Jacobs & Kirby & Anor
[2014] FamCA 231
•9 April 2014
FAMILY COURT OF AUSTRALIA
| JACOBS & KIRBY AND ANOR | [2014] FamCA 231 |
| FAMILY LAW – CHILDREN – No participation by Applicant father in trial – Department of Family and Community Services intervention in the proceedings – Agreement that the mother should have sole parental responsibility – Agreement that the child should live with the mother – Whether the child should spend any time with the father – Whether an order that the child spend no time with the father is in the child’s best interests – Protection from risk of harm – Capacity of the parents – Attitude to the child and responsibilities of parenthood demonstrated by the father – Best interests of the child –Whether the Court has the power to make a “supervision order” in the terms proposed by the Department – Where the Department is not seeking to have sole or shared parental responsibility with the mother – If the Court does have the power to make a “supervision order” on what basis and is the power to be exercised upon conditions |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 64B(2) |
Department of Family and Community Services & Jordan and Ors [2012] FamCAFC 147
Director-General, Department of Family and Community Services& Adams and Anor [2012] FamCA 73
Director-General, Department of Family and Community Services & Sheward and Ors [2012] FamCA 279
Director-General of the Department of Human Services & Tran and Anor [2010] FamCAFC 151
G & C [2006] FamCA 994
L & T (1999) FLC 92-875
Lisle & Lisle and Anor [2011] FamCA 318
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Speltis & Roland [2010] FamCA 343
| APPLICANT: | Mr Jacobs |
| RESPONDENT: | Ms Kirby |
| INTERVENER: | Secretary of the Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Kaiti |
| FILE NUMBER: | PAC2888 | of | 2011 |
| DATE DELIVERED: | 9 April 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 4 February 2014 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Gonzalez & Co |
| COUNSEL FOR THE INTERVENER: | Mr Gutteres |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitors Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lee |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | CBD Legal |
Orders
All previous Orders in respect of M, born … 2011, (“the child”) are discharged.
By consent of the mother, the Independent Children’s Lawyer and the Intervener:
The mother is to have sole parental responsibility for the child.
The child is to live with the mother.
The Court further orders:
The mother and the father are each restrained from using any physical discipline in their parenting of the child.
The mother is restrained from bringing the child into contact with the following people:
(a) Mr C;
(b) Mr B;
(c) Mr W;
(d) Mr A; and
(e) Mr D.
The mother is restrained from allowing any unsupervised time between the child and the following people:
(a) Ms E;
(b) Ms F;
(c) Ms G; and
(d) Ms I.
The father, in the event that he spends any time with the child, is restrained from allowing any unsupervised time between the child and Ms H.
The mother and the father are each restrained from making critical or derogatory remarks about the other in the presence or hearing of the child.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobs & Kirby and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2888 of 2011
| Mr Jacobs |
Applicant Father
And
| Ms Kirby |
Respondent Mother
And
Secretary of the Department of Family and Community Services
Intervener
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This matter concerns the long-term parenting arrangements for M, (“the child”) who is almost 3 years old. The child is the daughter of Mr Jacobs, (“the father”) and Ms Kirby, (“the mother”).
The child’s parents both had troubled childhoods and each was removed from their family and spent time in care.
The Secretary of the Department of Family and Community Services, (“the Department”) has intervened in these proceedings and proposes orders which include a continuing role for the Department in supervising the mother’s care of the child and facilitating any contact with the father.
The parties (other than the father who, despite commencing the proceedings, did not participate in the hearing) agree on most matters concerning the child, in particular, that the mother have sole parental responsibility for her and that the child live with her. The only matters for me to decide are whether these orders are in the child’s best interests, and whether I should make the additional orders sought by the Department including orders relating to the Department’s supervision. Finally, as there is no agreement about whether orders should be made for the child to spend time with her father, I must also decide whether it will be in the child’s best interests for that to occur.
Background
Both of the parents were born in the early 1990s. Each of them was removed from their parents due to inadequate care and has spent time in foster care.
According to the Department’s records the father was homeless, or his accommodation was unstable, between 2004 and 2006. It appears he stayed in refuges, with family or friends during 2007 and then lived in a youth residential service in early 2008.
Between 2007 and 2009, according to the Department’s records, the mother stayed in a number of refuges and accommodation services, including J Refuge.
In about March 2008, the parents commenced a relationship whilst they were both staying at J Refuge. Reports were made to the Department during this time that the mother was self-harming, her mental health was unstable, that the parents’ relationship was volatile and that the father was violent towards the mother.
In about mid-2009, the mother began engaging with K Youth Service, which provides assistance and counselling to young people between 12 and 24 years of age.
The parents separated on a final basis in mid to late 2010 when the mother was in the early stages of her pregnancy with the child.
Since October 2010, reports were made to the Department about risks of harm to the mother’s (then unborn) child, initially regarding the mother’s mental health and domestic violence between the parents. Reports were made that the father had a history of illegal drug use and unstable accommodation.
In early 2011, the mother formed a relationship with a Mr T, (“the mother’s partner”) and that relationship has continued.
When the mother was pregnant with the child, she accepted support services to assist her with the pregnancy and later with parenting the child.
In April 2011, the child was born. There is some dispute between the parents about the child’s name, with the father insisting that they had agreed to call her “L”. The parents have no other children together.
Between May and August 2011, the father spent no time with the child. Each of the parents blames the other for this situation.
