Bassett and Batista
[2012] FMCAfam 1492
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BASSETT & BATISTA | [2012] FMCAfam 1492 |
| FAMILY LAW – 10 year old child living in dangerous household and circumstances with the mother – allegations of ‘ice’ being cooked and marijuana being grown in the mother’s household, persons involved in criminal activity living with the mother – mother’s boyfriend mishandling the child – locking him in rooms – mother not ensuring child’s attendance at special education program – mother not giving the child his medication for ADHD – child takes knife to school as he is in constant fear of possible attack – child to live with father – recovery order to issue if mother fails to follow through with travel arrangements for child. |
| Family Law Act 1975, Part VII, ss.60B, 60 CC, 60DAA, 61DA, 65DAA |
| Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 Goode & Goode [2006] FamCA 819 |
| Applicant: | MR BASSETT |
| Respondent: | MS BATISTA |
| File Number: | CSC 175 of 2010 |
| Judgment of: | Willis FM |
| Hearing date: | 14 December 2012 |
| Date of Last Submission: | 14 December 2012 |
| Delivered at: | Cairns |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Independent Children’s Lawyer: | Ms Lehmann |
ORDERS
The children X born (omitted) 2002 and Y born (omitted) 1998 (“the children”) live with the father in (omitted).
The Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, subject to the communication and notification of such decisions to the Mother, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
The mother is restrained from removing the children from the care of the father, or from any school or other institution where the children may be placed by the father, without the prior written agreement of the father.
In the event that the child X is not placed on the flight to (omitted), which the father has organised to occur on Saturday 15 December 2012, a Recovery Order will issue for the return of the child. The Recovery Order is to lie in the Registry to be uplifted upon the father filing an Affidavit deposing to the failure of the mother to return the child to his care pursuant to these orders.
That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover the Child X born (omitted) 2002 and to deliver the said Child to the father at Property C, in the State of Queensland, or such other place as the father and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said Child may be found.
All Police Officers and agents referred to in this Order be at liberty to proceed on a facsimile copy of this Order.
The mother is to forthwith file and serve her Response and Affidavit material addressing each and every allegation of the father as previously ordered.
This matter be listed for further hearing on 20 February 2013 at 2:15pm in the Federal Magistrates Court of Australia at Cairns. The mother is to organise for her attendance in Court in person at that time. Provided that the mother has filed her material pursuant to these and previous orders, it is intended that the issue of time between the children and the mother will be considered at that time.
Until such time as the mother files her material and attends in Court, it is the Courts expectation, that if the mother travels to (omitted), the father will facilitate time between the mother and the children in (omitted).
In the event the mother fails to comply with these Orders and attend Court as ordered, consideration will be given to listing this matter for an Undefended Hearing, at which time final orders will be made in the mother’s absence.
IT IS NOTED that publication of this judgment under the pseudonym Bassett & Batista is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 175 of 2010
| MR BASSETT |
Applicant
And
| MS BATISTA |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application listed today for an interim hearing. The father relies on his Initiating Application filed 28 September 2012, an affidavit of non-dispute resolution filed on the same date, an Affidavit of himself filed on the same date, a second handwritten Affidavit filed on the same date and a Notice of Child Abuse, Family Violence or Risk of Family Violence filed on the same date. The father has also complied with an Order to file a Financial Statement which he filed on 23 November 2012. Ms Lehmann has appeared on behalf of the Independent Children’s Lawyer, and there is no appearance by the mother.
The most recent orders that I made in this matter were on the second return date of the father’s Application on 25 October 2012. On 10 October the father appeared in person with an urgent application and there was no appearance by the Respondent. On that date I made orders pursuant to section 69ZX of the Family Law Ac 1975 to issue a Subpoena to the Department because of the issues raised by the father in his material, which were that this child was effectively living in a “druggie” household and was exposed to all manner of risks with his mother, arising from her day-to-day existence, and the father had grave concerns that the child in this relationship, X, born (omitted) 2002, was not attending school and he provided evidence of family members of the mother saying that she was taking drugs, I think, Ice, and deposing to all manner of problems and risks in her household.
I made an Order on that day that the father was to serve his Initiating Application and a copy of this Order on the mother, and that she was to file a Response and Affidavit material responding to the allegations of the father within 72 hours of being served. I also put the matter down for further mention on 25 October 2012. I noted in the Order, which was to be served, that:
The mother is to appear in person at the next mention date, namely 25 October 2012, or arrange her formal appearance by telephone. In the event the mother fails to appear, orders will be made in her absence.
