Maddison and Hayden

FAMILY COURT OF AUSTRALIA

MADDISON & HAYDEN

[2014] FamCA 583

FAMILY LAW – CHILDREN – Undefended – Where the father has failed to participate in the hearing – Where the children are currently living with the mother but have previously lived with their father pursuant to Court Orders – Where the mother raises concerns about the children’s psychological wellbeing and safety in the father’s care – Where the children are in need of psychological assistance – What orders are in the best interests of the children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA
Family Law Rules 2004 (Cth) r 16.07

G & C [2006] FamCA 994

Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Maddison

RESPONDENT:

Mr Hayden

INDEPENDENT CHILDREN’S LAWYER:

Ms Crawford

FILE NUMBER:

PAC

5393

2011

DATE DELIVERED:

25 July 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

30 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mason Mia & Associates Solicitors & Advocates

THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW Penrith

Orders

All previous Orders regarding the children B, born … 2002, and C, born … 2003, (“the children”) be discharged.
The mother have sole parental responsibility for the children.
The children live with the mother.
The children spend time with the father as agreed between the mother and the father.
Both parents shall keep each other informed of their residential address and contact telephone number and shall advise each other of any change in these details within seven (7) days of any change arising.
The mother shall attend upon the Brighter Futures program should she be referred to this program at any future point and shall engage with this program until she is excused from this program by the organisation.
The mother shall do all such things to promote and facilitate the children’s relationship with the paternal family, including contact via Facebook, emails, cards and telephone contact.
The mother shall ensure the children attend upon all medical appointments with their General Practitioner, specialists and all allied medical practitioners in a timely way and shall follow all recommendations as to treatment, medication and ongoing care.
The mother shall do all things necessary to facilitate the children attending upon any counsellor/psychologist should they request to do so, or such a recommendation be made by any other health care or educational professional.
The mother is hereby restrained from permitting the children to have unsupervised time with the maternal cousins Jaiden, Callum and Lachlan Maddison.
All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maddison & Hayden 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 5393 of 2011

Ms Maddison

Applicant

And

Mr Hayden

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This matter concerns the long-term parenting arrangements for B, who is 12 years, and C, who is almost 11 years, the children of Ms Maddison (“the mother”) and Mr Hayden (“the father”).
The children are currently living with their mother in D Town, together with their half-siblings and their step-father. They previously lived with their father pursuant to Court Orders, and were in his primary care for about two years period from August 2011. Given the significant distance between the parties’ residences, with the father living in E Town, Queensland, and the mother living in D Town, New South Wales, the children previously spent time with the mother during school holiday periods.
The current situation arose when the mother refused to return the children into the father’s care following the September/October 2013 school holiday period (which she was required to do pursuant to interim Orders in place at that time) because of her concerns for their safety and wellbeing in the father’s care.