On 29 June 2011, the father commenced these proceedings in the then Federal Magistrates Court. He also filed a Notice of Child Abuse or Family Violence alleging the mother had a history of mental illness and self-harm and was not compliant with medication resulting in the child being at risk in her care.
In mid-July 2011, the mother and the child attended N Centre, a service to provide parents with mothercraft skills (including routines, feeding and general parenting issues such as settling babies), for a residential stay and assessment of her parenting skills for a period of five days. The mother was found to be “meeting the child’s basic needs under supervision”.
In August 2011, the mother began receiving assistance from O Service, an early intervention service for parents with children facing possible child protection issues.
On 9 August 2011, a Federal Magistrate made various Orders including inviting the Department to intervene in the proceedings and made interim Orders for the child to spend some time with her father at a contact centre.
On 25 August 2011, the Department and the mother agreed to a “Safety Plan”. The safety plan was required as the Department considered that there were risks to the child associated with coming into contact with the extended maternal family and the father, and as the mother was struggling to cope due to her mental state.
There are many concerns about the extended maternal family. These include violence within the home and the maternal grandfather having been physically abusive and having allegedly sexually assaulted the children and his girlfriend. There are also concerns about the maternal grandmother’s discipline of the children and that there was violence and sexualised behaviour and sexual assaults between the siblings. To address the risk of physical and sexual abuse, the mother agreed that she and the child would have no contact with the maternal family. As the mother had previously been the victim of domestic violence from the father, it was also agreed that the mother and the child would have no contact with the father. To address concerns about the mother’s mental health the mother agreed to contact a Community Services caseworker, staff at P Youth Services and/or O Service staff when she felt she needed assistance.
Despite the Safety Plan, the mother took the child to her mother’s home in August 2011. The mother said she had gone to the home because her sister was in labour and her mother asked her to come over and comfort her sister, who was in a lot of pain. The mother had not thought to check with the Department whether this was acceptable.
On 9 September 2011, a Federal Magistrate made interim Orders by consent for the child to spend some time with her father, supervised by a maternal great aunt until a vacancy arose at a contact centre. On this day the proceedings were also transferred to the Family Court.
On 27 September 2011, the Department joined the proceedings.
Between October 2011 and June 2012, the child spent supervised time with her father at O Service once a week and also had some unsupervised time with him.
On 16 March 2012, the Department and the mother entered into a new “Safety Plan”, to address the issues that had been previously identified as well as the mother’s non-engagement with services to assist her with her parenting. Under the amended safety plan the mother was allowed to have contact with her extended family alone, and the mother and the father were permitted contact through their lawyers only in relation to issues regarding changeover. The mother also agreed to attend O Service three days per week.
In April 2012, the mother gave birth to a son Q, fathered by her current partner.
In about mid-2012, the father commenced a new relationship. The father at around this time regularly failed to spend time with the child, though each of the parents blamed the other for this occurring.
Also in about mid-2012, the Department noted concerns about the mother having a “break down”. The mother says she had been stressed about issues with the father and upcoming Court, and was crying a lot. During this episode the Department felt that the mother acted in a protective manner in placing the child and her other child (at that time) in the care of her partner’s family. The mother’s partner also acted appropriately in assisting placing the children in his parent’s care and in having the mother attend upon a doctor before allowing the children to return into her care.
In June 2012, following an incident involving the father at O Service, that service was no longer prepared to supervise the father’s time with the child.
Between June 2012 and September 2013, the father’s time with the child was irregular with both parties alleging the other failed to attend at changeovers.
On 15 July 2013, Dr R, a consultant psychiatrist, (“the expert” or “the doctor”) prepared a Chapter 15 expert report to assist the Court. I accept the uncontradicted evidence of the doctor and place significant weight on it having regard to his expertise, observations of the interactions between the child and parents and the wide range of sources of information available to him.
Between September 2013 and November 2013, the father spent supervised time with the child one day each week and unsupervised time with the child on a second day each week.
In October 2013, the mother gave birth to a daughter S, fathered by her current partner.
In November 2013, the mother showed Departmental officers footage of the father using marijuana in the child’s presence. The father denied doing so and did not agree for his time with the child to be supervised. As a result, the Department suspended the father’s time with the child until the matter was further assessed by the Court. The father agreed to undergo urinalysis testing, but has not attended any of the appointments scheduled by the Department to date.
On 18 December 2013, the father did not attend when the matter was before the Court for mention. It also became apparent that the father had cancelled about eight of the scheduled visits with the child during the previous two months. I suspended the father’s unsupervised time with the child but left in place the Orders for the father to spend supervised time with the child once per week.
Currently, the mother lives with her partner, their two children and the child M in a two-bedroom unit in Suburb U. The lease is provided by Organisation V and is for an indefinite period.
The current living arrangements of the father are unknown other than it appears he received housing in late 2013 in the Suburb Y area. The Department, however, has been unable to conduct a home visit and assess his residence at the time of the hearing.
The mother and her children have been attending O Service for group therapy and parenting courses since August 2011 and have attended three days per week for around two years. From 2014, the child was to commence day care twice per week on Mondays and Thursdays.
The Orders Sought
On the first day of the hearing, the father did not appear. His only affidavit filed at the commencement of the proceedings on 29 June 2011 was not read. The other parties reached agreement concerning the parenting orders except the ‘supervision’ order. Significantly, all parties agree that it is in the child’s best interests for her mother to have sole parental responsibility for her and for her to live with the mother.
