Department of Community Services and Buckley & Ors

[2009] FamCA 1379

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & BUCKLEY AND ORS [2009] FamCA 1379

FAMILY LAW – CHILDREN - Best interests - With whom a child spends time - With whom a child communicates - Capacity of parent to care for child

Goode & Goode (2006) FLC 93-286

APPLICANT: Director-General of the Department of Community Services

1st RESPONDENT:	Mr Buckley
2nd RESPONDENT:	Ms Anderson
3rd RESPONDENT:	Ms Bennett

INTERVENORS: Mr and Mrs Buckley Snr

INDEPENDENT CHILDREN’S LAWYER: Levy Partners

FILE NUMBER: PAF 4139 of 2002

DATE DELIVERED: 17 December 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE:

13 - 15 October 2008

19 - 21 October 2009
16 - 17 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moore

SOLICITOR FOR THE APPLICANT: Crown Solicitor’s Office

FOR THE FIRST RESPONDENT: In Person

FOR THE SECOND RESPONDENT: In Person

COUNSEL FOR THE THIRD RESPONDENT: Ms Barker

SOLICITOR FOR THE THIRD RESPONDENT: Gillard Consulting

FOR THE INTERVENORS: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Levy Partners

Orders

1. That the document prepared on behalf of the Director General will become Court’s Exhibit X in these proceedings.

2. That the document prepared by the Independent Children’s Lawyer will become Court’s Exhibit Y in these proceedings.

Orders by Consent

1. That all previous parenting orders in relation to the child L born … November 2007 be and are hereby discharged.

2. That the Minister for Community Services ("the Minister") and Mr D Bennett (L’s maternal grandfather) shall have equal shared parental responsibility for the child for a period of one (1) year from the date of these orders.

3. That following the expiration of the Minister’s equal shared parental responsibility referred to in order (4) herein:

   a.L’s maternal grandfather and L’s mother shall have equal shared parental responsibility for the child for a further period of two (2) years; and

   b.At the expiration of that two (2) year period the mother shall have sole parental responsibility for the said child, subject to the mother having complied with all matters required of her by the Director General and upon full compliance with her Undertaking given to the Court this day.

4. That during the period referred to in Orders 2 and 3(a):

   a.The maternal grandfather shall have sole parental responsibility for the day to day care, welfare and development of the child; and

   b.the child live with the maternal grandfather.

5. For a period of two (2) years from the date of these orders, the said child shall live with the maternal grandfather subject to him complying with the following:

   a.It be a condition of the child living with the maternal grandfather that he accept the supervision of the Director General of the Department of Human Services, such supervision to include but not be restricted to the following:

   i.The Director General or her delegate may conduct random home visits to his residence;

   ii.The maternal grandfather is to ensure that the Director General or her delegate have entry to the premises at which the child resides at all times;

   iii.The maternal grandfather will ensure that the Director General of her delegate may meet with and talk with L as and when the Director General or her delegate may choose.

   b.The maternal grandfather is not to permit the child to be brought into contact with Mr Buckley (the father) unless in accordance with these Orders.

   c.The maternal grandfather will enrol the child in a daycare centre for a minimum of 2 days per week until the child commences school.

   d.The maternal grandfather shall not leave the child L in the care of her mother, Ms Bennett, unless authorised in writing by the Director General to leave L with the mother in the presence of N Bennett or Ms M.  The said Ms M is to be considered as a last choice of supervisor.  This order however recognises that there will be occasions when the maternal grandfather must be absent from the home and on those occasions Ms M may supervise the mother and the child.

6. For a period of one year from the date of these orders, the maternal grandfather is to continue to ensure the child resides at her current residential address unless otherwise authorised in writing by the Director General or her delegate.

7. That the Court accepts the Undertakings of the Mother, Ms Bennett, set out in the Document marked “A” to these Orders.

8. In the event that the Contact Centre offers supervised time only at times that are less regular than specified in Order 9 then the time L spends with the father shall occur at the times that are offered by the Contact Centre.

9. That Mr Buckley (the father) be restrained from:

   a.Being under the influence of illicit drugs or alcohol in the presence of L or C;

   b.Bringing L or C into contact with any person under the influence of drugs or alcohol or exposing L or C to drug paraphernalia;

   c.Exposing L or C to violence including physical or verbal threats or intimidation whether such intimidation or threats or violence be directed at L, C or any other person; and

   d.Denigrating L’s mother, L’s maternal grandfather, N Bennett, the paternal grandfather, the paternal grandmother or C’s mother in the presence or hearing of either L or C or permitting any other person to do so.

