Gorman and Gorman and Anor

[2017] FamCA 257

FAMILY COURT OF AUSTRALIA

GORMAN & GORMAN AND ANOR [2017] FamCA 257

FAMILY LAW – CHILDREN - Best interests - Application by a non-parent -Young child -Where the parents do not participate in the final hearing – Where the parents present an unacceptable risk to the child

Family Law Act 1975 (Cth)
APPLICANT:	Ms Gorman

1st RESPONDENT: Mr Gorman

2nd RESPONDENT: Ms Fuller

INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

FILE NUMBER: CAC 854 of 2016

DATE DELIVERED: 7 April 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 6 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Marsh, Robinson & McGuinness

SOLICITOR FOR THE 1ST RESPONDENT: No appearance

SOLICITOR FOR THE 2ND RESPONDENT: No appearance

Orders

1. Pursuant to s 65C of the Family Law Act 1975 (Cth) (the Act) the applicant is a person concerned with the care welfare or development of the child, B, born … 2014, (the child).

2. The applicant have sole parental responsibility for the child.

3. The child shall live with the applicant.

4. Pursuant to s 68B of the Act and for the personal protection of the child, Mr Gorman and Ms Fuller are prohibited from

   (a)Approaching within 100 metres of the child;

   (b)Approaching within 100 metres of D Street, Suburb E in the Australian Capital Territory.

IT IS NOTED THAT

1. If:

   (a)an injunction is in force under s 68B for the personal protection of a person (the protected person); and

   (b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:

   (i)causing, or threatening to cause, bodily harm to the protected person; or

   (ii)harassing, molesting or stalking that person;

   the police officer may arrest the respondent without warrant.

IT IS FURTHER ORDERED THAT

1. The father may communicate with the child as agreed in writing between the applicant and the father.

2. The mother may communicate with the child as agreed in writing between the applicant and the mother. 

IT IS NOTED THAT

1. There is at present in force a Domestic Violence Protection Order pursuant to the laws of the Australian Capital Territory for the protection of Ms Gorman and the child B and directed to Mr Gorman.  These Orders are not intended to supplant the operation of that Domestic Violence Protection Order.

IT IS FURTHER ORDERED THAT

1. The matter is otherwise removed from the pending cases list. 

2. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gorman & Gorman and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 854 of 2016

Ms Gorman

Applicant

And

Mr Gorman

First Respondent

And

Ms Fuller
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns the child B, born in 2014.  The child currently lives with his great aunt, the applicant (Ms Gorman), who is the aunt of the father.  He has lived with her since February 2016, as the child’s parents struggle with substance abuse, mental health and family violence issues.  The child has a half-sister,  F, who is also not living with her parents.  Both of the child’s parents have been in and out of gaol while these proceedings have been on foot.  There was no appearance by either the child’s mother or father at trial, although the mother had filed an affidavit in advance of the trial.  At the commencement of the trial I made orders allowing the trial to proceed in the absence of the parents.

2. The applicant and Independent Children’s Lawyer both sought an order for the child to live with the applicant.  The primary issue they each identified related to the risks to the child if he were to spend time with his parents.  The capacity of the applicant to care for and nurture the child was not controversial being well established by both her affidavit material and by the assessment made by the Family Consultant.

3. Given that the dominant and pivotal issue in the trial was the question of risk, it is appropriate to deal with this matter primarily.  The solicitor for the applicant helpfully laid out the relevant matters going to the risk to the child, with specific reference to evidence filed, tendered and exhibited in the course of the proceedings.  

Risk posed by the Mother

1. The issues of risk posed to the child by the mother were identified as follows:

   a)The risk posed by the mother’s drug use and the resulting neglect.  This issue was seen in the following aspects of the evidence:

   i)The mother’s admissions in exhibits A6 and A7 (her affidavits filed in the proceedings).

   ii)In particular the mother made admissions in exhibit A7 [80-82, 89]. Here the mother admitted using marijuana, including following the birth of the child on a daily basis.  More significantly, the mother used methamphetamines from about June 2015, graduating to daily use in September 2015 following the father withholding the child.  This use continued with intermittent breaks until February 2016 when the mother was incarcerated.

   iii)A specific example of the drug use and its impact upon the child is seen from August 2015, described in the applicant’s affidavit [23-27] and in the affidavit of Ms G Gorman, the paternal great grandmother, at [4-7].  In this incident the mother was apparently under the influence of drugs while driving a car with the child and his half-sister, F in the car.  The mother was described by Ms G Gorman as incoherent and appeared to be almost falling asleep.  The car was “very messy with food scraps, bedding, shopping bags and dirty clothing piled up to the level of the seats.”

   iv)The mother asserted in Exhibit A7 that following incarceration she did not use for a period of seven months, although she used again on 2 September 2016.  The affidavit was sworn on 30 September 2016.