Although the father did not attend the hearing to press his application, at the commencement of the proceedings he had sought orders for the child to live with him and spend only supervised time with the mother and for the parties to share parental responsibility for the child. On the last occasion he appeared at Court, he indicated that he did not agree with the expert report writer’s recommendation that the child live with the mother.
The mother seeks orders that the child live with her and spend no time with the father, which is also supported by the Independent Children’s Lawyer. The Department also seeks orders providing for the child to live with the mother and for the mother to have sole parental responsibility for her. The Department also seeks an order that the parenting of the child be supervised by the Secretary of the Department or his delegate for 12 months and proposes an order which allows for supervision to include the mother following the directions of the Department in relation to the child’s time with her father.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.
The objects and the principles emphasise that the best interests of children are met by both parents being involved in their lives in a meaningful way, being protected from abuse, neglect and family violence and receiving adequate and proper parenting from parents who share responsibility for them.
According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration, or the most important matter.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
These proceedings were commenced prior to June 2012, and the law at that time will be applied.
Primary considerations
The primary considerations (under s 60CC(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.
Benefit of a meaningful relationship with both parents
The phrase “meaningful relationship”, is not defined in the Act itself. However, the Full Court in McCall & Clark[1] approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and also agreed with the reasoning of Bennett J in G & C[3]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
The Full Court also said in McCall & Clark (supra) at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
I have some concerns about whether it will be of positive benefit to the child to make orders that will promote her spending time with her father as such time together may not be in her best interests.
At the time Dr R, the expert psychiatrist, assessed the parents, the father was having intermittent contact with the child and had accepted some assistance in relation to her care. Although at that time the doctor assessed the father as demonstrating consistent commitment to the child, the doctor was of the view that the father’s relationship with the child was idealised and his seeking time with her appeared to be more about his demand than the child’s needs. Since then, the father has spent very little time with the child and has not participated in the proceedings.
At the time of the interviews and preparation of the doctor’s report, however, orders providing for no contact with the father were not contemplated. Further, the doctor has not had the opportunity to consider the evidence of events since that time such as the father’s time being suspended due to his suspected drug use and failure to undergo drug testing and his disengagement with the proceedings.
In these circumstances and in the absence of contrary evidence, I am concerned about the extent to which the child will benefit from a meaningful relationship with her father.
Protection from harm
The second primary consideration is significant in this matter as concerns have been raised in relation to the child being potentially subjected to abuse, neglect and family violence.
Dr R found the mother to have experienced chronic complex post-traumatic stress, related to her physical and likely sexual abuse by family members and her chaotic and dangerous childhood household. He noted the mother had borderline personality traits, which manifested a few years ago but these traits had stabilised at the time of the report to the extent that the doctor felt that the mother no longer met the criteria for a borderline personality disorder.
Although there were some concerns raised by service providers who were assisting the mother after the child was born, about the mother’s capacity to protect the child from harm, the mother has accepted quite intensive support with her parenting for over three years. She has also complied with the safety plan she developed with the Department, except for a single occasion when she had contact with her family contrary to the agreement. The doctor described the mother as vigilantly protective of the child, which he viewed as arising from her own experiences in childhood of not experiencing competent and consistent parenting.
The doctor regards the risk of abuse or neglect in the mother’s care as low, because that risk in his view arises only if the mother relapses into borderline disorganisation. He feels that this risk is mitigated by the mother’s history of seeking help when she needs it and making good use of supports.
The doctor was of the view that the father posed a number of risks to the child. He considered that the greatest risk the father poses is the secondary risk of disruption of the wellbeing and capacity of the mother arising out of their past pattern of family violence and the father’s failure to recognise the mother’s current parenting capacity. He said “as the child grows older, if the father was to show overt disrespect for the mother in the child’s presence, this will create distress and loyalty conflict for the child.”
I am also satisfied that there is a risk of psychological harm arising from neglect of the child if orders were made as sought by the father due to the uncontradicted evidence relating to the father’s unstable accommodation, substance abuse and prior violent conduct towards the mother. There is no evidence that the father has addressed these issues. There is also the uncontradicted evidence that the father exposed the child to his own illicit drug use during unsupervised time with her late last year. That risk could have been evaluated by ongoing urinalysis testing. However, although the father agreed to undergo this testing, he has not presented at any appointments scheduled by the Department to date.
The doctor recommended that if the Court holds concerns about these risks, as I do, the child’s time with her father should be reduced or cease.
The doctor recommends various restraints be placed upon the parents in relation to the use of alcohol and illicit drugs whilst the child is in their care, the use of physical discipline and denigrating each other.
The child also needs to be protected from harm associated with being subjected to abuse, neglect and family violence from both parents’ extended families. The Department has been involved with both of the extended families since the mid to late 1980s for reasons including domestic violence, abuse and/or neglect of children in the care of family members, alleged sexual assaults upon children or between siblings in the maternal family, and mental health, self-harm and gambling issues in the paternal family.
The doctor recommended the contact between the child and the extended maternal family and with the paternal grandmother be limited to reduce this risk. The proposed order of the Intervener restraining each of the parents from bringing the child into contact with extended family members would alleviate this risk. The mother and the Independent Children’s Lawyer agree to these orders being made.
Additional considerations
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
The nature of the child’s relationships with others
The doctor was of the view that the child has a secure attachment relationship with the mother and the mother is mostly able to meet her needs. The doctor described the mother as the only continuous attachment figure in the child’s life and that the mother had a positive attitude to the child and to parenting.
