Fenton & Barrett & Ors
[2009] FamCA 569
•23 June 2009
FAMILY COURT OF AUSTRALIA
| FENTON & BARRETT AND ORS | [2009] FamCA 569 |
| FAMILY LAW – CHILDREN – Best interests of children – Order in favour of the Minister for Community Services – supervision and placement |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Fenton |
| 1ST RESPONDENT: | Ms Barrett |
| 2ND RESPONDENT (DECEASED): | Mr Done |
| 3RD RESPONDENT: | Mrs Fenton |
| INTERVENER: | Director General, Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Coast Law |
| FILE NUMBER: | NCC | 17 | of | 2008 |
| DATE DELIVERED: | 23 June 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 16-20 February 2009, 3-5 and 9-12 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williamson |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Burns |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Kelly |
| COUNSEL FOR THE INTERVENER: | Mr Anderson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sundstrom |
Orders
All prior parenting orders relating to the each of the children S Done born … March 2002 and E Fenton born … June 2004 (collectively ‘the children’) are discharged.
Parental responsibility and Residence
All aspects of parental responsibility in relation to each of the children are allocated to the NSW Minister for Community Services, the Intervener in these proceedings, for a period of two (2) years from the date of these orders.
At the expiration of the period referred to in Order 2 above, all aspects of parental responsibility in relation to each of the children shall be allocated solely to Ms Barrett, the First Respondent, (‘the mother’) and the children shall live with the mother from that time.
Time Spent with the Children
For a period of two (2) years from the date of these orders, the children shall spend time with Mrs Fenton, the Third Respondent, (‘the paternal grandmother’) and Mr Fenton Snr (‘the paternal grandfather’) at the following times, with such times to be supervised by an officer or delegate of the Director General of the Department of Community Services (‘the Director General’) at the absolute discretion of the Director General:
(a)for one (1) period of four (4) to six (6) hours each month at such times and locations as agreed to by the Director General at any time between the hours of 8.00 am and 6.00 pm, and
(b)at any other times as agreed by the Director General and the paternal grandmother.
The children shall spend time and communicate with Mr Fenton, the Applicant (‘the father’):
(a)during the term of his current sentence (including the residential rehabilitation component of that sentence) by telephone on one (1) occasion each month, at such times as agreed to by the Director General subject to the availability of appropriate facilities at the place where the father is serving his sentence or undergoing rehabilitation, with such times to be supervised by an officer or delegate of the Director General at the absolute discretion of the Director General, and
(b)from the date of completion of his current sentence (including the residential rehabilitation component of that sentence) until the end of a period of two (2) years from the date of these orders at such times as the paternal grandmother spends time with the children, with such times to be supervised by an officer or delegate of the Director General at the absolute discretion of the Director General.
The arrangements in Orders 4 and 5 above commence on 26 July 2009.
On the expiry of Order 4 above, the children shall spend time with the paternal grandmother and the paternal grandfather:
(a)at any times as may be agreed between the mother and paternal grandmother, and
(b)in the absence of an agreement, for one (1) period of six (6) hours each month at any time between the hours of 10.00 am and 4.00 pm on the first Saturday or Sunday of the month, with such time to be supervised by a person or persons agreed between the mother and the paternal grandmother or as determined by a Court. Liberty is reserved to apply in this regard on seven (7) days’ notice.
On the expiry of Order 5 above, the children shall spend time with the father at a contact centre, with the costs of such contact to be paid by the father, for one (1) period of up to six (6) hours, subject to the contact centre guidelines, each month at any time between the hours of 10.00 am and 4.00 pm on the third Saturday or Sunday of the month, with such time to be supervised at the contact centre.
Injunctions
The Court orders that the paternal grandmother Mrs Fenton and paternal grandfather Mr Fenton Snr:
(a)immediately notify the Police and the Director General if the father comes within 100 metres of the paternal grandmother and paternal grandfather’s home at any time when the children are present there at times other than those described in order 5(b) above.
(b)immediately notify the Police and the Director General if the father attempts to contact or approach the children in any way at times other than those described in orders 5 and 8 above.
The Court orders that the mother and Mr M will for a period of two (2) years from the date of these Orders:
(a)refrain from the use of illegal drugs
(b)use methadone only as prescribed
(c)not consume alcohol to excess while the children are in their care
(d)refrain from all criminal activity
(e)not smoke inside their residence or inside any motor vehicle in which they are travelling while either of the children are present
(f)ensure the children are transported by an appropriately licensed driver at all times
(g)fully co-operate with the Director General in:
(i)undergoing random (and, at the Director General’s discretion, supervised) urinalysis or other forms of drug testing as directed by the Director General
(ii)engaging in drug and alcohol counselling through McAuley Outreach or any other service nominated by the Director General and will authorise McAuley Outreach or any other service to report to the Director General about their progress or otherwise and provide information to the Director General as requested
(iii)
complying with the Director General’s directions to participate in any other services and attend courses which the Director General determines from time to time to be required by the mother and
Mr M
(h)notify the Director General if the father attempts to contact or approach the children in any way, except in accordance with orders 5(b) and 8 above.
The Court orders that the father will from the date of these orders:
(a)refrain from the use of illegal drugs
(b)not consume alcohol to excess while the Children are in his care
(c)refrain from all criminal activity
(d)not smoke inside the children’s residence or inside any motor vehicle in which they are travelling while either of the children are present
(e)ensure the children are transported by an appropriately licensed driver at all times
(f)fully co-operate with the Director General in:
(i)undergoing random (and, at the Director General’s discretion, supervised) urinalysis as directed by the Director General
(ii)engaging in drug and alcohol counselling or any other service nominated by the Director General and will authorise those services to report to the Director General about his progress or otherwise and provide information to the Director General as requested
(iii)complying with the Director General’s directions to participate in any other services and attend courses which the Director General determines from time to time to be required by him
(g)not come within 100 metres of the paternal grandmother and paternal grandfather’s home at any time when the children are present there at times other than those described in 5(b) and 8 above, and
(h)not attempt to contact or approach the children in any way at times except in accordance with Orders 5 and 8 above.
Neither the mother, nor Mr M, nor the father nor the paternal grandmother nor the paternal grandfather shall denigrate the other or members of the other’s family to the children or in the presence or the hearing of the children or at all and shall use their best endeavours to ensure that no other person denigrates the mother, Mr M, the father, the paternal grandmother and the paternal grandfather or members of the other’s family in the presence or the hearing of the children or at all.
The mother, Mr M, the paternal grandmother and the paternal grandfather will participate in and complete the “Keeping in Contact” programme with the Inter-relate Dispute Resolution Service at the direction of the Independent Children’s Lawyer.
Notations
It is noted that for a period of two (2) years from the date of these Orders, unless the Director General as delegate of the Minister in her absolute discretion determines otherwise, the children shall live with the mother.
It is noted that for a period of two (2) years from the date of these Orders in the event that the mother or Mr M breach the orders made at 10 above or test positive for any non prescribed prohibited substances, the children’s time spent with the mother may be limited to supervised time, at times and places to be determined at the absolute discretion of the Director General until such time as the Director General considers, that:
(a)time spent with the children no longer requires supervision, and/or
(b)that the children would no longer be at risk of harm if they were returned to reside with the mother.
