Garland and Wharton

[2007] FamCA 733

FAMILY COURT OF AUSTRALIA

GARLAND & WHARTON [2007] FamCA 733

FAMILY LAW - CHILDREN – Interim parenting orders – Indigenous issues – Weight to be given to the issue of stability – Lack of expert evidence

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Garland

RESPONDENT: Ms Wharton

FILE NUMBER: CAC 664 of 2007

DATE DELIVERED: 17 July 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 17 July 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid Office

COUNSEL FOR THE RESPONDENT: Ms A B Goldsworthy

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. That until further order the two children of the respondents Ms Wharton and Mr S, namely L born in February 1997 and T born in February 1998 (“the two children”) live with the mother.

2. That the following terms and conditions apply in relation to Order 1:

   (a)The mother ensure that the two children are personally supervised at all times by her and/or the maternal aunt Ms W outside school hours.

   (b)The mother ensure that the two children punctually attend school each day in each school term subject to them being unable to do so due to injury or illness as certified by a medical practitioner.

3. That the parties ensure that the applicant Mr Garland may communicate with the two children each Monday by telephone between the hours of 6.30pm and 7.00pm and spend time with the two children in S for the purpose of having a meal with them and otherwise engage in any entertainment activities with them during the day and outside school hours upon him giving the mother no less than 10 days notice.

4. That by consent a sealed copy of these Orders be provided by a Registrar of the Court to Ms J for the purpose of her considering making arrangements with the parties for mediation to be conducted by her or her nominee on such terms and conditions as she or her nominee consider appropriate.

5. That a Registrar of the Court or the Registry Manager (Canberra) cause a sealed copy of these Orders to be forwarded to the responsible officer on behalf of the Secretary Department of Human Services in the State of Victoria as soon as possible.

6. That pursuant to section 69ZW the Secretary Department of Human Services in the State of Victoria provide to the Registrar or Registry Manager at the Melbourne Registry, Family Court of Australia any:

   (a)notifications of suspected abuse to both or either of the two children;

   (b)assessments of investigations into notification/s of that kind or the financial outcomes of such investigations;  and

   (c)reports commissioned by the Department in the course of investigating notification/s.

7. That by consent the proceedings are transferred for further determination by a Judge at the Melbourne Registry of the Court.

8. That by consent the Case Management Judge of the Melbourne Registry of the Court is requested to urgently consider the following:

   (a)The proceedings be listed for mention and/or directions at the earliest available date as determined by him.

   (b)Ordering a Family Report by either a family consultant or such other expert who has specialty in dealing with indigenous issues.

   (c)The earliest available hearing of these proceedings on a final basis once all directions for case management have been carried out including the provision of a Family Report.

   (d)The transfer of the proceedings to the Federal Magistrates Court for listing in the S circuit.

9. Liberty to apply is granted to set aside, vary or suspend any of the orders made this day upon seven (7) days written notice being given.

FAMILY COURT OF AUSTRALIA AT CANBERRA

File number:  AC664 of 2007

MR GARLAND

Applicant

And

MS WHARTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the applicant, who is a cousin of the respondent mother, seeks interim parenting orders in respect of the two children of the mother and the father (who, although a respondent, has not taken any active role in the proceedings before me).

2. The mother for her part also seeks interim parenting orders in respect of the two children.

3. The two children who are the subject of the proceedings are as follows:

   (a)L who is 10 years of age having been born in February 1997, and

   (b)T who is nine years of age having been born in February 1998.

4. The relevant adults so far as the proceedings are concerned, apart from the applicant cousin, the mother and the father, are also the mother's sister, Ms W (who I shall refer to as “the maternal aunt”) and the applicant's mother, Ms C (who I shall refer to as “the applicant’s mother”).

Historical background

1. The historical background to the proceedings has been complicated by the proliferation of proceedings that has taken place in three different Courts in relation to the two children.

2. There have been proceedings in relation to the two children in the Victorian Magistrates Court S, the Federal Magistrates Court and the Family Court of Australia.

3. Indeed, when the hearing opened before me today it appeared that not only were there pending applications in this Court but that those proceedings also included a Notice of Appeal in respect of a recovery order that had been made on 4 May 2007 in the Magistrates Court S.

