Garven & McFarlane
[2024] FedCFamC2F 1008
•31 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garven & McFarlane [2024] FedCFamC2F 1008
File number(s): HBC 495 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 31 July 2024 Catchwords: FAMILY LAW – parenting – final orders – order for mother to have sole decision making responsibility – no live with or spend time orders made for oldest child – order that father spend no time with the children due to unacceptable risk Legislation: Children, Young Persons and Their Families Act 1997 (Tas)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG
Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 & Part 2
Cases cited: Garrido & Garrido [2024] FedCFamC2F 634
Isles & Nelissen [2022] FedCFamC1A 97
Isles & Nelissen [2021] FedCFamC1F 295
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 66 Date of last submission/s: 1 July 2024 Date of hearing: 24 June 2024 Place: Hobart Counsel for the Applicant: Mr Verney Solicitors for the Applicant: SiS Tasmania For the Respondent: The Respondent in person The Independent Children's Lawyer: Ms Watson, Tasmania Legal Aid ORDERS
HBC 495 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GARVEN
Applicant
AND: MR MCFARLANE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1.The Mother, Ms Garven, (“the mother”) have sole decision making responsibility in relation to the children W, born in 2009, X, born in 2013, Y, born in 2018, and Z, born in 2020 (collectively “the children”).
2.X, Y and Z live with the Mother.
3.X, Y and Z spend no time and have no communication with Mr McFarlane (“the Father”).
Restraints
4.The Mother and the Father are, pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, restrained from:
(a)Exposing any of the children to family violence as defined in s 4AB of the Family Law Act 1975 (Cth);
(b)Denigrating the other parent or the other parent’s family within the presence or hearing of any of the children; and
(c)Using illicit substances or prescribed medication other than in accordance with a current prescription, whilst any of the children are in their care.
5.The Father be restrained pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children and the Mother from approaching within 200 metres of W, X, Y, Z or Ms Garven.
Other Orders
6.In the event that Child Safety Services, the children’s schools or C Organisation support worker can facilitate X, Y and Z spending time with W, they spend supervised time with each other according to their wishes at times when a supervisor is available.
7.Within 14 days of the date of these Orders, the Mother do all things necessary to enable W to obtain a Medicare Card in his own name.
8.Within 14 days of the date of these Orders, the Mother do all things necessary to enable W to open a bank account in his own name.
9.Within 14 days of the date of these Orders, the Mother provide a letter to the Independent Children’s Lawyer (“the ICL”), for the purposes of the ICL providing that letter to Centrelink, signed by her stating that she is unable to have W reside in her home and that she is unable to financially provide for W and that this is supportive of W being provided with independent financial assistance from Centrelink.
10.The Mother continue to engage both herself and the children with her and the children’s support services for as long as is recommended by each of those services.
11.The ICL is authorised to provide a copy of these Orders to Centrelink, Child Safety Services, the Department of Children, Education and Young People (for the provision of these Orders to the children’s schools) and Tasmania Police.
12.The ICL’s appointment continue for a period of 6 months.
THE COURT NOTES THAT:
A.Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the Orders for personal protection in Orders 4 or 5 have been breached.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These are parenting proceedings that involve four children: W, X, Y and Z. The parties, Ms Garven (“the mother”) and Mr McFarlane (“the father”), are the parents of these children and were in a relationship for approximately 14 years, from 2006 until December 2021.
By her Amended Application filed 13 September 2023, the mother seeks final orders that the three younger children, X, Y and Z, live with her and not spend any time with the father. The mother does not seek an order that W, who is 14 years old at the time of these proceedings, live with her, nor any orders for spending time with him. However, she does seek an order for sole decision making about major long-term issues in respect of all four children.
An Amended Response filed 22 September 2023 outlined orders sought by the father, including sole parental responsibility for W, equal shared responsibility for the three younger children and an order that, once he was released from prison, W live with him. The Amended Response also outlined steps for the progression of time between the father and the three younger children.
The paternal uncle of the children, Mr B, had intervened in the proceedings and was seeking parenting orders concerning W, but he filed a Notice of Discontinuance on 17 June 2024. The explanation given to the Court was that he no longer sought orders due to the complexities and challenges involved in parenting W.
