FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SHEWARD AND ORS | [2012] FamCA 279 |
| FAMILY LAW - CHILDREN – parental responsibility – with whom a child shall live and spend time – where the Director-General of the NSW Department of Family and Community Services commenced the proceedings contending the expectations upon which the former consensual parenting orders were premised were not fulfilled – where the parties have two young children aged six years and three years respectively – the eldest child lived with the father following separation and has been in foster care since late 2011 – the youngest child has been in foster care since early 2009 – where neither child has a particularly meaningful relationship with either parent or paternal grandmother – eldest child has suffered from encopresis for years with the child being relatively free from the condition since removal from the father’s care with the condition returning around times the child spends time with the father – both children well settled with their foster carers – mother’s history of forming relationships with violent partners - mother inclined to prioritise her need for relationship with domestic partners above enjoyment of unsupervised time with children – both parent’s neglect of the children’s emotional needs – both parents have limited capacity or willingness to facilitate close and continuing relationships between them and the children – neither parent has capacity to provide for the children’s needs on a full-time basis – father’s illicit drug use – finding of unacceptably high risk of harm to children in the care of either parent – sole parental responsibility allocated to Minister for Family and Community Services of NSW – orders for children to spend limited time with mother, father and paternal grandmother |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE |
| Aldridge & Keaton (2009) FLC 93-421 Birch & Gough & Minister for Health Family & Children’s Services NT [1998] FamCA 1945 Dennett & Norman [2007] FamCA 57 D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443 Fenton & Barrett & Ors [2009] FamCA 569 Goode & Goode (2006) FLC 93-286 Hennessy & Rhys [2007] FamCA 160 MRR v GR (2010) 240 CLR 461 Potts & Bims & Ors [2007] FamCA 394 Schmidt & Schott & Ors [2008] FamCA 447 |
| APPLICANT: | Director-General, Department of Family and Community Services |
| 1st RESPONDENT: | Ms Sheward |
| 2nd RESPONDENT: | Mr Cole |
| 3rd RESPONDENT: | Ms Holt |
| INDEPENDENT CHILDREN’S LAWYER: | Lyons Barnett Kennedy Solicitors |
| FILE NUMBER: | NCC | 2793 | of | 2008 |
| DATE DELIVERED: | 2 May 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 5, 7, 8, 9 & 29 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G Moore |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor's Office |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr A. Mooney |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mertens Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms J McIntosh |
| SOLICITOR FOR THE 2ND RESPONDENT: | MacLean Curtis & Daly |
| COUNSEL FOR THE 3RD RESPONDENT: | Ms J McIntosh |
| SOLICITOR FOR THE 3RD RESPONDENT: | MacLean Curtis & Daly |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G Gorton |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lyons Barnett Kennedy |
Orders
The orders made on 5 May 2010 are discharged.
All former parenting orders relating to the children S, born on … January 2006, and K, born on … April 2009, (“the children”) are discharged.
The Minister for Family and Community Services of NSW (“the Minister”) shall have sole parental responsibility for the children.
Subject to Order 6 hereof, the Minister and the parties shall take all reasonable steps to ensure that the children spend time with the mother on the following conditions, unless otherwise agreed:
(a)The time spent by the children with the mother shall occur no less frequently than once every eight weeks, with the first such occasion to occur no sooner than two months from the date of these orders and no later than three months from the date of these orders;
(b)The duration of each visit shall be not less than two hours;
(c)The venue of each visit shall be determined by the Minister;
(d)The imposition or dispensation of supervision of the time spent by the children with the mother shall be determined by the Minister.
Subject to Order 6 hereof, the Minister and the parties shall take all reasonable steps to ensure that the children spend time with the father and/or paternal grandmother on the following conditions, unless otherwise agreed:
(a)The time spent by the children with the father and/or paternal grandmother shall occur no less frequently than once every eight weeks, with the first such occasion to occur no sooner than two months from the date of these orders and no later than three months from the date of these orders;
(b)The duration of each visit shall be not less than two hours;
(c)The venue of each visit shall be determined by the Minister;
(d)The imposition or dispensation of supervision of the time spent by the children with the father and/or paternal grandmother shall be determined by the Minister.
The Minister may suspend or permanently terminate the time spent by the children with the mother, father and/or paternal grandmother in the event of the subject party:
(a)Failing to attend two consecutive visits;
(b)Being accompanied to a visit by another person not authorised in advance by the Minister;
(c)Attending a visit, in the opinion of the Minister or his or her delegate, intoxicated by alcohol or some other illicit substance;
(d)Conducting themselves during a visit in a manner, in the opinion of the Minister or his or her delegate, that is inconsistent with the children’s best interests, including but not limited to:
(i)Denigrating one another, a carer of the children, or the Minister’s delegate in the presence or hearing of the children;
(ii)Physically disciplining the children;
(iii)Discussing these proceedings or orders in the presence or hearing of the children.
The Minister shall take all reasonable steps to ensure that the children spend time with one another not less frequently than once every four weeks, with the first such occasion to occur within 14 days of the date of these orders, for not less than two hours on each occasion, otherwise on the conditions determined by the Minister.
The Minister and the parties shall take all reasonable steps to ensure that the children are able to communicate with the parties in the following manner:
(a)By the parties being able to send letters, cards, and/or gifts to the children not more frequently than monthly, and
(b)By the Minister sending to the parties any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the parties.
For the purposes of implementation of Order 8 hereof, the Minister shall, within two months hereof, notify the parties of an address to which the parties may send written communication.
Pursuant to s 68B of the Family Law Act 1975 the mother, father and paternal grandmother are restrained from entering upon or approaching within 200 metres of:
(a) The residence of either child;
(b) Any school attended by either child; and
(c)Any venue at which either child is participating in sport or extra-curricular activity.
The Minister shall authorise and request the principal of any school attended by the children to provide to the parties, at the parties’ individual expense, copies of all school reports and school photograph order forms relating to the children.
Leave is granted to the Minister to furnish copies of the single expert’s reports dated 7 September 2009 and 25 July 2011 to any professional engaged by the Minister to assist in the psychological care, welfare and development of the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Sheward 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 NEWCASTLE |
FILE NUMBER: NCC 2793 of 2008
| Director-General, Department of Family and Community Services |
Applicant
And
| Ms Sheward |
First Respondent
And
Mr Cole
Second Respondent
And
Ms Holt
Third Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings entail revision of the parenting orders previously made in respect of the two subject children with the consent of the parties and the Independent Children’s Lawyer in May 2010. Although the paternal grandmother was not then a party she was still integrally involved.
The Director-General of the NSW Department of Family and Community Services (“the applicant”) commenced the proceedings afresh in April 2011, contending that the expectations upon which the former orders were premised were not fulfilled.
The applicant proposed that the Minister have sole parental responsibility for the children, whereas the parents each asserted they were best equipped to have parental responsibility and for the children to live with them.
The proceedings were therefore a tripartite dispute about the allocation of parental responsibility for the children, with whom the children would live, and how the children would spend time with the important adults in their lives. The paternal grandmother supported the cause of the father.
Short history
The subject children are S, born in January 2006, and K, born in April 2009, (“the children”). They are now aged six and three years respectively.
The first respondent mother is the biological mother of both children. She has another child named B, who was born between the subject children, but the second respondent father is not her biological father. B lives with her biological father pursuant to orders of the Court in other proceedings.
The paternal grandmother is the third respondent to the proceedings.
On 5 May 2010, in prior proceedings, the mother, father and Independent Children’s Lawyer reached final agreement about parenting orders for the children, generally in the following terms:
a)The father to have sole parental responsibility for the eldest child (Order 1.2), who shall live with the father (Order 1.5) and spend time with the mother reasonably frequently but for restricted periods (Order 1.9).
b)The applicant to have sole parental responsibility for the youngest child for 12 months (Order 1.3), after which time sole parental responsibility for her would revert to the father and she would live with him (Orders 1.4, 1.6) and spend time with the mother reasonably frequently but for restricted periods (Orders 1.10, 1.11);
c)The arrangements for the children were to be supervised by the applicant for a period of two years (Orders 1.7, 1.8); and
d)Injunctions were made restraining the parties’ conduct in certain ways (Orders 1.15 – 1.20).
The purpose of the applicant’s supervision of the agreed parenting arrangements was to ensure the father possessed the capacity to properly care for both children. However, from November 2010 the applicant became increasingly concerned about the father’s willingness to address the applicant’s concerns about his parenting capacity.[1]
[1] Affidavit of Ms Z, pars 31-32, 38
On 8 April 2011 the applicant filed an Initiating Application seeking fresh parenting orders – both on a final and interim basis. It was plainly the applicant’s intention that, in lieu of the agreement reached in May 2010, the Minister should permanently have sole parental responsibility for both children.
The youngest child has been in the same foster placement since her birth in April 2009.[2] The timing of the applicant’s Application was apparently designed to avoid the removal of the youngest child from her foster placement to live with the father in May 2011, as was required by the orders made in May 2010.
[2] Affidavit of Ms Z, pars 25, 28, 228
The applicant’s application for interim orders was considered by the Court on 29 April 2011, at which time interim consent orders were agreed between the parties.
The interim orders were grafted onto the existing final orders and made provision for:
a)Discharge of the former order for the eldest child to spend time with the mother, and replacement with orders tightening the restrictions under which that child would spend time with the mother (Orders 1.1 – 1.4);
b)Discharge of the former orders providing for the transfer of parental responsibility for the youngest child from the applicant to the father, for that child to live with the father, and for that child to spend time with the mother (Order 1.5) and replacement with orders for the applicant to have sole parental responsibility for the youngest child (Orders 1.6, 1.7) and for her to spend supervised time with the mother and father at the applicant’s discretion (Order 1.8); and
c)Appointment of the Independent Children’s Lawyer who had appeared for the children in the former proceedings (Order 1.17).
