Derry and Harwood

[2007] FamCA 1453

FAMILY COURT OF AUSTRALIA

DERRY & HARWOOD [2007] FamCA 1453

FAMILY LAW – CHILDREN – LAT hearing – where mother initiates proceedings but fails to continue – application dismissed for want of prosecution – where mother makes serious allegations concerning father’s ability to care for child – ICL investigates child’s circumstances – where Court Experts conclude child is meeting developmental milestones in accordance with chronological age – child settled and happy – where mother has chronic drug and alcohol addictions – where mother physically and emotionally abusive to father and child – equal shared parental presumption rebutted - child to live with father and he to have sole parental responsibility

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1),61DA(2), 61DB, 64A, 65AA, 65DAA, Pt VII

Goode & Goode (2006) FamCA 136

APPLICANT: Ms Derry

RESPONDENT: Mr Harwood

FILE NUMBER: (P)NCF 521 of 2006

DATE DELIVERED: 4 September 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 16 August 2007

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Mr Fleming

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Olsen

Orders

1. I give leave to the father to file in court his affidavit sworn 16 August 2007.

2. That the application filed by the mother at M Local Court on 1 August 2006 is dismissed for want of prosecution.

3. That all prior parenting orders are discharged.

4. That the child T born … December 2004 live with the respondent father.

5. That the respondent father has sole parental responsibility for the child.

6. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. That all outstanding application do otherwise stand dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Derry & Harwood is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCF521 of 2006

MS DERRY

Applicant

And

MR HARWOOD

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings concerning the parties’ daughter T, born in December 2004.  The child lives with her father.  She has not seen her mother since about December 2006.  The proceedings started with the mother’s application filed on 1 August 2006 at M Local Court.  Essentially the mother applied for orders that the child lives with her.  On the first court date, 15 August 2006, the parties entered into an interim shared cared arrangement, which basically provided that the child live with each party for three nights on an alternating basis.  The proceedings were then transferred to the Family Court.

2. On 23 October 2006 the M Local Court interim orders were discharged.  Pending a further interim hearing, it was ordered that the child lives with her father and that he has sole responsibility for decisions about her care, welfare and development.  The father was restrained from allowing the child to have contact with her mother other than as arranged between the parties and the Independent Children’s Lawyer.  Because of the serious issues raised in the proceedings and the Department of Community Services prior involvement with the family, DoCS was requested but declined to intervene.

3. The parties agreed that their hearing would be determined pursuant to Division 12A.  The first day of their final hearing commenced before me on 18 December 2006.  The parties, their lawyers and the Independent Children’s Lawyer all participated in the first hearing day.  Having identified the issues requiring determination, I then made a series of orders including orders for DNA parentage testing.  These orders addressed the mother’s evidence that Mr Harwood is not the child’s father.  Although the mother failed to cooperate with the DNA parentage testing, the laboratory was able to determine the child’s parentage on the basis of DNA samples taken from the child and the father.  In its report dated 10 August 2007, the testing laboratory concludes:  “…  This equates to a conservative relative chance of paternity of 99.997 per cent.  The relative chance of paternity with a single band shared at each locus is 99.99999 per cent.”  On the basis of the DNA parentage testing results I am satisfied that Mr Harwood is the child’s father.  This finding accords with the child’s birth registration.

4. Both parties were restrained from using illegal drugs and required to submit to random urine testing as requested from time to time by the Independent Children’s Lawyer.  The father complied with these orders but the mother did not.  The father’s drug screenings report occasional low quantities of THC.  This corroborates the father’s evidence that no more than once a month he may use a small amount of cannabis and does not abuse other drugs.  By the time this hearing was completed he was well on the way to achieving complete sobriety.

5. On the Independent Children’s Lawyer’s application, the parties agreed to complete intake procedures at a supervised contact centre.  This was so that the mother and the child could spend time together without the child being exposed to an unacceptable risk of drug abuse or family violence.  The father complied with the order, the mother did not.  Not long after these orders were made the mother disappeared.  She has not participated further in the hearing.

