McDermott and Allsop
[2016] FCCA 2427
•31 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCDERMOTT & ALLSOP | [2016] FCCA 2427 |
| Catchwords: FAMILY LAW – Parenting – where Minister has parental responsibility for 3 Indigenous children – issue of spending time and communicating with both parents – discrete issues for determination. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61F, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS MCDERMOTT |
| Respondent: | MR ALLSOP |
| File Number: | WOC 801 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 22 February 2016 6 and 7 June 2016 8 July 2016 9 August 2016 |
| Date of Last Submission: | 9 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent: | Ms Cotten-Moroz |
| Solicitors for the Respondent: | Peter Ryan Solicitor & Attorney |
| Counsel for the Independent Children's Lawyer: | Ms Humphreys |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
| Counsel for the Intervener: | Mr Moore |
| Solicitors for the Intervener: | Crown Solicitor’s Office |
ORDERS
THE COURT ORDERS THAT:
In exercising parental responsibility and in determining living arrangements for the children of the relationship, namely:
(a)X, born (omitted) 2004;
(b)Y, born on (omitted) 2007; and
(c)Z, born (omitted) 2008.
the Minister for Family and Community Services of NSW ("the Secretary") shall:
(a)have regard to the rights of the children to enjoy their Aboriginal culture pursuant to s60CC(3)(H) and s 60CC(6) of the Family Law Act 1975, or as amended from time to time;
(b)notify each parent of any proposed change that the Secretary intends to make in exercising parental responsibility for major long term issues, such notification to be made in writing within 28 days of the change.
(c)notify each parent of any proposed change that the Secretary proposes to make for the living arrangements of the children or any of them, such notification to be in writing within 28 days of the change.
Subject to Order 4 hereof, the Secretary shall ensure that the child, Z, spend time with the Father as follows:
(a)Until the end of 2016, for not less than 2 hours on three (3) occasions.
(b)Thereafter, for not less than 2 hours 6 times each year.
(c)Such further or other times as agreed between the Secretary and the Father.
To facilitate time in accordance with 2 above, in default of agreement about a venue at which time is to take place, time shall take place in (omitted) in the Community Centre and that if weather permits, then at a park or at the beach at (omitted).
To facilitate compliance with Orders 2 and 3 above, the Minister:
(a)Shall determine whether the imposition of supervision is necessary and if so determined, the Minister shall be responsible for arranging such supervision;
(b)May terminate the occasion of time spent by the child/ren with the Father and/or Mother in the event of the subject parent:
(i)Being accompanied to a visit by another person not authorized in advance by the Minister;
(ii)Attending a visit, in the opinion of the Minister or his or her delegate, intoxicated by alcohol or some other illicit substance;
(iii)Physically disciplining the child/ren or any of them;
(iv)Using abusive language in the presence or hearing of the children or any of them, in circumstances where the abusive language is specifically used to refer to the children or any of them, the other parent, a career of the Minister’s delegate;
(v)Conducting themselves during a visit in a manner in which, in the opinion of the Minister or his or her delegate, poses an immediate risk to the safety of the children or any of them;
(c)May suspend the children’s further time pursuant to these Orders with the parent in the event that a parent fails to attend and that the parent must attend a meeting with the Departmental caseworkers before that time will recommence.
In the event that the children do not live together in the same residence, the Minister shall take all reasonable steps to ensure that the children spend time with one another for not less than 12 times per year for not less than two hours on each occasion, otherwise on the conditions determined by the Minister.
The Minister, the Father and the Mother shall take all reasonable steps to ensure that the children are able to communicate with each of their parents in the following manner:
(a)By the Father and Mother, respectively, forwarding to the Secretary, letters, cards, photographs and/or gifts to the children or any of them but not more frequently than monthly, and the Secretary if he is of the opinion that such material is appropriate, will forward it to the children.
(b)By the Minister sending to the respective parent and letters, cards, photographs or other written communication that the children, or any of them, wish to be conveyed to the parent.
For the purposes of implementation of Order 6 hereof, the Minister shall, within 28 days hereof, notify the Father and the Mother, respectively, of any address to which that parent may send the written communication and shall inform the respective parent of any changes to these details within 14 days of such change.
To facilitate compliance with these Orders, each parent shall, within 28 days hereof, keep the Minister informed of his/her contact details, including current address and telephone number and shall inform the Minister of any changes to these details within 21 days of such change.
