Browning & Price

[2022] FedCFamC2F 619

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Browning & Price [2022] FedCFamC2F 619

File number(s):	DNC 69 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	3 May 2022
Catchwords:	FAMILY LAW - parenting - concerning two children - where the children live with the father and spend time with the mother - where the father ceased the children’s time with the mother - where there are concerns about both parents capacity - whether the children are exposed to harm – where it is appropriate to invite the Minister to intervene
Legislation:	Family Law Act 1975 (Cth) s60CC
Division:	Division 2 Family Law
Number of paragraphs:	17
Date of hearing:	3 May 2022
Place:	Darwin
Solicitor for the Applicant:	Ms Gray of Gray’s Legal
Solicitor for the Respondent:	Mr Lowrey of the Northern Territory Legal Aid Commission
Solicitor for the Independent Children's Lawyer:	Ms Tregear of Arafura Legal

ORDERS

DNC 69 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BROWNING

Applicant

AND:

MS PRICE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	3 MAY 2022

THE COURT ORDERS THAT:

1.That pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for Territory Families Housing and Communities be invited to intervene in these proceedings and to send a representative to the Court on the next occasion being 10 August 2022 at 9.30am.

2.The children X born in 2018 and Y born in 2015 live with the father

3.The parties each enroll at B Children’s Contact Centre to assess their suitability to take part in the supervised access program forthwith.

4.The mother spend time with the children X born in 2018 and Y born in 2015 at such times and frequency as the Director of B Contact Centre or his/her nominee can accommodate.

5.At the conclusion of the visits and/or prior to the next court date the Independent Children’s Lawyer obtain a report from B Children’s Contact Centre.

6.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and /or as is reasonably requested by a party.

7.That within 24 hours of these order both parents are to attend upon a GP to obtain a referral to a reputable pathologist in the local area for the purposes of undertaking a supervised liver function blood test for alcohol abuse, which includes an assessment of CDT (Carbohydrate Deficient Transferrin) and GGT (Gamma-glutamyl transpeptidase) levels.

8.Both parents are to complete a “For the Kids” parenting course and provide a proof of completion certificate to the other parent.

9.The parents continue to engage with their treatment providers in relation to mental health.

10.The parents both provide to the Independent Children's Lawyer the name and organisation of their treating mental health provider.

11.That all outstanding applications be adjourned to 10 August 2022 at 9.30am for further directions.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application concerning two children, Y, who is 6 years old, and X, who is 3 years old.  The children currently live with the father and the time spending arrangements with their mother have been fraught with difficulty. The father decided to cease the children’s time with the mother following what, he said, was an incident of lack of supervision. He said it had been informally agreed in December 2021 that the children were to spend about 10 days with their mother, when it was said that the mother's sister, a Ms C, was to supervise that time.

2. I am not satisfied that the father acting to cease the time the children are spending with the mother was in good faith.  I am told the children have not spent time with their mother since January 2022.  It is now May 2022.  It is clear from the Child Impact Report that the children miss their mother and I consider that the father's conduct raises real questions about his parental capacity. This case is about parental capacity in many ways. 

3. The parents separated in about 2018 after an ‘on and off’ relationship. In 2019, the father was driving a motor car under the influence of alcohol and cannabis, resulting in a car crash which caused the death of his 5 year old son from another relationship.  The father was subsequently convicted of an offence, dangerous driving causing death, in 2021 and sentenced to four and a half years’ imprisonment. I understand this was suspended after nine months and he spent some four and a half months in custody.

4. The mother, on her own admission, has a history of alcohol abuse and use of methamphetamine.  There also appear to be question marks about her mental health at different times.  It is clear from the material, either from the police or Territory Families, that in 2019 there were incidences of the mother being highly emotional, stressed, having difficulties with her family, and behaving in a way that was suggestive of mental health problems. There was also possibly alcohol abuse resulting in the intervention of the police on some occasions, and presenting to the hospital and requiring admission, apparently for a relatively short stay.

5. It appears from the materials that those problems continued into 2020, which resulted in an application for a protection order made by the Chief Executive Officer (“CEO”) of Territory Families in relation to the children.  The application was made against the mother and the father, and orders were sought on 22 April 2020 for a protection order for the children with the following directions:

   (a)that the mother was to engage with mental health services and attend counselling; and

   (b)that the mother provide a report from her mental health provider attesting to her re-engagement.

6. I might say that there is no evidence before me of that having happened, which is seriously concerning. I was told from the bar table that the mother is now engaging with D Centre, which provides psychological and psychiatric services in Darwin. The absence of evidence about this is of concern to me.  There are also orders sought that the parents refrain from using alcohol or illicit drugs, that Territory Families be permitted to monitor the parties or the parents at their homes, and that the parents were not to expose the children to family violence.  Various other orders of that kind were sought.

