Davey and Selby and Anor
[2012] FMCAfam 1112
•3 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVEY & SELBY & ANOR | [2012] FMCAfam 1112 |
| FAMILY LAW – Children – parenting orders – final orders – best interests of the children – parental responsibility – whether parties should have equal shared parental responsibility – sole parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 69ZK |
| Davey & Selby [2011] FMCAfam 524 Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR DAVEY |
| First Respondent: | MS SELBY |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | SYC 1860 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 September 2012 |
| Date of Last Submission: | 3 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Neagle Lawyers |
| The Respondents: | In person |
| Solicitors for the Respondents: | Jennifer Weate & Associates |
ORDERS
All previous parenting Orders are discharged.
The Applicant father is to have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2007.
The children X and Y are to live with the Applicant father.
The Respondent mother is to spend time with the children X and Y as arranged with the Applicant father or at a contact centre nominated by the Independent Children’s Lawyer.
All time spent by the mother with the children is conditional upon the mother producing to the father and to the Independent Children’s Lawyer the result of a supervised urine screen prepared in accordance with the chain of custody protocol within seven (7) days prior to the commencement of the mother’s time with the children.
The parties are to contact a children’s contact centre nominated by the Independent Children’s Lawyer and do all things necessary to complete the intake assessment by the intake officer from the centre within seven (7) days of being advised by the Independent Children’s Lawyer.
The parties are to do all things necessary to facilitate the mother spending time with the children at the nominated contact centre for a period of not less than two (2) hours each fortnight at times nominated by the contact centre.
The Independent Children’s Lawyer is requested to contact the New South Wales Department of Family and Community Services within seven (7) days to endeavour to arrange for the children to spend time with the mother and the child Z at (omitted) Community Services Centre at times and on dates nominated by the Department of Family and Community Services.
All other time spent by the mother with the children is to be supervised by a responsible adult nominated by the father.
The father is to do all things necessary to facilitate telephone calls by the children to the mother on a telephone provided by the mother.
The father is to authorise the principal of any school attended by the children to provide to the mother at her expense copies of all school reports, newsletters, information about school photographs and other documents usually provided by the school to parents of children attending the school.
The mother is not to consume any alcohol or administer to herself any prohibited drug during or for twelve (12) hours before any time she spends with the children.
The appointment of the Independent Children’s Lawyer is extended for a period of three (3) months from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Davey & Selby & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1860 of 2010
| MR DAVEY |
Applicant
And
| MS SELBY |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of two children for final orders that they should live with him and spend time with their mother under supervision. The two children, X and Y, have been living with him since orders were made until further order after a hearing on 28 April and 7 May 2011 (Davey & Selby & Anor[1]).
[1] [2011] FMCAfam 524
The mother did not attend the hearing. She had been legally represented, but that representation ceased well before the scheduled date of the final hearing. As was noted in the earlier decision, the mother attended an interview for a Family Report prepared by a Family Consultant. The Family Consultant noted the interaction between the children and each parent, expressed certain concerns about the socialisation of the children and their speech delay, and the inappropriate interaction between the child X and any adult other than her parents. The Family Consultant expressed concern that the mother had withdrawn X from pre-school, although the pre-school had been aware of the child’s speech delay and had formulated a plan to deal with the delay.
The Family Consultant notified the Department of Human Services about her concerns for the children in their mother’s care. She also recommended that a child and family psychiatric assessment should be obtained to assess whether there were any factors present in either parent which would impact on their ability to fulfil their parenting responsibilities.
Dr R, a child, adult and family psychiatrist, was appointed as an Independent Expert. Dr R was unable to persuade the mother to take part in the assessment when he telephoned her. The mother made a number of allegations about the father having had a sexual relationship with his sister and his brother-in-law but said that she had no intention of attending the interview.
On 7 May 2011 the Court made a number of orders until further order, providing that:
a)the father should have sole parental responsibility for the two children;
b)the children should live with him;
c)the mother should not spend time with the children except for supervised time at a contact centre;
d)a Recovery Order should issue to deliver the children to the father;
e)the father was to enrol the child X at pre-school and enrol Y at a child care centre;
f)the father was to participate in the Brighter Futures program run by the Department of Human Services;
g)both parents should submit to urinalysis to determine the presence of illicit drugs;
h)the father was restrained from consuming illicit drugs when the children were in his care or for 48 hours beforehand; and
i)the Application was to be adjourned for mention on 7 May 2012.
Background to the Present Application
The mother, the father and the Independent Children’s Lawyer attended Court on 7 May 2012. The mother was represented by a lawyer from Legal Aid NSW on an amicus curiae basis. The mother was directed to file and serve a Response and an affidavit by 14 June, which she failed to do.
