LANGTON & WESTMAN

[2019] FamCA 832

FAMILY COURT OF AUSTRALIA

LANGTON & WESTMAN [2019] FamCA 832

FAMILY LAW – CHILDREN – Undefended hearing – Best interests of the child – Parental responsibility – Where the father has disengaged from the proceedings – Where there are risks associated with the care of the only parent engaged in the proceedings – Orders that are least detrimental to the children.

Evidence Act 1995 (NSW) s 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 65DAC
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Deiter v Deiter [2011] FamCAFC 82
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
M v M (1988) 166 CLR 69; [1988] HCA 68
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT: Mr Langton

RESPONDENT: Ms Westman

INDEPENDENT CHILDREN’S LAWYER: Sydney West Family Lawyers

FILE NUMBER: PAC 4708 of 2016

DATE DELIVERED: 13 November 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: Benetatos White Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sydney West Family Lawyers

Orders

1. That the mother shall have sole parental responsibility for the children X born … 2008 and Y born … 2010 (“the children”).

2. That the children shall live with the mother.

3. That the children shall spend no time with the father.

4. That the mother shall follow all recommendations, directions and treatment plans given to her by the children’s treating health professionals, including accepting referrals, attending appointments and providing medication as may be prescribed from time to time.

5. That these orders and Reasons for Judgment be provided to the NSW Department of Communities and Justice.

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 Langton & Westman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4708 of 2016

Mr Langton

Applicant

And

Ms Westman

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long term parenting arrangements for two children aged 11 and nine (“the children”).

2. The father initiated these proceedings after the mother ceased the children’s contact with him. The children had disclosed to the mother that the father and his partner had perpetrated physical abuse towards them. After the commencement of the proceedings, both children also separately disclosed to the mother that the father and/ or his partner had sexually abused them.

3. The mother seeks orders that the children live with her, spend no time with the father and that she have sole parental responsibility for the children. She contends that the father poses an unacceptable risk of harm to the children.

4. The Independent Children’s Lawyer (“ICL”) appointed in these proceedings supports the orders as sought by the mother and seeks a further order that she follow all recommendations, directions and treatment plans given to her by the children’s treating health professionals. 

5. The mother is the only parent engaged in the proceedings.  As will be explained in these Reasons there are a number of risk factors associated with her care and shortcomings in her parenting capacity.  Although the Department of Communities and Justice have been invited to intervene in the proceedings they have declined to do so.  In these circumstances the proper orders with respect to the children are those which provide for a parenting arrangement that is “least detrimental” to them.

The father’s non-attendance

1. The father was represented in the proceedings up until 19 March 2019 when his then solicitor was granted leave to withdraw from the proceedings. On this date it was noted that the father was no longer participating in the proceedings and it was expected that on the next occasion trial directions would be made for the matter to proceed on an undefended basis.

2. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

   (1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note:   The court may dispense with compliance with a rule (see rule 1.12).

   (2)If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

3. On 8 May 2019 in the father’s absence the proceedings were listed for an undefended hearing and directions for the filing of documents were made.

4. On 2 August 2019 the father again did not attend on the date listed for undefended hearing.

5. The participating parties sought that the Court proceed to deal with the matter to finality in the absence of the father.

6. Rule 11.02(2)(c) of the Rules provides that:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)   determine the case as if it were undefended.

7. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it was in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father and on an undefended basis.

   [1] [2014] FamCAFC 14

   [2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

8. In light of the matter proceeding undefended, any affidavits previously filed by the father were not read.

Background

1. The mother who is 33 and the father who is 41 began living together in 2005. They did not marry.

2. The first of the parties’ children (“the oldest child”) who is not the subject of these proceedings was born in 2006.

3. The second child (“the son”) was born in 2008.

4. The mother deposes to a long history of physical abuse perpetrated by the father towards her throughout the relationship. She deposes that he often “bashed” her, dragged her by the hair and that in about late 2009 he sexually assaulted her. According to the mother the father’s violence increased with every pregnancy and from about January 2010 he began perpetrating violence against the oldest child who was then about four. She says that on several occasions she saw the father kick and punch this child.

