Carl and Caldwell and Anor

[2015] FamCA 694

FAMILY COURT OF AUSTRALIA

CARL & CALDWELL AND ANOR [2015] FamCA 694

FAMILY LAW – CHILDREN – Undefended hearing – Where the father failed to continue to participate in the proceedings – Where the maternal grandmother was joined as the second respondent – Where the eldest child is to live with the maternal grandmother – Where the youngest child is to live with the mother – Where both children are to communicate and spend time with the other parties as agreed between themselves – Mother and maternal grandmother to have equal shared parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Mr Carl

FIRST RESPONDENT: Ms Caldwell

SECOND RESPONDENT: Ms Little

FILE NUMBER: NCC 507 of 2014

DATE DELIVERED: 21 August 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 11 August 2015

REPRESENTATION

APPLICANT: Not Applicable

SOLICITOR FOR THE FIRST RESPONDENT: Hunter Family Law Centre Pty Ltd

SECOND RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brennan Garrick Lawyers

Orders

1. That the mother and the maternal grandmother have equal shared parental responsibility for the children B born … 2006 (“B”) and C born … 2007 (“C”).

2. That B live with the maternal grandmother.

3. That C live with the mother.

4. That B spend time and communicate with the mother, as agreed between the mother and the maternal grandmother.

5. That C spend time and communicate with the maternal grandmother as agreed between the mother and the maternal grandmother.

6. That B spend time and communicate with the father, as agreed between the father and the maternal grandmother.

7. That C spend time and communicate with the father, as agreed between the father and the mother.

8. The maternal grandmother ensure that B has telephone conversations with C , the mother, the father, and/or her step-siblings as often as B may request, and for that purpose, the maternal grandmother shall initiate the telephone call.

9. The mother ensure that C has telephone conversations with B , the father, the maternal grandmother, and/or her step-siblings as often as C may request, and for that purpose, the mother shall initiate the telephone call.

10. The maternal grandmother ensure that B continues therapeutic counselling with her counsellor Ms D for as long as Ms D so advises and that B attends all appointments arranged by the counsellor, and in the event Ms D ceases to counsel B, such other counsellor as may be recommended by Ms D.

11. The mother ensure that C continues therapeutic counselling with her counsellor Ms E for as long as Ms E so advises and that C attends all appointments arranged by the counsellor, and in the event Ms E ceases to counsel C, such other counsellor as may be recommended by Ms E.

12. The maternal grandmother is restrained from changing B’s school until the conclusion of B’s primary schooling.

13. The mother is restrained from changing C’s school until the conclusion of C’s primary schooling, however in the event C moves to live with the maternal grandmother, then the maternal grandmother shall enrol C in the school at which B is enrolled, and the maternal grandmother is restrained from removing C from that school until the conclusion of C’s primary schooling.

14. These Orders are sufficient authority to enable the children’s school(s) to provide to the mother, the father, and the maternal grandmother, on a regular basis and at the expense of the requesting party, copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the children or either of them.

15. The mother, the father and the maternal grandmother be at liberty to approach the children’s school(s) to obtain copies of all notices and details of all functions, parent and teacher nights and other activities including sporting activities, to which the parents are invited and to attend such activities.

16. Each party encourage and foster the children’s relationship with each other party.

17. Each party is restrained from permitting the children or either of them to have any contact, either face-to-face or by telephone, with F, born … 1999.

18. The mother and the father are restrained from using illegal drugs for a period of 12 hours prior to spending time with the children, or either of them, or during that time.

19. Each party, as soon as practicable, telephone each other party upon the happening of any of the following:

    (a)       The children or either of them becoming seriously ill;

    (b)       The children or either of them being hospitalised; and

    (c)The children or either of them becoming involved in an accident requiring medical attention.

20. Each party advise each other party of any change of residential address, landline telephone number, mobile telephone number, and email address within 24 hours of such change.

21. Without admissions each party be restrained and is hereby restrained from:

    (a)Denigrating any other party to the children or either of them or in the presence or hearing of the children or either of them; or

    (b)Questioning the children or either of them about any other party.

22. The Independent Children’s Lawyer provide a copy of the Judgment of Justice Cleary in this matter to the NSW Department of Family and Community Services as soon as judgment is available to the Independent Children’s Lawyer.

