Hay and Kelleher and Anor
[2017] FCCA 831
•3 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAY & KELLEHER & ANOR | [2017] FCCA 831 |
| Catchwords: FAMILY LAW – Procedure – initiating application struck out. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 61C, 60CG, 61DA, 65DAA, 91B Federal Circuit Court Rules2001, r.13.03C |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS HAY |
| First Respondent: | MR KELLEHER |
| Second Respondent: | MR LINCOLN |
| File Number: | DUC 212 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 14 March 2017 |
| Date of Last Submission: | 14 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Appearing for the Applicant: | No appearance |
| Appearing for the First Respondent: | Ms Cartwright |
| Solicitors for the First Respondent: | Matthews Williams Solicitors |
| Counsel for the Second Respondent: Solicitors for the Second Respondent: Appearing for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer: | Ms Mahony Campbell Paton Taylor Ms Norris Legal Aid New South Wales |
ORDERS
Pursuant to Section 67Q of the Family Law Act 1975:
TO: The Marshal of the Federal Circuit Court of Australia
All Officers of the Australian Federal Police
All Officers of the State and Territory Police Forces of Australia
You are authorised and directed with such assistance as you require, and if necessary by force, to find and recover the children W( male) born (omitted) 2007 and X (female) born (omitted) 2011and Y (male) born (omitted) 2014 and Z (female) born (omitted) 2013.
You are required to deliver the said child to the Second Respondent at a place nominated by the Officer who recovers the child pursuant to this Order.
The Marshal, all Officers of the Australian Federal Police and all Officers of the State and Territory Police Forces of Australia be permitted to provide to the Second Respondent any address provided under a location order if necessary to enable the Second Respondent to collect the children.
The Second Respondent is to pay any associated travel costs of the children’s return.
For the purposes of finding and recovering the said child you are authorised and directed, with such assistance as you require, and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the said children may be found.
If Ms Hay removes the said children from the Second Respondent pursuant to orders made herein on 14 MARCH 2017 she may be arrested without a warrant.
This Order remains in force for a period of twelve months.
By consent orders are made in accordance with the document titled “Terms of Settlement” signed by the parties, initialled and dated by the Court today, placed on the Court file as attached hereto.
The Initiating Application filed on 25 February 2016 at Parkes Local Court is dismissed.
List the matter for Directions on the 7 June 2017 at 11.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Hay & Kelleher & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DUBBO |
DUC 212 of 2016
| MS HAY |
Applicant
And
| MR KELLEHER |
First Respondent
| MR LINCOLN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 14 March 2017 the Court made Orders in relation to the four highly vulnerable children the subject of these proceedings. These are the Reasons for Judgment in relation to those Orders.
The mother was the Applicant in these proceedings. She is and remains a drug user. At the Interim Hearing on 14 March 2017, the mother was not present nor was she legally represented. Subsequently, her Initiating Application[1] was dismissed and Orders were made in her absence.
[1] Filed at Parkes Local Court on 25 February 2016
Only two of the children have the same father, those two children being the youngest of the sibling group. Their names are Y and Z, and they were born on (omitted) 2014 and (omitted) 2013 respectively. Their father is the First Respondent in these proceedings. He too was absent at the Interim Hearing, although his lawyer was present. The mother and the First Respondent were in a relationship for a number of years and such relationship was alleged to involve significant family violence.
The Second Respondent is the father of the second eldest child, X who was born on (omitted) 2011. The Second Respondent has to a large extent been absent from X’s life. At the Interim Hearing, he was present with his current wife, his lawyer and Counsel.
The whereabouts of the father of the oldest child, W, born on (omitted) 2007, are not known and he has not participated in the proceedings.
On 1 March 2017, pursuant to section 91B of Family Law Act 1975, an Order was made requesting that the Department of Family and Community Services intervene in the proceedings. As at the date of the Interim Hearing the Department had not intervened.
