. It appears this informal parenting arrangement continued for the next four years. During this time some significant incidents were reported to the Department raising concerns about the mother’s parenting capacity. In summary, these reports raise concerns about the mother’s mental health, substance abuse and particularly her propensity to be physically abusive and aggressive towards the children and other persons including the maternal grandmother. Other issues raised in these reports relate to the children’s safety and well-being in the mother’s household, including the mother’s neglect of their health and medical needs. For reasons which will become clear, the mother’s ability to properly care for the children and act protectively of them is a matter that looms large in the proceedings.

15. It is the father’s case that throughout the parties’ relationship the mother was physically violent towards him and that following separation often prevented him from leaving her home after he visited the children which required police intervention on at least five occasions. On one such occasion in July 2015 although the father claims that the mother assaulted him and she was injured when he acted in self- defence, the father was charged with common assault by police. The charge against the father was subsequently dismissed when the father was found not guilty after a hearing in September 2015.

16. In February 2019 the mother informed the father of her plans to relocate to Queensland together with the children and a partner with whom she had just commenced a relationship (“the mother’s partner”). The father agreed to this arrangement.

17. The father visited the children on only two occasions in the ensuing months. He claims that he did not have financial means to visit the children more frequently and that in any event the mother did not allow him to spend time with them alone. Otherwise, he had irregular telephone contact with the children during these months and reports the mother was even abusive to him on the phone.

18. On 14 September 2019 the Queensland Department of Child Safety, Youth and Women (“the Queensland Department”) received a child protection notification that the mother’s partner with whom the mother and the children were then living was a registered child sex offender and had spent time in prison for sexually assaulting children. The Queensland Department were also notified that the mother’s partner was not allowed contact with children and “appears to target single mothers with children, having done this twice previously and sexually abused children in Western Australia”. The Queensland Department assessed that the mother was willing but unable to care for the children as she did not identify the significant risk of harm that her partner posed to the children should they live in the same home or he have contact with them. The father was assessed as a parent both willing and able to provide for the children’s ongoing daily care and protection needs.

19. On 20 September 2019 the mother advised the father that her partner was a registered sex offender and that one of his parole conditions prohibited him having any children living with him. The mother raised this issue with the father after it became apparent to her that it was possible that the Queensland Department would remove the children from her care if she continued to live with her partner.

20. The mother then agreed to the father’s suggestion that he have the children in his care in New South Wales for a period of two weeks. The next day on 21 September 2019 the father drove to Queensland to collect the children from the mother’s home. Upon arrival, the father says that the mother presented with scabs on her face, swollen lips and significant weight loss, which he suspected was as a result of her possible abuse of methamphetamine commonly known as “ice”. 

21. During the car trip back to New South Wales, the children are said to have disclosed to the father that they were regularly physically and verbally abused by mother. The older daughter in particular relayed to the father that the mother had in the past tried to drown her by holding her head under water. This incident appears to be consistent with a report made to the Department in 2016 that noted that sometime in September 2016 the mother had called a friend telling her that she “could not cope with the children anymore” and that she had “almost killed one of the children by holding the child’s head under water in the bath”.

22. On 23 September 2019 the father received a call from an officer of the Queensland Department in which he was advised that the Queensland Department considered he had acted protectively of the children by removing them from the mother’s household. It was the view of the Queensland Department having received a notification in early September regarding the mother’s partner’s criminal history that the children were at risk of sexual harm in the mother’s household due to their exposure to the mother’s partner.  

23. The mother contacted the children shortly after this conversation informing them that they would only be spending limited time of two weeks with the father before returning to her care. The father then intervened advising her of his conversation with officers of the Queensland Department.

24. On two occasions in the following week the mother spoke to the children over the phone and told them she was going to “steal” them from school which the children relayed to the father.

25. The father initiated proceedings on 8 October 2019 and sought urgent interim orders restraining the mother from removing the children from his care. He also sought orders that he have sole parental responsibility for the children, that the children live with him and spend time with the mother as ordered by the Court. He also sought restraints on the mother from permitting the children to be brought into contact with her partner.

26. The same day the matter came before a Registrar for consideration and the matter was allocated into the Magellan Protocol[4].

    [4] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

27. A week later at a court event before a Registrar there was no appearance by the mother. Orders were made that the parties attend upon a family consultant for the purpose of the Child Responsive Program and the father’s application for interim orders was listed for hearing.

