DAVEY & SELBY
[2011] FMCAfam 524
•7 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVEY & SELBY | [2011] FMCAfam 524 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – where respondent did not attend Court – parental responsibility – recovery order. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G |
| Applicant: | MR DAVEY |
| First Respondent: | MS SELBY |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | SYC 1860 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 28 April & 7 May 2011 |
| Date of Last Submission: | 7 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Conte-Mills |
| Solicitors for the Applicant: | Neagle Lawyers |
| The First Respondents: | No Appearance |
| Counsel for the Second Respondents: | Ms Clifford |
| Solicitor for the Second Respondents: | Jennifer Weate & Associates |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:
That the father have sole parental responsibility for the children X (“X”) born (omitted) 2007 and Y (“Y”) born (omitted) 2008.
That the children live with their father.
That the mother shall not spend time with the children except for the supervised time provided for in accordance with these orders.
That the parties forthwith contact (omitted) Children's Contact Centre (tel: (omitted)) and do all things necessary to complete the intake assessment by the intake officer from the Centre within 7 days of today’s date.
That the parties forthwith do all things necessary to facilitate the mother spending time with the children at the contact centre for a period of not less than two hours each fortnight and preferably two hours each week such time not to take place before 6 June 2011.
That the parties share equally any costs payable to the contact centre for facilitating the children spending time with their mother.
That a recovery order issue today directed to the Marshal of the Family Court of Australia and to all officers of the (omitted) and to all officers of the (omitted) of the States and Territories of Australia requiring them to return the children X born (omitted) 2007 and Y born (omitted) 2008 to the father and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises of place in which there is at any time reasonable cause to believe that the said children may be found.
That within 7 days of the making of these orders the father contact (omitted) Preschool and do all things necessary to complete an application to enrol X at the preschool for at least two days each week and provide the preschool with a copy of these orders.
That within 7 days of the making of these orders the father shall contact (omitted) Child Care or (omitted) Preschool and do all things necessary to complete an application to enrol Y at the (omitted) Child Care Centre or (omitted) Preschool for at least two days each week and provide the child care centre with a copy of these orders.
That within 7 days of the making of these orders the father contact the Brighter Futures program offered by the Department of Human Services and request that he be permitted to participate in that program. For this purpose the father is to provide the workers in the Brighter Futures program a copy of these orders.
That the father and mother within 24 hours of receiving notice from the Independent Children’s Lawyer attend upon a pathology laboratory and submit to urinalysis such urinalysis to be conducted in accordance with Australian and New Zealand Standard 4308:2001 procedure for the collection, detection and quantification of drugs of abuse in urine and forward the results immediately upon receipt to the Independent Children’s Lawyer.
That the father shall not consume alcohol or illicit drugs when the children are in his care or for 24 hours before the children come into his care.
That the Independent Children’s Lawyer be permitted to send a copy of these orders and the Report of Dr R to the Department of Human Services and the father’s drug counsellor, Dr S.
That the father shall attend such further appointments as recommended by his drug counsellor and comply with any recommendation made by his drug counsellor.
Liberty to restore on 48 hours notice to the parties and to the Court.
That the matter be adjourned to 7 May 2012 for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Davey & Selby 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
(Revised from Transcript)
This is a case that has caused the Court a great deal of concern. It deals with the father’s application for parenting orders in respect of two children, X who was born on (omitted) 2007 and Y who was born on (omitted) 2008. The children are currently in the care of their mother who is the respondent to this application. The mother has not attended court, notwithstanding the fact that this is the second day of a final hearing. Indeed, the mother has effectively withdrawn from the entire court process. The father had originally sought orders which would allow him to spend time with the children and those orders were opposed by the mother.
She was originally legally represented, although that representation has long since ceased and it was a feature of the mother’s opposition to the father’s involvement with the children that she accused him of involvement in sexual matters which, had they been proven, would have caused the Court considerable concern. It was the mother’s view that the father had inappropriately touched the mother’s daughter, Z, who is the half-sister of these two children. More bizarrely, the mother has accused the father of having been involved in an incestuous relationship with another family member which produced a child. No evidence has been produced in support of any of these allegations. Indeed, the father and members of the father’s family have strenuously denied these allegations.
The father’s mother, who was described as having made statements concerning the father’s involvement in this incestuous relationship, has strenuously denied having made such statements. There is no evidence before the Court in support of these allegations. Nevertheless, the evidence that the Court does have indicates that the mother, when last spoken to, firmly adhered to those beliefs. The mother, as I said, was legally represented but that legal representation ceased. The mother’s involvement in the Court proceedings has ceased. The concerns that have been raised in respect of the father involve a history of illicit drug use and alcohol abuse. It was also raised that the mother had involved herself, and continued to involve herself, in administering the drug cannabis to herself on a regular basis. Interim orders were made requiring the parties to submit to urinalysis for the purpose of detection of those drugs in their system.