5. The mother describes another incident in early January 2010 in her affidavit where the father grabbed her by the hair and pulled her into a bedroom where he started punching her while the oldest child watched and screamed.

6. The mother then arranged for the oldest child to live with her brother in Queensland as she was concerned about the child being exposed to further violence. In 2008 a report was received by the NSW Department then known as Family and Community Services (“the Department”) that the oldest child had been sexually assaulted by this uncle. 

7. The oldest child lived with the maternal uncle until September 2011 when he was taken into the care of the Department of Communities Child Safety and Disability Services in Queensland (“the Queensland Department”). The oldest child was then placed with foster carers until he was moved to live in the care of a person referred to by the mother as her “adopted mother” in July 2016.

8. The oldest child subsequently came to spend time with the mother during a holiday period and the Queensland Department informally allowed him to continuing living with her until February 2017. The mother deposes that by this stage the oldest child had started making threats to harm she and the other children and he was again placed in the care of the Queensland Department. As I understand it the care of the oldest child was then transferred from the Queensland Department to the Department in NSW. The mother says she has been informed by departmental officers that the oldest child will be better supported in foster care than in her care. For this reason this child is not the subject of these proceedings but the mother is still involved in case planning and has spent time with him at his carer’s home since 2017.

9. At some point in 2010 the father threatened the mother with a knife which resulted in an Apprehended Violence Order (“AVO”) being issued for the protection of the mother and the oldest child and son from the father.

10. The youngest child (“the daughter”) was born in 2010.

11. The parties separated in September 2010 after the mother returned from work to find that the nine week old daughter, who had diarrhoea, had not had her nappy changed by the father and was screaming and crying. The mother bathed the child, dressed her in fresh clothes, packed bags for both children and herself and called a friend who offered to come and collect the mother and children. The father, in the mother’s words, “trapped her in a corner” until her friend assisted in leaving the house. As the mother was driving away with her friend the father threw rocks and other items at the car.

12. The mother stayed at a friend’s home for approximately six months until she relocated to another area with the two children.

13. From the time of relocation the mother facilitated the children spending time with the father initially one day each weekend which progressed to approximately each alternate weekend.

14. In late 2012, the mother who had been required to move houses could not find regular accommodation for she and the children and became homeless. By this stage she had re-partnered and was pregnant with the first of three children born after the parties separated.

15. In February 2013 shortly before the birth of her fourth child the mother asked the father to care for the children until she found stable accommodation.

16. The mother’s fourth child was born in 2013, but she was not in a relationship with that child’s father by the time he was born.

17. After the children began living with the father, they did not regularly see the mother. The parties at this stage lived some distance from one another. For a period of about three months only the mother saw the children every second weekend and this time was always supervised by the father.

18. Up until September 2013, the mother spoke to the children on the phone every night but she says the father then ceased allowing her to have any communication or spend any time with the children.

19. The mother had by this stage re-partnered again with a man that she subsequently married (“the mother’s husband”) and was pregnant again with her fifth child. She deposes that when the father of her fourth child found out about this pregnancy he retained the fourth child in his care and told her “not to bother coming to pick him up”.  As the mother was concerned about her health, due to complications associated with her fifth pregnancy, she did not take any steps to have the fourth child returned to her care.

20. In late 2013 the mother relocated to a regional town in New South Wales where I understand she still resides. The mother says that she attempted unsuccessfully to contact the father regarding spending time with the children.

21. In late 2013, the father’s partner gave birth to their daughter who is now aged almost six. The father and this partner are no longer in a relationship though they continue to live together.

22. The mother’s fifth child whose father is her husband was born in 2014.

23. In mid-2015, the father contacted the mother through his then partner and arranged for the children to spend time with the mother supervised by him. The mother observed during these visits that the children were “wearing clothes that were too small for them, were dirty and unwashed and skinny”.

24. The mother married her husband in late 2015.  She deposes to contacting the father and requesting that the children attend her wedding and informing him that as she had accommodation she would like the children to live with her again. She says that the father refused contact as he did not want the children to be around her husband.

25. The mother had irregular contact with the children up until January 2016 when she began spending time with them approximately every second weekend though these visits always occurred in the presence of the father. The father again ceased contact between March 2016 and May 2016 after the son asked whether he could live with the mother.

