Eliot and Dent and Anor

[2016] FamCA 128

FAMILY COURT OF AUSTRALIA

ELIOT & DENT AND ANOR [2016] FamCA 128

FAMILY LAW – CHILDREN – With whom the children live – With whom the children spend time – Parental Responsibility – Where the Department of Family and Community Services has intervened – Issues of drug use and mental health of the parents – Where the children are currently in care – Non-parent party – Need to protect the children from harm – Orders made for the Department to hold parental responsibility.

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

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode & Goode (2006) FLC 93-286
Potts & Bims [2007] FamCA 394
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FamCAFC 92
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Mr Eliot

RESPONDENT: Ms Dent

INTERVENOR: Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Smythe Wozniak

FILE NUMBER: PAC 5823 of 2010

DATE DELIVERED: 3 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant appearing by telephone

COUNSEL FOR THE INTERVENOR: Ms Boyle

SOLICITOR FOR THE INTERVENOR: Crown Solicitor's Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms De Vere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Smythe Wozniak

Orders

It is ordered that:

1. All previous parenting Orders in relation to the following children (referred to collectively as “the children”) are discharged:

   (a)       B, born … 2008;

   (b)       C born … 2009; and

   (c)       D born … 2011.

PARENTAL RESPONSIBILITY

1. The Minister for Family and Community Services (“Minister”) exercise sole parental responsibility for the children.

LIVE WITH

1. The children shall live as directed by the Secretary, Department of Family and Community Services, (“Secretary”) or his delegate.

SPENDING TIME WITH THE MOTHER

1. Unless otherwise agreed, the children shall spend time with their mother, Ms Dent (“Mother”) on not less than six (6) occasions each calendar year, each occasion being a visit for a period of four (4) hours commencing at times and at a location nominated by the Secretary or his delegate.  Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.

2. The Secretary’s delegate will prepare an annual schedule of dates and times on which the Mother will spend time with the children. The Secretary’s delegate will provide this schedule to the Mother in writing at the Mother’s nominated postal or email address and will inform the Mother in writing at her nominated email or postal address of any changes to the schedule.

3. The Mother will confirm that she is attending to spend time with the children by contacting the Secretary’s delegate at least 24 hours before the scheduled time, unless in the event of an unexpected emergency which results in the Mother being unable to contact the Secretary or his delegate, when she will contact the Secretary or his delegate as soon as practicable thereafter.

4. If the Mother does not attend a scheduled visit with the children within 30 minutes of the time it is nominated to commence, or does not inform the Secretary of her attendance pursuant to Order 6, or contravenes any of the Restraints and Injunctions set out at Order 23, the visit shall be cancelled.

5. If two or more consecutive visits between the Mother and the children are cancelled pursuant to Order 7, the children shall spend time with their Mother at times, and for a duration, as nominated by the Secretary or his delegate.  Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.

6. In the event that the Mother is incarcerated, the children shall spend time with their Mother at times, and for a duration, as nominated by the Secretary or his delegate.  Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.

SPENDING TIME WITH THE FATHER

1. Unless otherwise agreed, the children shall spend time with their father,

   
   

   Mr Eliot (“Father”) on no less than six (6) occasions each calendar year, each occasion being a visit for a period of four (4) hours commencing at times and at a location nominated by the Secretary or his delegate.  Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.

2. The Secretary’s delegate will prepare an annual schedule of dates and times on which the Father will spend time with the children. The Secretary’s delegate will provide this schedule to the Father in writing at the Father’s nominated postal or email address and will inform the Father in writing at his nominated email or postal address of any changes to the schedule.

3. The Father will confirm that he is attending to spend time with the children by contacting the Secretary’s delegate at least 24 hours before the scheduled time, unless in the event of an unexpected emergency which results in the Father being unable to contact the Secretary or his delegate, when he will contact the Secretary or his delegate as soon as practicable thereafter.

4. If the Father does not attend a scheduled visit with the children within 30 minutes after the time it is nominated to commence, or does not inform the Secretary of his attendance pursuant to Order 12, or contravenes any of the Restraints and Injunctions set out at Order 23 below, the visit will be cancelled and will not be rescheduled.

5. If two or more consecutive visits between the Father and the children are cancelled pursuant to Order 13, the children shall spend time with their Father at times, and for a duration, as nominated by the Secretary or his delegate.  Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.

