Hill and Ebert and Anor (No 2)

[2016] FamCA 705

FAMILY COURT OF AUSTRALIA

HILL & EBERT AND ANOR (NO 2) [2016] FamCA 705

FAMILY LAW – CHILDREN – Interim parenting – With whom the children live with – Assessment of risks associated with each party – Need to protect the children from harm– Nature of the children’s relationships – Capacity to provide for the children’s needs – Best interests of the children to live with the paternal grandmother – Expected future hearing in relation to parental responsibility and any applications by the parents to spend time with the children.

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

Deiter & Deiter [2011] FamCAFC 82.
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
Hill & Ebert and Anor [2016] FamCA 122
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Ms Hill

FIRST RESPONDENT:	Mr Ebert
SECOND RESPONDENT	Ms Bentham
INTERVENOR	Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Mr Nasti

FILE NUMBER: PAC 5356 of 2013

DATE DELIVERED:

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Frontier Law Group

FIRST RESPONDENT - LITIGANT IN PERSON:

SOLICITOR FOR THE SECOND RESPONDENT: JPM Legal

SOLICTITOR FOR THE INTERVENOR Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: S P Nasti & Co Solicitors

Orders

1. Leave is granted to the legal representatives of the parties to inspect documents produced on subpoena by G Medical Centre, H School and I Hospital and J School.

2. Pending further order, each of the children B born … 2008 and C born … 2010 (“the children”) to live with the paternal grandmother.

3. For the purposes for facilitating Order 2, the mother is to make C available to the paternal grandmother at Suburb K MacDonalds at 8pm this evening.

4. The father is restrained from entering the paternal grandmother’s home under any circumstances and is restrained from coming into contact with the children except in accordance with orders made by this court.

5. The paternal grandmother is restrained from permitting or allowing the children to come into contact with the father except in accordance with orders made by this court.

6. The issue of interim parental responsibility is to be considered at 2.15pm on 22 April 2016.

7. In the event that either parent wishes to make an application for orders with respect to time with the children they are to file such application and an affidavit in support by Monday 18 April 2016.

8. Each of the parties is to have an outline of case and submissions with respect to the issue of parental responsibility and any of the issues to be determined at the hearing on 22 April 2016.  In the event that either parent makes application for time with the children, such applications will also be dealt with on 22 April 2016.

9. Pursuant s69ZW that the NSW Police provide the court with the following documents in relation to Mr Ebert born … 1991 and Ms Hill born … 1988:

   a.Any material relating to any police reports or criminal proceedings or Apprehended Violence proceedings relating to each of the parents or in respect of the children.

10. Leave is granted to the Independent Children’s Lawyer and the Department of Family and Community Services on a short return date to issue a subpoena with respect to either party’s criminal history and when any criminal proceedings involving either parent are identified, I request the Independent Children’s Lawyer seek that the Registrar of this Court obtain all relevant court records and that they be made available to the court on 22 April 2016.

11. The case work manager of the Department of Family and Community Services is to provide an affidavit as detailed as possible relating to the current circumstances of the three households prior to 22 April 2016.

12. Liberty to restore the matter on 14 April 2016, if the child C is not made available to the paternal grandmother.

13. Liberty to Independent Children’s Lawyer to restore the matter to the list in any circumstances as he regards appropriate.

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  Hill & Ebert and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 5356  of 2013

Ms Hill

Applicant

And

Mr Ebert

First Respondent

And

Ms Bentham
Second Respondent

And

Secretary, Department of Family and Community Services
Intervenor

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the interim parenting arrangements for two young children, B, who is almost eight, and C, who is six.

2. Ms Hill (“the mother”) and Mr Ebert (“the father”) formed a relationship in 2007 and separated on a final basis in 2011.

3. In December 2013, the mother commenced parenting proceedings.

4. On 29 September 2014, Ms Bentham (“the paternal grandmother”), with whom the child B was living, was joined as a party to the proceedings.

5. On 19 February 2016, the paternal grandmother filed an Application in a Case seeking various parenting orders, including that the paternal grandmother and father share parental responsibility for the children, that the children live with the paternal grandmother and the father, and that the mother spend supervised time with the children at a contact centre.

6. Neither the mother nor the father filed a Response to the paternal grandmother’s Application in a Case. The mother does not consent to any order that C live with the paternal grandmother. It is inferred that the father supports the paternal grandmother’s application.