Background

The parties commenced a relationship and cohabitation in about 2000.
In July 2002 B was born and in 2003 C was born.
In about 2005 the parents separated. Following separation, the children remained in the mother’s care.
In late 2005 the mother alleges that the father punched her in the face but she did not report the incident to the police.
In mid-2006 the mother commenced a relationship with a man named Mr F. They subsequently had two children together – G, born in 2007, and H, born in 2008. This relationship ended in about 2010. The mother says she took out an Apprehended Violence Order for the protection of herself and these two younger children in about mid-2010 and a further Order in about mid-2011.
In 2010 the mother and her four children moved on several occasions, living at times in D Town, at times in I Town, Victoria with family and at times in J Town in a refuge. They resided in rental accommodation in I Town from October 2010 until June 2011 before returning to live in D Town.
In June 2011 the mother commenced a relationship with her now-husband, Mr K. He has five children of previous relationships, who are aged between their early teenage years to early adulthood. The mother and Mr K have one child of their relationship – L, born in 2012. Mr K spends time with his elder children, spending each alternate weekend with the younger three of those children, who live in D Town.
On 21 July 2011 the mother placed B and C temporarily in the care of the children’s paternal aunt and uncle in M Town area. She says this was a temporary arrangement whilst she found permanent accommodation. The children were enrolled in M Town Public School.
On 22 August 2011 the father removed the children from the paternal uncle and aunt’s care and relocated the children to live with him in E Town. There was no contact between the mother and the children until early October 2011.
On 16 November 2011 the mother commenced these proceedings seeking a recovery order be made for the children to return into her care, together with an order for the children to be placed on the Airport Watch List and a Commonwealth location order.
On 17 November 2011 the matter was first before the Court and service was to be effected upon the father by post to E Town and also by his mobile phone.
On 16 January 2012 interim Orders were made for the children to live with each of the parents for specified periods pending the next Court event.
On 2 March 2012 the father filed a Response and a Notice of Child Abuse or Family Violence. In his Response he sought final orders for the children to live with him, for the children to spend time with the mother during school holiday periods and for the parties to have equal shared parental responsibility.
The matter also came before the Court on 2 March 2012 and, by consent, interim Orders were made that, in summary, provided for:
a)the children to live with the father from 5 March to 31 March 2012 and then with the mother from that date until 11 April 2012;
b)the mother to have telephone or Skype communication with the children whilst they were in the father’s care;
c)the parties to be each restrained from physically disciplining the children; and
d)the mother to be restrained from leaving the children unsupervised in the presence of any of the maternal cousins.
An Order was also made for a family report to be prepared.
On 10 April 2012 the earlier interim Orders were varied to provide for the children to remain in the father’s care instead until 3 May 2012.
On 3 May 2012 a Judge heard interim matters and made interim Orders by consent for the children to live with the mother from 23 to 28 June 2012 and otherwise with the father.
On 28 June 2012 further interim matters were heard by the Court and interim Orders were made that provided, in summary, for:
a)the children to live with the mother for periods during the Queensland school holidays (dates specified in the Orders ranging from approximately one week to four week periods);
b)the children to otherwise live with the father;
c)the father to facilitate the children communicating with the mother via Skype twice per week when in his care and by telephone at least three times per week on specified evenings;
d)the parties each be restrained from denigrating the other party or their family in the hearing or presence of the children;
e)the parties each be restrained from physically disciplining the children;
f)the mother be restrained from leaving the children unsupervised in the presence of their maternal cousins; and
g)the father to arrange therapeutic counselling for the children as recommended by the Family Report writer.
These are the current interim Orders in place in respect of the children, but they have not been operative since October 2013. It also appears there were some difficulties with respect to the mother’s telephone communication with the children and the father has suggested that this was due to technical difficulties, rather than him interfering with their contact.
On 23 August 2012 the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence alleging in January 2012 the children had each reported to her being physically abused by the father - C had reported “dad smacked me on the bum with a wooden spoon” and B had reported “dad picked me up and threw me at the wall and I bounced off the bed and hit my head”. She also says B reported in about May 2012 that the father no longer smacked them on the back but smacks them on the bottom “because the marks go away quicker”.
Over the end of year school holidays in 2012 the children spent some time with the mother. The mother returned the children to the father’s care in accordance with the interim Orders on 4 January 2013 and did not see them again until 23 September 2013.
On 19 February 2013 an Order was made for the Family Report to be updated.
On 23 September 2013 the children came into the mother’s care for holiday time. She says they arrived unwell mentally and physically. They have remained in her care since this date.
On 1 October 2013 the children were interviewed by police and the mother says C was the one who indicated she wanted to speak to police.
On 7 October 2013 the children were due to return into the father’s care, but the mother says they refused to leave. In the coming days when the children telephoned their father she says the telephone calls did not go well and the children were upset afterwards. Subsequently, she says C tried to telephone her father every second or third night but he did not answer most of the calls or immediately hung up.
On 8 October 2013 the mother filed an Application in a Case seeking to discharge the previous Orders and for orders to be made for the children to live with her and spend only supervised time with the father, but for the children to have liberal telephone contact with their father.
On the same day the mother filed a further Notice of Child Abuse, Family Violence or Risk of Family Violence. She says in that document that during the preceding term the children had disclosed by telephone to her issues about their life in E Town, including C saying “I want to kill myself” and “I wish I could find the sharpest pair of scissors and cut my head right off so that I am dead”, together with reports of the father always getting drunk and that C was not able to speak with the father about being punched by another student because he gets too angry.
The mother says that when the children then spent time with her during the September school holidays B was initially very anxious, but this lessened and she started to relax and enjoy herself in her care. She also says the children arrived into her care with nits in their hair. The mother says the children began to open up to her and C reported on a few occasions that “Dad whips me with a belt” and “Dad uses the buckle part of his belt”, that she gets picked on at school, that the father gets cranky when he is not drinking. The mother says that B has reported the father drinks a lot and uses a wooden spoon to hit them on the bum. She says both children have reported that the father throws things when he is angry and breaks things when he is “cranky”.
Since 9 October 2013 the children have attended at D Town School. This is a school they had previously attended when in the mother’s care following the parties’ separation.
In about late October 2013 the mother arranged from the children to receive some psychological assistance at a local medical centre. The mother has also been receiving some assistance with respect to her mental health. She has attended regular appointments with a mental health team worker at the D Town Hospital and has been receiving assistance from “Aftercare”, which provides an outreach service to those with mental health difficulties to access community services and support, such as to improve family relationships.
In mid-November 2013 when the matter was before the Court there was no appearance by or on behalf of the father. The mother’s solicitor was directed to advise the father of the adjourned date and that the matter may proceed on an undefended basis if he did not appear on that occasion.
On 9 December 2013 there was again no appearance by or on behalf of the father when the matter was back before the Court. It is noted that neither the mother’s solicitor, the mother, nor the children, had been able to contact the father since early November 2013. The matter was stood over for a possible undefended hearing.
The next Court event was in mid-March 2014 but the matter was stood over as the mother needed further time to file documents that she had been previously directed to file and the Independent Children’s Lawyer needed further time to inspect subpoenaed material. There was again no appearance by or on behalf of the father.
The matter first came before me in a duty list on 30 June 2014 with the mother pressing orders be made in her favour on an undefended basis. The Independent Children’s Lawyer supported this course. The matter was heard on this basis and Judgment was reserved.
Family Consultant Mr N has prepared three Family Reports in these proceedings – in April 2012, October 2012 and October 2013. The details of those reports are set out later in these reasons.