6. In the event that the Father is incarcerated, the children shall spend time with their Father at times, and for a duration, as nominated by the Secretary or his delegate.  Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.

INFORMATION EXCHANGE AND COMMUNICATION

1. The Mother and Father will each provide to the Secretary or his delegate in writing their nominated email or postal address and telephone number within 28 days of the making of these Orders.

2. The Mother and Father will notify the Secretary or his delegate in writing of any change to their nominated email or postal address or telephone number within 14 days of this change occurring.

3. Any written communication addressed to the Mother or Father, and delivered to the email or postal address nominated by the Mother or Father will be deemed to have been provided to the Mother and Father and to satisfy any requirement that the Secretary or his delegate provide documents or information to the Mother or Father.

4. The Secretary or his delegate shall inform the Mother and Father as soon as practicable of any serious accident, medical emergency, or chronic developmental or medical conditions of any of the children.

5. The Secretary or his delegate shall inform the Mother and Father as soon as practicable of any changes to the children’s living arrangements.

6. The Secretary or his delegate shall provide the Mother and Father with copies of the children’s school reports.

7. The Mother and Father may provide gifts, letters or cards addressed to the children to the Secretary or his delegate for forwarding to the children, subject to the Secretary’s delegate considering the material appropriate to be provided to the children.

RESTRAINTS AND INJUNCTIONS

1. The Mother and Father are hereby restrained by injunction from:

   (a)       being under the influence of illicit drugs while spending time with the children, or permitting another person to do so, pursuant to these Orders;

   (b)       consuming any alcohol within twelve (12) hours of spending time with the children pursuant to these Orders;

   (c)       abusing, insulting or denigrating the children or any of the other parties, or a member of their family or household to or in the presence of the children or in telephone or written communication with the children, and from permitting another person to do so;

   (d)       discussing any allegation made or evidence given in these proceedings to or in the presence of the children or in her telephone or written communication with the children, and from permitting another person to do so;

   (e)       exposing the children to any form of family violence including verbal violence or using abusive language to, within, or in the hearing of the children;

   (f)       physically disciplining or striking the children;

   (g)       discussing with the children these proceedings, or any future court proceedings regarding the children; and

   (h)       questioning the children about the appropriateness of the other parties’ behaviour or parenting or partner’s behaviour or parenting while spending time with the children or communicating with the children by telephone or in writing.

2. Unless otherwise agreed to in writing by the Secretary or his delegate, the Mother and Father are hereby restrained by injunction from entering or approaching:

   (a)       Within 200 meters of the residence of the children;

   (b)       Any educational institution attended by the children;

   (c)       Any venue where the children are participating in extra-curricular activities;

   (d)       Contacting the children or their carers by any means other than in accordance with these Orders.

3. For the purpose of facilitating the children spending time with their Mother or Father, the Secretary or his delegate may request that the Mother or Father attend random chain of custody drug urinalysis screening in accordance with the current Australian Standard within twenty four (24) hours of a request of the Secretary’s delegate to do so.

NOTATIONS

(A)B and C currently reside with their paternal grandmother, Ms E, and D resides with authorised carers employed by the non-government organisation “Challenge Children’s Services”.

(B)The Secretary proposes that the children live together.

(C)In the event that the Secretary is unable to locate a placement for all of the children, the Secretary proposes that the children spend frequent and meaningful time together.

(D)In the event that one or more of the children is placed with authorised carers, the Mother and Father will be invited to participate in case reviews to discuss the children’s progress with their authorised carers and will be provided with a copy of the children’s annual case plans. Each case review shall take place on at least one (1) occasion each calendar year.

(E)The arrangements for the Mother and Father to spend time with or communicate with the children will be subject to ongoing review by the Secretary or his delegate, and will be reviewed in the annual case review of each child placed with authorised carers.

(F)The Secretary proposes that the children communicate with the Mother and Father by telephone. The arrangements for such telephone time are to be arranged in consultation with the children’s authorised carers and subject to this time being positive for the children.

(G)For the purpose of Orders 18 to 22 and Notation D, any documents provided to the Mother and Father by the Secretary or his delegate may be redacted to prevent disclosing identifying information of the children’s authorised carers or the private contact details of persons who are not parties to these proceedings.