28. On 17 October 2019 orders were made by a Senior Registrar that the children live with the father and that he have sole parental responsibility for them in relation to the children’s schooling only on an interim basis.

29. At a court event on 13 December 2019 there was no appearance by the mother and it was ordered that the father have interim sole parental responsibility for the children in relation to all matters. Further interim orders were made that the children spend no time with the mother and she be restrained from attending the children’s school or any place they may be for extra-curricular activities or from attempting to take the children into her care. It was also noted on this date that the mother had not engaged in the proceedings to date except for one attendance at the court event before the Senior Registrar and it was likely that the father would seek that the proceedings be listed for undefended hearing after the children attended upon the family consultant.

30. It was reported to the Department in early January 2020 by an anonymous reporter that the children “regularly get kicked out of the house” by the father and that the older son had reported that the father had “kicked him [three] times up the backside and also in the back”. The anonymous reporter also informed the Department that the older son had taken a knife from the family home and told the reporter that he wanted to kill himself. A home visit was conducted in January 2020 where the father admitted to smacking the children on the bottom. It is recorded in departmental records that there was no evidence that discipline was excessive or caused any injury to the children and “no dangers were met”.

The Child Responsive Program Memorandum

1. On 7 January 2020 the father and children attended upon a family consultant for the purposes of the Child Responsive program including a Child and Parents Issues Assessment. The mother failed to attend her interview and could not be contacted.

2. The opinions and recommendations of the family consultant are a matter to which I will return in detail when considering the best interests of the child. At this stage some of the salient matters are set out to give context to the concerns of the family consultant about the welfare of the children.

1. The father expressed to the family consultant concerns about the behaviour of all of the children, explaining that each had been stealing, lying and have difficulty following his instructions. The father reported that the children backchat, scream and swear when they are corrected and that they can behave in such a manner for hours.

2. The father told the family consultant that the children have not exhibited any sexualised behaviours or expressed any concerns regarding the treatment of them by the mother’s partner’s treatment but that he still remains concerned that the mother’s partner may have been grooming the children or had sexually abused them.

3. The father reported that the older daughter has hurt her siblings and other children as a result of her physical aggression.

4. The older daughter who was nine years old at the time of the interview told the family consultant that it is “better at Dad’s house” because it is “cleaner” and that the children “don’t get into trouble for no reason”.  The older daughter reported that the mother “used to get super angry” and described an occasion when the mother pushed her head under water and held it there because she was annoyed at the child. She also said that the mother belted the children with a belt and a golf stick. The family consultant observed the older daughter to become distressed when talking about the mother and said that she missed “hearing Mum’s voice and seeing her in real life” and said that it “makes [her] upset when [she] hears about kids who live with their Mum and their Dad”.

5. The older daughter informed the family consultant that she knew why the mother’s partner “isn’t allowed around kids” but described enjoying playing and cooking with him. She suggested an arrangement for spending time with the mother indicating that the father could “drop us off at a park and drive somewhere else for a while” so that the children could spend time with the mother in the park.

6. The older son who was eight years old at the time of the interview told the family consultant that the mother “sleeps nearly every day” and that sometimes the children did not have breakfast and had “noodles or a sandwich” for dinner. This child said that it was better at the father’s house because he “he only smacks us, not flogs us” and that the father “treats us like proper kids” and gave them rewards for being good.

7. The older son said that the mother’s partner had “sexually touched” him when he “slapped [him] on the private parts”.

8. The older son said that he would like to see the mother “once a year” but that it would be “okay” if it was decided that time should be more often. The older son told the family consultant that the mother had told the children “don’t tell Dad but I’m going to come and pick you up and take you away” and that he would only like to see the mother in a safe place.

9. The younger son who was seven years old at the time of the interview told the family consultant that the father punishes the children by making them put their nose against the wall or grounding them, but that the mother normally “flogged” them with a hand or a “golf bat”. He also reported that the mother had pushed him which resulted in him requiring stitches but that she told authorities that she bumped him.

10. The younger son said that he would not like to spend time with the mother because “she’s naughty” and also reported that she had threatened to come and take the children from their school. He also said that it would be good to spend time with the mother if it could occur somewhere that she would not be able to take them away. The younger son also reported that the mother’s partner would “smack [them] very hard”.

11. The younger daughter who was six at the time of the interviews also reported that the mother “flogged” the children and said that “Dad is more gooder than Mum” because “he does stuff nice if we’re in trouble”. The younger daughter said that she missed the mother but added that she likes living with the father.

