Hennessy and Cameron
[2010] FamCA 770
•3 September 2010
FAMILY COURT OF AUSTRALIA
| HENNESSY & CAMERON | [2010] FamCA 770 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom children live – Children currently in foster care – Mother failed to participate at the final hearing – Intervenor and Independent Children’s Lawyer propose that sole parental responsibility in respect of both children be allocated to the Minister for Community Services for New South Wales – Father consented to the allocation of sole parental responsibility to the Minister for one of the children and proposes that sole parental responsibility for the other child be allocated to him and that the child live with him – Family Violence – Unacceptable risk of physical and psychological harm to the children – Sole parental responsibility for the children allocated to the Minister – With whom the children live, spend time and communicate with to be at the discretion of the Minister |
| Births, Deaths, and Marriages Registration Act 1995 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Family Law Act 1975 (Cth) Mental Health Act 2007 (NSW) |
| B & G & Minister for Health Family & Children’s Services NT [1998] FamCA 1945 Faulkner & McPherson v Rugendyke; Dept of Community Services (Intervenor) (1995) 19 Fam LR 507 McCall v Clark (2009) 41 Fam LR 483 |
| APPLICANT: | Ms Hennessy |
| RESPONDENT: | Mr Cameron |
| INTERVENOR: | Director-General of the New South Wales Department of Human Services |
| INDEPENDENT CHILDREN’S LAWYER: | Sharon Moore Solicitor |
| FILE NUMBER: | NCC | 904 | of | 2009 |
| DATE DELIVERED: | 3 September 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 24 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
| COUNSEL FOR THE INTERVENOR: | Not Applicable |
| SOLICITOR FOR THE INTERVENOR: | Mr Guterres |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Moore, Sharon Moore Solicitor |
Orders
All former parenting orders are discharged in respect of the children B, born … April 1994, and M, born … April 2003 (“the children”).
The Minister for Community Services for New South Wales shall have sole parental responsibility for the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hennessy & Cameron is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: NCC 904 of 2009
| MS HENNESSY |
Applicant
And
| MR CAMERON |
Respondent
And
| DIRECTOR-GENERAL, NEW SOUTH WALES DEPARTMENT OF HUMAN SERVICES |
Intervenor
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
These proceedings concern the proper parenting orders that should be made in respect of two of three children born to the relationship between the applicant mother and respondent father.
The two children in question are sons B, born in April 1994, and M, born in April 2003 (“the children”).
The parties had a sporadic relationship which began in 1993 and finally ended in 2007. Litigation in respect of the children has spanned periods both before and after their final separation.
The personal circumstances of the parties were so chaotic that the Director-General of the New South Wales Department of Human Services (“the Intervenor”) intervened in the proceedings seeking orders that parental responsibility for the children be allocated solely to the Minister for Community Services. That proposal was supported in entirety by the Independent Children’s Lawyer. The father acceded to that application in respect of only the eldest child, and sought that he have sole parental responsibility for the youngest child who would live with him. The mother did not appear at Court to contest the case.
Absence of the mother
When the matter came on for trial before the Court on Tuesday, 24 August 2010, there was no appearance by or on behalf of the mother.
The current proceedings were commenced by the mother filing an Initiating Application on 15 April 2009, at which time she was legally represented.
The trial date was fixed when procedural orders were made by the Court on 22 February 2010. At that time the mother was represented by counsel. There can be no dispute that the mother was then aware of the date that the matter was fixed for trial and also the steps that she needed to take to ensure that her case was ready to present at trial.
On 7 May 2010 the mother’s former solicitors filed a Notice of Ceasing to Act. The Court has heard nothing further from the mother, or any representative on her behalf, since that time.
The mother did not file any Amended Application by 12 March 2010, nor did she file her affidavit evidence by 28 May 2010, as she was permitted and obliged to do by orders of the Court made on 22 February 2010.[1]
[1] Orders 3 and 5
The evidence adduced at trial by the Intervenor disclosed that the two children ceased living with the mother in early March 2010 when the mother was compulsorily hospitalised under the provisions of the Mental Health Act 2007 (NSW).[2] The mother was subsequently admitted for psychiatric assessment or treatment on several occasions, but was last released on 14 April 2010.[3]
[2] Affidavit of Ms J filed 7 June 2010, pars 29-34
[3] Affidavit of Ms J, filed 7 June 2010, pars 31, 48
I am satisfied on the available evidence that the non-appearance by the mother at the trial was due to her unwillingness or inability to deal with the litigation. The parenting arrangements for the children have been in a state of flux for quite some time and deserve resolution. In the circumstances, I was satisfied that it was appropriate for the trial to proceed in the mother’s absence. That was the desire of the other parties and the Independent Children’s Lawyer.
Proposal of the father
The father was self-represented at the trial. Initially, he informed the Court that he pressed for the parenting orders set out within his Response filed on 28 May 2009, but shortly thereafter resiled from that position.
After some short discussion with the Intervenor and Independent Children’s Lawyer, the father informed the Court that he consented to the allocation of sole parental responsibility in respect of the eldest child to the Minister, as proposed by the Intervenor and Independent Children’s Lawyer. However, in respect of the youngest child, the father sought orders to the effect that parental responsibility for that child be allocated solely to him and that that child live with him.
In breach of the procedural orders made by the Court on 22 February 2010,[4] the father failed to file any affidavit evidence at all in support of his position. Apart from a Parenting Questionnaire filed on 6 November 2009, the only affidavit evidence filed in the proceedings by the father was an affidavit he filed on 28 May 2009 simultaneously with the filing of his Response.
[4] Orders 5 and 7
Leave was not sought by the father to rely upon his affidavit filed on 28 May 2009, but such leave would not likely have been granted in any event due to the antiquity of the evidence contained within that document and the multitudinous changes in circumstances for the parties and children that have occurred since that time.
The father declined the opportunity to tender any relevant documents in support of his case.
Accordingly, no evidence was adduced in the case by the father at all, and he was not cross examined. His proposal rested entirely upon the evidence of the single expert witness and the evidence adduced by the Intervenor.