THE HEARING
At the trial management hearing on 11 June 2024, the father’s solicitor had recently filed a Notice of Ceasing to Act on 4 June 2024 and the father did not attend that listing. A number of the procedural Orders previously made in readiness for a defended hearing had not been complied with by the father and there was considerable doubt about whether he would attend and participate in the final hearing.
At the commencement of the final hearing on 24 June 2024, the mother appeared represented by counsel and Independent Children’s Lawyer (“the ICL”) attended to represent the interests of the children. The father was called at the appointed hearing time and consistent with the notation made on the Orders of 11 June 2024, the final hearing commenced without him.
The ICL and counsel for the mother invited the Court to proceed on an undefended basis. Being satisfied that the father had notice of the final hearing, I agreed to proceed on an undefended basis,[1] but indicated I would still need to be satisfied that the final orders sought were in the children’s best interests.
[1] After taking as read two Affidavits of Service of Mr F affirmed 13 June 2024 and 21 June 2024, which were later marked as Exhibit ICL5.
The Court was advised that the ICL and the mother were agreed about the final orders sought and a minute of consent orders was provided, signed by the mother and the ICL but not the father. The consent minute provided that the three younger children live with the mother and spend no time with the father and made no orders regarding live with or spend time arrangements for W. The absence of orders relating to W was described as reflective of the reality that, in the context of his age and his living arrangements for the last 18 months, he would ignore any order made by this Court and it would be impossible for any party to ensure compliance.
In the ICL’s case, the following were tendered into evidence:
·Exhibit ICL1: section 91B response from Child Safety Services released by the Court on 21 June 2024;
·Exhibit ICL2: Affidavit of Mr D dated 21 June 2024;
·Exhibit ICL3: Department of Education’s Student Engagement Procedure;
·Exhibit ICL4: Affidavit of Ms E filed 20 June 2024;
·Exhibit ICL5: two Affidavits of Service of Mr F dated 13 June 2024 and 21 June 2024;
·Exhibit ICL6: bundle of section 69ZW and 67ZBD responses from Tasmania Police dated mid-2024, late 2023, early 2023 and mid-2022;
·Exhibit ICL7: bundle of section 69ZW and 67ZBD responses of Child Safety Services dated mid-2022, late 2023, late 2023 and mid-2024; and
·Exhibit ICL8: bundle of records from the G Contact Service and H Centre.[2]
[2] Filed by the ICL after the close of the hearing on 24 June 2024, pursuant to Order 3 of the Orders made 24 June 2024 and marked as an exhibit by the Court on 29 July 2024.
The ICL was also mindful that Child Safety Services had again refused to intervene in the proceedings on 21 June 2024 despite this being the third request for them to do so.[3] Information contained in Child Safety Services reports indicated W was living independently of his parents and not in stable accommodation, that he may have been involved in criminal activity or drug taking and that he was not regularly attending school. Accordingly, the ICL quite properly called two witnesses, Mr D and Ms E, to attest to W’s circumstances.
[3] Pursuant to s 91B Orders made by the Court on 2 August 2022, 2 November 2023 and 14 June 2024, and noting the Department filed s 91B responses dated 20 September 2022, 25 January 2023, 8 November 2023 and 21 June 2024.
Evidence of Mr D
Mr D appeared on a subpoena to give evidence and his affidavit of 21 June 2024 was marked as an exhibit by the Court. In summary, his evidence was:
(a)He supports W through C Organisation, a program designed to assist youth who are disengaged with the community and have experienced trauma, which has led to increased child safety or youth justice intervention.
(b)He began working with W in mid-2023 on a referral from J Organisation.
(c)W has had insecure accommodation, including briefly living with his father’s ex-partner in Suburb K. For some months, W has been living with Ms L, an associate of the father, and her daughter in Suburb M or at friends’ homes, where he sleeps on a couch.
(d)Ms L is not acting in a parental capacity for W.
(e)He has been supporting W to reconnect with school, family and friends, and to address his health through the Aboriginal Health Service.