It is noted that it is the intention of the Director General to organise the urinalysis described in paragraphs 10(g)(i) and 11(f)(i) above on an on-going basis for the relevant two (2) year period from the date of these orders.
The Court discharges the Independent Children’s Lawyer upon the Order for parental responsibility being granted to the mother taking effect.
IT IS NOTED that publication of this judgment under the pseudonym Fenton and Barrett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 17 of 2008
| MR FENTON |
Applicant
And
| MS BARRETT |
1st Respondent
And
| MR DONE |
2nd Respondent (deceased)
And
| MRS FENTON |
3rd Respondent
And
| DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES |
Intervener
And
| COAST LAW |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The proceedings before the court are parenting proceedings in relation to two children, S Done, born in March 2002 and E Fenton, born in June 2004.
The applicant Mr Fenton is the biological father of E but not of S whose father died after the proceedings had commenced in November 2008. The Director General of the Department of Community Services was joined as a party to the proceedings prior to that event and the father’s mother was given leave to file an application in the proceedings. An application had been field by the maternal grandmother in which she sought orders for the children to live with her. Although not the biological grandmother of S, in this judgment I will refer to her as the grandmother or paternal grandmother and her husband as the grandfather or paternal grandfather.
The father of E has problems of alcohol abuse and is violent and four of his children of prior relationships have been taken into the care of the Department from the father or the father’s then partner. He is presently in prison on a charge of assault. He was, after the hearing commenced, sentenced to prison for a period of two years with a release from prison in October of this year conditionally upon him undertaking a 12 month residential rehabilitation programme to attempt to deal with his alcohol addiction.
The mother has been taking illicit drugs since she was about 12 but claims that she has been drug free since November 2008.
The mother’s new partner Mr M has had a thirty year drug habit and used a wide variety of drugs over a long period of time. He has an extensive criminal record including convictions for supplying illegal substances, break enter and steal, possession of drugs, assault, supply of drugs and various driving offences. It appears he has reduced his intake of drugs over the course of this litigation and although there were some equivocal test results certainly it appears that since February has tested free of illegal drugs.
Both the mother and Mr M are on methadone maintenance drug programmes.
Mr M and the mother have undergone extensive urine testing and claim that they are drug free and will remain so.
The children have attachment to their parents and grandparents. In the circumstances, the court is asked, in a significantly less than ideal situation, to assess the risk to the children by the continuation of the present arrangements for their care and to map out a path for their future which will promote their interests and maintain safe and secure and loving environments for them.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father’s mother, Mrs Fenton, was born in 1940 and is now aged 69 years.
Mr Fenton Snr, her husband, was born in 1937 and is now aged 71.
The mother’s present partner, Mr M, was born in 1967 and is aged 42 years.
The applicant father, Mr Fenton, the father of E, was born in 1968 and is now aged 41 years.
In 1984 Mr Done, the father of S, was born. He died in November 2008.
In April 1986 Ms Barrett, the mother of the subject children, was born. She is now aged 23 years.
In 2000 when she was 14 years of age, the mother commenced dating
Mr Done.
In March 2002 when the mother was 16 years of age and after two prior pregnancies which miscarried, gave birth to S who is now aged 7 years. This child attends B Primary School, and is in Year 2.
In June 2002 the mother and Mr Done separated.
The father’s and the mother’s relationship commenced in June 2002 when the mother was 16 years of age and the father was 34 years of age.
In May 2004 E was born of that relationship.
In November 2004 orders were made at the Local Court which provided for the children to reside with their mother and those orders were varied in the same court in 2005 to provide that they live with Mrs Fenton and her husband, Mr Fenton Snr, at H.
It appears that these latter orders were made with the consent of the mother.
In that same month the relationship between the father and the mother ceased.
In December 2005 the applicant father commenced proceedings in the Federal Magistrates Court seeking orders that the children live with him.
In January 2006, by consent, interim orders were made that the children live with the applicant father.
In November 2007 the Federal Magistrate made a request of the Department that it intervene in the proceedings.
In December 2007 the Federal Magistrate ordered that the children spend some time with their mother and transferred the proceedings to this Court.
In April 2008 the mother and Mr M, who was her partner, experienced a home invasion by armed men asserting that they were seeking drugs and money.
In May 2008 the Director General says he became aware of the orders of the Federal Magistrate and in June 2008 the Director General was joined as a party to the proceedings.
In July 2008 the father was admitted to the Psychiatric Unit and was found to have amphetamines and marijuana in his system. He was nevertheless discharged from the psychiatric unit. He threatened to kill the mother and Mr M and he was arrested but he was refused admission to the psychiatric unit on the basis that he was “simply an angry little man”.
In that same month an order was made at the Local Court under the apprehended violence provisions of the Crimes Act which prohibited the father from having any contact with the children.
The father initially sought an order for sole parental responsibility for the children and an order that they live with him. He proposed that the children spend time with their mother on a limited basis and in some circumstances under supervision.
The father also sought an order that the children not be brought into contact with the mother’s current partner, Mr M.
The mother sought orders that the children live with her and that the father have equal shared parental responsibility for the long term care, welfare, supervision and development of the child E.
The mother sought an order that she have joint parental responsibility for S with S’s father, Mr Done, but following his death she now seeks an order for sole parental responsibility.
The mother sought orders which would have the effect of providing regular urine testing for both the mother and the father at intervals of at least once per fortnight for at least six months with an exchange between the parties of the results of such testing. She proposed that if a positive test was returned for
the father that his time with the children would be suspended until he had produced three clear further tests under the order.
The mother proposed that times be defined subject to that limitation which, apart from special days, were each alternate weekend from Friday to Sunday and, when the child attends primary school, for him to spend time with her for one half of the school holidays. The like order (save for the urine testing) was sought in relation to time being spent by Mr Dole with the child S. There were other orders sought which would have the effect of ensuring that the parents had access to all school information and for communication between the parties on matters of ill health of the children.
Injunctions to restrain the denigration of a party were sought and a restraint on the father taking alcohol to a level which, if subject to a breath analysis, would provide a result above the proscribed limit. An order restraining him from taking illicit drugs 12 hours prior or during any time he was with the child was also sought.
Alternate orders were sought by the mother in the event that the Court did not grant the orders that she sought and those alternate orders provided for a regime of shared care of the children on a “week about” basis.
In circumstances which arose in the lives of these children, they came to live with father’s mother, E’s grandmother. Having regard to the allegations made in the evidence filed in this case the Director General of the Department of Community Services was, on 28 November 2007, invited to intervene in the proceedings which invitation he accepted.
By Order dated 25 June 2008 the Director General of the Department was joined as a party to the proceedings, and orders were made the effect of which was that the children were to live with the paternal grandmother although without restriction on the father also residing there.
By order dated the 1 July 2008 an order was made permitting the mother of the children permission to spend time with them on the basis that the period was limited to one hour in each week and that those contacts be supervised by the Department of Community Services.
On 10 July 2008 the Director General sought an order that he have parental responsibility for the two children and an order that the father be restrained from coming into contact with the children.
The father made threats to kill the mother and Mr M. He seeks to minimise these threats by saying that they had been made to the police and not to the persons to whom they were directed. It did not seem to occur to him that they were serious no matter to whom they were made.
By Order dated the 11 July 2008 parental responsibility for the children was given to the Minister of the Department of Community Services.
The father was restrained from having contact with the children save for contact by supervised telephone call through the Department.