   v)Subsequent to the swearing of Exhibit A7 there is material suggestive of the mother continuing to struggle with drug use.  Annexure O of the applicant’s affidavit, (page 99 [111]), contains a Facebook post on 8 October 2016 from the mother’s mother directed to the mother, describing circumstances that persuaded her that the mother was using and needed to return to a rehabilitation centre.

   vi)Similarly, Annexure R of the applicant’s affidavit, (page 107 ff [115]), are Facebook posts from 14 November 2016, indicating that the mother had relapsed into drug use.  Acknowledging that both this and the previous post referred to are reliant upon an impression gained by a third party, and by an ambiguous post by the mother, they each raise a risk of continuing substance abuse on the part of the mother following her swearing of Exhibit A7.

   vii)While reference was made to Exhibit A5, being material filed in proceedings in NSW in relation to the care of F, it was difficult to identify what portions referred to the mother and what the sources of the descriptions were.

   b)The risk of the child being exposed to family violence with the mother, in the context of her relationships with the father and her previous partner.  The relationships the mother has had with the father and with Mr H, the father of F, have been characterised by significant violence, primarily directed to the mother.  The concern raised focusses primarily upon the risk of exposure to violence occasioned by the intermittent nature of the relationship between the mother and each of these men.

   i)The applicant at Annexure K (p84-87), attaches Facebook entries where the mother and father are described at 4 August 2016 as being in a relationship.  While this is far from a definitive proof of the resumption of a relationship, nor even of the mother’s acceptance of such, it raises a risk that this is the case.

   ii)In Exhibit A7, the mother at paragraph [27] and following describes significant family violence on the part of the father toward her.  The incidents involve threats of harm to the mother, threats of self-harm and self-harm on the part of the father.  The threats of self-harm are coercive and controlling of the mother.   In one instance the father cut himself with a knife.   The applicant at [11] gives evidence of an admission made by the father that he stabbed himself in the context of a fight with the mother.

   iii)Exhibit A 7 [31-53], contains a description by the mother of an incident on 17 March 2015 wherein the father threatened to kill the mother and produced a knife to her.  This occurred in a public place and was in the context of the father demanding money for drugs.

   iv)In paragraph Exhibit A7 at [34], and supported in paragraph [20] of the applicant’s affidavit, is an incident on 18 March 2015 of the mother cutting the father with scissors, while the father threatened the mother with a knife.

   v)The applicant at Annexure L (page 88) attaches Facebook posts as at 20 September 2016 that show the mother posing with Mr H and, at pp 93-94, posting poetry directed toward Mr H and indicative of relationship.

   vi)Exhibit A7 at [48-50] the mother sets out significant violence within her relationship with Mr H.

   c)The risk of the mother physically harming the child.

   i)In Exhibit A8, a contact record for 20 April 2015 prepared by Family and Community Services, a report is received that the mother has caused a belt mark to the back of the child’s legs.  The material is not such as to allow any weight to be placed upon the report.

   d)A risk to the child posed by the mother’s mental health issues.

   i)There was also evidence given in regards to the mother’s mental health, in Exhibit A7 [103 – 111].  There the mother gives a history of mental health problems.  At the time of the swearing of the affidavit the mother describes the issues in a manner suggestive that they are treated and controlled.  Since then the ambiguous post made by the mother on Facebook and contained in the applicant’s affidavit at Annexure R Page 107 [115], raises an issue as to whether the mental health problems are being properly managed.  The evidence does not establish what the particular consequences might be for the mother’s capacity to care for the child from any mental health issues.

2. The Family Consultant in her report (Exhibit C1), noted at [62] that at the child’s age “he has particularly high needs for protection from harm, security, stability and continuity of care.  He is too young to protect himself or speak for himself.” That is, the child is vulnerable and reliant upon those around him for his care and protection.

3. Examined together, the evidence going to risk on the part of the mother as set out above, indicates that the child is at risk of harm if with his mother.  Without being able to determine the degree of inter relatedness of the various sources of risk, the mother’s vulnerability to drug addiction, especially when seen in the light of her failure to present evidence as to her current status or to participate in the proceedings, means that the child must be considered to be at significant risk if with the mother.  The evidence does not establish that the mother would intentionally cause harm to the child, but her incapacity to care for him means that he would be placed at unacceptable risk with his mother.  This conclusion  is reinforced when the risk of exposure to family violence is added.

4. The Family Report which provides a direct assessment of the relationship between the child and his mother noted at [66] that despite a lengthy separation “[The child] appeared to know [Ms Fuller] and/or feel comfortable with her”.  Although time between the child and his mother was recommended ([67-69]), it was in the context of the mother then progressing well with rehabilitation and with a need for supervision until her recovery “is well established.”  The context of the report is not the context of the hearing of the case.  There can be no reason for any confidence that the mother’s recovery is progressing.  Whatever benefits might have been available at that time do not appear to be currently available.