10. Without admissions, that L’s mother be restrained from:

    a.Being under the influence of illicit drugs or alcohol in the presence of L;

    b.Being alone with L without the maternal grandfather, save for when one or both of N Bennett or Ms M are present or with the written consent of the Director General, during the periods referred to in Orders 2 and 3(a);

    c.Bringing L into contact with the father or allowing any other person to do so, except in accordance with these Orders;

    d.Bringing L into contact with any person under the influence of drugs or alcohol or exposing L to drug paraphernalia;

    e.Exposing L to domestic violence or allowing any other person to do so;

    f.Denigrating the father, the paternal grandmother or the paternal grandfather in the presence or hearing of L or allowing any other person to do so.

11. Without admissions, that L’s maternal grandfather be restrained from:

    a.Leaving L in the care of her mother unless authorised in writing by the Director General, save that he may leave L with her mother in the presence of N Bennett or Ms M, during the periods referred to in Orders (4) and (5)(a) herein;

    b.Bringing L into contact with the Father or allowing any other person to do so unless in accordance with these orders;

    c.Bringing L into contact with any person under the influence of drugs or alcohol or exposing L to drug paraphernalia;

    d.Exposing L to domestic violence or allowing any other person to do so;

    e.Denigrating the father, the paternal grandmother or the paternal grandfather in the presence or hearing of the child or allowing any other person to do so.

12. That the paternal grandfather and the paternal grandmother are each restrained from denigrating the L’s maternal grandfather, L’s mother, N Bennett, the father or C’s mother in the presence or hearing of L or C or allowing any other person to do so.

13. Noted that it is the intention of the Minister in exercising parental responsibility for L to work towards transitioning L into the full time care of her Mother and that L’s maternal grandfather’s obligations under Orders 5(a) and 6 adjust accordingly, provided such arrangement is authorised in writing by the Director General.

14. Noted that it is the intention of the Director General that if the notation at 25 is implemented, L’s mother will not be in breach of Order 18(b) 22(b) nor will L’s maternal grandfather be in breach of Order 19(a) 23(a), provided such arrangement is authorised in writing by the Director General.

15. Noted that it is the intention of the Director General that if there is sufficient non-compliance by L’s mother with the Undertakings set out in Order 7 thereby placing L at risk of harm further proceedings will be commenced and consideration will be given at the relevant time as to whether such proceedings will be pursuant to the Family Law Act 1975 or the Children and Young Persons (Care and Protection) Act 1998.

16. That in relation to the child L born … November 2009 order be made in accordance with the Minute of Order proposed by the Department of Human Services and signed by counsel for:

    a.The Director General;

    b.The Third Respondent; and

    c.The Independent Children’s Lawyer.

17. That all previous parenting orders in relation to the child C born … April 2011 be discharged.

18. That the said child live with the second respondent, Ms Anderson (C’s mother).

19. That the children C and L shall spend time together twice in a year on occasions to be arranged to fall as close as possible to the girls’ respective birthdays.  Such time is to occur at a convenient location approximately halfway between … and … or at such other place as L’s mother and C’s mother may agree.

20. That in the event that either of the children suffer any serious illness requiring hospitalisation then in the case of L, the party having parental responsibility at the time and in the case of C, C’s mother shall immediately notify the father of such illness and hospital to which the child has been taken.

21. That the party that has the parental responsibility for each of the children at relevant time (and in the case of L when commences school) shall send to the first respondent, the father Mr Buckley, a copy of that child’s yearly school report and at the first respondent’s expense and at his written request, a copy of any school photo that may have been taken.

By the Court

1. That at the expiration of the period of time referred to in paragraph 3(a) of Exhibit X, and subject to L’s mother having complied with all things required of her pursuant to her undertakings contained in Attachment A to Exhibit X, then L’s mother shall have sole parental responsibility for the child L born … November 2007.

2. That L’s paternal grandfather is not to leave the child L in the care of her mother, Ms Bennett, unless authorised in writing by the Director General that he may leave L in the care of her mother in the presence of either N Bennett or Ms M.  The said Ms M is to be considered a last resort.

3. That the father, Mr Buckley, shall spend time with the child L for a period of two hours every two months at a supervised contact centre. 

4. It is requested that the first of the periods of time the father is to spend with the child L is to be on a month other than the month in which the father is to have time with the child C and that that be continued to the extent that the father see L in months other than the months in which he is to see C.

5. That during the times the child L spends with the paternal grandparents pursuant to paragraph 15 of Exhibit X, the grandparents may be accompanied on each such occasion by an additional two (2) people for a total of four (4) people.