The doctor viewed the mother’s relationship with the child as being enriched, enhanced and strengthened by the mother’s relationship with her partner and their co-parenting of the child.
The child appeared to the doctor to also have a good relationship with the mother’s partner’s family, having spent regular time with them.
The doctor said the child did not have a substantial relationship with the maternal extended family due to the restrictions the Department has placed upon their contact and viewed the mother as appropriately protective of the child in relation to time spent with her extended family. The doctor supported orders restricting contact between the child and her extended family to provide a useful boundary for the mother to protect the child and not become coerced by the expectations or demands of the extended family.
A strong and positive bond between the mother and the child had also been observed by O Service workers engaged with the mother.
The child’s relationship with her father, according to the doctor, is based on “a lot less connected time” than the mother’s. The doctor accepted the evidence of the father’s O Service coordinator that the father had been consistent in his commitment to playing a parenting role in the child’s life, but got frustrated and angry about disruptions in his time with the child. Whilst it appears the father has shown that he is attuned to the child’s needs at O Service, the doctor was of the opinion most of the father’s relationship is idealised. He viewed the father’s relationship as more idealised when he was not seeing the child, and more realistic and attuned when they have spent time together. The doctor felt that the child recognised her father but appeared cautious, which may be because of their limited experience together.
The doctor did, however, say that the father and the child would be able to develop a positive, secure attachment relationship if given the opportunity to spend regular time together in a safe environment.
The Department reported the child’s time with her father during scheduled visits between September and November 2013 as “a positive experience for [her]”. Since being suspended in late 2013, as I understand it, the child has not spent any time with her father.
Willingness and ability of each parent to facilitate and encourage a close and continuing relationship with the other parent
Neither of the parents appear willing or able to facilitate and encourage a close relationship with the other parent. Each seeks orders that the child live with them. The mother proposes that the child spend no time with her father. The father proposes that the child only spend supervised time with the mother.
The doctor considered that the father had limited capacity to support the mother in her parenting role.
Likely effect of change in circumstances from orders
The father’s proposed orders that the child live with him and have only supervised contact with her mother would, in my view, have a devastating effect upon the child.
Dr R described the mother as the only continuous attachment figure in the child’s life and expressed the view that separating the child from her mother would be distressing and markedly disruptive for the child’s development. This order is not supported by any of the other parties.
The orders proposed by the mother that the child live with her and have no contact with the father would result in very little change for the child. It is many months since the child spent time with her father and even at the time the doctor carried out his assessment (August 2013), the doctor described the child as recognising her father, but appearing cautious.
Practical difficulty and expense
If orders are made as sought by the Department some practical difficulties will arise as the mother will be required to make the child available at the Department’s request and take her to places nominated by the Department for them to facilitate time between the child and the father.
Capacity of the parents and others to provide for the child’s needs
The capacity of each of the parents to meet the child’s needs is a significant consideration in this matter.
The doctor expressed some concerns about the mother’s capacity arising from her complex post-traumatic stress disorder and borderline personality traits which arose from her childhood experiences. The feedback to the Department from the mother’s attendance at the N Centre program in July 2011 was that the mother was doing quite well in the circumstances but did not appear (at that time) to recognise need for support. The staff at N Centre did not observe any neglect towards the child or any safety issues, but were of the view the mother should be receiving support in her care of the child.
The mother had also seen Dr X, a psychiatrist in mid-2011, who was asked to prepare a report for the Department in relation to the impact of the mother’s mental state upon her parenting ability. Dr X found the mother, at that time, to have some residual symptoms of post-traumatic stress disorder, but was of the view they were unlikely to impact upon her parenting capacity. He viewed the mother as receiving appropriate ongoing treatment and support for her post-traumatic stress disorder.
The mother’s counsellor from K Youth Service also told Dr R that the mother had matured and gained “reflective functioning” and also commended her on her strength in seeking support and assistance when she needs it. Further, the Department received positive feedback from the mother’s counsellor from time to time about the mother and her parenting of the child.
When preparing his report the doctor also spoke to the O Service workers about each parent. The coordinator of the mother’s programme said that the mother was “doing well”, her parenting was good and she attended regularly. The worker said that the growth in the mother’s parenting of the child over the last 18 months was “amazing” and the service commended the mother for seeking help when she needed it. They reported the mother as being a “lot more stable” since she has been with her current partner. The doctor placed particular weight on the views of the O Service staff – “as it is based on rather naturalistic observation of the mother and child over three days per week over 18 months”.
The doctor then said the mother no longer met the criteria for a personality disorder and had stabilised. He was impressed with the mother’s resilience and acceptance of services and supports as well as being involved in healing therapeutic relationships and, at the time of interview, did not have any particular concerns about the mother’s capacity.
The doctor recommended, however, that the mother continue to engage with O Service for a further 12 months and receive ongoing parenting support and family therapy (with her partner and her children) at least until the child commences school. He also recommended that the mother continue to receive individual counselling with K Youth Service. These recommendations are reflected to some degree in the orders sought by the Department. The mother has agreed to accept services to support her.
The doctor found the mother’s partner initially presented as anxious, but otherwise presented with no evidence of psychiatric disorder, depression or anxiety.