A separate application by the mother for different interim parenting orders prescribing the time spent with her by the youngest child was abandoned.[3]
[3] Order 3(b) made on 29 April 2011; Notation A made on 13 May 2011
The essential effect of those orders was to leave the parenting arrangements for the youngest child within the sole control of the applicant and to leave the eldest child in the care of the father, subject to the applicant’s continuing supervision.
Orders were subsequently made appointing the same single expert psychologist whom had been engaged in the first proceedings to provide another report.[4]
[4] Orders 1-7 made on 13 May 2011
The single expert conferred with the parties and children in early July 2011 and prepared an affidavit, which was sworn on 25 July 2011, setting out her evidence. The report was critical of the parenting capacity of both the mother and father and urged urgent consideration of both children’s placement into foster care on a permanent basis.
The concerns of the applicant about the children had not abated in the interim,[5] and inferentially, the reported concerns of the single expert galvanised the applicant to propose further changes to the interim parenting arrangements.
[5] Affidavit of Ms Z, par 33
Shortly after release of the single expert’s report, another interim application was filed by the applicant seeking revision of the interim orders. The Application in a Case was filed on 22 September 2011 and was listed for interim hearing on 4 November 2011.
Following the hearing on that date the interim orders were amended to provide as follows:
a)Discharge of the former orders providing for the father to have sole parental responsibility for the eldest child and for her to live with him (Order 1) and also for that child to spend time with the mother (Order 2);
b)Allocation of sole parental responsibility for the eldest child to the applicant (Orders 3-4); and
c)The eldest child to spend time with the mother, father, and paternal grandmother at the applicant’s discretion (Order 5).
The combined effect of the orders made in April and November 2011 was to retain the youngest child’s foster placement and to also place the eldest child into foster care, both of which residential placements fell under the control of the applicant.
The eldest child was placed with temporary foster carers shortly following the orders being made in November 2011, but she has been in her current placement since 21 December 2011.[6] Subject to the Court’s determination of these proceedings, the applicant deems her current placement to be permanent.
[6] Affidavit of Ms Z, par 195
The children both spent supervised time with the father after the orders were made in November 2011, but following an incident on 25 January 2012 the time spent by both children with him was suspended.[7] The applicant’s proposal was that the children not re-commence spending time with the father until he has successfully completed an anger management program.
[7] Affidavit of MsZ, pars 74-76, 183; Affidavit of Ms T
Alternate arrangements were made for both children to spend time with the paternal grandmother,[8] and the applicant continues to arrange for both children to spend supervised time with the mother.
[8] Affidavit of Ms Z, pars 185-187
Proposal and primary evidence of applicant
The applicant pressed for the orders set out within the Case Outline document filed on 2 March 2012. The orders both replicated and supplemented the orders formerly proposed in the Initiating Application filed on 8 April 2011.
The applicant seeks orders for:
a)Sole parental responsibility for both children to be vested in the Minister (Order 2);
b)The children to live with the Minister’s nominees (Order 3);
c)The children to spend supervised time with the mother on no less than six occasions per annum, but otherwise on terms dictated by the Minister, and subject to the mother’s compliance with a range of conditions (Orders 4-7, 19), with the requirement for supervision to possibly be later relaxed at the Minister’s discretion (Order 8);
d)The children to spend supervised time with the father and paternal grandmother on the same terms as they spend time with the mother (Orders 9, 11-14, 19), save that the father must also complete an anger management course recommended by the Minister (Order 10).
e)The children to spend time together no less frequently than once per month, on terms determined by the Minister (Order 15);
f)The Minister to facilitate written communication between the children and the mother, father, and paternal grandmother (Order 16); and
g)Restraint of various forms of conduct by the mother, father, and paternal grandmother (Orders 18-19)
h)Permission to provide the orders, judgment and single expert reports to any professional engaged to assist the children (Order 20).
In support of that proposal the applicant relied upon:
a)The affidavit of the caseworker, Ms Z, filed 23 February 2012, together with her exhibit LS-6 which was tendered;[9]
b)The affidavit of the eldest child’s psychologist, Ms V, filed on 17 February 2012;
c)The affidavit of a pharmacologist, Mr F, filed on 28 February 2012;
d)The affidavit of a contact supervisor, Ms T, filed on 21 February 2012;
e)The affidavit of an intensive family support worker, Ms K, filed on 17 February 2012; and
f)The affidavit of the single expert psychologist, Dr A, sworn on 25 July 2011.
[9] Exhibit A1
The other parties took no issue with the late filing of documents by the applicant. In fact, no party took issue with any other party’s non-compliance with procedural orders.
Proposal and primary evidence of mother
The mother began the trial pressing for the orders set out within her Response filed on 6 September 2011, which provided for:
a)The Minister to have sole parental responsibility for the eldest child until she attains seven years of age, after which time the parents would have “joint parental responsibility” for her (Orders 1-3) and she would live with the mother (Order 4) and spend frequent but restricted time with the father (Order 5);
b)The Minister to have sole parental responsibility for the youngest child until she attains six years of age, after which time the parents would have “joint parental responsibility” for her (Orders 6-8) and she would live with the mother (Order 9) and spend frequent but restricted time with the father simultaneously with the eldest child (Order 10); and
c)The applicant would supervise the parenting of the children for a period of two years after the relinquishment of sole parental responsibility in respect of each child to the parents (Orders 11-12).
At the conclusion of her cross-examination the mother announced she abandoned her proposal and instead supported the proposal of the applicant.
The mother relied upon her affidavit filed on 29 February 2012.
Proposal and primary evidence of father and paternal grandmother
The father and paternal grandmother posited identical proposals, as set out in their Amended Responses, which were filed by the father on 2 March 2012 and by the paternal grandmother on 1 March 2012. Their joint proposal was made in the alternative.
Primarily, they proposed the father have sole parental responsibility for both children, the children live with him and spend frequent supervised time with the mother (Orders 1-3). They did not indicate who should provide the supervision, other than to refer indirectly in the proposed orders to use of a “supervising agency”. There was no evidence of any “supervising agency” that could or would afford supervision on an indefinite basis.
Alternatively, they proposed the paternal grandmother have sole parental responsibility for both children (Order 4), that the children live with her (Order 5), spend time with the father at the paternal grandmother’s discretion whilst supervised by her (Orders 5-6), and spend frequent supervised time with the mother at a “supervising agency” (Orders 7-8). Additionally, it was proposed the father attend “parenting or other courses” as directed by the Minister or her delegate (Order 9).
In her evidence-in-chief the paternal grandmother notified a third set of orders that she asked be considered by the Court in the alternative to the first two alternative sets of orders. Her proposal, in the event of the children remaining in foster care, was that the children spend time with her between 9.00 am and 3.00 pm on one Sunday each month, which would be facilitated by the applicant arranging the delivery and collection of the children to and from her.
The father and paternal grandmother relied upon their affidavits which were filed on 13 February 2012.
Proposal of the independent children’s lawyer
The Independent Children’s Lawyer expressly stated in his Case Outline document that he had not yet formed any opinion about the final orders that should be made.
During final submissions the Independent Children’s Lawyer tendered a minute of the orders he proposed.[10] The proposal was relatively closely aligned with that of the applicant, providing for the Minister to have sole parental responsibility for the children and for the children to spend time with the parties. The Independent Children’s Lawyer, however, proposed differing regimes of interaction between the children and each of the parties.
[10] Exhibit ICL3
In respect of the mother, the Independent Children’s Lawyer’s proposal was essentially identical to that of the applicant.
In respect of the paternal grandmother, the Independent Children’s Lawyer proposed that arrangements must be the subject of agreement between her and the Minister. Practically, that would mean the Minister would control all aspects of the children’s interaction with the paternal grandmother.
In respect of the father, the Independent Children’s Lawyer proposed that the children spend unsupervised time with him each alternate Sunday, subject to his completion of a post-separation parenting program, an anger management course and drug urinalysis to prove his abstinence from illicit substances for a prescribed period. Until those pre-conditions are met, the Independent Children’s Lawyer proposed the children spend time with the father under identical conditions controlling their time with the mother.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the children
Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44-48, 65, 74, 109-112, 119]; Potts & Bims & Ors [2007] FamCA 394 at [8-9]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton at [59-61, 76-81, 83]; Dennett & Norman [2007] FamCA 57 at [53-60]).
Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern others, such as the applicant and the paternal grandmother, may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111-112, 119]).
Of course, if sole parental responsibility was allocated to the Minister, as the applicant, mother and Independent Children’s Lawyer proposed, care of the children would be afforded on a day-to-day basis by foster carers, as nominees of the Minister.
The Court faces some difficulty in making findings of fact under s 60CC of the Act about the children’s best interests when little is known about the identity and circumstances of the delegated foster carers of the children (see D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443 at [41], [152]-[154], [224], [274]-[276]), but that does not preclude findings of fact or the making of orders consistent with those proposed by the applicant. Difficulty is one thing, but impossibility is quite another.
Best interests - primary considerations
Section 60CC(2)(a)
The youngest child does not presently have a particularly meaningful relationship with either parent, most probably because she has been in foster care since birth.
The father and paternal grandmother are attentive and affectionate towards the youngest child at contact visits, but the youngest child rarely seeks comfort or help from them.[11] At the observation session conducted by the Family Consultant the youngest child hid from the father and paternal grandmother behind some furniture and remained there for some time,[12] suggesting a lack of security in her relationships with them.
[11] Single expert report, par 15
[12] Single expert report, par 62
The mother is also attentive to the youngest child during contact visits, but similarly, the youngest child seldom seeks help or comfort from the mother.[13]
[13] Single expert report, par 18, 65-67
The single expert described the youngest child’s demeanour when with both parents as “anxious” in her report[14] and “stoical” during cross-examination.
[14] Single expert report, page 5
The most meaningful relationships the youngest child has are the ones she enjoys with her foster carers, to whom she is securely attached.[15] I accept the single expert’s opinion that no benefit would accrue to the youngest child by disturbing her stable placement with nurturing carers, which eventuality the single expert described as “catastrophic”.[16] The only benefit she is likely to derive from retention of her relationships with the mother, father and paternal grandmother is identification of them as adults in her biological family constellation.