The father’s non-attendance

The father participated in these proceedings up until after the preparation of the updating Family Report in October 2013. The father failed to appear firstly at a Court event, or have someone attend on his behalf, in November 2013.
It appears that the mother, her solicitor and the children have been unable to contact the father since around early November 2013.
There was then no appearance again by or on behalf of the father at subsequent Court events in December 2013, March and June 2014.
The mother’s solicitor was directed to put the father on notice following his non-attendance at Court in mid-November 2013 that the matter may proceed on an undefended basis on the next occasion if he again failed to appear.
On 12 December 2013 the mother’s solicitor sent an email to the father at his two known email addresses (Exhibit 1). The father was advised of the directions made on 9 December 2013, including that the matter was listed on 17 March 2014 for a possible undefended hearing. He was advised that if he did not attend on that next occasion, final orders regarding the children may be made in his absence.
On 17 March 2014 the Independent Children’s Lawyer sent an email to the father at his two known email addresses (Exhibit 2). An attachment to the email detailed the Court outcome on that date, in particular that the matter had been adjourned for possible undefended hearing to 30 June 2014.
The father has disengaged in the proceedings and it does not appear he has made any contact with the mother’s solicitor, the Independent Children’s Lawyer or the Court in respect of reengaging in the proceedings.
Both the mother and the Independent Children’s Lawyer seek that the Court proceed to deal with the matter to finality in the absence of the father. The Independent Children’s Lawyer supports the orders sought by the mother, that is, that the mother have sole parental responsibility for the children, that the children live with the mother and that the father spend time with the children as agreed between the parents.
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.
Having regard to the considerations in relation to 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 would be in the best interests of these children for the proceedings as soon as possible and to not be adjourned any further. The father has been given sufficient opportunity to reengage in the proceedings and has chosen not to do so.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

The Family Reports

As indicated above, Family Consultant Mr N has prepared three reports in these proceedings – a first in April 2012, a second in October 2012 and an updating report in October 2013. The reports are to be read in conjunction with one another.
In his first report dated 4 April 2012 the Family Consultant was of the view that the children could live with the mother if they were not considered at risk in her care.
In his second report, the mother, her current partner Mr K and the children were interviewed and observed together in late September 2012. The father did not attend the interviews in person, but was interviewed by telephone twice, in late September and again in November 2012.
The second report indicates that the father reported that the children were settled in his care and their school environment. He appeared to indicate that the arrangements in relation to the children (at that time spending time with their mother in D Town during school holidays) were made between the children and their mother directly without involving him. He alleged that the children had been removed from “alleged neglectful parenting” whilst in the mother’s care.
The mother reported having attended upon a psychiatrist to have her mental health assessed and that a Dr O had prepared a report, in essence, indicating there were no problems in respect of her caring for the children. She reported her relationship with the father as being “hostile” and that he did not speak to her. She alleged one of the children had reported being hit with a wooden spoon, leaving a bruise, and that he treated the children harshly.
In this report the Family Consultant said that B was “more definite” about wanting to live with her mother, and that she found aspects of life with her father “disconcerting”. She raised concerns about her father’s alleged threat to kill the maternal grandfather, about his denigration of the mother and his threat to remove himself from her life if she were to live with the mother.
In contrast, C more firmly indicated to the Family Consultant that she wished to live with her father, but she appeared to be motivated by her belief that her father would discard her if she lived with her mother, which is of concern.