On 25 October 2012 the father appeared in person and the Respondent appeared by telephone. She had not filed any material as provided for in my orders of 10 October 2013. I therefore gave her, I think, a further 14 days, saying that she was to file again her Response, Affidavit material and Financial Statement by no later than 7 November 2012, and I ordered further Subpoenas to issue to Education Queensland, Dr Z of the (omitted) Medical Centre and the ACE program, (omitted). I ordered that the mother facilitate telephone contact between the father and child at 5pm on Monday, Wednesday, Friday and Sunday, and that X be represented along with his sister, Y, born on (omitted) 1998, in these proceedings.
I listed the matter for an Interim Hearing on 14 December 2012 in the Federal Magistrates Court of Australia, that day being today. I also directed the parties to file and serve a document setting out their proposals for Christmas with the children. The mother has not appeared today. The Court has nonetheless tried to contact her on the only number we have available. Twice the Court has phoned, and the mother’s phone has a message saying that service is temporarily unavailable, ring back later.
I should say that this matter has some history to it, and that these parties first appeared in the Federal Magistrates Court back in March 2010, upon Application by the father. At that time he was represented by Mr Newman. The father at that stage sought orders that:
The children live with the mother at all times not otherwise set out in the orders and the children spend time and communicate with the father at all times as agreed and, failing agreement, as follows(it was set out with telephone, text messaging, email, and then holiday time for all of the holiday periods).
That matter progressed and the first return date was 31 May 2010. It was heard on 4 June, 2010 and I was given Consent Orders. Mr Newman appeared on behalf of the father and Ms Batista appeared, acting for herself. Only after she had been telephoned by the Court. I think at that point the father hadn’t seen the children since December 2009. There were Domestic Violence orders in place. The material had been served on 28 March 2010, and I think I was informed that the mother had refused to attend the mediation proposed, or a Legal Aid conference.
On that day, although the mother had been served for many weeks earlier on 28 March 2010, the court telephoned the mother as she neither appeared in person or filed any material. She was ordered to file a Notice of Address for Service no later than 7 June 2010 and to file and serve a Response and Affidavit no later than 14 June 2010, attend a Legal Aid conference, and the matter was to come back on 6 September 2010. I gave the mother leave to appear by phone.
At the next mention date I was given Consent Orders providing for the children to effectively remain living with the mother, telephone contact to occur and the children to spend time with the father. There was an issue arising about the children’s surname and a notation was made on the Orders that the parties intended to discuss the issue of the children’s surname at a Child Dispute Conference. The matter was set down then some three months later on 6 September 2010. On that day the mother didn’t appear. She was telephoned again by the Court and there was no answer.
On that day I was informed by Mr Newman that there had been two dates put up for a Legal Aid Conference and the mother didn’t attend either; the phone contact wasn’t happening (the father was getting answering machine messages), that X had been suspended from his schooling, and I directed that the solicitor for the father write to the mother. There was an amended order issued, and it was noted that Mrs Hadley wasn’t the name of the solicitor appearing for the father – it was actually Mr Newman; a curious error. On 6 September 2010 the solicitor for the father was directed to write to the mother and request her advice as follows:
…an explanation of her absence in court and why her absence was not explained; the reason for her failure to comply with order number (2); and give her the new mention date.
The solicitor for the Applicant was to file and serve an Affidavit deposing that he has complied with order (1) and the matter was mentioned on 29 September 2010. I reserved the costs.
On 29 September 2010 Mr Newman appeared, and the Respondent again did not appear and she was telephoned by the court. The mother had not filed a Notice of Address for Service, nor filed any material. The father was to file and serve an Affidavit and Minute of Orders Sought in relation to the name change. The mother was given more time to file and serve a Response and Affidavit material no later than 20 October 2010, noting that the first orders regarding filing documents had been made some five months earlier on 31 May 2010.
In the event that the mother failed to file her documents, I ordered that she was to make arrangements to appear by video link from the Brisbane registry seven days prior to the mention. If the mother complied with that Order she was given leave to attend by phone, and she was to make the appropriate arrangements. I ordered a short family report and that the matter be listed for mention on 14 December 2010. My memory of making the order for the mother to appear by video rather than telephone was that she was quite stroppy, discourteous and disrespectful on the phone.