[15] Single expert report, pars 60-63, 65-67, 72, 92
[16] Single expert report, page 6, pars 92, 96
The eldest child lived with both the mother and father, or at least one of them during periods of separation, until the parties finally separated in September 2008. Thereafter the eldest child lived with the father and spent limited periods of time with the mother.[17] Following the final parenting orders made in May 2010 the eldest child remained living with the father until the interim orders were made in November 2011 removing her from the father’s care.
[17] Single expert report, pars 6-10
In light of that background one might have expected the eldest child to regard the father as a figure of prime importance in her life, but the evidence revealed that was not necessarily so.
As was the case with the youngest child, the single expert found the eldest child did not appear to be securely attached to the father or the mother. While the eldest child may love her parents, she finds little comfort and safety with them.[18] The father’s belief that the eldest child knows him as her “bonding person”[19] may be genuinely held, but it is seemingly inaccurate.
[18] Single expert report, pars 72-75
[19] Father’s affidavit, par 155
It is common ground the eldest child has suffered from encopresis for years. As recently as June 2011 the father reported to a paediatrician that the eldest child was soiling her pants as frequently as several times a day.[20] The paternal grandmother also reported to the eldest child’s psychologist in September 2010 that the child often wet and soiled herself “after contact with her mother”.[21]
[20] Exhibit A1, page 218
[21] Affidavit of Ms V, page 29 of 44
The problem of incontinence was clearly not simply one of inadequate toilet-training because the father told the child’s psychologist in August 2010 that she was toilet-trained by then.[22]
[22] Affidavit of Ms V, page 40 of 44
Excluding the last few months, the eldest child has lived for the past few years with the father. Her encopresis has not been controlled by the father over that time. The single expert explained the eldest child should not be troubled by encopresis at her age, which condition “indexes her anxiety and emotional immaturity”.[23] The condition is a chronic over-activation of her stress response, which suggests no adult in her life is acting as an “effective external stress regulator” for her.[24]
[23] Single expert report, par 76
[24] Single expert report, pars 77-78
Significantly, the eldest child’s foster carer conferred with the child’s psychologist in early February 2012 and informed her the child had not had a single episode of incontinence since arriving into her care, other than “before and after contact” on two occasions.[25] In cross-examination the psychologist confirmed that she was referring in her report at that point to two contact sessions the eldest child had had with the father. Further, the carer reported to the psychologist that the child’s “whole demeanour has changed…she’s calm, happy and relaxed”.[26] The carer recounted the same facts to the applicant’s caseworker, and further, that the child had been very affectionate with her and had been calling her “mum”.[27] Those facts bear out the opinion of the single expert that when the eldest child perceives she is in stable circumstances her stress will abate and she will regain proper control of her bladder and bowel.
[25] Affidavit of Ms V, page 42 of 44
[26] Affidavit of Ms V, page 42 of 44
[27] Affidavit of Ms Z, pars 150, 154, 162
The inference, which I draw, is that the eldest child has been free of encopresis since her removal from the father’s care, but that the condition returned around the times the child returned to spend time with the father. Those facts can only be rationally explained by the eldest child feeling settled with her foster carer and experiencing elevated anxiety and stress when contemplating the time that she is due to spend with the father, during the time she actually spends time with him, or when she recollects the time she has recently spent with him.
Although the father may honestly feel the visits with the eldest child have gone well,[28] that was obviously not how the eldest child felt.
[28] Father’s affidavit, par 282
The inducement of such stress in the child through her association with the father could not possibly be considered beneficial for her. Accordingly, even if her relationship with the father is regarded as a meaningful one, it is still not a relationship from which she is likely to derive much benefit. That being so, there is little to be achieved in forcing the child to endure frequent interaction with the father in the foreseeable future.
I accept the evidence of the single expert that neither parent demonstrated any insight at all about the profound emotional turmoil suffered by the eldest child that would explain her continuing encopresis. Neither parent could appreciate the links between their acute conflict, the child’s emotional instability through her exposure to such conflict and her faecal incontinence, all of which was explained many months ago by the single expert.[29]
[29] Single expert report, pars 87-89
The father’s lack of insight was demonstrated in two obvious ways. Firstly, he said in cross-examination he had told the eldest child he knew her urinary and faecal incontinence was due to her removal from his care. A contact supervisor witnessed him say that to the child.[30] The father’s belief is false. Her incontinence extends back far further than November 2011 and since then it has improved, not worsened. Secondly, his counsel challenged the single expert about the eldest child’s encopresis being capable of innocent physiological explanation. The single expert credibly rejected the suggestion, explaining the inconsistent circumstances in which the child has and has not been incontinent, and I accept her evidence.
[30] Affidavit of Ms T, page 9 of 11
As for the mother, she admitted to the single expert she did not understand the eldest child’s behaviour,[31] and showed no freshly acquired insight during the trial.
[31] Single expert report, par 48
Whilst ever the parents are ignorant, or at least affect ignorance, of the root cause of the eldest child’s encopresis there is no realistic prospect of her emotional recovery while living or spending significant time with them. As with her younger sister, the only benefit the eldest child is likely to derive from retention of her relationships with the mother, father and paternal grandmother is identification of them as adults in her biological family constellation.
Section 60CC(2)(b)
Historically, the mother alleged the father sexually abused one or both children.[32] The mother’s allegations were not vindicated at the time and were apparently abandoned. The mother returned the eldest child to the care of the father shortly afterwards and the allegations were not raised again.[33] The mother adduced no evidence of her concern and did not challenge the father in cross-examination about such allegations. Consequently, I dismiss as baseless her concerns about the risk of the children’s sexual abuse by the father.
[32] Affidavit of Ms Z, pars 83-84
[33] Affidavit of Ms Z, par 90
No other suggestion was made that the children were at risk of harm through their “abuse” by either the mother or the father. I find there is no such risk.
A significant concern of the applicant was that the children were at risk of psychological harm by reason of being exposed to “family violence” when in the care of the mother. Although the applicant listed the mother’s association with violent partners as only one of numerous concerns about her parenting capacity,[34] in cross-examination the applicant’s caseworker conceded that particular concern was a “primary driver” of the applicant’s proposals relating to the mother and the children.
[34] Affidavit of Ms Z, par 81(l)
The applicant’s specific concern about the mother was her propensity to engage in relationships with men who were inclined to conduct themselves violently towards her. The mother’s present partner is undoubtedly such a person. He has a lengthy list of criminal convictions,[35] including assaults upon the mother for which he was sentenced to imprisonment.[36] Despite her initial minimisation of the severity, the assaults upon the mother by her partner, as she ultimately described during cross-examination, were savage, prolonged and unprovoked. Her earlier denial to the single expert of “violence in her home environment” was false,[37] because her partner assaulted her in her own home.
[35] Affidavit of Ms Z, par 96; Exhibit ICL2
[36] Affidavit of Ms Z, pars 97-99; Mother’s affidavit, par 15
[37] Single expert report, par 45
Despite a family violence order being made for the protection of the mother against that partner,[38] they resumed their relationship shortly following the partner’s release from custody after serving his sentence of imprisonment.
[38] Affidavit of Ms Z, par 103
The mother currently remains in a relationship with that person. She attempted to conceal the relationship from the applicant for some time, but now openly acknowledges it.[39]
[39] Affidavit of Ms Z, pars 106-107; Mother’s affidavit, par 23
Even though the mother is aware the applicant is genuinely concerned about their relationship and refuses to allow the children to spend time with her in the presence of her domestic partner,[40] the mother has declined to exclude her partner from such visits in order to persuade the applicant to dispense with the need for supervision, despite her affidavit evidence to the contrary.[41] When squarely confronted in cross-examination with the option of ending the relationship with her partner the mother dismissed the idea, stating he posed no physical risk to her or the children. She even asserted her partner would not have assaulted her in the past if the children had been present. The mother went even further and said she knew the children loved her partner, notwithstanding they had not seen him since before his imprisonment in March 2011 and had relatively little contact with him even before that.
[40] Mother’s affidavit, par 24
[41] Mother’s affidavit, par 24
I do not accept the mother’s belief about the benign risk posed by her partner, about whom she has idealised and unrealistic notions. He is clearly a person with the propensity to brutally assault her. There was no evidence of his reformation, apart from the completion of his sentence of imprisonment. Although the mother’s partner attended the trial with her and she was permitted to adduce evidence from him,[42] he did not give evidence.
[42] Order 7(b) made on 30 September 2011
I conclude the mother is inclined to prioritise her need for the relationship with her domestic partner above enjoyment of unsupervised time with the children. Such conclusion is consistent with the opinion of the single expert.
I accept the evidence of the single expert to the effect that parents with normal parenting attitudes do not choose to stay in abusive relationships because they expect children to tolerate the abuse they do.
The mother’s partner is prone to the commission of violence upon the mother and the children are at risk of exposure to it. That would surely occasion them psychological harm. The only way to satisfactorily attenuate that risk is by ensuring the children spend time with the mother without her partner present.
Aside from the acutely hostile interaction between the mother and father, to which the children have often been exposed, there was no concern about the children’s exposure to family violence when in the care of the father.
The parties’ conflict has not subsided since they separated years ago. It will surely continue in the event of any orders that oblige them to interact with one another in any way, for example, by them having to exchange the children between them. Their conduct towards one another in the past has often amounted to family violence and would likely be so in the future. They cannot be trusted to undertake an elementary post-separation parenting task of exchanging the children between them without rancorous incident. The Court cannot permit the children to continue to be exposed to the violent and aggressive behaviour of the parents. It is grossly harmful to their psychological well-being. The eldest child’s sustained encopresis is convincing proof of it. That is a consideration of substantial weight in the outcome of these proceedings.
