BENTLEIGH & MURDOCH

[2015] FamCA 671

FAMILY COURT OF AUSTRALIA

BENTLEIGH & MURDOCH [2015] FamCA 671

FAMILY LAW – INTERVENTION – request for the Secretary of the NSW Department of Family and Community Services to intervene – reasons behind order pursuant to Section 91B of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) s 91B

APPLICANT: Mr Bentleigh

RESPONDENT: Ms Murdoch

INDEPENDENT CHILDREN’S LAWYER: Ms Dodson

FILE NUMBER: PAC 2249 of 2015

DATE DELIVERED: 14 August 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28 July 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Aloisio of Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Anderson – amicus

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

Orders

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

2. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention by 4 September 2015.

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

Notations

1. A short judgment will be delivered in Chambers to the parties and the Department in respect of the areas of concern.

2. There are Apprehended Violence Order proceedings between the parties listed on 4 September 2015 and a request for court records should be made from the relevant Local Court in respect of those proceedings to assist in these proceedings.

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

Introduction

1. The parents of two young children have been engaged in parenting proceedings since May this year.  The father makes serious allegations concerning the mother’s parenting capacity and seeks interim orders for the care of the children.

2. In July 2015, the children and parents were assessed by a family consultant as part of the Child Responsive Program and a memorandum was provided to the Court for its assistance.  In that memorandum, serious issues in relation to each of the parents’ parenting capacity were raised and the family consultant expressed the view that the Court may consider inviting the Department of Family and Community Services (“the Department”) to intervene if the allegations made by the parents can be confirmed through information produced on subpoena.

3. On 28 July 2015, the Independent Children’s Lawyer also agreed with the suggestion that the Department be invited to intervene.  On that date I made an order inviting the Department to intervene and indicated that I would subsequently give Reasons for that order.  These are those Reasons.

Background

1. The parenting proceedings concern B, a six year old boy, and C, a seven year old girl, the children of the mother, Ms Murdoch and the father, Mr Bentleigh.  Ms Murdoch also has three older children from a previous relationship who are 14, 12 and nine years of age.

2. The parents began living together in 2008 and separated in January 2015.  The children currently live with their mother, her other three children and their maternal grandparents.  They spend time with their father at the paternal grandmother’s home each weekend from Friday after school until Monday before school.  The mother proposes that the children continue to live with her though she has not filed a Response to the father’s application which initiated the proceedings.

3. In his Initiating Application filed in May 2015, the father seeks orders that he have sole parental responsibility for the children, that they live with him and spend supervised time with the mother at a contact centre for a maximum of two hours each fortnight.  He also seeks the same orders in relation to the children living with him and spending supervised time with the mother on an interim basis.

4. The application for interim orders has not yet been dealt with and it was initially indicated that the parents needed first to participate in the Child Responsive Program and, in particular, be interviewed by a family consultant for the purposes of a Children and Parents Issues Assessment.  These interviews took place on 20 July 2015 and the memorandum was made available to the Court and discussed with the parties at a Court event on 28 July 2015.  As a result of the matters raised in that assessment, I invited the Department of Family and Community Services to intervene in the proceedings.  The parties also consented to further orders which were made on an interim basis relating to each parent being the subject of urinalysis, each parent enrolling in courses to assist them in their parenting to improve their parenting capacity and orders in relation to supervision of the children, discipline, school attendance and other matters.

Concerns about parenting capacity raised in the children and parents issues assessment

1. Currently the children reside with their mother and three other siblings at the paternal grandmother’s home.  Although the mother has not filed a Response, as I understand it from answers given to the family consultant, she proposes that the children remain in her care and that she continue to reside with her parents.  I understand that she is not in a financial position to reside elsewhere.

2. The father proposes that the children reside with him.  Concerns about both parents’ capacity raised in the family consultant’s memorandum indicate that neither parent may be adequate to protect the children from harm and otherwise meet their needs.  In circumstances where no other family member may be available to take parental responsibility for the children or where the supervision of the Department may be required to ensure that the parents provide adequate parenting, it is appropriate in my view that the Department give consideration to intervening in the proceedings.

The mother

1. So far as the mother’s care of the children and parenting capacity is concerned, the father raises a number of issues in the Notice of Child Abuse, Family Violence or Risk of Family Violence filed by him on 19 May 2015 and in his interview with the family consultant.  First, he makes serious allegations about the domestic circumstances in the maternal grandparents’ home.  He alleges that the maternal grandparents are long-term drug users, and that they engage in illicit drug use and violence between each other and others to which the children are exposed.  He also alleges that the mother has engaged in longstanding drug and alcohol misuse, that the mother is mentally unwell and this affects her parenting capacity, that the mother is neglectful, engages in criminal activity and involves the children in it, that she has fails to ensure the children regularly attend school and verbally and physically abuses the children.

