Eerkens & Randrup
[2021] FedCFamC2F 243
•25 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eerkens & Randrup [2021] FedCFamC2F 243
File number: HBC 928 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 October 2021 Catchwords: FAMILY LAW – undefended hearing – mother suffering substance abuse – other children removed from mother’s care – children with father for many years. Legislation: Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 61DA, 65DAA and 65DAC Cases cited: An & Zhu (2006) FLC 93-257
Hiron & Tourle [2021] FCCA 1270
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 21 January 2021 Place: Hobart The Applicant: Appeared in person The Respondent: No appearance Counsel for the Independent Children's Lawyer: Ms M Ryan ORDERS
HBC 928 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EERKENS
Applicant
AND: MS RANDRUP
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 JANUARY 2021
THE COURT ORDERS THAT:
1. This matter proceed by way undefended hearing.
2.Final orders be made in terms of the Minute of Orders sought by the Independent Children's Lawyer marked as Exhibit ICL 1 and attached hereto.
3. I reserve written reasons in this matter.
THE COURT NOTES THAT
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders
1.That all previous parenting orders are hereby discharged.
Parental Responsibility
2.That the father, Mr Eeerkens, have sole parental responsibility for the children X born in 2009 "X" and Y born in 2010 "Y".
Live With Orders
3.That X and Y spend time and communicate with the mother, Ms Randrup, at such times and in such manner as agreed with the father.
4.AND THE COURT NOTES the provision of Order 3 above may include the father imposing the provision of a clear drug screen(s) before any spend time will occur.
Injunctions and Responsibilities
5.That the parties will use civil and respectful language when communicating with each other or other members of each other's households and neither party will :
(a)Criticise, abuse, denigrate, insult or belittle or otherwise speak negatively, rudely or critically about the other parent to the children, in the presence of the children or within the children's hearing and nor will they permit any other person to do so.
(b)Discuss these proceedings or any future dispute between them in the presence or hearing of the children or permitting any other person doing so;
6.That the father and mother be and are hereby restrained from consuming alcohol while X or Y are in their respective care, to the extent they are so affected by alcohol as to have impaired ability to supervise or protect the children and nor will they allow the children to remain in the presence any third party who is intoxicated.
7.That the father and mother be and are hereby restrained from consuming any illicit substances or prescription medication for which they do not personally hold a prescription, while the children are in their care and for the period of 24 hours prior to the children coming into their care; nor will they allow the children to remain in the presence of any third party consuming such substances.
8.That neither party will expose the children to any form of family violence and in the event of being victim to family violence they will ensure the children are removed promptly from that situation.
9.That both parties are at liberty to request copies of the children's school reports, newsletters and school photographs and should they do so they will be solely responsible for the school's costs of complying with any such request.
10.That the parties will ensure the children only travel in vehicles which have a current registration, and that the vehicle(s) are driven by drivers with a currently and active drivers' licence.
11.That within (7) seven days of any change the parties' residential address and mobile telephone number and email contact details, they will inform each other of such change by text message.
12.That within a reasonable time of a subject event, notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting their health or welfare, whilst in their care.
13.That within 7 days of the date of these Orders the Independent Children's Lawyer will provide the children's school and Tasmania Police with a copy of these Orders.
14.That seven (7) days from the date of these Orders the appointment of the Independent Children's Lawyer is hereby discharged.
15.That all extant applications are hereby dismissed.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eerkens & Randrup has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
On 21 January 2021, in Hobart, I heard the application of the Father and the Independent Children’s Lawyer (“ICL”) for orders in undefended proceedings. I heard the matter in a busy week of trial listings, made orders and reserved my reasons. These are my reasons.
The application before the Court concerned the living and parenting arrangements of the two children of the relationship, X born in 2009 (11 years old) (“X”) and Y born 16 in 2010 (10 years old) (“Y”), collectively known as “the children”. The Applicant Father, Mr Eerkens, (“the Father”) is aged 37 (36 at hearing) and is employed. The Respondent Mother, Ms Randrup, (“the Mother”) and has an occupational background in hospitality. The Mother is 41 and was 40 at the time of the hearing.