Both children were concerned about their parents becoming aware of their comments during interview.
The Family Consultant found the father, whilst indicating a willingness to communicate with the mother, had relied on the children to make arrangements and expressed some hostility about the mother to the children. The mother presented as more willing to communicate with the father and it appeared she had not denigrated him.
To the Family Consultant B presented as “the more burdened and thoughtful child” in contrast to C’s “scattered presentation” but C, more empathetically, expressed concern about losing her father. Their concerns in this regard were noted as understandable given the history of the father’s involvement in their lives.
The Family Consultant did not change his recommendations in that the children live with the mother. He assessed the mother as appearing to now function well, even if she may have been “neglectful and deficient” in the past. The Family Consultant was further of the view that the children needed to continue with professional counselling “given their exposure to domestic violence and this parenting dispute”. (The reference to exposure to violence appears directed to the mother’s previous relationship with Mr F, which is no longer an issue.)
In his updating report prepared on 8 October 2013, the Family Consultant again interviewed the mother, her partner and the children and observed them together. The father was interviewed by telephone.
At this time the children remained living with the father in E Town and were spending school holiday time with the mother in D Town. The father indicated an intention to seek a medical discharge from his work and to move, in about six month’s time from the date of interview in late September 2013 (in about March 2014), to the P Region of NSW.
It was noted by the Family Consultant that “(t)he parties do not communicate freely, and according to (the mother), their relationship remains antagonistic”.
The parents’ proposals for the children to each live with them and spend time with the other parent remained current.
The mother indicated to the Family Consultant that she intended to keep the children in her care following her school holiday time and to not return them to the father. She alleged the father was not attending to their emotional needs and reported C to have suicidal ideations. She said that as the father had failed to secure counselling for the children, she had approached various agencies but was unable to engage them because of the children being primarily in the father’s care. She had, however, obtained a mental health plan from her General Practitioner for the children and the children had both been diagnosed with depression and B also with anxiety. The children had been referred to a psychologist.
The mother reported concerns the father was denigrating her and her family to the children, and that the father hits them with a belt and is “mean” to them when he is drunk.
The father maintained that the children appear to be settled in his care, and that they have made significant progress, including academically, since coming into his care. He reported that the children had shown no signs of anxiety, that C had not mentioned any suicidal ideations to him, but conceded there had been episodes of bullying at school for her. He was of the view the children no longer needed counselling at school.
To the Family Consultant B presented as hesitant and somewhat guarded in her responses, but her responses were consistent with comments made previously. She expressed missing her mother “a lot” but being concerned if she said more and her father found out. She reported getting frightened when her father “gets cranky”.
C appeared to accept living with her father and seeing her mother in school holidays. The Family Consultant found no indication of suicidal ideation or emotional disturbance in C as alleged by the mother.
The Family Consultant found the children’s responses consistent with their previous presentations, but that they were less forthcoming. He was of the view B presented as a burdened 11 year old.
The Family Consultant noted that nothing had emerged to modify his previous recommendations, that is, that the children live with the mother, and noted that the children remained in need of counselling.

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 are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
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.
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

