Department of Family and Community Services and Annissa and Anor

[2015] FamCA 1131

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ANNISSA & ANOR [2015] FamCA 1131

FAMILY LAW – CHILDREN – Application in a case filed by the Secretary, Department of Family and Community Services seeking parental responsibility for the children and that the children live as directed by the Secretary – significant risk of harm and protective concerns for the children in the care of the mother – final apprehended violence order against the father protecting the mother and children – consideration of the Secretary as a non-parent – consideration of best interests considerations – orders made as sought by the Secretary.

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 91B

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR [2010] HCA 4
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53

APPLICANT: Secretary, Department of Family and Community Services

1st RESPONDENT: Mr Annissa

2nd RESPONDENT: Ms Haura

INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

FILE NUMBER: SYC 52 of 2008

DATE DELIVERED: 4 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 4 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Crown Solicitor’s Office

SOLICITOR FOR THE 1ST RESPONDENT: Patricia J O'Shane Solicitor

SOLICITOR FOR THE 2ND RESPONDENT: David H Cohen & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Orders

1. That the mother’s application for adjournment is refused.

2. That all previous orders in relation to the children B born … 2004, C born … 2005 and D born … 2007 (“the children”) be discharged.

3. That pending further order the Secretary, Department of Family and Community Services (“Secretary”) exercise sole parental responsibility for the children.

4. That pending further order the children live as directed by the Secretary or his delegate.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DFCS & Annissa & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 52 of 2008

Secretary, Department of Family and Community Services

Applicant

And

Mr Annissa and Ms Haura

Respondents

REASONS FOR JUDGMENT

Context

1. Parenting proceedings in relation to the children B born in 2004, C born in 2005 and D born in 2007 were originally commenced in 2008 in the then Federal Magistrates Court of Australia.

2. On 8 December 2011 final orders were made by consent following protracted litigation. Those orders in summary provided:

   a)That the mother and father have equal shared parental responsibility for the children;

   b)That the children live with the mother;

   c)That the children spend time with the father during school term on alternate weekends from after school Friday until before school Tuesday and in the other week from after school Tuesday to before school Wednesday and for half of the school holiday periods; and

   d)Various specific issues orders were made relating to changeovers, non-denigration, the provision of mutual information relating to the children’s welfare, maintaining of contact details, a prohibition on physical discipline, a prohibition on consumption of alcohol or illicit drugs when the children were to be in the care of either parent and that the parents engage in the Brighter Futures Program.

3. The father subsequently commenced further proceedings on 2 April 2014 and those proceedings were later withdrawn and dismissed on 21 May 2014.

4. The present proceedings were commenced by the father on 17 April 2015. He sought orders that provided for:

   a)The father to have sole parental responsibility for the children;

   b)That the children live with the father;

   c)That the children spend time with the mother from after school until 6:30pm on Tuesdays and Wednesdays and each Saturday from 10:00am to 4:00pm; and

   d)Otherwise he sought various specific issues orders similar to those made on a final basis previously.

5. The mother filed a response to the father’s application on 3 July 2015 and sought in summary the following orders:

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

   b)That the children live with the mother; and

   c)That the children spend no time with the father.

6. On 27 May 2015 an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the children and the Department of Family and Community Services was requested to intervene in the proceedings by reason of significant concerns as to the ongoing welfare of the children.

7. Subsequently on 3 July 2015 the Secretary, Department of Family and Community Services joined the proceedings as Intervener and orders were made requiring the father and mother to undertake urinalysis testing at the request of the Department and further requiring them to permit the Department to conduct random visits at their residences, meet with the children and to accept all reasonable recommendations of the Secretary of the Department or his delegate. It was noted by the Court that should the Intervener have concerns in relation to the children that it would exercise its State welfare powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Orders in relation to the father’s time with the children were suspended.