7. On 13 April 2016, the Secretary, Department of Family and Community Services (“Community Services”) intervened in the proceedings. I made orders that pending further order the children B and C live with the paternal grandmother and that the father be restrained from entering the paternal grandmother’s home or having contact with the children. The paternal grandmother was also restrained from allowing the children to come into contact with the father and the issue of parental responsibility was adjourned to 22 April 2016. I indicated that I would publish my Reasons for Judgment in due course. These are those Reasons.

Background

1. The mother, who is 27, and the father, who is 25, commenced a relationship and cohabitation in early 2007.

2. The parents’ first child, B, was born in 2008.

3. It is noted in the Magellan Report[1] that in 2009 Community Services records note that reports were made concerning the father’s chronic use of cannabis and domestic violence in his relationship with the mother. It was also reported that the mother used cannabis and the family was referred to Brighter Futures.

   [1] A Magellan report is a report pursuant to the Family Court Magellan program produced by the child protection agency detailing its involvement with the family.

4. The parents’ second child, C, was born in 2010.

5. The mother and father dispute the father’s involvement with the care of the children during the relationship.

6. The father says that he was in a relationship with Ms E, and has a child, D, with Ms E. The mother suggests that the child D was born in 2010.

7. In July 2011, the father says he was incarcerated in relation to the theft of a motorbike and leading police in a high speed pursuit and was incarcerated until 18 January 2012. At the time of committing the offence the father was under the influence of cannabis, and he later completed a course through the Drug Court.

8. In September 2011, while the father was incarcerated, the parents separated on a final basis.

9. The father was released in January 2012.

10. The circumstances in which B came into the father’s care at the paternal grandmother’s home in January 2012 is disputed by the parties.

11. The father says that one week prior to his release from prison the mother left the two children in the care of the paternal grandmother, and upon his release he was the full-time carer for the children. He suggests that C returned to her mother’s care after the mother retained C in around May 2012.

12. After the father’s release, the mother says that she attended the paternal grandmother’s home to facilitate the children spending time with the father and that B spent time with the father for the next few days. While the details of the incident are in dispute, after an altercation between the mother, father and paternal grandmother at the paternal grandmother’s home, the mother was charged with assault occasioning actual bodily harm. She was subsequently convicted and sentenced to a 12 month good behaviour bond and a Apprehended Violence Order was made for the protection of the paternal grandmother for 12 months.

13. It is not disputed that the child B has lived with the paternal grandmother since January 2012. C has generally lived with her mother.

14. Other than the periods in which he has been incarcerated, the father appears to have lived with the paternal grandmother.

15. In around 2012, the mother commenced a relationship with Mr F and has two children with Mr F. L was born in 2013 and M was born in 2014.

16. In 2012, Community Services received a number of reports in relation to the children alleging that they were being exposed to family violence and were at risk of physical harm in the mother’s household. It was assessed following a home visit that the home was appropriately cleaned and C was found not to be in need of care and protection. Community Services appears to have continued its involvement with the family.

17. In 2013, Community Services received five reports in relation to B while he was in the care of the father and his partner Ms N. On 19 December 2013, it is detailed in the Magellan Report that Community Services conducted a Safety Assessment for B and his step siblings and excessive discipline/physical force was substantiated. The father and his partner Ms N denied verbal abuse of the child and drug and alcohol use.  B was found to be in need of care and protection and the matter was allocated for ongoing casework.

18. The mother commenced parenting proceedings in the Federal Circuit Court on 9 December 2013.

19. On 26 February 2014, it was ordered that neither parent use physical discipline in relation to the children nor permit any other person to do so and an Independent Children’s Lawyer (“ICL”) was appointed.

20. On 6 May 2014, the parents consented to various interim parenting orders which provided for the parents to hold equal shared parental responsibility for the children, for B to live with the father and for C to live with the mother. The orders also provided for the mother to spend time with B each Monday, Wednesday and Friday afternoon and each alternate Sunday, and for the father to spend time with C each Tuesday, Thursday and Saturday afternoon, and each alternate Sunday. Orders were also made restraining the parents from consuming any illegal substances when the children are in their care or for 24 hours prior and various orders were made in relation to non-denigration of the other parent, medical emergencies and provision of information by the children’s schools.

