Dallas and the Director General, Department of Communities, Child Safety and Disability Services & Ors

[2017] FamCA 1048

FAMILY COURT OF AUSTRALIA

DALLAS & THE DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES AND ORS [2017] FamCA 1048

FAMILY LAW – CHILDREN – Undefended Hearing – Where maternal grandmother seeks sole parental responsibility and for the child to live with her – Where the mother nor the father seek any orders – Where the department removed the child from the mother and father and placed into the care of the maternal grandmother – Where the child has been in the care of the maternal grandmother since November 2015 –Where the child has not spent time with the father since April 2016 – Where the father has not engaged in these proceedings – Where the father has likely caused emotional harm to the child –Where the mother poses a risk to the child in her sole care – Where the mother has spent time with the child supervised by the maternal grandmother – Where the department consents to the orders sought by the maternal grandmother – Where child to live with maternal grandmother and spend time and communicate with each parent as agreed by maternal grandmother and parents.    

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431

APPLICANT: Ms Dallas

FIRST RESPONDENT: The Director General, Department Of Child Safety And Disability Services

SECOND RESPONDENT: Ms Longley

THIRD RESPONDENT:	Mr Burton
FOURTH RESPONDENT	Mr Wallace

FILE NUMBER: TVC 427 of 2016

DATE DELIVERED: 15 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns (by video link to Townsville)

JUDGMENT OF: Tree J

HEARING DATE: 24 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mayes

SOLICITORS FOR THE APPLICANT: Wilson Ryan & Grose

SOLICITORS FOR THE FIRST

RESPONDENT:

The Department of Communities, Child Safety and Disability Services

THE SECOND RESPONDENT: No appearance

THE THIRD RESPONDENT: No appearance

THE FOURTH RESPONDENT: No appearance

Orders

1. All previous parenting orders are discharged.

2. This Order is to come into effect upon the child A born … 2009 (“the child”) ceasing to be under the care of the chief executive, Department of Communities, Child Safety and Disability Services.

3. The child is to live with Ms Dallas (“the applicant”).

4. The applicant is to have the sole parental responsibility for the child.

5. The applicant is to advise Ms Longley and Mr Burton (“the parents”) of the decisions which she has made and/or intends to make, in the exercise of her sole parental responsibility for him.

6. The parents are to communicate with and spend time with the child as agreed between the applicant and the parents.

7. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

8. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dallas & the Director General, Department of Communities, Child Safety and Disability Services and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS (BY VIDEO LINK TO TOWNSVILLE)

FILE NUMBER: TVC427/2016

Ms Dallas

Applicant

And

The Director General, the Department of Communities, Child Safety & Disability Services, Ms Longley, Mr Burton And Mr Wallace

Respondents

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings, as ultimately pressed by Ms Dallas (“the maternal grandmother”) concern only one of three sibling children, who are in her care, namely A, born in 2009, and hence presently 8 years of age (“the child”).  There are four respondents to the maternal grandmother’s application.  The first respondent is the Department of Communities, Child Safety & Disability Services (“the Department”); the second is Ms Longley (“the mother”); the third is Mr Burton (“the father”); and the fourth is Mr Wallace, who is the father of the other two children in the maternal grandmother’s care.  The mother is the mother of all three children.

2. The maternal grandmother sought orders that the child live with her, and that she have sole parental responsibility for him.  She further sought orders that the mother and father “communicate with and spend time with the child as agreed between” the maternal grandmother and the parents.  The Department and the mother agree to such orders being made.  The father has not involved himself in these proceedings, and has in the past expressed a disinclination to have a relationship with the child.

3. In consequence of the non-engagement of the respondents other than the Department, the matter proceeded to an undefended hearing, and on 24 November 2017 I made orders as sought by the maternal grandmother, for reasons to be published.  These are those reasons.

BACKGROUND FACTS

1. The maternal grandmother was born in 1967, and hence is presently 50 years of age.  The mother was born in 1991, and hence is presently 26 years of age.  The father was born in 1987, and hence is presently 30 years of age.

2. The mother and father started a relationship in 2008 when the mother was 17 years of age, and the father 21.  At the time the mother was living with the maternal grandmother, and the father moved in with them.  The mother fell pregnant in March 2009 and gave birth to the child later in that year.

3. In February 2010 the maternal grandmother moved in to live with her partner, and the mother, father and child remained at the previous address.  However not long afterwards the mother, father and child moved in with the maternal grandmother as well, because they could not financially afford separate accommodation.

