Department of Family and Community Services NSW and Munroe and Ors

[2013] FamCA 981

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSW & MUNROE AND ORS [2013] FamCA 981

FAMILY LAW – CHILDREN – Interim – The subject child removed at birth by the Department of Family and Community Services and placed under a Care Order – Risk of harm

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

Goode and Goode [2006] FamCA 1346, (2006) FLC 93-286
Marvel & Marvel (No. 2)[2010] FamCAFC 101, (2010) 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92, (2009) FLC 93-405, (2009) 41 Fam LR 483
MRR v GRR [2010] HCA 4, (2010) 240 CLR 461

APPLICANT: Department of Family and Community Services NSW 

1st RESPONDENT: Mr Munroe

2nd RESPONDENT: Ms A Watson

3rd RESPONDENT: Mr Mullow

INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

FILE NUMBER: PAC 4413 of 2011

DATE DELIVERED: 16 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Harris of Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Youssef of Marsdens Law Group

Orders

1. That pending further order sole parental responsibility for the child C born on … September 2013 (“C”) be allocated to the Minister for Family and Community Services.

2. That C spend time with the mother and the father, Mr Mullow, supervised by Departmental officers.

3. That the mother and father confirm by email their attendance at weekly scheduled contact visits at least twenty-four (24) hours prior to each visit or the supervised visit will be cancelled by the Department.

4. That the proceedings be adjourned to before the docket Registrar on a date to be fixed in respect of the release of the single expert report.

5. That the proceedings be relisted for a judicial case management hearing as soon as practicable after the release of the single expert report.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services NSW & Munroe and Ors 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: PAC 4413  of 2011

Department of Family and Community Services NSW  

Applicant

And

Mr Munroe

First Respondent

And

Ms A Watson
Second Respondent

And

Mr Mullow
Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The Proceedings

1. The proceedings before the Court relate to the child C, (“C”) born in September 2013 and removed from her mother’s care at birth by the Director-General of the Department of Family and Community Services, (“the Department”).

2. Proceedings were commenced by the Department on 10 September 2012 in relation to the child B born in September 2012. The Respondents to that application were the mother Ms A Watson and the father Mr Mullow.

3. The mother has a third child, D, born in December 2007. That child presently resides with his father Mr Munroe. Mr Munroe is also a party to these proceedings.

4. Prior to the birth of the child B, the Department held concerns as to the risk posed to the child following being born into the household of the mother and her partner Mr Mullow. In short, those risks related to previous sexual offences committed by the father, Mr Mullow, in respect of which in August 2004 he was sentenced to a period of 6 and a half years imprisonment and to information arising from the father’s engagement with New South Wales Probation and Parole that revealed a complex history of mental health disorders and ongoing assessment by a number of medical experts prior to his conviction and during his imprisonment.

5. Notwithstanding the Department communicating their concerns to the mother, the mother informed the Department that she wished to continue her relationship with the father.

6. Following the birth of the child B at Suburb E Hospital, Departmental workers attended at the hospital to assume care of the child pursuant to an emergency Assumption of Care Order. At the time of the Care Order being made, the child remained at Suburb E Hospital and was later placed with authorised carers on 11 September 2012. Thereafter, on 14 December 2012, the child commenced a medium-term placement with authorised carers. It is the Department’s intention that the child will remain with those carers until the pending proceedings relating to the child are resolved.

7. On 21 June 2013 Dr L was appointed as the single expert to provide a report for the Court’s assistance regarding the welfare of the children D and B.

8. In April 2013 it came to the attention of the Department that the mother may be pregnant again. The evidence before the Court is clear that the mother endeavoured to hide this pregnancy from the Departmental officers when she was spoken to.

9. As a consequence of concerns in relation to the mother’s pregnancy, high risk birth alert requests were submitted to New South Wales Health by the Department. On 22 August 2013 the Department received information that as at 18 April 2013 the mother was 16 weeks pregnant with an expected due date of 11 October 2013.

10. The mother and father did not confirm the pregnancy until 27 August 2013, at which time the mother was approximately 7 months pregnant.

11. On 11 September 2013 the mother attended her first antenatal visit at Town F Hospital with a second appointment booked for 18 September 2013.

12. Information available to the Department from Town F Hospital revealed concerns by the midwife in relation to the mother and father’s poor hygiene and that the mother and father had volunteered to the midwife that they had had previous children removed by the Department.

