Hewitt and Hurley

[2017] FamCA 617

FAMILY COURT OF AUSTRALIA

HEWITT & HURLEY [2017] FamCA 617

FAMILY LAW – CHILDREN – Where the father has retained the two younger children in his care in Queensland contrary to Court Orders – Where the mother is uncontactable and has not appeared – Where there are serious concerns as to the mother’s illicit drug use – Where there are allegations the children have been exposed to family violence between the mother and her current partner – Where the circumstances of the oldest child are unknown – Where the oldest child has not been attending school – Where there is limited information as to the father’s current circumstances and parenting capacity – Where there are concerns as to the father’s drug use – Where neither party has fully complied with court ordered drug tests – Where the mother previously sought the recovery of the younger children to her care – Where there is an unacceptable risk of harm to the children in the mother’s care – Where there are risks of harm to the children in the father’s care – Where the NSW Department of Family and Community Services and/or the Queensland Department of Communities, Child Safety and Disability Services are requested to intervene – Orders made pending further order for the father to have sole parental responsibility and for the children to live with the father.      

Family Law Act 1975 (Cth) ss 60CA, 60CC

Deiter v Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286

Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Hewitt

RESPONDENT: Mr Hurley

INDEPENDENT CHILDREN’S LAWYER: Matthews Folbigg

FILE NUMBER: PAC 1445 of 2016

DATE DELIVERED: 17 August 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 and 17 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Calokerinos

SOLICITOR FOR THE APPLICANT: Saab Law Group

SOLICITOR FOR THE RESPONDENT: SCB Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Matthews Folbigg

Orders

1. All previous parenting orders are discharged.

2. Pending further order, the father have sole parental responsibility for the children B born … 2003, C born … 2005 and D born … 2010 (“the children”)

3. Pending further order, the children are to live with the father.

4. Order 3 is to be effected by the parents agreeing between themselves an arrangement for the handover of B into the care of the father.

5. If the child B is not delivered into the father’s care by 5pm Friday 18 August 2017 pursuant to section 67U of the Family Law Act 1975 a Recovery Order be issued to the Marshal of this Court and the police officers in all States and Territories to recover the child B born … 2003 and return that child to the father.

6. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

7. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the Queensland Department of Communities, Child Safety and Disability Services is requested to intervene in these proceedings.

8. In the event that the Secretary of either Department intervenes, he/she is to file and serve a Notice of Intervention by no later than 25 September 2017.

9. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of either Department, or their delegate, to inspect and copy any documents on the Court file forming part of the Court record.

10. The mother’s Application in the Case filed 25 July 2017 seeking a Recovery Order is dismissed.

11. The proceedings are listed for short interim hearing at 9.30am on 29 September 2017 to deal with the issue only of the mother’s time with the children.

12. The parties are each to file an outline of case and a Minute of Orders they are seeking in relation to the mother’s time with the children by no later than 5pm Tuesday 26 September 2017.

13. On the next occasion the proceedings are before the Court consideration will be given to transferring the proceedings to the Brisbane Registry of the Family Court of Australia.

THE COURT NOTES

A.I am informed by the ICL and a legal representative Ms E from the Department of Family and Community Services that the ICL, the Department and its officers, the school principal at B’s school and officers of the F Group who are delivering the Brighter Futures Program and the father’s aunt Ms Hurley who has been present at the various court events are willing to assist the parents in making the practical arrangements for the transfer of B into the father’s care. 

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 Hewitt & Hurley 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 PARRAMATTA

FILE NUMBER: PAC 1445  of 2016

Ms Hewitt

Applicant

And

Mr Hurley

Respondent

REASONS FOR JUDGMENT

Introduction

1. There have been significant concerns about the welfare and wellbeing of the parties’ three children since proceedings were initiated in the Federal Circuit Court in April 2016 when the parents had recently separated following an almost 20 year relationship. 

2. The parties’ three children are B a 14 year old girl and her two younger brothers, C who is 12 and D who is seven.  Throughout the proceedings there have been matters which give rise to a concern that there may be significant risks of harm posed to the children in the care of both parents. 