The next Court event was 27 October 2010. Those were the orders that I have referred to earlier, in line with the father’s orders sought, and I noted that the matter would remain listed for mention on 14 December 2010 in relation to the remaining issue of the children’s surname, and I noted that the parties had not yet reached agreement. A family report was not prepared at that stage.
On 14 December 2010 the Applicant appeared in person; there was again no appearance for the mother.
I made orders for the father to file and serve an Affidavit setting out reasons for the change of name, including the history with the children’s names; the mother was to file and serve an Affidavit setting out why the children’s names were changed, and a short family report be prepared, and I listed the matter for an Undefended Hearing on 19 April 2011and noted that orders will be made in the mother’s absence if she fails to appear.
A family report was prepared on 18 April 2011. At that point there hadn’t been any evidence from the Department of Child Safety. I imagine that was on the basis that the parties agreed to Consent Orders. At that stage the father was very concerned with the state of X’s mental health, and indicated he was asking for the opportunity to have his son live with him to see if he could help his son. It looks as though the father became very agitated over this issue and made some rather frightening and threatening statements about feeling like shooting the mother.
In any event, it was apparent, I can say, back in September 2010 that the mother was not engaging or complying with orders.
The matter next came on as an undefended matter before Coker FM, sitting in Cairns. The Applicant appeared in person. There was no appearance for the Respondent. She was telephoned by the court on 28 July 2011, and orders were made for the children to spend time with the father in the school holidays. The matter was to be listed on 11 October 2011; the mother was ordered to attend in person and the registry was directed to send the mother a copy of the Orders.
On 11 October 2011, the father appeared on his own behalf and there was no appearance by the mother. The father was directed by FM Coker to file and serve any further Amended Applications for filing orders, and that all outstanding Applications were then adjourned to Townsville with leave for the father to appear by phone.
There was no appearance by anybody on 1 March 2012. Coker FM noted if there was no appearance on the adjourned date the applications will be dismissed. On 4 May 2012 there was no appearance and all the applications were dismissed by FM Coker.
At the end of 2012, the matter was revitalised and listed before me in Cairns by the father bringing an urgent application upon receiving all the information he received in his material more recently filed which deposes to the risks of the child.
It is fair to say from that lengthy summary that the mother has failed to engage properly in the Court processes, having to be constantly phoned, not organising her appearances and not complying with orders. Nothing much has changed in the recent time. I have made orders for the mother to file her material, and she has not filed material of any description. She has not organised her appearance today, and I know that she was in Court on the phone when I made those Orders.
The Law
This is an Interim Application which is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). The approach to Interim Applications is set out in Goode & Goode [2006] FamCA 819. This matter will be determined “on the papers” and it is not possible for me to make findings of fact. I will be assisted by independent evidence in relation to the father’s serious allegations of risk concerning X.
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’
Section 61DA refers to a presumption that it is in the best interests of the child for the 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 of the child (or a person who lives with a parent of the child) has engaged in abuse or family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. On an interim basis, the presumption applies unless there is sufficient evidence to satisfy the Court that the presumption does not apply.
When I determine the best interests of X, will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the parties’ proposals for care of X including the significance of the primary considerations in s.60CC (2) according to the legislative pathway. Reference will be made to parental responsibility and s.65DAA(5) and the issue of reasonable practicability s.65DAA (5) and the issues referred to in subsection (a) through to (e) in arriving at the ultimate conclusion.
Each party requests an order for equal shared parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
Recent History
I adopt the very helpful chronology set out by the Independent Children's Lawyer in terms of the history of this matter. X was enrolled at (omitted) State School in July 2010. Prior to that he had gone to school at (omitted) College.
One of the issues in this matter is that, whilst X has remained living with the mother, Y, his older sister has since voted with her feet and has been living with the father in (omitted). The siblings are now separated and X remains in the mother’s household in Brisbane without the support of his sister.
There are some alarming reports to the Department of Child Safety back in March 2011, which is still only last year, and a 93A interview was conducted with X. X reported he had been physically pushed into his room by the mother’s then partner, Mr B, and X recalled being locked in his room on one occasion and sticking a piece of metal through the door handle, cutting Mr B on the arm. X stated a week ago Mr B pushed him into his room and pushed a desk in front of the door, and X kicked holes in the door in an attempt to get out. X also stated that the step-brother A pushed him around.