26. In June 2016 the children spent time with the mother in the absence of the father. During this visit the children told the mother that they did not want to go back to the care of the father.

27. In July 2016 the mother collected the children so that they could spend time with her during the school holidays as had been agreed between the parties. During this visit, the children disclosed to her that the father and his partner were abusing them. The mother reported these complaints to the Department.

28. It appears that from this time the mother retained the children in her care. She took both children to a doctor where they were found to be underweight and a number of concerns about their progress and incontinence were also noted. The mother enrolled the children in local schools near her home. The mother deposes to the children making various complaints to her about the behaviour of the father and his partner towards them and their reluctance to have contact with either of them.

29. On 5 October 2016 the father commenced proceedings in the Federal Circuit Court seeking orders that the parties have equal shared parental responsibility for the children, for the children to live with him and spend time with the mother on alternate weekends and half of each school holidays.

30. The mother deposes that in February 2017 the daughter disclosed to her that the father’s partner sexually abused her. The next day the mother told her counsellor about the daughter’s disclosure who advised her that she would make a report the Department.

31. A few days later the proceedings were transferred to the Family Court of Australia to be placed in the Magellan List[3].

    [3] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

32. Later in February 2017 the mother deposes the son disclosed to her that the father and his partner had sexually abused him. 

33. In February 2017 the mother deposes to separating from her husband and to initially obtaining a separate home as the parties’ oldest child was then living with her. Subsequently the oldest child was taken into care but the mother moved to the new home with the children and her fifth child stayed in the former home with her husband, that child’s father. The mother was by this stage also pregnant with her sixth child.

34. In around April 2017 the mother and the children, the mother’s two other children and those children’s father, (her husband) began living in the same household again though the mother maintains that she and her husband remain separated. She deposes to sharing the household expenses including rent with her husband and having a positive relationship with him and her other children though she deposes to an intention to move to another home later this year. The mother says that she has had no contact with the children’s father since mid-2016.

35. On 14 June 2017 an expert was appointed in the proceedings. The parties did not attend upon the expert and that appointment was subsequently discharged. On 2 May 2018 directions were made for the parties to attend upon a family consultant for the preparation of a Magellan Family Report.

36. Delays in preparing the expert report which was originally ordered and the Magellan Family Report in part related to the paucity of reliable information in relation to the oldest child and in particular the involvement of the Queensland Department and NSW Department into the arrangements for that child. At times it had appeared that the oldest child may be formally restored to the mother’s care and on other occasions he had lived with her. If this child were to be part of the mother’s household then it would seem appropriate that he also be assessed by the expert or family consultant. Ultimately it became apparent that the oldest child is subject to a long term guardianship order to the Chief Executive of the Queensland Department, is placed with foster carers on a long term basis and there is no possibility of him being returned to the mother’s care.

37. The interviews with the family consultant occurred in November 2018. The Magellan Family Report was released to the parties on 12 December 2018.

38. On 22 January 2019 the Department was requested to intervene for a second time in the proceedings based on the recommendation by the family consultant that they be invited to do so. It was also ordered that the mother take all steps to ensure the son attend upon a paediatrician for assessment and the preparation of a report which the ICL was to file with the Court.

39. The Department has since confirmed that it did not intend intervening in the proceedings.

40. On 8 May 2019 I made orders that pending further order the children live with the mother, that she have sole parental responsibility for the children and that the children spend no time with the father. I noted that I would be assisted by a paediatric report with respect to the son and that the mother had made an appointment with the paediatrician.

41. In June 2019, the mother arranged for the son to attend upon a paediatrician. According to the paediatrician’s report the mother could not tell the paediatrician any particular clinical question that the paediatrician was to address but indicated that her top priority was to address the son’s long-standing difficulties with encopresis and enuresis. The paediatrician wrote in a report dated 25 June 2019:

    [The son] has previously tried numerous strategies to help his nocturnal enuresis…[The son] wets his bed every night, which soaks all the way through his sheets. [The mother] reports that she is not coping with [the son’s] toileting difficulties.

    …

    [the child] describes that he frequently dibbles small amounts with dampness in his underwear even with hourly reminders to go to the toilet. He wets himself to the point of having a puddle on the floor once per day, and smaller amounts at least 3 times per day.