3. In June 2016 a Judge of the Federal Circuit Court made orders that the parents have parental responsibility for the children when in their respective care and that the children live with the mother and spend time with their father for two weekends in each school term and for half of the school holidays.  At that stage the father was living in northern New South Wales and the mother was living in the western suburbs of Sydney.

4. In February 2017 the father moved to Queensland to live with this new partner, Ms G and four of her children.

5. From at least March 2017 concerns were raised about the safety of the children in the mother’s home and in particular risks posed by the mother’s partner Mr H.

6. In May 2017 a Judge of the Federal Circuit Court made an order restraining the mother from bringing the children into contact with Mr H.  That Judge also invited the Department of Family and Community Services (“the Department”) to intervene in the proceedings and transferred them to the Family Court.

7. In June 2017 further interim orders were made for the children to spend additional time with their father during the holidays but the children were to remain living with their mother.

8. In July 2017 the father attended with the two younger children at an assessment with a Family Consultant as part of the Child Responsive Program.  The mother and older child did not attend although the Family Consultant interviewed the mother by telephone. 

9. Two days after the interviews with the Family Consultant when the two younger children were due to be returned to the mother, the father retained the children in his care.

10. On 25 July 2017 the mother sought a Recovery Order for the two younger children and on 28 July 2017 the father sought interim orders that the children live with him and spend defined supervised time with the mother in school holidays.

11. The proceedings before me yesterday related to the mother’s application for the return of the two younger children to her care and the father’s application for interim orders.  In addition, as the Independent Children’s Lawyer (“ICL”) continued to remain of the view that there was potentially an unacceptable risk of harm to the children in both households and I invited the Department again to intervene in the proceedings, this Judgment is also concerned with those issues of risk.

Background

1. The children’s father is Mr Hurley (“the father”), aged 36. The children’s mother is Ms Hewitt (“the mother”), aged 34.  

2. The parents commenced a relationship in 1997 when the father was 17 and the mother was 15. Both parents report a separation in 2008 before final separation occurred in February 2016.

3. The mother commenced proceedings in the Federal Circuit Court in April 2016.

4. On 7 April 2016 orders were made for B to spend time with the father for eight days and thereafter spend time with her mother and for the boys to spend time with their mother for eight days and thereafter spend time with their father. The parties were also ordered to attend a child dispute conference with a Family Consultant.

5. On 5 May 2016 orders were made for B to live with her father and for the appointment of an Independent Children’s Lawyer (“ICL”).

6. On 8 June 2016 the father filed a Response.

7. The following day orders were made for the parents to have parental responsibility for the children when in that parent’s care, and that the children live with the mother and spend time with the father for two weekends in each school term, for half of the school holidays and at such other time as agreed between the parents in writing.

8. Orders were also made on that date for the parents to undergo chain of custody drug testing at the request of the ICL and for a Family Report to be prepared.

9. On 3 November 2016 the matter was relisted at the request of the ICL following both parents failing to undergo drug tests. 

10. On 23 November 2016 the order for preparation of a Family Report was vacated due to the mother’s non-compliance with court orders and the father’s lack of engagement with the proceedings.

11. On 3 May 2017 further orders were made including a restraint on the mother allowing communication or contact between the children and Mr H and the proceedings were transferred to this court.  The Department was also requested to intervene in the proceedings.

12. On 13 June 2017 a Children and Parents Issues Assessment (“CPIA”) was ordered. Assessment interviews were conducted on 13 July 2017 with the father and the boys who attended in person. The mother was interviewed by phone when she failed to attend the scheduled interviews and failed to facilitate B’s attendance.  The CPIA was released to the parties on 19 July 2017.

13. Subsequently, in circumstances that are still unclear the father retained the boys in his care in Queensland where he currently resides with his partner and four of her six children.

14. On 25 July 2017 the mother filed an Application in a Case seeking the urgent recovery of the children to her care.

15. The matter was listed urgently and on 28 July 2017, the father also sought interim parenting orders including that the children live with him and he have sole parental responsibility for them.  Orders were made for the mother to undergo drug testing and for the parties to file consolidated affidavits and case outlines in preparation for an interim hearing. Neither party fully complied with these directions.