21. On 25 July 2014, the father, paternal grandmother and B attended upon the family consultant for the purposes of preparing a Child Responsive Program Memorandum to Court. The mother did not attend.

22. On 11 August 2014, a Judge of the Federal Circuit Court requested the Department of Family and Community Services to intervene in the proceedings. The Child Responsive Program Memorandum was released only to the ICL.

23. On 29 September 2014, the paternal grandmother was joined as a party to the proceedings.  

24. It appears that between September 2014 and November 2014 the father was incarcerated. The paternal grandmother says that this incarceration related to offence of assault occasioning grievous bodily harm as a “result of a car accident, whereby he was driving without a license in a stolen car”. The maternal grandmother says that the father was convicted for “running over someone with a car”. The police or court records in relation to these events or conviction were not tendered.

25. On 11 November 2014, with no appearance by the father, it was ordered by consent that pending further order, the orders of 6 May 2014 in relation to B living with the father and the mother’s and father’s time with the children be discharged. It was further ordered that B live with the paternal grandmother, that the mother spend time with B each alternate Saturday and Sunday and each Tuesday. It was further ordered that the paternal grandmother spend time with C each alternate Saturday and Sunday and each Thursday. A Family Report was also ordered and the proceedings were adjourned until 27 November 2015, after the release of the Family Report.

26. During 2015, when C spent irregular time with the paternal grandmother, the grandmother took the children to the prison to visit the father.

27. In November 2015, the mother, paternal grandmother, maternal grandmother and the children attended upon the family consultant for the purposes of preparing the Family Report. The father was incarcerated and was not interviewed.

28. On 27 November 2015, with no appearance by the father, the Family Report was released to the parties’ legal representatives and the ICL and Community Service was again invited to intervene. The proceedings were also transferred to the Family Court of Australia.

29. In December 2015, the matter was allocated to the Magellan program.

30. On 16 February 2016, with no appearance by the father, the Magellan Report was provided to the legal representatives of the parties, urinalysis was ordered and the mother was ordered to comply with requests for C to be made available to the ICL for interview.

31. On 19 February 2016, the paternal grandmother filed her Application in a Case for interim parenting orders. At the time of her application, the paternal grandmother resided in a three bedroom home through the Department of Housing with B and her two adult children (aged 24 and 22) and said that the father intends to live with her after his release.

32. The father was released from prison in early 2016.

33. On 2 March 2016, having regard to issues of serious concern and risk raised in the Family Report I requested Community Services to intervene in the proceedings and delivered Reasons for Judgment.[2]

    [2]Hill & Ebert and Anor [2016] FamCA 122

34. On 8 March 2016, the paternal grandmother’s application was listed for 13 April 2016 and the ICL was to arrange for requests to be made to various courts for the production of records in relation to the criminal offences and apprehended violence orders involving the parties. By consent, B’s time with the mother was suspended and C was to spend time with the paternal grandmother each weekend from Saturday morning to Sunday afternoon.

35. On 13 April 2016, Community Services intervened in the proceedings. On that date, I made orders in relation to the children living with the paternal grandmother. It was also ordered that issues of interim parental responsibility were to be considered on 22 April 2016, as well as any applications by the parents with respect to time by the children.

The Contested facts

1. In addition to the uncontested facts, in accordance with the decision of SS & AH[3], the Court may have some regard to the matters in dispute.  In that case, 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.

   [3] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[4], a decision of the Full Court citing Deiter & Deiter[5]).

   [4] [2013] FamCAFC 182

   [5] [2011] FamCAFC 82

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was 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.

Assessment of risk

The home invasion

1. There are various conflicting accounts of a “home invasion” on the paternal grandmother’s home by the mother’s associates.

2. The date of the home invasion is unclear. The father reports it as some time in 2012, the paternal grandmother says it occurred in early 2013 and the mother does not provide a date.

3. It is not disputed that there was an altercation in which the Mr F was assaulted in the street, and possibly knocked unconscious. C was taken to the paternal grandmother’s home by the father or a friend of the father.

4. The mother says that Mr F was hospitalised and one of her friends, Ms O, went to the father’s residence with a friend collect C and brought C to her at the hospital.