The doctor raised concerns about the father’s capacity to meet the child’s needs in his report which also relate to the father’s childhood experience and mental health. The doctor described the father as having a persistent depressive disorder of moderate intensity, which has fluctuated since his childhood, and viewed the disorder as being in partial remission at the time of his assessment in light of the father’s hopeful and idealised approach to life in recent years.
The doctor considered that the father had borderline and narcissistic personality traits, which may meet the criteria for a personality disorder. He thought that the father’s emotional and behavioural problems have been complicated by his self-harm and aggression towards others and said that the father also presents risks in respect of drinking and illicit drug use.
Whilst the doctor viewed the father as committed to his role and responsibilities as a parent, he was concerned about the father’s capacity. He viewed the father’s capacity to support the mother in her parenting role as limited. Although the doctor accepted the statement by the father’s O Service coordinator that the father has the capacity to meet the child’s basic and emotional needs when supported and in a contained environment, where he is able to focus on the child’s needs, he was concerned this may not translate to a day-to-day context. He was also concerned about the father’s unstable residence and social supports at the time of interview.
The father was not attending O Service at the time of the interview because of an incident between the parents at a changeover at O Service. The doctor recommended, if possible, that the father reengage with O Service for a 12 month period, or another service or individual professional, to provide him with ongoing parenting support and family therapy at least until the child is of school age. He also recommended the father receive individual therapy or be assisted by a caseworker/support worker. The father’s attitude to these recommendations is not known as he has disengaged from the proceedings.
The doctor noted the father’s partner’s only child was removed from her care by the Department when she was 18 months old and that the father’s partner spends only supervised time with her. The Department has not received any cooperation from the father and his partner in relation to obtaining further information about the father’s partner’s history with the Department.
Attitude to the child and responsibilities of parenthood
The doctor said that the mother has shown a consistent positive attitude and commitment to the child and the responsibilities of parenthood. He found her to be currently meeting the child’s basic needs, as well as emotional and developmental needs. He noted the mother’s cooperation with the Department since the child’s birth and her commitment to receiving support services to assist her in caring for the child.
The mother has made all of the decisions in relation to the child. The father has taken the opportunity to spend time with the child in an inconsistent manner. Although the father impressed the doctor and O Service workers as committed to spending time with the child, there have been orders providing for the child to spend time with him, which at times he has not taken up.
Despite the doctor noting the father appearing to be committed to playing a parenting role in the child’s life (at the time of interviews at least), he noted that the father gets frustrated and angry when there are disruptions to his time with the child. The doctor felt the father’s persistence in seeking to spend time with the child appeared to be more about his demands than the child’s needs. It is of note that the father has not pressed his application and was seen to be frustrated in Court apparently in respect of limitations placed upon his time with the child.
I accept the mother’s submission that the father has been “highly erratic” in respect of time he has spent with the child since Orders were put in place for him to do so.
At the commencement of the proceedings there was a dispute regarding the child’s name with the father insisting that the parents had chosen the name “L”, which the father persisted in using. An Order was made restraining the parties from referring to the child as “L”. The doctor viewed the father calling the child “L” as more about him surviving in a parenting role than about the child’s needs.
The mother says that the father has not paid child support and there is no contradictory evidence. The mother is left to solely finance the upbringing of the child, with some assistance from her partner.
Aboriginality
The mother identifies as Aboriginal through her paternal family. She has no contact with her father and says she has not had the opportunity to herself be educated about Aboriginal culture. However, she participates in NAIDOC week each year and interacts with members of the Aboriginal community. She listens to Aboriginal music and dances to it with the child and her other two children.
The mother’s partner is also of Aboriginal background and has previously been involved in organising Aboriginal activities with children, including dancing, face painting, didgeridoo playing and the like.
Together with her partner’s family, the mother has taken the child to participate in a tribal meet up with bush tucker and a traditional Aboriginal ceremony and activities.
In the mother’s household, the child will have the opportunity to learn about and enjoy her Aboriginal background.
Family violence
The mother gives uncontradicted evidence that the father was both physically and sexually abusive towards her in the past. She alleges he caused her to lose two pregnancies prior to her pregnancy with the child. There are reports of risk of harm to the Department during their relationship of the mother presenting with bruising and the mother saying it was caused by the father.
There is no evidence that the child has been exposed to any physical violence between her parents, or that there are any concerns in respect of the mother’s household.
However, it appears that the child has been exposed to parental conflict at changeovers on a number of occasions. There was an incident between the mother and the father at a changeover in June 2012 where the mother says the father verbally abused her and her partner and made threats to kill them. A week later the mother says an incident occurred at O Service where the father verbally abused her in front of O Service staff, other parents and children. Following the incident O Service refused to have any further involvement with the father.
Arising out of these two incidents the mother obtained an Apprehended Violence Order (AVO) on 26 June 2012 against the father for her protection for a 12 month period.
I accept the submission made on behalf of the mother that there is an ongoing risk of family violence if the mother is required to come into contact with the father. It is submitted on behalf of the Independent Children’s Lawyer that a positive order for the child to spend no time with her father would alleviate any concerns in respect of the parties negotiating directly with one another in respect of any time between the child and the father.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings?
The mother submits that there have been ongoing problems with respect to the father meeting his obligations under previous Orders to spend time with the child. Any final orders made placing positive obligations on the mother in respect of the child spending any time with the father, it is submitted, may lead to further issues as to compliance with orders and the potential for further proceedings.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that when making a parenting order, the Court must presume that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
There are reasonable grounds to believe that the father has engaged in family violence based on the mother’s uncontradicted evidence, supported by reports made to the Department. For this reasons, the presumption of joint parental responsibility does not apply.