(f)W has trust issues and has been offered and declined alternative accommodation including:
(i)Living with his paternal uncle, Mr B, in Victoria;
(ii)Living in a supported residential home in Suburb N, Tasmania; and
(iii)Living at O Centre, a shelter in Suburb P.
(g)He has supported W in relation to a criminal charge of stealing and believes this was a one-off situation in which W was caught up with the wrong person and was not in consistent accommodation at the time. He added that W no longer has contact with that “wrong person.”
(h)W’s primary needs are to have an income source, to attend school and to continue to have social supports, including positive role models such as teachers.
(i)He did not consider W to be at risk in relation to drug taking or drug dealing despite the contents of Tasmania Police reports.[4]
(j)He is aware that W’s general practitioner has spoken with him about the dangers associated with illicit substance use (as W may occasionally use, or have previously used, a substance). Mr D did not believe he had seen W affected by the substance and thought he would be able to identify it if he was because most young people are quiet and withdrawn.
(k)He is not concerned about W being a user of an illicit drug and he believes W would tell him if he were using it.
(l)His current engagement with W is until late 2025, but this may be extended.
(m)Asked about W’s willingness to engage in supports, he stated that when W chooses not to engage he shuts down and becomes quiet.
(n)The “[education] program” that W is involved in is not a typical school structure and if he does not attend when he is supposed to, Mr D or a teacher will contact him and can collect him to facilitate his attending school.
[4] Exhibit ICL6, in particular the section 67ZBD response dated 14 June 2024 and the section 69ZW response dated 8 May 2024.
Attendance of the father at the hearing
After Mr D had completed his evidence, the ICL informed the Court that the father had texted her to advise that he had been unable to attend Court due to car issues and was wanting to join the hearing by audio-visual link. I granted leave for the father to attend the hearing by MS Teams and adjourned temporarily to permit him to join in the hearing.
The hearing resumed shortly after and I explained to the father what had transpired so far. I informed him that because he had not complied with the procedural Orders of the Court or appeared at the correct time, despite being aware of the hearing, I had been persuaded to proceed with the hearing in his absence. I further explained that he could make submissions to the Court and rely on any material he had previously filed, providing it did not prejudice the other parties.
Evidence of Ms E
On resuming the ICL’s case, further evidence was received about the education program in which W was engaged and the supports he was receiving by way of oral evidence from Ms E. In summary, her evidence was:
(a)She has been involved in W’s education program as a social worker employed by the Department for Education, Children and Young People. Her role includes supporting children impacted by family violence.
(b)After concerns were raised about W’s disengagement with school in late 2023, the education program was proposed as an alternative. The program offers more one on one support and there is a care team that collectively works to support W. The care team meet regularly and coordinate with Mr D, W’s C Organisation worker.
(c)She has met with W about ten times between early 2022 and 2023, either at school or at the mother’s house. She has never been to Ms L’s home but another person in W’s care team has visited him there, although they were not invited in. Ms E has had concerns about illicit substance use connected to the home and noted that on one occasion there was concern about witnessing a drug deal.
(d)The care team asked police to do a welfare check and were advised that the house was “not a great address for drugs and family violence.”
(e)The care team are involved in making sure W goes to health appointments and attends school, which includes picking him up and dropping him off. They also hope to arrange a Q Organisation referral in the near future to assist healing and facilitate sibling contact.
(f)Mr D had advised her that W would like to resume sibling contact. Ms E considered there could be risks to the other children if the sibling contact is not planned and safe. She added that W needs to be a sibling, not a parent and that she has previously observed W telling X what to say.
(g)She is also involved in supporting the family overall. She said the mother has engaged well with her and the three younger children have settled in the last 12 months.
(h)She would push for an extension of W’s C Organisation referral and she thinks there’s a good likelihood it will be extended. She has previously worked for Child Safety Services and believes she can ensure there is appropriate response and support.
(i)The care team have some concerns about W being involved in ongoing drug use and criminality.
(j)Although W’s current living arrangements with Ms L are not desirable, there are no other options as W has rejected those proposed by Mr D.
