FEWSTER & HYDE
[2016] FamCA 385
•10 February 2016
FAMILY COURT OF AUSTRALIA
| FEWSTER & HYDE | [2016] FamCA 385 |
| FAMILY LAW - CHILDREN - Family violence – standard of proof - definition of “unacceptable risk” - here greater weight attached s60B than s60CC of the Family Law Act 1975 (Cth) - where the mother has ceased spending time with the children - Where presumption to have equal shared parental responsibility rebutted. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC Evidence Act 1995 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Fewster |
| RESPONDENT: | Mr Hyde |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cope |
| FILE NUMBER: | CSC | 412 | of | 2013 |
| DATE DELIVERED: | 10 February 2016 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 10 February 2016 |
REPRESENTATION
| THE APPLICANT: | No Appearance |
| THE RESPONDENT: | In Person |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER : | Cope Family Law |
Orders
All previous orders regarding children matters be forthwith discharged.
Parental Responsibility
The father will have sole parental responsibility for B born … 2006, C born … 2008 and D born … 2008 (“the children”).
The father is to use his best endeavours to keep the mother informed of any significant parenting issues affecting the children.
Living Arrangements
The children shall live with the father.
The mother’s time with the children be as agreed between the parties but otherwise be reserved, with the mother having liberty to apply to seek orders relating to spending time and/or communicating with the children on 42 days notice to the father.
The mother may communicate with the children by sending letters, gifts and cards to the children and the father is, at his discretion, to view all letters, gifts and cards before handing them onto the children.
Restraints
The father and mother are restrained from:
(a)Using any illicit substances whilst the children are in their care and/or exposing the children to anyone under the influence of an illicit substance whilst the children are in their care; and/or
(b)Exposing the children to any drug paraphernalia.
Neither parent denigrate the other parent to or in the presence of the children and the parents shall use their best endeavours to ensure that the children are not exposed to any such conversations with third parties.
General Orders
Each parent will use their best endeavours to keep the other advised of their home address, email address and current telephone numbers and shall advise the other of any change within seven (7) days of that change.
Within fourteen (14) days of a written request by the mother, the father is to provide to her an update as regards the children’s development and progress, educationally, medically and otherwise with such communication to include current photographs of the children.
The orders authorise the children’s schools to provide to both the mother and the father copies of the children’s school reports, newsletters and similar documents and this order shall constitute the parents authority for same.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court.
Otherwise all extant application be removed from the list of active pending cases.
Notation:
A.It is noted that the mother has disengaged from these proceedings and has had no contact with the children since 17 October 2015, other than a Christmas card in December 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fewster & Hyde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 412 of 2013
| Ms Fewster |
Applicant
And
| Mr Hyde |
Respondent
REASONS FOR JUDGMENT
The proceedings relate to the parties’ three children, B, born in 2006 (and hence presently nine years of age), C, born in 2008 (and hence presently seven years of age) and D, born in 2008 (and hence presently seven years of age) (collectively “the children”).[1]
[1]The dates of birth of the two youngest children immediately disclose that they are fraternal twins.
When the matter came before me on 10 February 2016, it was anticipated that the matter would proceed by way of undefended hearing, and indeed, as expected, the mother failed to appear. She has now been disengaged from these proceedings for some considerable time. That is unfortunate. It is also unfortunate that she has disengaged from the children’s lives for a similar period of time. It appears as though she last spent time with them in October 2015, and last had any form of communication with them in December of that year, when she sent a Christmas card.
The Independent Children’s Lawyer handed up to me a draft of the orders she sought, although in the course of discussion they were slightly modified. The father agrees with those orders which, in substance, which would see him have sole parental responsibility for the children, who would live with him and not provide for any time to be spent with the mother, save that the mother would have liberty to apply to seek orders for time with the children in the event that in the future she wishes to re-engage with them.
On 10 February 2016 I pronounced orders in those terms, and gave skeletal reasons in support of them, indicating that I would edit and augment those reasons before circulating them to the parties in due course. These are those more fulsome reasons.
BACKGROUND FACTS
The father
The father was born in 1974 and hence is presently 41 years of age. He grew up in Brisbane and Darwin and completed his schooling to year 12. He then went to work in hospitality. It seems from a relatively early age he used marijuana and later progressed to using amphetamines. It is unclear whether he was still using them in 2004, when aged about 30, he met the mother and formed a relationship with her.
The mother
The mother was born in Melbourne in 1975 and hence is presently 40 years of age. She reported to Dr E, a psychiatrist who examined her, that her parents were violent alcoholics. She moved to F Town at the age of 18 and apparently there completed year 12 at the age of 20. Somewhat remarkably, notwithstanding having completed her education to that level, she was unable to read or write.