8. On the same day the proceedings were transferred to this Court from the Federal Circuit Court of Australia.

9. The proceedings were listed for the purposes of a first day Less Adversarial Trial on 19 November 2015 and in the absence of agreement in relation to the appointment of a single expert forensic psychiatrist for the purposes of a Chapter 15 report and proceedings were adjourned to 29 February 2016. It was noted on that day:

   a)That the parties were at liberty to provide a minute of proposed orders to the court in Chambers for the appointment of a Chapter 15 expert when agreed;

   b)That the Department proposes to undertake a CARA assessment in relation to the child C;

   c)That the father proposes to make application for the revocation of the existing final apprehended domestic violence order that precluded all contact between him and the children; and

   d)That the father would make contact with the Suburb E Children’s Contact Centre for assessment as to his suitability in the event that any subsequent orders were made for him to spend supervised time with the children.

10. Thereafter on 2 December 2015 the Department filed an application in a case returnable on short notice on 4 December 2015. In that application the Department sought orders that in summary provided for all previous parenting orders in relation to the children to be discharged that the Department have parental responsibility for the children and the children live as directed by the Department. The Department’s application was supported by affidavits by the allocated case worker.

11. The mother made application for the Department’s application in a case to be adjourned so as to be able to properly respond to the Department’s concerns. Consequent upon the serious concerns as to the welfare and safety of the children the mother’s application was refused but proceedings were adjourned to later in the day to facilitate the mother and father filing a response to the Department’s application in a case and any affidavit that they may wish to rely on.

12. Ultimately the mother filed a response to the Department’s application in a case seeking to have the Department’s application dismissed and that there be an order that the children live with the mother.

13. The father filed a response to the Department’s application in a case that sought orders that the Department’s application in a case be dismissed, that notwithstanding the existing apprehended violence order the father have sole parental responsibility for the children and the children live with the father with the mother having no contact with the children.

14. As a consequence of the urgency in relation to the children’s circumstances, particularly as to the child C, the interim application by the Department proceeded on the basis of oral submissions and after consideration of those oral submissions and consideration of documents tendered in evidence orders were made that pending further order previous parenting orders in relation to the children be discharged, that the Department exercise sole parental responsibility for the children and that the children live as directed by the Department.

15. The following are the reasons for that determination.

The issue for determination

1. Ultimately the question for determination is what parenting orders should be made in relation to the children and in that context whether the best interests of the children are indicative of orders being made for the Department to assume sole parental responsibility for the children and for the children’s relationships with their parents to be a matter for Departmental determination.

2. The Secretary of the Department has intervened in these proceedings under s 91B of the Family Law Act 1975 (Cth) (“the Act”). As such the Secretary is a party to these proceedings: s 91B(2).

3. The Department, of course, is a non-parent. Many of the considerations set out in the Act relate to parents. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.

4. It is clear having regard to the circumstances of the children both historically and at present as referred to above that the Applicant Department is concerned with the care, welfare and development of the children.

5. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.

6. Consideration of the Applicant as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is therefore appropriate to apply the relevant considerations in respect of the Applicant by way of application of s 60CC(3)(m).

7. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

   … there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act).

8. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.

9. Finally, the Full Court in Yamada & Cain [2013] FamCAFC 64 said at [27]:

   The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

The relationship

1. The mother and father had been in a relationship from about 2003 until December 2007. It appears that there were periods of separation before December 2007 and periods of cohabitation since then.

2. The mother has three older daughters Ms F, Ms G, and Ms H, the subject children’s maternal half siblings. Those children are now aged 30, 28 and 25.

3. The parents and the children are aboriginal.

Departmental engagement and concerns

1. Since 2004 the Department has received 99 risk of harm reports in relation to one or more of the children. Those reports relate to various allegations including inadequate supervision, the capacity of the mother to care for the children, domestic violence against the children from both the mother and father, substance abuse and the child C exhibiting violent and suicidal behaviours.

2. On 21 May 2014 the New South Wales Police issued a provisional apprehended domestic violence order for the protection of the mother and the three children from the father. In addition to the usual statutory orders the order provided that the father must not approach or contact the protected persons by any means whatsoever except through his legal representative or as agreed in writing or as permitted by an order or directions under the Act for the purpose of counselling, conciliation or mediation.