12. The father told the family consultant that he called the police a number of times after separation as the mother would not allow him to leave the property after he visited to see the children. He also reported that the mother would often bring the children to his work because she could not manage the children and would say “you fucking deal with them”.

13. The father also reported that the mother was abusive and threatening, including telling him that she was going to “slit his throat” and “get [him] killed…”.

14. The father also told the family consultant that the mother perpetrated physical abuse towards him during the relationship including throwing objects at him and regularly punching and slapping him. He acknowledged that he also pushed and yelled at the mother during the relationship when she was hitting him and that this would have scared the children.

15. The father said that he used to smoke cannabis when he was in a relationship with the mother but that she did not use drugs when they were together. He reported that the mother appears to have started smoking cannabis and using cocaine after they separated. He reported a belief that her current partner “got her onto ice” as he considered that her appearance on the last occasion he saw her was consistent with methamphetamine use in that she had lost weight and had scabs on her face.

16. The father reported that the mother’s behaviour in his view is consistent with a diagnosis of bipolar disorder, as she is “fine one minute and then snaps”.

17. The father reported concern regarding the children’s wellbeing in the mother’s care and told the family consultant that the mother’s first child was removed by the Department due to concerns about her drug use, hygiene and lack of parenting skills. He also reported concern that the children are currently at risk given the mother’s stated intention to take them home with her, and told the family consultant that the children had told him that the mother threatened to drive them all off a bridge after fighting with her partner. The father also reported his belief that the children have been exposed to violence in the mother’s care, explaining that the children had told him that she had threatened her partner with a machete and had caused his head to bleed on an occasion she hit him with a frypan.

18. The father expressed the view that even if the mother separated from her partner he would want the children to live with him due to concerns around her drug taking and treatment of the children. The father acknowledged that while the children seem to miss the mother, he believes that they would not be safe if they were to have unsupervised time with her.

19. The family consultant observed that the children appear to have a close and warm relationship with the father, having seen them run towards him and embrace him when he came to collect them from the childcare room, appearing delighted to see him.

20. The family consultant opined that the allegations concerning the mother’s mental state and her use of drugs may require further understanding before unsupervised contact could be considered.

21. On 31 January 2020 the family consultant’s Memorandum to Court was released to the parties in Court but due to the mother’s non-attendance it was not released to her. Directions were made for the parties to file trial affidavits in support of the orders sought and an order was also made that if the mother did not comply with the directions for the filing of a Response and affidavit the proceedings would be heard undefended.

22. On 25 March 2020 on the date listed for anticipated undefended hearing the mother appeared by telephone but had not complied with the trial directions. In these circumstances the matter was heard undefended with judgment reserved as to the mother’s time if any with the children and the issue of parental responsibility. Final orders were made with the consent of the parties that the children live with the father, restraining the mother from removing the children from the father’s care and from permitting the children to have any contact with her partner. Interim orders were made with the consent of the parties pending the delivery of judgment that the children communicate with the mother by phone for one hour twice a week.

23. At the final hearing the mother verbally indicated that she opposed the father’s application that the children spend no time with her and sought that she have some communication with the children which had not been addressed in the father’s case. Accordingly it was ordered that the father file an Amended Initiating Application setting out the exact terms of any additional orders he sought together with an Outline of Case and submissions and that the mother to file a Response with respect to the orders that she sought which had not been made with the parties’ consent. After these documents were filed it was anticipated that further directions would be given but in the event such documents were not filed as directed judgment was reserved in respect of the outstanding orders sought.

24. On 30 April 2020 the father filed an Amended Initiating Application seeking orders for telephone communication in similar terms to the orders made with the consent of the parties in March 2020 as well as a restraint against the mother from attending the children’s school or any other place they may be in respect to extracurricular activities or attempting to take the children into her care. He did not however file any submissions or outline in respect of these orders. The mother did not did not file a Response or any other document. Accordingly, judgment was then reserved, to be considered on the evidence filed.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:

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

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

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

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

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

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

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

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

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

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

4. The Court is to make such parenting orders that are considered proper (section 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[5] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[6] and has also agreed with the reasoning of Bennett J in G & C[7].

   [5] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

   [6] (2007) 37 Fam LR 518.

   [7] [2006] FamCA 994.

4. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

5. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

6. The Full Court in McCall & Clark (supra) continued at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

7. If orders were made as proposed by the father and supported by the ICL that the children spend no time with the mother there would be no specific provision to foster a relationship between she and the children other than as may be permitted by the father in exercise of his parental responsibility. These orders are proposed by the father and ICL on the basis that the need to protect the children from harm outweighs any benefit they will receive from a meaningful relationship with the mother.

8. Although the mother spoke of wishing to spend time with the children at the final hearing she failed to avail herself of the opportunity to set out the orders she seeks to foster a meaningful relationship with herself and the children.

The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. The second of the primary considerations looms large in these proceedings given the uncontested evidence that the mother perpetrated violence towards the father and physically harmed the children. There is also the significant issue of risk of harm posed by the mother’s partner given his history of child sex offences.

2. The children’s disclosures to the family consultant of the mother’s violence are consistent with their reports to the father after returning to his care and the disclosures of the older daughter and son to caseworkers of the Department. The children’s claims of serious physical violence are of significant concern, particularly the older daughter’s disclosure that the mother on one occasion held her face under water and tried to drown her. In the absence of any evidence to the contrary I am satisfied that the children have been subjected to physical abuse perpetrated by the mother and that there is a risk that they will be subjected to physical harm if they were to spend unsupervised time with her in the future.

3. The material produced by the Queensland Department also raises significant concern as to the mother’s capacity to protect the children from harm on the basis that she was aware of her partner’s history of child sex offences but did not identify the significant risk of harm he posed to the children should they live in the same home or should he have contact with the children.  While it is unclear whether the children have been sexually abused by the mother’s partner, she has demonstrated an inability to protect them from the risk of harm posed by her partner arising from sexual abuse.

4. There is also no evidence to rebut the father’s contentions that the mother perpetrated physical violence towards him during the relationship including punching, slapping and throwing objects at him. The father’s evidence of her continued violence following separation is that police were regularly called due to conflict escalating when he tried to leave the mother’s property after spending time with the children.

5. Records produced by Queensland Police indicate conflict between the mother and her current partner which resulted in police being called to the mother’s partner’s home late one night in late September 2019 after the children had been collected by the father. While the police records indicate that there was no evidence to support the assertions made by either the mother or her partner against the other, it is of note that both were given advice about behaviour that constituted domestic violence.

6. The father’s allegations of the mother’s ongoing drug use which is also not rebutted gives rise to a potential risk of harm to the children in her care. Pursuant to section 69ZX(3)(a)(i) and (b) of the Act I adopt my findings in Abboud & Adjani[8] as to risks of harm to children associated with parental drug use including exposure to physical abuse and neglect based on the opinion of a family consultant in those proceedings:

   Parental substance misuse is known to have a detrimental impact on parenting.  It reduces the likelihood that a parent would be able to identify a child’s needs, provide consistent sensitive and attuned care, and increases the risk of a child being exposed to physical abuse and neglect.  A parent’s availability to their child also decreases with substance use and children can experience the parent as inconsistent, confusing or frightening.  The parent is unlikely to recognise their child’s reaction to their behaviour and parenting deficits, and therefore fail to repair ruptures in the relationship, which can lead to distortions and disruptions in the parent-child relationship.

   [8] [2019] FamCA 525 at [69].

7. While the order sought by the father and supported by the ICL that the children spend no time with the mother is the most extreme order that can be made by the Court, in circumstances where the mother has herself perpetrated physical harm towards the children, failed to act protectively by allowing the children to reside with a convicted child sex offender and it can be inferred there are ongoing concerns as to her drug use, I am satisfied there is an unacceptable risk that the children will be physically and psychologically harmed in her care arising from abuse, neglect and exposure to family violence.

8. An interim order was made at the time of undefended hearing with the consent of the parties which enabled the children to have telephone communication with the mother each week.  I am of the view that there still exists a level of risk that the mother will make comments as she has done in the past that may cause the children distress, and consider it proper that the father determine any communication the children have with their mother as he considers is in the children’s best interests noting that the children all expressed to some degree a desire to maintain a relationship with the mother to the family consultant.

