BENTLEIGH & MURDOCH

[2015] FamCA 1236

FAMILY COURT OF AUSTRALIA

BENTLEIGH & MURDOCH [2015] FamCA 1236

FAMILY LAW – CHILDREN – Interim parenting – where the mother has relinquished the control of the children to the father – where there is limited evidence in relation to the family before the Court – with whom the child should live and spend time – parental responsibility.

FAMILY LAW – CHILDREN - Child related proceedings – Department of Family and Community Service again invited to intervene in the proceedings.

Family Law Act 1975 (Cth) s 60CC, 91B

APPLICANT: Mr Bentleigh

RESPONDENT: Ms Murdoch

INDEPENDENT CHILDREN’S LAWYER: Ms Dodson

FILE NUMBER: PAC 2249 of 2015

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 6 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. Orders, pending further order, are made in terms of paragraphs 1 and 2 set out in the Independent Children’s Lawyer’s Case Outline Document dated today and paragraphs 4 to 16 inclusive except that paragraph 4 which reads ‘both parents’ should read ‘the father’ bearing in mind he will hold sole parental responsibility; such orders being:

1.That the Father shall have sole parental responsibility for the children C born … 2008 and B born … 2009 (“hereinafter “the children”).

2.That the children shall live with the Father.

3.That within seven (7) days of the date of these Orders, the Father shall do all things and sign all documents necessary to cause the children to be re-enrolled at M School and thereafter, each parent is restrained from further varying the children’s primary school enrolment without further Order of this Court. 

4.That each parent shall within forty eight (48) hours of receiving a written request from the Independent Children’s Lawyer submit to supervised urinalysis testing in compliance with the Australia/ New Zealand standard AS/NZ 4308: 2008 including supervised collection, storage and transport of the sample.

5.That within forty eight (48) hours of each party receiving their supervised urinalysis results, they shall cause such results to be forwarded to the Independent Children’s Lawyer and the solicitor for the other parent.

6.That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of the children.

7.That in the event of the child suffering a medical emergency requiring medical attention while spending time or living with either parent:

(a)    The other parent is to be notified as soon as practicable.

(b)    The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.

(c)    The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and the information obtained with them upon request.

8.That each parent shall give all consents, sign all documents and do all things necessary to ensure that each parent can obtain the following from the children’s school(s)/pre-school(s)/day care(s) at their own cost:

(a)    A copy of all school reports, progress reports and photo order forms.

(b)    Notification for activities that they may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend.

(c)    Notification of parent/teacher nights and the school is informed that it is the desire of both parents to attend such events NOTING THAT this order does not require the parents to attend the same interview.

(d)    In the event of the child being taken from school for an emergency, remedial or correctional treatment, that both parents be informed as soon as practicable.

9.That each parent shall inform one another within 7 days in writing of their current residential address, at least one contact telephone number and nominated number for the purposes of facilitating telephone communication with the child and shall advise one another within 48 hours in writing should there be any change to said contact details NOTING THAT this order does not authorise either parent to personally attend, or cause any other person to attend, the other parent’s place of residence unless otherwise invited by the other parent or a member of the household.

10.That the parents shall communicate in relation to matters pertaining to the children’s parenting arrangements and the children’s care, welfare and development:

(a)    For all non-urgent matters, being those that do not require a response within 48 hours, by email.

(b)    For all urgent matter, being those that require a response within 48 hours, in the first instance by text message.

11.That the parents shall be restrained from using or being under the influence of any illicit substances, or alcohol, whilst the children are in their care or for 24 hours prior to the children coming into their care.

12.That neither parent shall physically discipline the children or allow any other person to do so.

13.That each parent shall ensure the children attend school on each day of required school attendance and in the event the children are absent from school, the parent with whom the children are living shall ensure the children attend upon a medical practitioner and obtain a medical certificate for such absence and prove a copy of that certificate to the other parent as soon as practicable.

14.That the Independent Children’s Lawyer shall have liberty to restore this matter in the event of difficulties, having provided the parties with no less than forty eight (48) hours written notice.

15.That each party shall notify the other parent as soon as reasonably practicable of any accident or emergency involving the children.