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.
In light of when these proceedings were commenced, these primary considerations are to be balanced.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. 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”.
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [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 children would benefit from maintaining a relationship with both parents. Each parent has had the children in their primary care for a period of time since separation. The issue that arises in respect of the children’s relationship with their father continuing is that he has disengaged from these proceedings, has not been contactable for some months and it is unclear if he is willing to take up the opportunity to resume spending some time with them. It would be in the children’s interests to spend some time with their father in future and the mother’s proposal that they spend time together as agreed between the parents would facilitate this course.
Greater weight, however, is to be placed on protecting these children from harm. The children’s mental wellbeing is of significant concern in this case. It has been the Family Consultant’s view for some time that these children are in need of psychological assistance and, at the time of the last interviews in late 2013, he found B to be a burdened 11 year old. The children are currently receiving some psychological assistance whilst in the mother’s care and this would continue under the mother’s proposal.
The mother has raised allegations of the children being at risk of harm in the father’s care. She says the children have disclosed being physically disciplined by their father, the father not listening to or attending to their needs, such as overlooking bullying at school or suicidal thoughts, together with the father drinking and getting angry in the children’s presence. The mother has raised concerns about the father’s care of the children for some time but says that the children’s disclosures to her increased in the lead up to her refusing to return the children following school holiday time spent together in September/October 2013.
An order for the mother to continue to facilitate the children attending upon a counsellor/psychologist, as recommended by health care or educational professionals, is appropriate in respect of attending to the children’s need for psychological assistance.
There are also concerns raised in respect of disclosures made by the children of possible sexual abuse by maternal cousins. The restraint against the mother leaving the children unsupervised in the presence of certain maternal cousins appears appropriately protective measure in this regard.

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.

Children’s views

The Family Consultant found B to be a burdened 11 year old and to be hesitant and somewhat guarded in her responses. She did, however, a preference to live with her mother and that she missed her mother (she was at that time living with the father).
In contrast, C indicated a preference to live with her father (at a time when she was living with her father), but the Family Consultant was concerned about this view as he thought it appeared to be motivated by a belief her father would discard her if she lived with her mother. This situation appears to have eventuated in respect of the father effectively ceasing contact with the children following the mother retaining them in her care.
In the latest Family Report the Family Consultant found the children’s responses to be consistent but less forthcoming than previously.
In any event, given the age of these children and the Family Consultant’s concern for their psychological wellbeing, little weight is placed upon their expressed views.

Nature of children’s relationship with each parent

The children have a relationship with both parents, having lived in each of their primary care at times. They would also have a relationship with the mother’s new husband, Mr K, and their half-siblings G, H and L.
The children have had a relationship in the past with extended paternal family, particularly the paternal uncle and aunt, whom they briefly lived with in mid-2011. Their relationship with the paternal family is currently unknown as it does not appear they have had the opportunity to spend time together for some time, possibly years.
Continuing a relationship with extended family of each side would be of benefit to the children, other than with some of the maternal cousins who appear to pose some risk of harm to the children. A continued relationship with the extended paternal family could be facilitated in the future when the children may spend some time with the father.

Willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent

Both parties have behaved in a way raising some concern about their willingness to facilitate a relationship between the children and the other parent. The father unilaterally took the children to E Town in August 2011 but later facilitated time between them and their mother in accordance with Court Orders.
The mother then retained the children in her care in September 2013 after they spent school holiday time with her and she has not facilitated any face-to-face contact between the children and their father since that time because of concerns for their safety and well-being in the father’s care. It appears that the mother attempted to facilitate some telephone contact, but the father did not take up this opportunity. The Family Consultant was of the view that the father has denigrated the mother to the children, but it appeared the mother had not done the same. He viewed the mother of the two as being more willing to facilitate and promote a relationship between the children and the other parent.
The mother initially proposed that the children spend time with the father on a supervised basis at either a contact centre or in the presence of the paternal grandmother or the paternal aunt, who live in the P Region, but at the time of hearing she simply proposes the father’s time with the children be as agreed between them. In the present circumstances, where it appears the parents lack any form of communication and the father has not been contactable, the mother’s proposal presents some difficulties. However, there does not appear to be an alternative where the father has disengaged and is not contactable. The only other alternative would be to be silent as to time between the children and their father, which could create uncertainties where the parties already have communication issues.

Likely effect of change in the children’s circumstances

The children have been in their current circumstances - living with their mother, spending no time with their father and attending at a school in D Town - now for some ten months. They are also receiving some counselling, which the Family Consultant has indicated these children are in need of. Presumably the children have now settled and adjusted into their current circumstances. Their current school is a school they previously attended whilst in the mother’s care and their half-brother G also attends at this school.
These children have already experienced a great deal of disruption in their short lives in respect of their living arrangements and a further change would not be in their best interests.