    …

    …[The mother] reports that there is daily smearing of faeces in his underwear.

42. The paediatrician opined:

    [The son] is an 11-year-old boy with complex primary non-monosymptomatic nocturnal enuresis, with daytime urinary and faecal incontinence. His case is complex and will require treatment at a tertiary multidisciplinary incontinence clinic…

    I will contact his learning support team for further information into his learning difficulties, and results of any cognitive assessments. [The child’s] reported history of sexual abuse may also impact on his ongoing toileting difficulties. I have recommended seeing a psychologist for ongoing intervention. [The child] may also benefit from an occupational therapist assessment regarding his self-help skills and fine motor skills. [The child] has long-standing difficulties with encopresis, daily faecal smearing, and descriptions consistent with constipation, and I have commenced him on a bowel disimpaction regime as a first step in management. I have asked [the mother] to complete a fluid volume chart prior to our next appointment, at which time I will refer [the child] to a tertiary continence clinic for ongoing intervention.

1. In August 2019, the Court ordered that the interim orders of 8 May 2019 were to continue and that the mother was to follow all recommendations, directions and treatment plans given to her by the children’s treating professional including accepting referrals, attending appointments and providing medication as may be prescribed from time to time.

The Magellan Family Report

1. In November 2018 the parties and children attended upon a family consultant for the purposes of the preparation of a Magellan Family Report. The father’s former partner was also interviewed. The mother’s husband did not attend the interviews and did not return a number of calls made by the family consultant in relation to his non-attendance.

2. The contents of the Magellan Family Report are a matter to which I will return in detail when considering the best interests of the children.  At this stage some of the salient matters are set out to give context to the concerns of the family consultant about the welfare of the children in the care of each parent and reasons for requesting that the Department again intervene in the proceedings.

3. At the time the family was interviewed the father remained living with his former partner from whom he had separated together with their child who was then aged five. The mother was also living with her husband and four of her children while claiming to be separated from him.  At the time of the interview the father’s proposal was that the parties share parental responsibility for the children and that the children live with him and spend time with the mother alternate weekends and for half of each holidays. The mother sought sole parental responsibility for the children and orders that they live with her and spend time no time with the father.

4. The first matter of concern is that the project Magellan Report dated March 2017 records a long history of reports being made to the Department while the children have been in the care of each of the parents.

5. Both parents identified concerns in relation to the children’s safety and wellbeing in the care of the other parent and the other parent’s ability to meet the children’s needs.

6. The children were not observed with the father during the assessment, mainly due to the children’s presentation during the interviews with the family consultant as well as concerns that if the allegations regarding the father had veracity the children could be psychologically harmed by having further contact with him.

7. Overall the family consultant observed that the children each appeared to have a positive and established relationship with the mother but their presentation and accounts indicated significant ruptures in their relationships with the father with the children presenting as rejecting towards him. The family consultant was unable to determine whether this presentation and the children’s preference to spend no time with the father related to their authentic experiences in his care.

8. Although the father was not observed interacting with the children the family consultant opined that information he provided during the interview is suggestive of a number of deficits in his parenting capacity.

9. The family consultant also observed that while both parents identified that their behaviour had contributed to the children feeling unsafe they each appeared to minimise this and both demonstrated limited understanding of the potential detrimental impact upon the children. This raised concerns for the family consultant in relation to both parents’ motivation to make significant and sustained changes to protect the children from further risk of harm.

10. While both parents provided different accounts in relation to conditions that the son had been diagnosed with both identified that this child had additional behavioural and developmental needs but there had been little assessment of those needs and targeted intervention to meet them. The family consultant regarded it as a matter of significant concern that the mother had not pursued a paediatric appointment for the son given that he had been in her care for over two years and that this was reportedly recommended by two separate professionals. The family consultant recommended that the mother organise for the son to undergo paediatric assessment as soon as possible.

11. Although the family consultant was unable to determine the veracity of the allegations made by the mother and seemingly supported by the son that both children were physically and sexually abused and neglected in the father’s care, the family consultant was able to express an opinion about the detrimental impacts on a child’s wellbeing if these matters were found proved. She opined that if there is veracity to the allegations that the children have been abused or neglected in the father’s care that the children should spend no time with him.