(H)If the Secretary’s delegate becomes aware that the Mother or Father is no longer living at their nominated address and not receiving material sent to their nominated address, but no new address is provided, the Secretary’s delegate may stop writing to the nominated address if this would place the children at risk of harm or risk disclosing confidential information about the children or their authorised carers to persons who are not parties to these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eliot & Dent 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 PARAMATTA

FILE NUMBER: PAC 5823  of 2010

Mr Eliot

Applicant

And

Ms Dent

Respondent

And

Department of Family and Community Services
Intervener

REASONS FOR JUDGMENT

1. The lives of the three children B, C and D have presented many challenges, more recently the absence of their parents from any meaningful engagement in their young lives.

2. The child B was born in 2008, the child C was born in 2009 and the youngest child is D was born in 2011.

3. The present proceedings between the father and the mother in relation to the circumstances of the children were commenced by the father in August 2012. These proceedings have had a chequered pathway through the system.

4. In his application commencing proceedings the father at that time sought orders that in summary provided for he and the mother to have equal shared parental responsibility, that the children live with him and that the mother have defined time with the children substantially alternate weekends and half school holidays.

5. The mother in her Response filed on November 2012 sought orders that provided for her to have sole parental responsibility for the children, that the children live with her and that the children have supervised time with the father at a contact centre.

6. It is inherent in the initiating documents that both parents had reservations about the parenting capacity of each other.

7. The history of the proceedings has revealed that certainly to be the case and that it be appropriate that parental responsibility for the children pass to the Minister for Family and Community Services. Notwithstanding that ultimately both parents did not oppose that course it is appropriate that the reasons for such orders be set out.

Context

1. Earlier proceedings were commenced in the then Federal Magistrates Court of Australia in 2010 in relation to the two older children. Those proceedings were dismissed for want of prosecution on 1 April 2011.

2. The further proceedings commenced in 2012 were also commenced in the then Federal Magistrates Court of Australia on the application of the father.

3. On 24 September 2012 a Commonwealth Information Order was made directed to Centrelink in an endeavour to locate the whereabouts of the children and or the mother. Following information being provided the mother became engaged in the proceedings and on 11 October 2012 the mother and father were directed to attend a child dispute conference and an independent children’s lawyer was appointed to represent the interests of the three children.

4. On 23 November 2012 interim orders relating to the children were made by consent that provided for the children to live with the mother and for the father to spend one weekend a month with the children substantially in the presence of the paternal grandmother.

5. More importantly on 23 November 2012 a request was made that the Department of Family and Community Services intervene in the proceedings as a consequence of concerns in relation to the children’s circumstances.

6. Proceedings were subsequently transferred to the Q Town registry of the Federal Magistrates Court of Australia where on 13 May 2013 an order was made for the preparation of a Family Report.

7. Subsequently in interim proceedings on 22 August 2013 in the Federal Circuit Court of Australia in Brisbane the children’s time with the father was suspended and thereafter on 14 November 2013 the father was ordered to spend supervised time with the children at the Q Town Contact Centre.

8. On 9 May 2014 the Secretary, Department of Family and Community Services (“the Department”) intervened in the proceedings and on application made to the Court that day all previous parenting orders were discharged and parental responsibility for the children was granted to the Department with the children to live as directed by the intervenor or his delegate. Further the various injunctions were ordered restraining both parents from any contact or communication with the children unless agreed by the intervenor or his delegate. Both parents were ordered to undertake hair follicle testing.

9. Proceedings were listed for final hearing commencing 30 October 2014 in the Federal Circuit Court of Australia at Q Town.

10. It was noted by the Court on 9 May 2014 that:

    a)On 29 April 2014 in the Children’s Court of New South Wales an Emergency Care and Protection Order (ECPO) was made in relation to the children;

    b)On 7 February 2014 the Department entered into a temporary care arrangement with the mother whereby the children were placed with authorised carers;

    c)On 7 May 2014 the Department proposes that the children be placed with the paternal grandmother and paternal aunt pending outcome of risk assessments; and

    d)The mother and father were currently spending supervised time with the children separately.

11. On 2 September 2014 the final hearing dates were vacated and an updated Family Report was ordered. The children remained living with the paternal grandmother and paternal aunt in Sydney.

12. On 21 October 2014 proceedings were transferred to the Suburb I Registry of this Court. The updated family report was released to the parties on 17 February 2015. Trial directions were made on 1 April 2015, on which date all parties were ordered to attend mediation.

13. It appears that mediation was unsuccessful and in particular that there was little engagement by the father or the mother in that process or in the preparation of the matter for trial. The matter was subsequently listed for trial for four days commencing 22 February 2016.