6. That for the purpose of implementing Order 9 L’s maternal grandfather (if he has parental responsibility) must:

   a.Nominate a contact centre;

   b.Contact the contact centre at least two (2) months prior to contact at the centre commencing and arrange an appointment for assessment for suitability for the time with L to be supervised;

   c.Attend the assessment;

   d.Comply with any appointment made by the Contact Centre;

   e.Comply with all reasonable rules of the Contact Centre; and

   f.Comply with all reasonable requests or directions of the staff of the Contact Centre.

7. For the purpose of implementing Order 9 the Father must:

   a.Contact the contact centre at least two (2) months prior to contact at the centre commencing and arrange an appointment for assessment for suitability for the time with L to be supervised;

   b.Attend the assessment;

   c.Comply with any appointment made by the Contact Centre;

   d.Comply with all reasonable rules of the Contact Centre; and

   e.Comply with all reasonable requests or directions of the staff of the Contact Centre.

8. For the purpose of implementing Order 9 herein, upon the expiration of equal shared parental responsibility in favour of L’s maternal grandfather and L’s mother, L’s mother must:

   a.Contact the contact centre at least two (2) months prior to contact at the centre commencing and arrange an appointment for assessment for suitability for the time with L to be supervised, if required by the Contact Centre;

   b.Attend the assessment, if required by the Contact Centre;

   c.Comply with any appointment made by the Contact Centre;

   d.Comply with all reasonable rules of the Contact Centre; and

   e.Comply with all reasonable requests or directions of the staff of the Contact Centre.

9. If after the assessment intake procedure the Father is accepted by the Contact Centre as suitable for L’s time to be supervised then such time shall take place as nominated by the Contact Centre and such contact is to occur at the Contact Centre.

10. Notwithstanding Order 15, the paternal grandparents may spend time with L whilst she is spending time with her Father, provided the Father consents.

11. That the child C spend time with the first respondent father;

    a.On one Saturday in January, March, July and November; and

    b.On one Sunday in May, September and December.

    Such time is to be spent in a supervised environment at the contact centre at such times as can be made available by that centre.

12. That for the purpose of the implementation of order (34) herein the second respondent, C’s mother Ms Anderson, or her nominee shall bring the child C to the said contact centre at the time nominated by that centre and collect the child from the said centre at the time nominated by the centre.

13. That the time the child C spends with her father on Sunday in the month of May is to be arranged to fall as close as possible to the child’s birthday.

14. That the time the child C spends with her father on Sunday in the month of September is to be arranged to fall as close as possible to Father’s Day.

15. That the time the child C spends with her father on Sunday in the month of December is to be arranged to fall as close as possible to Christmas Day.

16. That the mother, Ms Anderson, make available to the father within twenty-eight days a copy of the blue book relating to the child C’s vaccination and immunisation records and thereafter supply to him any medical reports that come into her possession regarding the child C.

17. That the mother, Ms Anderson, forward to the father within seven days of receipt, copies of all report cards, whether they are received yearly or half-yearly, in respect of the child C and make available to the father at his expense any photographs obtained from any school attended by the child.

18. That on all occasions that the father attends the Contact Centre to exercise contact he shall be entitled to bring with him his mother (the paternal grandmother) and one other of his siblings for a total of three persons.

19. That all outstanding applications and cross applications be and are hereby dismissed.

20. That all issues be removed from the Active Pending Cases List.

21. That all material produced on material be returned not before fifty-six days from the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services & Buckley and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 4139 OF 2002

DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MR BUCKLEY

1^ST Respondent

MS ANDERSON
2^ND Respondent

MS BENNETT
3^RD Respondent

MR AND MRS BUCKLEY SNR
Intervenors

REASONS FOR JUDGMENT

1. This difficult matter concerns the future of two children, C, who is aged about seven and a half, and L, who is two. 

2. The first respondent, Mr Buckley, is the father of both girls.  The second respondent, Ms Anderson, is the mother of C.  The third respondent, Ms Bennett, is the mother of L.

3. Mr and Mrs Buckley Snr became intervenors in the proceedings.  They are the paternal grandparents of each of those children.  Mr D Bennett also intervened in the proceedings.  He is the maternal grandfather of L.

4. By agreement of the parties at an earlier stage in the proceedings the Department - which had intervened, as of right - became the applicant and thus had the carriage of the matter.

Background:

1. A background to the matter is necessary to obtain a proper understanding of the issues involved, although, as I will return to later, the parties have, to their credit, narrowed the issues progressively as the matter has proceeded.

2. Mr Buckley Snr (the paternal grandfather) was born in 1944 and Mrs Buckley Snr (the paternal grandmother) in 1956. 

   ·    Mr Anderson, who is the partner of Ms Anderson (C’s mother) was born in 1967.

   ·    Mr Buckley, the father, was born in 1984. 

