Martins and Denny
[2017] FCCA 2753
•16 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTINS & DENNY | [2017] FCCA 2753 |
| Catchwords: FAMILY LAW – Parenting – young and vulnerable children – risk of harm and neglect in mother’s care – capacity to meet children’s needs. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 65DAA |
| Cases cited: Collins & Collins (1985) FLC 91-603 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS MARTINS |
| Respondent: | MR DENNY |
| File Number: | NCC 1628 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 8, 9 and 10 May 2017 |
| Date of Last Submission: | 10 May 2017 |
| Delivered at: | Dubbo |
| Delivered on: | 16 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte-Mills |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| Counsel for the Respondent: | Ms Webb |
| Solicitors for the Respondent: Independent Children’s Lawyer: Counsel for the Independent Children’s Lawyer: | DL H Solicitors Legal Aid New South Wales Ms Neville |
ORDERS
All prior parenting orders are discharged.
The father shall have sole parental responsibility for the children Y born (omitted) 2013 and X born (omitted) 2014.
Notwithstanding order 2 above:
(a)The father is to notify the mother of his intention to make any major decisions in relation to the children with such notification to be provided to the mother by text message;
(b)The father is to notify the mother in the event of a serious illness, hospitalisation or emergency in relation to the children.
The children shall live with the father.
The children shall spend time with the mother as agreed between the parties and failing agreement:
(a)Commencing on 22 November 2017 and every third weekend thereafter;
(i)From 10am to 5pm on Saturday;
(ii)From 10am to 5pm on Sunday; and
(iii)At any other times as agreed between the parties in writing.
(b)Commencing on the first weekend in January 2020 and every third weekend thereafter;
(i)From 10am Saturday to 5pm Sunday;
(ii)At any other times as agreed between the parents in writing.
(c)In order to facilitate such time changeovers shall occur as agreed between the parties and failing agreement the father and/or his nominee are to deliver the children to the mother and/or her nominee inside McDonalds (omitted) at (omitted) at the commencement and the conclusion of time;
(d)The mother is restrained by injunction from permitting more than two adult persons attending together with her at changeover pursuant to these orders; and
(e)Until January 2020 the mother is restrained by injunction from taking the children to her place of residence at any time she is spending with the children.
Forthwith the mother and the father shall install Skype or other appropriate video conferencing application on any devices in their household, to be used for the purpose of the children communicating with their parents.
The mother and father forthwith provide to each other and keep each other so informed at all times of their email address, Skype address (or other address for video conferencing), mobile phone and/or landline details to enable telephone and electronic communication in accordance with these orders and notify the other parent of any changes within 48 hours.
The children shall communicate with the mother by telephone each Tuesday and Thursday between 5pm and 5.30pm with the mother to initiate the communication to the father’s mobile phone in the first instance and the father to ensure that his mobile phone is in working order and ensure that the children are afforded privacy and that the phone is not placed on speaker phone.
The mother is to commence Skype or other appropriate video conferencing communication with the children in substitution of telephone communication pursuant to order (8) above upon the mother providing notice to the father by text message to his mobile phone of her Skype or other appropriate address and thereafter the children shall have Skype or video conferencing communication with the mother as agreed and failing agreement:
(a)Each Tuesday between 5pm and 5.30pm with the mother to initiate the Skype or video conferencing communication in the first instance;
(b)Each Thursday between 5pm and 5.30pm with the father to initiate the Skype communication in the first instance;
(c)On Mother’s Day, each of the children’s birthday, the mother’s birthday and Christmas Day with the father to initiate the Skype or video conferencing communication in the first instance between 5pm and 5.30pm or at such other times as agreed.
(d)In order to facilitate Skype or video conferencing communication pursuant to these Order:
(i)Each party is solely responsible for maintaining the cost and connection of their device and their data to enable Skype or video conferencing communication;
(ii)Each party is to do all acts and things to ensure that they have the appropriate equipment configured and working to facilitate Skype or video conferencing between the children and the mother;
(iii)If at any time the mother is unable to communicate with the children by Skype or video conferencing then the mother shall be permitted to have telephone communication with the children pursuant to order (8) above.
The father is restrained by injunction from allowing the children to come into contact with the father’s children not of the relationship in circumstances where they are intoxicated or otherwise under the influence of illicit substances and he shall cause the children to be removed from their presence in such circumstances.