12. The family consultant opined conversely that if it is determined there is no veracity to the allegations that the children were abused or neglected in the father’s care concerns would be raised regarding the mother’s ability to prioritise the children’s needs above her own and to facilitate the children maintaining a meaningful relationship with their father. If the mother were found to have intentionally caused one or both of the children to erroneously believe that they are a victim of abuse this could be considered psychologically abusive.

13. The family consultant was also concerned about the possibility that there had been violence in the parental relationship and that each of the parties were currently in violent relationships.

14. Overall the family consultant opined:

    In order for [the children] to reach their developmental potential, and recover from any traumatic life experiences, they will require a safe, stable, and predictable care environment, with at least one sensitive and attuned caregiver who is consistently able to identify, prioritise and meet the children’s needs and with whom the children has a positive and meaningful relationship. As detailed above, neither parent, particularly [the father] presented as being able to provide this for the children. If [the children] are not provided with such an environment it is likely to result in further exacerbation of the identified psychosocial and developmental difficulties experienced by the children, particularly [the son].

    …

    On the basis of information available to this assessment, significant concerns are raised regarding the children’s safety and wellbeing in both [the parents’] care and regarding each party’s ability to meet the children’s needs to an adequate standard. If the Court considers that neither [named parent] are suitable long-term carers for the children, then it would be recommended that consideration be given to the Department of Family and Community Services being invited to intervene in the proceedings.

15. In addition to considering whether to invite the Department again to intervene in the proceedings the family consultant regarded the least detrimental parenting arrangement for the children would be for them to live primarily with the mother and spend no time with the father in the absence of an alternate care option.

16. The family consultant who conducted the interviews and prepared the report in these proceedings has an honours degree in Applied Psychology and extensive experience working in social work, with children as a child protection case worker and in the Family Court system. In light of her experience and expertise, and given the expert evidence is unchallenged in these proceedings, I accept her evidence and attach significant weight to the opinions and findings expressed in the Family Report.

The Law & Discussion

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) contains the objects and underlying principles of Part VII which form the framework for the part of the Act dealing with parenting.

2. According to s 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.

3. 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.

Primary considerations: s 60CC(2)

1. 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.  

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

3. Although the phrase “meaningful relationship” is not defined in the Act it has been interpreted as meaning a relationship which is “important” or “of consequence”.[4] This consideration has not been interpreted however as creating a presumption that it is of benefit to a child to have a meaningful relationship with both parents.

   [4] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 approving the interpretation of the phrase by Brown J in Mazorski & Albright (2007) Fam LR 518

4. The Full Court in McCall & Clark (supra) observed 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.

5. The orders proposed by the mother and supported by the ICL provide for the mother to have sole parental responsibility for the children and for the children to live with her. The mother also seeks a specific order that the children spend no time with the father. Accordingly, if orders are made in these terms there would be no provision to foster a relationship between the children and their father.

6. While neither the mother nor the ICL seek a specific finding that the children do not receive a positive benefit from having a relationship with their father the most salient factor in these proceedings is the father’s disengagement from the proceedings for almost a year.  The father must be taken through his withdrawal from the proceedings to accept that the children do not receive any benefit from having a relationship with him.

7. Although the second of the primary considerations looms large in these proceedings I am unable on the evidence which is untested to make findings about whether the children have been subjected to abuse, neglect or family violence in the father’s care.  On the basis of the allegations made by the mother which have not been contradicted by the father I am however of the view that there are real risks of harm to the children posed by the father and a great need to protect them from harm associated with his potential to subject the children to neglect, abuse or expose them to family violence in his care.

8. Of greater concern in the circumstances of this parenting application is the need to protect the children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence in the mother’s care. Despite the seriousness of these concerns there is also little utility in making positive findings in relation to the children having been subjected to abuse, neglect or family violence in the mother’s care in the past.  If I were to find that the mother poses an unacceptable risk of harm to the children on this basis there are no other alternative care arrangements for the children as the Department has on three occasions declined to intervene in the proceedings. 

9. It suffices to say that it is a matter of record contained in the Department’s Magellan Report that there have been a number of reports of risks of harm to both children while in the mother’s care.