Risk posed by the Father

1. The issues of risk posed to the child by the father were identified as follows:

   a)Risk flowing from the father’s drug use and neglect of the child.

   b)Mental health issues

   c)The risk of direct physical abuse of the child.

   d)Paragraphs 9-95 of the applicant’s affidavit set out a recent history, in particular leading up to the child coming into the applicant’s care, of her dealings with the father.  Accepting the descriptions given, it is not necessary to determine whether the issues are with drug addiction, mental health or otherwise.  The descriptions exhibit the following:

   i)An inability to seek appropriate medical care for the child as a new born;

   ii)Threats of violence toward, and a high level of abuse and aggression toward the applicant;

   iii)The use of methamphetamine;

   iv)Physical abuse of the child;

   v)An inability to prioritise the child over his immediate desire for cigarettes;

   vi)Demands for the applicant to bring the child to him or he will stab himself;

   vii)A belief that his family is conspiring against him;

   viii)Leaving the child in the yard with  a dog as an 18 month old;

   ix)Strange thoughts regarding his deceased mother, asking where she is and asserting that the applicant and family should be afraid;

   x)Demanding that the applicant take the child because the father could not cope with him, followed by threats to take the child whether the applicant liked it or not;

   xi)Verbal abuse of the child; and

   xii)Threats of self harm

   e)Additionally, the matters recited in relation to the mother and the risk of exposure to family violence apply more forcefully in relation to the father.  While the mother is at risk of being the subject of violence, and of the child being exposed to that, the child is at risk of being exposed to the father engaging in family violence.

2. It is not necessary to identify whether the behaviour set out above flows from issues of drug addiction, mental health or otherwise.  The irresistible conclusion is that the father is incapable of caring for the child and poses a risk to the child’s safety and well-being if the child is exposed to him.

3. As the father did not participate in the assessment process for the Family Report, there is no evidence as to the nature of his relationship with the child other than what might be inferred from the above.

4. The matters outlined above do not lead to the conclusion that the child will derive benefit from relationship with his father.

The applicant

1. When the parents were demonstrably unable to care for the child, the applicant brought the child into her family and has cared for him.  The applicant has sought orders in this Court that will provide some certainty for the child’s care arrangements..

2. The Family Consultant observed that when the child was directed to take something to his mother, it was the applicant he sought out rather than his mother who was in the room with him.  At [61] she described the child as being “a fully integrated member of this (the applicant’s) family”.  He treats the applicant’s sons as his brothers and he “is very attached to (the applicant) and he is obviously progressing very well in her care.”

3. The applicant recognises that the child has Aboriginal heritage from his mother.  Likewise, the applicant’s daughter has Aboriginal heritage that she supports and promotes for her daughter.  She is committed to giving the child exposure to his indigenous culture.

4. The applicant has obtained a Domestic Violence Order against the father that is not due to expire until 5 June 2018.

5. At the end of the trial, the applicant sought orders that would provide a way to recommence a relationship between the child and his parents, without leaving her vulnerable to pressure from them.  She sought orders that, in the event that the mother and father were able to show themselves to be drug free, that she would have the option of allowing them to have professionally supervised time with the child.

6. The Independent Children’s Lawyer sought orders to prevent the parents from coming into contact with the child.  This, she said, would mean that the parents would be required to commence proceedings in order to spend time with the child.  This would allow a proper assessment of their capacity to care for, and any risk they might pose to the child.  In particular this would allow some assessment of each of their recovery from drug use.

Discussion

1. The primary matters for consideration pursuant to s 60CC in this case involve an assessment of the benefit that the child may receive from relationship with his parents, the need to protect the child from abuse, neglect and exposure to family violence, the capacity of those around the child, in the context of their particular relationships with the child, to nurture and emotionally and physically care for him.

2. The child is a vulnerable little boy.  He requires protection from others as he cannot protect himself.  He requires stability and ongoing care. 

3. Neither parent is in a position to exercise parental responsibility for the child.

4. Neither parent has the capacity to care for the child.

5. As things currently stand, each parent presents as an unacceptable risk of harm to the child.  At present the child cannot derive a benefit from relationship with either.  This may change in the future.

6. Fortunately the child has the benefit of the care of the applicant and her family. She has taken on the responsibility for the child and he is progressing very well in her care.  In this role it is in the child’s interests that she be the person to exercise parental responsibility.

7. It is in the child’s interests that he be kept safe from harm and nurtured.  The applicant is well placed to do this and he should continue to live with her. 

8. That arrangement is not one that ought to be interfered with other than on future consideration by the Court.  The parents, who have not been involved in the trial of this matter, should be left in no doubt that they cannot interfere with this position.  It is appropriate to support the arrangements with orders preventing such interference.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered 7 April 2017

Associate: 

Date:  28 April 2017