Proposal and evidence of the Intervenor
The Court made an order on 1 June 2009 inviting the Intervenor to intervene in these proceedings, which invitation was accepted by the filing of a Notice of Intervention on 29 October 2009.
Pursuant to procedural orders made on 22 February 2010 [5] and 21 June 2010, [6] the Intervenor filed a Response on 30 June 2010.
[5] Order 4
[6] Order 15
The proposal of the Intervenor in respect of both children was that parental responsibility for each of them should be allocated solely to the Minister until they each attained the age of 18 years. It was intended by the Intervenor that no other parenting orders be made in respect of the children, such that all decisions relating to the children were subsumed in the allocation of sole parental responsibility, including decisions about where and with whom the children lived, and when and how they interacted with their parents.
In support of that proposal the Intervenor relied upon:
a)The affidavit of Ms J filed on 7 June 2010;
b)The affidavit of Ms J filed on 30 July 2010;
c)The affidavit of the single expert witness, Ms T, psychologist, filed on 30 October 2009.
Neither Ms J nor the single expert was required for cross examination.
Proposal of the independent children’s lawyer
The Independent Children’s Lawyer adopted an identical position to the Intervenor and supported the orders sought by the Intervenor in all respects.
Unsurprisingly, the Independent Children’s Lawyer relied upon the same evidence relied upon by the Intervenor.
Background facts
The mother was born in 1966,[7] and is now 44 years of age.
[7] Single Expert Report, page 2
The father was born in 1962,[8] and is now 48 years of age.
[8] Single Expert Report, page 2
The parties began their relationship in 1993 and finally ended their relationship in 2007.[9] Their cohabitation was sporadic. The father alleges that the parties did not ever cohabit for a period exceeding one month,[10] whereas the mother reported that the longest period that the parties ever resided together was five months.[11]
[9] Single Expert Report, page 5
[10] Single Expert Report, page 5
[11] Single Expert Report, page 24
At the time the parties commenced their relationship, the mother already had five children to two fathers.[12] With one inconsequential exception, none of those five children have ever lived with the mother since young ages, and they were not members of her household at the time of her relationship with the father.[13] Those five children are all now adults and apparently none of them have any contact with the mother.[14]
[12] Single Expert Report, page 2
[13] Single Expert Report, pages 2, 31-32
[14] Single Expert Report, pages 2, 30-33
Three children were born to the relationship between the mother and father. Apart from the two children who are the subject of the current proceedings, the third child born to the parties’ relationship was H. She was born in March 2005 and is now aged five years.[15] That child was removed from the parties’ care by the Intervenor in 2005 when the child was aged only four months.[16] Care orders in respect of that child were made by the Children’s Court of New South Wales on 24 March 2006, vesting parental responsibility for her in the Minister. That child has since lived with Ms A, the mother’s cousin.[17] Consequently, that child is not the subject of these proceedings. The Court has no power in respect of her (s 67ZK of the Family Law Act 1975 (Cth) (“the Act”)).
[15] Single Expert Report, page 2; Affidavit of Ms J filed 7 June 2010, par 13
[16] Single Expert Report, pages 2, 30
[17] Affidavit of Ms J filed 7 June 2010, par 13
During past periods of interruption to the relationship between the parties, final parenting orders have been made between the parties in respect of one or both of the children who are the subject of these proceedings.
On 16 February 1999, the Family Court of Australia made orders in respect of the eldest child in the following terms:
1.That the Mother and the Father have joint responsibility for making decisions about the long term care, welfare and development of [B] born […] April 1994 (“the child”).
4.That the child of the relationship, live with the Mother at all times other than those periods specified herein.
5.That the child live with the Father at such times as may be agreed between the Mother and the Father and in default of such agreement as defined as follows:-
(a) During school term, from 5:00pm (or such other time as agreed between the parties) Friday (or where any such Friday is a public holiday, such period is to commence at 5:00 pm or such other time as agreed between the parties on the Thursday immediately preceding the public holiday Friday) to the commencement of school Monday (or where the Monday immediately following any such Sunday is a public holiday, such period is to conclude at the commencement of school on Tuesday after the public holiday Monday) each alternate weekend, and on any weekend in which Father’s Day falls, the first such weekend to commence at 5:00pm (or such other time as agreed between the parties) on the Friday immediately following the date of these Orders;
(b)During school term from 10:00am Sunday to the commencement of school on the immediately following Monday (or where the Monday immediately following any such Sunday is a public holiday, such period is to conclude at the commencement of school on the Tuesday after the public holiday Monday) each alternate weekend, the first such weekend to commence at 10:00am Sunday on the second Sunday immediately following the date of these Orders;
(c)From 4pm 24 December to 1pm Christmas Day each alternate year, the first such period to commence at 4pm 24 December 1999;
(d) From 1pm Christmas Day to 6pm 26 December each alternate year, the first such period to commence at 1pm Christmas Day 2000;
(e)One half of each school holiday period as agreed between the parties and failing such agreement the first half of each such period, the first such period to commence at the conclusion of school on the final day of the school term;
(f)That the residence periods provided for in subparagraphs 5(a), 5(b), 5(c), 5(d) and 5(e) be suspended during each of the following periods during which the child will live with the Mother;
(i)From 1pm Christmas Day to 6pm 26 December each alternate year, the first such period to commence at 1pm Christmas Day 1999;
(ii)From 4pm 24 December to 1pm Christmas Day each alternate year, the first such period to commence at 4pm 24 December 2000;
(iii)From the conclusion of school Friday to the commencement of school on the immediately following Monday on any weekend that Mother’s Day falls;
(iv)For one half of each school holiday period as agreed between the parties and failing such agreement the second half, to commence at 10am on the day being the day mid-way through such holiday.
8. That the parties do all acts and things and sign all documents necessary to enable the Birth Certificate of [the child] (born […] April 1994) to be changed to [B Cameron], and take all necessary steps to ensure that the child from the date of these Orders uses the surname “[Cameron]” and no other surname.
More orders, relating to both children, were made by the Family Court of Australia many years later on 10 July 2006.[18] Those orders provided, in part, as follows:
1.That [B] born […] April 1994 and [M] born […] April 2003 live with the father.