The Secretary will provide to the Father and Mother respectively, copies of all school reports and yearly school photographs relating to the children.
Pursuant to s68B of the Family Law Act 1975, the Father and Mother are each hereby restrained from:
(a)Communicating with or spending time with the children or any of them other than in accordance with these orders or at any venue at which the children or any of them is participating in sport or extra-curricular activity.
(b)From entering upon or approaching within 200 metres of:
(i)The residence of the children or any of them;
(ii)Any school attended by the children or any of them,
without the prior written authorization of the Minister.
Pursuant to s.68B of the Family Law Act 1975, the Father and the Mother are each hereby restrained from:
(a)Criticizing, blaming, insulting, speaking badly about the other parent, a carer or a delegate of the Secretary to or in the presence or hearing of the child/ren; and
(b)Discussing these proceedings or the reasons for these proceedings with the children or in their presence or hearing.
Leave is granted to the Secretary to furnish copies of the Family Report dated 23 June 2015 to any professional engaged by the Secretary to assist in the psychological care, welfare and development of the children, including but not limited to counselling the children or any of them.
Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached act Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
NOTATIONS
A.It is the Secretary’s current proposal that time between the Father and Z be supervised.
B.The Secretary will arrange for X (X) and Y (Y) to undertake counselling with a view to initiating face to face supervised contact with the Father.
C.In circumstances where the counselling proceeds well, and should the children X and Y wish to spend time with their father, the Secretary will consider face to face supervised time scheduled to occur simultaneously with Z’s time.
IT IS NOTED that publication of this judgment under the pseudonym McDermott & Allsop is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 801 of 2013
| MS MCDERMOTT |
Applicant
And
| MR ALLSOP |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about three children: X who is aged 11; Y who is aged 9; and Z who is aged 8. All of these children are in the care of the Minister for Family and Community Services who has the benefit of a final order for sole parental responsibility made on 22 February 2016. That order also provides that the children live as directed by the Secretary of the Department of Family and Community Services, or his delegate. There is no dispute that the children should continue to be in the care of the Minister, that the Minister should have sole parental responsibility, and that the children live as directed by the Secretary of the Department.
The dispute before the Court is between the parents and the Secretary, Department of Family and Community Services (hereafter referred to as ‘the Secretary’) about how much time the children should spend with each parent, and under what circumstances.
The children’s mother is the Applicant. She is 39 years old. The First Respondent is the children’s father and he is 44 years old. They commenced cohabitation in about 2003, and separated in 2013. On any view of the evidence, their relationship was a turbulent one.
On 31 August 2015 the Secretary assumed care of the children, and on 3 September 2015 an order was made by consent, on an interim basis, for the Secretary to be joined as an intervener, and for the Minister to have sole parental responsibility. Again by consent, but on an interim basis, it was agreed that the children live as directed by the Secretary.
The Applicant Mother’s participation in the proceedings was sporadic. She did consent to the final orders in favour of the Minister, and the Secretary. On 6 June 2016, leave was given for the Mother’s legal representatives to withdraw, and a final order was made against her on an undefended basis that the Secretary was to facilitate the children’s contact with the Mother 12 times each year for 2 hours on such conditions as the Secretary considered appropriate. The Mother did not otherwise participate in the final hearing.
In practical terms, therefore, at the final hearing the dispute was largely between the Father, and the Secretary, and the children were represented by an Independent Children’s Lawyer.
After the Secretary assumed care of the children in August 2015 they were placed in foster care. They commenced school in the (omitted) region of New South Wales, very close to where they had grown up. The Mother struggled then, and seemingly continues to struggle, with drug addiction. She has, apparently, attempted rehabilitation and detoxification a number of times.
There was a period when the children’s placement by the Secretary was unstable. They ceased living with their original foster parents in 2015, and it was not until March 2016 that they went into the care of the present carers. The children’s present carers have indicated, through the Secretary, that they wish to care for the children in the long term.
The Mother has spent time with the children supervised under the auspices of the Secretary. The Father has also spent time with the children, in similar circumstances.
By the time of the final hearing, the issues in dispute had narrowed considerably. In the first schedule to these reasons is reproduced the minute of order sought by the Father with annotations by way of underlining which indicates the different proposals advanced by the Secretary, and, as it turns out, duly supported by the Independent Children’s Lawyer.