The mother appears to have always had some psychiatric issues. She told Dr E she first saw a psychiatrist at six or seven years of age and whilst perhaps for the balance of her childhood she did not need such assistance, subsequently she has intermittently had psychiatric interventions.
In 2002 she gave birth to a daughter to a relationship that she was then in, although that relationship thereafter failed. She was about 29 years of age and with a young child when she met the father and commenced a relationship with him in 2004.
The relationship
The relationship spanned about four years and bore three children. The mother contends that a major problem in the relationship was the father’s drug taking. She also told Dr E that “there was much physical violence both ways.” Although the parties separated in about 2010, they continued, it seems, to have casual sex thereafter.
The father concedes that the relationship between the parties was violent. Ultimately he was advised to leave the relationship by the police, who also advised him to take the children, and at that time the father moved from F Town to G Town. Although subsequently the mother had little or no contact with the children for about two years, she then moved to G Town and re-engaged with the children.
Both parties post-separation have had domestic violence orders against the other.
I know little about the mother’s life in recent times. It appears as though she has recently formed a relationship with a man living in Asia. In 2014 she told Dr E that she was regularly engaging in casual sex, to the point where Dr E raised the prospect that she may even be involved in prostitution.
Pursuant to interim orders made by Judge Willis on 15 October 2013, the mother was to spend supervised time with the children for two hours each weekend. It appears as though she did so, however the Contact Centre reports in evidence before me (which concededly only relate to more recent visits) record that frequently the children would ignore her, refuse to engage with her, and behave rudely to her, although on some occasions they did behave warmly and lovingly towards her. Those records also demonstrate that the mother would periodically behave inappropriately with the children, for instance discussing adult or inappropriate themes with them, and on occasions had difficulty engaging them.
The mother last spent time with the children on a supervised visit on 17 October 2015. The subsequent visit on 31 October 2015 was cancelled by both the mother and the father, and on 5 November 2015 the mother advised the relevant Contact Centre that she had decided to withdraw from the service.
Subsequent communication between the mother and the Independent Children's Lawyer confirmed that the mother was no longer wishing to see her children, and she has since disengaged from the litigation to the point where she did not even participate in the Family Report interviews in December 2015 conducted by Mr H.
The mother appears to have difficulty in maintaining regular housing, is not in employment, and appears to live something of a transitory lifestyle.
For his part, in recent years the father has reportedly abstained from hard drugs, but continues to smoke marijuana regularly. That is not to say that on occasions he has not claimed to have stopped smoking marijuana, but if he did in fact cease, he appears to have relapsed.
The three children have remained in the father’s care, save that on a date which is unclear, the paternal grandmother came to live with the father and assumed much of the day to day care of the children. At the time of trial before me, the father told me that the paternal grandmother had now returned to her own home, although she attended upon his house daily to assist with the care of the children.
In 2014 or thereabouts the father underwent treatment for a Hepatitis C infection which he had sustained in consequence of his intravenous drug use. That treatment comprised chemotherapy and left him weak and with a vulnerable immune system for many months thereafter. He told me that whilst he is improving, he is by no means completely well.
The children are having some difficulty progressing at school, particularly the twins. D also appears to have some speech issues which require therapeutic intervention.
Of recent times the father and the children have engage with the Salvation Army, which the father frankly conceded to Dr E he was surprised to find he enjoyed. The children appear to be actively involved in the church and the activities it runs for young people.
The father has engaged with Narcotics Anonymous and ATODS, but at the time of trial continued to use marijuana occasionally. He professed a desire to finally quit the habit, and when I explained to him the order which he was asking me to make would require him to abstain from the consumption of marijuana, he indicated that he was aware of that and intended to do so.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[2] In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
[2]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[3]
[3] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where, albeit in the context of allegations of sexual abuse of a child, at [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable? [4]
[4] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
SECTION 60CC FACTORS
Primary considerations
There is no reason to doubt that the children would not benefit from having a meaningful relationship with the father. The Family Report writer’s observations of the father’s interaction with the children over several occasions has consistently noted a good and positive bond.
On the other hand the observations of the children’s interactions with the mother have always been less enthusiastic, and the Contact Centre reports make it plain that the children struggle on occasions to treat the mother in a civil way, and she struggles on occasions to engage appropriately with them.
The difficulty with the mother is encapsulated in Dr E’s report of 26 February 2014 as follows:
The mother demonstrates clear emotional and behavioural problems and I am quite frankly not able to exclude the possibility of her having bipolar 2 disorder at this stage but, on balance, I think it is appropriate to see her as having a borderline personality disorder and all that goes with that. She has unstable relationships, a poor work record, and unstable environment, impulsive behaviour, a high level of aggression and I would not see her as having much insight into the children. She does though look after her older child by another relationship, whom she insists is doing reasonably well at school, so clearly she has something to offer.
