ELLISON & PETERS

[2011] FamCA 549

FAMILY COURT OF AUSTRALIA

ELLISON & PETERS [2011] FamCA 549

FAMILY LAW – CHILDREN – interim proceedings - equal shared parenting – with whom children live

Family Law Act 1975 (Cth)

APPLICANT: Mr Ellison

RESPONDENT: Ms Peters

FILE NUMBER: SYC 1801 of 2011

DATE DELIVERED: 13 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 22 June 2011

ORDERS MADE: 22 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Ms McMahon

Orders until further order

IT IS ORDERED THAT:

1. Leave is granted to the parties to inspect documents produced on subpoena.

AND THE COURT LATER NOTED THAT:

(A)There is an attendant element of urgency in relation to the orders to be made and the Court proposes to make those orders drafted by the parties following the expression of the Court’s views and publish its Reasons for Judgment at a later date.

AND IT IS ORDERED THAT:

1. Orders are made in terms of paragraphs 1 to 8 of a document dated 22 June 2011, filed herein as set out hereunder:

   “1.    The father and the mother have equal shared parental responsibility for the children, namely J born … 2006 and K born … 2008.

   2.     The children live with the father.

   3.     Order 2 be conditional upon the paternal grandmother, Ms Ellison, being substantially present during all such periods.

   4.     The mother spend time with the children as follows:

   a.Saturday for three hours as agreed

   b.Tuesday and Thursday for three hours as agreed.

   5.     The mother's time with the children shall be supervised by L Care or such other supervision as the parties may agree and the father shall pay all such costs of such supervision.

   6.     The Court notes the Undertaking of the paternal grandmother

   
   

   [as set out hereunder]:

   I, [Ms Ellison], of M Street, Suburb I in the State of New South Wales hereby undertake:

   1.That I agree to be substantially present to supervise time between [Mr Ellison] ("[Mr Ellison]") and the children [J] and [K] ("the children").

   2.That I will continue to reside at [M Street, Suburb I] whilst I am required by the Court to supervise such time between [Mr Ellison] and the children."

   7.     The father file and serve a Response to the mother's financial orders sought and supporting affidavit and Financial Statement on or before 5 August 2011.

   8.     Orders 1 to 6 hereof shall come into effect after the expiration of the Temporary Care Arrangement (namely 19 August 2011) or after the Temporary Care Arrangement is otherwise brought to an end.

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

3. The mother’s financial claim is expedited.

4. Liberty is granted to the parties to apply on short notice in the event of significant change which enables the Court to vary the orders above.

5. The interim financial matters are listed for hearing before me in the Judicial Duty List at 10.00 am on Monday, 26 September 2011.

IT IS NOTED that publication of this judgment under the pseudonym Ellison and Peters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1801  of 2011

Mr Ellison

Applicant

And

Ms Peters

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are interim proceedings in which the husband by his application filed on 20 June 2011 seeks orders that his children, J born in 2006 and K born in 2008, live with him and he seeks orders that the mother spend time with the children on such terms and conditions as the Court shall impose.

2. He seeks that the operation of the orders be suspended or not come into effect until the expiration of the current temporary care arrangement made with the Department of Human Services which is due to expire on 19 August 2011 or until after the temporary care arrangement is otherwise brought to an end.

3. A Family Report is sought from an independent expert.

4. In response to the orders sought by the father the mother seeks orders of a financial nature which have not been determined at this hearing but are listed for another day and otherwise the following orders:

   Procedural Orders

   …

   2.That the Minister of the Department of Human Services (Community Services) be requested to intervene in the proceedings.

   3.That pursuant to s68L Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to represent the children.

   4.That the parties prepare a joint letter of instruction to appoint and enable the preparation of a single expert report pursuant to Chapter 15 Family Law Act 1975 (Cth).

   5.To facilitate Order 4 above, the parties shall agree on an expert and scope of the report within seven (7) days of the date of these orders or failing agreement shall accept the recommendations made by the Independent Children’s Lawyer.