The applicant also entertained concerns about the mother’s past physical neglect of her children[43] and the harm that may befall them as a consequence. That is not now an issue since the mother abandoned her application for the children to live with her.
[43] Affidavit of Ms Z, pars 78-82
The evidence demonstrated that both parents neglected the children’s emotional needs, but that is more properly addressed as an additional consideration pursuant to s 60CC(3) of the Act.
Best interests - additional considerations
Section 60CC(3)(a)
The children were too young to have their views canvassed directly by the single expert. The single expert relied instead upon her observations of the children to influence her opinions about their best interests.[44]
[44] Single expert report, par 59
Section 60CC(3)(b)
The nature of the children’s relationships with the parents has already been discussed as a primary consideration under s 60CC(2)(a) of the Act.
There was no evidence about the nature of the children’s relationships with their maternal relatives.
There was a paucity of evidence about the nature of the children’s relationships with the paternal grandmother. The father believes the eldest child has a “great bond” with the paternal grandmother, but I attribute little weight to his belief because he also misconceived the extent of the child’s attachment to him. That is not to say, however, the children do not love the paternal grandmother.
There was no evidence about the nature of the children’s relationships with other paternal relatives.
Sections 60CC(3)(c), (4)
The parental hostility was a significant feature of the case. Although the hostility was more pronounced at times when they interacted to exchange the children, the hostility pervaded the parent’s lives and the children were constantly immersed in an atmosphere of antipathy.
In July 2011 the eldest child’s treating psychologist noted, with some concern, that child’s exposure to “parental alienation by her father”. The psychologist observed a “consistent pattern of denigration by [the father] of [the mother] in front of [the child]”. The psychologist also noted that staff from the eldest child’s pre-school had reported “verbal denigration of [the mother] in [the child’s] presence”.[45]
[45] Affidavit of Ms V, page 37 of 44
The reports of such behaviour by the pre-school staff and the psychologist were not isolated. Ms K, the family support worker assigned to the father and eldest child by the applicant in 2010, noticed the father’s denigration of the mother in the presence of the child. She said in cross-examination she had to chide the father against such practice and cut short a number of her visits with the father because of it. The father even conceded in cross-examination that in his discussions with Ms K he had said of the mother “I hate her guts”.
The orders made by the Court in May 2010 prohibited the parties from denigrating one another.[46]
[46] Order 1.16(ii) made on 5 May 2010
When the father was confronted in cross-examination about his denigration of the mother in the presence of the eldest child in contravention of that order he admitted both knowledge of the order and his breach of it. His explanation was that the mother was “downgrading (sic)” him to the eldest child, so he was also content to “downgrade (sic)” the mother.
The father said both in his affidavit[47] and in his cross-examination that he tried to be “really careful” about what he said about the mother in the presence of the children. Such an assertion was somewhat surprising in light of his other admissions about the extent of his denigration of the mother in the presence of the eldest child. Either he was not “really careful” at all or his caution was an abysmal failure.
[47] Father’s affidavit, par 231
Despite denying it in his affidavit,[48] during cross-examination the father admitted referring to the mother as “Stinky” in the presence of the eldest child, because of the mother’s alleged body odour. The eldest child confirmed to her psychologist the father’s practice of doing so.[49] The father allegedly instructed the child not to refer to the mother by that name, but did not seemingly appreciate the paradox of his contrary behaviour. Nor did he seem to appreciate that, despite such instruction to the eldest child, she would still be affected by him calling the mother derogatory names in her presence.
[48] Father’s affidavit, par 245
[49] Affidavit of Ms V, page 35 of 44
The father also admitted the eldest child referred to the mother by her first name rather than the term of endearment “Mum”. He does not correct the child, even though he expects the child to call him “Dad”. The single expert said that demonstrates the father’s “proprietorial attitude” towards the child and his failure to pay respect to the child’s parental connection with the mother. Of course, that is a different issue from other comments made by the single expert in her report about the mother’s wounded feelings in not being called “Mum” by the children, as that was a reflection upon her failure to appreciate her diminished importance in the children’s lives.[50]
[50] Single expert report, pars 82-85
The father also conceded telling the eldest child that the mother cannot cook and only gives the children junk food. The father felt that was appropriate because, in his view, it was true.
Near to the end of his cross-examination the father said meekly, but unconvincingly and defensively, “I’m sorry about downgrading [the mother] but she was downgrading me worse (sic)”.
When he conferred with the single expert, the father complained of the mother’s inadequacy as a parent and attributed fault to her for all of the hostility between them.[51]
[51] Single expert report, pars 38-40
There seems little doubt the father’s opinion of the mother is so adverse that he has almost no capacity or willingness to facilitate close and continuing relationships between her and the children.
The paternal grandmother was complicit with the father in his denigration of the mother, although not apparently as frequently in the presence of the children. The applicant’s caseworker readily agreed the paternal grandmother had made numerous allegations about the mother’s incompetency and appeared eager to bring her perceived shortcomings to the applicant’s attention. The paternal grandmother even told the single expert that the eldest child derived no benefit from visits with the mother and blamed her for all of the tribulations of the parties and the eldest child.[52]
[52] Single expert report, pars 30, 32
Although the mother’s opinion of the father does not seem so vile, the evidence warrants a conclusion that she also has limited willingness and ability to facilitate close and continuing relationships between the children and the father.
The eldest child’s psychologist described the insidious consequences for a child who is subjected to criticism of and alienation from a parent in the following terms:[53]
[The child] may learn to feel anger towards [the alienated parent] who is further portrayed as incapacitated/uncaring of her) as well as filled with guilt because of the internal conflict of love vs the story to obey. This in turn could lead to deeper self-loathing as she internalises this rejection.
As time goes on, if this pattern is allowed to continue, [the child’s] interpersonal functioning will likely deteriorate still more. The enmeshment with [the alienating parent’s] programmed story can inhibit her social development. Also she could learn that deceit and manipulation are normal. Worse still is that she will have lost the potential positive aspects of her [alienated parent] which could result in lower self-esteem, heightened fears/anxieties (particularly around abandonment) and potentially sex-role identification.
[53] Affidavit of Ms V, page 38 of 44
Obviously, orders must be made to avert such consequences for the children.
Section 60CC(3)(d)
The orders effectively replicate the situation that has endured for the youngest child since April 2009 and for the eldest child since November 2011.
The youngest child will likely experience no change in circumstances to which she must adapt.
The eldest child, according to the objective evidence, appears to have adapted to the changes in her life since November 2011 with some degree of alacrity. The current circumstances seem to suit her. The orders perpetuate that arrangement.
Section 60CC(3)(e)
There is considerable practical difficulty and expense involved in ensuring that the children continue to spend time with one another, the mother and the father. That is particularly so when the children do not live together.
The father and paternal grandmother both live separately in Town C.
The mother also lives in Town C, but she is apparently contemplating a residential move with her partner away from that township.
The eldest child lives with her foster carer in Town D, which is about 60 kilometres and 75 minutes driving time away from Town C.
The youngest child lives with her foster carer about 16 kilometres away from Town C.
In order for the children to spend time with one another or with either parent it will be necessary for the Minister to arrange a contractor, such as Service 1 or Service 2, to collect the children, drive them to the designated destination, collect the children from that venue and then return the children to their foster carers. If the children’s visits are to be supervised then the contractor also needs to arrange the supervision. That service, on each and every occasion it is rendered, comes at considerable cost to the Minister’s budget.
That is a consideration that influences to some degree, but does not itself determine, the frequency with which the children spend time with one another and the parents.
In her report the single expert did not specify the frequency with which the children should spend time with the parents, although she implied it should be reasonably regular.[54] That was an issue taken up with the single expert in cross-examination, at which time she said there were numerous factors which influenced the frequency of visits. Specifically, she mentioned the behaviour of the parents at such visits, the benefit being derived by the children from the visits, the geographical difficulties, whether supervision was warranted, the children’s other sporting and extra-curricular activities and the family arrangements of the foster carers.
[54] Single expert report, par 92
In a requested attempt to balance those conflicting considerations, the single expert said that visits with the parents once per month would be “good” if the visits occur without incident, but that once every two months was also “in the ball park”. Her opinion was that stability of the children with their carers was critical and paramount so that the children become imbued with a sense of “lasting belonging”. Occasional interaction with the parents is a reality check which prevents them idealising absent parents, but the frequency need only be sufficient to achieve that purpose.
The eldest child’s psychologist considered that, in the event the children’s foster placements are regarded as permanent, it would be confusing and disadvantageous for them to spend time with the parents more frequently than about once every two months. She refused to be drawn into affirmation that monthly visits would be appropriate, saying that was only “possible” and dependent upon the situation being “very monitored (sic)”.
The single expert suggested in her report that the eldest child’s interaction with the mother should be suspended for three to six months.[55] Her evidence differed in cross-examination, during which she stated that there should be a “little moratorium” on interaction by either child with either parent for a few months in order to let both children settle. She was convinced the moratorium should also cover the father because of his unrestrained behaviour during visits with the child, convincingly demonstrated by an incident on 25 January 2012 which led the applicant to terminate arrangements for the children to spend time with the father. The single expert also considered the moratorium should encompass the youngest child, even though she has been in stable foster care for much longer.
[55] Single expert report, par 93
As for visits between the children, the single expert said they cannot be too busy spending time with the parents to impinge upon their own relationship or to preclude them from having normal lives with their foster carers. The single expert suggested the children should see each other monthly.
The eldest child’s psychologist said the children were definitely bonded, adhering to the comment in her affidavit that the eldest child “utterly adores and is very securely attached to” the youngest child.[56] She considered the children could ideally see each other fortnightly, subject to the balancing of all other demands upon their time. She said the children do not need long together, suggesting that “an hour or two” at a time was enough.
[56] Affidavit of Ms V, page 38 of 44
I accept the evidence of the single expert and the eldest child’s psychologist in respect of those issues.