The order provided that if, in the exercise of its parental responsibility, the Minister determined that the children or either of them were at immediate risk of harm, the Minister was entitled to forthwith take the children into temporary State care.
The orders further required that in the event that the Minister permitted the children to reside with the father’s mother it had to be on condition that they procured from her a written undertaking that she would fully co-operate with the Director General of the Department in relation to the child’s care and supervision, that she would notify him and the police if the father came within one hundred metres of her home, and that she would likewise immediately notify the Director General and police if the father attempted to approach or contacted the children. Orders were made restraining the father from approaching the children’s school.
As a result of orders then made by courts, the father has not spent any face-to-face time with the children since then, and has only had supervised telephone contact with the children save (on his case) two accidental meetings with the children in the street.
On 22 July 2008 an order was made permitting the mother to spend time with the children at such times and such locations as nominated by the Director General of the Department of Community Services and at such frequency and for such duration as nominated by him, and such time was to be supervised by an officer or delegate of the Department or unsupervised at the discretion of the Department. The time was to be spent under whatever restrictions were imposed by the Department of Community Services.
In addition, orders were made requiring the mother and her de facto partner, Mr M, to undergo random supervised urine analysis as directed by the Department. In the event that the mother tested positive for a prohibited substance her contact with the children could be limited to supervised contact at times and places to be determined at the discretion of the Director General of the Department of Community Services.
In August 2008 the amount of time that the mother was to spend with the children was increased and was not required to be supervised.
In December 2008 the applicant father was arrested on a charge of assault relating to an alleged attempt to strangle a man. The applicant father pleaded guilty to the charges and was in custody awaiting sentence when the hearing of this matter commenced. He was subsequently sentenced to 2 years imprisonment with a conditional release in October this year, conditional on him spending 12 months in a live in rehabilitation centre.
In December 2008 the Department received an allegation that the father’s mother had permitted the children to have contact with him, notwithstanding the prohibitions in the Apprehended Violence Order and the Orders of her Honour Justice Ryan made in this Court on 11 July 2008 and the subsequent undertaking given by the paternal grandmother in that regard.
On 24 December 2008 the children spent unsupervised time with the mother and her partner and no child protection concerns were reported.
In January 2009 the mother spent time with the children overnight twice per week from 9.00 am Saturday to 9.00 am the following Monday. That period of time was unsupervised and continued until the date of the commencement of the hearing. It has since been extended, and for a short time, contracted, and at the end of the hearing the mother was spending four out of seven nights per week with the children and the children were otherwise living with the grandparents.
The hearing was fixed for five days in February 2009 and was at the end of that period adjourned part heard to June 2009.
On the last day of the hearing the father announced that he no longer sought the orders originally sought by him but supported the orders sought by his mother.
The grandmother, on the last day of the hearing, eventually sought orders as proposed by the Department of Community Services with an extended provision for the children to spend time with her and the imposition of a provision that the mother’s partner not come into contact with the children. The grandmother sought an additional order that where a drug test proved positive for methadone that further testing be done to determine the quantity of methadone taken.
On the hearing the mother eventually jointly sought the orders sought by the Department of Community Services.
On the hearing the Independent Children’s Lawyer jointly sought the orders sought by the Department of Community Services.
The Issues
Who should have parental responsibility for these children in both the short and long term so that the best interest of these children may be safeguarded?
What time if any should the children spend with their father, their mother, the father’s mother; and, if so, on what conditions and for what periods of time so that the best interests of these children may be safeguarded?
Are any other orders, and if so what, necessary to protect these children and serve their best interests?
At the end of the trial which occupied 12 days, the issues were narrowed. The Department of Community Services submitted a draft proposed minute of order in the following terms:
1.That all prior parenting orders relating to the each of the children [S DONE] (born […] March 2002) and [E FENTON] (born […] June 2004) (collectively ‘the Children’) are discharged.
Parental responsibility and Residence
2.That all aspects of parental responsibility in relation to each of the Children are allocated to the NSW Minister for Community Services, the Intervenor in these proceedings, for a period of two (2) years from the date of these orders.
3.That at the expiration of the period referred to in order 2 above, all aspects of parental responsibility in relation to each of the Children shall be allocated solely to [MS BARRETT], the First Respondent, (‘the Mother’) and the Children shall live with the Mother from that time.
Time Spent with the Children
4.That, for a period of two (2) years from the date of these orders, the Children shall spend time with [MRS FENTON], the Third Respondent, (‘the Paternal Grandmother’) and [MR FENTON SNR] (‘the Paternal Grandfather’) at the following times, with such times to be supervised by an officer or delegate of the Director General at the absolute discretion of the Director General:
(a)for one (1) period of four (4) to six (6) hours each month at such times and locations as agreed to by the Director General at any time between the hours of 8 am and 6 pm, and
(b)at any other times as agreed by the Director General and the Paternal Grandmother.
5.That the Children shall spend time and communicate with [MR FENTON], the Applicant (‘the Father’):
(a)during the term of his current sentence (including the residential rehabilitation component of that sentence) by telephone on one (1) occasion each month, at such times as agreed to by the Director General subject to the availability of appropriate facilities at the place where the Father is serving his sentence or undergoing rehabilitation, with such times to be supervised by an officer or delegate of the Director General at the absolute discretion of the Director General, and
(b)from the date of completion of his current sentence (including the residential rehabilitation component of that sentence) until the end of a period of two (2) years from the date of these orders at such times as the Paternal Grandmother spends time with the Children, with such times to be supervised by an officer or delegate of the Director General at the absolute discretion of the Director General.
6.That the arrangements in orders 4 and 5 above commence on
26 July 2009.7.On the expiry of order 4 above, the Children shall spend time with the Paternal Grandmother and the Paternal Grandfather:
(a)at any times as may be agreed between the Mother and Paternal Grandmother, and
(b)in the absence of an agreement, for one (1) period of six (6) hours each month at any time between the hours of 10 am and 4 pm on the first Saturday or Sunday of the month, with such time to be supervised.
8.On the expiry of order 5 above, the Children shall spend time with the Father at a contact centre, with the costs of such contact to be paid by the Father, for one (1) period of up to six (6) hours, subject to the contact centre guidelines, each month at any time between the hours of 10 am and 4 pm on the third Saturday or Sunday of the month, with such time to be supervised at the contact centre.
Undertakings and Injunctions
9.The Court accepts the following undertakings from the Paternal Grandmother and Paternal Grandfather:
(a)The Paternal Grandmother and Paternal Grandfather will immediately notify the Police and the Director General if the Father comes within 100 metres of the Paternal Grandmother and Paternal Grandfather’s home at any time when the Children are present there at times other than those described in order 5(b) above.
(b)The Paternal Grandmother and Paternal Grandfather will immediately notify the Police and the Director General if the Father attempts to contact or approach the Children in any way at times other than those described in orders 5 and 8 above.