The father complied; the mother did not. The compliance of the father has led to drug analysis reports indicating that the father is as good as his word in that he has ceased involving himself in the use of illicit drugs. The father also says that his consumption of alcohol has significantly reduced, although he has given evidence of consuming on a weekend up to six standard drinks. The Court would be concerned if the father had two young children in his care after he had consumed six standard drinks. Orders were also made for the father to spend time with the children at a contact centre under supervision and then by collecting the children from the mother’s residence. The father spent time with the children at the contact centre but then the mother unilaterally ceased making the children available.
There is evidence before the Court from the contact centre supporting the father’s claim that his interaction with the children was positive and appropriate. Nevertheless, the mother ceased her compliance with that order and an explanation was given that she did not wish the children to become attached to the father because, in her view, eventually he would not see the children at all. The father has attended the mother’s residence in order to spend time with the children. There is evidence that the children had not been made available and the mother has used abusive language towards him and sent him away. A family report was ordered under the provisions of section 62G of the Family Law Act. This report was conducted by a family consultant at this registry, Ms B.
The mother brought the children and herself to the venue where the interviews were conducted and submitted to an interview with the family consultant. The father also attended. The family consultant noted the interaction between the children and each parent, expressed certain concerns about the socialisation of these children and their speech delay, and the somewhat inappropriate interaction between certainly the child X and any adult in that she appeared to be indiscriminately interacting with any adult in the way that she did with her parents. A concern was expressed in the family report that the mother had withdrawn the child X from the pre-school which she was attending, although the pre-school was aware of the child’s speech delays and had formulated a plan to assist in dealing with that.
The family consultant had such concerns for the welfare of the children that she made a notification to the Department of Human Services, formerly known as DOCS. She also recommended that a report be obtained from a child and adult psychologist and a report was obtained from Dr R. The mother elected not to involve herself in Dr R’s report process, although he telephoned her and endeavoured to persuade her to involve herself. Dr R, who gave evidence to the Court, indicated that the mother had said that there was no point in her being involved in the assessment with Dr R as the final decision would be made by the judge. The mother was dealt with by one of my colleagues for contravention of the earlier orders and the contravention was found proved. The mother was placed on a bond.
It would appear that she may have contravened that bond. I am not disposed at this stage to deal in any depth with the contravention matters, and I think that they can go over until final orders are to be made. The application for parenting orders brought by the father was listed for final hearing and it was for final hearing on the 28th and 29th of this month. The mother did not attend. I took the view that the proceedings should commence. I heard evidence from the father and from the father’s sister, Ms D, both of whom were cross-examined. I heard evidence from Dr R.
The matter was adjourned until today and I heard evidence from the father’s mother, Mrs D, and from the family consultant, Ms B. I am satisfied that the mother has been properly informed of the proceedings on each date and she has not attended. No one has attended on her behalf, no message has been received indicating an inability to attend. The mother has just chosen to absent herself from the proceedings. The orders that are now sought by the Independent Children’s Lawyer, and consented to by the father, involve far more drastic orders than the father originally sought. They involve sole parental responsibility to the father, an order that the children live with the father, an order that the mother should not spend time with the children except for supervised time, and that a recovery order issue to remove the children from the mother and place them in the care of the father.
He has proposed that that situation continue for a period of up to 12 months. Clearly, there are concerns. Ms B in her evidence today expressed the view that being removed from the care of the mother who has been the children’s primary attachment figure would cause the children a considerable degree of trauma and distress, and it would take them some while to deal with that issue. It is also a matter of concern, which Ms B raised, that the father was an inexperienced parent, although she conceded that that was not from want of trying but because of the fact that the mother had excluded him from the parenting role. The Court is now asked to make interim orders which will change the situation quite significantly. It is, of course, well established under the Family Law Act that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by having regard to the matters set out in subsections (2) and (3) of section 60CC of the Family Law Act. The Court must also consider the matters in subsections (4) and (4)(a). The Court must consider the question of parental responsibility, noting that section 61DA of the Act requires the Court when making a parenting order to apply a presumption that it is in the best interests of the children concerned for their parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parent has engaged in abuse of the child or family violence, and the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The Court is being asked to make interim orders and subsection 3 of section 61DA provides that when the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. In my view, before making a decision about parental responsibility on an interim basis, the Court must consider what is in the children’s best interests. The primary considerations are the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The mother’s argument as set out in her response and affidavit, and indeed, as shown by her actions to date would involve the children in having no meaningful relationship with their father at all. I am not satisfied that that would be of benefit to the children. The mother claims that the children would be exposed to harm from the father because of what she considers to be his history of inappropriate sexual behaviour. The concern, however, is that there is evidence not of the risk of harm from the father but of psychological harm at the hands of the mother. It is a matter of concern that on the evidence available to the Court that the mother has persisted in regular use of the drug marijuana. It is also a matter of concern, looking at the reports from Dr R and Ms B, that the children appear to be living a very isolated life. Ms B used the term “invisible.”
The older child, X, apparently is no longer attending pre-school and both children appear to be spending time with their mother and on the evidence before me, very few other people, except for their half sister, Z. They are not spending time with their father or with their paternal extended family. They are certainly not spending time with other children at a pre-school or day care centre. It is a matter of concern that the children have been reported as having speech delay. It is a matter of concern that the children are not being involved in socialisation at a day care or pre-school. Ms B gave evidence to the Court today about the benefits of children attending such places and indeed it is common knowledge that pre-school teachers and infant school teachers, for that matter, are trained and equipped to observe the behaviour of children, and indeed identify problems that arise, such as speech delay or other difficulties relating with socialisation.