Balancing the competing considerations, it seems appropriate that the children spend time with the parents no less frequently than about once every eight weeks and no more frequently than once every four weeks. If it is feasible, the children could spend time together with each parent.
In any event, the children should spend time with one another no less frequently than monthly.
Section 60CC(3)(f)
The evidence demonstrates neither parent has the capacity to provide for the children’s needs on a full-time basis.
The mother conceded as much when she abandoned her application for the children, or either of them, to live with her.
Evidence of the shortcomings of the mother’s parenting capacity was plentiful.[57] It is unnecessary to elaborate them at length in view of the mother’s changed parenting proposal. Of particular concern though was the mother’s propensity to prioritise her own interests above those of the children. The mother’s attendances at visits with the children were unsatisfactorily unreliable for a variety of reasons, including spending her time with her various domestic partners.[58]
[57] Affidavit of Ms Z, pars 80-82
[58] Affidavit of Ms Z, pars 93, 118, 119, 121, 125-131, 134, 143, 153
One other incident emerged from the mother’s cross-examination that convincingly demonstrates her unsuitability to parental responsibility. Recently the mother’s sister, who is a minor aged 15 years, spent the night at the mother’s home with the mother and her partner. Another adult male was invited to attend the home. At least the adults were drinking liquor. The mother and her partner retired to bed leaving the mother’s sister and the adult male alone. Although the mother asserted she did not invite the adult male to stay overnight, she did nothing to ensure his departure from the home or the safety of her sister before retiring to bed. It transpired that the adult male probably had sexual intercourse with the mother’s sister at the home that night. The mother’s awareness of that potentiality was remiss and her supervision was extraordinarily lax.
Despite the protestations by the father of his ample parenting capacity I am persuaded by an abundance of evidence that his capacity is impaired.
The frank opinion of the single expert, expressed in both her report and during cross-examination, was that the father was devoid of fundamental parenting skill and that his personal characteristics precluded him from acquiring that skill. Although the single expert’s opinion was bluntly stated and may have been hurtful to the father, I am satisfied that her opinion is correct.
The single expert acknowledged the father loved his children and was well-intentioned about their futures, but that was not enough.
The eldest child’s psychologist also described being “very concerned with regard to [the father’s] attitude overall” as early as September 2010.[59]
[59] Affidavit of Ms V, page 32 of 44
The applicant first became involved with the family in November 2008,[60] very shortly after the mother and father separated. Following the making of the former orders in May 2010, a considerable amount of assistance was rendered to the father for his care of the eldest child.[61] From November 2010 onwards the applicant began to lose confidence in the father’s parenting capacity for a variety of reasons.[62] In summary, the father remained highly critical of the mother, engaged in hostile confrontations with her at changeovers, continued to live separately from the paternal grandmother, failed to satisfactorily engage with support services and the applicant’s caseworkers, failed to ensure the eldest child’s regular attendance at medical and psychological appointments, and failed to adequately prepare for the intended restoration of the youngest child to his care.[63]
[60] Affidavit of Ms Z, pars 6, 34
[61] Affidavit of Ms Z, par 30
[62] Affidavit of Ms Z, pars 31-33
[63] Single expert report, par 13
There were many specific instances of such deficiencies detailed in the evidence. As an example, the father failed to take the eldest child to some psychological consultations because the child told him she did not like the psychologist and he knew that psychologists “try to brainwash kids”. As the single expert ably observed, it was exceedingly immature of the father to either leave that decision to the child or blame her for it. A competent carer needs to be much more proactive and responsible in the medical management of a child – particularly one as needy as the eldest child. Another example was when the father forgot to take the eldest child to a paediatric consultation. The father said he did not forget, but he admitted to the applicant’s caseworker and the eldest child’s psychologist that he did.[64] The appointment was important because it related, at least in part, to the eldest child’s encopresis.
[64] Exhibit A1, page 27; Affidavit of Ms V, page 29 of 44
The Independent Children’s Lawyer submitted that the applicant’s concerns about the father were borne out by the evidence, were reasonably held, and were shared by him. I accept that submission and reject the father’s contradictory submission that the applicant’s concerns about his parenting capacity were not commensurately serious to justify the removal of the eldest child from his care. I reject the father’s submissions that his behaviour was “responsible” and that the concerns of the applicant were “minimal”.
Considerable time was spent during the trial dealing with the factual circumstances of a hostile confrontation between the father and Ms K, the assigned family support worker, on 6 September 2010. There was little reason why that should have been so, since it was simply a single incident in a troublesome history and, as the applicant’s caseworker conceded, it was not until November 2010 that the applicant began to have concerns about the father that were sufficient to warrant the commencement of these proceedings.
In any event, I accept the veracity of Ms K’s evidence in relation to the incident in September 2010. She was a convincing witness who compiled a contemporaneous report,[65] spoke with the applicant’s caseworker twice about the incident,[66] and clearly had a good recollection of it. On his own admission, the father was in an angry mood because neighbours had kept him awake and he ultimately told Ms K to “get out of [his] fucking house”, which command she duly obeyed. The father did not thereafter engage with the “Intensive Parenting Program” implemented by the applicant,[67] which he passed off by merely saying he had “a lot of trouble working with the Intensive Parenting Support Program workers” and that the service “interfered too much and we didn’t need it”.[68]
[65] Exhibit A1, pages 15-17
[66] Exhibit A1, page 14; Exhibit F1
[67] Affidavit of Ms Z, par 42
[68] Father’s affidavit, pars 13, 25, 44
Although the applicant’s concerns about the father began to accumulate in November 2010, it was not until September 2011 that the applicant applied for interim orders removing the eldest child from the father’s care. The applicant had moved on an earlier application in April 2011 to retain the youngest child’s foster placement and had then sought no orders to disturb the eldest child’s residence with the father. The applicant’s caseworker was pressed in cross-examination about what had changed between April and November 2011 to justify removal of the eldest child from the father’s care. In response, the caseworker explained it was “more a case of what had not changed”. The applicant’s position was that the eldest child’s predicament had not perceptibly improved since the applicant’s supervision of the father began, following the orders being made in May 2010. The caseworker went so far as to say there was insufficient improvement in the family circumstances demonstrated over the entirety of the time since the applicant became involved with the family in November 2008.
By September 2011, the applicant perceived positive action was necessary to remedy the situation. The father’s working relationship with the applicant had effectively broken down, his regular use of cannabis showed no signs of abatement, he displayed no greater insight into the emotional troubles of the eldest child, and he had not established a joint residence with the paternal grandmother, which was an important part of the future parenting strategy devised by the applicant and other parties in the former proceedings.[69]
[69] Notation AB made on 5 May 2010
While the father and paternal grandmother may genuinely have contemplated living together to satisfy the concerns of the applicant at the time the orders were previously made in May 2010, it is clear they no longer harbour those plans. The father and paternal grandmother resisted the applicant’s entreaties over quite some time to form a joint residence.[70]
[70] Affidavit of Ms Z, par 61
The father conceded in cross-examination he did not really want the paternal grandmother to move in with him and went so far as to say he had been “trying to get away from [his] mother for years and years and years”. He thought he was capable of looking after the children without help from the paternal grandmother.
The paternal grandmother agreed with the father’s sentiments. She thought he could cope without her and she would prefer not to form a joint residence with the father as they each like their own space.
The applicant’s impression about the unsatisfactory nature of the family’s predicament was corroborated by the single expert’s conclusions.
For the purposes of her first report, prepared in September 2009 for use in the former proceedings, the single expert tested the mother and father against standardised measures. The test results in 2009 revealed “dysfunctional parental teamwork”.[71] Although she did not re-test the parents for her current report, the evidence suggests nothing has changed.
[71] Single expert report, pars 2, 49, 51
For her current report the single expert administered to the parents an assessment designed to measure their propensity for abuse and neglect. Both parents rated in the “very high risk” group, even though the results were susceptible to some degree of subjective interpretation.[72]
[72] Single expert report, pars 54-58
Although the testing and assessments provided some background, the results were not the sole premise of the single expert’s opinions.
Based on all of the evidence drawn to the single expert’s attention, including her assessments, interviews and observations, she concluded that there was an “unacceptably high risk” of harm to the children in assigning the residence of either of them to either parent.[73]
[73] Single expert report, pars 69, 81
In the single expert’s view, the only reason the “developmental outcomes” had been better for the youngest child than the eldest child was that she had been removed from the parent’s care as an infant and placed with a competent foster carer.[74]
[74] Single expert report, par 92
The single expert contended there was nothing to recommend restoration of the youngest child’s care to either parent, which would actually cause her harm.[75] She also contended the eldest child urgently needs remedial parenting provided by a foster carer, given that such a task is beyond the capacity of either parent. Her need for such nurture is so pronounced that she should preferably have “a 1:1 therapeutic placement” and not live with her sibling.[76] Consistently, the eldest child’s psychologist also opined that she needed care in a “loving, emotionally supportive home”, implying she was not receiving that kind of care with the father.[77]
[75] Single expert report, pars 92, 96, 97
[76] Single expert report, pars 95-97
[77] Affidavit of Ms V, page 43 of 44
The assistance hitherto provided by the paternal grandmother to the father in his care of the eldest child was immaterial. Whatever help was afforded to the father by the paternal grandmother was insufficient to preclude the adverse outcomes for that child. Although the paternal grandmother may be gentle and kind, the single expert considered her “hope triumphed over experience”. The paternal grandmother was unable to adequately compensate for any of the father’s shortcomings, as was evident from the eldest child’s encopresis and her failure to show much improvement between her Griffiths Mental Development Scale Assessments conducted by her psychologist in July 2010 and February 2012.[78] The psychologist said she had experienced some gains and some losses.