(k)At best, even within the education program, W has attended 65% of the expected two to three days of school per week.
(l)At present, she understands that the education program leader is working on a “white paper certificate” for W, which she understood to be something that enabled students to pursue a trade in place of attending school.
Evidence in the mother’s case
In addition to reliance on the Amended Application filed 13 September 2023 and the section 69ZW and 67ZBD responses of Tasmania Police and Child Safety Services already tendered by the ICL, counsel for the mother tendered the following documents:
·Exhibit A1: R Organisation summary relating to the parties and the children, produced by the Department of Education;
·Exhibit A2: letter from the father’s previous legal representative, Ms T, to all parties in these proceedings dated 28 February 2024;
·Exhibit A3: letter from the father’s previous legal representative, Ms T, to all parties in these proceedings dated 28 May 2024;
·Exhibit A4: email from Ms E dated 17 June 2024; and
·Exhibit A5: Affidavit of the mother filed 3 June 2024.
RELEVANT LAW
As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth).
I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child's best interests according to the non-exhaustive considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[5] Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[6]
[5] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2.
[6] Sections 60B and 60CG of the Act.
Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[7]
[7] Section 60CC(2)(a) of the Act.
I consider that the assessment of risk of harm to a child remains informed by the principles established in MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.
THE PARTIES SUBMISSIONS
Counsel for the mother relied on the Case Outline filed 19 June 2024 and the Court was invited to make findings consistent with pages 4 to 8. It was submitted that the Court should make an order that the children not spend time with the father because this was necessary to protect them and promote their safety.
Essentially, counsel for the mother highlighted incidences of extreme and extensive family violence perpetrated by the father and witnessed by the children. He also emphasised the likelihood that the father would not consistently maintain time with the children, based on his previous history of such.
In respect of W, counsel for the mother submitted in effect that a consistent and reliable parent was needed to make decisions that required parental consents and authorities, even if he continued to live independently. It was submitted that only the mother could fulfill this role.
The ICL’s submissions largely agreed with those made on behalf of the mother. She also relied on her Case Outline filed 21 June 2024.
When invited to tell the Court what information or documents, if any, he relied upon, the father did not identify any. I endeavoured to assist the father, within reasonableness, by enquiring if he had considered the orders sought by the ICL and the mother and whether he opposed or agreed with any of them.
The father advised the Court that he would like to have a say in the children’s lives and into long-term decisions but that, day to day, he was happy for the mother to care for them. He conceded that he and the mother couldn’t currently communicate but he hoped that in future, after mediation, they could make decisions about the children together. The father added that he opposed the orders that he spend no time with the younger children and instead sought to initially spend a few hours per week with them, with this to gradually increase. Asked how that was practical or best for the children given his pending criminal matter, he stated he was pleading not guilty.[8]
[8] The father told the Court during the hearing that the pending criminal matter involved breaches of a family violence order against the mother that had occurred in 2023, involving him approaching her contrary to non-contact orders and an allegation that he assaulted her.
The father confirmed that he had no issue with the Court making s 68B injunctive restraints for the protection of the children and mother. He also stated he was not opposed to orders about the mother providing consents and authority for W to obtain his own Medicare card and bank account, and to enable him to apply for financial support from Centrelink.
EVALUATION OF RELEVANT CONSIDERATIONS AND FINDINGS
The father did not challenge any of the evidence relied upon by the mother and the ICL. On this basis, I accept the submissions made by counsel for the mother and make the following findings:
Family Violence and other harmful conduct
(a)The father has perpetrated repeated and serious family violence against the mother, including but not limited to non-fatal assault, physical violence while she was holding a child and serious assault.[9] These allegations are a matter of Tasmania Police record.[10]
(b)The father has been repeatedly convicted of family violence offences against the mother including but not limited to common assault, breaching of bail conditions and repeated breaches of protective orders.[11]
(c)The family violence occurred in the presence of the children on many occasions.[12] When W was in the care of father in late 2023, he was exposed to repeated family violence offending by the father against a third party.[13]
(d)The father has spent much of the previous 12 months in and out of custody.[14]
(e)The father has demonstrated an inability to adhere to Court orders by repeatedly breaching of protective orders and bail conditions, for which he has been convicted and sentenced, and by his disengagement in these proceedings.