13. On … September 2013 the Department received notification of the birth of the child C. Following the child’s birth, she was placed in the special care nursery. On the same day, Departmental officers attended at the hospital and the child was made the subject of an Order for Assumption of Care.

14. In relation to the child C, the Department filed an Application in a Case on 25 September 2013 seeking, in summary, the following orders:

    a)That pending further order sole parental responsibility for the child C born … September 2013 be allocated to the Minister for Family and Community Services;

    b)That there be an Independent Children’s Lawyer appointed;

    c)That Orders made on 12 September 2012 as to the mother’s time with the child B be discharged;

    d)That C and B spend time with the mother and father supervised by Departmental officers;

    e)That the mother and father confirm by email their attendance at weekly scheduled contact visits at least 24 hours prior to each visit or the supervised visit will be cancelled by the Department.

15. The Department’s Application in a Case came before the Court on 27 September 2013 and on that date, by consent, the appointment of Dr L as single expert was discharged and Dr G was appointed and the terms of the appointment extended to include the child C.

16. Otherwise on 27 September 2013 the Court, in summary, made the following orders by consent:

    a)That an Independent Children’s Lawyer be appointed for the child C;

    b)That pending further order sole parental responsibility for the child C born on … September 2013 be allocated to the Minister for Family and Community Services;

    c)That orders made on 12 September 2012 as to the mother’s time with the child B be discharged;

    d)That C and B spend time with the mother and father supervised by Departmental officers;

    e)That the mother and father confirm by email their attendance at weekly scheduled contact visits at least 24 hours prior to each visit or the supervised visit will be cancelled by the Department.

17. The Court further ordered:

    a)That the proceedings be adjourned to 15 November 2013 for interim hearing,

    b)That the Respondent mother and Respondent father file a response to the Application a Case filed on 25 September 2013, together with any affidavit to be relied upon in support of orders sought by them, by 8 November 2013;

    c)That the Department file and serve any updating affidavit to be relied upon by 8 November 2013;

    d)That the parties be granted leave to issue such subpoena as they consider relevant, to be made returnable by Friday 1 November 2013.

18. The proceedings came before the Court for interim hearing on 15 November 2013.

19. Notwithstanding the directions made by the Court the mother and father failed to file a response to the Application in a Case filed by the Department, but at interim hearing they made it known to the Court that they sought orders that the child C live with them pending further order.

Background

1. The Department’s position at the interim hearing was one of overriding protective concerns in relation to the child C. The Department’s primary concern was as to the father and the mother’s ability to protect the child from the father in circumstances where her position was that she wishes to continue residing with the father on a full-time basis. The Department contends that the father and mother present an unacceptable risk to the child.

2. The Department raised a number of objective concerns arising from the documents before the Court as set out hereunder.

The father’s history of sex offending and mental health

1. The father was charged with sexual intercourse without consent and two charges of doing an act with intent to pervert the course of justice arising out of that incident in June 2003. In June 2004 the father was convicted by a jury on all charges and was remanded in custody pending sentence. The father was sentenced in the District Court of New South Wales in August 2004.

2. During sentencing remarks the trial judge said:

   The offender has demonstrated no remorse for his crime and no insight into his behaviour. His impulsiveness and lack of sensitivity for the needs of others is a matter of concern. Although he has his family support I cannot be optimistic about his prospects of rehabilitation and that he will not reoffend. …

   … I am satisfied beyond a reasonable doubt that, at the time of intercourse, the offender knew that the victim was vulnerable because of her disability. This is an aggravating feature. The fact that he called his friend and arranged for the time of his visit to be put back, leaving himself and the victim alone in the house, shows that there was some premeditation.

3. In September 2003 the father was examined by Dr H, forensic psychiatrist. In his resultant report, it was observed that:

   It is probable that [the father] has a severe personality disorder and it is also likely that in the context of that he suffers significant disturbances of mood from time to time.

   And then:

   He hasn’t seen a psychiatrist now for a number of years and in view of his long history of reported difficulties it would be my recommendation that he received long-term community-based care from psychiatrists and psychologists. I note he is receiving an antipsychotic medication and he has been on this medication now for some years. Psychiatric review will be necessary because medications of that type can have side effects if used in the longer term.