On 18 June 2012 the mother attended Court without legal representation. She was again directed to file and serve an affidavit and the parties were ordered to attend a Child Dispute Conference with a Family Consultant. The mother filed a short affidavit that day.
The mother failed to attend the Child Dispute Conference, which was scheduled for 6 July 2012. On 16 July 2012 a further order was made for the parties to attend a Child Dispute Conference, which was scheduled for 30 July.
The mother did attend that conference, but, according to the Family Consultant, arrived 40 minutes late, by which time the father had been sent away.
As a result, the Court has two memoranda from the Family Consultant, one from 6 July, setting out the father’s account, and the other from 30 July, containing the mother’s account.
The Application was listed for hearing on 3 September 2012.
Evidence
The father relied on the documents from the earlier proceedings, along with:
a)a Further Amended Initiating Application;
b)his affidavit of 2 May 2012; and
c)an affidavit by his sister, Ms D.
Neither the Applicant nor his sister was required for cross-examination.
The Respondent mother relied on two affidavits, the first of which was affirmed on 18 June. The second affidavit was unsworn but was accepted into evidence despite this deficiency.
The Independent Children’s Lawyer tendered a copy of a letter to the mother dated 18 July 2012, reminding her of the need to file an affidavit and to attend the Child Dispute Conference of 30 July. The letter also stated:
Finally, I request that you attend a pathology laboratory for urine testing for illicit drugs, under approved chain of custody procedure, within 3 days of the date of this letter. When you receive the results please send them to this office.
No drug test report was produced by the mother.
The mother gave oral evidence and was cross-examined.
It is the father’s evidence that the children have been in his care since 13 May 2011. They have had no contact with their mother, although the father tried to organise for the mother to spend time with them. X has commenced at Kindergarten and Y is attending pre-school five days a week.
The father raised the fact that the Department of Family and Community Services has removed the mother’s elder daughter, Z, from her care and placed that child with the maternal grandparents. There was no contact between Z and the children Y and X between May 2011 and January 2012 but the Department of Family and Community Services has facilitated three or four visits since January, the last one being after Easter.
The father has submitted to urinalysis drug testing, with negative results, but the mother has not complied with any requests to undertake drug testing.
The mother states in her affidavits that she seeks to have X and Y returned to her care. She also stated that she wanted the Court to order that Z should be returned to her, but it was explained to her that this Court has no jurisdiction to make that order.
The mother is reported by the Family Consultant as saying that she is now estranged from her own mother and other members of her family. She did not see that her continued use of marijuana and alcohol impacted in any way on her ability to recognise and meet the children’s needs. She reiterated her earlier claims about the father having incestuous and violent relationships with other members of his family.
The mother told the Family Consultant that she had not had any contact with the two children for a year because she thought it would upset them to see her and then have to say goodbye, a statement she repeated in her oral evidence.
The mother also told the Family Consultant that she did not feel that professional assistance or counselling of any kind would assist her in any way. She gave no real indication that she would contact the (omitted) Contact Centre in order to commence seeing the children. She had not spoken to the father or had contact with him outside recent court events, and did not think that this would ever change.
The Family Consultant’s Opinion
Under this heading in her Memorandum to the Court dated 30 July 2012, the Family Consultant expressed these views:
·Any consideration to changing parenting arrangements would need to be made with reference to information supplied by Family and Community Services.
·There is no doubt that the mother loves her children but it is difficult to see how, at this stage, it would be in the best interests of the children to undergo further disruption to their lives, without the mother showing a greater change of circumstances and a greater commitment to engaging in appropriate professional circumstances.
·It would be of some benefit to the children if they were able to some contact with their mother at a professional contact centre.
·The parties might wish to contact (omitted) Community Services Office to ascertain whether X and Y could attend with Z when Z spends time with the mother.
The Relevant Law
The Objects of Part VII of the Family Law Act 1975 are set out in subsection 60B of the Act and the principles underlying those objects are set out in subsection 60B(2).
The Family Law Act provides at s. 60CA that a Court must regard the best interests of the child or children concerned as the paramount consideration when deciding to make a parenting order affecting the child or children concerned. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
It has been held that the objects and principles contained in s. 60B provide “the context in which the factors in s. 60CC are to be examined, weighed and applied in the individual case” (Goode v Goode[2]at [10]).
[2] [2006] FamCA 1346; (2006 36 Fam LR 422; FLC 93-286
When making a parenting order, the Court is required by subsection 61DA(1) of the Family Law Act to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for the children. This presumption does not apply in cases of child abuse or family violence (s. 61DA(2)) and may be rebutted by evidence that satisfies the Court that it would not be in children’s best interests for their parents to have equal shared parental responsibility.
Section 61DB of the Act provides that if the Court has made an interim parenting order, as it has in this case, when making a final parenting order the Court must disregard the allocation of parental responsibility made in the interim order.