   6.Applicant shall bear the costs associated with the preparation of such a Report initially and the issue of apportionment of costs shall be otherwise reserved to the final hearing.

   …

   Interim parenting

   9.That [J] born … 2006 and [K] born … 2008 (“the children”) live with the Mother.

   10.That the Mother have sole parental responsibility for the Children.

   11.That the Children spend time with and communicate with the Father as agreed between the parties.

Background facts

1. The father was born in 1970 and is aged 40.

2. He works in a professional occupation.  He is currently in employment.  He says he earns a gross income of $120,000 per annum.

3. He is said to be in good health and works in his occupation both in Australia and in City D, Country G.

4. He presently resides with his parents at Suburb I.

5. The mother and the father met in about 2004 and commenced cohabitation shortly thereafter.  The parties did not marry.  The parties separated in about August or September 2010.

6. The mother was born in 1975 in Country C and is currently aged

   
   

   35 years.

7. She is the sole survivor from her family as a result of the Country C genocide.  She entered Australia in 1995 having been brought here by the United Nations.

8. She deposes as to having suffered serious horrific injuries and trauma as a result of the civil war in Country C which required surgery in Australia.

9. She has been diagnosed with post traumatic stress disorder, anxiety and depression as a result of her experience.

10. She deposes that she has had incidents of self-harm but says that no such incident has occurred when she had care of any of her children.

11. She asserts that she has three children in addition to the subject children who live with their respective fathers in Western Australia, namely N born In 1995, O born in 1999 and P born in 2002.

12. She deposes that those children lived with their respective fathers at her instigation and not as a result of any court order or welfare proceedings and because she assessed that at the time it was in their best interests to do so.

13. The parties resided jointly and severally in Country G and Australia.

14. In March 2010 the parties returned to Australia.

15. The father returned to City D with the children in about April 2010.  The mother remained in Australia.

16. The children and the father returned to Australia in June 2010 but the parties did not resume cohabitation.  However, the children resided with the mother in the property purchased by the father at B Town.

17. Shortly thereafter the father returned to City D and did not return to spend time with the children until, the mother asserts, September 2010.

18. The mother says the father spent short periods of time with the children between September and October 2010.

19. On 15 October 2010 police were called to the premises in which the mother was residing.

20. In January 2011 the mother filed an application for an Apprehended Domestic Violence Order in the Local Court.

21. An assault charge which had previously been preferred by the police against the father was withdrawn.  It is suggested that the police could not come to a conclusion as to whether either or both the mother and the father were accurately recounting what occurred.

22. The Apprehended Domestic Violence Order was listed for hearing in June 2011 and was resolved on the basis that the parties mutually entered into undertakings on a without admissions basis.

23. The mother deposes to meeting one Ms Q and, at her suggestion in January 2011, moved out of the property at B Town with the children into the apartment that Ms Q and her husband "Mr Q" lived in at Suburb T.

24. The mother did not disclose her whereabouts to the father, however, in April 2011 her whereabouts became known to him.

25. The mother deposes that until March 2011 the support of Ms Q and Mr Q was welcome.

26. Ms Q arranged for the mother to consult a psychiatrist and subsequently arranged for her to be admitted as an in-patient at U Hospital and to consult with another psychiatrist.

27. The mother says of her then condition that she was depressed but did not pose a threat of harm to herself or the children.

28. Those with whom she was living, the mother says, took over a controlling role in relation to her and the children and that ultimately Mr Q said to her:

    We’ve decided to ring DOCS.  I’ve spoken to [Mr S] and he said you haven't been to see him...

29. It is said by the mother that the reference to Mr S was to a lawyer chosen by Mr and Ms Q to act on behalf of the mother since her then lawyer would not permit Ms Q to be present for conferences between the mother and her lawyer.