16. On 16 August 2017, when the matter was set down for hearing, the mother did not attend court.  Her counsel appeared without instructions and informed the Court that the mother had been non-communicative with his instructing solicitor since the last court date on 28 July 2017.  The mother at this stage has effectively disengaged from the proceedings.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways, being:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it would be contrary to a child’s best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may have some regard to the matters in dispute.  In SS & AH[2], their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes 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. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2] [2010] FamCAFC 13

6. In Deiter v Deiter[3] the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Court said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   [3] [2011] FamCAFC 82

7. In these proceedings, in addition to the facts which do not appear to be controversial there are risk factors associated with the care of each parent. These risks are assessed and discussed when considering the ‘best interests’ matters later in these Reasons.

8. In Deiter (supra), the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. It is likely that the interim parenting arrangement under consideration will be in place for a number of months. At this stage the parents have participated in the Child Responsive Program but a Family Report or Expert Report is yet to be prepared and the circumstances of the parties have changed significantly throughout the proceedings including during the last few months.    

Best Interest Considerations

1. Section 60CC of the Act sets out the matters that must be considered by a court in determining what is in the child’s best interests.

2. The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the consideration set out in subsection (2)(b).

The benefit of a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act though it has been interpreted as meaning a relationship which is “significant” “important” or “of consequence”.[4]

   [4] Mazorski & Albright (2007) Fam LR 518; McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

2. If the Recovery Order was made as previously sought by the mother the children would have the benefit of a meaningful relationship with each parent as the current orders provide for the children to live with the mother and spend defined time with the father in both the school term and in particular the school holidays. However, as the mother has disengaged from the proceedings and effectively abandoned her application for parenting orders, she may be taken as not currently seeking orders that would promote the children receiving the benefit of a meaningful relationship with her.

3. The orders sought by the father if they were able to be implemented would provide for the children to receive the benefit of having a meaningful relationship with him as they would live with him. The orders that he seeks with respect to the children’s time with their mother would foster some form of relationship with the children as they provide for her to spend block time of eight hours per day for a week in each school holiday period.  However, his proposed orders provide for no overnight time with the mother and he seeks that such time be supervised at an approved contact centre, that the mother bear the cost of the contact centre and that the parties equally bear the cost of the children’s travel to and from Queensland for the purposes of that time.

4. For reasons to which I will return, I am of the view that this proposal is so impracticable and costly that there is no likelihood that the mother would spend time with the children if such orders were made. In my view, in reality the father’s proposal will mean that the children would not receive the benefit of having any meaningful relationship with their mother. 

The need to protect the children from physical or psychological harm

1. This consideration looms large in the proceedings as there is evidence that there are significant risk factors in each of the parent’s households.

2. So far as the mother is concerned, there is a plethora of evidence from which it may be found that the children are at an unacceptable risk of harm in her care.

3. First there is the issue of the mother’s drug use and associated neglect in caring for the children.  The father reported to a Family Consultant when first interviewed for the purposes of a Child Inclusive Conference in June 2016 that both parents had habitually used methamphetamine, commonly known as “Ice” in the months leading up to their separation in February 2016. The mother at that time reported to the Family Consultant that she had not used amphetamines for many years apart from several occasions in around 2008 or 2009 when she and the father had previously separated for a number of months.

4. At the second meeting with a Family Consultant on 13 July 2017 the father maintained that the mother continued to use drugs and that the children had told him about “ice pipes” in her house. The mother maintained on this occasion that she took amphetamines between 2008 and 2009 but had never taken methamphetamine.

1. Orders have been in place for some time requiring the parents to comply with requests by the ICL that they undergo urinalysis. In August 2016 and October 2016 the ICL wrote to both parties requesting urinalysis but neither responded and the matter was relisted in November 2016 as a result.

2. The mother informed the ICL that she had a clear drug test on 26 June 2017 but the testing did not comply with the chain of custody requirements. On 26 July 2017 the ICL requested that both parties undergo urinalysis but the mother has not responded to this request. On 1 August 2017 the ICL requested the mother undergo a hair follicle test. The ICL did not receive a response and has been unable to contact the mother since this date.