14. Proceedings were listed before a registrar on 28 January 2016 and there was no appearance by or on behalf of the father or mother. They had failed to file their trial affidavits in accordance with the trial directions. The matter remained listed for hearing with the note that the matter may well proceed undefended in the absence of the father and mother.

15. On 17 February 2016 information was provided to the Court that the mother was in custody at the F Correctional Centre. Leave was granted for the mother to appear by telephone on the first day of the hearing.

16. On 22 February 2016, the first day of the hearing the father appeared in person unrepresented. The mother appeared by telephone from the Correctional Centre. The mother confirmed that she had received the Department’s trial documents that incorporated the proposed orders sought by the Department. She informed the Court that she would be eligible for parole on 23 March 2016 but was also awaiting sentence on further matters that were listed before the court on 7 March 2016.  The mother agreed to orders that the Department have parental responsibility for the children.

17. For his part the father entered into signed Terms of Settlement with the Department and the independent children’s lawyer (Exh E). The father agreed to the Department having sole parental responsibility for the children and the children living as directed by the Department. The father also agreed to the Department’s proposals for the children to spend time with the mother with such time to be supervised at the discretion of and as directed by the Department. The father also agreed to orders that made similar arrangements for the children to spend time with him. Orders agreed to by the father included the mutual exchange of information between himself and the Department and various restraints as to conduct by the father.

Background

1. At the time of trial the father was nearly 41 years of age and the mother nearly 31 years of age.

2. The parents’ relationship commenced in early 2006 and finished some time during 2011 or 2012 although as observed by the family consultant it was “a fairly volatile on-again off-again scenario”.

1. The three children are the only children of the relationship between the mother and father. The mother has an older child G born when she was 17 years of age. Both parents had extensive problems with substance abuse prior to their relationship and somewhat regrettably they met when they were attending the same methadone clinic in about 2006.

2. The mother and father continued on methadone throughout their relationship and the father used other drugs extensively during the same period. The mother to the family consultant asserts that the relationship was heavily characterised by the father’s domestic violence and controlling nature as well as his ongoing heroin use. For his part the father conceded verbally abusive behaviour but rejected allegations of physical violence, claiming that the mother was in fact violent towards him.

3. Both parents have an extensive criminal history with a range of various convictions and each of them has spent a number of periods in custody. Major convictions relate to repeated shoplifting and theft, presumably to fund their drug habit.

4. The mother asserted to the family consultant that the father suffered from mental illness and emotional instability throughout the relationship. The father denies this but has had an extensive history of stays in hospital and in the psychiatric wing of a prison hospital with significant reference to a diagnosis of paranoid schizophrenia.

5. Following an early separation orders were made in December 2010 for a substantially shared care arrangement that continued thereafter for about three months until the father was incarcerated for a period of six months from February 2011 until August 2011. The father for his part asserts some sort of reconciliation thereafter but that suggestion is rejected by the mother.

6. In July 2012 the mother relocated the children to H Town in regional New South Wales. The father remained living in Sydney. The mother’s change of circumstances resulted in the orders of December 2012 that provided for the father to spend one weekend a month with the children.

7. In March 2013 the mother was incarcerated for three months for breaches of her parole in that she had not completed her community service hours with the Salvation Army.  The mother had been extensively involved in services in the H Town area including with the Department of Family and Community Services, a methadone program and a drug and alcohol service.

8. The children were placed in foster care by the Department and returned to the care of the mother following her release.

9. In February 2014 the mother was involved in a serious car accident and sustained significant injuries to her right leg. Once again the children were placed in care by the Department with an expectation that that care would end by early May 2014.

The father’s mental health

1. Meanwhile the father in December 2012 ceased participating in his long-term methadone program at a clinic in Suburb I. Subsequently he was admitted to J Hospital for voluntary detox in mid-January 2013, discharging himself against medical advice. By this time the father was continuing to use heroin and illegal methadone and had a long-term dependence on benzodiazepine. He was admitted again for voluntary detox in early March 2013 but again discharged himself voluntarily.

2. The father was admitted again to J Hospital on 13 March 2013 for a period of about five weeks for mental health assessment after expressing suicidal ideation in consultation with his doctor.  On his discharge summary the father was listed as depressed, psychotic and suicidal on admission and his admission notes record many instances of suicidal thoughts, voices in his head and his need to take opiates to stop the voices. The father’s notes reveal that he absconded twice during his inpatient treatment from the hospital and used heroin during his absence. The father was referred to the local community mental health centre after discharge but failed to engage with that centre.