[78] Affidavit of Ms V, pars 11, 24
Before the single expert was prepared to countenance, even hypothetically, any change to her recommendations she asserted it was necessary for the father to demonstrate numerous achievements over a prolonged period of time, including respect for and compliance with Court orders, adjustment of his attitude by his participation in counselling to accept the reality of the necessity for the children to live with foster carers, an acquired ability to deal sensitively with the children, abstinence from illicit drug use and abstinence from anti-social behaviour. The evidence did not reveal any inclination on the part of the father to achieve any of those goals, let alone sustain them indefinitely.
Fundamentally, in the view of the single expert, the father and paternal grandmother failed to ensure that the eldest child was appropriately “socialised”. They had some years within which to accomplish that outcome for the eldest child, because she lived with the father exclusively between September 2008 and November 2011.
The view of the single expert, which I accept as correct, was that the children require more competent parenting than the parents are capable of providing. The children, and in particular the eldest child, need “enriched stimulation from normally nurturant, diligent care-givers in a calm, well-organised home environment completely free from family violence”, which are “essential prerequisites” for normal socialisation.[79]
[79] Single expert report, pars 81, 86, 90, 96
I also accept the single expert’s opinion, expressed in cross-examination, that it is irrelevant why the father and paternal grandmother have been unable to provide the eldest child with those essentials. Whether the deficiency is due to cultural considerations, intelligence levels, or cognitive injury to the father, the unavoidable fact is that the eldest child has been deprived of them.
In the face of such evidence it would be an error to restore the eldest child to the care of the father, or remove the youngest child to the care of the father. The father’s plea in final submissions for “one more chance” was, in reality, a plea for himself rather than the children.
Section 60CC(3)(g)
The father has limited literacy. Although the father deposed flatly that he cannot read,[80] in cross-examination he said that he could not read “properly”, implying some restricted ability. It was contended for him that the applicant had not made sufficient allowance for his limitations in that regard, but his complaint was unpersuasive.
[80] Father’s affidavit, pars 52, 100
Much of the interaction between the applicant and the father was verbal. Voice messages were left on the father’s telephone inviting him to respond. He failed to do so because by October 2010 he had determined not to speak with the applicant’s caseworker.[81] It seems trite to observe that the whole of the applicant’s interaction with the father could not be conducted by personal interviews and telephone conversations. The occurrence of important events required written confirmation as an unimpeachable record. Occasionally the applicant had cause to send correspondence to the father. The paternal grandmother was literate. She said she saw the father every day. The father bore some responsibility to ensure that the applicant’s correspondence was read to him by the paternal grandmother or some other relative or friend, as the father was bound to concede was possible and did occur from time to time.
[81] Affidavit of Ms Z, par 38
The use of illicit drugs by the father emerged as an issue of significance in the evidence.
The mother gave evidence in cross-examination of the father using cannabis numerous times each day in the house whilst they cohabited. When the father was cross-examined he conceded being a “heavy smoker” of cannabis whilst living with the mother, implying that he is no longer. However, he still admitted currently using cannabis every evening. Even when the eldest child was living with him before November 2011 he put her to bed and spent up to an hour each night smoking cannabis in a caravan or shed in the backyard of his home. The contradictory evidence given by the father in his affidavit was simply untrue.[82]
[82] Father’s affidavit, pars 176-183
The father’s admitted drug use was in stark breach of the Court’s injunction.[83] The father admitted his awareness of that order and, inferentially, his deliberate breach of it.
[83] Order 1.16(i) made on 5 May 2010
Pursuant to orders made in May 2010[84] the applicant directed the father to undergo drug testing. Initially he failed to comply, but upon compliance he unsurprisingly tested positive for cannabis.[85] The father tried to innocently explain the positive readings by his passive exposure to cannabis use by others,[86] but that excuse was proven false, particularly by unchallenged pharmacological evidence.[87]
[84] Order 1.8(iii) made on 5 May 2010
[85] Affidavit of Ms Z, pars 64-72
[86] Affidavit of Ms Z, par 68; Single expert report, par 43
[87] Affidavit of Ms Z, par 71; Affidavit of Mr F
The last drug test required of the father by the applicant occurred in October 2011. The applicant’s caseworker explained that no further tests were required after that time because by then the applicant had established the father had a “drug problem”, which he belatedly admitted,[88] and it was thereafter up to him to prove he had overcome it. Of course, additionally, the eldest child was removed from his care in early November 2011 and his drug use was less of a concern once he was no longer caring for her on a regular basis.
[88] Affidavit of Ms Z, par 144
There seems little prospect of the father abstaining from use of cannabis. He has used cannabis regularly for half of his life, commencing its use as an adolescent. He has resisted the persistent reproaches of the paternal grandmother to cease, blithely asserted in cross-examination that his current daily use “won’t hurt no-one”, and sees no need for drug rehabilitation. He thought the use of cannabis was a necessary component of his medication regime to “keep [him] calm”, despite advice from his medical practitioner that he should abstain from its use and avoid complicating his prescribed use of anti-depressant medication.
As the single expert explained, sometimes drug use by a parent is not of itself a “huge” problem, but when the parent is dependent upon an illicit drug it demonstrates a need for reliance upon its intoxicant quality as an external regulator of stress. If the parent cannot regulate his or her own stress level then he or she is hardly able to regulate stress for their children. In other words, it provides insight into the parent’s inability to cope with the load of parenting.
That is an important consideration in the circumstances of this case because at least the eldest child is under considerable stress, as evidenced by her protracted case of encopresis. Despite having lived for prolonged periods with the father, the child’s stress was unrelieved and her unfortunate condition was unresolved.
There was no evidence of any drug use by the mother, despite bare speculation of the father and paternal grandmother.[89] The mother expressly denied any drug use to the single expert[90] and the tests she performed at the request of the applicant proved negative.[91] The allegations of the father and paternal grandmother about the mother’s involvement in drug use and drug dealing were not put to the mother in cross-examination for admission or denial, as they should have been if the allegations were seriously pressed.
[89] Affidavit of Ms Z, pars 114-117
[90] Single expert report, par 45
[91] Mother’s affidavit, par 17
Sections 60CC(3)(h), (6)
The father and paternal grandmother both identify themselves and the children as indigenous Australian. The mother does not identify herself as indigenous Australian, but apparently recognises the Aboriginality of the children.
The children have a right to enjoy their Aboriginal culture (s 60B(2)(e),(3)) and the Court must have regard to the kinship obligations and child-rearing practices of that culture in determining these proceedings (s 61F).
The father made a request for allocation of an Aboriginal caseworker in September 2010 but was told there were none available at that time.[92] The father consequently contended he was denied “appropriate and suitable services” by the applicant, which was causally related to the breakdown of the relationship between him and the applicant.
[92] Exhibit A1, page 45
I do not accept the father’s submissions. On the contrary, the applicant has been sensitive to the cultural issues affecting him and the children. The applicant’s caseworkers had some training in cultural awareness, attended various Aboriginal Consultation Meetings involving the family and referred the family some months ago to an Aboriginal support service.[93] The applicant’s caseworker, who is Caucasian, gave evidence in cross-examination of having involved Aboriginal caseworkers in her work with the family, at least two of whom she named. She was not contradicted.
[93] Affidavit of Ms Z, pars 188-191
The father contended the applicant should have provided the family with other “culturally specific assistance” before the Aboriginal support service became involved in October 2011. The applicant’s caseworker rejected the proposition, but even if she had not, there was no evidence about what “culturally specific assistance” the father had in mind, nor about when it should have been offered.
Another prominent complaint of the father was that the children will not be inculcated with Aboriginal culture or heritage unless they reside with him, but I do not accept that is correct. The Court’s attention was not drawn to any evidence, and no submissions were made, about the kinship obligations or child-rearing practices of the local Aboriginal nation or the broader Aboriginal culture.
While the foster carers of the youngest child are not indigenous they have extensive experience caring for other Aboriginal children.[94] It is intended by the applicant that the youngest child’s Aboriginal heritage will be cultivated by her association with her sibling and her referral to the Aboriginal support service.[95] Her continuing association with the father and paternal grandmother will also facilitate that objective.
[94] Affidavit of Ms Z, pars 230, 240-241
[95] Affidavit of Ms Z, pars 191-194, 242
The eldest child lives with an Aboriginal foster carer from the local Aboriginal nation who teaches Aboriginal studies at a local secondary school and is a careers adviser. She also has experience caring for Aboriginal children other than her own. That person is the intended permanent carer for the eldest child.[96]
[96] Affidavit of Ms Z, pars 195-200
The father also challenged the eldest child’s psychologist and the single expert about their opinions being unbalanced by reason of a failure to appreciate the significance of the Aboriginal heritage of the father and children. The challenge was unproductive.
The eldest child’s psychologist has an interest in child development. She described having “lots” of aboriginal clients and having tested “thousands and thousands” of children. She rejected the suggestion that Aboriginal children have different developmental needs and said all children have similar developmental needs. She also said in cross-examination that, when compared to other Aboriginal parents, the father’s emotional stimulation of the eldest child was well below par.
The psychologist credibly rejected the suggestion that she had deliberately interpreted her test results in order to assist the applicant in its cause to have the eldest child moved into permanent foster care. I accept as truthful and accurate the psychologist’s rebuttal of the alleged misconduct. I reject the father’s submission of her bias against him, which was speculative at best.
Similarly, the single expert said she had worked extensively with Aboriginal children in the 1980’s and in the more recent period between 2001 and 2006. She said the involvement of the Aboriginal support service in the family affairs made no difference to her opinions about the lack of parenting capacity displayed by both parents.
The single expert rejected the proposition that the actuarial risk assessment she carried out in respect of the parents[97] was not “culturally fair”. She denied that her assessment and other test results were “significantly biased” in favour of “western middle-class” subjects. In response to being informed that the father regarded the applicant’s conduct to have been “insensitive to his [Aboriginal] culture and unduly intrusive” the single expert responded that the father was unwise to be provoked by that perception, suggesting that a wiser and stronger parent would have been able to suppress his righteous indignation. I accept the single expert’s evidence.