The issues in dispute are discrete, but quite important. The issues are identified in the list below:-
(1) The Father proposes that in the exercise of parental responsibility by the Minister, the Secretary will notify each parent of any change that he or she intends to make in exercising parental responsibility for major long-term issues, such notification to be made in writing at least 28 days prior to the proposed change. The Secretary is prepared to make such notification within 28 days of the change. The Independent Children’s Lawyer supports the Secretary’s proposal.
(2) The Father makes a similar proposal in relation to any change that the Secretary proposes to make about the living arrangements for the children, that is, that the parents be notified at least 28 days prior to the change. Again, the Secretary proposes that the notification take place within 28 days of the change. The Independent Children’s Lawyer supports the Secretary’s proposal.
(3) The Father proposes an order that Z spend time with him on eight nominated occasions this year (2016), and thereafter on twelve designated occasions each year thereafter. The Secretary proposes that Z spend time with his father six times each year, on conditions that the Secretary considers appropriate. The Independent Children’s Lawyer supports the Secretary’s proposal.
(4) The Father proposes that the older children, X and Y, spend time with him on nominated occasions in 2016, and then 2017 and thereafter. The Secretary, and the Independent Children’s Lawyer, both oppose any order for X and Y to spend time with the Father.
(5) The Father proposes that the Minister be able to suspend his time with the children if he fails to attend on two consecutive visits without explanation, provided that such period of suspension not exceed three months. The Secretary, and the Independent Children’s Lawyer, propose that should the Father fail to attend on two consecutive visits without explanation, he must attend a meeting with departmental case workers before that time will recommence.
(6) The Father proposes that in the event the children do not live together in the same residence, the Minister take all reasonable steps to ensure that the children spend time with one another not less frequently than once every four weeks. The Secretary and Independent Children’s Lawyer propose that the children spend time together not less than 12 times each year.
(7) The Father proposes telephone communication, but the Secretary and the Independent Children’s Lawyer oppose the same.
(8) The Father proposes an order that he, and indeed the Mother, be able to send letters, cards, photographs or gifts to the children, but not more frequently than monthly. The Secretary and the Independent Children’s Lawyer propose that these items be sent not more frequently than monthly, and the Secretary forward it to the children if such material is appropriate.
(9) The Father proposes that the Minister authorise the principal of any school the children attend to provide both parents copies of all school reports and school photograph order forms. The Independent Children’s Lawyer and the Secretary propose that the Secretary will provide to the parents copies of those reports and photographs.
(10) The Father proposes that an injunction restraining him from attending at any venue at which any of the children is participating in sport or curricular activity remain only until 1 January 2017. The Independent Children’s Lawyer, and the Secretary, propose that this restriction not be so limited.
(11) At orders 15 and 16, the Father proposes orders compelling the Secretary to arrange counselling to support the children, especially X and Y. The Secretary opposes this on the basis that those arrangements have already been made.
(12) The Father proposes a notation that the Minister will make all endeavours to place the children with family members if such placement is approved by the Minister. The Secretary believes such a notation is unnecessary.
(13) The Father proposes that should be there be a significant change in either the parent’s circumstances, a notation should record that either party may file an application under the Family Law Act1975 (hereafter referred to as ‘the Act’). The Secretary takes the view that such notation is unnecessary.
The evidence
At the final hearing, the Father relied on his affidavits filed 13 March 2014 and 6 April 2016. The Father was cross-examined.
The evidence in the Independent Children’s Lawyer’s case was the Family Report dated 23 June 2015, prepared by Family Consultant Ms K. She was not required for cross-examination.
In the Secretary’s case, the evidence consisted of the affidavits of Ms M filed 27 May 2016, and Ms A filed 14 October 2015. Only Ms M was required for cross-examination.
In addition, a number of documents were tendered in evidence as outlined below:
| Date | Exhibit No. | Tendered from subpoenaed material? Yes/No | Tendered by (eg. A/W, R/H) | Description of Exhibit/MFI |
| 6.6.16 | I1 | No | Intervener | Letter from the Crown to Mr Ryan dated 10 March 2016. |
| R1 | No | R/F | Letter from the Crown to Mr Ryan dated 27 April 2016. | |
| 9.8.16 | I2 | No | Intervener | Bundle of documents |
| ICl1 | No | ICL | Family Report dated 23/6/15 | |
| ICL2 | No | ICL | CDC Memo dated 19/8/14 | |
| I3 | No | Intervener | Letter to Resp solicitor dated 8/6/16 |
At the hearing, Mr Moore, of Counsel, represented the Secretary, Ms Cotten-Moroz of Counsel represented the father, and Ms Humphries of Counsel the Independent Children’s Lawyer.