3. Historical notes in relation to the father reveal him presenting to hospital in March 2001 and October and December 2006 with similar history to that of his 2013 admission. The father’s first contact with the psychiatrist was when he was in custody in L Prison in 1994.

4. In February 2014 the father was examined by Dr K, forensic psychiatrist (Exh B). In a lengthy and detailed report Dr K considers the father’s history and background. Dr K observed that the father’s principal symptoms appeared to be paranoid or persecutory/religious thoughts, plus auditory hallucinations. Dr K concluded that the father had a significant potential/vulnerability to return to substance abuse and that any contact with his children should only be in a supervised capacity. Dr K considers it appropriate that the father consulted a treating psychiatrist on a regular basis with that psychiatrist to be in a position to notify the Court or relevant authorities should there be any significant deterioration in the father’s mental state or his compliance with treatment recommendations. It is of note in the context of these present proceedings that there is no evidence that the father has so engaged with a treating psychiatrist.

5. Dr K observed that the father needed to enter into a total sobriety from all illicit and prescription drug abuse as those substances, illicit substances in particular, will aggravate/precipitate further episodes of psychosis.

6. In late 2014 the father entered into a residential rehabilitation program in Brisbane but left after a short time. He was unable to provide any clear pathway to the family consultant as to his plans for drug rehabilitation nor was it possible for the family consultant to clarify any details of the father’s current mental health treatment with enquiries resulting in long rambling statements from the father complaining that he heard voices in his head, or that he wanted to kill the children or that people were alleging he was a paedophile or that he was a schizophrenic when he wasn’t.

The mother

1. In the first Family Report dated 6 August 2013 the family consultant observed “it is extremely clear that there are serious child protection concerns in relation to both parents in terms of the history and risk with drug abuse, violence, crime and mental illness”.

2. The mother reported to the family consultant her drug history as being addicted to heroin from the age of 16 to 21, as well as using speed from 14 to 16 explaining that she had been on a methadone program for the seven years prior to the report. The mother further reported a history of depression and anxiety and post-traumatic stress disorder relating to a sexual assault in 2004. The mother reported that she had been seeing the community mental health service in Q Town since relocating to that area.

3. The mother gave a history of different medications and those medications having been changed while she was in custody.

4. At the time of the mother’s motor vehicle accident in early February 2014 caseworkers from the Department attended at the mother’s house. They located a number of syringes and needles in the garbage bin in front of the house raising concerns about the risk of ongoing drug abuse by the mother. Subsequent assessments were completed by the Department and on 10 April 2014 it was resolved that it would be unsafe to return the children to the care of the mother. On 16 April 2014 the children were placed into respite care with the paternal aunt and paternal grandmother in Sydney.

5. In subsequent interview with the family consultant for the purposes of an updated Family Report in November 2014 the mother acknowledged her abuse of morphine as a result of her use and access to painkillers following her motor vehicle accident. The mother had entered a seven-day detox program at M Hospital in early October 2014 but discharged herself early.

6. In November 2014 the mother was awaiting further significant surgery on her ankle. Following that surgery it was her intention to enter a four-month live-in rehabilitation program in Sydney and thereafter a long-term rehabilitation program for a period of about 12 months at N Town in New South Wales.

7. The mother conceded to the family consultant that she was fooling herself that she was ready to be caring for the children again.

The updated Family Report

1. The updated Family Report dated 26 November 2014 is Exhibit A.

2. The family consultant was of the view that the Department holding sole parental responsibility was a very appropriate outcome notwithstanding either parent’s proposal to the contrary. Further the family consultant was of the view that it was completely unrealistic to be hoping that paternal family members would be able to manage the arrangements for the children to spend time with the parents without the assistance of the Department as they:

   …would be overwhelmed by the challenges of dealing with either one or both of the parents in a very short time. Both [Mr Eliot] and [Ms Dent] have long histories of struggling with boundaries and respectful behaviour and communication, as well as criminal acts, and it would be a completely untenable situation for anyone other than the Department to manage these interactions and arrangements.

The Department

1. The Department relied upon the affidavit of the case worker Mr O filed on 25 January 2016. Much of the background of this matter is referred to above.