10.The Court accepts the following undertakings from the Mother and [MR M] that they will for a period of two (2) years from the date of these orders:
(a)refrain from the use of illegal drugs,
(b)use methadone only as prescribed,
(c)not consume alcohol to excess while the Children are in their care,
(d)refrain from all criminal activity,
(e)not smoke inside their residence or inside any motor vehicle in which they are travelling while either of the Children are present,
(f)ensure the Children are transported by an appropriately licensed driver at all times,
(g)fully co-operate with the Director General in:
(i)undergoing random (and, at the Director General’s discretion, supervised) urinalysis as directed by the Director General,
(ii)engaging in drug and alcohol counselling through McAuley Outreach or any other service nominated by the Director General and will authorise McAuley Outreach or any other service to report to the Director General about their progress or otherwise and provide information to the Director General as requested,
(iii)complying with the Director General’s directions to participate in any other services and attend courses which the Director General determines from time to time to be required by the Mother and Mr [M],
(h)notify the Director General if the Father attempts to contact or approach the Children in any way, except in accordance with orders 5(b) and 8 above.
11.The Court accepts the following undertakings from the Father that he will for a period of two (2) years from the date of these orders:
(a)refrain from the use of illegal drugs,
(b)not consume alcohol to excess while the Children are in his care,
(c)refrain from all criminal activity,
(d)not smoke inside their residence or inside any motor vehicle in which they are travelling while either of the Children are present,
(e)ensure the Children are transported by an appropriately licensed driver at all times,
(f)fully co-operate with the Director General in:
(i)undergoing random (and, at the Director General’s discretion, supervised) urinalysis as directed by the Director General,
(ii)engaging in drug and alcohol counselling or any other service nominated by the Director General and will authorise those services to report to the Director General about his progress or otherwise and provide information to the Director General as requested,
(iii)complying with the Director General’s directions to participate in any other services and attend courses which the Director General determines from time to time to be required by him.
(g)not come within 100 metres of the Paternal Grandmother and Paternal Grandfather’s home at any time when the Children are present there at times other than those described in 5(b) and 8 above, and
(h)not attempt to contact or approach the Children in any way at times except in accordance with orders 5 and 8 above.
12.That neither the Mother, nor Mr [M], nor the Father nor the Paternal Grandmother nor the Paternal Grandfather shall denigrate the other or members of the other’s family to the Children or in the presence or the hearing of the Children or at all and shall use their best endeavours to ensure that no other person denigrates the Mother, Mr [M], the Father, the Paternal Grandmother and the Paternal Grandfather or members of the other’s family in the presence or the hearing of the Children or at all.
13.That pursuant to section 68B of the Family Law Act 1975 the Paternal Grandmother and Paternal Grandfather are each enjoined and hereby restrained from permitting or allowing the Children to be in the presence of or communicate with the Father except in accordance with orders 5 and 8 above.
14.That pursuant to section 68B of the Family Law Act 1975 the Mother and Mr [M] are each enjoined and hereby restrained from permitting or allowing the Children to be in the presence of or communicate with the Father except in accordance with orders 5 and 8 above.
15.That the Mother, Mr [M], the Paternal Grandmother and the Paternal Grandfather will participate in and complete the “Keeping in Contact” programme with the Inter-relate Dispute Resolution Service at the direction of the Independent Children’s Lawyer.
Notations
16.It is noted that for a period of two (2) years from the date of these orders, unless the Director General as delegate of the Minister in her absolute discretion determines otherwise, the Children shall live with the Mother.
17.It is noted that for a period of two (2) years from the date of these orders in the event that the Mother or Mr [M] breach the undertakings above or test positive for any prohibited substances, the Children’s time spent with the Mother may be limited to supervised time, at times and places to be determined at the absolute discretion of the Director General until such time as the Director General considers, that:
(a)time spent with the children no longer requires supervision, and/or
(b)that the Children would no longer be at risk of harm if they returned to reside with the Mother.
18.It is the intention of the Director General to organise the urinalysis described in paragraphs 10(g)(i) and 11(f)(i) above on an on-going basis for the relevant two (2) year period from the date of these orders.
The mother and the Independent Children’s Lawyer indicated consent to those proposed orders.
The father conceded that since he was serving a two year gaol sentence he could not press for the orders he had sought and supported the position taken by his mother.
The paternal grandmother said that she had changed her view about the children living with their mother and she through her counsel conceded that would be in their best interests, save that she wanted an order excluding
Mr M from the children’s lives and, as a result in practical terms, presumably the mother’s life. She also sought orders for more time with the children than was proposed under the departmental Draft Minute of order set out above and said that the amount of time should be one weekend per month from Friday to Monday so that the children could be picked up from school and returned to school so that she would not have to have contact with the mother.
The Evidence
Evidence in chief was substantially provided by affidavit.
In addition, expert reports from a Paediatrician, a Dr R, on the health of the children were received into evidence. He also was cross examined on his report.
The father was the subject of cross examination. The mother was also cross examined.
A case worker from the Department, Ms H, and also another caseworker, Ms I, were also cross examined on their affidavits filed in the proceedings on behalf of the Department.
Ms C, a Family Consultant at the Family Court at Newcastle, prepared two written reports, one in June 2008 and an updating report in January 2009. In the preparation of those reports, on the first occasion she interviewed the father and the mother and the grandparents and the children and observed the children with the relevant adults. On the second occasion, save that she did not interview the father who was imprisoned, she again interviewed the children and the mother and her partner, Mr M, and the grandparents and the children, and observed the children with them.
She was called by the Independent Children’s Lawyer and cross examined at length. Her recommendation was that if parental responsibility remained with the Department the children should be restored to the mother’s care, notwithstanding the questions surrounding the future of the children in that care arising from the mother’s history of living in abusive relationships and being formerly drug addicted.
It was her view that the grandparents posed a problem for the children in their lack of capacity to ensure the safety of the children arising in part out of their willingness to be other than accepting of versions of events given by their son, their continuing antipathy to the mother, and the allegations of assault at the hands of the grandfather.
It was her view that the capacity for the mother to stay on the path of abstinence from illegal drug taking she had adopted was a concern, but said that the period during which she had been drug free indicated that she was sufficiently advanced on that path to be a carer subject to continuing supervision for a time by the Department.
She took the view that whilst the father was in prison, the children could have an ongoing relationship and association with the grandparents and that, from her point of view, that could involve more time than was ultimately proposed by the Department. She had greater concerns given the accepting nature of the grandmother to any statement made by the father that that time continue in that form when the father was released from custody.
Credit
The father
The applicant father gave evidence both by affidavit and orally. He was interviewed by the Family Consultant. He was cross examined extensively. His memory was selective which he blamed on being involved in an accident when a motor vehicle ran over his head. That may be part of the reason but even if it is, it does not render his evidence reliable.
On occasions he was not responsive to questions.
He has a continuing unabated rage concerning the mother’s partner which appears to drive him. He lacked insight into his own behaviour and had difficulty at times in making some admissions which he thought might be against his interest.
He was nevertheless forthright as to his alcohol abuse which he put at up to six bottles of butterscotch schnapps per day.
He in evidence frequently sought to defend the indefensible conduct which he had engaged in. He believed that his conduct with his children of a prior relationship was justified, in returning them to care when they spoke in unseemly terms of his mother.
His attack on the mother’s former drug habits set as a matter of little or no importance his own problems with alcohol.
His demeanour was aggressive and on occasions dismissive. He referred to the mother and her partner as “putrid human beings” and “putrid junkies”.
On occasions his answers were not consistent. He for example told the Family Consultant that he was comatose when police asserted that he was faking symptoms. He nevertheless conceded that he had “clipped” the police which was probably the reason that they said that he was faking symptoms. When asked to explain how someone who was comatose could “clip a policeman” he was unable to offer an explanation.