   ·    Ms Anderson - who is C’s mother - was born in 1984. 

   ·    Ms Bennett, who is the mother of L, was born in 1988.

3. In about March 2001, C’s mother and the father commenced cohabitation.  The child, C, was born in April 2002.  A separation then occurred in about mid-2001 when C’s mother apparently commenced another relationship.

4. In July 2002, DOCS became involved in respect of C and, in that same month, appeared to have given C’s mother some assistance in relocation.  Shortly thereafter, the child became ill and was admitted to hospital.  Thereafter, on discharge she was placed in foster care.  There were some applications made to the Family Court by the paternal grandparents seeking some orders in relation to them having the care of C.

5. On 6 September 2002, the Department of Community Services - as it then was - assumed care of C at W Hospital and, on 11 September 2002, C was placed in foster care.

6. I do not propose to set out the father's criminal record in detail but I will return to it later in these reasons.  However, it is significant that in February 2003, the Department of Corrective Services in its notes demonstrates that, during the course of an interview, the father admitted to smoking a very substantial amount of cannabis on a weekly basis.  The father in his evidence before me has endeavoured to contradict this record, or to say he does not remember what he said.

7. In March 2003, there was a second foster placement made for C and, on 7 March 2003, parental responsibility for C was granted the Minister.

8. As I understand it, the situation then was that C’s mother commenced to live with Mr Anderson in August 2003.  In January 2004, C’s mother applied for the rescission of care orders.

9. On 24 June, indeed, there was a rescission of the care order.  Shortly after that, the father told the Department that Mr Anderson had been violent at court and there was further investigation carried out.  On 23 September 2004, at the Children's Court, final orders were made rescinding the care and protection order of 7 March 2004 and the mother gave undertakings.

10. On 7 November 2004, the father alleged to DOCS that the child, C, had a vaginal infection or discharge. 

11. There was then a final hearing, categorised as such, at the Children's Court on 7 October 2005 when there was a variation in respect of school holiday contact.

12. In early 2006, it would seem from the father's evidence, that he and Ms Bennett, L’s mother, commenced cohabitation.  On 24 January 2006, the father filed in this court applications for final orders seeking the child, C, live with him and there be equal or somehow shared parental responsibility. 

1. Further orders were made in a regional court varying school holiday time on 23 February 2006.

2. On 7 April 2006, the father filed a notice of child at risk. 

3. On 22 May 2006, C’s mother filed a response to the father's application seeking that she have sole responsibility and C live with her. 

4. On 3 November 2006, C was taken to the emergency department of the local District Hospital. 

5. In November also the paternal grandmother made a report of bruising on the child C’s back.

6. On 16 February 2007, the father brought an application against C’s mother for contravention in respect of alleged failures to provide time with the child in January 2007.

7. In June 2007 the father and L’s mother were involved in a domestic dispute which resulted in the father being charged with assault.  On 27 June 2007, the father was also charged with possessing precursors for use in the manufacture of prohibited substances. He was convicted.

8. In September 2007, an admission was made by L’s mother to police, that she had smoked cannabis whilst seven months pregnant with her daughter. Some 11 days' later, on 27 September 2007, there was a report made to the Department and an application for apprehended violence was made on behalf of L’s mother. 

9. On 9 October, a report was made by Ms X, a social worker, in relation to drug use by L’s mother. Particularly of concern at that stage was her diabetes.

10. On 17 November 2007, police attended at the residence of L’s mother where they were told by L’s mother that the father had threatened her. 

11. In late November 2007, L was born. 

12. About this time, a complaint was made that Mr Anderson had mistreated C.

13. On 10 March 2008, a family consultant’s report was made available to the parties. That report recommended that C live with the father based on allegations of physical violence and the child not being of an appropriate weight.  The next day a report was made to DOCS and, on 18 March 2008, interim orders were made by the Family Court for C to live with the father.

14. On 11 April 2008, the father contacted Uniting Care and informed them there had been a fight and that he had been injured. 

15. On 23 April 2008, L’s mother was interviewed by DOCS and said that the father had been violent to her and that he smoked cannabis daily.  During April 2008, there were a number of episodes involving the father and L’s mother which led to DOCS becoming involved. 

16. On 28 April 2008, police attended the premises of L’s mother and the father was arrested for offensive language. A DOCS notification was sent through.  On 29 April, a case worker attended the local Police Station in relation to this matter and, some time in May the Department became aware of what was happening in relation particularly to the father and L’s mother.

17. On 19 May 2008, the father attended at L’s mother’s home in breach of an interim AVO.  The police attended.  It is alleged the father fled from the premises.  There were then difficulties between the police and L’s mother. The whole of that episode, to my mind, does neither L’s mother nor the father any credit whatsoever.