On 21 January 2021 the Father appeared in person, there was no appearance by the Mother, and Ms Ryan of Counsel appeared as the Independent Children’s Lawyer. The matter proceeded undefended on a final basis. The Independent Children’s Lawyer sought orders for the Father to have sole parental responsibility and for the children to live with the Father and spend time with the Mother. That minute of orders contained in the ICL Outline of case were marked as exhibit ICL 1 and Final Orders were made in those terms.
BACKGROUND
The Father and Mother began their relationship from approximately 2007. They had a son in 2008 named Z who was still born. X was born in 2009 and Y was born in 2010. The parents separated in 2010.
The Father has been in a relationship with Ms B since 2014. Ms B has a son from a previous relationship, V born in 2012 (“V”). V does not spend time with his father and lives with Ms B, the Father, X and Y. The Father has a son from a previous relationship, U born in 2013, who lives with his mother and spends equal time with the Father on a ‘week about’ arrangement. The Father and Ms B have two children from their relationship, T born in 2019 (“T”) and S born in 2020 (“S”).
The Mother has three children from previous relationships. R born in 2003 (“R”), Q born in 2012 (“Q”) and P born in 2017 (“P”). At least one or more of those girls have been in foster care but the Mother’s sister, Ms C (“Ms C”), has been Q and P’s Kinship Carer.
The Mother and a Mr D have a child N who was born in 2019 (“N”). N was removed from her parents care in 2020 by Child Safety Services (“CSS”) and remained in care as at the date of the hearing because of CSS concerns about her parents drug use, untreated mental health concerns, her home environment and exposure to family violence between her parents and others. These proceedings are not concerned with N however her circumstances shed significant light on the welfare of X and Y when in the Mother’s care. N’s Family Preservation-Exit Report (ICL 9) stated that the concerns as at a meeting early in N’s life on 11 November 2019 included:
… CSS gave an outline of both historic and current concerns.
-CSS stated there was a long history of trauma, mental health issues, substance abuse, unsafe relationships, neglect of her children, lack of insight into concerns and non-engagement with services particularly in relation to [the Mother].
-[The Mother’s] past drug use (including speed and ICE) and to current attitude and lack of acknowledgement in terms of the severity of these concerns. CSS completed a drug screen in 2019 and this returned with Methamphetamine in her system. CSS stated that [the Mother] used drugs during her pregnancy with N.
The ICL called oral evidence from Mr E the child safety officer (employed by CSS) for the Mother’s children N, P and Q. That evidence, recited later in these reasons, convinces me that such risks to X and Y continue unabated.
X and Y have been exposed to significant trauma apart from the environment in their Mother’s home.
The matter proceeded by the ICL having carriage of the proceedings and the ICL notwithstanding the matter was likely to be undefended, the ICL presented a comprehensive, detailed and carefully prepared case that was of great assistance to the Court.
PROCEDURAL HISTORY
Following CSS (then Child Protection) placing X and Y with the Father in 2015 the Father was advised by CSS to issue proceedings and he did in October of 2017. The Mother last filed an affidavit on 1 February 2019 and her solicitor withdrew from acting in November of 2020.
DOCUMENTS RELIED UPON.
Mother’s Material:
(1)Mother’s affidavit filed 1 February 2019.
(2)Notice of Mother’s solicitors ceasing to act and Notice of Withdrawal filed 30 November 2020.
Fathers’ material:
(1)Affidavit of the Father filed 7 January 2021.
ICL material:
(1)ICL 1: Outline of Case.
(2)ICL 2: Letter emailed to Mother 20 January 2021.
(3)ICL 3: Report as to X of Dr G, psychologist.
(4)ICL 4: Police report regarding family violence order against Mother.
(5)ICL 5: Supreme Court of Tasmania, Sentencing remarks of Justice H regarding the Mother in2002 (Mother then 21) when sentenced to 3 months imprisonment suspended on a plea of guilty relating to three charges of assault.