The mother is prohibited by injunction from allowing the children to come into contact with Mr A in circumstances where he is intoxicated or otherwise under the influence of illicit substances or in an aggravated state and shall cause the children to be removed from his presence.
Each party is restrained by injunction from making critical or derogratory remarks in relation to the other parent in the presence or hearing of the children and that each parent use their best endeavours to prevent any third party from making critical comments about the other parent in the presence or hearing of the children.
The father shall continue to engage with Brighter Futures (omitted) (or such other similar program) in the locality in which he resides and shall follow any directions and accept any assistance provided to him for as long as the Convenors of the program deem appropriate.
During any period referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
Dismiss the application for costs made by Independent Children’s Lawyer.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Martins & Denny is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
NCC 1628 of 2015
| MS MARTINS |
Applicant
And
| MR DENNY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings relating to two children Y born (omitted) 2013 and X born (omitted) 2014.
The parties to the proceedings are the Applicant mother Ms Martins and the Respondent father Mr Denny.
The proceedings were commenced by the filing of an Initiating Application on 29 June 2015 in the Newcastle Registry of the Federal Circuit Court.
On the first return date of the Initiating Application the Court made orders by consent for the children to live with the mother and spend time with the father each Saturday and Wednesday between 10am and 3pm. On that date the Court further ordered the appointment of an Independent Children’s Lawyer, the parties to attend a Child Dispute Conference and a request that the Department of Family and Community Services intervene in the proceedings.
On 10 September 2015, the father’s time was varied by consent to occur between 10am and 3pm each alternate Saturday.
A Family Report was ordered on 26 November 2015 and was prepared by Dr R dated 3 June 2016 which was released to the parties on 6 June 2016.
On 14 June 2016 and following the release of the Family Report, the Court made orders pending further order on the oral application of the Independent Children’s Lawyer for the children to live with the father, the father to have sole parental responsibility for the children and for the mother to have supervised time with the children at Interrelate (omitted) at such times and dates as that service could accommodate. The Court again invited the Department of Family and Community Services to intervene in the proceedings and granted leave to the Independent Children’s Lawyer to provide a copy of the Family Report dated 3 June 2016 to the Department for their consideration. The matter was also transferred to the Dubbo Registry of the Federal Circuit Court.
On 31 October 2016 the matter was set down for a two day final hearing on 16 and 17 March 2017 in Dubbo. The matter was not reached and subsequently listed for final hearing for three days on 8, 9 and 10 May 2017 in Parramatta.
Documents relied on
The mother relied on the following documents at final hearing:
a)Initiating Application filed 29 June 2015;
b)Notice of Risk filed 29 June 2015;
c)Affidavit of Ms Martins sworn 15 February 2017 and filed 16 February 2017;
d)Affidavit of Ms L sworn 15 February 2017 and filed 16 February 2017;
e)Affidavit of Ms K sworn 15 February 2017 and filed 16 February 2017; and
f)Affidavit of Ms G sworn 15 February 2017 and filed 16 February 2017.
The father relied on the following documents at final hearing:
a)Affidavit of Mr Denny affirmed and filed 10 February 2017;
b)Affidavit of Mr Denny affirmed and filed 6 April 2017;
c)Affidavit of Ms N affirmed 7 February 2017 and filed 7 March 2017; and
d)Family Report of Dr R dated 3 June 2016.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – Minute of Order sought by the Independent Children’s Lawyer;
b)Exhibit 2 – Material produced under Subpoena by Interrelate, being Sleeve 37;
c)Exhibit 3 – Material produced under Subpoena by Uniting Resilient Families – Children and Families, being Sleeve 32;
d)Exhibit 4 – Material produced under Subpoena by New South Wales Police, being Sleeve 25;
e)Exhibit 5 – Material produced under Subpoena by the Department of Family and Community Services, being Sleeve 29;
f)Exhibit 6 – Costs Notice for the Provision of the Independent Children’s Lawyer; and
g)Exhibit 7 – Family Report of Dr R dated 3 June 2016.