18. On 20 May 2008, C and L were removed from the care of the father by the Department.  Thereafter, the matter continued in this court and there have been some 21 orders made in the course of these proceedings.

19. In July 2008, I note that there was apparently an altercation concerning what was to happen with supervised time.

20. In June 2008, the father appears to have been charged with domestic assault - by which I take it to mean an assault concerning a member of his household - and larceny.

The Parties’ Material:

1. This matter has been the subject of an extended hearing.  The very large number of documents, some of them very significant, have been filed and relied upon by all of the parties.  I do not propose to set out in detail those affidavits.

Expert Reports:

1. In addition to the material of the parties, there were three reports of Dr S of 27 June 2008 and 11 February and 17 June 2009.

The Hearing Before Me:

1. In the course of the hearing I have heard a significant number of witnesses give evidence in relation to this matter.  When the matter first commenced before me, I heard evidence from Constable A, N Bennett, Ms H, L’s maternal grandfather, Ms R. During Ms R’s evidence, Ms F was interposed.

2. When the matter returned to court on the next occasion, I heard further evidence from:  Ms R;  from L’s mother;  from L’s maternal grandfather;  from Professor E;  further evidence from L’s maternal grandfather;  further evidence from L’s mother;  from a private inquiry agent who produced a videotape;  and from Dr S.  On this occasion, I have heard evidence from Mr Buckley.  All of those witnesses have been cross-examined extensively in relation to the evidence they gave. 

The Issues to be Determined:

1. However, to the credit of all parties, the issues for determination have been very greatly reduced and narrowed.  It seems to me that substantial agreement has been reached between all of the parties in an overlapping situation in respect of documents that have been produced to me, setting out proposed orders.  The first of those documents is a document prepared by the Director-General which bears the signature of a representative of the Department, the independent children's lawyer and L’s mother.  I should say that that document deals with specifically L’s mother and her daughter L.

2. I have a second document before me which has not been signed but which I have worked through with the parties and that is a document prepared by the independent children's lawyer.

3. The issues that seem to remain for determination are the time the father and, to a lesser extent, the grandparents will spend with each of the children and in what circumstances.  Further, there was an issue raised that Ms M - who is named as a potential supervisor for L - is not a fit and proper person to supervise.

4. Finally and at the end of the matter, at the conclusion of addresses, the father indicated that he sought telephone contact in respect of the children on whatever basis could be arranged.

5. I believe that these then are the issues I must examine and, where necessary, make findings and reach a determination. I believe I am not required to make findings in respect of the evidence regarding other issues which, in my view, in the sense that they are resolved, render it unnecessary for me to make findings.  However, if findings need be made in respect of evidence on other matters because they have an impact on or direct relation to the issues I am to determine, then I believe I must examine them.

6. The Department, in its orders, seeks that the father have two-monthly time with the child, L.  The independent children's lawyer, in his minute, employs a slightly different methodology, coming up with effectively the same result, but in his case of the independent children’s lawyer, specifying that such time occur on Saturdays in specific months and on a Sunday in other months.

7. The father, for his part, says that two-monthly is simply not enough.  He is supported in this by his mother.  He says that there have been good reactions when he has seen the children, and the children love him dearly and are excited to see him. 

8. One of the major issues in this case, as it now stands for determination, is the real purpose of the father spending time with the children.  Those seeking to limit the time the father spends with the children rely on the evidence, both oral and in his reports presented to the court, by Dr S.  As I have said, the doctor filed three separate reports that dealt with this matter. 

9. In my view, the middle of those three reports prepared by Dr S is of utmost importance. That is the report of February 2009.  In that report, the doctor, in my view, makes it plain that he sees the primary need for the father to see the children to be for identification purposes. The doctor, in his evidence confirmed that this was the situation.  The doctor provides a fair less rosy assessment of the relationship between father and both girls than the father himself would present to me.

10. The father, in the course of an impassioned address, said that his time with the girls is wonderful, that it should be effectively unrestricted in the sense of time that can be made available, and that the relationship is improving.  That is quite contrary to the evidence of Dr S. There are a number of paragraphs in his reports that are of some significance.

11. When I go to his report of February 2009, in paragraph 73, he makes a recommendation that so far as the older child is concerned, a pattern of contact visits probably on a two-month basis needs to occur.  He does go on to comment and I take great notice of the fact that he is concerned as to the degree to which the mother and step-father will prepare the child and assist the child in spending time with her father.

12. Working backwards in that report, the doctor says, at paragraph 71:

    Contact between [the father] and [L] and his family and [L] needs to occur for identity purposes.