Supreme Court of Tasmania, Sentencing remarks of Justice H regarding the Mother in 2004 (Mother then 23) when sentenced to 2 years imprisonment with 18 months suspended on a plea of guilty relating 28 counts of burglary, 2 counts of aggravated burglary, a further two counts of burglary and 29 counts of stealing.
(6)ICL 6: Mothers Police criminal history from 2000 to 2016 showing more than 30 court appearances for multiple criminal, drug and traffic offences including driving while illicit drug present in blood.
(7)ICL 7: ICL notes of subpoena documents inspection including Father’s criminal history of 4 Court appearances for;
2017Selling and possessing controlled plant (in 2015), on a plea of guilty 6 weeks imprisonment wholly suspended.
2017 Operating a vehicle at speed.
2017 Drive without licence and unregistered vehicle.
2019 Operating a vehicle at speed, (burnout).
(8)ICL 8: 19 March 2020 email from Family Services J regarding concerns for X and Y in Mother’s household.
(9)ICL 9: Affidavit of witness Mr E filed in Magistrates Court at Hobart regarding CSS concerns for N of 21 pages plus exhibits including photographs of injury to Mother.
(10)Child Dispute Memorandum dated 21 November 2017 (“the 11F Report”)
(11)Family Report dated 2 November 2018 (“the first Family Report).
(12)Second Family Report dated 3 July 2020 (“the Second Family Report”)
WHETHER TO PROCEED UNDEFENDED.
The Mother was represented when the matter first came before the Federal Circuit Court on 31 October 2017 when orders were made by consent that the children X and Y live with the Father and spend time with the Mother at the Hobart Children’s Contact centre. On 10 July 2018 the Mother was represented and Judge Baker (as her Excellency then was) ordered the First Family Report. The Mother participated in that Family Report. The Mother participated in the Second Family Report interviews on 22 June 2020. On 7 July 2020, the mention date immediately after the Second Family Report was released the Mother was represented by her solicitor Ms Saunders when the matter was fixed for hearing on 21 January 2021. The same solicitor signed the Notice of Withdrawal of acting on 30 November 2021. That Notice referred to the Mother’s email address as ………@outlook.com and recited the last known residential address as L Street, Suburb M, TAS (the Address the ICL’s letter of 20 January 2021 was emailed and posted to).
The Father served his Trial affidavit by email to the same email address. Neither the ICL nor the Father received any email “bounce back” or notice of an invalid email address. I am satisfied the Mother well knows of the proceedings and has had a generous opportunity to participate in this final hearing. I infer and find that her solicitor would have informed her of this Trial listing date back in 2020. I find that she has not appeared this day because she remains in the grip of a substance abuse disorder.
This hearing is what is known as an undefended application, I refer to my previous decision in the matter of Hiron & Tourle [2021] FCCA 1270 at [14] below:
[14] An undefended hearing is a difficult matter. It means that there is no assistance obtained from the other side. All important aspects of the matter must be proved on admissible evidence. Ordinarily in an undefended hearing it is expected and assumed that the other side that is not participating in the hearing will have had the opportunity to look at such evidence as has been provided to them. Then the court can more readily proceed on the basis of the non appearing party having been provided with all of the evidence and draw the inference that party has chosen not to participate in the proceedings or to make any application.
The Full Court of the Family Court in An & Zhu (2006) FLC 93-257 set out why Family Law Act 1975 (Cth) (“the Act”) applications cannot lead to a 'judgment by default':
[66] The term undefended proceedings was also referred to in Lanceley and Lanceley (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
…Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a 'judgment by default' in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
OTHER SIGNIFICANT EVENTS.