10. Further, although the father reported to the family consultant that he held no concerns regarding the children’s safety and wellbeing in the mother’s care I do not attach any weight to his views about the matter.  The mother’s own evidence as to some matters and the opinion of the family consultant to which I attach significant weight, suggests that there are real concerns about the children’s welfare in the mother’s care. 

11. It was observed by the family consultant that both parents had identified that their behaviour has contributed to the children feeling unsafe but each appeared to minimise this and both demonstrated limited understanding of the potential impact upon the children.

12. On the mother’s own evidence she has exposed the children to numerous changes in their home circumstances including permitting various partners from short-lived relationships who themselves may pose risks of harm to live in the household.  At times the mother has been homeless and on one such occasion placed the children into the care of the father for some years notwithstanding that she regarded him as potentially dangerous to them where they remained for some years. The mother also relinquished her fourth child into the care of that child’s father and has had no relationship with him since he was an infant and it has been determined that a safer alternative for her first child is in foster care.

13. I am of the view that it is likely that the children have at times experienced a caregiving environment with their mother that is unsafe, chaotic or unpredictable.  Such circumstances bring with them, as opined by the family consultant, a likelihood that the children will develop a broader perception of the world as unsafe and a belief that they are unable to rely on others to have their needs met.

14. The family consultant was also concerned that information provided by the mother about her husband suggests the possibility that this relationship is characterised by family violence which raises a potential risk of harm to the children connected with their potential exposure to family violence. The family consultant recommended that if it were determined that the mother’s husband poses a risk of harm to the children that orders be made restraining her from bringing them into contact with him. Unfortunately the mother did not make arrangements for her husband to be assessed by the family consultant and there is insufficient evidence upon which I can make a positive finding that he does pose a risk of harm to the children in this regard. Nonetheless, that issue remains a concerning matter related to the mother’s care of the children notwithstanding that she maintains that they are no longer in a relationship as her husband still lives with the mother and her children.

15. The family consultant also expressed concern about both parent’s failure to take steps to assess properly the son’s needs and to identify targeted intervention to meet those needs, including in relation to his urinary and faecal incontinence which the mother indicated has a detrimental impact on the child’s wellbeing. I share the concerns of the family consultant that the mother had not pursued a paediatric appointment for this child even after he had been in her care for two years and that it was recommended by other health professionals. Ultimately, in my view, she only sought a paediatric assessment with nudging from the Court.

16. The report of the paediatrician of June 2019 sets out the complexity of the son’s presentation and the need for further assessments and that a number of therapists be involved in ongoing intervention. This will require that the mother remain committed to ensuring that the son’s needs for intervention are not neglected which is a big ask considering her actions in the past. Although there is no monitoring of the order sought by the ICL that the mother follow all recommendations, directions and treatment plans given to her by treating health professionals, the making of such an order by the Court may indicate to her the importance of attending to this matter and minimising the harm associated with neglect of this medical condition.

17. Having regard to all of the forgoing matters although I do not assess the risks posed by the mother as unacceptable given there is no utility in doing so, the risks associated with her care are in my view real and significant.

Additional considerations: s 60CC(3)

1. 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.

Views of the children and factors underlying those views

Nature of the children’s relationship with each parent and other significant persons

1. The daughter who was eight years old at the time of the interview presented to the family consultant as timid and wary. This child told the family consultant that she did not know why she does not see the father and said she was “not sure” how she felt about not spending time with the father.

2. The daughter described the mother as “just sometimes be’s cranky and cries a lot” and that she feels “really upset” when the mother cries. She reported that the mother cries “when [the mother’s husband] sometimes yells at her”. The daughter further said that she is not sure why the mother’s husband yells at the mother because “I’m not really seeing what happens” and that she “can’t really go near [him] when he yells because he just slaps us.” The daughter went on to explain that the mother’s husband would slap her on the hand but that it would not really hurt her and that he was “actually pretty nice to us.”

3. The daughter stated she would feel “really scared” if she were to see the father and that she is scared of “him slapping us.” The daughter also said that she would feel “not good” about seeing the father for an observation and stated “I just don’t want to see him” but was not sure why this was.