Applicable Law
The central enquiry for the Court is to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[2]
[2] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court must give greater weight to the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children of having a meaningful relationship with both parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[3] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[4]
[3] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[4] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[5] The Court may include[6] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[5] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[6] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[7]
[7] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[8]
[8] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[9] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[9] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[10]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[10] [2016] FamCAFC 156 at [9]
Competing Proposals
The parties, who were present at the interim hearing, handed up to the Court a proposed Minute of Consent Order, in accordance with which Orders were ultimately made.
Issues in Dispute
Relevant issues could be summarised as follows:
a)With whom the children should live;
b)Whether the mother posed an unacceptable risk of harm to the children;
c)Whether the First Respondent posed an unacceptable risk of harm to the children; and
d)Whether the children should be separated.
Dismissal of Mother’s Initiating Application
As indicated, at the Interim Hearing on 14 March 2017, the mother’s Initiating Application filed 25 February 2016 was dismissed.
On 31 October 2016, the matter had initially been given an Interim Hearing date of 1 March 2017. On that day the mother was legally represented. A Notice of Withdrawal as Lawyer was filed by the Aboriginal Legal Services who had represented the mother on 7 December 2016.
The mother did not appear before the Court on 1 March 2017 when the matter was listed before Judge Dunkley for the Interim Hearing. On that day, on the application of the Independent Children’s Lawyer, the Interim Hearing was adjourned to 14 March 2017.
The mother did not appear before the Court on 14 March 2017 when the matter was listed for Interim Hearing.
Rule 13.03C of the Federal Circuit Court Rules 2001 gives the Court the power to dismiss an application if the Applicant is absent from a hearing. The Court in dismissing the mother’s Initiating Application exercised its discretion pursuant to this Rule.
In coming to this view, the Court took into consideration the mother’s failure to appear at the Interim Hearing on 1 March 2017 and 14 March 2017, and that except for a fairly short Affidavit filed with her Initiating Application at Parkes Local Court which was sworn on 25 February 2016, the mother had not filed any further evidence.
Furthermore, the Court also considered the material which was tendered on behalf of the Independent Children’s Lawyer referred to elsewhere in these proceedings in coming to a view about exercising its discretion pursuant to Rule 13.03C.
Uncontested Evidence
The First Respondent was born on (omitted) 2017.
The mother was born on (omitted) 1986.
The Second Respondent was born on (omitted) 1988.
The mother’s first child. W was born on (omitted) 2007. At the time of the Interim Hearing he was 10 years old. W’s father is Mr G. He has not participated in the proceedings nor has he been served.
In around September 2010, the mother and the Second Respondent commenced a relationship, which lasted until about December 2010. Their only child, X was born on (omitted) 2011.
In about March 2012, the mother commenced a relationship with the First Respondent. Out of that relationship were born two children, Z born on (omitted) 2013 and Y born on (omitted) 2014.
Other Relevant Evidence
On 6 July 2015 a Final Apprehended Domestic Violence Order was made for a period of 24 months, which named the mother and the children as the protected persons and the First Respondent as the Defendant.
On 5 October 2015 the First Respondent breached the Final Apprehended Domestic Violence Order, by throwing a frying pan at the mother. He was charged as a result of that incident and convicted of common assault and contravening an Apprehended Domestic Violence Order. The First Respondent was placed on a good behaviour bond.
The following are just some extracts from Exhibit 2:
a)FaCS File Note Record for 15 September 2016:
The children have no beds and they sleep on filthy torn mattresses which are on the floor in the loungeroom. The carpet in the loungeroom is very dirty and smelly. The whole house is filthy … and smelly. Cockroaches line the walls drop on you head. There is some furniture in the home but it cannot be seen as easy as it is pilled (sic) with clothes and other items. The 3 bedrooms in the home are not fit to be slept in due to the bags and furniture in the doorways of the rooms…
b)FaCS File Note Record for 4 November 2016
Minimal food in the home for the weekend. Ms Hay asked for a food voucher…Mr Kelleher offered to go grocery shopping and provide food for the weekend.