3. It is common ground that the provisional apprehended domestic violence order has now been confirmed as a final order and it is in place until 10 June 2016.

4. The police application for the apprehended domestic violence order sets out various particulars including that previously there had been ten apprehended domestic violence orders in the period between 2004 and 2008. The application for apprehended domestic violence order was made following information from the child C that she was told by the father that “when he gets custody of us he is going to shoot you (the mother)” and “I’m going to get my colleague to shoot mum”. Having regard to the police knowledge as to the history between the mother and father it is not unsurprising that the apprehended domestic violence proceedings were commenced.

5. The Department became engaged again with the family as a consequence of the apprehended domestic violence proceedings but due to the existence of the provisional order the children were assessed as not being in need of care and protection.

6. On 18 September 2015 the mother informed the case worker that the father had recommenced contact with her, he asserting that the apprehended domestic violence order had been varied.

7. The Department holds significant concerns in relation to the child C who was hospitalised twice in August 2015. The child’s behaviour at school became concerning; the child crawling under the high jump mats saying “I want to suffocate”. The child was taken by ambulance to hospital where she had remained in the care of her teachers and her school principal. The child was later released from hospital into the care of the mother. Nevertheless the child attended school following day and her behaviour continued to be violent and aberrant, the child screaming “I want to die”. The mother attended at the school and refused to accompany the child in the ambulance to the hospital. The case worker reports that the mother “showed no concerns for her child’s actions”. The child was released from hospital the same day.

8. On 10 September 2015 the case worker conducted a home visit to the mother’s home. Whilst in attendance at the home the child was observed to lock herself in the garage and later climbed onto the roof throwing roof tiles onto the ground and threatened to throw tiles on the mother’s car and at her siblings.

9. It is reported that from May 2013 until March 2015 the child C was regularly seeing a counsellor as a consequence of a sexual assault.  In May 2013 the children B and C had snuck out of their mother’s home at 1:00am and gone to a neighbour’s home where they had been sexually assaulted by the neighbour. It was later alleged by the child B that the mother had left the children in that neighbour’s care while she went gambling.

10. The Department reports multiple risk of harm reports relating to the mother’s inadequate supervision of the children since December 2008. The allegations are set out in detail in the affidavit of the case worker filed on 29 September 2015. The Department further reports multiple incidents where the children have been exposed to physical and psychological harm as a consequence of the conduct of either the mother or the father.

11. The Department has significant concerns in relation to the physical and mental health of the mother, having received multiple risk of harm reports in relation to the mother’s mental health since 2005 including allegations that the mother has a gambling addiction, suffers from severe depression (including thoughts of suicide) and abuses alcohol, prescription medication and/or cannabis. There are numerous reports of the mother leaving the children in the care of her adult children and the children being underfed, inadequately clothed and their personal appearance being neglected.

12. The mother had previously in November 2009 been referred to early intervention services but failed to engage with that service with the file being closed in May 2010. The mother was later again referred to early intervention services in November 2010 with some involvement until September 2012. The Department from October 2012 has conducted casework with this family following a safety assessment by the Department in September 2012. The assessment identified dangers in that the mother “does not meet the children’s immediate needs to the extent that it results in serious harm or threat of serious harm to the children…” and that the mother “appeared overwhelmed by her current circumstances (chronic back pain) coupled with the children’s absconding on the behaviours that she is finding difficult to manage”.

13. By early 2013 the Department had concerns in relation to the mother’s abuse of prescription high level painkillers including Endone. The mother informed the Department at this time that when she takes the medication she “zones out” and feels helpless, hopeless, and like she is not making any progress. The mother sought to enlist her older daughters to assist with the children on weekends.

14. Subsequently the father had no engagement with the children from late February until May 2013 by reason of an injury suffered by him. The mother was thus without assistance from him in her day-to-day care of the children.