Exhibit ICL 5 shows that Justice H of the Supreme Court of Tasmania made sentencing remarks including the following on 27 May 2002:
… In the belief that Mr O and another man were responsible for telephone calls in which Mr P’s children were threatened, he and [the Mother] were on the lookout for Mr O. Upon seeing his vehicle at a residence, they entered and dragged Mr O from the residence to their motor vehicle and obliged him to accompany them as they travelled to several destinations in region RR. In the course of this trip, Mr O was punched to the face and head by both Mr P and [the Mother] and Mr P head-butted Mr O …
[The Mother] is 21 years of age and has no prior convictions …
…
[The Mother]: you are sentenced to 3 months’ imprisonment in the whole of that sentence is suspended on condition that you are of good behaviour for a period of eighteen months. In addition, you are ordered to serve 70 hours of community service…
The same exhibit shows the sentencing remarks of the same judge [omitted] in 2004:
You are convicted on your plea of guilty to twenty-eight counts of aggravated burglary, two counts of attempted aggravated burglary, two counts of burglary, and twenty-nine counts of stealing.
Between [omitted] 2002 and [omitted] 2003, you were a party to thirty-two burglaries at various residences in southern Tasmania. Your role on each occasion was to drive one or two co-offenders to a particular residence, keep look-out, and once the crimes being committed, transport the stolen property and your co-offender or co-offenders away. On several occasions you assisted in placing stolen items in the vehicle. You also assisted with the sale of the stolen property; the proceeds of which was in part used to satisfy you and your co-offenders’ respective drug habits.
The estimated value of the property stolen as $105,352. The total damage caused is estimated at $10,000. Only a small amount of the property has been recovered.
…
Your participation in these offences result from your addiction to drugs and intimidation of one of your co-offenders. Several months prior to your embarkation on this extended period of offending, you received a suspended sentence of three months’ imprisonment for your role in a series of assaults perpetrated on one victim by you in a male co-offender in the course of one incident. It is of significance at the risk of invoking that suspended sentence did not deter you from participating in the crimes for which you are now before the Court.
The Father says he and the Mother used drugs together during their relationship but that he stopped thereafter. When the relationship between the Mother and the Father ended in 2010 the Mother was pregnant with Y and X was a baby.
In 2013 the Mother, X and Y were subjected to a terrifying and bloody trauma by one Mr SS who held the children hostage. The Mother had a relationship of some sort with Mr SS. It is also alleged that Mr SS sexually abused X. The Mother’s frank account of this event, which I accept, is as follows:
[68]In [omitted] 2013 I was the victim of an extremely traumatic event involving my former partner Mr SS ("the Mr SS incident"). Mr SS assaulted me by holding me against the wall, preventing me from breathing, and punching me to the side of the face. Mr SS also held X and Y hostage. A summary of this event is as follows:
(a)Mr SS had just come off a 12 hour shift at Employer TT. He lived in the same cul de sac as me. He put his daughter to bed at his mother's. He'd had a bad day at work. He put his daughter to bed and came to my home. The intention was not that he stay the night.
(b)Mr SS started flipping out about a phone charger. He started yelling. I was trying to get X and Y to sleep. Q was already in bed in her cradle. R was not home. I said, “If you can’t settle down you’ll have to leave.” He said “I’ll fucking kill ya” and scruffed me by my throat and lifted me up off my feet, squeezing hard. I yelled at him to leave my home. I was very concerned that this was happening in front of the children.
(c)I ran from the home to get help and out of fear that R would return to the home. When I returned to the home Mr SS was on the front door step. I realised he was in a pool of blood, and realised that he had slit his throat. However he was still alive and mobile.
(d)I rushed to call an ambulance and police. Mr SS then went back into the home and held X and Y in there with him for a number of hours. Emergency services attended. After hours they managed to get X to open his window and got him out.
(e)It was 4:30am when Mr SS finally left the home, holding Q. He was begging the police to shoot him.
…
[72]Whilst Mr SS was on bail for the charges arising out of the assault again me, he murdered a woman named Ms UU ("Ms UU"). He was sentenced in relation to that crime [omitted] in 2015. He received a sentence of life imprisonment and is not eligible for parole until [omitted] 2029.
[73]I have no contact with Mr SS. The events of 2013 were extremely traumatic and I have no intention of ever intentionally being in contact with him again.