4. In March 2004 the father was examined by Dr J, consultant psychiatrist, on referral from his general practitioner.  The subsequent report notes “[The father] has a long history of troubled behaviour going back to infancy when he was diagnosed as suffering from autism”. In interview the father told the psychiatrist that his cousin had been sexually abusing him for many years and had introduced him to the “S & M” scene. The father is reported to have said when asked what his life had been like over the years “shit, that’s why I’ve tried to kill myself plenty of times, though there’s been some good times.” The psychiatrist reported that the father had mutilated his face, cut himself, taken substantial overdoses of Dymadon, jumped in front of cars and a gamut of like behaviours. As to diagnosis the psychiatrist reported:

   [The father] provides a challenge both diagnostically and in terms of management. As regards diagnosis, a number of features are striking. He appears to have minimal capacity for empathy with others, poor communication skills and distinctly odd prosody characterised by a monotonous voice. I suspect the likeliest to diagnosis is one of Asperger’s disorder or high functioning autism….. His presentation is underpinned by a personality structure grounded in the autistic spectrum.

   The psychiatrist continued:

   Management is an even more difficult proposition. I think he will need guardianship of all his affairs including his finances, his health and his accommodation…. The process would need to be managed through the Office of the Public Guardian. ….. He has a recognised psychiatric illness but not one that would justify hospitalisation under the Mental Health Act.

5. In a report in April 1996 Dr K, consultant psychophysiologist, observed:

   (The father’s) behaviour has been such that it appears that he has been a sexual perpetrator to other members of his family and for this reason he was asked to leave home some time last year.

   And then:

   … he currently also presents as having many of the features of borderline personality disorder….. Perhaps a differential diagnosis of schizophrenia could be considered.

6. In December 2007 a psychological report was prepared by the Department of Corrective Services whilst the father remained incarcerated in anticipation of a forthcoming parole hearing. At the time of the report the father’s non-parole period was to expire in December 2007 and the full term of his imprisonment in December 2010. The father’s criminal history included previous convictions for common assault in March 1999 and a common assault and malicious destruction of property in December 1999. The authors of the report had regard to the remarks of the sentencing judge in August 2004 on which date the father was sentenced to a term of six years and six months with a non-parole period of three years and six months. The father reported that he was sexually molested by a female cousin three years his senior between the ages of 18 months and 16 years. He asserted that this molestation included touching, oral sex, penile – vaginal intercourse from the age of 11 and bondage from approximately 13 years old. The father further reported that he and his cousin were gang raped by a group of males when he was 12 years of age, although the incident was never reported by him. The report writers noted that some of the father’s self-reported behaviours during interview were contradicted by information contained in other reports.

7. Whilst incarcerated the father participated in an “Understanding Sexual Offending” course over eight sessions. The course facilitator reported that the father presented as attention seeking and argumentative, he appeared to perceive himself to be the victim and made somewhat extreme misogynistic statements. In July 2007 the father was referred to the Sex Offender Program. He was found to be unsuitable due to his categorical level of denial. He attended one session out of a possible 14 of a pre-treatment motivational course in March 2007. It was reported that his participation was “dismissive”. He was offered a further opportunity to participate in the pre-treatment motivational course in September 2007 but refused the offer.

8. The report noted that, in addition to the behaviours noted above, the father reported that he had attempted to overdose on various medications mixed with alcohol, has attempted suicide by jumping in front of cars and trucks, by hanging and attempting to shoot himself. The father reported that all of these occasions have been a reaction to difficulties he has experienced with females. As to the offence in respect of which he was incarcerated the father denied any responsibility, asserting that he had been set up. The report notes that the father may lack understanding of the dynamics of sexual assault and minimise the responsibility of perpetrators.

9. A risk of reoffending assessment was undertaken in relation to the father and he was placed in the medium to high category of risk of reoffending. Statistically, about one third of offenders in the same category as the father reoffended within 5 to 10 years.

10. Whilst in custody the father was charged in June 2008 with aggravated sexual assault in company. The offence related to an incident that occurred in 2002. However, those charges were later dismissed.

Continuing risk

1. As the father pointed out in submissions, the matters referred to above are historical in nature. However, it was contended on behalf of the Applicant Department that there is a perceived continuing risk in relation to both the behaviours of the father and mother.