15. Circumstances in the mother’s home continued to deteriorate with the children being exposed in mid-2013 to inappropriate sexual issues. In early August 2013 the Department identified dangers in the mother’s household as the parents’ current emotional, psychological or cognitive functioning or physical condition/disability seriously impairs her ability to supervise, protect or care for the child…” However with the use of family, neighbours and other individuals in the community and community services as safety resources the children remained in the mother’s primary care notwithstanding the sexual assaults perpetrated in May 2013 by a neighbour.

16. In the period from 5 November 2013 to 14 April 2014 the Department received 14 reports regarding amongst other things, the children being hit by the maternal half siblings, the children being left in the care of their maternal half siblings when they are drug and alcohol affected, the mother providing insufficient care for the children and drinking in front of them, the children being exposed to a maternal uncle who is a “paedophile”, the children accessing inappropriate images of men on the mother’s phone and at school and the child D staying up late playing violent video games.

1. In a home visit on 11 April 2014 the case workers were informed by the mother that she was still trying to manage her pain. The mother complained that she had put on weight and had memory loss. She reported that she was taking OxyContin and codeine and they were highly addictive and she also took Panadeine Forte occasionally. The mother further reported that the maternal half sibling of Ms G had commenced using ICE and drinking heavily. The mother further reported that she had evicted the maternal half sibling Ms H out of her home because she was smoking marijuana. It was agreed by the mother as a safety plan that the children were not to be left unsupervised with their adult siblings and their partners.

2. Notwithstanding the terms of the safety plan the mother permitted the children to accompany Ms G and Ms H to the Easter Show without the mother being present.

3. Shortly thereafter the mother reported to the Department that the children were now in the care of the father. The father subsequently informed the Department that he and the mother had commenced a week about arrangement with the children.

4. In early August 2014 the Department received information that Ms G had been arrested for kidnapping an adult whilst under the influence of ICE and had been bailed to the mother’s address.

5. On 1 November 2014 the child C had accessed the mother’s medications using a stool to reach the cupboard whilst the mother was asleep. On returning from shopping the mother had found the children C and B asleep on the couch.

6. On 3 November 2014 the mother informed the Department on a home visit that three weeks before she had a car accident and had been using Endone, OxyContin, Valium and Endep but asserted that she had thrown the drugs away.

7. The Department continued to hold concerns in relation to the children in the mother’s care through late 2014 and on 30 June 2015 case worker met with the mother. There was discussion in relation to the basic needs of the children, the children’s referral to counselling, exposure to domestic violence, allegations about the mother’s alcohol use, the children’s exposure to unsafe people in the home and current parenting arrangements. The mother rejected concerns in relation to her alcohol use and lack of supervision and refused to agree to sign a case plan.

8. On 10 September 2015 a Departmental representative attended at the mother’s home and observed pictures on the walls of the bedrooms of C and B of men and penises and words like “sex”. There were also holes in the children’s bedroom walls. It was observed that the mother was not able to control the child C’s behaviour.

The father

1. Some aspects of the Departmental concerns in relation to the father are referred to above in so far as domestic violence is concerned. The Department has received a number of risk of harm reports relating to the father since 2011 including reports that he smoked cannabis and that the paternal family uses illicit substances.

2. The father tested positive to cannabis in two tests in August 2015 but negative to some other tests. The integrity of the negative results is somewhat suspect by reason of low creatinine levels. The father has to the Department’s knowledge had no contact with the children since the apprehended domestic violence order in May 2015.

3. The father rejects any need for domestic violence counselling asserting that there has never been anything physical in his relationship with the mother.

The children

1. Following the sexual assault in May 2013 the Department received a number of reports that the behaviour of C and B had deteriorated and become more difficult. The children attended counselling for a period with B stopping counselling in September 2014 and C stopping counselling in late March 2015. Information came to the Department that the father had discouraged both children from attending counselling.

2. In December 2014 a psychologist consulted in relation to the children observed that “many of the issues and reports seem to stem from neglect”.

3. In May 2015 at a home visit the children’s use of Internet dating sites was discussed with the mother. The mother asserted that C had opened an account for all three of the children.