7. A protection order was made on 22 August 2020 in the Local Court of Darwin, which in broad terms reflected the orders that had been applied for. The mother was to abide by a safety plan developed on 17 April 2020 and any future safety plans.  She was to provide Territory Families with the outcome of any recommended mental health assessment and counselling referrals and other letters from her mental health service providers. I have dealt with the absence of information about that. In addition, the parents were to abstain from the use of alcohol or illicit drugs.

8. On 22 April 2022, on the application of the CEO, that protection order was revoked. However, in an affidavit that was filed in support of that application, the context of the revocation is clear.  The affidavit of a Ms E dated 31 March 2021 deposes at paragraph 21:

   Since the supervision directions have been in place, Ms Price has breached the safety plan from 17 April 2020, with reports of her sleeping and drinking whilst children were in her care.

9. The affidavit also recorded at paragraph 15 that on 17 September 2020:

   A family-led decision resulted in X moving into the care of Mr Browning, and on 18 September 2020, Y also moved into Mr Browning's care.

10. Counsel for the mother submitted this was the result of a unilateral action by the father. Whether or not that was the case, it is clear that a significant part of the context in which Territory Families sought the revocation of the order was the fact that the children were in the father's care rather than the mother's care.  The emphasis on the mother at this stage of my reasons is necessary because of the application that the children spend unsupervised time with the her.  The present application is to vary the existing orders which provides for an informal arrangement whereby a member of the paternal family was to supervise the children spending time with the mother on alternate weekends. Counsel for the mother submitted this was no longer appropriate, and the children should spend unsupervised time with the mother on alternate weekends from Friday to Sunday, and for the bulk of the school holidays. 

11. I am not satisfied the orders sought are appropriate having regard to the history of the matter and the absence of any evidence before me that the mother's mental health concerns have been addressed or are being addressed.  The other concern is that there does not appear to be at this stage any evidence about either party's use or abuse of alcohol or illicit drugs. I note the father is proposing an order for hair follicle testing and the author of the Child Impact Report recommends CDT testing to assess whether or not alcohol abuse is an issue.  I propose to make orders along those lines.

12. While I am satisfied that at this stage there is not a proper basis for removing the supervision requirement when the children spend time with the mother, I would, if there was proper evidence before me, be prepared to contemplate some other form of supervision. This may be perhaps a looser form of supervision than supervision at B Children’s Contact Centre, which is the Independent Children's Lawyer's position about what is required.  However, there is no real evidence from the mother about persons who would be willing to supervise, how often they would be willing to do so, and under what terms.  That being the case, I am satisfied that any option other than supervision at B Children’s Contact Centre is not open to me.

13. I should say something about the father.  The father said that he ceased the children’s time with the mother in January 2022 because there was a breach of an agreement by the mother that the children were to be supervised in her care by her sister, Ms C.  He said there was an incident when X was suffering acute abdominal pain and he was taken to the hospital. He says that Ms C left the mother at the hospital with the child.  The mother admits this but the fact is that she was in a hospital with the child, and I doubt that it was practicable for Ms C to remain there.

14. I asked counsel for the father whether there had been any correspondence, bearing in mind that the children have not seen their mother since January, about some compromise position. Extraordinarily, I was told there had been no correspondence with a view to attempting to negotiate a compromise position.  That conduct, in my view, appears to be entirely consistent with the observation of the Child Court Expert (“CCE”) at paragraph 32 of the Child Impact Report which says that both of these parents:

    …display little insight into the impact of parental behaviours upon the children's safety and overall wellbeing.

15. I am not satisfied that the father is in any way committed to the children having a relationship with their mother.  That is something that, at this stage of an interim hearing, I do not make a finding about but I simply express it in that negative way.  There is no material before me that satisfies me that that is the case.  It may be at a later time there will be material that indicates that my assessment at this stage is mistaken. 

16. This is a case where involvement of Territory Families was merited, such is the seriousness of the issues in relation to both parents. There appears to be material that suggests that there are real concerns about the capability of both parents to protect these children from harm. In other words, I consider that given the parties’ history, that section 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) and the need to protect the children from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence is the most important consideration in this case.

17. On reflection, I consider that I ought to invite the Minister to intervene. I do not expect that that invitation will be taken up. In my experience, it rarely has been, but my intention is to indicate that in this case I consider that the limits of this Court's capacity to protect these children from harm has been reached. This court does not perform the same role as a child welfare agency. Ultimately, the Act assumes that there is at least one parent with whom children are safe and I am not convinced that this is such a case.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       17 May 2022