He first denied to the Family Consultant that there had ever been any allegations that he had sexually assaulted his niece. Under further questioning he admitted that he knew of the allegations.
His discussions with the Family Consultant in June 2008 revealed a man who was prepared, it seems, to not only lie, but do so quite unsuccessfully. His capacity to blame others was great.
He missed his first appointment with the Family Consultant. He rang and said that he had forgotten it even though his solicitor had confirmed it.
He then suggested that he had not been advised of it but, faced with the confirmation from his solicitor, he said that he was in charge of sick children one of whom had “super staph which is the most contagious staph you can get”.
When then asked by the consultant where the child was at that time he replied “At school”. Notwithstanding his protestations of the state of the children’s health he said that he, and the children, would be available for interview the next day.
He was asked to present a medical certificate for the children and agreed to do so and did not when he attended the following day.
He stated with confidence to the Family Consultant that he had only taken morphine and amphetamine and had used marijuana.
Under further questioning he conceded that he had used heroin but it had made him sick and that he had not persisted in its use.
This appeared to the Family Consultant to be quite contradictory to information given by the father to the preparer of a Placement Assessment, Ms G, on 18 September 1997 when he was reported as saying that he had used heroin daily since the age of 17 or 18. The father denied making that prior inconsistent statement.
He had attempted to thwart the orders of the Court by procuring indirect contact with his children.
I found his evidence unreliable and I think in part driven by barely controlled anger and hatred of the mother and to a greater extent Mr M, and certainly where there is a conflict between his evidence and that of the mother and generally I prefer the evidence of the mother.
The mother
The mother gave her evidence in a straight forward manner. It was responsive and frank. She made admissions against her interest including frank admissions that she had lied to the Department’s Case Worker. Her manner was frank and open. She revealed a history of drug abuse including the use of marijuana, amphetamine and methamphetamine and a psychotic episode which was the result of such abuse. She appeared to have insight into her problems in the past and a determination born out by the evidence to bring her life into gear. She had applied herself with diligence to complying with the orders of the Court. She had been treated for her poly drug taking with methadone. She had mapped out a programme of progress with the Personal Support Case worker assigned to her and had complied with all the requirements imposed on her by the Methadone Clinic she attended. This included casework meetings and scheduled Doctors appointments. She has also attended counselling sessions regularly. I accept her evidence as truthful.
Mr M
Mr M is the mother’s partner. He has had a history of criminal convictions and drug abuse. The drugs he has taken include heroin (at the age of 14). His history of drug abuse and criminality spans he said a period of thirty years.
He reported in June 2008 that the last eighteen months has been the longest period that he has spent outside custodial institutions since he was 14 years of age.
His criminal record includes convictions for assault including common assault, assault occasioning actual bodily harm, assault police, malicious injury and contravention of Apprehended Violence Orders. He has had convictions for theft. He has convictions for possession of drugs and the supply of drugs. The record is lengthy and entirely unenviable. He asserted that much of his tangles with the law have been a result of his drug taking. His description of himself was that he had been “stoned for the last thirty years”.
It was alleged by the father that Mr M “had an unhealthy interest in children”. Mr M conceded that the police had raided his premises looking for child pornography but that none had been found. He observed that he did not possess a computer and that if he did he would not know how to operate it.
His oral evidence was given in a forthright way.
He confronted and conceded his past but not with pride. He acknowledged his criminal record stretching back some thirty years. He accepted that there was a long list of drugs that he had taken. He blamed no one else and accepted full and personal responsibility for his “stupidity”.
Although he had formerly treated marijuana as not posing a problem, he now acknowledged that marijuana was a dangerous drug. He said he had been clean since about November last year. Evidence received otherwise of tests suggested that he might have had a relapse between then and February, but if so on the scale of things a minor one. He accepted that there was always a danger of relapse but he said that he was determined to do all that he could to prevent it.
He was asked what he might do in certain situations when he was under pressure. He is currently receiving support services in the form of counselling and said that if he felt he was going to use again he would seek their assistance.
He frankly said that he had at times thought about taking marijuana again but had disciplined himself to think of something else when those occasions arose.
He acknowledged that his abuse of drugs had impaired his lungs and his health generally. He said that his short term memory had suffered and that his eyesight, hearing and taste had been impaired whilst he was taking drugs.
He spoke with enthusiasm bordering on joy of the change that had come into his life once he “became clean”. He spoke of his new capacity to taste, and his capacity to hear. He acknowledged that he probably would suffer from long term effects of the drugs he had taken.
He spoke with affection of the girls and the mother and with horror at the thought of losing them which he knew would be the result of a relapse. The evidence of Ms C was of observing an affectionate relationship between Mr M and the children.
He wanted to continue with the urinalysis supervised by the Department and had come to the conclusion that it was an additional support for his resolve to be drug free.
He is continuing counselling with a drug and alcohol counsellor. He and the mother had moved from their former home to non government housing because of the incidents which had occurred in the home he had previously occupied with the mother and spoken of later in this judgment.
He spoke of the co-operative and supportive nature of the relationship between himself and the children’s mother and his aim at a later time to gain employment. He said that the fact that both he and the mother were presently pensioners did not mean that they could not look after the children. Indeed he said that he was going to prepare a budget with the counsellor and observed that other people can manage and that they would do so also.
He was able to say, notwithstanding the father’s attitude to him, that the father had contributed to the lives of his child and step child. His evidence was balanced, responsible and frank. He made frank admissions against his own interest.
I accept him as a witness of truth.
Furthermore, I accept his resolve to “stay clean” as genuine and his understanding of the need for discipline to achieve that as realistic. He is aware of the possibility of relapse and I concluded that he treated that as serious but with a determination that it would not happen.
In all, I think that the circumstances and outlook of this man and the orientation of his life have changed. It does not have the suddenness and certainty of a Damascus road conversion but is rather the product of self-discipline in major part and the acceptance, as necessary and helpful, the discipline imposed by the Department. He appears to be enthusiastic about the successful outcome of his efforts.
Mrs Fenton (The Grandmother)
The father’s mother, Mrs Fenton, gave evidence but it seemed to me that whilst she seemed to tell the truth as she believed it there were a number of occasions on which it seemed that her version of events was based on hearsay information received from the father.
On other occasions it seemed that she had in the past at least adopted the views of the mother and Mr M that were those of the father.
She gave no source of information that friends of Mr M were “The second biggest drug dealers in [the area]”. It seemed to me inherently unlikely that this lady’s own knowledge of who was dealing drugs and their relative pecking order were not personal yet they were adopted with certainty.
It should be noted to her credit that she had revised her opinion of the mother and came forward with the proposition that the children should be in her care (without the presence of Mr M) but only after she had undertaken a twelve month period of rehabilitation. She conceded that she was not however an expert in these matters and in any event withdrew the rehabilitation requirement later in the hearing.
It should also be noted to her credit that she provided a place of residence for these children at difficult times in their lives.
Mr Fenton Snr (The Grandfather)
The grandfather was called also to give evidence and his view as to what should happen mirrored in large part the view of his wife as might be expected. He said that the children should not have any contact with Mr M because he “did not like his attitude”.
He conceded that he had pointed a loaded rifle at the father’s brother in a dispute which occurred in his home and reported that the firearm discharged when knocked by his son. He subsequently faced firearm charges. He denied allegations which had been made that he had sexually assaulted anyone.