c)FaCS Meeting Record for 15 November 2016
Risk statements
-Mothers (sic) drug use is impacting her ability to care for the children basics (sic) needs being meth (sic)
-Mother not attending AOD counselling has not followed through with rehabilitation
-Domestic violence by Mr Kelleher towards Ms Hay
-Mothers (sic) ability to meet the children’s development (sic) needs. X in nappies and does not have very good verbal communication skills (almost non verbal)
-Mothers (sic) dependence on services to provide for basic needs for food and clothes
-Worried about exposure to drug use and paraphernalia
-Worried about children being harmed by someone under the influence visiting the home
Strengths/protective factors
… Mother acknowledges drug use and decline into addiction
…
Group discussion:
Father has disclosed and will admit that he flogs Ms Hay if she isn’t doing what she should be doing, ie, cleaning the house. He is not allowed to reside in the home but is allowed to visit the home.
d)FaCS File Note Record for 15 November 2016
Home visit …15/11/16… 4.00pm
… missed FACS appointment to organise rehab 14/11/16…
I explained to Ms Hay that FaCS had offered a lot of help over the last 12 months and brought the conversation back to the help in the last week and a half. How I had organised drug counselling at Ms Hay’s request, provided taxi vouchers to attend appointment, offered to help with contacting rehab centre, provided food vouchers and clothing vouchers for the children…
e)FaCS File Note Record for 24 January 2017
Ms Hay ran over what has been happening to her and the children over the past week. Ms Hay is currently residing with her mother Ms L but said that she and her mum are “good one day fighting the next” and that she never knows when she might be out on the street…
Ms Hay said that she wants the kids to stay with her mum, to go to school and day care. I spoke to Ms Hay about the fact that we can’t do supported care anymore. Ms L came to the phone. Ms L said that Ms Hay has spiralled out of control and that this is getting to be critical. Ms L said that once she leaves here they are homeless and Ms L said on a number of occasions that she is worried that Ms Hay will just pick up the children and walk out with them. Ms L said that she is worried that that we are going to get the report from the refuge and removed the children and that she is trying to come up with an alternative options for the children. Ms L said that she is willing to have all four children but she can’t do that under a supported care arrangement. Ms L said that she is happy to take on W and X as they were at school but only could have the other children if they were at day care. Ms Hay came on the phone on speaker and stated she can’t keep doing this that she needs to get better. I asked if Ms Hay was relinquishing care and Ms Hay said ‘yeah’. Ms Hay said numerous times that she wants the children to stay with her mum and that until the children are safe she can’t go to rehab. Ms Hay said that all my family can see that I’m struggling and when I struggle go back to what I do best using drugs.
… Ms L indicated that she believed that Ms Hay had been using drugs whilst at the refuge and that she has hit a crisis point…
f)FaCS Contact Record for 27 January 2017
[the mother] … states that she has now been asked to leave two refuges due to breaching the rules. She has nowhere to stay with the children, and wants to organise a temporary care arrangement until she is able to secure stable accommodation for her family…
[the mother] … reports she has no money on her at the moment… She doesn’t have sufficient money for food and not many clothes for the children
g)FaCS File Note Record for 13 February 2017
Ms Hay presented to the office with the children after collecting them from school
Ms Hay are required accommodation for the evening/has no money to pay for accommodation
…
Ms Hay’s emotional mood changed during her time in the office. Angry outburst impacted on the children’s behaviour with them miss behaving (sic). Ms Hay yelled at the children repeatedly, pulled X by the arm to control her behaviour. W presented as quiet not speaking and sat on the mound attempting to complete his homework. Ms Hay yelled at W 4 or 5 times for not preventing younger siblings from miss behaving (sic). Children were taken into the play room and supervised Ms Hay had to make housing phone calls and contact her father Mr Hay. Ms Hay returned to the room and was upset “stating housing were being difficult.” Ms Hay left room without paying attention to the children. X attempted to follow and threw herself on the ground when Ms Hay yelled at her to go back into the room. Ms Hay then grabbed X’s by the arm and pulled her forcefully with her. Y threw herself of (sic) the floor in the play room yelling for her mother who yelled at her to stay in the room. I gathered Y in my arms sat on the play room floor rocking her and stroking her back until she settled. Ms Hay returned to the room and requested to use the phone to call her father, Ms Hay talk W with her. I left Y and Z in the play room and let Ms Hay and W into the interviewing room to make the phone call X handed W the phone number to make the call. I left Ms Hay and the children and went in to discuss the outcomes with (omitted) which was not provided due to insufficient paperwork. During consultation with (omitted) Housing X was discovered missing and was later found at ALDI supermarket.
