Department of Human Services and Santorno & Anor (No 2)

[2010] FamCA 463

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF HUMAN SERVICES & SANTORNO AND ANOR (NO. 2) [2010] FamCA 463

FAMILY LAW – CHILDREN – Intervention by the Director-General, Department of Human Services – With whom a child lives - Best interests of child – Exposure to serious emotional and psychological risk if the children live with the parents – children’s best interest in the care of the Director-General – children to spend supervised time with both father and mother

Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CC(3), 91B

APPLICANT INTERVENER: Director-General of the Department of Human Services

1st RESPONDENT FATHER: Mr Santorno

2nd RESPONDENT MOTHER: Ms Santorno

INDEPENDENT CHILDREN’S LAWYER: Verekers Lawyers

FILE NUMBER: NCC 384 of 2009

DATE DELIVERED: 3 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 28 April 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Guterres, Crown Solicitor's Office

SOLICITOR FOR THE 1ST RESPONDENT FATHER: Ms Temelkovska, Legal Aid NSW

COUNSEL FOR THE 2ND RESPONDENT: Ms Gibbons

SOLICITOR FOR THE 2ND RESPONDENT MOTHER: Hunter Family Law Centre

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mowbray, Verekers Lawyers

Orders

1. That order 1 of the orders made on 3 March 2010 shall continue pending further order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 384 of 2009

DIRECTOR-GENERAL OF THE DEPARTMENT OF HUMAN SERVICES 

Applicant

And

MR SANTORNO

1^st Respondent

And

MS SANTORNO

2^nd Respondent

And

INDEPENDENT CHILDREN'S LAWYER

REASONS FOR JUDGMENT

Introduction and Applications

1. These are interim parenting proceedings.  They involve the determination of the parental responsibility of, and parenting arrangements for an 11 ½ year old boy, N, born in November 1998 and his almost six year old sister E, born in June 2004. 

2. The case is somewhat complicated. 

3. The Director-General of the Department of Human Services as intervener seeks orders to the following effect:

   ·       That parental responsibility for the said children be allocated solely to the Minister for Community Services;

   ·       That the children spend time with their mother Ms Santorno once a week for two hours, such time to be supervised by the Director-General of the Department of Human Services or her delegate and exercised separately from the father’s time with the children; and

   ·       The children spend time with their father Mr Santorno once a week for two hours, such time to be supervised by the Director-General of the Department of Human Services or her delegate and exercised separately from the mother’s time with the children.

4. The children’s parents are Mr Santorno and Ms Santorno.  For convenience I shall refer to them as “the father” and “the mother” respectively.

5. The mother supports the application by the Director-General.  The father opposes that application and in turn seeks orders to the following effect:

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

   ·       That the children live with their father;

   ·       That the children spend time with their mother in effect from 9.30 am Saturday until 4.45 pm Sunday each alternate weekend, handover to be at the Centacare Children’s Contact Centre;

   ·       That the mother ensure that the children not be bought into contact with Mr L (“Mr L”);

   ·       That the children communicate with their mother by the mother telephoning them each Monday, Wednesday and Friday between 4.00 pm and 4.30 pm; and

   ·       That certain detailed restraints be imposed on each parent, the details of which are not necessary to include at this point.

Background

1. The background matters are as follows.  The father was born in 1966.  The mother was born in 1978.  They are 43 years and 32 years of age respectively.  The parties met in 1997.  At that time the mother was working in the adult entertainment industry and the father was a client of the mother.  They commenced cohabiting in 1998, they married in March 2005 and they separated on 26 December 2008. 

2. The father had had a very serious industrial accident in 1993 when he was working at a mining company.  He sustained serious burns to 60 percent of both his legs.  He received a substantial damages award for his injuries in 1998. 

3. The parties have had a somewhat tempestuous relationship.  The father concedes that the parties have had numerous disagreements and occasionally the disagreements became physical.  He says that the mother has been physically violent to him.  The mother says that he has been both physically and sexually violent to her. 

4. In any event in approximately August 2008 the mother went to work on the central coast.  The children stayed in the care of their father and their mother would see them approximately each fortnight.

5. The family were together on 26 December 2008.  At a time when the mother had left for a short time, N informed his father that his mother had a boyfriend.  When the mother returned there was an altercation between the father and the mother and the police attended.  The father was arrested and an interim apprehended violence order was made for the protection of the mother and the children from the father.  The mother took the children to the central coast area. 

6. The parents arranged to meet at Newcastle train station on 14 February 2009 so that the children could spend some time with their father.  On that day the father went to Newcastle by train in accordance with the arrangement.  He says that he saw both children that day and that they both informed him that they did not wish to stay with their mother, that their mother and her partner, Mr L, hit them and that they wanted to return to his care.  The father then returned to his home with the children, no doubt against the wishes of the mother.