23. A copy of these Orders and reasons for judgment may be provided by the mother and the maternal grandmother to the therapeutic services which the children are presently attending in Sydney and City H respectively. 

IT IS NOTED that publication of this judgment under the pseudonym Carl & Caldwell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 507 of 2014

Mr Carl

Applicant

And

Ms Caldwell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before me are parenting proceedings in relation to two children, B, aged nine and a half, and C, aged almost eight.

2. The parents of the children are the father, aged 37, who was the applicant in these proceedings by his application filed 11 March 2014, and the mother, aged 33, who is the respondent.

3. The parties separated during the mother’s pregnancy with C.  Annexure B to the mother’s affidavit is the Apprehended Domestic Violence Order made for her protection at the time of separation.

4. Since that time in 2007, both parties have re-partnered, and each has had more children.  The father has two children with his current partner, a seven-year-old girl and a boy of almost four.  The mother has had three more children; two girls aged five and four from one relationship, and another daughter from her most recent relationship, who is now aged 12 months old.

5. The parties, through their short relationship, were both marijuana users and continued that way after separation.  Their relationship was characterised by drug use and violent arguments.

Short History of Relevant Events

1. In March 2014 the father filed a Notice of Child Abuse with his Initiating Application, identifying the sexual assault of both the subject children by the elder of his two stepsons, F.  F was aged 13 years at the time. 

2. The father witnessed an assault by F on B.  He acted immediately in July 2013 when that happened.  F was expelled from the father’s household and went to live with his biological father.  There was no contact thereafter by the father, F’s mother or the younger child of that relationship, G, with F. 

3. Later, all parties became aware of there having been repeated past assaults on both subject children by F.

4. F was charged and convicted in the Children’s Court and apparently continues to live with his biological father.  There is a final Apprehended Violence Order in place for the protection of B, which continues until November 2018.

5. Immediately after the discovery of the assaults in July 2013, the father notified the mother, and she removed the two children from his household. Thereafter, some time passed before there was any contact at all with the father, and it was sporadic. 

6. The father and his partner rejected the idea that G might have been similarly abusive, and that became a stumbling block for the restoration of relationships between the subject children and the father. 

7. On 21 May 2015 the solicitor for the father was granted leave to withdraw from these proceedings. Since that date, and even before, the father has not participated in the litigation.

8. The evidence suggests that he has felt considerable guilt and distress over events in his household and has been unable to come to terms with that in order to restore and maintain his relationships with the subject children.

9. The mother, through her Amended Response filed 16 April 2015, presses for certain orders:

   a)That she have sole parental responsibility for the children;

   b)That they live with her;

   c)That they spend defined time with the father; and

   d)That there be a restraint on the parties bringing the children into contact with both F and G. 

10. Also on 21 May 2015, the maternal grandmother was joined as a party to these proceedings. B presently lives with her.

11. Initially B stayed with the maternal grandmother in Sydney from December 2014 to January 2015, after an incident which was frightening for her, where she was accused by the mother’s most recent former partner of having fondled or molested his seven-year-old nephew.

12. After a return to the mother’s household in January 2015, there was further discussion, and in May 2015 B returned to live with the maternal grandmother in Sydney and has since remained there.  Indeed, B wishes to remain living there.

13. On 28 May 2015 the maternal grandmother filed a Response, seeking an order for B to live with her and for day-to-day responsibility for decisions about her care. 

14. The matter was set down for hearing in the knowledge that the father would most probably not participate and that the mother and maternal grandmother were not at odds over orders sought.

15. On 5 June 2014 a copy of an Apprehended Violence Order was filed.  That order was made on 12 November 2013 for the protection of B for a period of five years.

16. On 2 June 2014 a Notice of Child Abuse was filed by the mother alleging that G had also sexually assaulted both children.  G was eight years old at the relevant time.  He was nine months older than B and two and a half years older than C. 

17. During the course of these proceedings, tendered into evidence was a record of the Department of Family and Community Services (“the Department”) having inquired into a Risk of Harm Report in relation to both children in November 2010.[1]  The analysis of the issues is stated as follows: 

    There are concerns for [B] (4) and [C] (3), as both children disclosed that their step-sibling G […] has been playing doctors with them and ‘tickling’ their genitals.  [B] did not like this and asked him to stop, so [G] allegedly hit her. 