The applicable law
In determining parenting matters under Part VII of the Act’ the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part 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.
(2) 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said:
8. Sub-section (1) of s 65DAA is headed “Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase “substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
This is a case to which section 61F of the Act applies, as the parents and children identify as being Aboriginal. Section 61F states:
Application to Aboriginal or Torres Strait Islander children
In:
(a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child's Aboriginal or Torres Strait Islander culture.
The Family Report
Ms K's Report dated 23 June 2015 predates the Secretary’s intervention in this case, and his assumption of care of the children. Indeed, the Family Report’s first recommendation was that the Court request the Secretary to intervene, which it did. In some respects, therefore, the Report is of background relevance only, but it is nonetheless evidence before the Court about the family which was not challenged by any of the parties. The Court is entitled, therefore, to accept this evidence. The Court thus accepts Ms K’s conclusion that the children had led a very disruptive life and had been exposed to either significant violence, or significant conflict, but nonetheless, presented as happy, settled and accepting children.
Ms K had very serious concerns about both parents, their respective drug and alcohol issues, and a propensity for violence and conflict in front of the children. As at the time of the report interviews the children had always lived with their mother. Ms K described the Mother’s parenting capacity as “good enough” in some areas, at best. She was very much concerned, however, about her ability to provide appropriately and consistently for the children’s cognitive, socio-physiological and practical needs, including stable accommodation.
Ms K was clearly concerned about the Father’s presentation on both days of interviews. She described him as being “emotional, vulnerable and volatile”. She was pessimistic about the prospects of X and Y’s relationship with their father being re-established, but acknowledged that Z’s relationship could probably be easily re-established. Ms K suggested that even if the girls were to have only holiday contact with their father (and this could only occur if there was no evidence of risk of harm to them) that such contact would still need to be preceded by professional intervention to assist both the children and their father to re-establish their relationships in a secure environment.
What was clear, however, from the Father’s interview with Ms K was that it was very important to him for the children to continue to have a link to their Indigenous culture and, in particular, to live in their community at (omitted), if at all possible. The Father was clearly concerned about whether the Mother would be prepared to foster the children’s Indigenous heritage. He certainly had concerns about the Mother’s parenting capacity, and in particular her history of entering into abusive relationships and her neglect of the children, as well as her drug and alcohol needs.
He presented to Ms K as being somewhat dismissive and minimising of his own violence. He was unquestionably angry about the role that the Secretary had played in the family’s life, and in particular, their decision not to place the children in his care. The Father admitted that he continued to drink alcohol and smoke marijuana in order to reduce the stress that he experiences as a consequence of the loss of contact with the children.
In relation to X, the family consultant records at paragraphs 30 and 31 as follows:
30.According to Mr Allsop, Ms McDermott did not make any arrangements for the children to spend time with him in May 2015, when, he alleges, she and the children arrived in (omitted) without any prior warning. Mr Allsop was adamant that this visit did not coincide with term one school holidays as Ms McDermott had said, but rather, he asserts, coincided with the mother leaving Mr P. He asserts that the mother told him that she and the children left the home of the maternal grandmother “as if they were just going to the shops”. He said that the three children came to stay with him but that, X “ran away to Ms J [the paternal step-grandmother]”. Mr Allsop said that he does not know why X ran away but wonders if he might have raised his voice to her and therefore “scared her”. He said that, on this occasion, Y and Z stayed with him overnight. Mr Allsop admitted that he and the children’s step-grandmother do not have a good relationship and alleges that, when the children are visiting members of the extended paternal family in (omitted), the paternal family endeavour to ensure that the children have no contact with him.
31.Mr Allsop admits to having “hit [X] on the bottom and her legs” when he was endeavouring “to get her to hurry” as the children were going out with him. This incident occurred while the parents were still living together, but Mr Allsop was uncertain of the year. He vehemently denies having dragged her by her hair. He said that he now regrets his actions and will never repeat them.