4. In March 2010 there was a disturbing episode at the maternal grandmother’s home, on an occasion when the father and the child were the only persons there.  The maternal grandmother says that the father was upset that the mother had chosen to go out without him.  Upon her returning home, the mother found her kitten lying in a hallway unable to walk, and found her laptop computer was smashed.  The father denied any responsibility, but plainly he is the likely culprit.

5. A few months later the mother and father separated, with the father moving out of the home.  The father spent occasional time with the child at his new home.

6. In November 2010 the father had an argument with his brother and that brother’s partner.  During this argument, the father rammed his car through their front fence, so that it pushed his brother’s partner’s car into the front of the home, whilst two children were just inside the front door.  The father faced criminal charges in relation to that.

7. In June 2011 the father and mother reformed their relationship.  The mother and the child moved into the house where the father was living.  However the next month one of the mother’s girlfriends advised her that the father had sexually propositioned her, which led to their resumed relationship terminating.  However before the father left the home, he vandalised the mother’s car by jumping on its roof and bonnet, and kicking in every panel on the driver’s side of the vehicle.  Again this was reported to police, and charges were laid against the father.  A domestic violence order was applied for, and granted, protecting the mother.

8. In September 2011 the mother started a new relationship with Mr Wallace.  Two children, E born in 2012 and F, born in 2015 ensued.  However the relationship appears to have been marred by domestic violence and extensive drug abuse, such that by late 2014 or early 2015, it can safely be concluded that the mother was addicted to drugs.

9. Between September 2011 and November 2012, the father would periodically visit the child from time to time, but did not have him in his overnight care.

10. In January 2012 the mother and child moved back in to live with the maternal grandmother, although it seems likely that the mother’s relationship with Mr Wallace continued spasmodically.

11. Then on 2 November 2012, the father commenced spending every second weekend with the child.  That was formalised by consent orders made in this court on 7 November 2012, which saw the child live with the mother, but spend alternate weekend with the father, with such orders to be reviewed at 30 November 2013.

12. On 24 January 2013 the father obtained a protection order against the mother.  On 1 June 2013 during a telephone call between the father and mother, on an occasion when the father was caring for the child, he advised the mother that the child was out of control, and that the father hated the child and wanted to kill him.

13. On 14 June 2013 the father ceased spending time with the child.  That was followed on 10 November 2013 by the father sending by mail, a change of name application to the mother, to change the child’s surname to the mother’s, on the basis that he no longer wanted to be a part of the child’s life, and wanted the child to assume the mother’s maiden name.

14. On 27 November 2013, during the course of a protection order hearing, the father told the court that he no longer wished to be a part of the child’s life, and that the child was already dead to him.  Notwithstanding that, on 16 March 2014 the mother initiated the father again spending time with the child, and from June 2014 the father was spending every second weekend with the child again.

15. On 14 August 2014 the Department intervened in relation to all of the mother’s children, due to concerns of domestic violence in the relationship between the mother and Mr Wallace. The Department placed the children in the maternal grandmother’s care.

16. Between August and November 2014 the child spent no time with the father.  In January 2015 the safety plan initiated by the Department lapsed, and it appears that the children all moved back into the mother’s care.

17. At some stage which the evidence does not disclose with specificity, the father again commenced to spend time with the child.  However on 16 January 2015, within an hour of changeover, the father rang the mother, asking her to collect the child, saying that he was a “spoilt little cunt” and that he did not want him.  The child then got on the phone and begged the mother to collect him, asserting that his father was going to drill him through the wall if he stayed.  The father then again ceased to spend time with the child.

18. Notwithstanding that, in September 2015 the father telephoned the child’s school, asking for the Father’s Day present that the child had likely made for him.  However at about this time the father told the mother that he didn’t want to see the child on Father’s Day, as it caused too much trouble for the child to be a part of his new family.  In fact the child attempted to contact the father on Father’s Day, but the father did not answer the call.

19. On 20 November 2015, all three of the mother’s children were again placed with the maternal grandmother by the Department, pursuant to another safety plan.  That plan permitted the father to spend time with the child for two hours each Monday and Wednesday, with some of that time supervised.  It appears as though that occurred at least intermittently, and perhaps regularly.

20. On 9 January 2016 the child returned from one of those visits to the father with a large bruise on his left hip.  He told the maternal grandmother that the father’s partner’s children caused it, by throwing a toy at him.