4. The historical sequence of events is as follows:

5. The two children have primarily lived with the mother and/or maternal aunt for most of their lives.

6. In 2002 the Department of Human Services, Victoria removed the two children from the mother’s care and placed them in the care of the maternal aunt.  The background to that action appeared to be because of serious health issues which affected the mother’s ability to care for the two children.

7. Subsequently, the two children have been substantially in the care of the maternal aunt with the qualification of the events that occurred either at the end of 2006 or at the beginning of this year.

8. Following a funeral for a family member at the end of last year in Victoria the two children eventually moved to Canberra to live with the applicant and the applicant’s mother, on one view of it on an indefinite basis, or alternatively in terms of the case brought by the mother only for the duration of the January school holiday period.

9. The two children remained in the care of the applicant and the applicant’s mother throughout the January school holidays.

10. In April 2007 the mother made application in the Magistrates Court S for a recovery order.

11. On 4 May 2007 an ex parte recovery order was made.

12. On 24 May 2007 the two children were removed from the care of the applicant and the applicant’s mother by the police and ultimately placed in the care of the mother.

13. Subsequently, applications were made by the applicant in both the Federal Magistrates Court (Canberra Registry) as well as in this Court.

Issues for determination

1. The issues which have arisen for determination by me are against a background of serious allegations of inappropriate care of the two children by each of the contending parties against the other.

2. In the applicant’s case it is contended that the two children have lived in a physical environment which is inappropriate in terms of their care due to the poor standard of premises, lack of care and cleanliness provided by both the mother and the maternal aunt, as well as having been subjected to both physical and emotional abuse.  The physical abuse has been in the nature of physical discipline.  The emotional abuse has been in the circumstances of the two children having been allowed to wander by themselves late at night unsupervised and/or not attending school for significant periods of time.

3. The mother’s case is that not only were the two children retained in the care of the applicant and the applicant’s mother for a much longer period of time than she had agreed to but, as a consequence, they had become traumatised due to the fact that they were not returned to the care of the mother and the maternal aunt.

4. An issue was raised as to the mental health of the applicant.

5. A further issue was raised by the mother in her case regarding the domineering and abusive personality of the applicant’s mother which had the consequence of minimising the relationship she has or would like to have had with the two children during the period they have spent living with the applicant and the applicant’s mother in Canberra.

6. The presumption of equal shared parental responsibility was not an issue, nor “equal time” or “substantial and significant time” as the father did not actively participate in the proceedings due to his indifferent health.

7. As has been emphasised during the course of submissions, I am required to make orders which are in the best interests of the two children which is the paramount consideration as provided by s60CA of the Act.  That requirement has not changed in the Act over many years.  As has recently been emphasised by the Full Court in Goode and Goode,[1] I am required to consider all relevant aspects so far as primary and additional considerations are concerned, irrespective of the proceedings being one in which interim orders are sought as opposed to final orders.

   [1] Goode and Goode (2006) FLC 93-286

8. The primary considerations I must consider are:

   (a)the promotion of a meaningful relationship between the two children and their parents, and

   (b)protection of the two children from family violence.

9. In this case the relevant adults so far as the parties are concerned extend beyond the parents of the two children for the reasons previously referred to.

10. I do not have any reliable evidence of the two children’s views.

11. Inferentially, in the affidavit evidence put forward on behalf of the parties, the two children have expressed satisfaction or comfort in being with one or more of the parties to the proceedings and allegedly resisting spending time with the other parties on a primary basis.

12. The difficulties in this matter are further exacerbated by the fact that I do not have any expert evidence whatsoever in relation to the two children or either of them so far as cultural issues arising out of their indigenous background are concerned and/or their psychological state.

13. There are serious concerns with regard to the capacity of the parties to provide for the needs of the two children.  Many of those concerns arise out of the allegations made by the parties in their affidavits.

14. As has been emphasised in these proceedings by me, and no doubt by the legal representatives of the parties, the proceedings that are being determined by me are necessarily truncated.  The reason is that the matter proceeds on the usual basis, that is by submissions on the papers subject to any application that may be made to cross-examine any of the deponents to affidavits.  No application was made.