He denied he had assaulted S with a belt.
In discussing what he might do with his son in certain circumstances he said he would give his son a “smack in the mouth”. This does not indicate a man of calm and peaceful habit.
Relevant Law
Legal principles
The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… 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.”
Subsection (4) provides as follows:
“… 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.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
In this case there are, on the evidence, imponderables in relation to the future behaviour of the mother and the father of E. It is certainly hoped by me that each of these parents of this child will be able to re-orient their lives and seek and procure such assistance as would enable them to remain
illegal-drug free and, in the case of the father, remain non abusive of alcohol. In addition, it would be my hope that the mother would, for the first long period in her life, be able to live in an environment where there is no violence and no abuse. It seems to me that the father likewise needs to shun violence which has, in his case, been fired in part by the abuse of alcohol and drugs. The father was ready to blame almost anyone but himself for the loss of his four other children to State care. It seems to me that even though it might be thought that the responsibility for those events might be shared, it could not be said that he acknowledged any share of it. For a relationship between a child and the child’s parents to be meaningful it has to have that element of nurture, support and a willingness to contribute in a positive way, to support the attainment by the child of his or her maximum potential. At the present time I do not see it possible to establish that sort of relationship between the children and the father.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There was a good part of the hearing which addressed the father’s concerning history in relation to the children of his former relationships, his involvement in their lives and their misfortunes. I will not in this judgment deal with those issues since the father finally did not press for any of his care orders and agreed that the interests of the children would be served by them being in the care of their mother albeit that he supported the order seeking to restrain them from being brought into the presence of Mr M. It is however the case that the facts and the allegations are concerning and would need to be again examined should there be any application by the father in the future to seek unsupervised face-to-face contact with these children.
It was argued by the paternal grandmother that the children in the care of the mother with Mr M present would be likely to expose the children to neglect or violence.
In making this submission the grandmother relied on the significant and serious criminal record of Mr M and his admission in the witness box of many occasions of illegal activity for which he had not been charged. In particular reference was made to convictions of Mr M for violence. His last conviction for an offence of this nature was in 2007 when he was the subject of an Apprehended Violence Order protecting the father and grandparents which order is current until July 2009. There is no evidence of current family violence.
It was pointed out by the grandmother and agreed to by the mother that she (the mother) had always lived in violent and abusive relationships including with the father, the late Mr Done and a Mr D. It was suggested that the mother, because of her history, was likely to again be in such a relationship.
The mother for her part said that her current relationship was indeed the first such in which she had not been subject to abuse. There have been no proceedings or suggestions in the evidence of any family violence in the relationship.
It was suggested by the paternal grandmother that the age difference between the parties and the fact that the mother had given the management of the household finances to Mr M because she was “hopeless with money” was indicative of a power imbalance which was likely to lead to her being overborne. There is in my view no substance to the conclusion made by the submission. Even more, there is nothing which can be found in these facts which would lead one to the conclusion that family violence was inevitable or even likely.
It was submitted that even if the violence did not occur within the family the children were nevertheless likely to be subject to externally originating violence.
This submission had its origins particularly in the home invasion suffered by Mr M and the mother in 2008 and an incident in 2009 when the home of Mr M was broken into in his absence in Sydney.
It was sought to be demonstrated by the grandmother that there was also another home invasion in April 2009 but it was denied by the mother and
Mr M and there was no evidence which could satisfy me that such an event had occurred.
The home invasion which did occur occurred at the home formally occupied by the mother and Mr M. The area in which they lived apparently had a reputation for being a drug centre. The invasion was by two men who had what appeared to be a knife and a shortened firearm. They sought drugs and money and made threats. In the opinion of Mr M they were probably “speed freaks”.
It was put to him that the invasion was because he had previously or did then deal in illicit drugs from this home. The allegation was denied. He conceded that the home had been owned by a drug dealer before he and the mother occupied it but said that when he was dealing drugs it was never from his own home.
There has been no repeat of such an event since it occurred in 2008 however the home has been the subject of a breaking and entering in the absence of the parties. This of course could be the fate of any home occupier particularly in an area where it seems drug users resided or to which they came.
The event was concerning and the Department for this and a number of other reasons suggested strongly that the parties move to another address and they have done so to an address well away from the area.
It is suggested by the paternal grandmother that in the future, given that
Mr M has had a drug habit and has in the past supplied drugs to the mother, it was more likely that in his presence the parties would relapse into their former drug-taking habits. In those circumstances she said that the mother might again neglect her children by reason of her drug taking.
There is no doubt that for these two people, as for any drug or alcohol addicted person, a drug-free future is a prospect only achieved with discipline and determination.
The evidence of Mr M is that he acknowledged that there is always with an addiction the danger of relapse and concedes that for him that possibility exists.
He also said with some determination that he will continue his efforts to stay in the clean state he has achieved.
His evidence includes the statement, “I think I am over it”. He said “reality is a lot better and brighter than I expected. … I am considering undertaking an educational course”.
It is worthy of comment that both Mr M and the mother have given evidence that it is the way that they feel without the intervention of drugs which gives their “clean” state appeal. Mr M says that he is now able to think, to hear and to taste properly; something he says he has not been able to do for thirty years. He very much sees what he is doing as something good for him and not just something which is necessary for the purpose of these proceedings. The mother expressed the like sentiments. They have been, as I have said, supportive of each other in their resolve to achieve a common goal. Yet there is no sense of unreality or lack of insight in their determination to remain clean and understanding of the effort and discipline that that process would involve. Mr M and the mother have, as a result of significant support received from others and their own capacities for discipline, been able to make progress. They are in a sense still a work in progress. They seek the continued discipline of a regime of urinalysis to assist them in their pursuit of continued abstinence. They have agreed to undertake such counselling and courses as might be required. They asserted that they will continue to seek support from their counsellors and the Department in the tasks which lie ahead for them. I accept that they are determined in their pursuit but not unrealistic about the difficulties and dangers which potentially lie head for them. The Department will continue its supervising and supporting role for them.
The mother was asked what she would do if Mr M started to use drugs again. She said that him using drugs would pose problems for her and in that event she would terminate the relationship and require him to leave the household or leave it herself taking the children. I accept that this statement is a strong indication of her determination made in the circumstance where she is, on her evidence, living in the first non-abusive and the first supportive relationship of her life.
Yet even so the relationship is mutually supportive and to the extent that it remains positive as it presently appears to be and assists the mother in remaining drug free and maintains a secure non-abusive environment it is of benefit to the mother and more particularly the children.
The relationship of the children to their parents and their extended family to be meaningful to the children and positive for them requires those whom the child love are not denigrated by others whom she also loves. If a child is forced into a relationship of this sort without some recognition of the appropriateness of her feelings for her other parent or significant others in her life, including extended families, it will be a relationship which is devoid of positive meaning and be one in which her emotions and feelings are not validated. This can cause harm to the child of a psychological nature.
There is clear evidence in this case of that denigration of those who have close relationships with the child is endemic and the suggestion for example of those involved “that we do not comment on the mother in the presence of the children” did not to my mind guarantee that the children would be unaware of the state of the relationships. This view is supported by the Family Consultant’s evidence who described the attitude of disapproval of the paternal grandparents as one which is adopted for them and by their son as a core value.