3. In these circumstances in my view there are real risks that the mother is continuing to use illicit substances.

4. One of the most significant matters of concern in the mother’s household arises from her association with Mr H. 

5. The concerns raised about a risk of harm posed by the mother’s partner Mr H have been a feature of these proceedings for some time.  Mr H has a 10 year history of criminal offences including assault, contravening Apprehended Violence Orders, malicious damage, drug and traffic offences.  It is also alleged by the father that Mr H has been violent towards the mother and the children.

6. On 3 May 2017, a Judge of the Federal Circuit Court made an order restraining the mother from bringing the children into contact or allowing any communication between the children and Mr H.  11 days later on 14 May 2017 the mother attended with the two younger children at a correctional centre on the day that Mr H was to be released. 

7. When the Family Consultant interviewed the mother by telephone on 13 July 2017 the mother said that Mr H had moved out from her premises where she lived with the three children only three weeks previously.  The following was also recorded in the Family Consultant Memorandum:

   When [the mother] was asked if [Mr H] would still be in the home if there were no court orders prohibiting him, she said that he probably would because he “never hurt the children”.  She denied any violence between her and [Mr H].

8. When interviewed by the Family Consultant C “stated firmly that he doesn’t like [his mother’s] boyfriend ([Mr H]) as “he threatens and has a friend called Mr J who gets drugs”.  He said that “[Mr H] doesn’t hit mum but he threatens and says things like “I’m going to hit you and stomp on your head”.  C also recounted an incident when Mr H was “pushing mum around” and that he was required to ring the police.  D reported being “scared when [Mr H] was trying to hit mum and saying “I’ll jump on your head”.

9. The issue of the risk of harm posed by Mr H has been raised on a number of occasions at various court events.  As recently as June 2017 it was suggested that the mother had left the children in the care of Mr H on 13 June 2017.  The mother denies that this is the case and indicated on the last occasion in court that she would file an affidavit to this effect.  However, the mother has not provided any affidavit other than an a seven paragraph affidavit in support of her Recovery Order addressing only that the children had been removed from her care without her permission.  She has filed no other affidavit addressing any of the matters of concern including the issues relating to Mr H.  As noted she has disengaged from the proceedings and can be taken to be no longer seeking the Recovery Order. 

10. In my view there remains a significant risk that the mother would continue to bring the children into contact with Mr H if they were to return to live with her or spend unsupervised time with her as it appears that she remains in some form of relationship with him and does not recognise the risk of harm posed by him. 

11. Other risks of harm in the mother’s household relate to neglect.  There is a lengthy and well documented history of the children’s extremely poor school attendance when living with their mother.  Although the mother’s current living arrangements are unclear, when interviewed by the Family Consultant by telephone on 13 July 2017 she said that she lives in a three bedroom apartment with her sister and her sister’s baby as well as the three children. 

12. At that time the mother said that during school term B has been staying through the week with the maternal grandparents as they are close to B’s school and she did not want to change schools when she and the children moved some distance to another part of Sydney. 

13. Records produced by the school at which B is enrolled indicate that the child was absent from school on 72 entire days and 58 partial days between the 1 June 2016 and the end of April 2017.  The vast majority of these absences were unjustified.  A letter dated 30 May 2017 contained in the school records indicates that the school had a number of concerns about the child’s behaviour and that she was at risk of being suspended. 

14. The ICL informed the court yesterday from the bar table that she had spoken to the child’s school principal the previous day and that he had reported that the child’s attendance was less than 40 per cent this term.  He told the ICL that he understood that the child was travelling a long distance from her mother’s home using a bus and two trains in each direction and was often late on the days that she did attend and was struggling at school.  It can be inferred in my view that the eldest child continues to live with her mother a long distance from her school and there is a real risk of harm to her arising from the mother’s inability to ensure that she is enrolled at an appropriate school and attends regularly.

15. As a result of the matters of concern in the maternal household the Department has been attempting to support the mother to assist with the children for some time.  The mother has also been assisted with the Brighter Futures program through the F Group.  Emails tendered from the mother’s case worker at the Department and her case worker at the F Group indicate that the safety of the children in the mother’s care was still being assessed and case management provided but that the F Group case worker was experiencing some difficulty contacting the mother. 

16. As the mother has disengaged from the proceedings, and is not pursuing a Recovery Order in circumstances where she alleges that the father removed the children from her care without her consent and contrary to court orders, I am satisfied that real risks arise for the children if they were to remain in the care of the mother.  In particular there is no current information concerning B including where she is living other than real concerns about her poor school attendance.