[97] Single expert report, pars 54-58
Sections 60CC(3)(i), (4)
The parties’ attitudes to the children and the responsibilities of parenthood are deficient for the same reasons discussed under ss 60CC(3)(c),(f) of the Act. There is no need to repeat the evidence and findings.
Section 60CC(3)(j)
The issue of family violence has already been adequately addressed as a primary consideration under s 60CC(2)(b) of the Act. There is nothing to add.
Section 60CC(3)(k)
As already mentioned, the mother has the protection of a family violence order made against her domestic partner. The mother said in cross-examination the order remains in force, but there was no evidence adduced as to its duration or its terms.
In addition, the father formerly had the protection of a family violence order made against the mother and her partner. That order expired on 2 November 2011,[98] although the father asserted without contradiction that he recently renewed the order for a further period of two years.[99] As with the mother, the father failed to adduce evidence as to the terms of the extended order.
[98] Affidavit of Ms Z, pars 108-109; Exhibit A1, pages 97-100
[99] Father’s affidavit, par 302
The mother was convicted of breaching that family violence order during 2011.[100] The family violence order was initially made because of an ugly scene involving the parties and the mother’s partner at a changeover of the eldest child at a public venue. Not even the element of publicity is able to quell the parties’ conflict.
[100] Affidavit of Ms Z, pars 110-111
Further back into the past, the mother had the protection of family violence orders made against the father.[101]
[101] Single expert report, par 6
Section 60CC(3)(l)
The parties concluded the last litigation between them by consenting to final parenting orders in May 2010. Those orders were quite complicated and were an attempt to ultimately return the full-time care of the children to the father. Unfortunately, those orders did not stifle the parties’ dissatisfaction with one another.
It is imperative for orders to be made in these proceedings that terminate the controversy. Orders which vest control of the parenting arrangements in the Minister, as the applicant, mother and Independent Children’s Lawyer propose, are best suited to achieve that outcome of finality and avoid the prospect of further proceedings in respect of the children.
Section 60CC(3)(m)
In accordance with the single expert’s advice, it is not the intention of the applicant for the children to live together. In fact, the children have never lived together.
The evidence adduced by the applicant about the attributes of the children’s foster carers permits a conclusion that both children will be afforded good quality care under the auspices of the Minister.[102]
[102] Affidavit of Ms Z, pars 196-200, 229-249
No other aspect of the evidence was submitted by any party or the Independent Children’s Lawyer to materially influence the outcome of the proceedings.
Parenting orders
In the face of a finding of family violence between the parties the presumption of equal shared parental responsibility does not apply.
In any event, the presumption of equal shared parental responsibility would have been rebutted. Both parents conceded in evidence they do not and can not communicate with one another. That is only partly true. On the comparatively rare occasions they have communicated with one another it has invariably ended in heated argument and sometimes police intervention. It is tolerably clear that it is impossible for the parents to confer and rationally discuss and determine issues of major long-term significance to the children.
Given the evidence demonstrates that the children’s best interests cannot be served by them living with either parent it would be a bizarre outcome for either parent to have sole parental responsibility for either child.
Nor does the evidence justify any conclusion the children will have their best interests served living with the paternal grandmother, as was the alternative parenting proposal of the father and paternal grandmother. In cross-examination the paternal grandmother said she had not actually spoken with the father about how such an arrangement would work, but she asserted she would always supervise the children with the father.
I do not accept that such an arrangement would work. The paternal grandmother believes the father is capable of caring for the children alone. She does not believe it is necessary for her to help the father with the children or supervise the children with him. In such circumstances the paternal grandmother’s supervision of the children with the father would likely cease almost immediately through lack of will. Even if the paternal grandmother did have the will to adhere to orders requiring her supervision of the children with the father, I doubt she could sustain it in the face of overt resistance from the father. The paternal grandmother conceded the father was impervious to her advice. He ignored her requests to attend church with her, ignored her requests to cease use of cannabis, and often told her to “mind [her] own business” when she offered him advice.
The same considerations militate against the alternative orders proposed orally by the paternal grandmother to the effect that the children spend unsupervised time with her, to the exclusion of the father, one Sunday each month.
I am satisfied the Minister should be allocated sole parental responsibility for the children. That finding is consistent with the submissions of the applicant, mother and Independent Children’s Lawyer.
The unanimous opinion of the Full Court inferentially appears to be that once parental responsibility for a child is allocated to the Minister in all respects, or at least in respect of a child’s residence, then s 164 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) applies and dictates the Minister’s responsibility to make the necessary arrangements for the child’s residence (see Director-General of Department of Human Services (NSW) & Tran & Anor at [88], [213]-[215], [216(c)], [216(e)]). In those circumstances it is superfluous for the Court to make supplementary orders about with whom the child should live because that is determined by the Minister as an incident of his or her exercise of parental responsibility for the child.
Such a view is consistent with the former leading decision of the Full Court on the issue, albeit decided at a time when the federal and state legislative landscape was somewhat different (see Faulkner & McPherson v Rugendyke; Dept of Community Services (Intervenor) (1995) FLC 92-630 at 82,321 – 82,322).
There appears no impediment to the Court, firstly, allocating parental responsibility in all respects for a child solely to the Minister, and then secondly, proceeding to make supplementary orders confined to the issues of with whom that child spends time and communicates. Making orders of that limited kind has been a course adopted by the Court over a long period of time (see Birch & Gough & Minister for Health Family & Children’s Services NT [1998] FamCA 1945; Hennessy & Rhys [2007] FamCA 160; Schmidt & Schott & Ors [2008] FamCA 447; Fenton & Barrett & Ors [2009] FamCA 569).
Whether or not the Court does proceed to make such supplementary orders confined to those issues is, of course, determined on the facts of the individual case. I am satisfied in this instance that such orders should be made but, other than to specify basal conditions such as the minimum frequency and duration of visits by the children with the parties and one another, the conditions under which the children spend time with the parties and one another are best left to the judgment of the Minister in the circumstances that then prevail.
The mother consented to the applicant’s proposal that the children spend time with her on no less than six occasions each year in circumstances dictated by the Minister. I am satisfied that arrangement is a sufficiently frequent regime of interaction between the children and the parties. That arrangement is generally consistent with the evidence given by both the single expert and the eldest child’s psychologist.
The time spent by the children with the mother has been supervised on occasions since April 2011 because of the applicant’s suspicions about her partner attending the visits against the applicant’s wishes.[103] That is not an unreasonable position for the applicant to adopt, given the mother’s statement that her partner is “going to be in [her] life forever”.[104]
[103] Affidavit of Ms Z, pars 132, 167
[104] Affidavit of Ms Z, par 95
The applicant envisaged the father’s participation in group counselling at Service 3 and individual counselling with an Aboriginal counsellor in Town C as a pre-requisite to resumption of the children spending time with him.
The father conceded in cross-examination he would do the anger counselling required of him by the applicant, but his attitude to it was one of frustrated resignation. He did not accept he had a need for such counselling, retorting “if people would leave me alone to raise my children by myself I will be right”.
The father completed a course of anger management years ago under the supervision of the NSW Probation and Parole Service, but he obviously learned very little or has forgotten what he learned.
The applicant suspended arrangements for the children to spend time with the father following a tense scene on 25 January 2011 when the children spent supervised time with him and the paternal grandmother. Such decision was taken by the applicant on advice from a psychologist.[105]
[105] Affidavit of Ms Z, pars 75-76
The visit was supervised by Ms T at the Town C youth club. The father and Ms T have different perceptions of the incident, but I prefer the evidence of Ms T over that of the father. She prepared a contemporaneous report of the visit[106] and gave credible evidence of the event when challenged by the father’s counsel, denying she had fabricated or exaggerated her account. I accept the father called her a “stupid, white, racist bitch”, pushed her, gesticulated with his finger near her face in a threatening way, and threatened to “hunt [her] down and kill [her]” if she told the applicant about the incident.[107] Ms T was frightened and she later reported the matter to police.[108] She was so disturbed she refused to supervise the father again. The children were exposed to the entirety of the incident, which caused at least the eldest child to cry, sob, shake and be short of breath.[109]
[106] Affidavit of Ms T, par 9
[107] Affidavit of Ms T, page 10 of 11
[108] Affidavit of Ms T, par 17
[109] Affidavit of Ms T, pages 9-11 of 11
The father did not give his account of the incident until he swore his affidavit several weeks later.[110] He did not apparently have any contemporaneous records to refresh his memory and by then he was aware that the incident was regarded as important by the applicant, since the applicant had moved to suspend the children spending time with him because of it. The father admitted in cross-examination he was “in a cranky mood” and had forgotten to take his anti-depressant medication that day, but unconvincingly denied the more aggressive aspects of the incident alleged by Ms T. The father asserted she was the one “walking up to [him] and getting in [his] face”.
[110] Father’s affidavit, pars 304-323
The father said the paternal grandmother was standing “right behind me” and would be able to corroborate his version of the event, which the paternal grandmother purported to do when she was cross-examined. Her corroboration was somewhat surprising given that in her affidavit sworn several weeks after the event the paternal grandmother could not give any detailed account of the incident, deposing simply:[111]
I then noticed that [the father] and the supervisor got into an argument and know it was about toileting.
I didn’t hear exactly what was said but I know it was around toileting.
We then got [the eldest child’s] gear together and [the father] walked out the door with [the eldest child’s] hand in his.
[111] Paternal grandmother’s affidavit, pars 155-158
The paternal grandmother unpersuasively said in cross-examination that she could remember “everything that happened that day” but, for reasons she did not try and explain, she only included “bits and pieces” in her affidavit. Later she inconsistently said she had been “putting things back together as they have come back to [her] mind”. She agreed the father was pointing at Ms T and that she had felt the need to intercede in the argument to tell the father to “quieten down”.
The single expert was asked in cross-examination for her view about the applicant’s proposal for the father to participate in an anger management program as a pre-condition to the children spending time with him. She described that as a “reasonable” proposal but she did not appear to embrace the idea with any sense of enthusiasm. She also said it would be difficult to gauge whether the anger counselling had been a success. I am inclined to agree.