That attitude is not entirely a one-way street and Mr M has used unseemly words and demonstrated a less than friendly attitude to the grandparents.
The Family Consultant was sceptical of any improvement in the relationship notwithstanding the proposal of the mother to engage with the grandmother in counselling and the grandmother’s albeit belated and reluctant proposal to do the same. As was pointed out, the application by the grandmother for orders which would have the practical effect of ending the relationship between
Mr M and the mother added credence of the intractability of the grandparents’ attitude.
If I had to determine whether there was neglect in the care of the children whilst in the paternal grandmother’s care there are a number of matters in evidence which suggest that this might be so, but since the grandmother has abandoned her application for care and reduced it to an application that she spend time with the children once per month I only need refer to some of them.
The paternal grandmother initially gave evidence that if there was a report by one of the children of a sexual assault by any of the persons in her household on the children the first thing she would do would be to go to the person and ask him about it and make an assessment in her mind of what was needed to be done. She said that unless she was satisfied herself that the explanation or denial was unreasonable or false that she would not go to the police.
She later amended this evidence to say that she would report it but the Court takes the view that this was probably evidence of convenience recognising the intrinsic forensic disadvantage of her previously stated position.
The attitude was an important one since the questions were asked of her in the light of allegations (albeit unproven) that had been made against the father and grandfather of inappropriate behaviour. The grandmother’s total lack of concern for the father’s care of the children belied the father’s history of care of his other children and the grandparents appeared willing to adopt the father’s view that the removal of those children was entirely the fault of others is concerning. Indeed they supported a view that the Department of Community Services was “out to get” the father. There is no evidence from which such a conclusion can be drawn. Neither of the grandparents felt that the father’s history of drug use was of concern. Neither of them saw him as having a drug problem and accepted as accurate his accounts of his drug taking. In addition, the child S suffered from obesity which was put down by the grandmother to an inherited trait whilst she is in the grandmother’s care but said to be environmental in the mother’s care.
Additional considerations
(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
The views expressed by these children to the parents and the grandmother have varied and probably reflect in the children a desire to say what those who are listening want to hear. That this was conceded by all seems to me to indicate that there is, in the perception of these children, a conflict between those who have power in their lives and to whom they are attached which is reflected in a striving for approval from each of them.
To the Family Consultant, E clearly expressed the view that she wished to live with her mother however she was unable to provide any reason for that wish. It was S’s view that she would like to live with her mother or the father. She said that she would be sad if she were to continue to live with the grandparents as it would mean that she did not spend as much time with the mother. She enjoyed it seemed spending time with her biological paternal aunts and cousins.
I note the views of the children and will give them some regard however I agree with the Family Consultant that this is a case in which the potential child protection issues mean that significantly less weight should be given to them.
(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)
The upshot of the Family Consultant’s evidence was that the children related well to all the significant adults in the case.
In her second report, the Family Consultant reports on observations of the children with Mr M and the mother. She observed a warm and affectionate relationship between the children and each of them.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The father’s position as demonstrated in his responses to the Family Consultant and in his evidence do not give the Court much confidence in his ability to facilitate and encourage a close and continuing relationship between these children and the other parent. He said that he would only facilitate contact between the children and the mother “when he can cope with them” (the mother and Mr M) and referring to them as “putrid junkies” and saying “I don’t want my kids to grow up putrid human beings like them.” His hatred of Mr M was palpable and his contempt for the children’s mother was not far behind in intensity.
The mother was prepared to undergo counselling if it would improve her relationship with the paternal grandmother. She also agreed that, subject to the father being discharged from gaol and successfully treated, the children should have a relationship with him.
The paternal grandmother’s position was that she did not seek counselling and only it seemed agreed to it for forensic purposes. I nevertheless propose to order it. The paternal grandfather could see no purpose in it. The grandmother did however say that she had changed her mind about the mother as previously indicated. Those statements were tinged with scepticism and disbelief at the prospect of the mother achieving and maintaining a drug-free state. Later she said that she supported the children living with the mother now providing
Mr M was not present.
As a fallback position, the grandmother conceded that the children could perhaps be in his company if he was physically supervised by the Department; a course which she conceded was not practical.
Mr M, although clearly having his problems with the father, did at least acknowledge that it would be good if the children could have a relationship with him when he was reformed from his violence and abuse of alcohol.
(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
It is agreed by all parties that the children should have an ongoing relationship and some contact with the paternal grandmother. The children have affection for the father and it is in their interests that some contact, if safe, be maintained with him.
(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
Given what has thus far occurred in relation to the children spending time with the mother and the paternal grandparents, I find that there are no practical difficulties or expense in arranging time for the children to spend with each of them.
As to the father, the question of what, if any, face-to-face time he has with the children will be put on hold for the time being in any event since he is imprisoned until October and then released so that he can undergo rehabilitation in a live-in situation for 12 months.
Should that process prove successful and the father undergo an anger management course and in fact be rehabilitated and capable of accepting the parenting of the mother with all the associations it brings and be able communicate with her politely, it seems to me that some contact perhaps conditional and supervised between the children and their father could be undertaken.
(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
The evidence of the mother is that she has limited schooling but at the present stage of development of the children is nevertheless able to assist them. The paternal grandmother has paid for S to attend a Catholic private school and there is no evidence that she is not prepared to continue to do so. It would be in my view, desirable if possible, that at the present time the child’s schooling not be disrupted. I recognise however that that payment imposes a financial burden on the paternal grandparents which might not be able to continue to be borne. The mother appears to now be able to support the children emotionally and the report of the Family Consultant indicates an appropriate relationship between the children and their mother and her partner.
The mother has been able to provide for the physical needs of the children and has indicated her desire to undertake a nutrition course to assist her in dealing with S’s overweight problem.
The Department has been monitoring the parenting of the mother and apart from a short period following a break into the home of reducing contact, it has now significantly increased it as set out. The Department has required a removal of the family from the house which they occupied to a new location which has been agreed to and successfully and expeditiously completed by the mother.
(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
The children in this matter are very young. They are aged 7½ and 5 years respectively. They are both female. They have enjoyed it seems living on the grandparents farm with its access to animals but they have it seems also enjoyed being with their mother. There are no particular cultural or traditional elements which need to be considered by me in this case.
(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
This is not an issue.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There has been some neglect of the children both in the care of the grandmother and the mother and father, some of which has been referred to.
The father has not promptly attended to the medical needs of the children and the child S has had longstanding problems with enuresis both nocturnal and otherwise.
The mother in her former addiction and association with persons of an abusive nature did not demonstrate an attitude to the responsibilities of parenthood which was acceptable.
In her current state she is better demonstrating a right attitude although her irresponsibility in the matter of driving without a licence was a clear indication that she still has a way to go before realising that such conduct and the attitude giving rise to it is not a good exemplar for her children. Her regret was I think genuinely expressed and she has come to a realisation of the need to be a complying member of society.
(j)any family violence involving the child or a member of the child’s family
The father has been convicted of offences of a violent nature.
The father in his interview with the Family Consultant conceded that he has been violent.
The father has taken the view that his acts of violence and anger were of no impact on the children since they had not occurred in their presence.
The paternal grandfather has demonstrated violence in pointing a loaded rifle at his other son during an argument which on his version discharged whilst the weapon was knocked away by his son.