2. Subsequent to the father’s release on parole he formed a relationship with the mother.

3. Following the father’s release from custody the father in late 2010 attempted to visit former acquaintances that remained in custody in relation to sex offences. In doing so he was accompanied by his young daughter.

4. In early September 2011 the father was the subject of a complaint to police by a 17 year old woman alleging that she had been sexually assaulted by the father.

5. In April 2012 the father was the subject of a police report in relation to an incident that occurred between himself and a former cellmate. The former cellmate attended at the father’s premises, refused to leave and the police attended. Later the same day the father was the subject of a further police report in relation to the same circumstance where he alleged a former cellmate was attempting to move into the father’s premises.

6. In May 2012 the father was the subject of a further police report. The father complained that a former cellmate had on that day sent him a text message describing him as a “child offender”.

7. In June 2012 the father was the subject of a further complaint relating to sexual assault in relation to a person under the age of 18 years. The police applied for and obtained an Apprehended Violence Order protecting the alleged victim from the father. The police COPS records note that the father currently resides at Suburb M where he rents out rooms to young teenage females. Subsequently, in August 2012, the father was informed that the police would in September 2012 withdraw the Apprehended Violence Order against the father as a consequence of the alleged victim not wishing to continue with the complaint.

8. On 18 February 2013 the father’s psychologist Ms N provided a letter on behalf of the father to the Crown Solicitor’s office. In that letter Ms N says in relation to the father:

   I have known [the father] for several years, but he only attends with his mother at my office. He has been to jail for six years for sexual assault which he denies and is seeking review of his case as he states, and always has, that he is innocent. He has several matters including the custody of his daughter [O], the issues of someone using his name with the tax Department, and now the issues of access to his baby daughter. I find his situation very complicated and confused and [the father’s] mental health issues do not help.

   It is noted that in his attendance upon Ms N on 6 May 2013 he informed Ms N that the mother was four months pregnant. This notwithstanding what he and the mother asserted to the Department’s offices and to the police on 15 July 2013.

9. On 4 October 2013 the father’s general practitioner Dr P renewed the father’s mental health plan referral to his psychologist Ms N. The referral letter comprises part of Exhibit F. The father’s conditions are, inter alia, set out as follows:

   -    ADHD;

   -    Abnormal hepatic function;

   -    Asperger’s syndrome;

   -    Borderline personality disorder;

   -    Depression;

   -    Paranoid schizophrenia; and

   -    Split personality disorder.

1. On 14 October 2013 the father attended upon his psychologist Ms N, accompanied by his mother. Ms N noted that the father “only seems to attend when he wants something” and “really doesn’t understand why his three children and his partner’s son are not with them”.

2. Of further significant concern to the Department is the New South Wales Police Service engagement with the father in 2013.

3. On 30 May 2013, as a result of police enquiries that revealed the regular attendance of a known child sex offender at the father’s premises and the father’s regular communication by phone with another known child sex offender, officers of the New South Wales Police Service attended at the father’s home. The father was informed of the police enquiries and that persons with whom the father was associating had been convicted of indictable offences. The father was warned in relation to his consorting with those persons. At the time of the warning the mother in these proceedings was present.

4. The father was further warned about consorting with persons outside the Department of Corrective Services grounds at Suburb E Community Offenders Support Group premises. Police officers later attended upon one of the persons with whom the father was consorting and that person was formally warned in relation to any ongoing association with the father.

5. Subsequently, on 15 July 2013, officers of the New South Wales Police attended at the father’s premises accompanied by Departmental officers. The police records note that the Department officers were concerned for the unborn child of the mother due to her history and the fact that she associated with child sex offenders.

6. Notwithstanding the mother’s advanced state of pregnancy, the mother denied that she was pregnant. Police records disclosed that the mother was quite visibly pregnant. The father asked the attending police officers to escort the Departmental officers off the premises. The police officers remained until the Department’s officers had completed their enquiries.

The mother’s general practitioner’s notes

1. The mother also consults Dr P as her general practitioner. Dr P’s clinical notes refer to the mother’s attendance upon him from February 2012 to date from Exhibit C. It is to be noted that on each occasion that the mother attended upon her general practitioner she was accompanied by the father.