17. Concerns about a risk of harm from being subjected to or exposed to abuse, neglect or family violence also arise in the father’s household.  As previously noted the father reported to a Family Consultant in June 2016 that both parents had habitually used methamphetamine in the months leading up to their separation.  The father was charged with possession and supply of a prohibited drug as well as other offences in January 2016 and later convicted.  He confirmed to the Family Consultant in July 2017 that he started taking amphetamines and ecstasy when he was 18 but had not taken any drugs since January 2016 when he was arrested.  The mother told the Family Consultant in July 2017 that B had witnessed the father selling and taking drugs but this appears to relate to a time when B was living with him in early 2016.

18. In his affidavit the father says that he no longer takes any illicit substances and that the house is which he currently lives with his partner is “drug free”. 

19. In August and October 2016 the ICL requested that both parties undergo urinalysis and when neither responded the matter was required to be relisted.  On 23 November 2016 when the matter was relisted the father did not attend.  He was homeless and disengaged from the proceedings for many months though he maintains that he was already drug free at that stage. 

20. The father has produced negative drug screens in respect of all substances in April 2017, June 2017 and 31 July 2017.  The father’s recent clear drug screens give the rise to some confidence that he is no longer using illicit drugs though given the extent of his previous substance misuse some risk remains.  This is particularly so as the father does not set out any evidence concerning counselling or any other program he has attended to address his substance misuse.

21. The issue of exposure to family violence in the father’s household has also been raised.  The mother reported to the Family Consultant when interviewed in June 2016 that there had been one incident where the father had thrown a cigarette lighter in anger prior to separation and dislodged one of her teeth.  She also referred to this incident when interviewed again by the Family Consultant in July 2017 and maintained that it was intentional.  The father maintained in both interviews with the Family Consultant and in his affidavit that while he did throw a cigarette lighter at the mother and this had broken her tooth, he did not mean to hit her and it was an accident.

22. The mother also reported to the Family Consultant during the 2016 assessment that the father had grabbed her and thrown her against a door frame prior to separation and following separation had made threats by telephone and sent threatening messages to her, and that the father had hit her in the head with a deodorant can in 2008 or 2009 causing an injury to her head.

23. At the second interview with the Family Consultant the mother said that there was “a lot of verbal and mental violence” in the relationship and that the father had regularly denigrated her and the children. 

24. Text messages said to have been sent by the father to the mother which were annexed to an affidavit filed earlier in the proceedings were tendered by the ICL (Exhibit 7).  These messages are highly offensive and abusive.  For example in a message said to have been sent in March 2016 the father threatens the mother that she will never see the children again as they “don’t want sluts in there (sic) lives you aint no mother cunt” and in another message he threatens “I’m gonna stomp ya”. 

25. Records from Queensland Police (Exhibit 5) indicate that an allegation was made in January 2017 that Ms G’s current boyfriend [the father] threatened to kill Ms G’s ex-husband and later that month Ms G contacted her ex-husband and threatened that if he did not meet her at a particular place as she required [the father] would come to his home to kill him.  A Temporary Protection Order was made as a result of this complaint though there is no evidence to suggest that this was continued on a final basis or that the father was charged.

26. The final area of concern in the father’s household relates to possible neglect as a result of the circumstances in the home which he shares with Ms G.

27. First, the father’s partner has six children, at least four of whom currently live in the home with the father and his two children.  One of Ms G’s children, K who is nine, has a well-documented history of bullying, harassment, physical misconduct and behavioural problems throughout 2016 and continuing until at least March 2017.  The school records (Exhibit 4) reveal that he is also reported as displaying challenging behaviour at home. 

28. The school records also reveal that on a number of occasions between January and April 2017 Ms G telephoned the school reporting that she was experiencing financial difficulty and was requesting financial help.  The records also described the circumstances in the household including that Ms G had a four year old boy with autism.  At that stage it appears that Ms G had five of her children in her care.  The records also indicate that in March 2017 Ms G contacted staff at the school seeking advice in relation to her own difficulties with her ex–husband and the wellbeing of her own children who it appears were being retained by their father.  Other records indicate that on 15 March 2017 two of Mr G’s children were described as “adjusting to some significant changes at home”. 