These children are not being involved in that. The mother has taken no steps on the evidence available to the Court to involve the children with the wider society. I look at additional considerations and of course the children are too young to express their views, but observation of them with their father by the family consultant indicates a positive relationship with them. That is supported by the subpoenaed material from the contact centre. The children’s relationship with their mother appears to be strong attachment as she is there – up to now has been their primary care giver and the father has effectively been excluded on the evidence before the Court.
The children have had very little recent relationship with other persons on the father’s side, including their grandmother and various aunts. The father still has a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother, but the mother has no such willingness. Indeed, she has an implacable opposition to the children having a close and continuing relationship with their father. On looking at the likely effect of any changes to the children’s circumstances, by removing the children from the care of the mother and placing them in the care of the father there will be a significant effect on the children. It will be traumatic and distressing for them and they will need a great deal of support. They will go through a grief reaction of losing their contact with their mother and I am inclined to accept the views of the family consultant that there will be some need in the not too distant future for the children to have supervised time with their mother at a contact centre so that they may be reassured that she is still alive and still has a relationship with them.
At the same time there is a need for the children to settle in the care of their father and it would not be beneficial for the children to see their mother for at least the first couple of weeks after the children go to the care of the father. The capacity of the parents of the children to provide for the children’s needs, including emotional and intellectual needs, is a matter of great concern. The father is an inexperienced father who has a willingness but little practical experience, although there is evidence that he has been given assistance by his mother and his sisters, who are themselves mothers. He has obtained his own accommodation and he can expect the support of his extended family.
I am concerned that the evidence before the Court raises a question mark over the mother’s ability to provide for the children’s emotional and intellectual needs, although there is no suggestion the children are not having their physical needs, such as food and clothing met. The children are only young. X was born on (omitted) 2007, Y was born on (omitted) 2008. He is not yet three years old. The lifestyle in which they reside at the moment appears to be an isolated life which cannot be in the children’s best interests because it will hinder their ability to participate in the wider society.
The father’s attitude to the children and the responsibilities of the parenthood has been demonstrated by his persistence in attempting to spend time with the children despite the mother’s refusal and by his continuation of the proceedings before this Court. On the evidence before the Court the mother’s attitude to the responsibilities of parenthood is of concern with the children not being in pre-school or day care, with no steps being taken to deal with their speech deficits, with the mother’s reported continuance of administering cannabis to herself and with her refusal to involve herself and participate in the Court process in order to establish appropriate parenting orders of the children.
I am not satisfied that there is any evidence of family violence and I am not concerned that the children, as I said, are at risk of being the subject of or exposed to violence in the household of their father. It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children, however, the very nature of the mother’s refusal to participate in these proceedings and the concerning evidence from the father himself, from the father’s family members, and not least from the family consultant and from Dr R, the psychiatrist, have led the Court to the belief that the suggestion of the independent children’s lawyer that final orders should not be made, but that orders should be made as interim orders to last for a period of approximately 12 months.
There are concerns that there will be further proceedings and indeed the matter will come back to Court early in May 2012. I propose to grant liberty to apply on 48 hours notice. It has been put to me that that liberty should be given to the Independent Children’s Lawyer, but not otherwise for fear of the mother making applications to in fact stymie the process that is to be put into effect. I understand this concern, but I have decided not to place that restriction because the Court is making ex parte orders which will have a significant effect on the mother herself, even though she has chosen to absent herself from the proceedings and not participating in the Court process.
The issue of a recovery order is a drastic step. It was once described by the late Watson J of the Family Court of Australia as an order requiring the police to go out and arrest a child. That is a dramatic description, but such an order would involve the intervention of the Marshal of the Federal Magistrates Court and will involve police officers and it is unlikely that such a process can be undertaken without distress and emotional trauma to the children. I am satisfied, however, that the orders sought by the Independent Children’s Lawyer are appropriate in the circumstances. The children’s best interests remain the paramount of consideration. The process that the Court will set in train by making these orders has been described again by the family consultant as perhaps the least worst solution. However, I am of the view that the father has demonstrated a willingness to involve himself fully as a parent. He has given evidence and has been subject to cross-examination. He has the support of his extended family. It is to their credit that they have supported the father throughout these proceedings and I would say to the extended family that he is going to need that support in the months to come. And the children, their nephew, their niece, their granddaughter, their grandson, are going to require considerable support from their paternal extended family.
It is a heavy responsibility that will descend on the shoulders of the father and of his family members, however, I am of the view that on the evidence before the Court today it is not consistent with the best interests of the children they remain in the care of the mother. I am concerned about the isolated lives that they are living, the fact that they have been excluded from the company of their father and their paternal extended family, and the fact that their speech deficit and delay does not seem to have been addressed. If that situation continues the children will have great difficulty playing a role as members of the wider community. They deserve better than that.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 27 May 2011
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