21. Throughout this period the mother was spending time with and visiting the child, but that was cancelled by the Department in January 2016, after the mother attended one of those visits under the influence of drugs.  Thereafter the Department insisted upon strict supervision of all visits between the mother and the children, although many of those subsequent proposed visits were cancelled by her.

22. On 9 March 2016, the child made a disclosure to the maternal grandmother that he had watched a movie with a graphic sex scene with the father, and that the father had an erection and was masturbating in front of the child.  It does not appear as though the subsequent police investigation saw any action taken against the father.

23. In about April 2016 the child commenced to indicate that he no longer wished to visit his father, and from 20 April 2016, the child has indeed neither spent time nor communicated with him.

24. On 10 May 2016 these proceedings were commenced.

25. Since then the mother has continued to be troubled by her drug addiction.  Whilst she regularly spends time with the children supervised by the maternal grandmother, on a daily, or almost daily, basis, on occasion the maternal grandmother has asked the mother to leave, believing that she was adversely affected by drugs.

26. In 2017 the mother gave birth to a fourth child, a daughter called D.  The Department is involved in relation to that child, and there is a safety plan which provides that, in the event the mother intends to use drugs, then D is to be placed with either the maternal grandmother or the maternal great grandmother.

27. As at the time of the hearing before me, the three children have been in the maternal grandmother’s care since 20 November 2015, pursuant to action by the Department.  The child has not seen nor communicated with the father since April 2016.  The child is regularly spending time with the mother, supervised by the maternal grandmother.

28. The father’s position in relation to the child appears to be that he wants nothing more to do with him.  Although there is no date on them, annexed to the maternal grandmother’s affidavit filed 10 May 2016 was a text message exchange between the father’s new partner, Ms B, and a friend of hers.  Amongst other things in that exchange Ms B said in relation to the child “we can’t do shit with [the child] its pointless really I’m focussing my energy on him when I should be on my kids we are not really interested in going for custody or anything that means we are stuck with her [presumably the mother] and her family forever then.”  Later she said “Nah because [the father] will have nothing to do with him if Child Safety aren’t willing to help us then no point her mother will always have more of a say.”

29. The maternal grandmother’s affidavit filed 15 November 2017 provides some updating, including (at [49]) the unfortunate fact that:

    From 7 October 2017 to present [the mother] has instigated very little contact with the children.  [The mother] has returned to spending days on end with friends and then sleeps for up to three days when she returns home to my mother’s address where [the mother] also lives.

30. As at the time of the trial, it appears as though Mr Wallace is incarcerated, as apparently he is prone to be from time to time.  The maternal grandmother believes that Mr Wallace has a chronic drug addiction, as does the mother, and that he has used drugs in the presence of the children, and has been physically violent to the mother on many occasions.  She is worried that the mother will continue to have a relationship with Mr Wallace.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that 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 either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

SECTION 60CC CONSIDERATIONS

1. It seems likely that the child would benefit from having a meaningful relationship with both of his parents.  It appears as though, at least until last month, he did have a meaningful relationship with his mother, albeit that it was necessary to maintain supervision of her time with the child because of the risks which she poses to him, namely of being under the influence of strong drugs, or as being the victim or perpetrator of family violence.

2. As to the father, whilst in theory it is likely that the child would benefit from having a meaningful relationship with him, unfortunately the father seems to have vacillated between engaging with, and then abandoning, the child, which is likely to have caused the child confusion, and perhaps emotional harm.  Obviously if the only way in which the relationship can be enjoyed with the father is by effecting emotional harm on the child, the benefits which would otherwise be conferred are obviated.

3. There is plainly a need to protect the child from psychological harm and physical harm from the father, at least on the reports in the evidence, and to protect the child from the risks which the mother poses to him.  These particularly include the mother’s drug addiction, and her engagement with persons also addicted to drugs.  Unfortunately it also appears as though physical violence is a feature of the mother’s life, both as a perpetrator and victim.

4. There is no independent expression of views by the child in this case in the evidence.

5. It is likely that the child has a reasonable relationship with his mother, but a poor relationship with his father.  He plainly has an excellent relationship with the maternal grandmother, who has, in reality, assumed the parenting responsibilities for him.

6. Interestingly, the child has a good relationship with his uncle, (i.e. the maternal grandmother’s son) who was born a couple of weeks after him, and lives in the same household.  It is said that they have had a strong relationship all of their life.  It is likely that the child sees that uncle more as a brother.