13. He goes on to say he does not believe that the father will ever be able to assume a proper paternal role with L, that contact will need to remain supervised, but its frequency need not be more than monthly.  Some visits should be with the father’s extended family.

14. When the doctor gave evidence on the last occasion that the proceedings were before me, he did not change or alter that view.  He indicated that there should be final orders for C and the father should have time with her sufficient for identity and on occasion not more than every couple of months.  He continued to say that the time should be supervised.  He said the same situation ought to apply for L.

15. The father has given evidence of his lifestyle up to the present moment.  I have said that it is perhaps not necessary for me to make findings because of the state of the orders that appear to have been agreed.  It seems to me that there is nothing that I need deal with specifically in relation to Mr and Mrs Anderson other than to say - and I will return to this shortly - that one hopes they can adopt a more accepting attitude to the fact that the father, even on a strictly limited basis, must remain in the child's life.

16. The situation between the father and L’s mother has caused me very great concern.  L’s mother is to be staged back as a responsible parent for her daughter.  She has given me undertakings, is present in court today and has signed a document.  I accept that she now understands what is required of her.  I am concerned and express my concern in the strongest terms that, during a period when she was not supposed to see the father, she clearly did. I am satisfied that that relationship was at least significantly of her choice at all times.  I am satisfied on the evidence that I have heard that she was inviting the father to attend the home where she lived with her father on occasions when her father was not present.

17. I have and continue to have concerns that she is dealing adequately with mental health issues, and particularly with her diabetes.  One might recall that in October last year orders were made for her to supply material which I can only assume she chose not to do.  However, there is an agreement of all parties that there should be - if I might use this expression - a staged program for her to assume sole responsibility for L.

18. The father's behaviour in continuing to see L’s mother in the face of orders does him no credit.  Whilst giving evidence - despite warnings that he should confine himself to the questions asked - he was at times argumentative and at times dismissive.  I find it difficult to accept that, in the face of his protestations, that all he wanted to do was see his children, that he had in fact given up a job so he could ensure time would be available to see his children and, having made quite serious allegations against the Department that they had interfered with or somehow not facilitated an earlier contact period - and the Department concedes that they were at fault in not making proper notification - he was offered make-up time as to which he said he confused;  I cannot understand that confusion.

19. If it had just been between two Wednesdays, I might indeed find that it was easy for a state of confusion to arise. He said that he thought the Wednesday being indicated was yesterday, in other words, the first day of the hearing.  How he could come to that conclusion is beyond me, but, more significantly, particularly in his address to me, his indication was, "Well, if someone had told me specifically which day it was or if someone had rung me, I would have been there."

20. The father has a very poor record of impulse control and anger management.  He has been significantly involved with illicit drugs. I am satisfied that he is quite prepared to put his own interests above the interests of others.  He and L’s mother sought to conceal from everybody the true state of their relationship. 

21. In the circumstances of this case, and for the issues that I have to determine, I am satisfied that the father still has real difficulties with his personal life.  I am of the view that, notwithstanding his assertions that he wishes to see his children, there have been occasions when, given the opportunity, he has not done so.  I am satisfied that he feels that seeing both his children in the manner that he wishes is something that is for him a matter of right.

The Law Be Applied:

1. These are parenting orders.  I turn to the law to be applied.  The first of the sections that I must consider is section 60B which deals with the principles and objects of the Act.  The various objects that I must take into account are ensuring children have the benefit of both parents having a meaningful involvement in their lives and that is to be balanced against the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  I must consider the principles underlying the objects and they are that children have a right to know and be cared for by both parents and that children have a right to spend time on a regular basis and communicate with both parents. 

2. Section 60CA then tells me that, in making a parenting order, I must regard the children's best interests as the paramount consideration.  Section 60CC then tells me the manner in which I am to do this.  Section 60CC(2) gives me two primary considerations:  the benefit to the child of having a meaningful relationship balanced with the need to protect the child from physical or psychological harm, from being subjected to abuse. 

3. I am then to deal with a number of additional considerations (section 60CC(3)(a)) which may well assist me in reaching a determination.  The first of those are any views expressed by the child.  In this case, I would accept that L is too young to give me any real view that would assist me.  It is reported that C seemed other than anxious to see her father.  In that regard, the reports of Dr S indicated that the child is not demonstrating a great wish to see her father, regardless of what the evidence of the father is in this regard.

4. In his most recent report of June 2009, doctor goes into in some detail.  At paragraph 24, he says, in respect of C:

   She appears to have some understanding but no apparent enthusiasm for contact with her father.

   He goes on to say that that may have been qualified by the fact her mother was present.  However, I am not able to determine on the evidence before me that the older child has said or expressed anything that would amount to a view that she wishes to spend more time with her father.