4. In late July 2015 C’s school principal at Suburb I Public School reported concerns about the child’s behaviour. The child was defiant in class and among other things had “I want to die” written on her hand. At this time the mother reported that the child was not listening to direction and was being disruptive. The father shortly thereafter reported his concerns about the children being on Facebook using fake names and ages. The Facebook pages evidence the children receiving sexual responses to their images.

5. On 13 August 2015 the Department received a report that C had posted a video of B in the shower on YouTube. On 18 September 2015 the mother reported that C had cut herself out of family photos saying that she was not part of the family and she was refusing to go to school.

6. The children’s school attendances have at times been irregular with the C on occasions having been suspended.

7. On 26 September 2015 the Department received a risk of significant harm report in relation to B and C who were observed to be inadequately supervised. The mother reported C missing to the police and she was later found four stories up on the outside of the older half-sister’s building.

8. On 12 October 2015 the Department was informed by the police that C had been scheduled following a “manic attack”; the child had been taken to hospital and then discharged into the care of the mother. The mother reported that the child had been lying on the road. The mother picked up the child, took her off the road and put her in the car. When the car stopped the child jumped out of the car and ran into a house. The child was observed by the mother to be hitting herself with a stick. When the mother attempted to restrain her the child bit the mother on the arms causing her to bleed. The child was taken to J Hospital by ambulance.

9. On 14 October 2015 arrangements were made for all of the children to commence at Suburb K Public School commencing 15 October 2015. The child C attended the school on 14 October 2015 and was invited to stay for an induction. On that date the Department received a call from staff at the school who reported that the child C had “shut down” and ended up in a foetal position after being told she couldn’t start at the school until the following day. The school principal had expected the mother to wait at the school gate during C’s induction, but the mother had left the premises and gone home. The child left the school and ran across the road. The mother was called to come and collect her at the school.

10. The mother met with the case worker on 21 October 2015 and there were discussions in relation to the children’s schooling, C’s behaviour and the mother’s supports among other things. The mother reported that the child had been stealing now for a couple of months. Later, on 29 October 2015 the case worker attended C school to find that a police liaison officer was in attendance in relation to an incident where C had broken into a car at 12:00am and stolen a bag and other items.

11. The child C has more recently been voluntarily placing herself in situations of danger, running out in front of cars, sitting on the road and attempting to stick pins in her wrist.

12. A further safety assessment completed on 16 November 2015 determined that the children were deemed to be at high risk of neglect and abuse with the Department having concerns about the mother’s ability to provide ongoing care consistent with the children’s needs. During the assessment it was observed that drawings remained on the children’s bedroom walls of a naked male with a penis showing. Several days later the mother telephoned the case worker, having called 000 as the child C was attempting to hurt herself and the mother. The mother reported that whilst driving home the child had half her body out of the car window. On arrival at home the child threatened to hurt the mother with a blunt kitchen knife and was trying to harm herself with a coat hanger around her neck whilst attempting to get on the roof of the premises. The child was taken by ambulance to hospital. It was otherwise reported to the Department in relation to the same incident that the child was “going absolutely berserk” and that the child had held a knife to her chest and said “I’ll die”. She then held a knife to her wrist and later went outside and attempted to jump in front of moving cars. The child otherwise was reported to have tried to harm herself with a school compass and had stated that “a ghost in the school”, had told her to do so. On arrival at the hospital the social worker reported that the child was “too aggressive to assess” and that she was “hitting, screaming and throwing things”. The child was discharged later in the evening into the care of the mother.

The mother’s housing

1. In late September 2015 the mother received a breach notice in relation to the community housing property that she occupies with the children. On 15 October 2015 the mother informed the Department that she had been served with an eviction notice by community housing and that she had been asked to sign an agreement about the expected behaviour of community housing tenants. Her residential circumstances remain unclear.

2. The Department has sought assistance for the mother. In late October a referral form for the child C was forwarded to L Centre. Subsequently L Centre informed the Department that it would be unable to work with C while she remains in an unsafe environment. The Department also assisted the mother in completing an application for Sydney In-Home Care that provides an in-home child care service which seeks to encourage the development of life skills with daily routines.