In 2017 the parents agreed that the children could spend time with the Mother each alternative weekend at the Father’s residence. For a variety of reasons the Mother was inconsistent in her attendance. She did not have a license. She did not have reliable transport. She was still in the grip of a substance abuse disorder.
In 2017 CSS advised the Father and his partner that CSS was about to intervene to remove the Mother’s three children R, Q and P from her care and advised him to issue proceedings to confirm the position that the children lived with him and to empower him to limit face-to-face time with the Mother. Soon after the order referred to above was made by consent this court.
On 16 November 2017 a family consultant prepared a child dispute conference memorandum (“the 11F report”). At that time the 11F report writer reported risk factors as follows:
Risk factors
Child Safety and Well-being
· The father stated that he had been contacted by the Child Safety Service who advised him to take protective action in relation to the children due to concerns for their safety associated with their mother’s other children being removed from her care. He also alleged that the children were expose to neglect and an inappropriate home environment when spending time with their mother and that their mother’s inconsistency in contact with them has impacted them emotionally.
· The mother denied significant safety concerns for the children. She acknowledged that her two youngest children had recently been removed from her care but stated that this was due to allegations made by the father rather than actual risk issues and that she was working with child safety to have the children returned. She denied that the children were exposed to neglect in her care or that she was inconsistent in her contact with the children stating that the father has restricted their contact significantly.
· The mother alleged that the children have experienced emotional abuse and excessive discipline in the father’s care and have been exposed to unsafe situations due to the father’s behaviour when under the influence of alcohol.
…
Issues for the children
...
· Given the father’s information as to the emotional impact on the children of alleged inconsistent contact with the mother, there would likely be some benefit to the children’s well-being if contact with their mother was as consistent as possible in this interim period.
· The information suggesting current, significant Child Safety involvement with the mother is concerning and may suggest that the children would be at risk in her care.
THE 2018 FAMILY REPORT
The Mother was imprisoned for a few months in 2018 and released in 2018. The First Family Report interviews were held on 25 September 2018. At that time the children had spent four sessions with the Mother at the contact Centre in line with the orders of 31 October 2017 but had missed two sessions. The Father was proposing that the children spend supervised time with the Mother once per fortnight. The Mother was proposing that the children eventually live in an equal time arrangement once she has secured appropriate housing and until then that they spend two nights with her each weekend. The Father said in interview for that report that he believed that the Mother’s social life revolves around drugs and gave the example that one of her friends recently died of an overdose. The Father said then that he had no reason to believe that the Mother had changed her habits. The 2018 Report writer opined:
[85]The parents separated when X and Y were at vulnerable ages in terms of the emotional, social and cognitive development. For apparently two years after the separation, they lived primarily with [the Mother] and spent time with [the Father] in an arrangement which is unclear but in which the children seem to have spent irregular but continuous time with him. It is possible that the process of the children forming attachment relationships with [the Mother] were disrupted due to the family circumstances at the time. [The Father] is a significant figure in the children’s lives in that he seems to have been more continually available to them. Nevertheless, X and Y have not had the optimal childhood circumstances to set up foundational relationships.
[86]X impressed as an anxious child with a poor self-image. He seems to have been exposed to negative information about his mother, possibly having formed his conclusions about her from the fact of not having seen her for long periods of time. He has possibly also been exposed to [the Father’s] and Ms B’s opinions of [the Mother]. X as a young child has also been exposed to ongoing family violence and witnessed a particularly violent incident involving Mr SS. X would therefore be vulnerable to emotional difficulties as a result of experiencing events which he would most likely have perceived as traumatic. X’s difficult behaviour, negative self-concept and signs of anxiety possibly reflect these traumatic experiences along with disruption to his care and relationships. It is also possible that X has feelings of extreme loss such as abandonment due to not having been in continuous care of his mother…
…
[88]X and Y are at the developmental stage of forming relationships with their peers and mastering academic and physical tasks. These tasks are best achieved from the foundation of solid relationships with parents. Thus far, the history of X and Y’s childhood suggests that these foundations require further strengthening. X and Y will benefit from the parents prioritising their relationships with them. They [would] benefit from stability and the parents and Ms B respecting each other’s roles and having parenting roles that are clearly communicated to the children. Hopefully this will benefit their emotional well-being and allow the children to achieve their developmental tasks of childhood. X and Y will garner significant benefit from a supportive school environment and their regular attendance.