The police commented that X had no other fears apart from what he has explained and the police concluded that there were no concerns for X’s welfare, and they would not recommend X not return to the mother’s care. That obviously was something that involved the father who is recorded as being unhappy with this outcome. The police assessed the child as having significant behavioural issues and appeared to be suffering emotional abuse and it was noted that this is an extremely volatile situation between the parents.
There is reference to the police being called to a domestic disturbance at the paternal grandparents’ home and the father again insisting that X should remain with him.
In 2012 X was enrolled in the ACE program. X has got either Asperger’s or perhaps autism. It is difficult for anyone to clearly determine that from the subpoenaed material. He has been directed to have medication which suggests that there has been an assessment that says he needs medication for autism or ADHD.
There were a number of allegations, again made to the Department of Communities, Child Safety and Disability Services, as set out in the material. I note that in August 2012 the father says he received a text message from Mr Batista, the maternal uncle. The father said he phoned him and he disclosed that the mother had an Ice addiction and was selling same. There were notifications made that a person called Mr J was living with the mother and a child at (omitted), and that Mr J cooks Ice. It was alleged that last week X had been seen holding a smoking bong. The mother was alleged to be there at that time. It was alleged that the mother uses amphetamines on a daily basis and that she prostitutes herself in the family home.
There are other very disturbing allegations and notifications, including that the mother had admitted she has a drug problem, X does not have a routine, the mother is taking drugs, including crack and heroin. There were conclusions in late August 2012 that the notifications were vexatious. However, since then, the Queensland Police Service has had further information and the child was to be interviewed at school.
X’s attendance at school has been sporadic and one can see from the ACE program, (which is a support program for X given his difficulties at school) that whilst living with the mother, she has not been able to get X to school herself. The records show that there are other people – an uncle, aunts, boyfriends - taking X to and from school. It seems on the material before me that the position is that the mother does not have a licence and she does not have any other way of getting X to school. The subpoenaed material reads as though there is no bus close by, and X has missed a significant and troubling amount of school.
There are other very serious concerns, some of which have been vindicated, and that is that X has not been given his medication whilst with the mother. The mother informed me on the phone hook-up last time, and it is in the family consultant’s report, that she could not afford to buy it. There is a disturbing reference in the material to a doctor ceasing to give it to the mother as he was under the impression that she may have been selling it. It is without doubt that X has not been given his medication whilst living with the mother.
Concerns have been reported about X not having new clothing or school supplies, and that his sister Y would be meeting most of X’s needs.
There was an assessment and outcome by the Department on 3 October 2012 that X was a child in need of protection by reason of neglect by the mother, Ms Batista. X at that stage had not attended school for a two-week period. He had not received his medication for a significant period of time. His school attendance had always been sporadic, apart from when Mr Batista was residing in the home and taking X to and from school.
X has had severe behavioural difficulties, including inflicting violence and choking other children. The mother was assessed as not meeting X’s medical needs or his need for stability and predictability, despite her giving undertakings to do so and despite X’s obvious distress about not attending school and his behaviours.
There was information obtained by the Department that indicated that individuals known to police for engaging in criminal behaviour and drug-related behaviours have been in the household of Ms Batista, and that those individuals increase the risk of drug and criminal activity occurring within X’s immediate and extended environment. This placed X at risk of physical and emotional harm as a result of neglect in Ms Batista’s household.
The mother is noted as being sarcastic and dismissive of the concerns. I note that after her last appearance that I refused the mother any further permission to appear by phone because of her contemptuous behaviour on the telephone, shown towards this Court.
The Department observed that X was particularly vulnerable to harm because of his developmental needs, diagnosis with ADHD and his difficult and challenging behaviours, that he had a need for stability, predictability and care, and that he was at risk of physical and emotional harm as a result of neglect in Ms Batista’s care.
The father was identified as the parent who is willing to ensure that X’s care and protective needs are met. It was noted that Mr Bassett’s ability to act protectively of X is limited by the current Family Law Court orders and the delay in altering the current orders. It was therefore determined that Departmental intervention was required to monitor X’s safety and wellbeing in the care of the mother and implement protective behaviours within the home to ensure that X does not experience any further harm or risk in the mother’s care. That was the arrangement that was in place when the mother last appeared by phone.