    The likelihood of harm may be increased, as both children disclosed the incident.  The children’s safety may be increased, as the mother appears to be acting protectively and is not allowing the children to see [G] tomorrow.

    [1] Exhibit 8

18. The mother, through her solicitor, denied having raised that Risk of Harm Report with the Department.  However, it is clear that somebody was concerned about the conduct of the children in the father’s household as early as 2010.

19. Also tendered into evidence were interviews conducted with both the subject children[2], where both were clear to say that there had been sexual contact by both F and G with each of them, and to some extent their younger half-sister, in the father’s household.

    [2] Exhibit 4

20. The father and his partner have apparently always denied that any conduct between G and the two subject children was inappropriate.  The children have certainly disclosed otherwise in their interviews. 

21. In December 2014 a complaint was made by the mother’s most recent former partner, the father of her 12-month-old daughter, about what was perceived to be sexually inappropriate conduct by B with his seven-year-old nephew. That incident has led B to express the view that this man hates her and that she has felt frightened.

22. Accordingly, when the matter came before me, B was living with the maternal grandmother in Sydney and C was living with the mother in the City H area, and spending some time with her three younger half-sisters.

23. Neither of the subject children are presently spending any time with the father or their two younger half-siblings in his household.

The Evidence

1. The documents relied upon by the parties are as follows:

   a)Initiating Application of the father filed 11 March 2014;

   b)Notice of Child Abuse filed by the father on 11 March 2014;

   c)A copy of the final Apprehended Violence Order for the protection of B filed 5 June 2014;

   d)Affidavit of the father filed 11 March 2014;

   e)Amended Response of the mother filed 16 April 2015;

   f)Notice of Child Abuse filed by the mother on 2 June 2014;

   g)Affidavit of the mother filed 2 April 2015;

   h)Affidavit of the mother filed 25 June 2015 in related proceedings;

   i)Affidavit of the mother filed 11 August 2015 in Court;

   j)Response of the maternal grandmother filed 28 May 2015;

   k)Affidavit of the maternal grandmother filed 28 May 2015;

   l)CAPIA prepared by the Family Consultant dated 17 September 2014; and

   m)Directed parts of a Magellan Report prepared and dated 1 June 2015, in the related proceedings.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order, that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. In these proceedings the presumption is rebutted by the father’s withdrawal from the proceedings.  That is not to say he is not interested.  He acted decisively and protectively in July 2013 when he witnessed an assault on B. 

5. However, functional decision-making requires a parent to be able to make decisions about education, health, medicine, religious instruction and those longer term issues that come into parental responsibility. 

6. The Independent Children’s Lawyer proposes that parental responsibility in this matter should be shared by the mother and the maternal grandmother. 

7. It is an appropriate order to seek in my view, with one child living in each household and considerable support and attention being provided by the maternal grandmother not only to the child in her care, but also to the mother and C as well.

8. So the presumption of equal shared parental responsibility between the parents is easily rebutted in these circumstances without reference to the past violence in their relationship or any other matter.

9. There would be benefit to the children in having substantial and significant time with the father, but that is presently not able to happen because the father does not feel that he is able to participate and facilitate that relationship.

10. In the past, the evidence suggests that both children enjoyed good relationships with the father’s partner, and the two younger half-siblings in that household. 

11. Accordingly, the Court is at large to make those orders that appear to best promote the children’s best interests. 

12. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.  I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Primary Considerations

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

1. These children have both had a meaningful relationship with the mother and the father, despite restrictions on capacity caused by both parents having been heavy users of marijuana and the fact that they have engaged in violent argument, if not conflict, in the presence of the children.

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

1. Both children have a compelling need for protection from both physical and psychological harm through exposure to abuse and, to some extent, neglect. 

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. It is apparent that there were adults present in the father’s household at a time when the subject children were being abused by F, but that active supervision was apparently not taking place, despite at least one occasion three years earlier when there was an inquiry by the Department into complaints made by the children about the behaviour of G.

2. The weight to be given to safety is greater than that of the benefit of maintaining meaningful relationships.  Accordingly, what is proposed is that the children continue to live where they are, separated from each other: B with the maternal grandmother; C with the mother.

Additional Considerations

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

1. B has expressed the view that she wants to remain living with the maternal grandmother, that she is happy there, and feels safe. 