3. On 29 October 2015 the mother appeared to the case worker to be very tired and stressed. The mother stated that she was struggling to manage C’s behaviours and that she was very close to taking her to a police station and leaving her there. In early November 2015 a Departmental officer made enquiries of the M family referral unit seeking respite care for C. There was no respite care available.

4. The mother’s ability to work has been severely impacted by C’s behaviour and the mother has commenced to receive food vouchers to assist in providing for her household.

5. For the reasons set out above the Department’s present assessment is that the children are currently at high risk of neglect and abuse living with the mother.

The mother’s case

1. The mother identifies with her particular aboriginal culture that has a matriarchal system.

2. The children, she says, have engaged well with their new school. The Department has no plans for the children’s schooling arrangements to change.

3. The mother’s preference is if the child C is to be placed with another carer that it be a family member and she proposes her cousin Ms N. Nothing is known of Ms N suitability in such a circumstance.

4. The mother acknowledges difficulties in relation to C’s behaviours and says that she and the child are no longer welcome in the homes of her friends or relatives who had previously taken care of C.

5. From what can be gleaned of the mother’s affidavit she lacks significant reflective capacity in relation to her own difficulties and the needs of the children should they remain in her care.

The father’s case

1. The father for his part denies any suggestions of violence in his relationship with the mother. He concedes that at various times during his relationship with the mother they shared drugs together. He says that save for a brief occasion earlier this year he has not consumed cannabis since separating from the mother.

2. He expresses significant concerns in relation to the behaviour of the child C and particular concern about the two elder children being the subject of a sexual assault at the hands of a friend and neighbour of the mother.

3. The father has recently obtained contract work and resides in rental accommodation.

4. However the background circumstances of the apprehended domestic violence order at least in so far as the facts asserted in the police complaint demonstrates that certain threats were allegedly made by the father to the mother through the child C. The facts further set out allegations of a significant history of domestic violence perpetrated by the father against the mother. The reality of those allegations awaits determination on a contested basis.

5. At present there is insufficient evidence before the Court that would facilitate the Court making a parenting order inconsistent with the present apprehended domestic violence order.

The ICL

1. The ICL supports the Department’s application.

Interim parenting

1. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120.     As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   123.     Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. The relevant principles in relation to parenting are well settled: Goode and Goode [2006] FamCA 1346, MRR v GRR [2010] HCA 4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In the context of this matter it is not necessary to undertake a detailed examination of each of the consideration set out in s 60CC. The issues are limited as discussed above.

4. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

5. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

6. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

7. In the factual background discussed above there are reasonable grounds to believe that either or both of the parents have engaged in the abuse of the subject children or family violence. In that circumstance the presumption as to equal shared parental responsibility is not to apply.

8. Otherwise by reason of the best interest considerations of the children discussed below is inappropriate that there be an order that the parents have equal shared parental responsibility and indeed that either of the parents have parental responsibility for the children.

Best interests: s 60CC

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The latter consideration is to given more weight.

Section 60CC(2)(a): “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. Regrettably in the circumstances referred to above a continuation of the children residing primarily with the mother could not be seen as fostering a meaningful relationship between the children and the mother by reason of background circumstances of neglect, lack of supervision, behavioural issues and risk particularly in relation to the child C that demonstrate the mother’s present incapacity to properly engage with the children. Similarly the father’s relationship is overshadowed by allegations of domestic violence and in the context of the present apprehended domestic violence order an engagement of the child C in the threat to the mother. The circumstances historically as to the father’s conduct await hearing on a contested basis as does the question of whether the children’s relationship with him should resume and on what basis.

Section 60CC(2)(b): need to protect

1. This is the most significant consideration in the context of this interim application. The background circumstances discussed above are clearly indicative of a need to take action to protect the children from further exposure to neglect and “abuse” arising from the mother’s lack of parenting capacity and her lack of reflective capacity as to the proper needs of the children. The matters discussed above are clearly indicative of a need for the children to be removed from the mother’s care.

The additional considerations: section 60CC(3)

1. In the context of the present application there is no evidence as to the children’s views. In the overshadowing circumstances of risk such views would in any event be given little weight.