The Department assessed that the mother’s household relationships were characterised by frequent conflict and negative interaction. The mother has had significant and ongoing conflict with her brother Mr Batista which involved Police involvement to assist the brother to retrieve his belongings from the mother’s home.
All of these matters going on and around X were assessed as being an ongoing source of stress for X and currently having a negative impact on him. There was obviously, as well, conflict between the mother and father in relation to X’s living arrangements and about being withheld from contact with his father by the mother, despite X saying he was really looking forward to seeing his father for the holidays.
The subpoenaed material shows also that the diary note in the (omitted) Medical Centre notes recorded by Dr Z:
ADHD patient on medications per psychiatrist. Moved to this area recently. Mother said he is on Concerta and Strattera. Rang his previous GP clinic and they told that Concerta was stopped. They raised issues concerning his mother’s drug history selling drugs.
I ordered that the parties attend a Child Inclusive Conference in Brisbane. The father attended by phone in the end as there was some issue with the timing. It was conducted by a family consultant Ms R and it was conducted on Friday, 30 November 2012, about two weeks ago. The parties were interviewed separately. The mother and child attended.
The family safety factors are identified in that report. The parties appeared to agree that the children were due to spend three weeks with the father this Christmas holidays. The mother was unaware that the father had booked X’s flight for the 15th to have that happen.
The mother voiced concerns that X’s negative behaviours are more prominent when he is in the company of a large group of children and that X’s behaviour could deteriorate if he were to live in the father’s household. The ACE records reveal that on 5 November 2012 X bought a knife to school and told the staff how he brings a knife everywhere as he is scared of the three Court cases that his family is involved in, and he is involved in, scared of Child Safety intervention and that he will have to leave his mother.
The ACE records were referred to with all of the numerous unexplained absences in terms 3 and 4, and the observations were made that the (omitted) Youth Mental Health Service has indicated that the mother failed to continue with X’s attendance at the service after March 2012, and that his medication regime has not been adhered to.
The ACE records are voluminous, but they make for tragic reading. X appears upset and disturbed that he cannot get to school more often. He is upset by his own behaviour. He has exhibited defiant oppositional behaviour, including choking other students and generally being a very difficult student with overt defiant behaviour. The incident on 5 November involves the staff finding out that X had a knife in his backpack, and ultimately X opened the bag. The staff found in the zipper compartment nothing but two cans of deodorant, which I note is curious for a boy of this age to be carrying around. He was ultimately found to have a silver one-piece paring style knife, approximately 17cm in length. X stated “I have no idea how that got in there. Maybe it was from my uncle because he borrowed this bag last week.” X admitted he had knives similar to these at home. X was requested to place the knife on the verandah. X complied immediately.
When questioned as to the origins of the knife, X stated several times he had no knowledge as to how it came into his possession. Mr D, the Principal, assured X that “if another student was attempting to set you up, that would be investigated fully and the guilty party would potentially receive a consequence.” At that point, X began crying and appeared in distress.
Following some further discussions, X admitted that the knife was his, that he had brought it to school from home. During an ensuing discussion, X mentioned that he was worried regarding three “upcoming court cases” that his family were involved in, including a litigation dispute with their real estate agent in which X feared the family would be forced to move and pay money they owed of $5,000.00. X expressed concern regarding his ongoing contact with DOCS and noted that he is scared of having to leave his mother. X was sobbing and crying throughout this discussion.
X mentioned that he’s having regular Skype/ Facebook contact every two days with his father. X then stated that he had been carrying the knife with him “everywhere, even up to the shops” as he fears that he might be “mugged” like his mother’s friend was last week. X also stated he brought the knife to school as a means to avoid consequences for his dangerous or assaultive behaviour. X said that at home he had to be the man of the house and that he was not getting a lot of sleep because he’s worrying too much. X stated in words that seemed a lot older than his years that he has “lost 10 years of his life through worry.” X’s mother arrived at school 40 minutes after the initial phone call and she discussed the incident. The knife was handed back.
I note in the records that there’s an unexplained absence the following day and the day after that. On the 9th X was involved in a physical altercation with another student and sent home. There was another on the 12th. X arrived, had the bag checked, worked in isolation away from the other students. There was a further unexplained absence on the 13th.