7. Neither the mother nor father have a good track record in relation to the child.  Serious criticism needs to be made of the father in relation to his abandoning the child from time to time, including to the point of saying to a court that the child was dead to him.  Whilst less criticism can be validly made of the mother, plainly she has prioritised her drug addiction over being a parent.

8. There is no evidence of the payment of child support by the father.

9. If the child were to continue to live with the maternal grandmother, there is no likely adverse effect on him.

10. It is to be doubted that either of the parents of the child have the capacity to provide for the needs of the child.  Of course it appears as though the father has the capacity to provide for the physical needs of the child, but it may be doubted that he has any capacity to emotionally nurture him.

11. Both of the parents have shown appalling attitudes to parenthood, as discussed.

12. There has been family violence between the parents, and between the mother and her partner from time to time.  Family violence orders have applied, but the only inference I can draw from that is that the mother is frequently associated with violent people, and is a perpetrator herself.

13. The mother has sworn an affidavit relied upon by the maternal grandmother, in which she says that she is content with the order which the maternal grandmother seeks.  She says:

    I understand that if the orders are granted she will be the one that arranges for me to communicate with and spend time with [the child].  That means whether and when I spend time with [the child] would be a decision that mum makes, that it will be up to her.  I know that she will always love and protect the kids and I trust her to do that.  Also, that she will keep me advised of decisions that she makes about [the child’s] welfare.

    This has been the way things have been between us for some time, at least since early 2016.  I know that she will always support me spending time with the kids when I am in a good place, and I know that no matter what happens she tells kids that I am their mum and I love them.

    I know that mum will also have to decide whether and when [the child] spends time with his father [Mr Burton].  I know that is how it has to be to do what’s best for [the child]. 

14. The Department likewise consents to the orders which the maternal grandmother seeks.

PARENTAL RESPONSIBILITY

1. The mother does not seek allocation of parental responsibility, no doubt because she recognises the truth, namely that so long as she remains addicted to drugs, she is not a potential candidate for it.  The father has not sought to engage in these proceedings at all.  He has, in my view, likely emotionally harmed the child by his interactions with him in the past, and regards him as a burden rather than a blessing.  He likewise is not a candidate for parental responsibility in those circumstances.  There is thus only one live candidate for parental responsibility, and that is the maternal grandmother.  I am satisfied that she loves the child, together with his siblings, and has their best interests at heart.  I am well satisfied that it is in the child’s best interests that she have sole parental responsibility for him, although I accept that she should be obliged to advise the mother and father or decisions which she makes in the exercise of that parental responsibility.

WITH WHOM SHOULD CHILD LIVE

1. Likewise there is no other candidate than the maternal grandmother for the primary residence of the child.  Other than before separation, the child has never lived with the father, and one could not seriously countenance the mother as a potential primary resident parent, so long as she remains as troubled as she is.

2. Sadly, the father appears to have abandoned the child, and wishes nothing more to do with him.  Worse, in the past he has vacillated between abandonment and rekindling the relationship, which is likely to have harmed the child.  He is effectively disqualified as being a candidate for primary residence of the child, notwithstanding that there appears to be no risk factors attaching to him of the kind which attach to the mother.

3. I am well satisfied that the child should continue to live with the maternal grandmother, as he has since 20 November 2015.  It is likely that he considers that his home, and obtains nurture, comfort, love and support from her and the other children living in the home.

TIME AND COMMUNICATION WITH PARENTS

1. The mother is agreeable to the maternal grandmother being, in effect, the gatekeeper of the relationship between the child and herself.  The father seeks to have no involvement in the proceedings.  The maternal grandmother seeks not to curtail the relationship between the child and the parents, but rather for her, by agreement to determine with them as to when and where and in what circumstances the child should spend time and communicate with his parents.

2. In my view that is the only workable arrangement.  Not only does the mother agree to it, but the father has not engaged in these proceedings to litigate for any alternative scheme.  It appears likely that he will remain out of the child’s life, and continue his abandonment of him.  The only feasible orders are that the time which the child spends or communicates with his parents is by agreement, with the maternal grandmother.   As sad as that outcome is for the child, it is the only workable arrangement, and thus in the child’s best interests.

CONCLUSION

1. For these reasons I made the orders which I did on 24 November 2017.         

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 15 December 2017.

Associate:

Date: 15 December 2017