1. The Department of Family and Community Services are again invited to intervene in these proceedings given the change of the family’s circumstances as set out in the judgment of today’s date and that a copy of that judgment be provided to the Department.

2. The children’s time with their mother is to be determined at a future date and consideration will be given to any application the mother makes in that regard.

3. This matter be adjourned for directions at 10:00am on Thursday 15 December 2015. In the event any application is made with respect to the children's time with the mother such application can be dealt with on that occasion

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2249 of 2015

Mr Bentleigh

Applicant

And

Ms Murdoch

Respondent

REASONS FOR JUDGMENT

1. This is an interim parenting application in relation to B, who is six, and C, who is seven, the two children of the parties.  The parents separated at the beginning of this year and, although the matter has been in Court on a number of occasions, no orders are currently in place with respect to the children’s living arrangements.

2. In his Initiating Application filed in May 2015, the father sought sole parental responsibility for the children and orders that they live with him and spend supervised time with the mother at a contact centre on both an interim and final basis.  The interim application was not dealt with at the time it was first filed, as I was of the view that I may be assisted by the children participating in the Child Responsive Program, which was done by means of the parents participating in a Children’s and Parent’s Issues Assessment with a family consultant on 20 July 2015.

3. A Memorandum was prepared for the assistance of the Court which was raised with the parties at a Court event on 28 July 2015.  As a result of matters raised in that assessment, which concerned allegations about the domestic circumstances in each of the parents’ homes, I invited the Department of Family and Community Services to intervene in the proceedings.  Today is the first occasion after the Department were invited to intervene.  The Department have declined to intervene and say that they are of the view that there is insufficient evidence to indicate that the children are currently at risk of significant harm.

4. Following the parties’ separation at the beginning of this year, the children lived with their mother in the maternal grandparents’ home and were placed in a school near to the maternal grandparents some distance from where they previously lived and attended school.  Although, as I say, these proceedings have been on foot since May of this year, the mother has not at any time filed an affidavit or put any material before the Court except in the matters she raised with the family consultant.  Although she was aware that the matter was listed today for an interim hearing, she has not attended and her previous lawyers have filed a Notice of Ceasing to Act.

5. Since the matter was last in Court and the circumstances of the parents were considered by the family consultant, there has been a rather dramatic turn of events. The father gave oral evidence today about circumstances in which the mother effectively has relinquished the children into the care of the father a little over a week ago and he has had the care of them throughout the last week of the school holidays.  They were due to return to school today.

6. The father said that the mother explained that she had been in fear for her safety where she was previously living. There certainly is quite a bit of uncontradicted evidence before the Court about the mother’s living circumstances with her parents. It is confirmed by reference to the subpoenaed material from police today in particular, that the mother’s parents are well known to police and are people who, it would appear, have had long-standing issues with drug use, dysfunctional parenting and involvement in criminal activity.

7. On the last occasion in Court, the mother effectively agreed that she was not very happy with the living circumstances or the children living there with her, but was not in a position financially to live anywhere else, It appears she has now moved from those premises though it is unclear exactly where she is living.  The father said that in some of the conversations he had with the mother she was suggesting that she was going to live in a refuge, and in other conversations it appears that she has been living with her sister Ms D, who is another person who is well known to police and has similar problems to the other members of the maternal family in terms of drug use and engagement in crime and dysfunctional domestic circumstances generally.

8. The mother, according to the father, said some dramatic things to him on the phone and effectively, asked him to pick the children up, take them into his care. This is additional time with the father that the parents negotiated between them, and the mother indicated that she wanted him to return them to school today. The father had some concerns about returning the children in circumstances where he didn’t know whether the mother, in fact, was living in the area or couldn’t really be satisfied that they would be properly looked after school. Effectively, has had no choice but to take them into his care, which happens to coincide with his application before the Court today.

9. As is clear from my previous Reasons for Judgment[1], there are significant concerns that are raised in both of the parents’ households about their capacity to care adequately for the children and I remain of the view that the Department of Family and Community Services should be involved, as it very well may be that the Court is unable ultimately to form the view that either parent is able to adequately care for the children.