All of that material is, of course, extremely troubling. In looking at the matters overall I would conclude on the material before me that the Court is deeply troubled about the capacity of the mother to provide even the basics for X. I accept the submissions of the Independent Children’s Lawyer that the mother is not providing for X’s day‑to‑day care, welfare and development; that she is not able to even provide his medications; that she is not able to get him to school. The school records are appalling. I accept that X is missing and lacking parental supervision and appropriate parenting in his current environment.
Section 60CC Considerations
I now turn to discuss the additional considerations which are relevant to the competing applications.
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
I have at this stage material that shows X is terrified in his current living circumstances, so much so that he is now carrying a knife around all the time for his own protection.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
At this point, on the material before me, X seems to be close to his mother and father. I am sure he would be missing his elder sister, who has been identified by the Department as being heavily involved in his care. X has also deeply held fears about his mother whom I am sure he loves. X has expressed a strong wish to see his father.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The mother has been making long term decisions, but not following through as seen with schooling and medical issues. The father has been trying to spend time with X, with much difficulty. Given his phone calls to X have been problematic, regularly encountering the mother’s message bank with his calls not being returned.
On the material at hand, the mother appears to be struggling with her parenting responsibilities with alarming consequences. X is missing major periods of school attendance. This is X’s likely last opportunity at school as his behaviour has seen him removed from mainstream schooling. The mother it seems is not able to attend to X’s medical needs, nor is she able to provide a home an environment where X feels safe and secure. X appears to be living in constant fear and anxiety. It seems he may be being mistreated by the mother’s boyfriend, another level of risk for this child.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There is strong evidence to suggest that the mother’s life has become chaotic. This is seen in the Department’s records and also I am mindful of the evidence of the father’s other witnesses reporting the concerns that they have had. The impact of the father’s proposal is that X would live with he and Y. Y is already living with her father and is thriving at her new school. As for X, it is difficult to conceive that X’s day to day existence could be any worse. The father proposes arrangements that will see X having a safe household to live in, he will be taken to school, and his behaviour and conduct will be assessed. The father tells me that the behaviour that he reads of in the material is not the behaviour of the boy he has. I propose making arrangements that will lead to the opportunity for X to achieve his full potential at least on an interim basis. The records, as I said, at ACE are most troubling and it looks as though it is only a matter of time to me before X will be excluded from the ACE program and the issue of his schooling then becomes very, very problematic. This could be a life changing event for X if he is excluded from the opportunity of an education.
I note the mother’s reluctance to engage in the Court processes and to provide evidence of her current living circumstances and her failure to provide evidence of her previous failures and to answer allegations as she was directed to do. Whilst it is not my intention to prevent the child having a relationship with his mother, I find that the Court is in a very difficult position as submitted by the Independent Children’s Lawyer and the father. The Court is uncertain what environment the children are being placed into in the mother’s home, but on the evidence available, to date, the mother’s household and parenting do not offer protection, stability, security nor any kind of child focused household or parenting. Any proposal that either child live with the mother or spend time at her home or in her care appears to hold considerable risks.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live 2,000km apart. If it is in the children’s best interests to do so, a cost sharing arrangement can be put in place to share the cost of airfares. The parties have done this in the past and there are frequent flights from (omitted) to Brisbane. The cost of regular flights will need to be determined on a final basis. At present, the father is funding the bulk of the cost.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
As I have stated elsewhere, the Court has serious concerns about the mother’s capacity to provide adequate parenting to either protect X from emotional harm or to provide for his education or medical needs. There is no similar disqualifying factors for the father.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I accept the submission that the material at the moment, as informed by the family consultant, is that the mother’s life is in chaos. It has increased in chaos since I made my orders on the 24th. It seems as though the mother is having a dispute with the landlord. It is tragic that a child of this age is troubled by such issues. It is also tragic that a child, the age of X, feels that he has to travel even to the shop or at home and to school with a knife for fear of what might happen to him. I can see references in the material to X shutting the door and staying up all night playing computer games. The allegations that are set out in the father’s material and his supporting Affidavit leave the Court deeply troubled about the drug culture and what is really going on in the mother’s household. She makes no appearance today to explain what has been going on. She has had every opportunity to do so.
All of the matters that I have referred to obviously impact seriously on the mother’s capacity to parent, on her attitude toward parenting and on her responsibility toward parenting. In looking at the father’s capacity to parent, one can see from the fact that Y has placed herself with the father and the exceptional turnaround in her school records as a good indicator that the father has, as he submits that he does, a stable drug-free safe home for children. Y’s results have gone from Bs and Cs to straight As.