2.The children spend time with the mother as agreed between the parties.
3.Failing agreement, the mother to spend time with the children for a period of at least four hours once per calendar month when residing in Newcastle.
4.The mother to spend time with the children at the father’s residence or at a location otherwise agreed.
5.The mother to communicate with the children by telephone on Tuesdays between 7:00 pm and 7:30 pm, with the father to supply the mother within 21 days an operable telephone number.
[18] Affidavit of Ms J filed 7 June 2010, par 16
In the absence of evidence from the parties, it is unknown whether, or for how long, the parties diligently complied with those previous orders. The histories provided by the parties to the single expert witness are very confused.[19]
[19] Single Expert Report, pages 5, 6, 25, 26 and 27.
The current proceedings were commenced by the mother filing an Initiating Application on 15 April 2009.[20] The father filed his Response on 28 May 2009.[21]
[20] Affidavit of Ms J filed 7 June 2010, par 17
[21] Affidavit of Ms J filed 7 June 2010, par 18
The available evidence suggests that, as at April 2009, the eldest child was living with the father but the youngest child was living with the mother.[22]
[22] Affidavit of Ms J filed 7 June 2010, par 18
The parties each sought interim parenting orders and their respective applications came before the Federal Magistrates Court on 1 June 2009, at which time orders were made as follows:
4.The child [M] born […] April 2003 spend time with the father:
a.From 3 June 2009, at the conclusion of school on Wednesday to the commencement of school on Thursday and each week thereafter; and
b.From 5 June 2009, at the conclusion of school each alternate Friday to the commencement of school on Monday, except in such cases where Monday is a public holiday the time will be extended to the commencement of school on Tuesday.
5.The child [B] born […] April (sic) spend time with both parents according to the wishes of the child.
Simultaneously, the Federal Magistrates Court made orders appointing an Independent Children’s Lawyer for the children, inviting the Intervenor to intervene in the proceedings, and transferring the proceedings to this Court.
Following transfer of the proceedings to this Court, an order was made appointing Ms S, psychologist, as the single expert witness in the proceedings. The single expert conferred with the parties and the children in mid October 2009 and then compiled her report and filed her affidavit with the Court on 30 October 2009.
As already mentioned, the Intervenor intervened in the proceedings only the day before on 29 October 2009.
The affidavit of the single expert witness was released to the parties and the Independent Children’s Lawyer on 3 November 2009.
The proceedings came back before the Court on 6 November 2009 at which time orders were made by consent requiring the parties to submit to the supervision of the Intervenor in respect of their care of the children. The Intervenor was also authorised to arrange medical assessments and treatment for both children.
The eldest child returned to live with the mother and youngest child on 15 November 2009.[23] Thereafter he refused to see or communicate with the father, although the youngest child regularly spent some time with the father.[24]
[23] Affidavit of Ms J filed 7 June 2010, par 24
[24] Affidavit of Ms J filed 7 June 2010, par 27
The medical assessments of the children were incomplete when the matter came back before the Court on 18 December 2009, and so the proceedings were further adjourned.
On 22 February 2010 procedural orders were made to bring the matter on for trial before the Court on 24 August 2010.
On 8 March 2010, the youngest child began living with the father in lieu of the mother.[25] That was apparently because of the deterioration in the mother’s mental health. The mother was hospitalised on 9 March 2010 pursuant to the provisions of the Mental Health Act 2007 (NSW).[26]
[25] Affidavit of Ms J filed 7 June 2010, par 33
[26] Affidavit of Ms J filed 7 June 2010, pars 29-33
The eldest child refused to live with the father and so arrangements were made by the Intervenor for him to stay with Ms A and his sister on 10 March 2010.[27] The eldest child has lived with Ms A ever since.
[27] Affidavit of Ms J filed 7 June 2010, par 32
Within about a month, in about mid April 2010, the father disappeared with the youngest child without providing a forwarding address to any party. The father’s decampment with the youngest child coincided with his eviction from the accommodation he rented from Housing New South Wales.[28]
[28] Affidavit of Ms J filed 7 June 2010, par 39
Subsequent inquiries by the Intervenor failed to reveal the whereabouts of the father and youngest child.[29]
[29] Affidavit of Ms J filed 7 June 2010, pars 40-45, 51-54
In view of the Intervenor’s inability to locate the father and youngest child, an Application in a Case was filed by the Intervenor on 7 June 2010 seeking a variety of orders, including location and recovery orders. That Application was considered by the Court on 21 June 2010, at which time location and recovery orders were made on an ex parte basis. In addition, on an interim basis, all former parenting orders relating to the children were discharged and parental responsibility for both children was allocated to the Minister.
The location order made on 21 June 2010 resulted in the location of the father and the youngest child in far north Queensland, and the recovery order was then executed on 19 July 2010.[30] Upon his recovery, the youngest child was conveyed to and placed into the care of Ms A, along with his brother and sister. The youngest child has remained in that placement since that time.
[30] Affidavit of Ms J filed 30 July 2010, pars 27-30
Ms A has expressed her willingness to the Intervenor to continue caring for the two children, in addition to their younger sister, until they maintain their majority.[31] The Intervenor proposes that, with the allocation of parental responsibility for both children to the Minister, both children will remain residing with Ms A on a long term basis.[32]
[31] Affidavit of Ms J filed 30 July 2010, par 39
[32] Affidavit of Ms J filed 30 July 2010, par 40
Evidence of the single expert
The single expert witness filed her affidavit in these proceedings nearly a year ago on 30 October 2009. Although there have been numerous developments in the interim, her observations and opinions are not stale. The evidence adduced by the Intervenor suggests that the personal circumstances of the parties have remained as chaotic as they were at the time the single expert’s report was compiled.
The overall opinion of the single expert is aptly encapsulated in the following comments:[33]
This is a very complex case, involving highly dysfunctional parents who each have major personality problems; a poor attachment to their children; poor parenting skills; and a very poor history of parenting, including extensive involvement with DoCS. Their third child (as a baby) was removed from their care on a long-term basis such was the perceived risk of harm.