At paragraph 35 of the report, Ms K records the Mother describing X as suffering from anxiety flowing from the alleged assault of her by her father and said that X is a child who “blames herself for everything which goes wrong”, whether it is related to her or one of her younger siblings. At paragraph 37, the Family Consultant records her interview with X. Paragraphs 37 and 38 are useful in present context:
37.X (aged 10 years 5 months), on 12 May 2015, presented as described by her mother, that is as anxious. She nervously explored the writer’s room before sitting down at the desk after having picked up a small doll from a shelf. X held the doll throughout her interview, except for when drawing, when she placed the doll on top of her completed drawings. While, on 22 May 2015, X admitted to being a bit uncertain about taking part in the observation of her and her siblings and their father, she nonetheless, presented as much less anxious than previously and was very certain about wanting to be part of the observation (the writer explained to the children in some detail the observation process and advised them that, if any one of them felt too stressed or uncomfortable to remain, they ought to raise their hand the and writer would allow them to leave the observation).
38.On 12 May 2015, X denied knowing why she had come to talk to the writer or what the subject of the conversation might be. Asked to draw her family, X hesitated before commencing the drawing. Her family drawing covered three sheets of A5 paper. On the first sheet the figures she drew were named as her mother, Mr P, and maternal step-sister, Ms S. The next sheet (the only figure drawn solely in pencil) she identified as, “The guy who freaks me out. My actual Dad” and the next sheet she identified the figures as being her, Y and Z. Despite the separate sheets, X wanted them “sticky taped together”. X identified her father and Ms S as being the angry people in her drawing. She linked her father’s anger to his drinking. The sad people were identified as her mother and both her siblings. X linked her mother’s sadness to her father’s alleged violence towards her mother at the time of the parental separation. She recalled that her father was arrested that night and said “the next day we left”. X also recalled that, prior to the parental separation, she had tried to stop “the fighting [between them] so that no-one would get hurt”. Her affect when talking about the conflict was matter-of-fact.
At paragraph 40, the Report records:
40.X thought that she had visited her father at (omitted) during term one school holidays this year. She said that, while with her father on this occasion, “He went crazy and mental” although she declined to elaborate on this behaviour. X said that she had run to her paternal step-grandmother’s home as “Dad won’t go near her”. From X’s perspective this has been the only time she has spent with her father since the parental separation. She said that she does not want to spend any time with her father but believes that Y and Z “will always want to spend time with him”.
When Y was interviewed, her only concern was that her father might not return her and her siblings to their mother. At paragraph 50 of the Report, the Family Consultant recorded that at the end of the observation of the children with their father on 22 May 2015, Y said that she had “felt really scared”.
Z’s perspective of his father was quite different. He thought his father was never angry, and enjoyed the things that he did with him.
At paragraph 56 and 57, Ms K records:
56.The observation of the children with their father did not proceed as expected from what the children had said. The process having been explained to the children, they were left in the room while Mr Allsop was brought in. X could not be seen (she had hidden herself under a pile of bean bags behind a puppet theatre). Y and Z were standing some distance from the table where they knew their father would sit with their back to him, pretending to play in a sand tray. The group remained like this for at least five to eight minutes before the writer intervened and suggested that, if none of the children was going to take part in the drawing activity which had been suggested to the group, she would have to think of something else.
57.The writer asked the children if any of them had anything for their father. Z, who had briefly joined X under the bean bags, immediately appeared and approached his father. He avoided eye contact with his father, but handed him the photographs telling his father that his mother had said the children should give them to him. Mr Allsop, who was observed to be struggling with containing his emotions, hugged Z who briefly reciprocated. Y moved to the dolls houses, remaining there for some time with her back to her father. Surprisingly, X emerged from under the bean bags and approached her father from behind, bending to put her arms around him. Mr Allsop turned and took her in his arms, while remaining seated. It was clearly a very emotional experience for both X and her father and they were heard quietly saying to each other, “I love you”. At this stage Y approached the writer and said that she wanted to leave. The other children immediately said the same and as had been previously agreed with the children, the observation ended. It had occurred over a period of 15 to 20 minutes.
Ms K’s report more than adequately captures the complexity of the children’s history, circumstances and the nature of their relationships with each other, and with their father. It is clearly a complex dynamic.