5. The nature of the relationship of the child with each of the children's parents and other significant persons (Section 60CC(3)(b)). I will deal with the mothers first.  I am satisfied that in the case of C’s mother the relationship she has with her daughter is appropriate and that that child, C, is involved in a household comprised of her mother and step-father, herself and half-siblings.  I am satisfied that the mother has cared for the child appropriately.  I am satisfied that in the past there has been violence in that household but I am satisfied that that no longer is something that causes me concern.

6. The nature of the relationship of L’s mother with her daughter L is entirely different. It is a relationship that causes me real concern at the present moment.  However, it seems to me that L’s mother is prepared to move forward and is now prepared to accept the assistance of the Department and further - and for this she should be extraordinarily grateful - the assistance of her father in allowing a transition of L into her full time care. 

7. The children's relationship with the father is one that is hard to define.  Certainly there was a period of time where his older daughter lived with him and, indeed, it would seem may well still have been living with him had not the difficulties to which I have made reference occurred with L’s mother.  I am satisfied that in this situation the father does not recognise within his relationship with either of his daughters the needs of the children, but rather sees his own rights (which he asserts very strongly) that he be entitled to see the children as he wishes. 

8. I am satisfied that the older daughter has something of a relationship with her grandmother.  I am not sure that I can say what the relationship is with her paternal grandfather. I am told he is very ill and unable to leave his bed. 

9. The next matter that I come to is the willingness and ability to facilitate a relationship (section 60CC(3)(c)). The father and C’s mother, at various times, have sought to be exclude the other from their daughter’s life.  C’s mother, for a period of time, did all she could to avoid the father having any time with C.  The father then, once C was in his care did not in any way seek to facilitate the mother seeing C.

10. So far as L is concerned the father now is quite dismissive of L’s mother.  He does not want anything to do with her, as he asserts that she is not worth it.  In my mind, this indicates that he has little time for her. Certainly, he has denigrated her involvement with the child.

11. The likely effect of any change (section 60CC(3)(d)) means to my mind:  how will the children cope if I am particularly to decrease the frequency of time so that each child sees her father on every second month?  I have come to the conclusion from reading the reports of Dr S, and hearing the evidence that he gave, that this will not be as detrimental - if detriment at all - as alleged by the father. 

12. The practical difficulty of time (section 60CC(3)(e)) is largely governed by distance.  However, I am satisfied that, provided it is not overly frequent so that the parties can muster their resources to ensure it does happen when ordered, that there is every likelihood that there will be able to be time spent by the father with the children. 

13. The capacity of each of the parents and other persons to provide for the needs of the child (section 60CC(3)(f)).  Again, I will work in this fashion:  C’s mother, I am satisfied now has and has demonstrated a capacity to care for her daughter.  L’s mother has not, at this stage, demonstrated such a capacity but has indicated, and I accept on the evidence that I have heard and read, that she is willing to involve herself in a process where her capacity will be significantly improved and she will be able to regain the care of her daughter over time.  The situation will be monitored and, in the event that she does not comply with that which is required of her, then I have no doubt that the matter will be back before me or in some other court quite quickly.

14. The maturity, sex, lifestyle and background of the child and of either of the child’s parents (section 60CC(3)(g)) of the children.  The matter that I raise here is the fact that C now appears to have been diagnosed as an autistic child.  I am aware that one of the main aspects of management of a child within that spectrum is that the child would have certainty and stability in her lifestyle.  It is important that any orders that may be put in place for her are such that they are going to be followed by both parents and that the child is going to be placed in a routine which hopefully will give her the necessary assurance and comfort.

1. Family violence is an issue here (section 60CC(3)(j)).  I am satisfied that the father has been violent particularly to L’s mother.  The father makes a point, which he is entitled to make, that he has never been violent to either child.  That to my mind avoids the issue.  That which the Act is determined to protect against is any family violence involving the child or a member of the child's family.  I accept L is young. I know the father does not concede that his behaviour in the past has had any effect upon her or upon C. I do not accept this. I am satisfied that this is a situation where the father has been violent within the household comprising himself, L and at times C and L’s mother. I am satisfied that the violence he has displayed has had an effect, be it unquantifiable, on both girls.

2. The next of the matters to which I would make reference is section 60CC(4):  the extent to which each parent has fulfilled or failed to fulfil the responsibility to participate in making decisions about major long-term issues in relation to the child, to spending time with the child, and has facilitated or failed to facilitate the other parent participating.  In this case, the father clearly has made every effort he can to be involved, particularly since the Department removed both children from his care.