Competing Proposals
The mother seeks orders in accordance with her Initiating Application filed on 29 June 2015 being that:
a)The parties have equal shared parental responsibility for the children;
b)The children live with the mother;
c)The children spend alternate weekend time with the father with changeover to occur at McDonald's (omitted);
d)The children communicate with the father by telephone at reasonable times between 6pm and 6.30pm;
e)The children spend time with the father for half of the school holidays and for specific time over Christmas Eve and Christmas Day;
f)The children spend time with the father on each of the children’s birthdays with such time to occur in (omitted); and
g)That each of the parents are able to travel internationally with the children during their time with the children under certain provision of information conditions.
The father seeks orders that:
a)The father have sole parental responsibility for the children;
b)The children live with the father;
c)The children spend time with the mother for one weekend each month;
d)The children communicate with the mother by telephone between 6pm and 6.30pm on Tuesday and Thursday and at 9am on special occasions including Mother’s Day, Easter Sunday and Christmas Day if the children are not otherwise in the mother’s care.
The Independent Children’s Lawyer seeks orders in accordance with Exhibit 1 being that:
a)The father have sole parental responsibility for the children;
b)The children live with the father;
c)The children spend day time only with the mother every third weekend from 10am to 5pm Saturday and 10am to 5pm Sunday;
d)That the mother be restrained from taking the children to her residence during any time the children are spending with her;
e)The children shall communicate with the mother via Skype and telephone;
f)The father be prohibited from bringing the children into contact with his adult children when they are intoxicated and that the father be prohibited from consuming alcohol;
g)That each of the parties pay $5,868.96 to Legal Aid New South Wales for their contribution to the costs of the Independent Children’s Lawyer; and
h)Other ancillary orders.
The Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[8] affirmed the legislative pathway.
[7] (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] [2010] HCA 4
It is important that the Court sets out any findings of fact in respect of the allegations which have been made, and also in respect of the risk of harm to the children in each of the parents’ households. The Court does so below, where appropriate.
To make positive findings of fact, the Court needs to be satisfied on the balance of probabilities as to the existence of those facts. The degree of satisfaction required cannot be based on inexact proofs, indirect testimony or indirect inferences.[9] The obligation to carefully examine the evidence is a high one.[10]
[9] Murphy & Murphy [2007] FamCA 795 at [480]
[10] Ibid at [482]
The authorities and principles dealing with unacceptable risk of harm are well known.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard. [11]
[11] Roberts & Banks [2011] FamCA 662 but referring to Johnson & Page
The issue however, is not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[12] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[13]
[12] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]
[13] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]
The more serious the consequences, the higher the risk even if the odds of this happening of the relevant event are comparatively low.[14] However, once a finding of unacceptable risk of harm is made, “the finding can come down between parent and child like an iron gate that no subsequent efforts can raise.[15]”
[14] Per Carmody J in Murphy & Murphy [2007] FamCA 795 at [383]
[15] Napier & Hepburn [2006] FamCA 1316 per Warnick J at [114]
Issues for Determination
The primary issue for determination was whether the children are at significant risk of harm from neglect in the care of the mother. The issue of parental responsibility was also a relevant matter.
The Relevant Facts
The father was born on (omitted) 1969 and is currently 48 years old.
The mother was born on (omitted) 1994 and is currently 23 years old.
The parties met in (omitted) 2012 and commenced a relationship shortly thereafter. The parties also moved in together.
The child Y was born on (omitted) 2013 and is currently four years old.
The child X was born on (omitted) 2014 and is currently three years old.
The father moved to (omitted) for work in (omitted) 2014 and the mother and children remained living in (omitted).
The mother says that on 4 October 2014 the father and the mother’s sister were drinking when an argument occurred with the father punching the mother in the jaw. The maternal grandparents called the police who removed the father. A final Apprehended Domestic Violence Order was made on 9 December 2015 at Cessnock Local Court for the protection of the mother.
The parties separated in October 2014 following the above incident and the children lived with each parent on a week about basis until the father retained the children on 14 May 2015.
The father re-partnered with Ms N in (omitted) 2015. They moved to rental accommodation in (omitted) some four to six weeks after commencing their relationship.
Other relevant evidence
In the mother’s case
The mother and father met online in (omitted) 2012, however the mother says that they did not “really live together all that much throughout the relationship” because the father was controlling and abusive towards the mother. The mother does not provide any clear examples of the father’s controlling and abusive behaviour towards the mother in her Affidavit material other than the incident on 4 October 2014 which led to the Apprehended Domestic Violence Order for her protection. She says that the father has threatened to cancel her visits with the children and that the father has sent her intimidating text messages, however these have not been annexed to her Affidavit or tendered in the proceedings, and that the father’s new partner, Ms N threatened the mother saying “you’re dead”.