7. The mother commenced parenting proceedings in the Federal Magistrates Court.  On 23 February 2009 orders were made by consent to the effect that the children live with their father and spend time with their mother.

8. The father alleged that the children told him on 24 and 26 March 2009 that they had been abused by their mother’s partner Mr L.  In April 2009 the JIRT officers interviewed both children. 

9. In May 2009 further orders were made by consent continuing the arrangement of the children living with their father and spending time with their mother.  The mother agreed not to bring them into contact with Mr L. 

10. In May 2009 the Director-General of the Department of Human Services was invited to intervene in the proceedings. 

11. The father alleges that subsequently the children informed him that when they had spent time with their mother, Mr L had been in attendance.

12. In June 2009 the father was convicted of common assault and of assaulting a police officer in the execution of duty.  The first conviction attracted a suspended sentence of nine months and the second conviction attracted a suspended sentence of six months.

13. In July 2009 the father’s home was repossessed and he and the children had to stay at a refuge. 

14. In late July 2009 the father was hospitalised in relation to suffering from acute pulmonary oedema and dilated cardiomyopathy.  The father was advised not to drive long distances.  This affected his ability to drive the children to spend time with their mother in accordance with the orders.  In these circumstances the father sought to vary the orders. 

15. On 11 November 2009 further interim orders were made to the effect that the children live with their father and spend each alternate weekend with their mother.

16. The family has been known to the officers of the Department of Human Services since 1999.  Since that time the Department has received a total of 38 risk of harm reports in relation to one or other or both of the children.

17. On 14 May 2005 the Department received a risk of harm report regarding a statement apparently made by N.  On 27 May 2005 the JIRT offices commenced enquiries into an allegation that N had said that “[D] put his doodle in my bum”.  Departmental offices understood the reference to “D” to mean the mother’s brother D.  Subsequently N and his parents were interviewed by the JIRT officers.  The enquiries were finalised and the Department subsequently closed its file.

18. Of the 38 risk of harm reports received by the Department, 31 have been received since the time the parties separated in December 2008. 

19. In April 2009 an enquiry by JIRT officers was conducted into allegations that N had been sexually abused by the mother’s partner Mr L.  Both children, both parents and Mr L were interviewed by the JIRT officers.  The JIRT officers finalised their enquiry and the Department subsequently closed the file in relation to this allegation.

20. In October 2009 the Department of Human Services informed the Court that they had decided not to intervene in the proceedings.

21. On 11 November 2009 an order was made by consent of the parents and the Independent Children’s Lawyer that Dr R be appointed as single expert witness to enquire into and report upon matters relating to the welfare of the children.  Further orders provided to the effect that the children live with their father and spend time with their mother with defined times each alternate weekend and for part of the school holidays.

22. On 23 November 2009 officers of the Department visited the father at his home.  During the course of that visit, the father invited N to inform the officers what Mr L did to him.  In response, the child said “[Mr L] touched me.  He put his cock in my bum.”  The father also invited the child to make other criticisms of his mother.  It was also clear that N was not attending school that day and that there was no reasonable excuse for this.

23. On 26 November 2009 when Departmental officers were interviewing N amongst other things N said “[Mr L] touched me” and “Mum makes black eyes.  Threw against wall.”  When asked how did Mr L touch him N said “on my bum” and that it was in the shower. 

24. Dr R interviewed the parents, the children, Ms T and the mother’s partner Mr L on 7 December 2009.  Unfortunately on that occasion there was an altercation involving the parties and Mr L.  Ultimately the police attended although no action was taken by them.  I note that this was a matter about which Dr R expressed serious concern during the course of his cross-examination.  Dr R finalised his report on 10 February 2010.  This was released to the legal representatives for the father and the mother and the Independent Children’s Lawyer on 16 February 2010.  It is clear from the recommendations at the conclusion of the report that Dr R had a serious concern about the father’s capacity to parent the children adequately other than for a limited period.  Dr R recommended that the Department of Human Services intervene and assess the children’s situation.  Dr R indicated that his first preference would be for the children to be taken into care by the Department of Human Services and then for appropriate limited contact with both parents to be assessed.  On 16 February 2010 this Court gave leave for the Independent Children’s Lawyer to release a copy of the report to the Department of Human Services and the Court requested the Department to give urgent attention to the earlier request on 22 May 2009 that it intervene in the proceedings.  

25. The Director-General of the Department of Human Services then filed the immediate application on 2 March 2010.  The application came before this Court on 3 March 2010.  On that occasion the Court made urgent orders to continue until further order in accordance with the said application.  The effect of these orders was to place parental responsibility of the children solely with the Minister for Community Services and to provide supervised time between each of the parents on separate occasions.  The proceedings were then adjourned to 9.30 am on 28 April 2010. 