2. The doctor’s notes for 22 March 2013 state one of the reasons for the mother’s attendance was pregnancy. The mother informed the doctor that a pregnancy test had been faintly positive two weeks before. The mother attended upon Dr P again on 10 April 2013 and he referred the mother for an ultrasound. On 23 April 2013 the ultrasound revealed that the mother was some 14 weeks pregnant. Notwithstanding this information the mother continued to assert to the Department, as referred to above, that she was not pregnant.

3. On 18 June 2013 a Departmental officer spoke to Dr P who confirmed the mother’s pregnancy. The doctor’s notes confirm that the mother attended no antenatal visits at his practice.

The Nature of Interim Proceedings

1. In Marvel & Marvel (No. 2)[2010] FamCAFC 101; (2010) 43 Fam LR 348 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.

Discussion

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode [2006] FamCA 1346, (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

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

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

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

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

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

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

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

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

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

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

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

3. 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.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. 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. 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)];

   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 section 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 Goode (supra) the Full Court (Bryant CJ, Finn and Boland JJ) discussed the application of the presumption in section 61DA to interim proceedings and said at [56]:

   In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

8. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR [2010] HCA 4, (2010) 240 CLR 461 affirmed the legislative pathway.

9. In Marvel(No. 2) (supra) the Full Court further observed at [105] to [107] in relation to the need to consider whether the presumption in 61DA applies in interim proceedings:

   105. … we are satisfied the legislation required his Honour to turn his mind to whether or not the presumption applied, or whether under s 61DA(3) he should not determine that issue. That he did not do.

   106.We have already alluded to the fact that the legislation, after the amending Act, imposes on a judicial officer determining a parenting application, be it interim or final, consideration of a number of provisions of Part VII. We are conscious, particularly for judicial officers determining interim parenting matters in a busy court, such as the Federal Magistrates Court, and where issues may be narrowly confined, or there is only a single issue to be determined, that the requirements of Part VII are onerous, particularly if an order for equal shared parental responsibility has been or is to be made. However the legislation mandates the path which must be followed.

   107. Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied. We accept the task involved in a final hearing when only narrow issues are to be determined, nevertheless requires the legislative path in all its complexity to be followed if an order for equal shared parental responsibility has been or is to be made.

The Presumption

1. The Court is not satisfied that in all the circumstances of this matter that it is not appropriate for the presumption to apply. In that circumstance the orders to be made by the Court fall to be determined by reason of a consideration of the best interest considerations set out in section 60CC of the Act.

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.

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

1. In Mazorski & Albright [2007] FamCA 520; Brown J considered 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] FamCAFC 92, (2009) FLC 93-405, (2009) 41 Fam LR 483 the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. In the context of these proceedings, particularly having regard to the concerns raised by the objective evidence referred to above, there is little prospect of the mother and father having a relationship with the subject child that in the current context can be regarded as meaningful, nor is it appropriate for the Court to make orders that might facilitate such a relationship on an interim basis.

4. That in no way predicates what might happen ultimately at final hearing once all the evidence has been tested and the Court is able to make an informed determination.

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

1. It is clear that the most important consideration in this matter is the need to protect the subject child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

2. In referring to the matters set out above, the Court has no doubt that the concerns of the Department, which are also echoed by the Independent Children’s Lawyer, are pervasive in this matter.

3. The objective evidence available from documents provided to the Court on subpoena clearly evidences that to place this child in the care of the mother and father, and indeed to allow the mother and father to have time with the child other than as determined by the Department, is fraught with uncertainty and real concern for the child’s welfare.

4. Whilst the Court is conscious of the various other factors provided for in section 60CC, the protection of the child is, in itself, a sufficient consideration alone to determine this interim application.

The relevant s 60CC(3) additional considerations

1. The Court has had regard to each of the additional considerations set out. None of those considerations are of significant utility in determining the present application having regard to the overarching protective considerations that are determinative.

The Pathway

1. Having determined that the presumption as to equal shared parental responsibility is rebutted, for the reasons referred to above, the Court does not need to consider whether equal or substantial and significant time is in the child’s best interests or, indeed, reasonably practicable.

2. The orders to be made by the Court are to be determined by reference to the best interest considerations set out above.

3. For the reasons set out, the Court is satisfied that it is in the best interests of the subject child to remain in the care of the Director with the mother and father to spend such time with the child as is determined by the Director from time to time.

4. The Court will make orders accordingly.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 December 2013.

Legal Associate:      

Date:    16 December 2013