The mother says that she did not tell the father about her pregnancy with their first child until she was 14 weeks pregnant because she was fearful that the father would tell her to terminate the pregnancy.
The mother says that following the birth of the children she was the primary care giver who was responsible for feeding, dressing, bathing and settling the children. She says that the father “was not a hands on father”.
The mother denies that she has ever neglected the children and that the children’s preschool had never made a complaint about the level of care of the children. The mother says that when the children were living with her she would bath them once a day, more if they were particularly dirty, brush their teeth, purchase new clothes and shoes and prepare meals. She says that she would wash their clothes regularly, follow up on medical appointments and attend to the children’s immunisations.
The mother has a close relationship with her family. She lives with her parents and sisters and her children all in a three bedroom home.
Following separation the mother has had two further children, A born on (omitted) 2015 and B born on (omitted) 2016. The mother says that A’s father is not involved with the care of A and that he left her when A was three weeks old. At the time of hearing the mother is in a relationship with B’s father, Mr J.
The mother wishes to remain living in the (omitted) area where she has the support of her family.
The mother is engaged with a number of parenting programs including ‘1, 2, 3 Magic’ and ‘Bringing up Great Kids’ with (omitted) Support Services.
The mother concedes that she has worked with the Department of Family & Community Services in the past in relation to Y and X. This file was closed on 21 September 2016.
The mother is illiterate and requires assistance in reading and writing.
The mother contends that the children call Ms N, ‘mummy’ which is understandably upsetting to the mother.
The maternal grandmother, Ms L filed an Affidavit on 16 February 2017 and was cross examined at the final hearing. She gives evidence of the father being careless and reckless having witnessed the father driving a four wheel drive with the maternal grandmother’s children riding on the side of it. One child jumped off the moving vehicle at the insistence of the father and injured her back and knee.
The maternal grandmother says that she witnessed the father being verbally abusive towards the mother; however she does not recall what words were used between the parties.
The maternal grandmother says that the mother has always bathed the children each night, the mother regularly changed the children’s nappies and that she would treat any nappy rash the children had suffered appropriately. She says that she has never witnessed the mother to be neglectful of the children and that the children have a strong attachment to the mother.
The mother’s sister Ms K was also crossed examined. Her evidence was at times inconsistent with the mother’s and the maternal grandmother’s, particularly in relation to incidents of potential violence which have occurred in the mother’s home involving the adult siblings.
In the father’s case
The father is a (occupation omitted), however is currently receiving workers compensation payments for back injuries sustained whilst at work. The father has re-partnered with Ms N, who was also cross examined at final hearing. They live together in (omitted).
The father contends that he withheld the children from the mother in May 2015 as he was worried about physical neglect of the children in the mother’s care, possible physical abuse of the children and overcrowding in the mother’s home.
The father says that whilst he was living with the mother and their two children in a room at the back of the maternal grandparents home, the house regularly housed up to 11 people and states that the house was “always a filthy squalid mess and never cleaned”.
The father became concerned about the children’s welfare following his alternate weekend visits with them after he moved away from (omitted) to (omitted). He says the house became more squalid with dirty dishes piling up, mould on the walls, the children being dressed in dirty clothes and the child Y being covered in mosquito bites and the child X with nappy rash. The father says that he retained the children due to the combination of the living conditions of the children and the fact that the mother had had two other children with two different fathers in quick succession, he was concerned for their wellbeing.
He says that the children settled with him and his new partner quickly, however upon returning the children to the mother’s care as directed by the Court, the father was contacted by the Department of Family and Community Services who had enquired whether the father would be prepared to care for the children and their step sister A on a fulltime basis if the need arose.
The father describes a visit with the children on 11 July 2015 where X smelt of “spewed milk”, the children had “dirty faces and finger nails, dirty clothes and runny noses”. He says that both children smelt of urine and had wet pants and that “their feet were filthy”.
The father says that since the children had been living with him and Ms N the children have been settled and that they are happy and thriving.
The father has enrolled Y at preschool two days a week in (omitted) and X attends playgroup twice per week.