The mother, the Independent Children’s Lawyer and the Department all support an order that the mother have sole parental responsibility for the child. The Department submits that the disengagement of the father in the proceedings is arguably, in itself, sufficient basis for an order granting the mother sole parental responsibility. In addition, the Department seeks an order that the mother keeps the father informed of long-term decisions she makes regarding the child and takes into account any views expressed by the father. This is in line with the doctor’s recommendation.
It is submitted on behalf of the mother that any requirement for the mother to communicate with the father will continue to raise the risk of parental conflict.
The uncontradicted evidence is that the parents are not able to communicate effectively, and that the father becomes abusive towards the mother when they do speak irregularly. The mother says the father is aggressive and derogatory towards her and accuses her of kidnapping their daughter. This assertion is supported by the making of an AVO for the mother’s protection and the incident at O Service in mid-2012 when the father’s behaviour was sufficiently concerning to cause that service to discontinue involvement with the family. Furthermore, a prime example of the parents not being able to cooperate effectively or make decisions together is the father’s persistence in calling the child “L”.
The mother has been the child’s primary carer since birth and appears to have made the appropriate decisions in respect of the child’s needs and welfare to date, with the assistance of various services. The child is developing appropriately and the participating parties, together with the psychiatric expert, recommend the mother be given sole parental responsibility.
I am satisfied on the basis of the uncontradicted facts, expert report and disengagement of the father that an order of sole parental responsibility to the mother is in the child’s best interests.
Should an order be made for the child to spend time with her father?
The mother and the Independent Children’s Lawyer both seek an order that the child spend no time with the father.
The Department seeks that the issue of whether or not the child spends time with her father and the circumstances of that time be a matter that the Department determine itself as it proposes that this matter fall within the supervision of the mother by the Department.
The Department’s proposed order in that regard is that “for the purposes of supervision… each party shall… follow directions of a delegate of the Director-General in relation to [the child’s] time with the father.” This order is opposed by the Independent Children’s Lawyer.
The Independent Children’s Lawyer says that under section 64B(2) of the Act a parenting order may deal with the time a child is to spend with another person, or the Court can decline to make such an order. In this case, the Court is not being asked by any party to make such an order. Indeed, the Department submits that the history of the matter mitigates against any order for defined time, and the Department is instead seeking itself to have control over the time the child spends with her father, by including it in a “supervision” order.
At the time of the interviews with the doctor, the mother’s application did not include a positive order that the child spend no time with her father. The Department submits that the proposal does not appear to have been put to the doctor and, in any event, the doctor does not canvass it as an option in his report, other than fleetingly. It is submitted on behalf of the Department that given the doctor had the opportunity to consider all documentary evidence at that time, including subpoenaed material, and to interview the parties, it can be reasonably inferred that the doctor did not consider such an alternative to be in the child’s interests.
Despite the doctor’s assessment of the father, the doctor recommended that, if the Court were to make such an order, it should be limited to a single day, no more than once per week until the child commences school, and that it be unsupervised. He recommended that changeovers take place at either a contact centre, a police station or with a third party present. Upon the child commencing school, and the father receiving professional assistance, the doctor recommends the father’s time become more substantial, such as fortnightly time, but that holiday time not be extensive.
The doctor appears to have seen a benefit to the child in continuing a relationship with her father, particularly in the long term. The Department relies upon this evidence in opposing an order that the child spend no time with the father. The mother did not call the doctor for cross-examination and therefore his evidence stands unchallenged. The Department submits that the Court should place considerable weight upon the doctor’s report and urges the Court to make no order in respect of the father’s time in preference to a positive order for no time as proposed by the mother and supported by the Independent Children’s Lawyer.
Since the doctor’s report was prepared however, some circumstances have changed. It appears that at the time the doctor made his recommendations, the father was the most motivated he has been in the proceedings.
The child has spent irregular time with her father between June 2012 and September 2013, and the mother says there were ongoing problems with the father failing to attend for contact since early 2012. The child then spent some supervised and some unsupervised time with her father between September and November 2013, but the father cancelled a number of scheduled visits. The father’s time was suspended altogether in November 2013 by the Department because of the father smoking marijuana in the child’s presence. Since that time, the father appears to have made no attempt to reinstate any time with the child, even on a supervised basis. He has been uncooperative with the Department in not undertaking urinalysis testing arranged for him, or allowing Departmental officers to conduct a home visit.
The father participated in the proceedings, albeit behaving in an agitated manner at times because of the limitations and restrictions on his time with the child, up until early September 2013. Despite being made aware on the last Court date he attended that the matter had been set down for a four-day hearing and a readiness check, he failed to appear at both subsequent events.
The mother is concerned that due to the father’s history of irregular and unpredictable contact with the child, the child will be left disappointed and confused if orders are put in place for the father to spend time with her but he fails to attend in the future.
The Supervision order
The Department not only opposes an order providing that the child have no contact with her father, but also seeks orders that involve the father in a number of ways. It is proposed by the Department that the mother advise the father of decisions she proposes to make affecting the long-term welfare, care and well-being of the child, take into account any views he expresses about the decision and tell him about her decision within two days after she has made it. The mother agrees with this order but the Independent Children’s Lawyer does not seek such an order.