(f)The mother concedes that in the past she has sworn at the children and used excess physical force to discipline them, raising concerns about her capacity to safely care for the children.
(g)The mother’s conduct as described in subparagraph (f) has been contributed to in part by pain caused by her disability prior to her corrective surgery.
(h)Although the mother denies the allegations of physical abuse of the children, this ignores the concession that she used physical force to discipline.
(i)The mother is now engaged meaningfully with support services and her mental health and trauma are being treated appropriately.[15] Her chronic pain is significantly reduced following her surgery in late 2022.[16]
(j)The children are engaged with numerous mandatory reporting supports who can ensure their needs are being met.[17]
[9] Exhibit A5 at [114]-[127].
[10] Exhibit ICL6, section 69ZW response of Tasmania Police dated mid-2024.
[11] Exhibit ICL6, section 67ZBD response of Tasmania Police dated mid-2024.
[12] Exhibit A5 at [127].
[13] Exhibit ICL6, section 69ZW response of Tasmania Police dated mid-2024.
[14] Exhibit ICL6, section 69ZW response of Tasmania Police dated mid-2024.
[15] Exhibit A5 at [84].
[16] Exhibit A5 at [85]-[94].
[17] Exhibit A5 at [83].
The children’s views
There is no independent or expert evidence about the children’s views regarding their care arrangements. However, the ICL made submissions about her discussions and meetings with the children and I accept her reports to the Court as accurate.
In particular, the Court was advised that the three younger children appear happy and content in the mother’s home.[18] W has clearly, strongly and consistently expressed a wish not to live with either parent and has preferred to live independently despite being offered alternatives, as deposed to by Mr D.
Physical, psychological, emotional and cultural needs of the children
[18] Exhibit ICL5, annexures A and D of the affidavit of Mr F dated 21 June 2024.
The mother deposes to being primarily responsible for meeting the needs of the children prior to commencing proceedings in 2022.[19] However, it is likely that both parents contributed to the needs of the children, given the mother’s medical conditions, and there were concerns reported to Child Safety Services about their care on a fairly regular basis.[20]
[19] Exhibit A5 at [5]-[14]
[20] Exhibit ICL7.
Since these proceedings commenced and particularly in the last 12 months, the mother has largely been solely responsible for meeting the developmental, psychological, emotional and cultural needs of the three younger children.[21]
[21] Exhibit A5 at [38]-[45].
The mother continues to work with W’s support team to ensure his needs are met in circumstances where she is unable to meet them directly.[22] It appears that the inability to meet W’s needs at times is related to her own complex health and psychological state and the impacts of trauma experienced by W.
[22] Exhibit A5 at [71]-[77].
Parental capacity for decision making
For at least 12 months, the mother has made all major decisions concerning the three younger children and practically the father’s imprisonment has prevented his involvement. During this time, there has been improved school attendance and Z has attended the U Program.[23]
[23] Exhibit A5, annexure G3.
The mother has also actioned additional supports for the children as required, including ensuring the children attended specialist and allied health appointments, sports lessons, facilitating a referral to Q Organisation and participating in Aboriginal culture and community.[24]
[24] Exhibit A5 at [83].
When W, X and Y were in the care of the father in early 2022, he did not facilitate their attendance at medical appointments,[25] or X’s ongoing supportive relationship with his worker at the V Aboriginal Centre. Exhibit A1, the R Organisation summary, also contains reports of concern relating to W and X from the time they were in their father’s care, including that they were being “coached” to tell staff a particular narrative and that W’s violent behaviours had escalated since living with the father. Y returned to the mother’s care with a serious rash around his face. This rash resolved quickly once he was in the mother’s care and receiving appropriate medical treatment.[26]
[25] Exhibit A5 at [25].
[26] Exhibit A5 at [37]
Since W has ceased contact with the father, he has experienced a number of positive developments in having his developmental, psychological, emotional and cultural needs met.[27] In particular, he has somewhat reengaged with education and is participating in the education program as described by Ms E, as well as engaging with Mr D, his support worker.