The father says that he and Ms N encourage the children to speak with the mother on the telephone and that the mother often only wishes to speak with Y. The father continues to take the children to the supervised contact centre so that the children can spend time with the mother each fortnight. This is a ten hour round trip for the children as the contact occurs in (omitted) where the mother resides. The father concedes that whilst it is important for the children to spend time with the mother, this travel is far too onerous on the children and is costly for the father who has to pay the full cost of fuel for the round trip. The father suggests that the mother’s time with the children occur in (omitted) as a halfway point between the parents.
The father denies using illicit substances as suggested by the mother.
Ms N filed an Affidavit in support of the father’s application on 7 March 2017. Ms N and the father have been in a relationship since (omitted) 2015 having met online. The pair commenced cohabitation some four to six weeks after first meeting.
Ms N confirms that the children were dirty and unkempt when the father went to collect the children for alternate weekend visits. She says that the children would often present with unwashed hair and had bruises and mosquito bites on their bodies.
Ms N says that she formed a close relationship with the children whilst they were living with the father and her in May 2015, following the father’s retention of the children.
Ms N is very supportive of the father’s application for sole parental responsibility and for the children to live with the father. Ms N is able to assist the children and the father in their daily routines. Ms N denies that the children have ever called her ‘mum’ or ‘mummy’, she says that they refer to her as ‘Ms N’ or ‘Ms N.
Family Report of Dr R
Dr R reports that at the time of the Family Report interviews, the mother lived with the maternal grandparents, three younger sisters, the two subject children and a nine month old child to another relationship in a three bedroom house. The mother was pregnant with the child B at the time of the interviews.
Dr R reports that the subpoena material from the Department of Family and Community Services reveals that the mother’s home had been overcrowded at times, unhygienic and unsafe for children. Despite the Department providing very clear instructions for ensuring a safe and clean home, the subpoena material reveals that the mother has not been able to implement these changes as reported in the Family Report.
At interviews the mother alleged that the father is psychologically unstable, stating that when the father’s 13 year old son was killed he intentionally risked his own life by jumping through a glass window. The mother reported that since the birth of the children the father had threatened to commit suicide on at least one occasion. The mother reported the father as being physically violent towards her and described the incident when the father had punched the mother in the jaw. The father reported that since this incident he has ceased drinking alcohol.
The father has received treatment and counselling following the death of his son in 2009 and reports to the Family Report writer that he no longer drinks alcohol. The counselling notes indicate that the father was responding within an appropriate level of distress and that there ‘exists no discernible pathology’.
The Family Consultant reports that she is concerned with the mother’s parenting capacity and her support network and whether she is able to adequately care for all of her children.
Dr R described the father as appearing confident and at ease with the interview process and arrived on time. “He engaged easily and willingly offered information and spontaneously elaborated. He appeared authentic and child focused.”
The father reported to Dr R that:
The children were happy with him. He bought them all new clothes and kept them clean, he fed them well and eliminated the nappy rash he treated the lice and mosquito bites…he weaned they (sic) youngest child from the bottle and established a routine.
Further, he told Dr R that the children transition well at handovers and that whilst they may cry for a few minutes initially they settle quite quickly by the father distracting them and not prolonging the handover. The father told Dr R that this is very different to the way the children react when they were returning to their mother’s care. He stated that the mother has said “stop f###ing crying”, slammed the car door and immediately given the youngest child a bottle of cordial to drink”
The father reported that his relationship with Ms N was strong and stable, that she was a “calm and supportive influence in his life”. The father told the report writer that he acknowledged that his drinking was becoming an issue and that he has ceased drinking.
Dr R notes the mother’s attendance at the interviews and describes the mother as:
Arriving an hour late and on arrival appeared overwhelmed and stressed. The children were crying and the mother appeared to lack confidence in her attempts to soothe them. She oscillated between speaking sharply to them and attempting to bribe them with food. The mother and children wore clothes that were miss-fitting and stained and the family consultant noted significant concerns with the mother’s personal hygiene.
The Report writer noted the mother’s demeanour as defensive and reluctant to engage in the process, she was difficult to understand and avoided answering questions.
The mother reports her education to Dr R which appeared to be rather fractured. It appears she completed year 9 and then did not return to school.
The mother reported two incidents of physical assault on the mother by the father. She says that the father hit her once when the father had accused her of cheating and the second time whilst in Queensland. It was following this incident that the mother ended the relationship.