30. The mother attended DOCS offices with her solicitors on 17 May 2011.

31. It was said that the mother had made a threat to harm the children although that was denied by the mother.

32. She then recounts a discussion with the DOCS officers during which it is suggested to her that she should enter into a Temporary Care Arrangement and was informed that unless she did so a Care Order would be made.

33. It is said she asserts that her "history" is given as the reason for the Care Agreement or in default Care Order.

34. The mother explains as part of an explanation of her history that after the separation from each of the fathers of two of her other children that the children were placed in the care of their fathers because of their superior ability to financially support and contribute to them and contribute to their lives and because the mother thought that was the best place for them.

35. Her third son P was placed in the care of his paternal grandmother in 2004.

36. The mother says of her mental illness that she has sought ongoing assistance from mental health professionals since her arrival in Australia and has thereby demonstrated insight into her needs for help from time to time and given that insight has sought it.

37. The mother says she was informed by the Department that it would help her to find stable accommodation so that the children could be returned to her care.

38. Those with whom she had been living no longer agreed for her to stay with them and she says that her inability to support herself financially and provide permanent accommodation has been a significant and contributing factor to DOCS making a Temporary Care Arrangement.

39. The mother says she has been compliant with all directions of the Department in relation to medical appointments including ongoing random urinalysis as a result of assertions made by the father concerning her alleged drug use.  Those analyses, she says, have produced negative results.

40. The father says he has not been able to spend time with his children since

    
    

    15 October 2010, other than as set out below.

41. The husband filed his present application in March 2011 and by 30 June 2011, had spent time with them on seven occasions for two hours in the presence of Mr Q and a Department of Community Services officer.

42. The father says that the last three occasions on which he has had the care of the children and spent time with the children namely 4, 11 and 18 June took place at the Toronga Park Zoo or at the residence of his sister at Suburb V and his mother’s residence.

43. Ms Ellison, who filed an affidavit on his behalf, was present on all those occasions.

44. He deposes to the children enjoying time with him and he enjoying spending time with them.

45. The father deposes as to a statement made by Ms Q to him saying words to the effect that she was taking the children to DOCS at Suburb W because she reported the mother said that she would rather kill herself and the children than let the husband care for them.

46. The father says that the Temporary Care Arrangement entered into by the Department with the mother was entered into without consultation with him.

47. He says that he has, however, been compliant with requests made by the Department since then, including requests that he undergo urinalysis in respect of which there is no assertion before the Court that any positive result has been reported for illicit drugs.  It is said that the tests were ordered as a result of assertions that the father had also taken drugs.

48. The father deposes as to an intention to apply to have the current Temporary Care Arrangement set aside.

49. He has no objection to the children remaining in the care of Mr and Ms Q where they are at the moment until the Temporary Care Arrangement expires or is set aside.

50. He deposes that his parents have been interviewed by the Department so that their position might be considered.

51. He says that to have the children placed in his care he will continue to reside in his parents home at Suburb I.  He deposes as to the facilities available at that home which appears in other respects suitable for housing the children.

52. He sets forth details of arrangements he has made for pre-schooling and schooling for the children.

53. The mother presently resides in a motel arranged by the Department.

54. She concedes she does not have at the present time adequate arrangements for housing the children.

55. She has a claim in these proceedings for financial assistance but presently is only in receipt of government benefits.

56. She has a business in Country G but says that her access to that business has been prevented by the father and it certainly appears at the present time that she is unable to afford alternate accommodation for the children.

57. The financial issues between the parties have been adjourned for further hearing before this Court on 26 September 2011.

Other evidence

1. It was asserted from the bar table by the solicitor for the mother that the Department of Human Services did intend to become a party to these proceedings.

2. It was asserted by counsel for the father that his enquiries made that day did not support that proposition and that they had said they would not intervene.

3. The two accounts are in contradiction of each other.

4. The issue which faces the Court at the present time is to consider what risks might arise for the children on the occasion of the Temporary Care Order expiring.

5. The father urges that I make the orders sought by him.  The mother asks that the Court make no orders at all.

6. Clearly subject to the proviso that the order is to take effect from the date of the termination of the Temporary Care Arrangement the Court has jurisdiction to make orders in relation to the parenting of these children.