Practical difficulty and expense in the children spending time/communicating with his parents

If the children were to spend time with the father, if he is still residing in E Town in Queensland, this would involve considerable practical difficulty and expense. This is something the parties have been able to afford and facilitate, however, when they were living with the father and spending school holiday time with the mother. If they were to spend time with the father with his paternal family in the P Region of New South Wales these factors would be lessened. As the father has disengaged in these proceedings and his current circumstances are unknown this matter cannot be considered with any certainty.
The father has given some indication that he may transfer his position to the P Region. Members of the paternal family live in that area, and if this situation arises in the future, arrangements for the children to spend time with the father and the paternal family would be able to be facilitated with greater ease and less expense on a regular basis than would perhaps otherwise be the case if the father was still residing in north Queensland.

Capacity of the parents to provide for the children’s needs, including emotional and intellectual needs

The father’s capacity has been put in issue by concerns raised by the mother and alleged reports made by the children to her regarding him. It is alleged that the father was not able to provide for their emotional needs and that they have not felt able to speak to him about matters, such as bullying at school. It is also alleged that their physical needs, such as matters of hygiene, were not being met in his care.
The mother obtained a report from a Dr O in October 2012. Dr O is a medical practitioner with specialist qualifications in psychiatry. The report is based upon one consultation with the mother in August 2012. The doctor diagnosed the mother as suffering from an adjustment disorder with depressed mood. He described her adjustment disorder, at that time, was mild and having no significant effect on her parenting capacity. She did not require medication and he predicted the disorder would no longer persist once the stressors ceased to exist.
The mother obtained a mental health plan in June 2013 and has been attending upon a counsellor. She continues to receive assistance from a mental health team worker at D Town Hospital, is working with a support service called Aftercare and has engaged with the Brighter Futures service.
The Family Consultant has consistently recommended that the children live with the mother and has not raised concerns about her ability to meet their needs, but rather that she appears to be functioning well. The mother appears to be managing the care of these children, together with her other children, and has been open to receiving support from services in this regard.

Attitude and responsibilities of parenthood demonstrated by each parent

Both parents’ behaviour at times in respect of restricting the other parent’s involvement in the children’s lives is to be criticised to a degree. However, it is currently the father who has shown an attitude of concern in not maintaining any relationship with the children since October 2013, despite having been their primary carer in the immediately preceding period. It appears that he has not even taken up the opportunity to have telephone contact with the children. His actions have not been child-focused.
On the other hand, the mother appears to have acted in a protective manner in retaining the children in her care because of concerns she had for the children’s wellbeing in the father’s care. This is despite it appearing that her concerns, other than for the children’s mental wellbeing, do not appear to be fully supported by the Family Consultant’s observations of the children when they were last interviewed, at around the same time as the mother retaining them in her care.

Family Violence

There are allegations of family violence during the relationship, and it also appears that there was family violence in the mother’s relationship with a previous partner, Mr F, to which the children were exposed.
Concerns are also raised by the mother of the children being physically disciplined by the father, including being smacked on the bottom with a wooden spoon. The Family Consultant appears to have accepted in one of his earlier reports that the children were disciplined by the father, occasionally using a wooden spoon.
Further, the mother raises concerns about the children’s reports of the father drinking and throwing things when angry in their presence. The mother’s case is that the children are subjected to abuse in the father’s care and would be at risk of further abuse in his care.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings

The mother’s proposed orders facilitate the father spending some time with the children in the future, as agreed between the parents. This is an appropriate order in terms of providing some certainty that there should be time spent between the children and their father, rather than be silent on the issue. The parents would be expected to put the children’s interests first and communicate appropriately in this regard.

Parental responsibility

The mother seeks that she have sole parental responsibility for the children, an order that is supported by the Independent Children’s Lawyer.
Where the Court is to determine parental responsibility, the starting point is section 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)).
The mother submits that the presumption is rebutted in the circumstances of this case. Specifically it is raised on behalf of the mother that there is a lack of communication between the parents and this has been the case for some time. The parents appear to have an antagonistic relationship and it appears they have not been able to discuss long-term decisions regarding the children for a considerable time. In this regard it would be appropriate for the parent with primary care of the children to have sole parental responsibility for them.
Further there are concerns of family violence and risks of harm to the children in this case. In all of the circumstances of the case, I am satisfied that it is in the best interests of these children for the mother, who is to have primary care of them into the future, to have sole parental responsibility for the children.

Conclusion

Having regard to all of the factors in relation to the best interests of these children, I find the orders proposed by the mother, as supported by the Independent Children’s Lawyer, to be appropriate and orders will be made accordingly.

I certify that the preceding one-hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 July 2014.

Legal Associate:

Date: 25 July 2014

[2014] FamCA 583

25 July 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Injunction