The Department also seeks an order that the father continue to engage with O Service or another parenting program for 12 months and engage with an individual therapist or support worker and comply with referrals made by the Department or O Service in this regard. The Department also seeks restraints on both parents from using illegal drugs when caring for the child and in the case of the father, from consuming alcohol for a day before and while the child is in his care. The Department also seeks an order restraining the father from allowing any unsupervised time between the child and the paternal grandmother. Each of these orders in relation to the father are agreed to by the mother but not sought by the Independent Children’s Lawyer.
The final order proposed by the Department in relation to the father concerns time that the child may spend with him, which as previously discussed the Department proposes to be a matter which will be directed and supervised by the Secretary of the Department or his delegate. This order is opposed by both the mother and Independent Children’s Lawyer.
In addition, the Department proposes that the Court make an order that the parenting of the child “is subject to the supervision” of the Department. Proposed orders set out how that supervision is to occur, such as by home visits, monitoring of medical appointments, parenting courses and the like and includes the broad proposal that each parent “otherwise comply with all reasonable directions” of the Department’s representative in relation to the care of the child. These orders are opposed by the Independent Children’s Lawyer but agreed to by the mother. The only part of the supervision order that the mother opposes is an order which requires the parents to follow the directions of a Departmental officer in relation to the child’s time with her father.
Does the Court have the power to make a “supervision order”?
The orders that the Department seeks, which are opposed completely by the Independent Children’s Lawyer and partly by the mother, and which relate to supervision, are as follows:-
That, for a period of 12 months from the date of this order, the parenting of [the child] shall be subject to the supervision of the Director-General, Department of Family and Community Services (“the Director-General”) or his delegate.
That for the purposes of supervision… Each party shall:
a)allow a delegate of the Director-General to conduct home visits at the home at which either parent lives;
b)organise and ensure [the child’s] attendance upon any medical appointments as directed;
c)attend and complete parenting courses, parenting assessment and other services as may be recommended from time to time by a delegate of the Director-General;
d)make [the child] available for the purposes of any assessment as may be requested by a delegate of the Director-General;
e)otherwise comply with all reasonable directions of a delegate of the Director-General in relation to the care of [the child]; and
f)follow directions of a delegate of the Director-General in relation to [the child’s] time with the father.
Each party agrees that the issue of the source of the power for a Court to make a supervision order of this type has not been specifically considered by the Courts, though the Department submits that similar orders have been frequently made on an interim and final basis in family law proceedings.
The Department gives examples of cases in which orders were made which include an element of supervision by the Department in other family law proceedings. In all but one of the cases relied upon by the Department, an order was made for a State welfare department to supervise the parents’ care of a child in circumstances where the Department was also allocated aspects of sole or shared parental responsibility with the parent or parents.
In Director-General, Department of Family and Community Services & Adams and Anor[4], orders were made for the father and the Minister to share parental responsibility on issues of the children’s residence and spending time with the mother until the children turned 12 years. These Orders also included a form of supervision order which was quite different to the one proposed in this case.
[4] [2012] FamCA 73
In Director-General, Department of Family and Community Services & Sheward and Ors[5], an application by the Department was made to vary parenting Orders which included a supervision order. The supervision order had been made in circumstances where the Department had sole parental responsibility for a period of 12 months for the child, prior to it reverting to the father.
[5] [2012] FamCA 279
In Speltis & Roland[6], Murphy J made supervision Orders by consent for 12 months where sole parental responsibility for the child was allocated to the Minister for 12 months and thereafter to the mother.
[6] [2010] FamCA 343
Only one of the cases referred to, Lisle & Lisle and Anor[7], involved the Court making a supervision order in circumstances where sole parental responsibility for two children was allocated to each of the parents respectively. The Order made was in similar terms to that being considered in this case, being an order that the parents “abide by any reasonable direction for the Department” for a 12 month period including attending counselling, parenting courses and the like. In that case, there was no specific discussion in the Reasons for Judgment of the source of the Court’s power to make such an order.
[7] [2011] FamCA 318
Only two of the cases referred to in the Department’s submissions are decisions of the Full Court. In Department of Family and Community Services & Jordan and Ors[8], the Full Court considered the interrelationship between the Family Law Act and New South Wales child welfare legislation in relation to the issue of disclosure of the identity of a person who made a notification to the Department. In reciting the background facts, which involved the intervention of the Director-General in parenting proceedings undertaken in the Federal Magistrates Court (as it then was), it was said at [4]:
… an interim order was made whereby in relation to the mother’s care of the children, she was required to accept supervision from the Director General.
No other information is given in relation to the circumstances surrounding the making of this interim Order. It is not known, for example, whether the parties had consented to this interim Order or exactly what the expression “supervision from the Director General” in that case entailed.
[8] [2012] FamCAFC 147
In the second of the matters considered by the Full Court, Director-General of the Department of Human Services & Tran and Anor[9], the Full Court was considering a range of issues in relation to parenting orders and, once again, the legislative basis for a “supervision order” in a general sense was not being considered in the appeal. It is submitted by the Department that it is implicit that the Full Court considered that the trial judge had the authority to make such an order as the Full Court expressly referred to the supervision order without comment or query about its validity.
[9] [2010] FamCAFC 151
In that matter, however, the terms of the order were that the Department was to “monitor and provide guidance to the Mother and Father in relation to the care of the child”. Of significance, the Department was providing guidance to parents in circumstances where the child was to live with the mother but the Department had sole parental responsibility for major long-term issues in relation to the child. The monitoring and guidance was, according to the orders to be “as [the Department] considers appropriate consistent with the parental responsibility conferred upon [the Department] under [the orders].”