2. The mother’s relationship with the children has been fraught with difficulties for many years. The children have been the subject of Departmental concern for a long period and as discussed above for good reason. At present there is a very strong inference that the mother is struggling to cope with the needs of the children particularly the child C. The continuation of her relationship with the children as primary carer is not in the best interests of the children. The father’s relationship with the children has been suspended by reason of the current apprehended violence order. He seeks to amend the restrictive provisions of that order so that in some fashion he may make application for a resumption of his relationship with the children. The children otherwise appear to have relationships of varying degree with the extended maternal family and half siblings. Those relationships also pose significant concern for the children’s welfare.

3. The mother has been the primary carer for these children with the father being engaged in their lives at various times. To this extent both of the children’s parents have had the opportunity to participate in decisions relating to the children’s lives.

4. The mother has been the primary financial provider for the children through her employment and otherwise through government benefits received. Subject to the children’s future living circumstances she will in all probability continue to be so. The father has only recently obtained employment and there is no evidence of his ongoing proposals in relation to financial provision for the children.

5. There is no doubt that the separation of the children from the mother will have an adverse impact on the children notwithstanding the present nature of their relationship with the mother. However the hiatus in their relationship with the mother subject to the Department’s discretion as to her time with the children is absolutely necessary for protective reasons as discussed above. The children’s relationship with the father is at present suspended by reason of the apprehended domestic violence order and he has it appears spent no time with the children since May 2015. It is to be inferred that at present the children are accepting of the father’s absence from their lives. Whilst in the care of the Department it is to be expected that the children will have limited contact with the extended maternal family, although the matters discussed above suggest that such limited contact will be in their best interests

6. There will be no practical difficulty or expense in the children spending time with the mother subject to the Department’s determination as to appropriate time. Similarly should the father be able to vary his apprehended violence order so as to be able to engage with the Department as to some time with the children then there would be no practical difficulty and expense, perhaps save for the question of supervision, in the children spending time with the father.

7. For the reasons discussed above the mother has significantly impaired capacity in relation to her ability to provide for the needs of the children including their emotional and intellectual needs. The father’s capacity in this regard is subject to historical concerns in relation to the perpetration of domestic violence and his capacity into the future is yet to be tested.

8. The mother stresses the children’s aboriginality and her identification with her tribe and its matriarchal traditions. However by reason of the matters discussed above the mother’s matriarchal role in relation to the children has been undermined and limited by her incapacity to cope with her parenting obligations and the needs of the children. The children have a right to enjoy their aboriginal culture notwithstanding that they reside within the suburbs of Sydney. Apart from references to the matriarchal nature of her tribe the mother gives no evidence as to any engagement through her by the children with aspects of their indigenous lifestyle, culture and traditions. However this is not an insignificant consideration and will be a matter relevant to the Court’s consideration on a final hearing.

9. Both parents have demonstrated an inappropriate attitude to the children and to their responsibilities of parenthood, firstly by reason of the mother’s inability to meet the children’s needs and secondly by reason of the allegations relating to the father as to ongoing domestic violence in the relationship. This factor will be a significant factor at final determination.

10. The mother makes allegations of historical domestic violence and such allegations are reflected in the evidence of the Department in the context of this interim hearing. The father is presently the subject of a final apprehended domestic violence order and there is an assertion that such order was made in his absence. In submissions it was contended that the father has sought to either repeal that order or to vary its terms.

11. These are interim proceedings and the orders to be made are made in urgent circumstances for the protection of the children. There may well be further interim issues arise as to the nature and extent of the mother and father’s time with the children and thereafter of course as to a final determination.

12. There appears to be no other relevant fact or circumstance.

Discussion

1. Ultimately the primary considerations as to the children’s relationship with each of the parents and protective concerns for the children are determinative of this interim application.

2. However a discussion of the additional considerations referred to above is clearly indicative of the orders being sought by the Department as being in the children’s best interests.

3. Orders will be made accordingly.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 December 2015.

Associate:     

Date:  4 December 2015