29. The father does not refer in his affidavit to any difficulties experienced since he began living in Ms G’s household in February 2017 including in relation to the household finances or any behavioural problems or special needs of the children.  He suggests that the blended household is harmonious and well-functioning and that he and Ms G “work as a team ensuring all the children’s needs are met”. 

30. However, while there are some inconsistencies in the father’s description of the household and the capacity of Ms G and himself to meet Ms G’s children’s needs in the first half of 2017 there is insufficient evidence from which I could find that there is a risk that the children may be harmed by neglect in the father’s care.  Importantly, although the father does not set out in his affidavit the circumstances in which the two younger children came to be living with him he says, and records confirm, that his two sons have been enrolled in schools in Brisbane.  The father deposes that the children are attending school every day though there are no records from the school to confirm this is the case.  The father also deposes to C attending a homework program and participating in a “book club” and in football. 

31. In summary, although there are some matters of concern about the children being exposed to family violence and being neglected in the care of the father in Queensland, I am not satisfied that he poses an unacceptable risk to them in this regard.

Additional consideration

1. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

Any views expressed by the children and any factors underlying their views

1. The children have been interviewed on two occasions in which they have expressed their views.  C who was 11 when first interviewed by a Family Consultant in June 2016 said that he would prefer to live with his mother for a period and visit his father.  At that stage he had been living with his father (and a paternal uncle and his family) which he reported had made him “feel sad”.  At the time of the first interview, D who was almost six had also been living with his father and told the Family Consultant that he missed his mother. 

2. When first interviewed, B who was almost 13 had also been living with her father.  B said that she wanted to return living with her mother and that she believed her father was aware of this.  She described difficulties making friends when living with the father and said that she missed her mother and that it would be better if her father moved back [nearer to the mother].  In that circumstance B said she would like to see her father every weekend but that if he were to continue to live [out of Sydney] she would like to see him every school holidays.

3. The children were interviewed for second time on 13 July 2017.  At that time the children were living with their mother and the two boys were spending time with their father in the holidays.  It was not known at the time that two days later when the father was due to return the children to their mother’s care he would return with them to Queensland in breach of the court orders.

4. As noted the mother did not make B available for the July 2017 interview (and also did not attend herself although she was interviewed by telephone) so B was unable to be interviewed and her current views are not known. 

5. C firmly stated to the Family Consultant in July 2017 that he did not like the mother’s boyfriend, Mr H and said that the felt “better and safer at dad’s house”.  He was quite firm in his opinion that he would prefer to live with his father and would miss his mother though he added “not too much”. 

6. D told the Family Consultant in July 2017 that he would like to live with his father because “the school has a swimming pool and it looks nice up there”.

7. In my view little weight should be attached to any of the children’s views in this parenting application where the most weighty consideration is the need to protect the children from harm.  However, I attach some weight to the fact that B has not ever expressed a view that she wishes to live with her father.  That is not to say that weight should be attached to her desire to live with her mother in circumstances where I have found that there is an unacceptable risk of harm to her if she were to live in the mother’s household.

8. I attach little weight to the expressed preference of C and D to live with their father.  As noted by the Family Consultant the reasons given by D are probably more reflective of his developmental stage (for example that the school near [the father] has a swimming pool) than a considered evaluation of the situation. 

9. I do attach some weight however, to the view expressed by both boys of concerns about Mr H in the mother’s household and that C was able to articulate his feelings of a lack of safety in the mother’s house when Mr H is there. 

The nature of the relationship of the children with each of their parents, and other significant persons

Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. The limited assessment of the Family Consultant on two occasions cannot by definition include a considered opinion concerning the nature of the children’s relationship with each parent.

2. It is to be noted that the children have had highly disruptive lives since at least February 2016 when the parents separated.  They have moved between the two households on a number of occasions, sometimes in accordance with court orders and other times as a result of a parent taking unilateral action.  At times the father has not spent any time with the children or communicated with them for months. 

3. From around January 2017 it appears that B has been living at times with the maternal grandparents though it is not clear how long this arrangement has been in place.