5. The paternal grandmother says that four people she identified as Ms O and Mr F’ siblings “kicked the door off its hinges” and threatened to kill anyone who moved. The intruders took C, and wanted to take B but saw that he had soiled himself and decided to leave him. The paternal grandmother says that Ms O was charged in relation to the incident.

6. The father says that Mr F and members of his family attended the home, kicked in the front door and took C. They also attempted to take B but the father prevented this.

7. In interview with the family consultant:

   …[B] gave a graphic and very detailed account of the home invasion he has witnessed at [the paternal grandmother’s] home when ‘… [Mr F] and his brothers kicked down the door with a baseball bat, ran in and stole [C] (sic) then drive away’. [B] said that everyone was fighting and he sat on the lounge and watched them fight.

8. While I am unable to resolve this disputed issue on an interim basis, it is evident that the children have been exposed to some serious violence between the maternal and paternal families and their associates.

The mother and her household

1. A number of issues of risk arise in relation to the mother and her household.

2. Of significant concern is the risk of sexual abuse to C in the mother’s household. It is detailed in the Family Report that when C was interviewed by the family consultant:

   The last question [C] was asked was, ‘Has anyone ever touched your flower?’ ([the mother] had told the family consultant that they referred to [C’s] genitals as her ‘flower’). Without hesitation [C] nominated an adult male associated with her mother (by name) and described in very explicit terms what had been done to her. She said it was ‘a long time ago but I still remember’. She said it ‘stung a tiny bit’. What [C] described was unequivocally sexual abuse.

3. When the mother was asked if she thought C may have been sexually interfered with, the mother said “she had heard this before from the paternal family and it ‘made [her] sick’.

4. The family consultant went on to write:

   Clear indications are that [C] may have been sexually abused by an adult male while she was in her mother’s care. During the Family Report interview [C] gave a graphic and explicit account of vaginal digital penetration and its effect (using the language of a child), and named the perpetrator, who is a male person associated with her mother. If [the mother] continues to deny that such abuse occurred, indications are that [the mother] is unable to protect her children, and [C] is at risk of further abuse.

1. It is noted in the Magellan Report that the allegation of C being sexually assaulted by Mr F had been referred to the Joint Investigative Response Team (JIRT).  

2. It is unclear when the mother separated from Mr F. In her interview with the family consultant in November 2015, she stated that she had separated from Mr F a year ago, that Mr F had been “in and out of gaol” for the past few years and was in custody at the time of the interviews. The maternal grandmother states in her affidavit that the mother and Mr F separated in August 2015. The extent of his involvement with the mother is unknown, although it is noted that he is the father of the mother’s two youngest children.

3. The father and paternal grandmother express concerns about Mr F’s violent behaviour. The father alleges that the Mr F has previously been incarcerated for domestic violence offences against his former partner and that B had told him that Mr F had “kicked [him] in the bum” and showed a bruise. In her affidavit in response, the mother disputed that Mr F had physical disciplined or abused B, but makes no comment about Mr F’s incarceration for domestic violence offences.

4. When asked to comment on Mr F, B told the family consultant that Mr F “bashes Mum” and kicked him in the ‘B’. When C was asked about Mr F, she said he is ‘bad’ because he fights with her mother and stabbed her in the throat. C said that she did not see this happen but directly afterwards ‘heard the blood coming out’. When asked if she saw blood, C said that she did, and then pointed to a part of her own neck, to explain where she saw the blood. C also stated that Mr F “hurt me. [She] just run quick away from him. He smacks [her] on the Bs”.

5. In 2015, Community Services received 19 reports in relation to C with concerns in relation to minimal food in the house, the state of the house, physical abuse by Mr F, allegations that C was sexually assaulted by Mr F, self-harming behaviour by C, the mother smoking cannabis and struggling to care for C and her two younger children.

6. In relation to her use of illicit substances, the mother told the family consultant that she smoked marijuana “on and off” when she was with the father, and had been charged with drug possession of marijuana in 2012. She denied that she had ever used “ice”, as alleged by the maternal grandmother.

7. The mother said that she has a criminal record, but that many of her charges are the result of taking the blame for the father and said that had not been incarcerated. The details of these convictions are unknown.

8. The mother impressed the family consultant “as fully stretched as a single mother caring for three small children”. The mother said that she did not have any support in the area in which she resided and impressed as needing ongoing support for her parenting role.