9. While there was some question of risk in the father’s care arising from an anonymous report received by the Department about excessive discipline, after a home visit was conducted it was not substantiated that the children were at danger in the father’s household. The record relating to this report records at that time there was no concern as to the father’s standard of care of the children:

   Two safety assessments have been completed since the beginning of case work intervention, and both times there was no evidence that [the father] or [the father’s partner] are not meeting the basic needs of their children. The children were well presented, had clean and appropriate clothing, sleeping arrangements, school supplies, food and activities. They were always polite and spoke with caseworkers and identified wanting to stay with their father. They have been attending school…and there is no evidence that they are neglected. The children have appropriate routines and do not appear obese, malnourished or have any medical needs which are not being met…

1. This record is consistent with an earlier departmental Safety Assessment conducted in November 2019 after the children’s change into the father’s care in which the caseworkers considered “there were no concerns in the home, and [the father] appeared to be caring well for the children”.

2. In the absence of any evidence to the contrary I am not satisfied that the children are at an unacceptable risk of harm in the father’s care. Rather, the evidence before me suggests that the children are being adequately cared for by the father and his partner.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. All four children expressed a clear desire to remain living with the father. The family consultant observed the children to have a close and warm relationship with the father. I also accept the father’s evidence that the children share a close relationship with his partner and presumably also their half sibling.

2. I accept the view of the family consultant that the children appear to miss the mother but it is also clear from their disclosures in the course of their interviews that most if not all children were apprehensive about spending time with her and only wanted to do so in a safe environment and on a limited basis. There are no proposals under consideration for the mother to spend time with the children in a safe environment that mitigates the risks in her care.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

1. The mother’s lack of engagement the proceedings is the most salient feature in the resolution in this dispute. The mother can be taken from her lack of engagement to have forfeited her interest in participating in the children’s lives in all respects.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

Attitude to the children and responsibilities of parenthood demonstrated by each parent

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

1. It is of significant concern in the proceedings that the mother prioritised her desire to have a relationship with her partner over the need to provide the children with a safe environment free from the serious risk posed by him.

2. The children’s comments to the family consultant relating to the standard of care provided by the mother also raise concern about her attitude to the responsibilities of parenthood and capacity to provide for the children’s needs. These comments, reports made to the Department about the poor standard of care provided by the mother and her past history of having had another child removed by the Department demonstrate a consistent pattern of serious shortcomings in the mother’s parenting capacity.

Likely effect of change in the children’s circumstances

1. The orders sought by the father would see a continuation of the children’s present living arrangement. The children have already experienced disruption to their living and schooling arrangements having first relocated to Queensland with their mother and within the year returning to live in New South Wales with the father.

2. Each of the children expressed to the family consultant that they miss their mother. It is most unfortunate for them that the only orders under consideration will see a continuation of the arrangement whereby she has no contact with them. This is especially so as she had opportunity to propose orders that could maintain the children’s relationships with her while mitigating the risks she poses but failed to take up that opportunity for their benefit.

Family violence relating to the children or a member of the children’s family

1. Family violence is broadly defined. I accept the father’s evidence of the mother’s violent conduct during the parties’ relationship and following separation which I am satisfied constitutes family violence within the meaning of the Act. Based on the father’s comments to the family consultant, it also seems the children were exposed to family violence perpetrated by the mother and general violent conflict between the parties.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. Having regard to the mother’s lack of engagement in the proceedings, orders that would be least likely to lead to the institution of further proceedings would be those sought by the father and supported by the ICL.

Conclusion

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child.

3. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

4. The presumption of equal shared parental responsibility does not apply as for the reasons given I have reasonable grounds to believe that the mother has engaged in abuse of the children.

5. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father must mean that he would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.

6. The mother has not properly engaged in the proceedings having only participated in a couple of court events. She has not ever filed a Response even when she was given one final opportunity at the final hearing. The only proposal before the Court is for the father have sole parental responsibility for the children. In circumstances where the parties do not appear to have any capacity to have a co-parenting relationship, where the mother has failed to adequately engage in the proceedings, and where she has demonstrated a lack of capacity to make decisions consistent with the children’s best interests, I am easily satisfied that it would be in the children’s best interest for the father to have sole parental responsibility for them.

7. There has also not ever been a proposal with respect to the mother’s time with the children other than that they spend no time with the father as he seeks. Significant risks of harm posed by the mother have been identified but is no alternate proposal for any arrangement to mitigate that harm. In circumstances where the mother appears to have suggested she may take matters into her own hands and have time with the children by attending at their school and taking them from the father, it is proper in my view to order that the children spend no time with the mother. This always leaves open the possibility that the children do spend time with her in the future if the father in exercise of his sole parental responsibility considers that such contact would be in the best interests of the children.

8. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 July 2020.

Associate: 

Date:  15 July 2020