2. She has been hurt by the reaction of the mother’s most recent former partner, who has accused her of wrongdoing, and she clearly, although she did not previously fear him, now feels frightened as a result of his reaction. 

3. C has not expressed any particular view, but the options are limited.  By the arrangement of her two parents, she is living with the mother and that should continue.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children have important relationships with each of their parents, the maternal grandmother, the father’s partner, their two half-siblings in the father’s household and their three half-siblings in the mother’s household.  Those children in the mother’s household are not full-time members of the mother’s household, but spend regular time with the mother. 

2. Each of the parents has taken the opportunity in the past to make decisions about the children and to spend time and communicate with them.

3. There was a period post-separation when the children saw very little of the father, but, to their credit, the parents restored those relationships and for a period of time, when she was undergoing difficulties in new relationships, the children left the mother’s household and lived mainly with the father.

1. The relationship became increasingly cooperative between the parents.

2. However, all that changed with the events of July 2013. 

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

1. There has been that further change of circumstance for B in that she is now living with the maternal grandmother and that can be permanent. She misses the mother and C and, at least when she was interviewed by the Family Consultant for the report in the related matter, C was being somewhat cruel in reminding B that she was the one who had the opportunity to see the younger children whilst B was living with the maternal grandmother. 

2. No doubt both children feel the effect of the separation from each other for the first time in their lives.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. There is some practical difficulty and expense for the children spending time with each other and the other households, but it is possible and has happened.

2. There has been travel between Western Sydney and City H for that to happen, and I have no doubt it will continue. 

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of each of the parents is an issue.  Both have used marijuana heavily for most of their adult lives.

2. The father, in the most recent evidence seen by me in 2014, said that he had given up marijuana, probably after the galvanising effect of the assault in July 2013, which has been a great improvement for his family and his ability as a parent.  Likewise, tendered into evidence in these proceedings,[3] were clean drugs screens for the mother on several occasions throughout 2015, which is a considerable achievement.

   [3] Exhibit 5

3. Each of the parents, and particularly the mother, needs assistance to understand the impact on themselves and on the children of violent, aggressive, unstable relationships.

4. The mother has now acknowledged the need for consistent support and exploration of past dangerous relationships and two reports were tendered into evidence which suggest that the mother is taking seriously the need to connect and stay connected with such services.[4]

   [4] Exhibit 6

5. The mother has probably underestimated the impact on the children of repeated changes of school. B, aged nine, has attended eight different schools.  C, at almost eight years of age, only one or two fewer. 

6. This has had a detrimental impact on their ability to learn and make academic progress.  However, there is support by the mother in the order proposed by the Independent Children’s Lawyer for a restraint on the mother and the maternal grandmother from changing the children’s school until they complete their primary education. Of course, when they go on to High School it will be equally important to maintain them at that school.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are girls aged nine and almost eight. They have had severely disrupted lives. 

2. There have been periods of transience in the mother’s life and they have moved on many occasions from house to house and also between their parents.  They have experienced the birth of five half-siblings and they have also been brought into contact with two stepbrothers whose impact on their lives has been severely adverse.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The parents have done their best to provide care for the children, which has been limited at times by their own drug use and difficulty managing relationships. 

Any family violence involving the child or a member of the child’s family

1. The children have undoubtedly been affected by family violence, particularly in the mother’s household where violence with partners has occurred with each new relationship.

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

1. The only current Family Violence Order in place is the one for five years protecting B from F.  That order will expire in 2018 and was made as a result of a conviction in the Children’s Court of F. 

Conclusion

1. It seems in this matter that both children, but particularly B , have gone on being affected by the events in the father’s household, and she in particular will need the consistent support and attention which I am satisfied is on offer in the home of the maternal grandmother.

2. The maternal grandmother was favourably assessed in the Magellan Report prepared in the related proceedings between the mother and her most recent former partner.  She appears to have good insight into the needs of the family, and for the purposes of this decision, of B’s relationship with the mother and C, and perhaps in future the father.

3. The orders proposed by the Independent Children’s Lawyer are for the mother and the maternal grandmother to share parental responsibility for the children, which for the reasons I have already stated I consider appropriate and will be responsibly exercised by the maternal grandmother so as not to overshadow the real efforts that the mother is now making to be fully responsible for the needs of the children.

4. Orders are made accordingly.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 August 2015.

Associate: 

Date:  19 August 2015