Both parents seem to function below average cognitively though neither has been formally diagnosed with Developmental Delay in the past.
These two boys have all their lives being (sic) subjected to a chaotic lifestyle, with frequent changes of residence, including homelessness; parental drug use; domestic violence; ongoing marital conflict for most of their lives with constant changes of living arrangements; mental health issues with their mother; and a father who manipulates the situation for his benefit regardless of the consequences for the children.
It is surprising that DoCS have not removed both boys from parental care at various stages in their lives.
[33] Single Expert Report, page 60
After making that observation, the single expert then proceeded to evaluate the available information in respect of the parents individually.
In respect of the father, the single expert said that he:
a)Is manipulative in his relationships and has anti-social personality traits.[34]
b)Has a very poor track record of parenting and a poor ability to sustain commitment to his children.[35]
c)Perpetuates as an issue the uncertainty of his paternity of the two children, to the detriment of the children.[36]
d)Impresses upon the eldest child a belief that he has an adverse psychiatric condition by reason of the mother’s genetic influence.[37]
e)Actively discouraged the eldest child from attending school by contriving a story that the child was being stalked by the mother, who had an apparent intention to do him physical harm.[38]
f)Fails to recognise the youngest child’s gross obesity as a health problem.[39]
g)Continually denigrates the mother in the presence of the children.[40]
[34] Single Expert Report, page 61
[35] Single Expert Report, page 61
[36] Single Expert Report, page 62
[37] Single Expert Report, pages 63 -64
[38] Single Expert Report, page 65
[39] Single Expert Report, page 66
[40] Single Expert Report, page 66
The single expert bluntly concluded that the father could not provide a safe, stimulating and nurturing environment for either child.[41]
[41] Single Expert Report, page 67
In respect of the mother, the single expert reported that she:
a)Likely had a borderline personality disorder.[42]
b)Is unable to provide adequate accommodation for the children.[43]
c)Has an ongoing problem with illicit drug use.[44]
d)Appears to also have a dependence upon prescription medications.[45]
e)Fails to recognise the health risks to the youngest child by reason of his gross obesity.[46]
f)Is prone to aggressive outbursts.[47]
g)Denigrates the father in the presence of the children.[48]
[42] Single Expert Report, pages 67-68
[43] Single Expert Report, page 69
[44] Single Expert Report, page 69
[45] Single Expert Report, page 70
[46] Single Expert Report, page 70
[47] Single Expert Report, page 71
[48] Single Expert Report, page 71
The single expert’s overall opinion of the mother was only marginally more favourable than her opinion in respect of the father. The single expert concluded that the mother’s capacity to provide stable, nurturing and stimulating care for the children was very limited.[49]
[49] Single Expert Report, pages 68 to 69
Because of her opinions about the father, the single expert would not countenance the children living with him. With considerable circumspection, the single expert therefore ultimately recommended that both children live with the mother.[50]
[50] Single Expert Report, page 74 to 76
However, that recommendation was made in ignorance of the Intervenor’s intervention in the proceedings, which occurred contemporaneously with the preparation of the single expert report. Having earlier expressed surprise about the Intervenor’s failure to have already exercised statutory power to remove the children from the care of one or both parents,[51] the single expert recommended that the Intervenor do intervene in the proceedings and at least supervise the placement of the youngest child with the mother.[52]
[51] Single expert report, page 60
[52] Single Expert Report, page 76
Since then the mother has experienced mental health deterioration of such significance that she has been compulsorily hospitalised for treatment and she has completely disengaged from the children and the litigation. Placement of the children with the mother is now impossible.
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s.60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 42 Fam LR 531.
Best interests of the children – primary considerations
Section 60CC(2)(a)
The available evidence does not permit a finding that either child currently has a particularly meaningful relationship with either parent. The single expert described their attachments to the highly dysfunctional parents as poor.[53]
[53] Single expert report, page 60
The eldest child has refused to interact with the father since he voluntarily left the father’s care on 15 November 2009 to begin living with the mother and youngest child. Since moving to the home of Ms A on 10 March 2010, when the mother was hospitalised for mental health assessment and treatment, the eldest child has continued to indicate a wish not to see or communicate with the father.
So far as the evidence goes, apart from a period of about a fortnight back with the mother,[54] the eldest child has not lived or spent time with the mother since moving to live with Ms A.
[54] Affidavit of Ms J filed 7 June 2010, par 49
It is reasonably clear that the eldest child does not presently regard his relationship with either parent as important, significant or valuable, which is the measure of a meaningful relationship (see McCall v Clark (2009) 41 Fam LR 483 at 507-510).
The youngest child’s connection with the mother was interrupted when the mother was hospitalised in March 2010 and he then began living with the father. The father’s decampment with the youngest child to Queensland in April 2009 precluded any contact between the child and the mother until his eventual recovery in July 2010. The child was then placed with his siblings in the household of Ms A. On the available evidence, the child has not interacted with the mother since March 2010, nor with the father since July 2010.
The youngest child was initially unsettled following his relocation to the household of Ms A, but that condition was transient. Since the first night in that household he has not asked about his parents.[55]
[55] Affidavit of Ms J filed 30 July 2010, Annexure F
The Independent Children’s Lawyer announced to the Court in final submissions that she had recently met with both children. She reports that the eldest child was not seeking any communication with either parent, but that the youngest child was missing both parents.
Whilst the youngest child may have a more significant attachment to his parents than the eldest child, I accept the submission of the Intervenor that the evidence establishes that the relationships between the children and each parent are dysfunctional and that neither child is securely attached to either parent.
Although the current relationships of the children with the parents tend to be emotionally arid, section 60CC(2)(a) addresses itself to the future rather than the past and present. The provision poses the prospective question of whether the children will benefit in the future from having a meaningful relationship with both parents (see McCall & Clark at 509-510). That question should be answered negatively, particularly having regard to the exposure of the children to physical and psychological harm in the care of each parent, the evidence of which it is now necessary to address.
Section 60CC(2)(b)
The father filed a Notice of Child Abuse and Family Violence in the proceedings on 26 June 2009. The mother also filed a Notice of Child Abuse and Family Violence in the proceedings on 13 July 2009.[56] Since neither party adduced any evidence at trial, evidence of abuse and family violence must therefore be gleaned from the affidavits of the single expert and the Intervenor’s witness.