…
RECOMMENDATIONS
[92]It is recommended X and Y live with [the Father].
[93]It is recommended that X and Y spend time with [the Mother] each weekend during daytime hours not necessarily with supervision.
[94]It is recommended that family report be released to [the Mother’s] parole officer.
[95]It is recommended that the family report be released to the principal of X and Y’s school.
The Father described 2019 as a better year for the Mother. It may be that she had ceased using drugs for a period at this time. In January 2019 the parents negotiated the hopelessly optimistic plan of the Mother spending overnight time with the children during school holidays and each alternative weekend unsupervised at her home. On occasions some of that time occurred.
THE SECOND FAMILY REPORT
The report interviews were undertaken on 22 June 2020. The Mother reported as follows:
[3][The Mother] reported she was staying in temporary accommodation at Hotel W until she can move in a long term home. [The Mother] reported that last Friday (which seemed to be [19 June 2020]), Child Safety Services placed N in ‘respite care’ to give her and Mr D a break. The family consultant subsequently reviewed Child Safety Services subpoenaed material where there is a copy of an application for a Care and Protection Order dated 1 November 2019 and a copy of a 12 month Order made in for N’s protection.
The Father’s partner reported:
[66]Ms B reported that the children look forward to seeing their mother. She said that as soon as she gets up on a day the children are to see their mother, she starts messaging [the Mother] to try and clarify her plans. Ms B reported that Y does her hair and puts on her best clothes, X will watch the road for hours; they wait home all day for [the Mother] to arrive. Ms B reported that [the Mother] promises the children things she cannot deliver. She said that [the Mother] showed them a pictures of a motor bike that she said she would give them. Ms B reported that she has told the children she will stay with “nanny Randrup” to make sure she can see them the following day but then she does not follow through.
[67]Ms B spoke about her and [the Father] being advised by X’s treating psychologist to be more age appropriately honest with the children about the reasons for the mother being unreliable. Ms B said she had been recently trying to contact [the Mother] to try and make sure that she is okay.
The Family Consultant opined:
[80]It seems evident from the children’s joy about seeing her that they have experienced their mother to be kind and loving. [The Mother] softened in her tone of voice when she spoke adoringly about them. It must be highly distressing for the children to experience their mother to be unreliable about seeing them, as indicated by the information of [the Father] and Ms B which is consistent with Child Safety Services material. [The Mother] appears to underestimate her role in causing distress to the children in the care of [the Father] that is not directly related to his parenting. The behaviours of [the Mother] have hindered the children’s positive adjustment to living primarily with their father.
…
[82]… The children have now lived with their father for around 6 years, there have been extended periods of time when they have not seen their mother at all. It seems likely that irrespective of the children’s positive experiences with their mother, if [the Father] and Ms B had undermined the children’s relationship with her they would not have what seems to be their current loving relationship with [the Mother].
[83]It is always possible that a person will find a way to recover from a chronic substance abuse problem. However, there was no indication at the time of this assessment that [the Mother] will likely achieve sobriety in the near future. …
…
[88]To help avoid disappointment for the children’s inconvenience for [the Father] and Ms B, it is suggested that [the Mother] be required to confirm her attendance on the same morning of a planned visit. If [the Mother] has not contacted by the required time, then it would be taken that the visit would not be proceeding.
[89]If the children are to live primarily with [the Father] and spend limited time with their mother it seems more practical that he has sole responsibility for any long term parenting decisions that are required. To help [the Mother] maintain her connection with the children, it is suggested that she is advised of any decisions made about their education and health.