3. I am satisfied that none of these three major parties - and, by that, I mean both mothers and the father - have given any thought to facilitating involving the other parent, but, rather, all of them have acted in an exclusionary manner to try and, keep the child for themselves and deny the child any involvement with the other parent.

4. The next section to which I must turn have regard is section 61DA which raises the presumption of equal shared parental responsibility.  The presumption may be found not to apply or may be rebutted.  In this matter, I am satisfied that it has been established that there has been family violence and accordingly, under subsection (2) of section 61DA does not apply so as to impose the presumption.  However, none of the parties seek that there should be equal shared parental responsibility in respect of either of these children and, accordingly, I do not propose to make any such order.

5. I am satisfied that the appropriate order is that, in C’s mother’s case, that she has parental responsibility for C and, in the case of L’s mother, that escalating orders be made, as set out in the minute provided by the Department's legal representatives, as to what should occur initially, then for another period of two years and, then finally, resumption of parental responsibility by her.

6. Section 65DA says that, if a court is to make an order for equal shared parental responsibility, it must consider equal shared time or significant and substantial time. In this case, the trigger of an order for equal shared parental responsibility does not apply.  However, their Honours of the Full Court in Goode[1] made it clear that there are other matters and ways in which those matters might come under consideration.

   [1] (2006) FLC 93-286

Discussion and Conclusions

1. It is clear that equal time is not sought.  It is clear that the argument, as I understand it as to time, is whether the father should see each of these children fortnightly or monthly, as he contends, as against the orders proposed by the Department and the Independent Children's Lawyer respectively that he should see each of the children two monthly. 

2. As I say, the telephone issue was raised late in the hunt.  The father says that he should have the ability, particularly to speak to his older daughter, and, when she is four, that he should have a similar right to communicate with L.  Ms Baker particularly brought to my attention that, if such phone calls were allowed, there could be real pressure applied and disruption caused in the households in which those children are living.

3. Having observed the father as I have, I have grave concerns that, if his wishes were not being met as to what he believed he was entitled to, that his behaviour could become aggressive in a very short period of time.  Accordingly, I do not propose to make any order for telephone contact.

4. So far as the supervisor is concerned, clearly the lady in question is not young.  She is disabled.  However, the father says that, whilst he is concerned that she is not an appropriate person, he is unable to suggest anybody else.  The fact of this matter is that, by agreement, the child, L, is to live with the mother and, specifically, her father.  The mother is not to be left alone with the child in the short term.

5. The maternal grandfather leaves the household on at least two occasions each week to go to work.  The father indicates to me clearly he is not paying any child support in relation to this matter.  If I were to delete Ms M as a potential supervisor, it would have the effect in my view of causing the maternal grandfather to make a decision as to whether he:  (a), gave up work; or, (b) was unable to assist his daughter.  Whilst acknowledging the apparent shortcomings of Ms M, I can see no other alternative than she be, as it were, a secondary supervisor. Having said that, I acknowledge there will be periods when she and the mother would not have the benefit of the maternal grandfather in the home.

6. The father asserts that time with the girls has worked well, and that effectively it has been regular. There seems to be some real dispute as to this, particularly of recent times when I am told that he had seen one of the children on 18 July, 1 and 29 August, 26 September and nothing since then, for effectively a three month period.

7. The father says, to my mind, two things which are somewhat contradictory so far as the arrangements he can make to be available and he was not, to see either of these girls. Those things are:

   a)That his primary consideration is to see both girls;

   b)He wants to work and improve himself.

   The later is most commendable. However where time might have been available and was not, the first thing he wished to tell me was that he was busy working. 

8. Apart from anything else, if I were to order that the father was to see these children fortnightly, I am convinced that would not happen; other things would intervene so as to prevent the father from spending time with the children.  As I have said, one of my concerns in this case is that the father, seeking the order he does is doing so for his own purposes and needs so that his rights can be recognised, rather than what is best for the children.  I am concerned, particularly in the case of C, that disappointment for her, in the sense she is to see her father on X day and, for whatever reason, he is unable to attend, cannot be in her best interests because her autism requires a consistent pattern in all aspects of her life.

9. It seems to me, on what I have heard, what I have read and my assessment of all the parties, that an appropriate order for the father would be that he sees effectively one of the girls each month.  For him to do more than that at the present moment and foreseeable future is something which, despite his protestations, he could not achieve on a consistent basis. 

10. What I propose to do, therefore, is make orders very much in accordance with the two sets of minutes to which I have made copious representation.  What I would then do, is ask if it can be arranged so that the time with L is spent in months alternate to the months that have been specified by Mr Berry in his minute as the time that the father should spend time with C.  I do not, however, propose to endeavour to specify the months, but note my request.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  26 July 2010