4. The son who was 10 at the time of interview presented to the family consultant as wary and guarded through the interview. The family consultant observed he “crouched on the chair at times during interview and appeared to engage in avoidant behaviour, generally when discussing [the father] or alleged abuse.” The child identified that he had attended an interview about the father, referring to his father by his first name.

5. The son described his family consisting of the mother, his “nice dad” who he confirmed was the mother’s husband, his two younger brothers, himself and the daughter. The son indicated that he did not consider the father to be part of his family “at all”. The son went on to explain that he did not consider the father to be part of his family because of what he had done to him, saying the father “hurt him”, “stuck his hand up my bum”, “called me the f-word”, and “smacked me on the bum” for no reason.  The son did not provide any further information in relation to his allegation the father had stuck his hand up his bottom but that he felt “really, really, really mad” when it had happened.  The son further stated that the father “hit me in the head” with an electric cord. 

6. The family consultant observed:

   [The child] became increasingly withdrawn and disengaged during discussion about the alleged abuse, avoiding eye contact, putting his hand over his face, and appearing to yawn.  When [the child] was asked how he felt discussing these incidents, he put his hands over his face and said “I don’t know” before leaning over the side of the chair he was curled up in and stating “I feel a bit sad”.

7. When asked about his feelings towards his mother, the son queried “which Mum… one’s mean and one’s nice”, then confirmed that he was referring to the father’s former partner as the “mean one” and the mother as the “nice one”. The son told the family consultant that the father’s former partner is mean because she sent him to bed without dinner and didn’t feed the children on one occasion.  He later stated that the father’s former partner had also “stuck her hand up my bottom”. The family consultant documents that the son then appeared reluctant to engage in further discussion however did inform the consultant that he had told his mother and his “nice dad” about the abuse.

1. The son told the family consultant that he “feels sad when he leaves [the mother] and that seeing her makes him happy.” The son declined to give the family consultant any information as to the negative attributes of the mother.

2. The son stated that that he would feel “really scared” if he saw the father.

3. The family consultant formed the view that during observation the children at each appeared to have a positive and established relationship with the mother. The family consultant opined:

   They both appeared relaxed and comfortable throughout the observation session with [the mother], readily engaged with her and appeared to enjoy their interactions with her. [The son]’s, albeit limited account of his relationship with [the mother], was consistent with his observed relationship. 

4. Once again there is little utility in attempting to make a determination about whether the children express such clear views that they do not wish to spend any time with their father due to their experiences in his care. Although I accept the opinion of the family consultant that these views may be a genuine reflection of the children’s experience of the father’s care, this is not necessarily the case. However in circumstances where the father himself is not seeking any orders in relation to spending time or communicating with the children through his disengagement from the proceedings this is not a weighty factor.

5. The family consultant raised some concern that the daughter is “atypically protective” of the mother and parentified, due to exposure to family conflict and as the mother is reliant on the daughter with the care of the other children.  Although this is a matter of concern once again little weight can be attached to it when there is no alternate care proposal in relation to the children.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

1. In my view, although the father previously played a significant role in relation to the care of the children and participated in long-term decision-making in relation to them for a number of years, his recent disengagement and in particular withdrawal from the proceedings for about twelve months is the most salient feature in this parenting dispute. Although the father was seeking orders that the children live with him as recently as November 2018 when interviewed by the family consultant he now does not propose any arrangement in relation to the children and can be taken to have forfeited his interest in participating in their lives in all respects.

Likely effect of change in the children’s circumstances

1. If the orders are made as sought by the mother and largely supported by the ICL there will be no change in the children’s circumstances.

2. The family consultant opined:

   It appears that [the son] and [the daughter] have had an unsettled care history, with a number of seemingly abrupt changes in primary carer, accompanied with a cessation of time with the other parent. [The son] and [the daughter’s] early care experiences may have been difficult for them, may have been associated with symptoms of loss, and may have increased their vulnerability to future psychological stress.

3. Both children have also had disruptions to their education. The son, who was previously experiencing difficulties in school has now been placed in a Special Education Unit and is doing well at school. The daughter has also made significant improvements at school.