One could argue that she needs long-term psychiatric surveillance supervision with a view to observing her over a long period of time to offer her a degree of stability. However, as the situation stands at this stage, I am afraid that I can only support the idea of her having limited supervised contact, at least until things settle down.
I accept that evidence. It substantially erodes the expectation which often normally attaches to a parent/child relationship, namely that a child is likely to obtain substantial benefit from a meaningful relationship with their parents.
As to the need to protect the children from harm (etc), again the Family Report writer and Dr E raised specific concerns regarding the mother’s capacity for emotional self-regulation, and therefore her ability to provide a stable and nurturing environment for a child in her care. Particularly it appears as though on occasions the mother’s engagement with the children has extended to overly severe physical discipline; for instance B reported that his mother had slapped him across the neck.
In this context it is convenient to discuss the father’s marijuana use. It appears to have been a persistent feature of his life to date, including the years since separation when the children have been in his care. As to this Dr E said:
The father suffers from chronic substance abuse which appears to be under control at present [ie March 2014] but which does not appear to prevent him from being an effective parent, especially while he has the support of his mother. How he would function in terms of looking after the children if is mother moved out his simply uncertain.
Earlier in that report he had said:
Clearly, it is inappropriate for the father to be smoking marijuana under these circumstances. However, one does not uncommonly see individuals who can smoke marijuana reasonably regularly and not be significantly adversely affected by it. When I put it that way, I am not sanctioning it but simply pointing out the obvious and what we not uncommonly see. Clearly, if you are parenting children, you should not be smoking illegal drugs – or drinking too much for that matter, or smoking for that matter…
Again I accept that evidence.
It is noteworthy that there is no suggestion in the evidence that the father’s marijuana use has to date presented the children with an immediate risk of harm. Moreover, even though the paternal grandmother has now moved out of the father’s home, she appears to remain a constant and consistent feature of the children’s lives.
Additional considerations
I accept the Independent Children's Lawyer’s submissions that “the child [B] has remained consistent in expressing a lack of desire to see his mother, citing that she is mean, will shout at him and has hit him.” He has consistently likewise said that he is happy to be living with his father, but would not be happy if he wasn’t living with him.
Neither of the twins have ever expressed a view that they did not enjoy living with their father, and have expressed inconsistent views as to their desire to spend time with their mother. Given their young age I give their wishes little weight. However I do give B’s wishes considerable weight.
I have already observed that the children enjoy a good relationship with the father and an ambivalent relationship with their mother.
Plainly the mother has, in recent times, abandoned these children, and has failed to participate in their lives, whether in relation to decision making, spending time or communicating with them. The father on the other hand has maintained complete engagement with the children’s lives in all respects, even accepting that much of the day-to-day grind of raising them has fallen to his own mother.
If the children were to move into the mother’s care, the consequences are likely to be catastrophic. In any event she does not seek such an order.
Plainly the mother lacks the capacity to properly provide for the children’s needs, in all domains. Whilst the father does admit to ongoing drug usage, it appears as though, at least to date, that has not manifested itself as a reduced capacity to provide for the children’s needs. Further, he has in the past struggled with parenting, perhaps in part because of his weakened condition consequent upon the chemotherapy treatment. In this respect the paternal grandmother’s intervention has been vital.
Whilst it would not be quite correct to describe any of the three children as “high needs” plainly these are children that struggle educationally for a variety of reasons.
B has what is described as “a lazy eye” and has been referred for speech and language assistance. He finds it difficult to concentrate for long periods of time.
C has some difficulties with schooling and appears to have some unresolved issues in relation to the poor relationship with her mother.
D has delayed development, low academic performance, poor muscle tone and lacks fine motor skills. His language is so poor that the Family Consultant had difficulty even understanding him.
Clearly these children need to have a consistent, dedicated parent in order to optimise their prospects of maintaining appropriate developmental progress.
Plainly the mother has an appalling attitude to the responsibilities of parenthood. If she has not actually abandoned the children, she certainly has demonstrated no commitment to maintain any role in the children’s lives.
As noted in her submissions, the Independent Children's Lawyer is correct to identify a significant history of family violence between both parties.
In the past family violence orders have applied, but the only inference I draw from those is that both parties – as they freely concede – were violent to each other both during the relationship and thereafter.
Plainly it would be preferable to make orders which would be unlikely to lead to further litigation. That may not be possible in this case however.