The mother told Dr R that the Department of Family and Community Services had told her that she was a “filthy pig” and that the recommendation was that the children be removed from her care.
The mother denied ever smacking the children resulting in bruises or the children receiving injuries due to a lack of supervision whilst in her care. She denied that they were neglected by her.
The mother indicated to the Family Consultant that she has concerns that the father may be harming the children however she refuses to alert authorities for fear of being blamed herself. The report writer suggested that it was more important that if she holds these concerns that she report them. The mother disagreed and repeated that she “will not report it because she does not want to be blamed for it”.
The children were not interviewed due to their tender ages however they were each observed interacting with their parents and each other. The report writer reported the children looking:
dishevelled, they had dirty miss-fitting clothes, both girls had streaming runny noses, Y’s hair was tangled and looked unbrushed. Both children had dirty nails and faces, and later when Y removed her shoes she was observed to have unreasonably dirty feet.
The father took the children to the park while the mother was being interviewed and upon their return they appeared more calm and relaxed and were smiling.
The report writer observed the mother trying to play with the children however the child Y was often upset and anxious with the way the mother was engaging with her. Further, the mother did not appear to be concerned that the child X had spilt chips on the floor and was not fussed that the children were stepping in them or playing with them further making a mess.
The Family Consultant noted her concern that “the children are at risk of significant harm due to the unhygienic living conditions, neglect, lack of supervision and lack of maternal attachment”.
The Need to Protect vs Benefit of Relationship - Primary Considerations under s60CC(2)
The key issue for the Court to determine in respect of risks of harm to the children is the need to protect them from abuse, neglect and/or family violence. There are four areas of concern which have been identified in the evidence, relating to risk of harm to the children. These are:
a)Neglect of the children in the mother’s care, particularly relating to the children’s hygiene and physical presentation;
b)Physical dangers to the children in the mother’s home arising out of overcrowding and the state of the home;
c)Mother’s parenting capacity and lack of maternal attachment; and
d)Mother’s capacity to care for four young children.
On the other hand, the Court needs to consider the benefit to the children of the relationship with their parents.
Concerns were reported to the Department of Family and Community Services that the children presented as dirty and unkempt. They were observed at all times that they were sighted to have dirty feet and were generally always playing in the yard. The mother’s home was reported to be cluttered with excess furniture and clothes throughout the home, as there was no storage or cupboard space to accommodate the belongings of all who lived in the home.
A letter dated 28 October 2015 from the Department of Family and Community Services states that whilst the risk to the children of neglect is high, the risk of abuse is low, and the children are assessed as safe.
The Brighter Futures summary of interventions[16] notes as follows:
Poor home hygiene (cockroaches have returned despite pest pray completed… flys (sic) and mosquitos in home). The home is a dilapidated farm house (leaking roof, mold (sic) on ceiling, ripped and stained carpet and linoleum) with caravans, wrecked cars and machinery in the surrounding yard.
Concerns remain regarding neglect and hygiene (ongoing nappy rash, insect bites to Y and X’s arms, legs, face and torso, unclean clothing, re-occurring head lice)…
Current reports from childcare that X has a poorly washed bottle, and X and Y present with ‘change of clothes unwashed and smelly’.
Information provided and modeled (sic) on a number of occasions is unable to be incorporated into household (household routines folder, safe sleep environment for A, X and Y, healthy relationships information, treatment of head lice)
[16] Exhibit 5
At the time of hearing this matter, the mother continued to live in the same three bedroom rental property with at least the following members of her family:
a)Her children B (a baby) and A (a toddler);
b)Her parents Mr G and Ms L; and
c)Her two sisters, X and Ms B (who sleep in a caravan on the property, but stayed in the house as needed, including using the kitchen and bathroom).
At the time of the interviews for the Family Report, the mother’s older sister Ms K was also living in the home, as were the two subject children of these proceedings. Ms K currently stays in the home on a regular basis, together with her baby. The mother’s brother, Mr A, stayed from time to time and continues to do so.
The evidence in the mother’s case was unclear as to who precisely lives in the mother’s home. For example, it is not clear to the Court whether the mother’s current partner Mr J regularly stays at the home, and if so how often, or if he is just a visitor. Certainly the mother’s evidence is that he does not live there, however, there was conflicting evidence given by her sister and mother as to exactly how often Mr J is present in the home. The material produced under subpoena and tendered in the proceedings being case notes from Uniting Resilient Families – Children and Families, suggested that Mr J was living with the mother.