2. Some information provided by the children themselves seems to support some of the father’s allegations.  For example, C told 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.  C also told 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.  B also told the family consultant that his mother does not make him brush his teeth  and that bedtime is “anytime” at his mother’s house.

3. So far as the maternal grandparents’ drug use is concerned, the mother told the family consultant that both of her parents were heroin users but started on a methadone program when she was born.  The mother agreed that she had used ecstasy in the past but claimed not to have used any drugs since the children were born.  She said she had never used ice and is only an occasional alcohol user.

4. The father alleges that the mother uses ice and cannabis and also drinks to excess and becomes violent.  The family consultant expressed the view that if the concerns that have been raised about drug use by each parent and maternal grandparents are accurate, this would raise the level of risk to the children.

5. The father also alleges that there is ongoing and serious violence between the maternal grandparents and that the mother has called him late at night and asked him to care for the children because of the violence.  The mother acknowledged to the family consultant that she had called the father one night and asked for him to care for the children because she had been arguing with her mother.  She did not agree or disagree with the father’s assessment of her parents’ home but said she did not have any options (to live elsewhere).  C told the family consultant that her father sends the police to her Nan and Pop’s house to see if she and her brother are okay.

6. The father also described the mother as physically violent towards him and said that she has threatened to have him killed.

7. The father alleges in his Notice of Child Abuse that the children are exposed to the mother threatening self-harm and he told the family consultant that he believes the mother has depression.  He says that she was abused as a child which has impacted upon her psychological health and has witnessed each of her parents overdosing on drugs.  He describes the mother as crying a lot and as having extreme mood swings.

8. The mother told the family consultant that she has had mild depression and was prescribed Endep at one time but did not take it.  The family consultant noted that the mother cried throughout most of the interview and said that the current situation makes her upset.  I also observed that the mother cried throughout the last Court appearance.

9. The family consultant was of the view that the mother may be experiencing anxiety or depression but it is also possible that her presentation reflects a history of serious violence perpetrated against her.

The father

1. The mother raised in the course of the assessment with the family consultant that she has been the victim of serious physical violence and coercive and controlling behaviour perpetrated by the father, that the father misuses drugs and alcohol, that the father is mentally unwell and it affects his capacity to care for the children.

2. So far as allegations of violence perpetrated by the father are concerned C told the family consultant that her parents use to fight “everyday” and said that they swore at each other and shouted and that her father once broke a chair.  B reported that his mother and father had “lots of fights” and that they “punched each other”.  He told the family consultant that he saw his father punch his mother and pointed to his torso and said he thought his father “won the fight”.  He also said that his father hurt his mother’s leg on one occasion and said that his mother got hurt once and that “her head was down”.  He also said he felt sad when his parents were fighting.

3. The mother described the father to the family consultant as having been psychologically and physically abusive towards her over many years and described very controlling behaviour.  She said that a two year Apprehended Violence Order was issued against the father in January 2015.  However, when the matter was mentioned on 28 July the Court was informed that the Apprehended Violence Order proceedings were listed on 4 September 2015.

4. The mother described the father as a heavy marijuana user and said that he smoked it every day before work, at lunch time and after work.

5. The mother said there is a history of mental illness in the father’s family and that the father had threatened to kill himself on a number of times.  She said that the paternal grandfather gassed himself and that the father would often take the hose from the vacuum cleaner when he left the house with the intention of making her think he was going to kill himself.  The mother also raised concern about the father’s driving which she said was erratic when he was angry and that he drove erratically with the children in the car.  She also said that he has been charged with driving a motor vehicle under the influence of alcohol.

6. The family consultant expressed the view that the interactions between the parents during the interview suggest that there is a significant power-imbalance in the relationship and that the mother seemed desperate and pleaded with the father to come to an agreement.  The family consultant also expressed concern about the children’s exposure to violence between their parents and the negative impact it would have on their psychological health and also that it could put them at risk of physical danger.  There were also concerns raised about general lack of structure and attention to parenting responsibility in the mother’s care.

7. It was suggested by the family consultant that if the various allegations made by the parents are supported by the documents produced on subpoena, that neither parent may be an appropriate or adequate carer for the children.  In these circumstances, the Department is invited to intervene in the proceedings.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 14 August 2015.

Associate:

Date:  14 August 2015