[56] Single expert report, Appendix 1
There is no doubt that the eldest child was physically assaulted by the father on 29 March 2005. The police were involved and a statement was made by the child to the police about the incident. The statement is in evidence.[57]
[57] Exhibit DOHS1
The assault occurred at the child’s grandfather’s home. The child’s contemporaneous version of the incident, which I accept as being accurate, is as follows:
…I was standing in the door way and my dad hit me over the head. I started crying My dad came over and started punching and hitting me. And then my pop came and got him out of the room. My pop said, “Go away”. My dad said, “Can I get my jeans and thongs.” And my pop said “No I will give them to you when I am ready”. Then my baby sister [H] started crying, I walked over and said, “It’s O.K [H] big brother is here.” (sic)
…He hit me over the head once and I sat on the bed to eat my toast and he came over and started punching me…I just started balling my ears out, there was nothing I could do and this morning he threatens to snap your neck like a tooth pick. (sic)
The father was prosecuted for his assault of the child. The father entered a plea of guilty to the offence, but his comments to the single expert betray no contrition for the incident.[58] The father said “The police stood over [the child] and made him make his statement. I don’t like Coppers”. The father told the single expert that no assault had actually occurred and that he only entered a plea of guilty upon advice for tactical reasons.[59] Despite the offence being found proven against the father, it seems as though no conviction was recorded against him. The father asserted that the charge was dismissed pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).[60]
[58] Single Expert Report, page 11
[59] Single Expert Report, page 12
[60] Single Expert Report, page 12
When the child was interviewed by the single expert in October 2009 he was questioned about that incident with the father in 2005. The child said:[61]
“Dad allegedly stood over and belted me. I was questioned by two coppers with no adults present, I just signed it like they said…Dad belted me up and left a handprint there (pulls up shirt and points to lower side of body)… It was the only time (he hit me)”.
[61] Single Expert Report, page 45
It is important to observe that at the time those comments were made by the eldest child to the single expert in October 2009 he was still living with the father and was avoidant of the mother. His comments about the 2005 assault manifest more than a hint of influence by the father. Nevertheless, although minimising the incident, the child maintains that he was assaulted by the father.
The eldest child also reported to the single expert that when he was younger the mother had hit him with an egg flipper when he was disobedient.[62] It is difficult, if not impossible, to discern whether that is true, given the alignment of the eldest child with the father at the time those comments were made.
[62] Single Expert Report, page 45
The father alleged to the single expert that the youngest child was assaulted by a male associate of the mother in 2008, causing him bruised ribs.[63] The father also alleged receiving a report from the youngest child that the mother had tried to stab him in 2008, which he had avoided by running away, but the single expert implies scepticism about the veracity of that allegation.[64]
[63] Single expert report, page 11
[64] Single expert report, page 11
When interviewed by the single expert, the youngest child reported being previously smacked by the mother on the bottom with an orange belt.[65]
[65] Single expert report, page 55
The father also makes allegations of sexual abuse of both children.
The father alleges that the eldest child was sexually abused by a former partner of the mother many years ago. The child confirmed his molestation in a formal interview when the allegations were eventually made, years after the time when the alleged molestation occurred, but the complaint was not pursued by the authorities. I infer from the single expert’s comments about the documents she inspected, which are not in evidence, that the authorities were doubtful about the veracity of the report.[66]
[66] Single expert report, page 14
The father alleges that the youngest child reported to him in February 2009 that he had been molested by 2-3 men in the caravan park where he then lived with the mother. The father further alleged that two other people confirmed the report to him. Amazingly, the father could not convincingly explain to the single expert why the records of the Intervenor, produced on subpoena, disclosed no report of the incident and why his alleged complaint to the authorities had not been pursued.[67]
[67] Single expert report, page 17
Apart from the actual and alleged physical and sexual abuse of the children, there is an abundance of evidence that the children have been exposed to family violence by and between the parents, which has been psychologically harmful for them.
The mother was charged and convicted for assaulting the father in 2006. She apparently bit the father on the shoulder. It is not known whether the children actually witnessed the incident. The mother spent four days in custody in relation to that incident, but it is unclear whether that was by reason of her remand without bail pending prosecution, or following conviction and sentence.[68] Even if the children were not privy to the incident, they were more than likely aware of volatility between the parents which led to the mother’s temporary incarceration.
[68] Single Expert Report, page 38
In 2009 the mother attended the home of the father to give the eldest child an Easter present. The father would not allow the mother to talk to the child. The parties argued and the father allegedly “grabbed” the mother and “threw her down the stairs”.[69] The father was charged with assaulting the mother on that occasion.[70] The father does not deny that a physical confrontation occurred between the parties. Rather, he says that he was assaulted by the mother.[71] In all likelihood, that incident between the parents occurred in the presence of both the children.[72]
[69] Single Expert Report, page 26
[70] Single Expert Report, page 19
[71] Single Expert Report, page 19
[72] Single Expert Report, pages 19, 27
The father alleged to the single expert that the mother had been violent towards him on occasions and that proposition was put to the mother for her comment. She acknowledged that she had been physically violent towards the father, but only at times when she alleged he had been violent towards her or the children.[73]
[73] Single Expert Report, page 38
The children were interviewed separately by the single expert. They each reported exposure to family violence.
The eldest child reported that he had seen the mother punch the father in the chest in March 2009.[74] The eldest child also reported that when living with the father he observed the father to “go off his head”, which entailed prolonged yelling and screaming by the father. Such episodes were sufficiently intimidating to cause the child to leave the household for hours at a time to avoid the father.[75]
[74] Single Expert Report, page 43
[75] Single Expert Report, page 48
As with the eldest child, the youngest child also reported to the single expert that the father yells at him when angry. In isolation, that may not amount to family violence as defined in the Act, but it still manifests hostility and aggression. The single expert was objectively satisfied that the youngest child was genuinely unhappy with his situation.[76] The youngest child is obviously deprived of emotional nourishment, and I draw the obvious conclusion that his moroseness is at least partially caused by the hostile atmosphere that intermittently exists in the households of each parent.