The mother was not an impressive witness. Her evidence was often vague, and at times it appears intentionally so. She had a tendency to blame others for things which had happened to her, and not to take responsibility for her own actions. She spoke in an immature manner, using terms such as “getting in trouble” with the Department of Family and Community Services and being “dobbed” in by the father. She referred to the “In Home Routine Folder” which was developed with the assistance of Brighter Futures and Catholic Care to help the mother manage routine household tasks as “the folder of demands”.
The matters which were reported by Dr R in respect of the mother’s capacity and insight are already noted earlier in these Reasons, particularly the concerns that the mother appeared to lack insight and empathy, that she was at times unresponsive to the children and that she was not able to soothe and engage them. The material produced under subpoena by the Department of Community Services, which was not tested during the hearing, indicated as follows[17]:
[17] This was before the birth of the mother’s fourth child B
X and Y appear to be happy when their mum picks them up in her arms…
Ms Martins appears to have poor parenting skills… Ms Martins gets very defensive when she has been informed about the allegations regarding the childrens (sic) unhygienic appearance…
Ms Martins has never been observed to get annoyed with the children who appear very active and messy ways.
Certainly, the recent reports of Interrelate, who have been supervising the mother’s time with the children since the orders of 14 June 2016 indicate that the children interact positively with the mother and that they are observed to be loving towards each other.
Section 60CC(3) Factors
Views of the child
The children’s views which in any event are not known, would not be given any weight as a result of their tender ages and levels of maturity.
Relationship of child with parents and other persons
The children have a strong and loving relationship with the father. The Family Consultant noted that the children interacted easily with the father and the father appeared comfortable and confident with the children.
The mother’s relationship with the children has been noted above.
Parents’ participation in long term decisions, spending time and communicating with child
Between October 2014 and May 2015 the children lived with the parents on a week about basis. Between May and July 2015, they lived with the father after he did not return them due to concerns he had about the mother’s ability to care for them. Consequently, the children commenced living with the mother and spending time with the father each alternate weekend. Despite the long trip, the father availed himself of the opportunity of spending time with the children.
Since orders of June 2016 and the children living with the father and spending supervised time with the mother, each of the parents has facilitated such time occurring. This is a significant imposition on the father and the children who do a 9 to 10 hour round trip so that the children can spend two hours with the mother each fortnight.
The mother too, despite having her other two young children in her care and the difficulties associated with the distance she has to travel, has been ensuring that the children spend time with her in accordance with the orders.
Parents’ obligations towards maintaining the child
This is not a matter which is of any significant weight in these proceedings.
Likely effect of any changes in the child’s circumstances
The children have been living with the father since 14 June 2016 and spending supervised time with the mother each alternate weekend.
It is likely that there will be significant upheaval to their lives if an order is made for them to live with the mother. This will be not only because they are settled in the father’s home and care, but also because they have not lived with the mother for over 18 months. The time they have been spending with the mother has been in a controlled environment and the children have generally not had significant contact with the extended maternal family or spent time in an overcrowded home environment with the mother (at least since the time has been supervised).
The children have half siblings in the mother’s household. There was little evidence about their relationship with their half-siblings. They also have much older half-siblings on the father’s side. However, there was no evidence about any such relationships.
Practical difficulty and expense of a child spending time with a parent
This is a significant factor in this matter. The parents live approximately five hours apart with the father in (omitted) and the mother in (omitted).
The father gives evidence that the children endure a total round journey of approximately 10 hours each alternate week to spend time with the mother at the supervised contact centre in (omitted).
The father gives evidence that the cost of the journey is approximately $200 for petrol. This cost is borne by the father who is currently not in employment and receives workers compensation.
The mother proposes that the father should do all of the driving by either delivering the children to the mother or picking them up from the mother’s home, whether they lived with her or the father. The mother thought it was appropriate for the children to travel a 12 hour round trip every alternate weekend in order to spend time with the parent with whom they did not live. The mother’s attitude was that the father could move closer to where she lived, because he was the one who “upped and took off with the girls”.