26. The proceedings came before me on 22 March 2010.  I was informed that at least some of the parties wished to have the opportunity to cross-examine Dr R on 28 April 2010.  I indicated that I would give leave for that and arrange for there to be sufficient time in the list on that occasion for such a purpose.

Submissions

1. The Independent Children’s Lawyer Ms Mowbray, supported the application by the Director-General as did Ms Gibbons, counsel for the children’s mother.  In these circumstances the contest is between the Director-General and the father. 

2. It was submitted on behalf of the Director-General that the best interests of these children at the present time would be served by the Director-General having parental responsibility for them.  It was submitted that the overriding consideration in terms of the children’s best interests is to ensure that they are safe.  It was submitted that the important evidence of Dr R is compelling.  In particular Dr R has major concerns about each parent’s capacity to adequately parent the children.  Dr R has made it clear that his first preference in terms of the interest of the children is that they would remain in the care of the Director-General.  Dr R reported that if the children were to be in the care of the father this would be a matter of grave concern to him. 

3. On the other hand, Ms Temelkovska, the solicitor for the father, submitted that the best interests of the children at the present time lies in them being in the care of their father.  Ms Temelkovska made a somewhat complicated submission during the course of which she made reference to a number of provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Ms Temelkovska submitted that although the Department of Human Services has rights to intervene in the proceedings, it does not enjoy the same rights as a parent under the legislation.

Discussion

1. As indicated above, this Court requested the Director-General of the Department of Human Services to consider intervening in the proceedings and the Director-General has done so. This is in accordance with the provisions of s 91B of the Act. Orders in relation to children are made under Part VII of the Act. Section 60B of the Act provides that the objects of Part VII are to ensure that the best interests of the children are met by:

   ·       Ensuring that the 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;

   ·       Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   ·       Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·       Ensuring that the parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. I accept the submission by the solicitor for the father to the effect that in determining the application by the Director-General it is necessary to consider the matters set out in s 60CC of the Act. The provisions in this section set out the matters which facilitate the Court determining what is in the child’s best interests. These are firstly the primary considerations which are:

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

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

3. The additional considerations are set out in s 60CC(3). The first of these matters is any views expressed by a child and factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.

4. I accept the father’s assertions that N would like to be living with his father and this is consistent with Dr R’s report with respect to this matter.

5. Dr R said E wants to be able to see both her parents. 

6. The next matter to consider is the nature of the relationship of the children with each of their parents.  In reporting his opinion about this matter, Dr R also included observations and his future view about the capacity of each of the children’s parents to provide for their needs.  Dr R said as follows with regards to the relationship of the children and their father:

   I formed the view that [the father] cared a great deal about the children and wanted to act in their best interest.  [The father] presented as a low functioning person intellectually and dependent in his manner.  However, I believe he did have a good manner with the children and wanted to support them.  It appeared that he was able to care for them to a reasonable level for their respective ages.  I believe that he is probably capable of caring for pre-adolescent children with support but I don’t believe he is able to manage stressful situations that require discernment and judicious decisions.

   However I have major concerns about his ability to care for the children once they become more demanding during their adolescence.  [The father] was very child-like in his manner.  He appeared to be very dependent on [K].  He was like a lovesick child.  I have major concerns about his ability to care for the children in the long term.  He also appears to be rather ineptly trying to influence [N] to make allegations against [Mr L].  He probably is capable of managing the children for the next year.  In addition I have major concerns about his physical health.  He has had a major cardiac incident and he appears to be fragile emotionally. 

7. In reporting on the nature of the relationship between the children and their mother Dr R also included observations about the capacity of the mother to provide for the needs of the children.  In this regard Dr R said as follows:

   I formed the view that [the mother] did care about the children and wanted to support them.  However, I believe that [the mother] has major personality problems with borderline features of poor relationship ability and poor stability.  She has a history of a very unstable childhood and she suffered a lot of abuse and neglect and rejection.  I was very concerned by the reports particularly, from her foster mother about her treatment of [N] and verbal and physical abuse that she inflicted on him. 

   However, the children do have a connection with her and see her as an important person and as a parent figure.  I have major concerns about her parenting capacity and ability to place the needs of the children above her own.  She appears to be happy to inflame the situation by flaunting [Mr L] in front of [the father] at changeovers and other situations.  I suspect that she knows how to inflame [the father] and create a situation where [he] is going to have difficulty coping and she can then involve the police.  I believe that she is able to manipulate [the father] effectively and create situations where he can be in jeopardy.  For example, she said she was not in a relationship with [Mr L], yet two weeks after the separation she was residing with [Mr L]. 