4. From around March 2017 it appears, though it is no clear, that the mother was living with Mr H who was violent towards her and engaged in drug use in her home.

5. The two boys continued to live with their mother until 15 July 2017 when their father retained them in his care.  It is not clear where B has been living in recent times though it can be inferred from school records that she is living with her mother. 

6. In these highly disruptive circumstances it is likely that the children’s relationship with each parent is at times tenuous and insecure. 

7. It is a weighty factor in my view relevant to the nature of the mother’s relationship with her children, her capacity as a parent to provide for the children’s needs and her attitude to the children and the responsibilities of parenthood that she has withdrawn from these proceedings and is not seeking a Recovery Order to have the children returned to her care, and that she has not filed an affidavit in response to the father’s application for the children to live with him.

8. The mother’s persistence in pursuing a relationship with Mr H who has been identified as posing a risk to the children indicates the mother’s inability to prioritise the children’s needs above her own and a poor attitude to the responsibilities of parenthood.  The mother’s preparedness to bring the children into contact with Mr H contrary to a court order reflects poorly upon her attitude to court orders and a poor understanding of risk.

9. The mother’s attitude towards B is also particularly concerning.  At times the mother has placed B who is almost 14 with the maternal grandparents or permitted B to reside with them despite their own history of substance misuse and offending and neither the mother nor maternal grandparents have been capable of ensuring that B attends school. 

1. The mother’s non-compliance with directions concerning monitoring of substance misuse and failure to make B available to a Family Consultant in July 2017 also reflects very poorly upon her. 

2. The father has also at times, as recently as January 2017, shown a poor attitude to the responsibilities of parenthood.  For about six months he was homeless, had moved interstate and had no contact with the children even though he knew they were at risk in their mother’s care.  The manner in which the two boys came to be living with him, effectively unilaterally moving them from their mother was not child focussed.  The father also continues to prioritise his relationship with Ms G over the children’s needs to be proximate to their mother so that they can share some form of a relationship with her.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the children

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children

1. Each of the parents has unilaterally made significant decisions in relation to the children in an apparently impulsive fashion without consulting the other parent or having regard for the disruptive impact upon the children.  The pattern of behaviour by both parents has fluctuated between disengagement and absence from the children’s lives and unilaterally removing the children from the care of the other parent.  The failure of the mother to participate in these proceedings is a matter of some significance.

2. There is no evidence in relation to each parent fulfilling their obligations to financially support their children.

Likely effect of any change in the children’s circumstances, including the likely effect of separation from either parent, or other children, or other person with whom the children have lived

Practical difficulty and expense of a child spending time with and communicating with a parent

1. These are in my view weighty considerations.  It appears likely that although the boys expressed to the Family Consultant a firm preference to live with their father, they would nonetheless miss their mother especially as they now live so far away from her in another state and there are no practical or realistic proposals for her to spend time with them.

2. The manner in which the father removed the children from their mother’s care two days after they had been assessed by a Family Consultant at Child Dispute Services was not child focused and was likely to have been confusing for them. 

3. However, while I do not accept that the father’s household operates as smoothly and functionally as he describes in his affidavit (as there is evidence discussed earlier in these Reasons which indicates otherwise), it is likely that there would have been some improvements in the boys’ circumstances in moving to their father’s care.  Although there is no corroborative evidence as to this matter, the father deposes to the boys regularly attending school, receiving additional assistance with their schoolwork and participating in extra-curricular activities.  There are no indications of clear unacceptable risk factors in the father’s household such as the risk posed by Mr H and the mother’s suspected drug use in her household.

4. However, it is likely that the boys feel some distress at their separation from B as was previously reported on the first occasion when the family was seen by a Family Consultant. 

5. Although the father’s proposal that B also live with him is likely to be provide her with greater stability which must be given significant weight, there are in my view many concerns about difficulties that B is likely to experience in moving to live with her father.  B has never expressed a preference to live with the father and the nature of her relationship with Ms G, if any, is unknown.  This is significant when Ms G appears to play a major care giving role.  Although B will undoubtedly benefit from being reunited with her brothers, she has no social network in Brisbane and currently presents as vulnerable.  There is some risk that she may abscond and place herself in danger.