PARENTAL RESPONSIBILITY
The presumption of equal shared parental responsibility does not apply in this case, as there is reason to believe that there has been family violence. I am satisfied that both parties have perpetrated that violence on the other.
The mother has disengaged from the proceedings and does not seek any orders in her favour in relation to parental responsibility. In any event, the issues relating to her borderline personality disorder identified by Dr E and indeed the Family Report writer would make her an unsuitable candidate for any form of parental responsibility, whether sole or shared.
In the circumstances the best interests of the children require an order for sole parental responsibility in favour of the father.
WITH WHOM SHOULD THE CHILDREN LIVE
As I have already indicated, the mother has disengaged both from these proceedings and from the children’s lives generally. In any event, the children have only lived with the father since separation, and every indication is that not only should they continue to do so, but that a move into the mother’s care would be a recipe for disaster.
I am satisfied that the children’s best interests lie in there being an order that they live with their father.
TIME AND COMMUNICATION WITH MOTHER
Given that the presumption of equal shared parental responsibility does not apply, and I am not proposing to order it in any event, strictly speaking I am not obliged to consider whether the children should spend equal time, or substantial and significant time, with the mother. However I should say that plainly such an arrangement, which has never prevailed since separation, would inevitably be unworkable and not in the children’s best interests, because of the mother’s psychiatric issues and her generally unstable life and lifestyle. Given the particular needs of these children, and the difficulties which they appear to be experiencing in their day to day lives, the likely chaos of being involved in the mother’s life in anything but a strictly supervised regime is too great.
That then raises the question of what time the mother should spend with the children. Neither the father nor the Independent Children's Lawyer suggested that this was a case in which the mother presented such a risk to the children that she should spend no time with them. Rather, at least initially at the commencement of the hearing before me, both advocated for a continuation of the existing orders for supervised time. However as I discussed with them during the course of the hearing, there is a significant difficulty with that on two fronts.
The first is that the mother has now not spent any time with the children, and save for one Christmas card, not communicated with them, for about four months. She has indicated that she intends to continue down that path, and apparently foresees having no future interest in re-engaging with the children. It appears as though she sees her future as lying with her current partner who lives in Asia.
As I observed during the course of the hearing, although it is pessimistic, the reality is that relationship is unlikely to survive. The mother’s personality issues are likely to ensure that the relationship is both difficult and short lived. Even if she does move to Asia, therefore there is every prospect that she will return to Australia. Precisely when that is likely to occur is impossible to predict, but if she does so, there is some prospect that she would wish to re-engage with the children. That may be in several years time. It is impossible at this point to say that indeed even supervised time would then be in the children’s best interests. Particularly there may need to be some reunification counselling which precedes the mother spending supervised time with the children. All of that will depend upon the mother’s state of functioning if she seeks to re-engage with the children, the children’s psychological progress in the interim, and the length of time between the mother having disengaged from the children in October 2015, and seeking to re-engage with them again in the future. Those are all presently unknown and unpredictable.
The second difficulty with the proposed order was that it was expressed to be “at the [G Town] Contact Centre at such days and times as permitted by the service.” The father has indicated in his material that he may wish to move to a milder climate, perhaps Region I near Brisbane. Because the mother’s future intentions are unclear, it could not be reasonably practicable to require the father to travel from Region I with the children each alternate weekend, so as the mother could spend an hour or two with the children under supervision. Such an order would be practically unworkable.
It therefore seems to me that the children’s best interests are to reserve the mother’s time that she may spend with them, and the circumstances in which she may spend that time, giving her liberty to apply on reasonably lengthy notice to the father. Of course if the parties can agree as to the regime of time which the mother spends with the children – which given the father’s reasonable approach seems likely – then they should be permitted to do so. Certainly the parties should not be forced back to court by the liberty to apply if they are able to agree.
Therefore I propose to order that the mother’s time with the children be as agreed between the parties, but otherwise be reserved, with the mother having liberty to apply on 42 days notice to the father.
As to communication, most unusually the mother has not in the past sought to use telephone or other electronic communication with the children, and has only sent a Christmas card in December 2015. Therefore although one might ordinarily expect there to be an order permitting the mother telephone or email communication with the children, not only does she not seek it, but there has been no history of it in the past. I am therefore satisfied that the proposed order by the Independent Children's Lawyer and father, namely that the mother may communicate with the children by sending letters, gifts and cards, is appropriate and in the children’s best interests and I will make it.
OTHER ORDERS
Otherwise I am satisfied that the orders sought by the Independent Children's Lawyer and father (as modified during the course of argument) are in the children’s best interests and will make them.
CONCLUSION
For these reasons on 10 February 2016 I made orders as set out at the commencement of this judgment.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 February 2016.
Associate:
Date: 10 February 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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