   [1] Bentleigh & Murdoch [2015] FamCA 671.

10. So far as the issues that were raised in the mother’s household, they are confirmed today by some of the documents that have been produced on subpoena.  Certainly the issues about the domestic circumstances in the maternal grandparents’ home seem, as I have indicated, to be borne out by the records of the police and complaints made to the Department of Family and Community Services to the effect that the maternal grandparents are long-term drug users and engage in illicit drug use and violence between each other to which the children are exposed.

11. Some of the other complaints about the mother’s parenting capacity, such as that the mother is neglectful and fails to ensure that the children attend school regularly, are also borne out by independent records, such as the school records from the school that the children have been attending this year and the school records when the children were previously in the care of both of the parents and attending a different school.

12. Some of the other information that was provided to the family consultant, for example, by the children themselves, confirms the complaints about neglect, such as the child C telling the family consultant that she had not eaten breakfast on the day of the interviews and that her maternal grandparents sometimes fight and swear at each other and telling the family consultant that there is no toothbrush or toothpaste at her mother’s home and that her mother smacks her when she is naughty.  The child B also told the family consultant that his mother does not make him brush his teeth and that bedtime is “any time” at his mother’s house.

13. There is also a question about the mother’s drug use.  She does say that she was a drug user in the past, but I think there are some indications that she very well may still be a drug user.  The mother herself, for the reasons given in my Judgment on 14 August, also corroborates some of the concerning aspects about her own parents’ household.

14. There are concerns about the mother’s mental stability, which was confirmed in part by the mother’s own reporting of mild depression, the presentation throughout the interview with the family consultant where she cried throughout the interview and also my own observations that the mother cried throughout the last Court appearance.  However, I do note that the family consultant was of the view that the mother may be experiencing anxiety and depression, but it is also possible that her presentation reflects a history of serious violence perpetrated against her.

15. So far as the complaints made or issues relating to risk of harm in the mother’s household are concerned, I am of the view that the objective evidence today does support the sorts of matters that the father raised. In addition, real concerns are raised about the way in which the mother relinquished the care of the children, though I would observe that at least she had some recognition that the father was more likely to be the more protective parent of the two in the current circumstances.

16. The difficulty so far as the father’s circumstances are concerned – is that the father denies each of the matters that the mother raised with the family consultant about his shortcomings as a parent, in particular, that she has been the victim of serious physical violence and coercive and controlling behaviour perpetrated by the father.  Her other complaints are that the father misuses drugs and alcohol and that the father is mentally unwell and it affects his capacity to care for the children.

17. So far as the use of drugs is concerned, admittedly, the monitoring through directions to participate in random urinalysis has only been in place for a couple of months, but the evidence produced by the independent children’s lawyer today is that both of the drug tests that the father participated in were negative. This lends some support to his claim that he is certainly not currently or in recent times a drug user, whereas the mother has on three occasions when she was directed to provide urinalysis failed to do so, from which I do infer, as I am invited to infer, that the results would not assist her in that they would not be negative.

18. The concern about the father’s mental health:  the father simply denies it.  Not much more is known, though I do note that, in the last interaction between the mother and police in January 2015, the mother said she did not have any concerns about the father’s mental health.  The father is a person who is engaged in full-time employment and appears to lead a, at least in that regard, reasonably functional and prosocial life, so even if he does have some mental health problems, it would not seem to be on the limited judgment that I can make in relation to the issue, that they are matters of significant concern that impair his parenting capacity.

19. The issue that is probably the matter that is the most concerning and one which is simply unable to be assessed at this stage are the allegations of violence.  The father appears, as far as I understand it, to suggest that if there was violence in the family home that it was mutual in that both parents engage in violence.  The child C told the family consultant that her parents used to fight every day, they swore at each other and shouted, and her father once broke a chair.  The child B reported that his mother and father had lots of fights and they punched each other, and he also told the family consultant he saw his father punch his mother and pointed to his torso and said that he thought his father had “won the fight”.  He also said that his father hurt his mother’s leg on one occasion and that he felt sad when his parents were fighting. 