8. The next consideration is the likely effect of any change in the child’s circumstances, including that on the child of any separation from either his or her parents or any other child.  During his cross-examination Dr R said that he did have concerns about the fact that N was separated from his father, him being in the care of the Director-General.  Dr R quickly added that he had major concerns about the effect that the father was having on N.  These included the numerous and ongoing statements which the father made to N about his mother; the fact that N had made numerous allegations about having been sexually abused, none of which Dr R thought had any reality about them.  Dr R also said that he was concerned about the father’s lack of insight into the pressure that the father’s behaviour in this regard was imposing on N, that he thinks N is very confused and that the whole situation in the household with his father is well beyond the capacity of N to deal with emotionally.  In addition, he thought that the child was becoming somewhat “parentified” in that he was trying to care for his father.

1. The next matter to consider is the practical difficulties and expense of the children spending time and communicating with their parents and whether this would substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis.  It is true that in the care of the Director-General there are some practical difficulties in terms of the children spending time with their parents.  What is proposed, and in fact what is reflected in the current order, is that the children spend time with their mother once a week for two hours under the supervision of the Director-General and that they spend a similar time with their father again supervised by the Director-General.  Clearly this is far from an ideal situation and is probably the absolute minimum that would be required in order for them to be able to have a relationship with their parents.  There are a number of difficulties.  Firstly, in the event that time spent between the children and their parents was not supervised then the behaviours of the parents about which Dr R is critical, namely the mother’s manipulation and the father’s negative statements about the mother and condonation of a situation in which N feels encouraged to make false allegations about a number of persons perceived to be supporting the case of his mother, would expose the children to the potential for emotional abuse.  There are no doubt practical difficulties because it might not be a simple matter to arrange times between the parents and the children which easily fit into responsibilities of the particulars carers with whom the children live.

2. I refer again to the capacity of each of the children’s parents and to their attitude to the children and to responsibilities of parenthood which they have demonstrated.  Clearly there are worrying deficits on the part of each of the parents in relation to these matters.  I have referred above to some of the concerns expressed by Dr R.  At this point in time, the mother is simply incapable of adequately providing for the children’s needs, other than in a supervised situation.  Dr R thought that the father was able to protect the children at least in the physical sense, but he did not consider the father to be capable of properly protecting them in an emotional and psychological sense.  Amongst other matters, Dr R thought that the father’s own emotional needs would often stand in the way of him being able to give priority to the needs of the children and this was particularly the case concerning the father’s relationship with the mother.  In addition, Dr R said that he also had major concerns about the father’s physical health with regards to the above.

Conclusion

1. There are some deficits for these children in terms of what the Director-General proposes.  Clearly they are attached to the father they express a desire to live with him and removal of them from him is not a matter which would be done lightly.  There are also no guarantees that the children will be able to live together and in fact this is the situation at the present time because they are with different carers.  Also the children clearly love their father and generally they are happy in his care. 

2. Having said this, the Court is unable to avoid the conclusion that if the children were to be returned to the full time care of their father, there would be exposure of them to some very serious risks, in terms of their emotional and psychological well being.  The most that Dr R was prepared to say in terms of the children being able to be managed by their father was that he thought the father was probably capable of managing the children for the next year.  But he added that this would be subject to ongoing assessment of the father’s parenting of the children by the Director-General and ongoing maintenance and support provided by Departmental officers who would have to oversee the father’s parenting.  But it would also involve the father taking steps to address the very serious emotional issues that he has with the children’s mother and there is no evidence that he has been endeavouring to do this. 

3. It is clear, in my view, on the basis of Dr R’s opinion that the father is not adequately providing for the needs of these children as a parent.  In my view, it is also clear that the father needs considerable support from the Department in order to provide parenting of the children.  But even in circumstances of such ongoing support, the Court could not be confident that the emotional and psychological risks to which the children are exposed in the father’s household would not be ongoing.  This is particularly the case because the father appears to have done nothing in terms of learning to manage his somewhat obsessive behaviour towards the mother and to gain some insight into the pressure N is under because of the father’s emotionally dependent behaviour. 

4. If the children continue to be in the care of the Director-General and spend time with each of their parents under appropriate circumstances as is envisaged by the orders sought by the Director-General, then that would eliminate any possibility of exposure of the children to such risks to their emotional and psychological well being because the time spent would be supervised.  In my view, when one compares the deficits to the children on being under the care of the Director-General, with the deficits to the children if they were to be returned to their father’s care, in my view, the conclusion is that their bests interests would be served by a continuation of them being in the care of the Director-General. 

5. In these circumstances, in my view, the application by the Director-General should be granted. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              3 June 2010