9. In my view, there are very significant risks of exposure to family violence and physical and sexual child abuse to the children, particularly C, in the mother’s household. There are also concerns about the mother’s capacity to keep the children safe. This is particularly so in circumstances where little is known about Mr F’s history or his continuing involvement with the mother.

The father

1. There are a number of issues raised of concern in relation to the father.

2. The mother alleges that the father perpetrated serious physical violence against her during the relationship. In her affidavit, she provides details of specific incidents of physical violence in July 2009, December 2009 and late 2010, including stabbing her in the arm with a pair of scissors and punching her. In interview with the family consultant, the mother said that the first instance of violence occurred when she was pregnant with C and the father punched her in the face and that after that the father frequently hit her. The maternal grandmother says that she saw the mother with cigarette burns and bruises inflicted by the father. The Magellan Report indicates that reports were made in 2008 and 2009 to Community Services in relation to domestic violence. The father denies that he was ever violent towards the mother.

3. As noted, in 2013 Community Services received several reports in relation to B while he was in the care of the father and his partner Ms N. A Safety Assessment for B and his step siblings and excessive discipline/physical force was substantiated and B was found to be in need of care and protection. The father does not refer to these reports or incidents in his affidavit.

4. It is clear that the father has been convicted of several criminal offences. The father was recently incarcerated for assault occasioning grievous bodily harm, although the circumstances of this offence are not in evidence.

5. It is also clear that the children are aware of the father’s offending and incarceration. In interview with the family consultant, B said that his father was in gaol and told a long narrative about the incident that brought about the charges leading to the father’s incarceration. When C was asked where her father was, she replied that he was in gaol because he had a fight with someone. The paternal grandmother also takes the children to visit the father in gaol. The mother told the family consultant that B asked her to play games with him in which they “pretend that B is escaping on a stolen motorbike and being chased by police”.

6. The mother also alleges that the father used cannabis on a daily basis during their relationship. The Magellan Report indicates that there have been reports in relation to the father’s cannabis use since 2009. The father says that he was under the influence of cannabis at the time of an offence (date unknown) for which he was sentenced in July 2011 and he later completed a course through the Drug Court. The father’s current drug use is unknown.

The paternal grandmother and her household

1. In her affidavit the paternal grandmother says that she had a “history with drugs” and has been “clean since 2004 when [she] was charged with possession”. She says she undertook urinalysis testing as requested by the ICL on 17 February 2016. The results of this testing are unknown.

2. In 2015, Community Services received a number of reports that B was being exposed to adult movies with a sexual component in the paternal grandmother’s household. There were also concerns that when B and C were having contact with one another, that B displayed inappropriate sexualised behaviour towards her.

3. The paternal grandmother says in her affidavit that the reports of B being exposed to adult movies were in relation to playing a particular video game. She says that when she saw B playing the game she understood it was “just him driving a car and a motorbike” but that she since become aware of an “x-rated section of the city [in the video game]” and has not let the child play the game since.

4. In her Application in a Case the paternal grandmother seeks that she and the father have shared parental responsibility and that the children live with the father and paternal grandmother. An issue of concern is the paternal grandmother’s potential minimisation of the father’s criminal offending, and risks he may pose to the children.

5. In the Family Report, the family consultant opined that:

   [the paternal grandmother] appears to be currently better positioned to provide safe and reliable care for the children. However, [the paternal grandmother] also has a problematic history. She is a former amphetamine addict who came to the attention of the criminal justice system. Her son [the father] has been in trouble with the law for a number of years... [the paternal grandmother] said that, in her view, [the father] will be with her always, as he cannot manage living independently.

6. The family consultant made various recommendations. These included recommending that B remain in the care of his paternal grandmother, that C be placed in the care of the paternal grandmother on an interim basis unless the court finds there are safety issues to the contrary.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[6].

   [6] (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 such as:

   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 include:

   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. In Deiter (supra), the Full Court 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. This case forms part of the Magellan program which receives priority for final hearing and it is anticipated that the final hearing will be completed in a matter of months.

6. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.

Parental responsibility

1. On 6 May 2014, the parents consented to various interim parenting orders which provided for the parents to hold equal shared parental responsibility for the children. The issue of interim parental responsibility is to be heard on 22 April 2016.