4. Having regard to the view of the family consultant and the history of unsettled care and schooling of the children particularly for the son who has special needs, the proposal of the mother despite her various shortcomings is consistent with the best interests of the children. However once again in circumstances where the father is disengaged from the proceedings and there is no alternate care arrangement under consideration this is not a weighty factor.

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

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

1. The family consultant identified that the son may have behavioural and developmental needs that have not been addressed by either parent. She expressed the view that this may be indicative of medical neglect and may indicate that the mother has little understanding of the child’s needs. The mother has however since engaged the son with a paediatrician after being informed by the Court that it would be assisted by a paediatric report and it now appears that she is taking more positive steps to provide for his needs.

2. Given all of the concerns identified in the family consultant’s report about both parents capacity to meet these children’s needs this would ordinarily be a very important, if not determinative, consideration in a parenting dispute.

3. As touched upon earlier in this judgment the family consultant expressed the view that there were shortcomings in the capacity of each of the parents. She expressed the view that neither parent, particularly the father, presented as being able to provide a safe, stable and predictable care environment with at least one sensitive and attuned caregiver who is consistently able to identify, prioritise and meet the children’s needs and with whom the children have a positive and meaningful relationship.

4. Although the father was not observed interacting with the children for the purposes of the assessment the family consultant opined that “information he provided during interview is suggestive of a number of deficits in his parenting capacity”. In particular, she identified his experienced difficulties at least historically regarding emotional regulation and anger management and that the children have been exposed to this which she opined could be considered psychological abuse. The family consultant was also of the view that the father’s account was also suggestive of his limited ability to consistently set and enforce appropriate rules and boundaries for the children and indicated that he finds parenting stressful and has few appropriate strategies to manage stress and associated anger.

5. As also touched upon earlier, the family consultant felt that significant concerns are also raised that both parents will be unable to identify difficulties experienced by the children related to their own past or future behaviour which increases the likelihood that both of them will either not respond or inadequately respond to any difficulties experienced by the children.

6. Although the family consultant observed that the mother demonstrated a capacity to engage with the children in a child focused manner she identified that the mother also experiences some difficulties regarding emotional regulation and anger management at times of increased stress. Further, the family consultant noted that as the two other children in the mother’s care were not included in the observation session she was unable to express a view about the mother’s ability to meet the competing needs of the children and her two younger children who given their ages are likely to be reliant on a high level of parental involvement.

7. As also touched upon earlier overall the family consultant was significantly concerned about both parents’ ability to meet the children’s needs to an adequate standard. She recommended, however, that in the absence of an alternative care option, (which is the situation currently under consideration), that it appears that the least detrimental parenting arrangements for the children would be to live with the mother and spend no time with the father.

Other relevant circumstances

1. I am of the view, that the mother’s proposed order that she be required to authorise the school to release to the father information in relation to the children’s welfare and progress and to notify the father as soon as possible of any serious injury or illness suffered by one of the children, may have the potential of leading the father to locate the children and in some way contact them which would be inconsistent with their strong views and also not in their best interests. In my view, if the father wished to have any form of relationship with the children he ought to have pursued parenting orders through an application to the Court.

Conclusion

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption 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)).

3. Having regard to the fact that the mother only is engaged in the proceedings and that she seeks sole parental responsibility, I must inevitably find that the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility is rebutted. Having regard to the father’s complete disengagement in the proceedings it would not be proper for any orders to be made for him to be involved in the exercise of parental responsibility.

4. Having regard to all of the shortcomings in the father’s parenting capacity the potential risks posed by him as discussed, the complete absence of any current relationship between he and the children and his disengagement in the proceedings I am also of the view that it is proper and in the children’s best interest to make an order that the children spend no time with him.

5. For the reasons discussed earlier, I am of the view that it is not in the children’s best interests for an order to be made as the mother proposes allowing for the father to gain information about the children’s progress through the school or requiring the mother to provide information to him in the event of an emergency.

6. Given my serious concerns about the mother’s capacity and that the orders she seeks are made on the basis that they are least detrimental to the children (as opposed to being in their best interests) I am of the view that it would be appropriate to provide a copy of this judgment to the Department.

7. For the foregoing reasons I set out the orders made at the forefront of this judgment.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 November 2019.

Associate: 

Date:  13 November 2019