[76] Single expert report, page 55
I am satisfied that each child is exposed to an unacceptable risk of both physical and psychological harm by reason of their exposure to abuse and family violence by both the mother and father. There is a clear need to protect the children from that risk, and it can only be satisfactorily attenuated by ensuring that neither child lives with either parent.
Best interests of the children – additional considerations
Section 60CC(3)(a)
The eldest child has repeatedly said that he wishes to remain living with Ms A,[77] which placement he enjoys.[78]
[77] Affidavit of Ms J filed 7 June 2010, par 57
[78] Affidavit of Ms J filed 30 July 2010, Annexure B
The eldest child has no inclination to reconnect with the father. As an indication of his estrangement from the father, the child has recently begun referring to the father by his given name in lieu of “Dad”.[79]
[79] Affidavit of Ms J filed 7 June 2010, Exhibit JJ1, page 142
The eldest child is now 16 years of age. His age and emotional maturity demand that his stated views carry such weight that they are really determinative of the parenting outcome for him. The Intervenor considers any interaction between the eldest child and the father should be subject to the child’s wishes and not enforced by Court order.[80] I accept that proposition.
[80] Affidavit of Ms J filed 30 July 2010, par 42
Although the eldest child does not overtly seek contact with the mother, he is not opposed to such contact in the way he opposes contact with the father. His views should still dictate when and how he interacts with the mother. The Intervenor accepts the reality of that situation.
When the youngest child was recovered from the father by police pursuant to the recovery order on 19 July 2010, the child became upset,[81] but made no comment about wanting to stay with the father.[82] The child later simply said that he would prefer to stay with the father than the mother,[83] without affecting any particular attraction for either.
[81] Affidavit of Ms J filed 30 July 2010, par 27
[82] Affidavit of Ms J filed 30 July 2010, Annexure G, page 2
[83] Affidavit of Ms J filed 30 July 2010, Annexure D
Other than the child’s transitory and moderate distress on separation from the father in July 2010, and the final submission made by the Independent Children’s Lawyer that the child had recently expressed to her that he was missing both parents, there is no evidence before the Court about the child complaining to his carer Ms A that he wanted to live or spend time with either parent.
Since the youngest child is only seven years of age, it might well be imagined that he desires interaction of some sort with his parents. However, there is no evidence the child has expressed a view about where he wishes to live or the adults with whom he wishes to spend time. In any event, those views would carry little weight in view of his tender age and lack of emotional maturity.
Section 60CC(3)(b)
The ambivalence of the children’s relationships with the parents has already been the subject of comment pursuant to s 60CC(2)(a) of the Act. There is nothing more to add.
There is no evidence at all about the children having had any relationship with any member of the extended paternal family whilst living with the father.
Nor is there any evidence at all of the children having had any relationship with extended members of the maternal family whilst living with the mother.
Ms A, with whom the children now live, is the mother’s cousin.[84] It is clear that both children enjoy a warm relationship with her. Both children have settled satisfactorily in her care.[85] Ms A appears to have provided the children with a level of stability that they have rarely experienced before. Their relationships with Ms A are now important ones and are likely to become even more so.
[84] Affidavit of Ms J filed 30 July 2010, par 14
[85] Affidavit of Ms J filed 30 July 2010, Annexure F
The children are now living together with their younger sister, with whom they also seem to have a warm relationship.[86] They rarely saw their sister whilst they lived with one or both of the parents. Nevertheless, the youngest child still identified his sister as a member of his family.[87]
[86] Affidavit of Ms J filed 30 July 2010, Annexure F
[87] Single expert report, page 54
Section 60CC(3)(c)
Both parents have been so highly critical of one another in the presence of the children that it is clear neither of them is either willing or able to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother refers to the father as “the local sperm bank”.[88] She thinks it is beneficial for the children when they experience prolonged separation from the father.[89]
[88] Single Expert Report, pages 23-24
[89] Single Expert Report, pages 25-26
The father believes the mother poses such a risk to the children that he proposes they spend only supervised time with her.[90] He alleges, and appears to believe, that the youngest child has been both physically abused[91] and sexually abused[92] whilst in the care of the mother. The father orchestrated a situation where the eldest child had no contact with the mother after April 2009, until the eldest child fled the father and resumed living with the mother in November 2009.[93] More recently, in April 2010, the father erroneously thought it appropriate to abscond with the youngest child so as to preclude his continuing contact with the mother and his siblings, which situation was only rectified by execution of a recovery order in July 2010. The father told the child they had moved to Queensland to start a new life together.[94]
[90] Single Expert Report, page 11
[91] Single Expert Report, page 11
[92] Single Expert Report, page 17
[93] Affidavit of Ms J filed 7 June 2010, par 24
[94] Affidavit of Ms J filed 30 July 2010, Annexure D
Although the parties have in the past exchanged the children between themselves by mutual arrangement, irrespective of the existing Court orders, that was an arrangement of convenience rather than examples of the parties demonstrating a willingness and ability to promote the other’s relationship with the children.
Section 60CC(3)(d)
The orders made now vest parental responsibility for each child in the Minister. According to the evidence, the Minister will ensure the placement of the children with Ms A continues. The circumstances which have prevailed for the eldest child since March 2010, and for the youngest child since July 2010, will therefore continue indefinitely. There are no changes to existing circumstances.
If the children were removed from the care of Ms A, the modicum of stability which has been achieved in recent months will be lost, with consequent detriment to each child.
Although both children will now live with a person other than their parents, it is not likely they will be adversely affected by that arrangement. Neither parent is affecting any real interest in the children. Neither parent has petitioned the Intervenor to arrange for the children to spend time or communicate with them. The current whereabouts of the mother is unknown. Her circumstances since March 2010 are unknown. So far as the evidence goes, the father still chooses to live in far north Queensland, even though the children now live in Newcastle, New South Wales.
Section 60CC(3)(e)
There would be little practical difficulty or expense in arranging for the children to spend time or communicate with the mother. Although her precise whereabouts is unknown, it is probable that she remains living in the same locality as the children. Unlike the situation with the father, there is no significant geographical separation between the mother and the children.