MCW approved expenses associated with housing family at the Caravan Park on the (omitted)
On the 14 March 2017 an email was received by the Independent Children’s Lawyer from Mr N, a solicitor for FaCS. That email confirmed that a drug urine analysis for the mother for 8 February 2017 returned a positive result for amphetamines.
Primary Considerations
The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations.
Unacceptable Risk of Harm
In circumstances where:
a)The First Respondent has been convicted of common assault and breach of Apprehended Violence Order as against the mother;
b)The First Respondent has knowingly left the children (including his own children) in the mother’s care in conditions which can only be described as abhorrent;
c)The First Respondent’s visa status is problematic and he only appears to have a bridging visa the details of which are not before the Court; and
d)The First Respondent did not attend Court on 14 March 2017 as he did not have sufficient funds to pay for petrol to drive from his place of residence in (omitted) to Dubbo for the hearing.
The Court has no confidence that the First Respondent has the capacity to meet the children’s needs, including basic physical needs.
In circumstances where the Department has to date not intervened in the proceedings, and where these children were at the date of the last contact with the Department homeless, the Court has no confidence that any order which leaves the children in the mother’s care will result in anything less than an immediate and unacceptable risk of harm to the children, not only from physical neglect and abuse but also emotional abuse.
In circumstances where the mother had failed to attend the Interim Hearing on 1 March 2017 and 14 March 2017 (and particularly where the Departmental records indicate that she was strongly encouraged to participate) and in light of all of the other evidence, the Court has no confidence that the children’s immediate best interests will be satisfied by any order which does not remove the children from the mother’s care (at least in the short term).
As Her Honour Justice Ryan stated:[11]
… Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.[12]
[11] Roberts & Banks [2011] FamCA 662 a
[12] Referring to Johnson & Page (2007) FamCA 1235
The issue is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[13] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[14]
[13] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]
[14] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]
The Court finds that the risk of both physical neglect and physical and emotional abuse to all four children if they were left to live with their mother, at least in the intermediate period, is unacceptable. The mother has not been able to provide for their basic needs, she has not been able to ensure that they have adequate shelter or food and she has not been able to remain drug free or attend drug rehabilitation.
Section 60CC Factors
The secondary considerations, to a large extent, fall by the wayside given the immediate and unacceptable risk of harm to the children if they were to be left in the mother’s care. True that the children will be separated from their mother who has been their primary carer, and true that they will be placed with an almost stranger, and a person with whom only one of the children has any biological relationship, the Court has nonetheless taken the view that this drastic step is the only way to protect these vulnerable children.
The Orders also ensure that the children, while separated from their mother, will remain an intact sibling group. The Orders also provide for assistance to be provided to the children and the Second Respondent, in helping them deal with what will no doubt be a very difficult period.
An Order directing the police to remove the children from the mother’s care is in all of the circumstances an Order that is in the children’s best interest given the unacceptable risk of harm which the Court has assessed exists at present.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[15] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.
[15] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[16] The presumption applies only to parents. The second respondent is not a parent of all of the children, but only one of them.
[16] s61DA(3)
The Court is mindful of what the Full Court said in Salah & Salah[17] in respect of applying a cautious approach in the context of disputed allegations of family violence, the rebuttal of the presumption of equal shared parental responsibility contained in s61DA(3) and having regard to the Court’s obligations under s60CG.
[17] [2016] FamCAFC 100
In light of the Orders which are being made as a result of the application by all of the parties presently before the Court, the Court considers that an order for the Second Respondent to have sole parental responsibility is appropriate given that all four children will be living with him as a result of these Orders.
The Court applauds the Second Respondent for stepping up and taking responsibility for not only his child, but his child’s siblings who are in a desperate situation with their mother unable to look after their basic needs[18].
[18] and where the first respondent has shown some insight into his own lack of capacity to meet the children’s basic needs
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 3 May 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Jurisdiction
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Procedural Fairness
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