7. Absent those orders being made the children will fall into a lacuna in terms of their care arrangements and that cannot be seen as being in the best interests of these children.

8. The father points out that there have been allegations that the mother has been using drugs including Ice.  Certainly the allegations have been taken seriously by the Department and the Department has required ongoing drug testing of both the mother and the father.  There is no evidence that any of those tests have produced a positive result.

9. The mother, whilst admitting to taking some drugs with the father, otherwise it seems denies or does not admit the taking of such drugs.

10. The father filed an affidavit of one M who was a cleaner working for the parties and who is an undergraduate in the third and final year of a Bachelor degree.

11. She worked for the parties from about June 2010 to September 2010 as a cleaner three days per week.  Her observations say that the child J did not reach his appropriate developmental milestones and she lists examples of some of the milestones not reached by J.

12. She says after she commenced employment the mother began leaving home for varying periods of time, leaving the children in her care.

13. On occasions she says the mother would disappear from the home without telling her where she was going or asking that she care for the children in her absence.  Those absences were from one hour to three hours.

14. The deponent encouraged the mother to enrol the children in preschool or day care and arrangements were made for the children to be placed in a day care centre three days per week.

15. The deponent suggests that the mother was erratic in her arrangements with the children.

16. The mother took the children to the day care centre even though it was not on their organised days and was unreliable on a day to day basis in relation to the children’s arrangements and routine.

17. She deposes as to an occasion on which she observed the mother hit the child with a stick.  She deposes that the mother did not frequently change the child J's nappy even though soiled.  She did, however, regularly change K's nappy.

18. On one occasion she said she attended the premises unannounced to collect her pay.  The property was not fenced.  She says she found J walking along the road unaccompanied.

19. All of the evidence in this case, is being determined on an interlocutory basis, is untested.  It may be in due course that a different picture emerges of the history of these children than is so far asserted when that testing is possible.

20. The father has indicated a willingness to provide contact between the children and their mother and it will be an important demonstration of proper parenting that that occurs.  Conversely it will not be a demonstration of proper parenting if it does not.  However, this is a case where both the care and the contact should be subject to supervision.  It is clear that commercial supervision of the mother is needed since there is no evidence that it can otherwise be provided.  It is equally clear that the mother does not have the ability to pay for it and it appears that the father does.  Accordingly it is proposed that an order be made requiring the father to meet the costs of that supervision.

21. The Court takes the view that on balance and subject to the cautions referred to above the children will be adequately protected by the orders from harm and have the opportunity to have a continuation of a meaningful relationship with each of their parents albeit under different conditions.  The orders proposed will allow the children to maintain contact with their mother’s ethnicity and culture which is part of their heritage.  The children have not been interviewed and their wishes have not been ascertained.  However, each of the parents is reported to express a belief that the children are loved by both of them.  Each of them has said that they want the children involved in their lives.  Each of the parents, it is said, has used drugs in the past.  The nature and extent of the use appears an issue.  There appears to be no evidence of current usage.  There is clearly an issue between the parties in relation to the existence of a history of family violence.  The Department has expressed itself as being concerned with the mother’s health and homelessness rather than her parenting capacity.  The orders proposed to be made will afford the children the opportunity of having an ongoing relationship with their extended paternal family.  Tragically the mother’s family were it seems victims of the genocide in Country C.

1. Given, however, particularly the mother’s present inability to house the children and the inability to test the allegations of her ill health, the alternative arrangements for the children being with their father and grandmother or foster carers, and particularly given the approval of the grandmother in part by the Department and her own undertaking given to the Court and the ability of the father and his mother to adequately house the children, it is the view of the Court, at least at the present time, that the children’s best interests would be served by the orders made above.  That decision will clearly be the subject of review on testing of the existing evidence and any further evidence filed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 13 July 2011.

Associate:

Date:  13 July 2011