Best interests of the child: s 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3). 

The primary considerations: s 60CC(2)

1. 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.

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

The benefit of a meaningful relationship with both parents

1. Although the meaning of meaningful relationship is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7] 

   [7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

2. The mother has been C’s primary carer for much of her life and it may be inferred that C has an important relationship with her mother. The family consultant was of the opinion that despite B’s verbal rejection of his mother, he loves his mother and craves her attention. It appears that the arrangements for B to spend time with his mother and C have broken down.

3. The father has been absent from the children’s lives for significant periods. He was not available for observation for the family consultant’s assessment. Nevertheless, C identified her father as the person she feels closest after B. B identified the father as the person he likes to look after him when he is sick after his grandmother.

4. However, the children’s relationships with their parents are overshadowed by the issues of risk associated with each parent. In this matter, the need to protect the children must be prioritised over the benefit of a meaningful relationship with each of the child’s parents.

The need to protect the children from physical or psychological harm

1. The issues of risk to the children associated with each of the parties are discussed above.

2. While there are issues in relation to each of the parties, in my view there are particularly concerning and significant risks of harm to C arising from abuse and exposure to family violence in her mother’s household. In particular, the family consultant details clear indications that C may have been sexually abused by Mr F while she was in the mother’s care and the mother’s protective capacity is in issue.

3. There are also serious concerns raised in relation to the father’s criminal history, drug use and disputed family violence.

4. While issues are also raised in relation to the paternal grandmother’s drug use in 2004 and her potentially her prioritisation of the children’s needs above her son’s interests, in the circumstances of this matter, she is able to offer the safest option for the children.

5. The need to protect the children from harm is strongly indicative of the children living with the paternal grandmother.   

6. The Secretary of Community Services intervened in the proceedings on the date of the hearing. It is expected the intervention of Community Services will assist in managing these issues of risk and supporting the children.

7. 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.

The additional consideration: s 60CC(3)

Any views expressed by the children and any factors underlying their views, noting their ages in respect of any weight to be given to their views

1. This matter involves two young children aged eight and six years old and as discussed, safety concerns are of great significance in this matter.

2. It is noted that B identified to the family consultant that he wished to stay with his paternal grandmother because “he love[s] her heaps and heaps and heaps and heaps”. When asked who she would like to live with, C replied “B’s dad” because she loved B and her father and her message to the Judge was that she “want[s] to live with B”. When asked why she did not wish to live with her mother, C replied that her mother has to make the babies go to sleep and they are too loud.

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

1. As discussed earlier in these Reasons, the family consultant was of the opinion that despite B’s verbal rejection of his mother, he loved his mother and craves her attention. She opined that B “has issues in relation to an absent parent, specifically his mother is both physically absent and also emotionally unavailable at times as well”.

2. B appears to share a loving and important relationship with the paternal grandmother. When B was asked why he lives with his grandmother, he replied that it was because she loves him “heaps”, and he loves her “heaps”. While the father was not available for the family consultant’s assessment, B identified his father as the person in his family he would like to look after him when he was sick after his grandmother.

3. The mother has been C’s primary carer for most, if not all, of her life. When asked to draw a picture of her family, C drew herself, her mother and her infant half-siblings. However, C’s relationship with her mother is overshadowed by the mother’s ability to keep C safe while in her care and the mother’s parenting capacity. It is noteworthy that C explained she wished to live with “B’s dad” because her mother has to make the babies go to sleep and they are too loud.

4. The father was not available for interviews or observation in the preparation of the Family Report, so C’s relationship with the father is difficult to assess. The father has been absent from C’s life for significant periods of time, although it is noted that the paternal grandmother appears to have taken the children to visit the father in prison. While C nominated that she wished to live with “B’s dad”, this appears to be somewhat connected to her emotional closeness to her brother B.

5. In the family consultant’s observation between C and the paternal grandmother, they appeared to share a familiar relationship. It appears that the paternal grandmother has been a significant person in C’s life, although the arrangements for C to spend each alternate weekend with her paternal grandmother and B have broken down. When asked who she felt closest to, C nominated B, her father, and then the paternal grandmother.

6. The family consultant opined that the children were emotionally close. C identified B as the person in her family to whom she feels closest and B indicated that he feels very close to C. The family consultant recommended that if the children remained living in separate households they spend every weekend together, although it was noted that the current arrangements for the children to spend time together had broken down.