In my view, each of the cases referred to, other than Lisle (supra) differ from these circumstances in one significant way, as in each the Department had at least some aspects of sole parental responsibility allocated to it as well as to the parent being supervised. In my view, these cases can be distinguished for that reason.
Seeking a supervision order in this case is inconsistent with the order for sole parental responsibility to the mother, to which the Department has consented and which I have found is in the best interest of the child. As the Independent Children’s Lawyer submits, s 61D(2) of the Act provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any, expressly provided for in the order or necessary to give effect to the order. The Independent Children’s Lawyer submits that there could be tension between the supervision order proposed by the Department and the order for sole parental responsibility.
Apart from the recommendation by Dr R that the mother (and father, if he were to have a continued role in parenting the child) continue to receive parenting support and family therapy for at least until the child commences school, there is no other evidence to indicate that the mother requires supervision. In my view, the mother has demonstrated to date a willingness to accept parenting support and I am confident that she will continue to do so, guided by the recommendations of Dr R.
There is another purpose sought to be achieved by this particular supervision order, that is, creating a power for the Department to facilitate supervised contact between the father and the child should Departmental officers consider it appropriate. The issue of the father’s time with the child also, in my view, is better achieved through a direct order. Such an order is not sought by any of the parties but has nonetheless been considered. The Independent Children’s Lawyer submits that it is inappropriate through a supervision order to “leave the door open” for the father to spend time with the child and also expresses concern about the appropriateness of such an order being an aspect of supervision where the supervision is proposed only to operate for a period of 12 months.
Under the Department’s proposal it is not clear what time the child is to spend with her father either during or at the expiration of 12 months. I accept the Independent Children’s Lawyer’s submission that it is difficult to conclude that the child would benefit from being reintroduced to her father during the next 12 months in light of his history of erratic supervised visits and when it is unknown whether it will continue, and how this is to occur, after the expiration of 12 months.
The Department says that the supervision order proposed would fall within the broad meaning of “parenting orders” in s 64B(2)(i) of the Act. This section provides that a “parenting order” may deal with:
any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The Independent Children’s Lawyer submits that an order requiring the mother to follow directions of a delegate of the Director-General in relation to the child’s time with the father for a period of 12 months cannot be construed as a parenting order as no order in relation to defined time for the father is proposed.
It is further submitted by the Department that the power to make such orders would also be authorised under the Court’s welfare jurisdiction found in section 67ZC of the Act.
If it were the case that the welfare power could form the basis for the Court making a supervision order, the principle in the Full Court decision of L & T[10] would apply. In that case their Honours said at [57]:
A parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child's interest that the parent so do. … It would not be, in our view, a proper exercise of the "welfare" power for a court to place limits on a parent's conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. [emphasis added]
[10] (1999) FLC 92-875
In this case the Department seeks through its proposed supervision orders to place limits on the mother’s conduct such as that she “otherwise comply with all reasonable directions of a delegate of the Director-General in relation to the care of [the child]”. The Department has not established why such a broad order or why allowing home visits, attending all services as may be recommended and making the child available for any assessment as may be requested are necessary for the child’s welfare.
In summary, it appears that there is power for the Court to make orders requiring a parent to accept the “supervision” of a welfare agency in an appropriate case. However, in this case, there is no aspect of parental responsibility being shared with the Department and supervising the child’s mother is inconsistent with her exercising sole parental responsibility. Further, there is no evidence to suggest such an order is necessary for the child’s welfare. Finally, the supervision order proposed would also create a capacity within the Department to effectively decide whether the child should spend time with her father. In my view, this could not fall within s 64B(2)(i) as there is specific provision under s 64B(2)(b) for a parenting order to deal with the time a child is to spend with another person, and no such order is sought in this case.
In all of these circumstances, I am not of the view that the “supervision orders” sought ought to be made as either a parenting order or as an order relating to the welfare of the child.
Conclusion
The child’s parents have each had difficult life experiences which have shaped their own personalities and capacity to care for the child. The mother has taken significant steps to develop skills so that she can appropriately protect the child from harm, and meet the child’s needs. The father on the other hand has some distance to go.
The father has not participated in these proceedings, nor has he spent any time with the child or made efforts to resume any time with her since it was suspended by the Department in November 2013.
On the evidence before me from the mother and the Department, there are a number of risks to the child arising from her father which do not appear to have been recognised or addressed by him.
Having regard to the primary and additional considerations in the Act, in my view, the orders consented to by all the participating parties that the mother have sole parental responsibility and that the child live with her are in the child’s best interests. Those orders will be made by consent.
Notwithstanding the short-comings of the father and my concerns about whether orders providing for the child to develop a meaningful relationship with him are in the child’s best interests, I cannot be satisfied that it is in her best interests to make an order that she spend no time with her father. On the other hand, none of the participating parties seek a positive order of that kind and it would be in impermissible and inappropriate to make the “supervision” order sought to allow the Department to determine this issue. Accordingly, I propose making no order as to the child’s time with her father.
As noted above, I am not satisfied that a supervisory order as proposed by the Department should be made in this case. I do not find it to be necessary and am satisfied that the mother will seek support services if she needs them and will cooperate with such services.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 April 2014.
Legal Associate:
Date: 9 April 2014
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