15. Because none of the allegations of fact or controversy can be tested, I am left in a position where serious allegations have been made in respect of which I cannot be satisfied on the balance of probabilities, the reason being that there is an absence of other evidence which either corroborates allegations made or, otherwise a lack of evidence from which I might imply on the civil standard that certain allegations have indeed been established.

16. Illustrations of those matters are the living conditions that the two children have endured in the care of the mother and/or the maternal aunt, the allegations made regarding lack of supervision of the two children at night and absences from school.

17. So far as the allegations against the applicant with regard to his capacity to care for the two children, an issue was raised, as previously mentioned, regarding the state of his mental health.  It was suggested by the mother that he suffers from, or has suffered from schizophrenia.

18. Exhibit 1 is a certificate dated 12 July 2007 from a Dr R who practises at the N Health Service in A, Australian Capital Territory.  Dr R had inspected the clinical notes of a medical practitioner who had been consulted by the applicant since 2001.  That medical practitioner, Dr P was unavailable.

19. Upon perusal of Dr P’s file, Dr R noted that there had been a diagnosis of anxiety disorder in 2002 followed by treatment by a psychiatrist, Dr O.  Dr R notes there had been a prescription of anti-depressants which were taken until 2003 without there being any records of scripts since that time.  Otherwise,

    
    

    Dr R refers to a medical history given to her by the applicant which may or may not be accurate.

20. In addition, Dr R notes there was nothing in “his medical record or in his presentation today to suggest that he has schizophrenia”.  It is not clear from the certificate as to whether Dr R is a general practitioner or has specialised qualifications in psychiatry or in any other field.  However, I accept Exhibit 1 for the purpose of finding that on the limited evidence before me the applicant has not revealed any significant mental health issue since 2003, nor is there any medical evidence, limited as it is, to suggest that he suffers from schizophrenia.

21. With regard to the applicant’s capacity to provide for the physical needs of the two children, Exhibit 2 is a certificate dated 11 July 2007 from the service delivery co-ordinator being an organisation that operates in G.  Exhibit 2 reveals that the service delivery co-ordinator has known the applicant and his family for over four years and has been their primary case worker for that time which has involved regular visits to their home ranging from weekly to monthly.  Her observations were that the home was kept in an appropriate and clean condition, has five bedrooms with attractive facilities and that the applicant appeared to be “dedicated to caring well for the children”.  The certificate proceeds to illustrate the manner in which that care has taken place.  A number of other members of the family live in the home, altogether five adults and two small children and potentially the two children the subject of these proceedings.

22. Whilst on the evidence before me there is no concern that can be suggested as to the physical nature of the environment that the applicant can provide, the evidence is rather slim as to the manner in which all of the adults and small children are accommodated in the home.  However, on the face of it, it appears that the home that the applicant can provide, with the assistance of his mother, is appropriate.

Conclusion

1. As each of the submissions have recognised, stability appears to be a central issue so far as the best interests of the two children are concerned.

2. The two children have had a disturbed background.

3. Approximately five years ago, when they were about five and four years of age respectively, they were removed by administrators of a State government department from the care of the mother and placed in the care of the maternal aunt.

4. Further, the two children at the end of last year had to make further adjustments to change.  That was a result of no longer living in the primary care of the mother and/or the maternal aunt but moving into the care of the applicant, his mother and implicitly all of the other adults who live in the applicant’s home.

5. Regrettably again, the two children were moved to another place of abode in circumstances which undoubtedly were traumatic for them.  Almost two months ago they were removed by police from the care of the applicant and his relatives and placed in the care of the mother pursuant to an ex parte recovery order made on 4 May 2007, to which earlier reference has been made.

6. It is now submitted on behalf of the applicant that the two children with the background described should be moved yet again, albeit on an interim basis.

7. A determination of what is in the best interests of the two children, having regard to the truncated hearing before me, the lack of ability to fully test the serious allegations that each party has made and, last but far from least, the absence of any expert evidence whatsoever, raises a matter of deep concern to me.