6. On 8 May 2007 I gave the mother’s lawyers leave to withdraw from the proceedings.  Before the mother lost interest in the proceedings she made serious allegations concerning the father’s parenting ability.  Even although the father was now unchallenged in continuing the child’s fulltime care, I agreed with the Independent Children’s Lawyer that further investigation of their circumstances was warranted before the hearing was finished.  With this in mind, orders were made for Dr S to complete a paediatric assessment on the child.  This was particularly necessary to assess her whether she was achieving her developmental milestones in accordance with her chronological age and determine whether she showed signs of foetal alcohol syndrome.  The father cooperated with these investigations.  Dr S reports that the child is developing well and appears to be a happy and well cared for child.  This conclusion reveals that with his families support the father has been meeting the child’s physical and emotional needs.  Fortunately notwithstanding the mother’s drug and alcohol abuse there is no evidence of foetal alcohol syndrome.

7. Dr R, a child and family psychiatrist, was appointed to investigate the child’s relationship with her parents, explore their parenting capacity and make recommendations concerning the child’s future care.  Dr R was unable to assess the mother’s relationship with the child or her parenting capacity because the mother failed to participate in the assessment process.  As well as reviewing documents, Dr R met with the father, his father, the stepmother and the child.  Dr R spoke with staff at the child care centre where the child attends two days a week.  In her report dated 17 July 2007 Dr R provides a useful summary and discussion of its main points.  In relation to T, Dr R concludes:

   [T] is a happy, confident, well regulated two year old who displayed attachment to her father and her paternal grandmother.  She is thriving in her father’s care.  While there are doubts whether he is her biological father, he is undoubtedly her psychological father.  There would have to be significant child protection concerns to remove [T] from [the father’s] care.  She would be traumatised by the loss of him and the extended [Harwood] family. It would be advantageous for her to develop relationships with her brother and sister, but only if this could be managed without disruption to her current good development.

8. In relation to the father, Dr R says that: 

   He presented as a caring, committed and competent parent.  His past failure to learn about the unsuitability of [the mother] to parent and be in a relationship with is one common in situations of domestic violence.  In [the father] it probably reflects his difficulties with intimate relationships secondary to the illness and then death of his mother when he was of a young age.  This could also explain his idealisation of motherhood and persistence in allowing his girls contact with [the mother]:  as he perceives it, life is about children being with their mother.  However, it appears that he has now learnt something else and, at least for the present, understands [T] needs to be protected from an abusive mother.  Hopefully he has also learnt from his experience [with H] – he must stay resolute that contact between [T] and her mother should only occur in circumstances ordered by the Court.  [The father] has made proper arrangements for the care of [T], including accepting assisting the assistance of his extended family, which is a very appropriate requirement for a single parent.  Hopefully he will also involve himself in the school community and [T’s] social network when she reaches these stages of development.

9. Concerning the mother, Dr R said: 

   [The mother] was not seen and therefore no opinion of her from an assessment can be made.  However everything I have read about her and heard from the [Harwoods] indicate her unsuitability to be both a residential and unsupervised contact parent because of her recurrent violent behaviour, including to children (her own, incidents with [M] and [Y] on 28 January 2006), her drug and alcohol use and her general poor psycho social adjustment.  The documentation and history provided suggest at the least [the mother] has a personality disorder but the presence of another psychiatric disorder, apart from poly substance dependence, needs to be excluded.  She would have to demonstrate a capacity for significant, long term changes before having unsupervised time with [T].  In the current circumstances, supervised contact should only occur in a contact centre and be infrequent, perhaps three times a year, to provide [T] with the information about her mother she will need to address the identify issues which will later arise.

10. Concerning the ultimate issues, Dr R made the following recommendations: 

    1.        Residency with [the father].

    2.Limited supervised contact (two to three times per year) until [the mother] has demonstrated significant, long term (more than 18 months) changes to her current lifestyle which is documented in the court documents.

    3.[The father] have review by a Drug & Alcohol Counsellor to ensure ongoing abstinence from marijuana.

Short history

1. The father was born in July 1967. 

2. The mother was born in January 1978. 

3. The parties commenced cohabitation in 1999.

4. In April 2002 their daughter H was born.  When H was born the father was in jail where he remained until June 2002.   A couple of months after the father’s release from jail, at DoCS instigation, the Children’s Court awarded him H’s care.  At about the same time, G, who is the mother’s son by a former partner, moved to live with his father. 

5. On 24 March 2003 DoCS removed H from the father and placed her with her maternal grandmother.  This occurred because the father permitted H to see her mother in breach of his undertaking to the Children’s Court. Almost as soon as the maternal grandmother assumed H’s care, she moved to Queensland with her.  Neither parent nor T has since seen H.   