I can see in the records that whilst living with the mother that X becomes anxious at around 2:00pm, as he is not sure who is going to pick him up, and the records show that it has been a multitude of people other than the mother. It is entirely inappropriate for a young child to have a feeling that he is going to be left at school to his own devices. I accept the submission that the mother is not accessing the services that are available to her. I accept the submission that the father at this point appears to be the parent who is capable of giving structure and consistency and nurturing. The Court has deep reservations about the mother’s capacity to do so.
Obviously X is at a point in his schooling where he is reaching the end of the line as to what can be made available for him educationally and even when those services have been made available, the mother cannot even get him to school. The father has got arrangements in place for X to be attending the (omitted) State School in (omitted). He has made an assessment of the most appropriate arrangements for X. The other child, Y, is at (omitted) State School but there are arrangements appropriate for the special needs of X at (omitted) State School.
In looking at the presumption of the equal shared parental responsibility, the parties have had equal shared parental responsibility before. There is in my view, sufficient evidence at this early stage to suggest that issues of abuse and neglect arise in the care of the mother and I am satisfied on an interim basis that the presumption is rebutted. I am also satisfied on all of the material before me that at this point, until further order, it is appropriate that the father have sole parental responsibility. I also note that the father does not wish the children to stop seeing their mother, though he has great reservations and absolutely no knowledge as to what is going on in the mother’s household at the moment and I note that those are similar concerns of the family consultant.
I am satisfied at this time that the father has the requisite attitude towards parenting and capacity to parent.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not applicable.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
Whatever is happening in the mother’s household, and whatever her denials amount to, I am most concerned that X has decided that it is necessary for himself to be armed with a knife, as he feels his personal safety is under threat night and day.
The child has been recorded as being treated poorly by the mother’s boyfriend by being locked in a room. Further investigations will be made into the circumstances surrounding these alleged incidents.
I have no such fears for X in the father’s household.
S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
(v) any other relevant matter.
I am not aware of any Family Violence Orders.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am satisfied at this early stage, that if X remains living with his mother, there is likely to be further litigation instituted by the father with further unfolding concerns about X’s living environment.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I have nothing to add under this heading.
60CC(2) The primary considerations are:
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 to, or exposed to, abuse, neglect or family violence.
This matter revolves around the serious risks involved in X for X living with the mother. There is an abundance of evidence which though untested, suggests at this stage, that X may be in an environment which places him at an unacceptable risk of harm. He may be living in a household in where adults are consuming and manufacturing illegal drugs, and X is aware of violent incidents occurring to his mother’s friends. The mother’s boyfriend may be man-handling X and locking him in rooms. X’s behaviour at school, when he can get there, is violent and threatening to other students and he himself is in fear of his own safety. He is also carrying the pressure of adult worries in regard to debts and litigation. It seems that X may be living in an environment causing him grief and fear.
I consider that at this interim stage, steps need to be implemented to ensure X’s personal safety and to reduce his anxiety and fear about his own living environment. To achieve this I consider it is in X’s best interests to leave his mother’s home and environment and commence living with the father in (omitted).
I am satisfied that the father’s proposal will offer X the opportunity to live in a family home, free from fear. I am satisfied that the father will take action to ensure X receives appropriate schooling and attend to all other aspects of X’s life. This arrangement represents a significant change for X but a change that in my view is warranted in X’s best interests. At this time, I have no confidence that the mother can protect X in her home environment in Brisbane. There are serious forensic investigations to be made all of which will be fully explored at final hearing.
Until that occurs I am satisfied that the Order for X to forthwith leave the mother’s household and live with his father in (omitted) is the Order which will see his best interests addressed.
Whilst I am sure that X loves his mother, at this time I am not satisfied that she has her own life or living circumstances under control sufficiently to ensure X’s safety. I am quite confident that the father will ensure that to the extent it is safe to do so, X will remain in communication with his mother via telephone and if the mother chooses to travel to (omitted), that the father will organise suitable opportunities for X and his mother to spend time together in (omitted), not Brisbane.
I do not support X leaving (omitted) and spending time with the mother in Brisbane until such times as the Court has had the opportunity to fully investigate the serious concerns held about the mother’s living environment and associates. This will occur at a final hearing.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 19 March 2013
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