8. That is especially against the background where these two children have been consulting a psychologist arranged by the B Family Service at S, namely

   
   

   Ms M. It would have been of great assistance to me potentially to have received some evidence from Ms M.  That did not occur and that is the objective situation that I must deal with.  By alluding to the lack of evidence from her, I should not be taken as having criticised the parties or any of their legal representatives.  Indeed, it may be that Ms M was reluctant to give evidence if she has been providing therapy for the two children.  That is a matter which may have to fall for further consideration in the event that the parties are unable to reach a compromise.

9. I have determined that it is in the best interests of the two children on an interim basis to remain living with the mother, taking into account that care has continued to be provided by both her and the maternal aunt.  The two children have lived with the mother and maternal aunt for almost all of their lives.

10. The interruptions to that care have come about as a result of disputed arrangements which led to the two children living with the applicant in Canberra and the further change that has taken place as a consequence of the recovery order made on 4 May 2007 and the implementation of it by police officers on 24 May 2007.

11. I accept the submission made by counsel for the parties that stability is a large issue in the proceedings for determination today.

12. As previously mentioned, I am not in a position to fully consider all of the allegations which touch upon the issue of stability, as some of those matters could not be tested in these truncated proceedings.

13. I have taken into account that the Department of Human Services in Victoria has previously had involvement with the care of the two children, albeit five years ago.  As a consequence, I propose to make an order which will ensure that they re-activate their interest in fulfilling their statutory duties by hopefully carrying out periodic visits and having discussions with the mother and the maternal aunt to ensure that the two children are being properly cared for.

14. My concern also, in terms of the applicant’s case, is that two young children who are currently receiving psychological assistance, presumably because there is some emotional or mental health issue that requires that assistance, should potentially be exposed to possible further trauma or upset by being moved yet again from S to Canberra.  In saying that, I do not doubt at this stage the sincerity of the applicant’s case or that on the face of it the physical environment in terms of the premises he can offer are suitable, or that the two children have been attending school as referred to in his affidavits.

15. However, more subtle issues are involved, and that is making orders which amount in effect to an experiment to see whether the two children will adjust well to living in Canberra again, against a background where they are fragile given they have been receiving assistance from a psychologist.

16. It may be that in the event of the parties failing to reach an overall agreement, the author of a family or single expert report will be able to consider those matters more closely and, at a final hearing, all of the relevant issues can be properly tested and therefore fully considered by a Court against that evidence.

17. I have made enquiries regarding the possible assistance to the parties of a well qualified and experienced indigenous consultant and liaison officer, Ms J.The parties through their legal representatives supported her involvement.  Unfortunately, arrangements could not be made to ensure that happened today.  However, I will make an order which creates the potential for the involvement by Ms J or her nominee.

18. In view of the issues raised regarding lack of appropriate supervision of the two children at night by the mother or the maternal aunt, the orders I make providing for the two children to primarily live with her will be on certain terms and conditions.  They will include the obligation for the mother to ensure that the two children are personally supervised by her and/or the maternal aunt at all times outside school hours and, in addition, that they punctually attend school on a daily basis subject to any illness, certified by a medical practitioner, which prevents them from doing so.

1. Difficulties in terms of time to be spent by the applicant with the two children arise due to the distance between S and Canberra and the apparent lack of sufficient financial resources of the parties to ensure that time is spent by him with the two children on a regular basis.  I will make orders that provide for the applicant to not only to communicate with them on a weekly basis but also to spend time with them in S upon him giving appropriate notice.

2. I will also grant liberty to apply for orders that set aside, vary or suspend all or any of the parenting orders that I will make, upon seven days’ written notice being given.  That will give an opportunity for the parties to have a further Court determination on some of the issues raised, including but not limited to future periods of time that the two children may spend with the applicant, especially against a background where a Court may be better assisted than I was today, as a result of having expert evidence.

3. The legal representative for the applicant also sought an appropriate order under s69ZW.  I will make such an order, especially as the submissions made on behalf of the mother did not seriously oppose an order being made and, in any event, no issue of prejudice to the mother was raised.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  25 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GARLAND & WHARTON