If the Court orders that a child’s parents should have equal shared parental responsibility, the Court is required by subsection 65DAA(1) to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent.
If the Court does not make that order, it is required by subsection 65DAA (2) to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent.
All of the above matters have been considered.
Conclusions
These proceedings concern the parties’ two children, X and Y, who have been living with the father since 13 May 2011, as a result of the Orders of 7 May 2011. The mother seeks their return to her.
The mother also seeks an order that her older daughter, Z, be returned to her, although it has been explained to her that the Court has no jurisdiction to do this, because the orders affecting Z were made under the law of New South Wales (Family Law Act, s. 69ZK). The Applicant is not the father of Z. The mother would need to apply to a court having jurisdiction under the law of New South Wales for an order relating to Z.
The best interests of X and Y must be the paramount consideration. It appears from the evidence that the children have done well over the past year and four months in the care of their father, who has enrolled X in Kindergarten and enrolled Y in pre-school.
The Family Consultant, in her Memorandum to the Court of 30 July 2012, raised a concern about further disruption to the children’s lives in being returned to the care of their mother, and queried whether such a step would be in the children’s best interests without the mother “showing a greater change of circumstances and a greater commitment to engage in appropriate professional services.” The evidence, including the mother’s own evidence, is clear that the mother has continued to use marijuana and alcohol and has become more isolated than before.
Whilst it is of benefit to the children to have a meaningful relationship with both of their parents, and it is astonishing that the mother has deliberately refrained from seeking to have any communication with the children throughout the period of one and a third years whilst they have been living with their father.
The mother’s lack of insight about the need for her to engage professional help in respect of what appear to be her ongoing mental health issues and her failure to understand the detrimental effect of her continued use of alcohol and marijuana raise serious concerns about the need to protect the children from physical and psychological harm from being subject to abuse or neglect in the care of their mother. It is a matter of concern that the New South Wales Department of Family and Community Services has seen fit to remove the mother’s child Z from her care. No such concerns apply when the children X and Y are in their father’s care.
The children are too young for their views to be expressed specifically. The Independent Children’s Lawyer, Ms W, has submitted that it would be in the children’s best interests to remain in the care of their father.
The father appears to have a loving relationship with each of the children. Whilst it appears that the mother loves the children, her decision not to see them for over a year does not support the proposition that the mother has a close and loving relationship with them
The father has become the children’s primary caregiver and the evidence shows that he has taken steps to carry out this role to the best of his ability. He enrolled them in school and pre-school and has enlisted the help of his sisters Ms J and Ms A to help him care for the children.
On the other hand, the mother has clearly failed to take the opportunity to:
a)participate in making decisions about major long-term issues in relation to the children;
b)spend time with the children; or
c)communicate with them for over a year.
The father has become the children’s primary caregiver. There is no evidence that the mother is taking any action to maintain the children.
The likely effect on the children of removing them from the care of their father and returning them to the care of their mother would be detrimental to them. As the mother seems not to have progressed at all since May 2011, the likelihood is that she would resume her previous practice of not allowing the children to spend time wit their father. It is unlikely that she would have any more regard to the children’s educational needs and their need to socialise with other children than she did before.
There would be no practical difficulty in the children spending time with the mother and communicating with her, except for the fact that the mother has chosen to have no communication with the father at all, nor has she taken any steps to avail herself of the opportunity to spend time with the children at a contact centre.
The father has shown over the past year and four months that he has the capacity to provide for the needs of the children, including their intellectual needs. However, the mother has not taken any steps to do so.
The children are still quite young. X is a little girl who was born on (omitted) 2007, so she is five years and seven months old. Y is a little boy who was born on (omitted) 2008. He is four years and two months old. There are no specific ethnic or cultural issues that need to be considered.
The children are not of Aboriginal or Torres Strait Islander background.
The father appears to be taking a serious attitude to the responsibilities of parenthood, but the mother lacks insight into the difficulties of being a responsible parent, due to her continued use of alcohol and an illicit drugs.
There are no current allegations of family violence or any current family violence orders.
It would be preferable to make the order that will be least likely to lead to the institution of further parenting proceedings. There need to be final orders to give these children some stability, and it appears that the children will benefit from remaining in the care of their father. Ideally, they should be spending time with their elder sister Z, and arrangements should be made with the Department of Family and Community Services so that the children can spend some time together.
It is in the best interests of these two children that they should continue to live with their father and have supervised time with their mother.
It seems clear that the father should have sole parental responsibility for the two children. On the mother’s own evidence, she has not seen or communicated with the children for over a year, nor has she had any dealings with the children’s father apart from these proceedings. There is no communication between them, so equal shared parental responsibility would be entirely unworkable.
The father will have sole parental responsibility for the children.
The appointment of the Independent Children’s lawyer will be extended for a period of three months.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 17 October 2012
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