There are allegations that the paternal grandfather was violent to S by strapping her with a belt which caused bruising to her abdomen. The incident was reported by S and somewhat verified by E. Investigations by the Department lead the local branch of the Department to conclude the incident had occurred as described but the Sydney Head Office declined to pursue the matter and the allegation was said to be not proven. I do not think that in the circumstances this incident at this stage can be advanced beyond the realms of allegation, and denial.
The paternal grandfather has a drinking habit of up to six tins of beer a day which his wife says is supplemented by beer taken at a local hotel. The grandfather denies the extent of his drinking but agreed that he would drink up to six tins per day.
Mr M has also had convictions for violence but none in recent times.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
An apprehended violence order exists against the father which prohibits him from coming into contact with the mother, Mr M and the children. The order is a final order.
Mr M has been the subject of an order protecting the father and his parents.
(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
If I were to accede to the request of the grandmother that the children spend a longer period of time with her I am inclined to the view that given the antipathy between the grandmother and grandfather and Mr M there is a greater opportunity for there to be further allegations and further litigation as a result. I will not presently make an order except to the extent proposed in the Minute of proposed order submitted by the Department in relation to the position of the father and the grandparents spending time with the children. The father in any event does not seek that. If in the passage of time the father is fully rehabilitated, develops insight, can accept responsibility for his own conduct and maintains the discipline of abstinence and is able to communicate politely and does not denigrate others involved in the care of the children, some reconsideration might be given to this position.
(m)any other fact or circumstance that the court thinks is relevant
The balance in this case is fine. On the one hand the placement of the child with the mother is clearly indicated. She has progressed along the path to recovery, she has adopted the recommendations of the Department of Community Services and availed herself of support and assistance within the community. She has had lapses of frankness with the Department on a couple of occasions but she has readily acknowledged those with remorse and exhibited a refreshed determination to be not only drug free but a good citizen. However, having said that, for the time being and for at least two years the Court needs to ensure that her care of these children and her drug abstinence is carefully monitored. She needs in due course to wean herself off the methadone maintenance programme in a way appropriate to her progress and the medical advice available to her.
The grandmother has conceded that subject to the supervision of the Department that the mother is the preferable carer for the children. She opposes Mr M being brought into the presence of the children.
As I have said, that proposition seems to me entirely impractical, and indeed, possibly detrimental to the continued recovery of the mother and Mr M and for that reason detrimental to the children. Although Mr M’s record is indeed disturbing and concerning, he has made progress toward rehabilitation and in the witness box recognised not only the stupidity of his past actions but also the benefits of his new state. As he said, he is in the nature of an alcoholic and will always be one and the only path for him is abstinence from illegal drugs.
What he has achieved and what the mother has achieved has been achieved in a mutual supportive relationship between them and the joint development of an understanding that the continued taking of drugs provided no future for them. They have sought and procured help. The placement of these children with them will bring a different dimension, even perhaps stress, to the household and the relationship. S may have problems arising out of the death of her father and perhaps problems surrounding the current litigation which has been ongoing now for some time. We will not know the extent or effect of those problems until, and if, they occur, but I think that these children need to be provided with the chance to reside with their mother, and live in a peaceful and secure environment.
With the safeguards that are proposed I think that it is possible. The alternative on the evidence before me might well be foster care and, whilst not denigrating the good work that foster carers do, I believe that in this case a successful placement with the mother will be vastly superior for these children.
Given the pressures which will exist in the placement for a time, I think that there is not needed the potential pressure for extensive involvement of the grandparents in the children’s lives.
It is true that they have provided these children with a continuing home and care. However their antipathy to the mother and the mother’s partner which in less measure is reciprocated could, in the Court’s view at least for now, be an unnecessary pressure on the household and has the potential to cause detriment to the children. This can be reconsidered in the future.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
A consideration of the evidence has included those matters which have occurred after the separation of the parties.
Evidence shows that Mr M has previously given a parole officer to believe that he would abstain from drugs and yet he nevertheless took marijuana but a short time later. His evidence is that he did not really believe that it was harmful. He says he has now come to the realisation that it is.
As compared to that occasion, Mr M has now matched his actions to his words and has remained drug free since February at least. He has sought assistance with a number of support programmes and has given evidence that he is supported in his resolve by the mother. He has welcomed the continuation of the external discipline of urinalysis or other drug testing as an additional aid to abstinence. His evidence is that he understands his addiction better and knows that his only chance to remain clean is to apply self-discipline and seek help in order to reinforce that self-discipline. He now knows of agencies which will assist him. He has moved his residence quite some distance from the drug prone area in which he formally resided.
I have come to the conclusion that it is entirely possible and even probable that Mr M’s destiny will not be reflective of his history, particularly with the added safeguards which will exist by reason of the supervision of the Minister and his Department.
That supervision on the evidence will include drug testing, home visits both announced and unannounced and continuing contact with the children. Any movement from the required standard of care is likely to be disclosed by this supervision. In addition, the Department will have access to police records and be able to interview the children either at school or in the presence of their mother. It is highly likely that any such interview would reveal an obvious breach.
The Department said in the evidence given that it will from time to time make enquiry of the police to ascertain the present status of the mother and
Mr M in their attempts to avoid collision with the criminal law and to become law abiding and responsible parenters and members of the community.
Even though the grandparents sought to assert that the mother would be unlikely, contrary to her evidence, to report drug use by her partner, I find that that is by no means certain. In any event, given the other avenues for detection of problems, it is in these circumstances and having regard to the matters referred to above, that I find that neither Mr M nor the mother poses an unacceptable risk to the children.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons and that given at trial, I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case I will not apply the presumption . The Court will repose Parental Responsibility in the Minister for Community Services for the next two years. I propose that thereafter it be vested solely in the mother. Such a placement of Parental Responsibility is in the best interests of these children.
The children should not in their interests have extended time with the grandparents at this time, but they should be able to maintain a relationship with them and the orders which I will make in that regard can be the subject of change as the children grow older and they settle into their placement. The undertaking of the grandmother given to the court will remain current, and is noted.
Section 65DAA
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
On the facts, it is not in the interests of these children and I do not propose to make an order for shared parental responsibility. I note it is not sought by the father nor the paternal grandmother.
The Orders to be made
As to the orders to be made, it was proposed by the grandparents that any return on urinalysis of a positive nature for a drug should be the subject of further analysis by Gas Chromatographic means.
Since the mother and Mr M are on the methadone maintenance programme this means on the evidence that every test will return a positive reading for that drug.
It was proposed by the grandmother that the further testing would reveal the level of methadone in the blood and indicate whether the prescribed methadone had been topped up by “black market” methadone which the mother and
Mr M had previously taken.
The expert evidence is that if a dose beyond prescription of methadone was taken it would not be asymptomatic but would produce symptoms similar to drunkenness.
Given that the parties will be monitored and that I propose to make an order giving the Director General a wide discretion as to the form of drug monitoring, I do not propose to make such an order. The order that I will make will give the Department the capacity to withdraw the children from the mother’s care in the event that there is a problem for them in that care.
I therefore propose to make the orders in relation to parenting as set forth above.
I certify that the preceding two-hundred and twenty-four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 23 June 2009
Key Legal Topics
Areas of Law
-
Family Law
-
Administrative Law
Legal Concepts
-
Injunction
-
Remedies
-
Procedural Fairness
-
Judicial Review
4
0
1