Forcing the father to participate in a course in which he has no interest and for which there is no reasonable basis for inference he will derive benefit will likely achieve nothing. Making orders that provide for the children to spend time with the father on his completion of such course, in expectation that he will derive benefit, seems futile. The same applies to the Independent Children’s Lawyer’s idea of having the father complete a post-separation parenting program, which the Independent Children’s Lawyer admitted was a proposal made “more in hope than expectation”.
I decline to accede to the applicant’s proposal to make the expenditure of time by the children with the father conditional upon the father’s completion of anger management counselling. I also decline to accede to the Independent Children’s Lawyer’s proposal to make the children’s expenditure of frequent unsupervised time with the father conditional upon his completion of a post-separation parenting program. It is better to structure the orders in such a way that the Minister can control the circumstances of the children’s visits with the father and either suspend or permanently terminate the visits of the children with him if his behaviour genuinely warrants such a drastic sanction.
The time spent by the children with the father was supervised after the last interim orders were made in November 2011.[112] The supervision, at least on 25 January 2012, did not provide an adequate bulwark against the father’s aggression. The father will know from the way in which the orders are now structured that if he repeats conduct of that sort at future visits with the children then he risks not seeing the children again, or at least for a protracted period.
[112] Affidavit of Ms Z, pars 24, 74
The restrictions that the applicant proposed be placed upon the parties’ conduct were acknowledged as reasonable by the father and paternal grandmother in final submissions. Such restrictions are the conditions upon which the orders authorise the Minister to unilaterally suspend or terminate the children’s expenditure of time with the parties. The mother’s acceptance of the reasonableness of such conditions is manifest from her agreement to the orders proposed by the applicant.
The orders impose a moratorium upon the commencement of the children spending time with the mother and father for the next couple of months, consistently with the recommendation of the single expert. In respect of the father, a moratorium has effectively been in place since 25 January 2012, and so I accept his alternate submission that the moratorium should be of shorter duration than recommended by the single expert.
The applicant proposed in final submissions, but not in the minute of orders, that such a moratorium should apply, but only in respect of the father and not the mother. The applicant did not adequately identify or explain why, contrary to the single expert’s oral evidence, the moratorium should apply to the father and mother differentially.
The moratorium also extends to the paternal grandmother for uniformity, even though she was not expressly mentioned by the single expert. I infer that the single expert’s opinion was directed to all parties.
Although the paternal grandmother has consented to the children visiting with her independently since the incident on 25 January 2012, she was not apparently initially enthusiastic about it. She told the applicant’s caseworker “it won’t work” due to lack of transport and “the cost of running around”.[113] Despite her reluctance, the paternal grandmother has deigned to permit the children to spend time with her alone.
[113] Affidavit of Ms Z, par 185
The orders permit the children to spend time with the father and paternal grandmother either together or individually, so that the children will visit one or both of them at the times arranged by the Minister not less frequently than every eight weeks. The orders do not permit the children to spend time with the father and paternal grandmother individually in aggregation, with the result that the children spend twice as much time with the father and paternal grandmother as they do with the mother.
During final submissions, in the event that the Minister was allocated sole parental responsibility for the children, the father sought orders permitting his communication with them and the provision to him of their school photographs and reports. Accordingly, provision is made for the parties to communicate with the children in writing, which is also consistent with the applicant’s proposal. Although the father will encounter difficulty in writing to the children, no doubt the paternal grandmother will assist him. The orders also permit the parties to acquire the children’s school reports and photographs. No submission was made that such orders would deleteriously affect the children.
The orders also require the Minister to make provision for the children to spend time with one another at least monthly for a couple of hours. That order conforms to the evidence given by the single expert and the eldest child’s psychologist. It also conforms to the proposal of the applicant.
The children’s half-sister B also lives in Town C.[114] No order was sought by any party or the Independent Children’s Lawyer regulating the children’s interaction with B. Given the absence of any such proposal, the paucity of evidence, and the absence of any submission, I abstain from making any order pertaining to the time that should be spent by the children with B. It is not however an issue that should be ignored by the Minister in the exercise of parental responsibility for the children.
[114] Mother’s affidavit, par 6
A supplementary order is made permitting the Minister to release copies of the single expert’s reports to any professional engaged by the Minister to assist in the psychological care of the children. No party, nor the Independent Children’s Lawyer, spoke against such an order.
I am satisfied that the orders set out at the commencement of these reasons serve the children’s best interests.
I certify that the preceding two hundred and twenty nine (229) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 2 May 2012.
Associate:
Date: 2 May 2012
- AGLC
- Director-General, Department of Family and Community Services and Sheward & Ors [2012] FamCA 279
- Case
- [2012] FamCA 279
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the existing parenting orders should be discharged, and if so, what new orders were in the children's best interests regarding their living arrangements and time spent with their parents and paternal grandmother. Specifically, the court had to determine the extent of parental responsibility, the nature and frequency of contact with the mother, father, and paternal grandmother, and whether any conditions or restrictions were necessary to ensure the children's safety and well-being. The court also considered the children's relationships with each other and their capacity to communicate with their parents.
Austin J reasoned that the evidence demonstrated significant neglect of the children's emotional needs by both parents, who also possessed limited capacity or willingness to facilitate close and continuing relationships. The father's illicit drug use and the mother's history of relationships with violent partners, coupled with her tendency to prioritise her relationships with partners over time with her children, presented an unacceptably high risk of harm. The court found that neither parent could provide for the children's needs on a full-time basis, and that the children were well-settled with their foster carers. The court applied the paramount principle of the children's best interests, as enshrined in the *Family Law Act 1975*, to conclude that sole parental responsibility should be allocated to the Minister for Family and Community Services.
Consequently, the court ordered the discharge of all former parenting orders. The Minister for Family and Community Services was granted sole parental responsibility for the children. Orders were made for the children to spend limited time with the mother, father, and paternal grandmother, with the frequency, duration, venue, and supervision of these visits to be determined by the Minister. The Minister was empowered to suspend or terminate contact in specific circumstances, including failure to attend visits, intoxication, or conduct inconsistent with the children's best interests. The Minister was also directed to facilitate time between the siblings and communication between the children and their parents, and to take steps to ensure the children's safety by restraining the mother, father, and paternal grandmother from approaching the children's residences, schools, or extra-curricular activities.
Orders
Orders of the court
1.
The orders made on 5 May 2010 are discharged.
2.
All former parenting orders relating to the children S, born on … January 2006, and K, born on … April 2009, (“the children”) are discharged.
3.
The Minister for Family and Community Services of NSW (“the Minister”) shall have sole parental responsibility for the children.
4.
Subject to Order 6 hereof, the Minister and the parties shall take all reasonable steps to ensure that the children spend time with the mother on the following conditions, unless otherwise agreed:
(a) The time spent by the children with the mother shall occur no less frequently than once every eight weeks, with the first such occasion to occur no sooner than two months from the date of these orders and no later than three months from the date of these orders;
(b) The duration of each visit shall be not less than two hours;
(c) The venue of each visit shall be determined by the Minister;
(d) The imposition or dispensation of supervision of the time spent by the children with the mother shall be determined by the Minister.
5.
Subject to Order 6 hereof, the Minister and the parties shall take all reasonable steps to ensure that the children spend time with the father and/or paternal grandmother on the following conditions, unless otherwise agreed:
(a) The time spent by the children with the father and/or paternal grandmother shall occur no less frequently than once every eight weeks, with the first such occasion to occur no sooner than two months from the date of these orders and no later than three months from the date of these orders;
(b) The duration of each visit shall be not less than two hours;
(c) The venue of each visit shall be determined by the Minister;
(d) The imposition or dispensation of supervision of the time spent by the children with the father and/or paternal grandmother shall be determined by the Minister.
6.
The Minister may suspend or permanently terminate the time spent by the children with the mother, father and/or paternal grandmother in the event of the subject party:
(a) Failing to attend two consecutive visits;
(b) Being accompanied to a visit by another person not authorised in advance by the Minister;
(c) Attending a visit, in the opinion of the Minister or his or her delegate, intoxicated by alcohol or some other illicit substance;
(d) Conducting themselves during a visit in a manner, in the opinion of the Minister or his or her delegate, that is inconsistent with the children’s best interests, including but not limited to:
(i) Denigrating one another, a carer of the children, or the Minister’s delegate in the presence or hearing of the children;
(ii) Physically disciplining the children;
(iii) Discussing these proceedings or orders in the presence or hearing of the children.
7.
The Minister shall take all reasonable steps to ensure that the children spend time with one another not less frequently than once every four weeks, with the first such occasion to occur within 14 days of the date of these orders, for not less than two hours on each occasion, otherwise on the conditions determined by the Minister.
8.
The Minister and the parties shall take all reasonable steps to ensure that the children are able to communicate with the parties in the following manner:
(a) By the parties being able to send letters, cards, and/or gifts to the children not more frequently than monthly, and
(b) By the Minister sending to the parties any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the parties.
9.
For the purposes of implementation of Order 8 hereof, the Minister shall, within two months hereof, notify the parties of an address to which the parties may send written communication.
10.
Pursuant to s 68B of the Family Law Act 1975 the mother, father and paternal grandmother are restrained from entering upon or approaching within 200 metres of:
(a) The residence of either child;
(b) Any school attended by either child; and
(c) Any venue at which either child is participating in sport or extra-curricular activity.
11.
The Minister shall authorise and request the principal of any school attended by the children to provide to the parties, at the parties’ individual expense, copies of all school reports and school photograph order forms relating to the children.
12.
Leave is granted to the Minister to furnish copies of the single expert’s reports dated 7 September 2009 and 25 July 2011 to any professional engaged by the Minister to assist in the psychological care, welfare and development of the children.
13.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
14.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
15.
Any and all outstanding applications are dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.