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

1. Due to the father’s incarceration, he has not recently been able to participate in decision making or spending time with the children.

2. The mother has been C’s primary carer and the paternal grandmother has been B’s primary carer.

3. Unfortunately, despite court orders providing for B to spend time with the mother each alternate weekend, these arrangements have broken down, reportedly because of the mother’s concerns about B’s sexualised behaviour towards C.

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

1. The arrangements to maintain the children are unknown.

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 has lived

1. This factor is a particularly important consideration. The paternal grandmother seeks orders that both children live with her and that C spend supervised time with the mother, which will be a very significant change for C. While it is likely that C will experience some loss if separated from her mother it will be to her benefit to be living with B with whom she has a close relationship.

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

1. The orders sought by the paternal grandmother for C to spend supervised time with the mother may present practical difficulties and expense. It is not clear how such supervision would be funded.

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

1. There are particular concerns about the mother’s protective capacity and whether the children, particularly C, are protected in her care. The mother is the primary carer for three young children and impressed the family consultant as a “fully stretched single mother” needing ongoing support for her parenting role. There are also some concerns raised about the mother’s current drug use which may impact her parenting capacity.

1. There are significant issues in relation to the father’s current parenting capacity. There are concerns about his drug use and possible perpetration of family violence. In relation to the father’s criminal offending, practically, if the father was to be incarcerated in the future this would limit his ability to provide for the needs of the children. In interview with the family consultant for the preparation of the Child Responsive Program Memorandum the father presented as having some form of developmental delay and in the opinion of the family consultant it was not clear that he had the skills to act as a primary carer of a child or to act in C’s best interests with regards to her live with arrangements. In interview with the family consultant for the preparation of the Family Report, the paternal grandmother described the father as suffering “long-standing attentional problems” and said that in her view the father “would be with her always, as he cannot manage living independently”.

2. In my view, the paternal grandmother has the greatest capacity to provide for the children’s needs, particularly their safety. She appears to have addressed the issue of the supervision of the media content to which B is exposed to. The family consultant was of the opinion that the paternal grandmother may also be in a better position to take the children to counselling appointments than the mother, who has the care of young children. There is some concern about her prioritising the needs of the children over that of the father. In my view, this may be addressed by an order restraining the paternal grandmother permitting or allowing the children to come into contact with the father except in accordance with orders made by this Court.

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

1. Both parents have factors in their lifestyle, such as drug use or criminal offending which are of serious concern, discussed earlier in these Reasons.

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

1. Unfortunately, both parents in this matter have prioritised their own wishes over the meeting the needs of their children.

Family violence

1. There are a number of concerns relating to family violence in this family.

2. As discussed, the mother raises allegations that the father was violent towards her during their relationship.

3. In January 2012, in a conflict over the children, after an altercation between the mother, father and paternal grandmother the mother was charged with assault occasioning actual bodily harm and was sentenced to a 12 month good behaviour bond and a Apprehended Violence Order was made for the protection of the paternal grandmother for 12 months.

4. Both children also made statements to the family consultant about witnessing Mr F perpetrating family violence against the mother and the father alleges that Mr F has previously been convicted for domestic violence offences.

Whether preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. As an interim application, there will be further proceedings. Indeed, in circumstances were there are various concerns in relation to the parties, it is desirable that the best interests of the children be considered once further evidence in relation to the parties’ history and current circumstances is available. 

Conclusion

1. I agree with the family consultant’s opinion that this is a situation in which there is no unequivocally good option, but rather assessment of the least damaging option.

2. In my view, the consideration of overwhelming importance in this application is the need to protect the children from harm, particularly the need to protect C in the mother’s household. In my view, the best interests of the children are best met if B and C live with the paternal grandmother, in the absence of the father.

3. In circumstances where there are significant concerns about the father and the mother, the issue of parental responsibility and any applications by the parents for time with the children is adjourned to a future date. Various orders have been made for material in relation to the parties to be provided from other courts, NSW Police and Community Services prior to the future date. It is expected that this material will be available to assist the Court to assess the risks associated with each party and the best interests of the children.

4. Accordingly, the orders that I make are set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 August 2016.

Associate: 

Date:  25 August 2016