6. T was born in December 2004.  At the time T was born the parties were separated and the mother was in jail.

7. Between the mother’s release from prison and about June 2005, the father was unable to see T. 

8. In about June 2005, at the mother’s request, the father allowed her to stay with him for about two months.  This is when his relationship with T effectively commenced. 

9. After at least ten separations, the parties separated for the last time in about March 2006.  On their final separation the parties separated in violent circumstances.  The mother violently assaulted the father and the people with whom they were staying.  After the father fled the mother was arrested and DoCS took T into care.  Two or three days later DoCS placed T in the father’s care.  The father and T moved in with his father and step-mother before he moved into his own place in April or May 2006. 

10. Between March 2006 and 10 July 2006 the mother was in jail.

11. On 18 July 2006 the mother arrived at the father’s home.  He allowed her to stay for three nights.  At the end of this period, the father agreed that the mother could take T on an outing from which they did not return.

12. Between 20 July 2006 and 14 August 2006, T remained in her mother’s care and did not have contact with her father.  The father did not know where T was.

13. On the mother’s application, the father consented to an Apprehended Violence Order (AVO) for her and T’s protection on about 14 August 2006.

14. On 15 August 2006 the interim orders to which I have earlier made reference were made at M Local Court.

15. On 23 October 2006 the interim orders to which I have earlier made reference were made in the Family Court.

16. Some time not long after this hearing commenced the mother disappeared.

The governing law

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.

   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.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.

4. Having considered the primary considerations, the court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order.  Goode &  Goode (2006) FamCA 136.

1. The notion of equal time requires no explanation and is decided first.  If equal time is not ordered, substantial and significant time must be considered.  This concept is defined in s 65DAA(3) and occurs where:

   (1)the time the child spends with the parent includes both:

   (i)       days that fall on weekends and holidays; and

   (ii)      days that do not fall on weekends or holidays; and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)       the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

2. The child’s best interests remain the overriding consideration.

3. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.   Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply. 

Determining the child’s best interests

1. The father is T’s only parent trying to fulfil their parental responsibilities.  In the middle of proceedings she initiated, the mother moved homes without telling her solicitor, the court or anybody else associated with these proceedings here whereabouts.  Having obtained orders for supervised visits with T, the mother has made no attempt to give effect to these orders. Notwithstanding that she made grave allegations concerning the father’s alleged violence, drug abuse and parenting incapacity, the mother left T in his care.  Although it is harsh to say it, there can be little doubt that the mother abandoned T so that she could pursue her own interests without the limitations arising from her parental responsibilities to her daughter.  Even if I was satisfied that it is in T’s best interests to maintain a meaningful relationship with her mother, the sad reality is that the mother is not motivated to maintain a relationship with her daughter. 

2. While T may have a vague recollection of her mother, it is unlikely that she has positive feelings towards her.  The reality of this case is that other than the months immediately following T’s birth whilst T and her mother were in jail, the mother has been a heavy drug user.  I accept the father and his witnesses’ evidence that when the mother is using drugs, she is erratic, verbally aggressive and physically violent.  Her degree of control is so limited that she behaves in the manner described irrespective of whether she is in the company of adults or children.  T has experienced her mother’s violent outburst and it is quite likely that her memories of her mother will centre upon these dramatic and traumatic instances rather than the short period of relative calm immediately following her birth.

3. The mother says the father was frequently violent to her.  Her evidence is without corroboration.  The father denies the mother’s allegations and alleges that the mother was violent towards him throughout their relationship.  He highlights that her violence was frequently physical, occasionally involved implements or weapons, and reasonably often involved her own and other children.  The father’s evidence is corroborated by a number of witnesses and by the mother’s criminal convictions.  Instances involving children include, when H was a baby, the mother pulled H’s hair in order to pull her head from side to side.  On another occasion she bit H and burnt her with a cigarette.  As this incident developed the mother ran off and held H over a bridge railing near a stormwater drain.  A passer by called the police who retrieved H from the mother and delivered her to the father.  This was the incident which prompted DoCS to take Children’s Court proceedings and which resulted in H being placed into the father’s care. DoCs are highly unlikely to have taken this step if they believed the father was abusing drugs, was violent or unable to care for her.  Their actions in placing H with her father corroborate his evidence that the risks to H emanated from the mother and not him.