Parties’ capacity to provide for the needs of the child, including emotional needs; Attitudes to child and responsibilities to parenthood of parents
The father has a positive attitude to the children and to the responsibilities of parenthood. He is also supportive of the children’s relationship with the mother, and recognises the importance of this relationship to the children. The Court accepts that he will continue to encourage that relationship. The father too has some limited capacity, but his capacity is assessed as significantly better than the mother’s.
The father concedes that the mother is loving and caring towards the children, and the Court accepts that he will ensure that the children’s relationship with the mother is encouraged.
The mother presented as immature and while she clearly loves the children, she has at times not demonstrated an appropriate attitude towards her responsibilities to the children or to parenthood in general. Her frequent partner changes and consequent pregnancies, reliance on extended family members, inability to act protectively at times not only towards herself but the children, inability to adequately keep her home in an appropriate physical state for the children, all speak to her limited capacity to adequately parent these children.
Culture, Background and Lifestyle
The mother’s lifestyle is a significant risk factor to these children.
Family Violence
While both parties raised allegations of family violence during their relationship, and at separation, there are currently no family violence issues reported in either parent’s household.
The mother was cross-examined about particular incidents relating to her brother at the home where she and the children were then living, however, the Court is satisfied that there are no current risks associated with violence in the mother’s home and that the risks posed by her brother’s possible unruly behaviour can be ameliorated through the orders.
Parental Responsibility
The presumption of equal shared parental responsibility is a rebuttable presumption. It does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence. It also does not apply if the Court is satisfied that it would not be in the children’s best interest for the presumption to apply.
While each of the parents makes allegations of family violence against the other, such allegations were not pursued with vigour in their respective cases. There was little cross-examination about these matters, and the allegations are generally denied by the other parent. The existence of an apprehended domestic violence order is not sufficient of itself to prove that there are reasonable grounds to believe that a parent has engaged in family violence.
However, the Court is satisfied that the evidence overall establishes that it is not in the children’s best interest for the parents to have equal shared parental responsibility. The parents were both very clear in their evidence about their lack of ability to communicate with each other and the difficulties in communication which have arisen between them in the past. There is no demonstrated capacity that they will jointly be able to make long term decisions for their two children. For that reason, an order for sole parental responsibility is supported by the evidence.
Where the children are to live?
It was submitted by counsel for the Independent Children’s Lawyer that the children would be placed at an unacceptable risk of harm if they were to live with the mother. It was further submitted that any risk of unacceptable risk to the children in the mother’s care would be ameliorated by the children living with the father and spending day time only with the mother.
It was further submitted on behalf of the Independent Children’s Lawyer that even if the Court did not make the finding that the children were at an unacceptable risk of harm in the mother’s care, an order for them to live with the father was still an appropriate order and an order in their best interest. This was a position supported by the father.
It was submitted on behalf of the mother that the children ought to be returned to her care as she was the person best placed to care for them, and that their best interests would be served by such an order.
After carefully considering all of the evidence, the Court finds that the children are not at an unacceptable risk of harm while in the mother’s care. However, there are certain risks which have been identified and which the Court finds do exist, but such risks are ameliorated by the orders which the Court makes.
It is in these children’s best interests to live with the father, and an order for them to do so is therefore made.
It is in these children’s best interests that they continue having a meaningful relationship with the mother. The practical difficulties associated with the distance between the parents’ respective homes and the obligations on the mother arising out of having two young children in her full-time care, mean that the children the subject of these proceedings will only have a limited opportunity to spend time with the mother.
While there is overcrowding in the mother’s home, and general uncleanliness, it is the Court’s view that when the children reach school age they will be in a better position to voice any concerns they might have about the care they are receiving in the mother’s house. They will also be far less vulnerable than they are at present. For those reasons, there will be no overnight time with the mother or time spent at the mother’s home until the youngest child is of school age.
Costs
The starting position with respect to costs, as set out in s117 of the Family Law Act 1975 (Cth), is that, subject to subsection 117(2), each party to proceedings under the Family Law Act shall bear his or her own costs.
The discretion to award costs is a broad discretion.[18]
[18] see for example Collins & Collins (1985) FLC 91-603.
Both parents are of very limited financial means. While the Independent Children’s Lawyer sought an order for costs, the Court is not satisfied that there are circumstances justifying a costs order.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out at the forefront of these reasons.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 16 November 2017
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