With respect to the father, the issue of practicable implementation of a regime for the eldest child to spend time with him has no relevance. The eldest child does not wish to see the father and the father has not demonstrated any desire to see him.
There would be inordinate practical difficulty and expense involved in arranging for the youngest child to spend time with the father. It would be virtually impossible to arrange for the youngest child to spend time with the father in or near his residence in far north Queensland, given that I accept the position of the Intervenor that any such time would need to be supervised. The need for that supervision arises because of the risk of the father again absconding with the child, as he did some months ago from Newcastle to far north Queensland, and also because of the risk of harm posed by him to the child which is outlined by the single expert witness.
It would be easier for arrangements to be made for the youngest child to spend supervised time with the father in close proximity to where the child lives, but the father has adduced no evidence about his willingness to participate in such an arrangement. In the absence of such evidence, no orders of that sort can usefully be made. The Intervenor proposes that such decisions be left to the Minister as an aspect of parental responsibility for the child. I accept the practicality of that proposal.
Section 60CC(3)(f)
The parents do not have the capacity to provide for the physical, emotional and intellectual needs of the children.
The parents are absorbed with their own lives and problems. Neither has made any attempt to make contact with the children once they were ensconced with Ms A. The same pattern emerged when the female child of the parties was removed from their care some years ago and placed with Ms A.
By comparison, Ms A is very well equipped to provide for all needs of the children. She has been doing so competently for the children over the last few months, and for their younger sister over the last few years.
Since placement with Ms A by the Intervenor, the children have engaged with medical authorities as was recommended by the single expert nearly a year ago.[95] Each child was referred for counselling.[96] The eldest child resumed participation in organised sports and has undertaken job training,[97] because he decided he did not wish to return to school following such a long absence from school whilst in the father’s care. The youngest child has been enrolled at school and is attending regularly.[98] Although the recommendations of the single expert were made in October 2009, few of the recommendations were implemented until the children individually began living with Ms A.
[95] Single expert report, page 76
[96] Affidavit of Ms J filed 7 June 2010, par 55
[97] Affidavit of Ms J filed 7 June 2010, par 58;
[98] Affidavit of Ms J filed 30 July 2010, par 38, Annexure F
Section 60CC(3)(g)
The lifestyles of the parties are too chaotic to enable the children to live with them.
The mother is troubled by drug dependence or addiction and unstable mental health. Despite hospitalisations in March and April 2010 for psychological problems, including threats of suicide,[99] the mother has disengaged from mental health services[100] and has avoided contact with the Intervenor.[101] The mother’s recent mental health problems are not isolated. She was troubled in 2005 by psychological impairment, characterised by bizarre and dangerous behaviour.[102]
[99] Affidavit of Ms J filed 7 June 2010, Exhibit JJ1, pages 49, 77-127
[100] Affidavit of Ms J filed 30 July 2010, par 19
[101] Affidavit of Ms J filed 30 July 2010, par 34
[102] Single expert report, pages 37-38
Although the father did at least attend Court to participate in the trial, he adduced no evidence. He apparently remains living in far north Queensland, from where the youngest child was recovered from him a month ago. He was found to be living there with two other adults and another child in cramped accommodation. The youngest child was found sleeping on a mattress in the lounge room.[103] Despite removal from his school in Newcastle in April 2010 to go with the father to Queensland, there is some doubt as to whether the child was then enrolled to attend school in Queensland in the months that elapsed between April and July 2010.[104] Nothing is known about the day-to-day circumstances of the father.
[103] Affidavit of Ms J filed 30 July 2010, Annexure G
[104] Affidavit of Ms J filed 7 June 2010, pars 40, 51
Section 60CC(3)(h)
The children have an Indigenous Australian heritage, although there is no evidence of the parties imparting any cultural experiences upon them whilst in their joint or individual care.
Being related to the mother, Ms A is also Indigenous Australian. She is introducing the children to extended members of their maternal family and teaching them about their family background and aboriginal culture. Both children are now attending counselling[105] at a well known local aboriginal organisation providing a variety of services for Indigenous Australians.
[105] Affidavit of Ms J filed 30 July 2010, par 37, Annexure F
The children’s right to enjoy their cultural heritage is being enhanced by Ms A, with whom they will be placed indefinitely.
Section 60CC(3)(i)
Neither parent displays a proper attitude to the children or the responsibilities of parenthood.
There is no need to traverse the same evidence. It is sufficient to refer in summary to several of the alarming aspects of their care of the children, including, permitting the protracted absences of the children from school, instilling in the eldest child a belief that he has a mental disorder, instilling in the children a belief that their paternity is in doubt, deliberately arranging or failing to prevent lengthy absences of the other parent from the lives of the children, continually denigrating one another to the children, permitting the youngest child to become grossly obese at risk to his health and self-esteem, continued drug addiction or dependence, and failing to provide the children with emotional succour.
Section 60CC(3)(j)
The issue of family violence has already been addressed in the context of consideration of s 60CC(2)(b) of the Act. There is nothing to add.
Section 60CC(3)(k)
According to the evidence, there is no family violence order in existence involving the children or any member of their family. The Court has not been informed of the existence of any such order, as required by the Act (s 60CF).
Section 60CC(3)(l)
It is certainly preferable to make orders that are least likely to lead to the institution of further proceedings concerning the children. In all probability, the orders made achieve that objective. The children’s lives are much more likely to be stable whilst in the care of Ms A pursuant to allocation of parental responsibility for them to the Minister.
Making parenting orders vesting any aspect of parental responsibility in either parent, or making definitive orders about the time the children are to spend with the parents, is fraught with the risk of failure. The advent of failure would probably generate further litigation.
The orders invest the Minister with discretion to deal with interaction between the children and the parents as circumstances present in the future. That affords flexibility, and I am satisfied by the arrangements that have been made in recent months by the Intervenor that the Minister will exercise the discretion wisely.
Section 60CC(3)(m)
There remains some doubt about whether the parties have resolved an issue of uncertainty about the eldest child’s surname. No birth certificates have been filed or tendered in respect of the children.