2. Between 7 May 2014 and 14 May 2015 the child D was living in the care of the paternal aunt, Ms R, and thereafter the child has been transferred to short-term carers. The older children and B and C have been residing with the paternal grandmother, Ms E in Sydney.

3. Casework with the mother: the Department’s engagement with the children in these proceedings is referred to above. The mother’s drug testing urinalysis in May, June and July 2014 were positive for benzodiazepine, although it appears this was as a consequence of the mother taking prescribed medication although there was some suggestion that the mother was abusing this prescribed medication. This resulted in a recommendation from a Dr P that the mother picks up her medication on a daily basis with takeaway doses only when she receives methadone and that such pickup be undertaken at one pharmacy only.

4. On 27 October 2014 the mother provided urine samples that tested positive for opiates. In early November 2014 the Department became aware that the mother had been admitted to hospital. On 7 November 2014 the caseworker attended M Hospital and was informed that the mother had discharged herself from hospital while she still had a “pick line” inserted to direct a line of antibiotics to her heart. The mother later that day attended at the hospital and was transported to H Town Base Hospital to have the pick line removed.

5. On 18 November 2014 the mother informed the Department’s caseworker that she had relapsed and had used morphine that resulted in her being blacklisted from the residential drug rehabilitation program but was still engaged on an outpatient basis. At this time the mother indicated to the caseworker that she had proposals to move to Sydney to live with her father and his partner. The maternal grandfather and his partner informed the caseworker they were unaware of any such proposal.

6. In early February 2015 the mother was evicted from her rented premises and commenced living in a refuge. In late March 2015 the mother informed the caseworker that she was residing with her sisters.

7. The Department was informed on 27 March 2015 that the mother’s recent urine analysis resulted in positive results for methamphetamine, clonazepam and cocaine. The mother ceased engagement with the drug rehabilitation program on 6 April 2015. Thereafter there was some doubt as to the mother’s residential circumstances and the mother’s engagement with the Department became somewhat erratic.

8. In May 2015 the Department suspended the children’s time with the mother due to the mother’s unreliability in relation to her attendances. The Department sought undertakings from the mother in consideration of which time with the children would recommence. The mother has failed to sign the undertakings and her face-to-face time with the children has remained suspended. However she has had some telephone contact with the children on a fortnightly basis.

9. In about August 2015 the mother fell pregnant and that unborn child is presently of interest to the Department. On 22 December 2015 the Department received a risk of harm report in relation to the mother’s unborn child that included concerns that the mother may have relapsed on methamphetamine and heroin.

10. On 14 January 2016 the Department received a further risk of harm report in relation to the mother’s unborn child that informed the Department that the mother had been arrested for stealing. The mother’s engagement with the Court confirmed that indeed the mother was in custody and eligible for parole in late March 2016 subject to further charges that would be the subject of sentencing on 7 March 2016.

11. Casework with the father: the Department’s primary engagement with the children is referred to above. The father’s engagement with the Department has been on and off. Initially difficulties were confronted in regular contact with him and the arrangement of urine analysis. He spent short periods with the children in May, July, August and September 2014 and then February 2015 through to July 2015 on a monthly basis. Thereafter the father had contact with the children in September 2015 and December 2015 and he has continued to have telephone contact with the children about once each fortnight.

12. The children: in early October 2014 the paternal grandmother and paternal aunt informed the Department of their concerns about being able to provide a long-term placement for the children. During 2015 the Department made efforts to locate a long-term placement for all of the children together with duly authorised carers but without success.

13. In mid May 2015 the child D was moved from the paternal aunt’s care to his current carers. There have been ongoing discussions with the paternal grandmother as to future care arrangements for the two elder children and it was hoped that they might be placed with the same carers as D. That arrangement proved impracticable for the carers but it is proposed that they would remain long-term carers for D and facilitate him spending time with the other two children.

14. It is clear that the Department’s engagement with these children is a work in progress.

Non-parent applicants

1. Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.

2. The Department clearly falls within the ambit of the section. Further, having regard to the circumstances of the children both historically and at present where the children are presently in the Department’s care it is clear that it is also concerned with the care, welfare and development of the children. The Department is able to apply for parenting orders.

Relevant matters in determining applications for parenting orders

1. The relevant principles in relation to parenting are well settled: see Goode & Goode (2006) FLC 93-286.

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

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

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

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. This matter, however, involves non-parents: the Department.

9. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted, however, that it may be necessary to address some of those legal principles in determining the outcome.

10. Consideration of the Department as non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration in s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”.

11. It is therefore appropriate to apply the relevant considerations in respect of the applicants by way of application of s 60CC(3)(m).

12. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

    … there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

13. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

    19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents. …

    …

    21.      It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

    …

    25.      In Donnell, the Court went on to say …

    However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

    We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” …

1. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said:

   … all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. …

2. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

   The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

The primary considerations: section 60CC(2)

1. The primary considerations are:

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

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

Meaningful relationship

1. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. (emphasis added)

2. In McCall & Clark (2009) FamCAFC 92 the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. It is clear that the nature of the parents’ relationship with the children as discussed above historically was not “meaningful” for the children. The issue will remain as to the nature and extent of the parents’ relationship with the children moving forward and whether such a relationship will be important, significant and valuable to the subject children.

4. Present indications are that the parental relationship with the children on a very limited basis by agreement with the Department might be useful in preserving parental identity for the children. A more engaged relationship and whether such a relationship will be meaningful for the children can only be gauged by the passage of time.

5. This consideration is clearly indicative of the children remaining in the care of the Department.

Protection

1. This consideration is to be given primacy.

2. This consideration is a fundamental factor in the Department assuming care of the children. The children’s lives have been dislocated, disrupted and subject to the abhorrent behaviour of their parents that has seen the children placed at risk by their drug induced lifestyle and the mental health issues of the father. 

3. Indeed this consideration alone is sufficient to determine this matter in favour of the Department.

Parental responsibility

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as set out in [72] above.

2. An order can be made for a non-parent to have parental responsibility or to share parental responsibility with another, but where proceedings are between a parent and a non-parent, as referred to by the Full Court in Donnell & Dovey (supra) at [121] and in Aldridge & Keaton (supra) at [112], the presumption of equal shared parental responsibility under s 61DA is not the prescribed pathway in determining what is in a child’s best interests.

3. As this matter involves a non-parent the presumption does not apply.

4. The issue would be determined by a consideration of the child’s best interests.

5. The major long-term issues the subject of parental responsibility relate to a child’s education, religion and cultural upbringing, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.

6. It is clear as discussed above that it is the best interests of the children for the Department to have parental responsibility for the children.

7. Orders will be made accordingly.

8. The parents will spend time with the children as agreed with the Department. The ICL supports such orders.

The additional considerations: section 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. As noted above, it is appropriate to consider the relevant considerations in respect of the applicants by way of application of s 60CC(3)(m).

2. The children’s views are not before the Court.

3. The nature of the children’s relationships with the parents and the Department is discussed above. This consideration is supportive of the children being in the care of the Department.

4. The failure of the parents to engage in decisions relating to the children is patent. Their lack of engagement is fundamental to the present application.

5. The Department has assumed the primary obligation to maintain the children with no evidence that the parents have made any contribution.

6. The children have been in their present living circumstances for some time and no changes are proposed to those arrangements save for a proposal to place the older two children ultimately with long term carers.

7. The children’s relationship with the parents will be subject to agreement with the Department. There is no practical difficulty or significant expense in the children spending time with and communicating with the parents. However the nature and extent of the parent’s willingness to engage with the children is at best problematic in the foreseeable future.

8. Parental capacity is also a fundamental aspect of these proceedings where both the mother and father have demonstrated little capacity to meet the children’s needs including the children’s emotional and intellectual needs. On the other hand the Department has stepped in and demonstrated a most appropriate capacity in this regard.

9. The parents have demonstrated a startlingly poor attitude to the children and to their own responsibilities of parenthood. It is fortunate for the children that the Department has engaged in these proceedings.

10. There was family violence in the relationship between the mother and father with the children or either of them being exposed to risk as a consequence of their parents’ behaviour.

11. The long term protection of these vulnerable children requires that an order be made with a view to avoiding the institution of further proceedings. However the Department is a non-parent and even though the children will reside as directed by the Department into the foreseeable future, circumstances may be such that at some indeterminate time either or both parents may get their lives in order such that they may be a eligible for consideration as the primary carer or carers for the children.

12. There is no other relevant fact or circumstance.

13. Orders will be made as sought by the Department and as agreed between the Department and the father and as not opposed by the mother.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 March 2016.

Associate: 

Date:  3 March 2016