[27] Exhibit A5 at [71], and [73]-[74].
W has begun having intermittent contact with the mother and she has addressed concerns raised by his care team to better promote his safety and wellbeing, such as obtaining a new phone for him, delivering care packages, and communicating about medical appointments.
There is no evidence before the Court of the father having any communication with W’s care team.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
The unchallenged and extensive evidence of family violence perpetrated by the father, the deterioration in the wellbeing and progress of the children when in the father’s care and their improvement since returning to the mother’s care, satisfies me that it is not safe for the three younger children to maintain a relationship with the father. The mother has now demonstrated that she can meet the children’s physical and emotional needs and will accept support and assistance to do so.
I accept that there are practical and protective reasons for the mother to have sole major decision making for all the children, including W, for the reasons submitted by her counsel.
Based on the G Contact Service records produced by the ICL pursuant to the Court’s Order of 24 June 2024,[28] I am satisfied that the father has not always been consistent in exercising time with the children. I accept the submissions of the ICL that he has not spent any time with the children since mid-2023 and prior to this he missed six of a possible 14 visits with them since Interim Orders were made.
[28] Exhibit ICL8.
While it is ordinarily in children’s best interests to have a relationship with their siblings, I find that due to W’s likely psychosocial problems as evidenced by the Tasmania Police and Child Safety reports, it is not safe for the younger children to spend time with him unless professionally supervised.[29] This is in line with the views of the ICL as expressed in her case outline and with the evidence of Ms E, referred to above at [14](f) of these reasons.
Right to enjoy Aboriginal culture and relationships with extended family
[29] Exhibit ICL6 and Exhibit ICL7.
The children have Aboriginal identity and culture connected through their mother and there is unchallenged evidence that she supports and encourages their participation with culture, but the father is unlikely to do so.[30] The maternal grandmother lives nearby to the mother and is a strong source of support and guidance for her.
[30] Exhibit A5, annexure G4.
On the basis of unchallenged evidence, I find that the maternal grandmother is heavily involved in the care of the children and regularly spends time, including overnight time, with them.[31]
[31] Exhibit A5 at [84].
W’s safety and welfare
On the basis of the evidence of Ms E and Mr D, I find that W is at risk of spiralling into a pattern of criminality, including that related to the use and supply of illicit substances.
I consider that Mr D underestimates the extent of this risk as his evidence was at times inconsistent about the markers of illicit substances influence and how W presents. Further, while W resides at Ms L’s home, there is probable environmental exposure to drug use and drug dealing. The opportunistic use of W for such activities is a risk that cannot be ignored and as he is dependent on the accommodation, the ability to influence him despite the efforts of Mr D, his care team or his general practitioner is real.
As foreshadowed in my remarks about disappointment that Child Safety Services have not intervened, I find that it is probable that W is at risk of homelessness or unstable accommodation, pressure or persuasion to use illicit substances and quite possibly assist in dealing of other illicit drugs.
Further, I find that W is at risk through being deprived of a satisfactory education and opportunity to support himself because of disengagement in school and only average participation in the education program.
The risks to W as described on the balance of probabilities are due to his exposure to family violence between his parents.
DETERMINATION
The weight of the findings I have made convincingly lead to the conclusion that the risks of emotional harm to all children due to exposure to family violence perpetrated by the father are high and likely to recur should they spend time with him.
Furthermore, the father’s history of criminal offending and imprisonment and pending criminal matters lead to the conclusion that it is quite possible that in the foreseeable future the father will be again imprisoned. This would practically expose the children to further inconsistent time with the father if the Court made spend time orders. I infer that there are likely adverse effects experienced when children have expectations of spending time with a parent which are not met.
The father’s submissions about major decision making were unclear. He suggested he wanted some involvement and proposed mediation, but this is not likely to be productive of agreement given the history of conflict between the parties.