CSS EVIDENCE
Mr E, an authorised child safety officer gave evidence (“the CSS Officer”). He is the CSS officer for the Mother’s baby N and her children (not the subject of these proceedings) Q and P. A comprehensive affidavit he intended to rely on that afternoon in the Magistrates Court proceedings concerning N was tendered in evidence. He recites that the Mother and her partner Mr D had tested positive on the following dates proximate to the final hearing:
Mother
•10 September 2019 (before N’s birth), methamphetamine.
•2020 (N was 7 months old), methamphetamine, amphetamine, THC and MDMA.
Mr D
•23 Sep 2020 THC and methamphetamine.
Mr E recited the desperate circumstances that precipitated the removal of baby N from her parents care. N was not “in respite” to give her parents a break as the Mother had told the family consultant (see paragraph 3 of the family report above).
On 1 November the Mother had told the CSS Officer that she thought methamphetamine was “okay” and that she can handle it in small amounts (ICL 9 [45a]). On 9 June 2020 he had received a report that the Mother was keeping X’s medication for herself. He undertook a home visit the following day and the Mother had just woken up at 1.30pm.
The CSS Officer’s affidavit, ICL 9, also reported significant conflict and family violence between the Mother and Mr D and exhibited graphic photos of cuts and bruise clearly taken by the Mother of herself, sent to the CSS Officer by her (‘C” to ICL 9). Later interviews with the Mother and Mr D provided highly inconsistent accounts of family violence between them including complete denials as well strident argument directly in front of the CSS Officer with the Mother storming out of the room (ICL 9 [75]).
The CSS Officer’s evidence included the following:
MS RYAN: So you have concerns for both N’s mother but also her father, Mr D? Yes.
And you’re concerned about the family violence in that home? I certainly am, yes.
And the mother is alleging the father was violent towards her? Yes.
He is alleging that she is violent towards him, and he has to restrain her at times? Yes.
And you’ve seen photographs to know that she has been injured, in any event? Yes, I have. Yes.
So on either party’s story there’s family violence occurring in that household? There is.
And the dynamic between Ms Randrup and Mr D is such that his daughter, M, no longer wishes to visit him; is that right? That’s correct. In her words, she is terrified of living in that house. Yes.
Okay. When did you last see Ms Randrup? 23 December 2020.
23 December, just prior to Christmas? Yes.
And was there anything in her presentation that caused you to think she was anything other than sober? She was dishevelled. It was approximately midday. It’s hard to say. It’s hard to make a determination on exactly – on – on whether she was affected by drugs at the time. She had just woken up; it was midday, which is basically – the history of Ms Randrup is that she sleeps past midday. The same happened this day.
LEGAL PRINCIPLES
The tragic facts of this case are clear. The proper outcome of the children’s living arrangements for the best interests of the children is obvious to anyone aware of all the circumstances. Nonetheless I apply Part VII of the Act to this decision as I must. The relevant provisions include the following:
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
61DAPresumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
65DAACourt to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
65DACEffect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
…
4 Interpretation
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
CONCLUSION
The Mother’s life is still in the chaos of the regular long term drug user with all that circumstance brings with it. Appling Part VII of the Act, in light of the above circumstances I was satisfied that it was in the best interests of the children that the Father have sole parental responsibility for major long term decisions concerning the children. The section 61DA presumption is rebutted by the evidence. It would be well-nigh impossible for the Father to consult with the Mother about the children’s health and education and highly unlikely the parents could comply with section 65DAC (the duty to consult and come to a joint decision).
The children have lived with the Father and his partner for many years now. They are committed to the responsibility of raising the children and have provided relative stability for them and demonstrated an appropriate attitude to parental responsibility. The children love their Mother and their Father. The Father has supported the children’s relationship with the Mother where it was safe to do so. The Mother loves the children.
The command of section 60CC(2A) and the Mother’s circumstances mean that the provisions of section 60CC(2)(b), the need to protect the children, must take precedence over the primary consideration of the benefit of the children having a meaningful relationship with her.
The orders sought by the ICL and the Father were, and are, in the best interest of the children and I made those orders.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Judge O'Shannessy. Associate:
Dated: 25 October 2021
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