20. This is simply a matter which is unable to be assessed, and it appears that even on the father’s version of events that the violence was mutual, which does seem to be supported by what the children say.  I have got very real concerns about the children’s wellbeing if it is the case that in other intimate relationships that the father will engage in a similar way, but that is simply unable to be assessed at this stage.  However, the father says that he is living alone.  It’s unknown whether he is currently in a relationship.

21. He has also been directed to participate in a program with respect to violent offenders, which he is yet to commence, but he has been cooperative to the extent that, at least, he presented himself to the facilitators of the program and enrolled in it.  At the moment, although that risk factor is unable to be assessed, given that the mother has, effectively, relinquished the children into the father’s care and given that there are other indicators that the father’s home is a bit more functional than the mother’s, in my view, it is less detrimental for the children to be living with their father than their mother.

22. In terms of the specific s 60CC factors, unfortunately, very little is known in relation to this family.  The mother has not filed anything, and all I have is a Child Responsive Program Memorandum and the version of events filed by the father, including some matters which are in dispute.  In terms of the primary considerations, I do have some concerns about harm – the need to protect children from harm arising in both households, though at the moment it seems that probably the greater harm is in the mother’s household, and right at the moment it is not known even where she is living, and she has indicated that she’s not in a position through her actions to take care of the children.

23. That is not to say that I am satisfied that all issues relating to the protection of the children in the father’s household are put to rest with these proposed orders.  As far as the meaningful relationship with both parents, I have some concerns about making the order with respect to supervised time with the mother.  I have got no indication that she would, in fact, comply with those requirements to sign up for a – take the steps to enrol herself at the – do the intake at a contact centre, and I am simply unable to determine on the matters before me that two hours supervised as proposed is something that is in the best interests of the children.

1. In my view, a better course would be to make these interim orders for a reasonably short period of time, give the mother an opportunity yet again to appear and also to inform the Department of the latest developments.  As far as the views expressed by the children, they are known to some limited extent through the family consultant’s report.  They express some connection to each of the parents and a desire to live with each of the parents, though they have – I cannot put it, really, any higher than that.  As far as the nature of the relationships with the children with each of the parents, again, it seems that there is some attachment to each of the parents.

2. The children have got siblings in their maternal family, but it is not entirely clear what the mother’s current arrangements are and whether, in fact, those children are still living with the mother.  As far as relationships with other people, the children seem to have some form of attachment relationship with each of their sets of grandparents.  As far as participating in decisions about long-term issues, spending time with the children, communicating with the children, it seems to have been that the parents to some extent have been able to make some cooperative arrangements with each other for involving themselves in the children’s lives, and then in other cases such as the mother unilaterally changing the children’s school they have made some of those decisions simply on their own. It certainly would work better for the children to have one parent exercising sole parental responsibility, as is proposed under the orders. 

3. In relation to the likely effect of the changes in the children’s circumstances, of course, the Court always steps very carefully when it is a matter of changing the child’s living arrangements, but those living arrangements have already been changed in relation to these children.  They have been unilaterally changed – the mother moved out and took the children with her.  Now she has placed the children back with the father.  At least they will be back in the home they used to be living in.  They will be at a school that they used to be living at, and they certainly will be surrounded by some of the people who they have got close attachments to, such as in the paternal extended family. 

4. The issue of the capacity of the children’s parents loom large in this matter.  I think the father’s family is shown on the limited evidence available to have better capacity than the mother in terms of providing a sense of routine, greater level of personal care, including matters such as cleaning their teeth, having nutritious food, attending school and the like, but many of the other factors – and, in particular, the issue of family violence is a matter where there still is very little to be known.

5. Taking all of those matters into consideration, but, most significantly, that the mother, as I have indicated, has, effectively, relinquished the children into the care of the father, that apart from the issue of family violence, which is still a matter yet to be determined, at least I have some satisfaction that the father is on a number of levels less detrimental to the children than the mother. For those reasons I make all of the orders sought by the Independent Children's Lawyer other than the order in relation to the time with the mother, and I will have this judgment provided to the Department of Family and Community Services and will reinvite them to intervene in the proceedings.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 6 October 2015.

Legal Associate: 

Date:  21 October 2015