4. In relation to T, during the incident which resulted in the parties’ final separation, the mother picked her up and slammed her into her cot.  She then picked T up, pinched her and swung T’s head against the wall.  The father left to call the police.  While he was away, the mother assaulted another of the adults in the home.  These are not isolated incidents.  The mother has been convicted of assaulting a former friend’s toddler. During their on again off again relationship, the mother assaulted the father on innumerable occasions.  These were usually associated with her excessive alcohol and drug use.  It appears that part of the mother’s modus operandi was to hurt their children so as to hurt the father.  On the available evidence it is clear that T is at grave risk of physical and psychological harm in the mother’s care. 

5. The father and T are living in a three bedroom rented Housing Commission townhouse.  This is a long term housing arrangement and more than adequately provides T’s accommodation needs.  A tradesman by occupation, the father has not had paid employment for a number of years.  At least until T starts school, he plans to stay at home and care for her full time.  The father supports T from his social security payments.  The father does not receive child support. 

6. The father has strong family and community support and he and T see his father and step-mother daily.  Indeed, the father’s stepmother attended court on each occasion the matter was listed before me and as was clear to Dr R, she and her husband have been instrumental in ensuring the father’s ability to keep T safe and meet her needs.  I was impressed by the level of support the father and T receives from his family, which support is given lovingly and will continue.  For his part, the father greatly appreciates the kindness and unconditional support he receives in relation to his fathering role and it is highly likely that in the future he will willingly accept his family’s help.

7. The father has a significant criminal history, which centres upon driving offences.  Eventually he was declared an habitual offender and has been jailed on a number of occasions for driving without a license or whilst disqualified.  It is nearly five years since the father’s last offence and it may be that he has finally realised the grave consequences for himself and his daughter if he re-offends.  The father says he wants to be the best parent he is capable of being.  In making this commitment to T he says, and I trust it is the case, that he will not again commit any offences and thus jeopardise his liberty.

8. As I have earlier found, the father has regularly completed random drug screens, the results of which show occasional low level cannabis use.  The mother’s evidence was to the effect that he had a drug habit as serious as hers appears to be.  If ever this was true, it no longer is.  The evidence suggests that the mother’s description of the father’s behaviour is in fact a description of her own.  I am more inclined to the view that the father has given an honest account of his drug history, and that it centred upon cannabis use.  He has made great gains in reducing his cannabis intake and it is now all but resolved.  Given the highly traumatic relationship the father endured with the mother, I consider it to be in his interest that he pursues some form of further counselling and/or attends Narcotics Anonymous.  In the years that lie ahead, the father may well find that the therapeutic and community support that these programs offer may assist him in maintaining the gains he has worked so hard to achieve.

9. T has no relationship with her sister or half brother.  Once these proceedings are finalised the father plans to attempt to locate H and re-establish his relationship with her.  This will have the obvious advantage of enabling the sisters to develop a relationship.  Sibling relationships are highly important and provided this step does not destabilise T’s relationship with the father and paternal relatives should be encouraged.  Hopefully similar steps will be taken to enable T to know her half brother and establish a relationship with him.

10. On balance I am satisfied that the father is now well placed to meet T’s long term physical, emotional and intellectual needs.  I am satisfied that provided he does not resume a relationship with the mother, that there is little risk she would be exposed to violence or other unacceptable behaviour.

11. As a consequence of my findings concerning the mother’s violence, the equal shared parenting presumption is rebutted. 

12. The mother has abandoned her application that T lives with her and there is now no suggestion from the mother that she wishes to have equal or indeed any time with the child.  I contemplated making an order for limited supervised visits in accordance with Dr R’s recommendation.  I accept her opinion that at some stage T will have a need to have at least some sense of her mother’s identity.  However, until the mother demonstrates that she has been drug free for a considerable period, has not come into conflict with the criminal law for a considerable period, has cooperated with this court’s orders and is in a position to make a commitment to spend time with T, it is not in the child’s interests to make orders facilitating visits with her mother.  Although this means that there will almost certain be further proceedings in the future, the child’s interests require that the court considers the mother’s then circumstances before any orders are made facilitating contact between the mother and child.

13. As the mother’s whereabouts are unknown and the father will have T’s fulltime care, it is appropriate that he has sole responsibility for decisions concerning T’s care welfare and development.  It would be irresponsible to place him and T in a situation where important decisions are delayed because the mother cannot be located or is so drug affected she is incapable of focusing upon the child’s interests.

14. For these reasons I make the orders identified at the beginning of this judgment.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  4 September 2007