The eldest child was apparently known by two different surnames at the time orders were made for him on 16 February 1999. Those orders obliged the parties to take all steps necessary to ensure that the child used the surname “Cameron” and to amend records accordingly.[106]
[106] Order 8
When further parenting orders were made for the children on 10 July 2006, the eldest child was described by the surname “Cameron”.[107] Although that implies the parties had complied with the obligations created by the orders made in February 1999, subsequent events preclude that inference being drawn. It would seem the parties have not eradicated the uncertainty about the eldest child’s surname.
[107] Order 1
When the mother commenced these proceedings by filing her Initiating Application on 15 April 2009 she variously described the eldest child in that document by the surnames “W”[108] and “W-Cameron”.[109] When the father filed his Response on 28 May 2009 he described the child by the surname “W”.[110]
[108] Part D
[109] Annexure A
[110] Annexure A
When interim orders were made on 1 June 2009 the eldest child was referred to by the surname “W”.[111]
[111] Orders 1, 2, and 5
For the sake of certainty, when further interim orders were made on 21 June 2010 the eldest child was referred to by both surnames of “Cameron” and “W”.[112]
[112] Order 1
The uncertainty about the child’s name should be clarified immediately. It only serves to compound the myth perpetuated by the father about the uncertainty of his paternity of the children, which the single expert believes is emotionally harmful to them.
Because the issue was not raised with the parties and Independent Children’s Lawyer in these proceedings they were not afforded the opportunity to address the Court about the making of an order to rectify the anomaly. For that reason, no order is made, so as to avoid a denial of procedural fairness.
However, now that parental responsibility is allocated solely to the Minister, the Minister has the power to take all steps necessary to ensure that the Births, Deaths, and Marriages Register of NSW reflects the eldest child’s surname as “Cameron”, and that the birth certificate issued for him also reflects that surname. The provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) permit amendment of the Register upon application showing cause (ss 20, 26, 28(2)). It would be advisable for the Minister to make such an application.
Parenting orders
The presumption of equal shared parental responsibility does not apply. That is because of the stated findings about the occurrence of abuse and family violence (s 61DA(2)). Even if the presumption had applied, the conclusion would have been inescapable that the presumption was rebutted because the best interests of the children so demanded (s 61DA(4)).
The allocation of parental responsibility for the eldest child solely to the Minister is a consensual position adopted by the Intervenor, Independent Children’s Lawyer, and father. I accept that such an outcome is proper.
For the same reasons, I accept that such an outcome for the youngest child is also proper. Although the father sought a different outcome for the youngest child, he adduced no evidence and made no submission which could conceivably account for dealing with the children differently.
Accordingly, parental responsibility for both children is allocated solely to the Minister. As a consequence, the children will live in circumstances determined by the Minister. The single expert opined that the children should remain together,[113] and since they have lived together with Ms A they appear to have thrived.[114] The stated intention of the Minister is that the children will continue to live together with Ms A, and their younger sister.
[113] Single expert report, page 75
[114] Affidavit of Ms J filed 30 July 2010, Annexure F
Having reached that determination, the question arises as to what, if any, further parenting orders the Court should make dictating arrangements for the children, or either of them, to spend time or communicate with other persons such as the parents.
The submission of the Intervenor and Independent Children’s Lawyer is that no further orders should be made – at least in the circumstances of this case. It was not submitted that the Court had no further power to make such supplementary parenting orders.
The father did not address, either in evidence or submissions, whether he proposed the making of further orders of that sort in the event that his primary application in respect of the youngest child was rejected.
The issue has recently been considered by the Full Court (see Director-General of Department of Human Services (NSW) & Tran & Anor [2010] FamCAFC 151). The facts of that case are not directly on point because the trial judge there allocated to the Minister only partial, and not exclusive, parental responsibility for the subject child (see Tran at 76-77, 85-88, 199, 216, 269), in which case it was open to the trial judge to make supplementary orders about where the child should live (see Tran at 57-77, 85-89, 149, 219, 238, 255-264).
Inferentially, however, the unanimous opinion of the Full Court appears to be that once parental responsibility for a child is allocated to the Minister in all respects, or at least in respect of the child’s residence, then s 164 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) prevails and dictates the Minister’s responsibility to make arrangements for the child’s residence (see Tran at 88, 213-215, 216(c), 216(e)). In those circumstances it is superfluous for the Court to make supplementary orders about where and with whom the child should live because those issues are determined by the Minister as an incident of his or her exercise of parental responsibility for the child.
Such a view is consistent with the former leading decision of the Full Court on the issue, albeit decided at a time when the federal and state legislative landscape was somewhat different (see Faulkner & McPherson v Rugendyke; Dept of Community Services (Intervenor) (1995) 19 Fam LR 507 at 512-513).
However, there appears no impediment to the Court allocating parental responsibility in all respects for a child solely to the Minister and then proceeding to make supplementary orders confined to the issues of with whom that child spends time and communicates. Making orders of that limited kind has been a course adopted by the Court over a long period of time (see B & G & Minister for Health Family & Children’s Services NT [1998] FamCA 1945; Hennessy & Rhys [2007] FamCA 160; Schmidt & Schott and Ors [2008] FamCA 447; Fenton & Barrett and Ors [2009] FamCA 569). Whether or not the Court does proceed to make such supplementary orders confined to those issues is, of course, determined on the facts of the individual case.
Having regard to the paucity of evidence about the current circumstances of the parents and their future intentions, I am satisfied that it would be an error to make any orders specifying the manner in which the children, or either of them, should spend time or communicate with the parents in the future. I intend, as the Intervenor and Independent Children’s Lawyer submit, to leave that to the discretion of the Minister.
For those reasons, the orders specify the allocation of sole parental responsibility for both children to the Minister, and no more. I am satisfied that such orders properly reflect the best interests of the children on the evidence placed before the Court.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 3 September 2010.
Associate:
Date: 3 September 2010
Affidavit of Ms J filed 30 July 2010, par 37 Affidavit of Ms J filed 30 July 2010, Annexures A, B, F
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