In view of the extent of family violence perpetrated by the father, even if he were not at risk of imprisonment again, it would be unrealistic for the mother to make joint decisions with him. It is foreseeable that if placed in that position, her health and capacity to care for the children would suffer given the history between the parents which has caused dysfunction and adverse effects to the children.
The Court’s findings weigh convincingly in favour of the mother having sole responsibility for decision making about major issues for the children and order will be made accordingly.
The father did not propose particular orders about how the children should spend time with him. He did not contemplate the significant possibility that he would be imprisoned and that this would create practical barriers about facilitating time. Nor that this would expose the children to adverse psychological or emotional effects from the foreign and custodial environment. There is no evidence which persuades me that it is in the children’s best interests to be exposed to the prison environment in this context.
As the three younger children now have an established, loving and stable care arrangement with the mother and there is no preferable alternative, I am persuaded that the orders proposed by the mother and supported by the ICL are in their best interests.
Although there is a small risk that the mother’s capacity to care for the children will regress if her physical or psychological health deteriorates, she is now experiencing better health and will continue to accept support services to ensure the children’s physical and emotional needs continue to be met and improve in view of my findings above at [30] to [39].
I accept that the father would like to be involved in the children’s lives, but his wish is immaterial to the determination of the Court. Rather the Court must determine what orders are in the children’s best interests according to the statutory provisions and principles discussed at [16] to [19] of these reasons. The safety, wellbeing and protection of the children must be prioritised in this case in view of the Court’s findings that the father poses an unacceptable risk of harm to the children. An order will be made that the three younger children spend no time with the father.
Given that the father has in the past had quite considerable involvement in caring for the children pre-separation, there is likely to be value in some connection being maintained with the father for the sake of their identity and emotional wellbeing. However, the Court does not have any evidence before it as to whether it may be more harmful to maintain a connection by permitting the father to provide cards and gifts. The mother through her counsel made a submission that an order of this nature was opposed due to the level of distress it would cause her to pass on the cards or gifts. However, it is not necessarily the case that the mother need be burdened by the cards or gifts. Accordingly, for the sake of clarity the Court’s orders do not prohibit the father from providing cards or gifts to the children providing they are forwarded to the children’s schools for staff at the school to pass onto them if suitable.
It is also necessary to protect the safety of all the children by making the injunctive orders set out in the minute of orders agreed by the mother and the ICL, noting also that the father agreed to such orders being made.
In so far as W is concerned, given his age, damaged relationship with both parents and firmly expressed wishes to live independently, I reluctantly will not make orders about who he should live with. The past 12 months have demonstrated that regardless of various supports, the involvement of Child Safety Services and efforts of the paternal uncle, it has proved impossible to persuade him to live in a safer and more supported environment that he presently choses. Further, Child Safety Services have declined to seek orders in this Court or make application for orders pursuant to Children, Young Persons and Their Families Act 1997 (Tas).
It would be futile to make an order that W live with either parent and this would likely cause further conflict between them. Sadly, there is no suitable or safer alternative than to continue the current unsatisfactory living arrangements for W. I hope that in time the support services that he is accepting of will persuade him to choose alternative living arrangements such as those proposed by Mr D. In the meantime, the Department of Education’s ongoing engagement will hopefully slowly steer W to a more stable and safer course in relation to his education and vocation as he leaves high school.
The orders sought by the mother and ICL about W are practical and protective of the children and will be made.
Noting the wishes of the younger children to spend time with W and he to spend time with them, providing sibling time can be facilitated in a supervised setting I find that it is in the children’s interests for sibling time to occur.[32] It is possible that the school staff, C Organisation worker or other supports available through Child Safety Services can provide the mechanism for supervision. Accordingly, there will be an order for supervised time between the siblings.
[32] Noting acceptance of Ms E’s evidence.
In circumstances where Child Safety Services have repeatedly declined to intervene or seek child protection orders, it is imperative that they continue to provide the maximum available referrals for W to ensure that services and positive role models have opportunity to steer him away from his current circumstances, which in my view present a relatively high risk of both emotional and physical harm.
Regrettably, the Court cannot do more to protect W than make the findings and remarks at [45] to [49] and [61] to [65] of these reasons.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 31 July 2024
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