6. One of the greatest difficulties with the father’s proposal is that he is now living in Brisbane, a significant distance from Sydney. There is insufficient evidence upon which I could find that he has the financial capacity to bear half of the costs associated with bringing the children to Sydney to spend time with their mother under his proposal.  There is no evidence at all to suggest that the mother has any financial capacity to pay for half of the expenses associated with bringing the children to Sydney, and all of the expenses of supervision.  There is also no evidence to suggest any contact centre offers the regime of time proposed by the father, that is daily contact for block periods of eight hours for half of each school holiday period.  These practical difficulties and expense are so great that they would in my view amount to total impediment to the mother spending time with the children under the father’s proposal.

7. As the mother has not pursued her Recovery Order with respect to the boys or responded to the father’s proposal, she can also be taken to have abandoned any application in relation to interim orders for them. 

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the children and of either parent

Aboriginality

1. Although the father does not address aboriginality in his affidavit in support of interim orders, I understand it to be common ground that each of the parents identifies as aboriginal.  However, neither parent adduces any evidence concerning any aspect of aboriginal culture nor the likely impact of any proposed parenting order on the children’s right to enjoy their culture. 

2. Each of the parents have engaged in an irresponsible lifestyle characterised by drug abuse, dysfunctionality and instability for the children and it appears that the mother was raised in a similar background herself by drug-abusing parents who engaged in criminal activity.  The mother’s disengagement from the proceedings and failure to comply with directions including with respect to monitoring her drug abuse indicate that it is likely that she continues to live such a lifestyle.

3. The father was also engaged in illicit drug taking and criminal behaviour and as recently as 2016 has been homeless and demonstrated little stability in his life.  He asserts that he has settled down and disengaged from this lifestyle in 2017 and a number of drug screens which indicate that he is drug free provide some support for this contention.  There is no other evidence that corroborates his claim to a more settled lifestyle other than an affidavit provided by a family member.  Having said that, there is no positive evidence to suggest that he continues to engage in criminal activity or drug taking.

Family violence

1. Each of the parties makes some allegations that the other was violent at around the time of separation.  This however, cannot be resolved at an interim hearing and in any event is not a significant matter in these proceedings.  Of greater significance is the exposure of the children to family violence in the mother’s household as a result of the relationship she maintains with Mr H which has been dealt with at length earlier in these Reasons.

2. There is no evidence of any current Apprehended Violence Orders relating to this family.

CONCLUSION

1. At numerous court events both myself and a Judge of the Federal Circuit Court have expressed a range of welfare related concerns about the children, and the Department has been invited to intervene in the proceedings on at least two occasions, which has been declined.  At times it has been assessed that the father posed the greater risk of harm to the children and orders were made that the children live with their mother. 

2. For the reasons given, including that the mother has disengaged from the proceedings, I am satisfied that the children are at an unacceptable risk of harm in her care.  For this reason I discharge the current orders that the children live with her.

3. For the reasons given I also have concerns about risks to the children in the father’s household and his capacity to meet the children’s needs and protect them from harm.  However, I cannot make a positive finding that the boys are at an unacceptable risk of harm in his care.  The boys made no complaints about their father when recently interviewed and it appears likely that their current basic needs, including school attendance are likely being met by their father.  I am satisfied that it is less detrimental for them to live with him than with the mother.

4. B’s position is somewhat different. She has for some time lived in Sydney with her mother and maternal grandparents. She is at an unacceptable risk of harm in the care of the mother and it is likely that significant or even unacceptable risks are present in the maternal grandparents’ care. She is not yet 14, does not regularly attend school and is in my view extremely vulnerable. Although her father appears more capable than her mother to meet her needs and his care is likely to be less detrimental to her than the care provided by the mother, I am only making the order that she live with the father as there is no other alternative. The Department despite two requests and despite the absence of any appropriate caregiver for this child has not intervened in the proceedings. For this reason the Department has once again been invited to intervene, as has the relevant Queensland Child Safety Department.

5. As there are no appropriate interim proposals for the children’s time with their mother this matter has been adjourned for further consideration of these issues.  

6. For the foregoing reasons I make the orders set out at the forefront of this Judgment.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 August 2017.

Legal Associate: 

Date:  17 August 2017