Parental Responsibility Issues
A number of the issues raised in this case may be broadly described as parental responsibility issues. It is common ground that the Minister has sole parental responsibility for the children, and the context of the present dispute is how, precisely, that parental responsibility should be exercised. The orders that the Father proposes at 1(b), 1(c) and 12 are, in effect, attempts by the Father to regulate how the Minister exercises the parental responsibility vested in him. The difference, of course, in this case, compared to many others before the Court, is that the Minister is an institution, namely the Department of Family and Community Services New South Wales, which has responsibility not just for these children, but many others.
Whilst this is not a submission that was specifically made on behalf of the Secretary, the Court believes that it is nonetheless important to note that, unless it is an important issue going to the welfare of the child, the Court should adopt a non-interventionist approach in seeking to manage how parental responsibility is exercised, particularly in circumstances when sole parental responsibility has been agreed. Thus, in the circumstances of this case, the Father’s proposed order 1(b) and (c), requiring the Secretary to notify the parents 28 days in advance of making any change as regards major long-term issues, is an onerous one. It might be impractical to place this obligation on the Secretary. It might be difficult to find, or communicate with the parents, especially the Father, as the evidence in this case was abundant about the difficulties in communicating with him.
Urgent issues might arise of a major long-term nature that require an immediate response. The Court prefers the concession made on behalf of the Secretary that in regards to both (b) and (c) of order 1, the Secretary would notify the parents within 28 days of the change. The same reasoning applies to order 12 – if the Secretary, in its wisdom and experience, prefers to itself provide to the parents respectively copies of school reports and photographs that is a legitimate action for the Secretary to decide, without intrusion from the Court.
Implicit in the Father’s proposals as regards these orders is a lack of trust in the Secretary’s judgment about his children, a distrust that was manifest in many other ways. He was clearly frustrated by what he perceived to be his communication difficulties with the Department but, the Court will find, his frustration was only exceeded by his capacity to minimise and externalise responsibility for his own significant contribution to the problems faced by the children, let alone in being able to communicate with him. In relation to orders 1(b), 1(c), and 12, therefore, the Court will make orders consistent with the Secretary’s proposal.
The Frequency of the Father’s Time with Z
As foreshadowed above, the Secretary and the Independent Children’s Lawyer proposed that Z spend time with his father six times each year, whereas the Father proposes that from next year it be 12 times annually.
There are a number of relevant background facts which inform the decision about this issue, and which are relatively uncontentious. The Father was violent both towards X, and the Mother. He assaulted X on 18 June 2010, was convicted of assault, and sentenced to two months imprisonment but was released on entering a recognisance to be of good behaviour for 18 months.
He had been observed earlier that day to be drinking alcohol and appeared to be under the influence. The Father admits that he was under the influence of alcohol and admits the assault. Much to the Father’s credit, he expresses deep contrition for his actions and appears to have at least a limited insight into the ramifications of his behaviour, not just on X, but all of the children. Time and time again, this Court witnesses the giant shadow cast over later events by acts of violence. The Father’s assault of X in June 2010 is a classic example of that.
The Father assaulted the Mother in August 2010. The Police observed him to be intoxicated. As a result of the subsequent criminal proceedings, he went into a 16 week residential rehabilitation program. Again, the Father showed at least limited insight into this event. He acknowledged that his consumption of alcohol would lead to arguments with the Mother, which escalated and often became physical. Interestingly, in his most recent evidence, the Father acknowledges that whilst he has not stopped drinking entirely, his intake is much less and that it might only be “maybe” six drinks over a weekend.
It is disappointing, from the Court’s perspective that in circumstances where the Father appeared to show at least limited insight into the longer term repercussions of his behaviour, that he would not at least attempt to abstain.
The Father was not an entirely convincing witness. He was frequently unresponsive and often appeared not to understand even simple questions. The Court was left with the distinct impression that he was minimising his current use of alcohol and, also, cannabis. He gave conflicting evidence about whether he had abstained from cannabis, and the level of his past use.
The minimisation of the Father’s consumption of alcohol, and the Court’s concerns about his insight in relation to this issue, is manifested by an incident recorded in the Australian Federal Police records on 13 March 2016. The Father appears to have been involved in a physical altercation with his cousin, and he admitted that on that day he had commenced drinking at about 10.30am.
The Father’s attempts to rehabilitate himself in relation to his drug and alcohol issues appeared fragmented, incomplete, and unconvincing.
Thus, it can be seen even before discussing the evidence of what time the Father has in fact spent with Z, that there are more generalised concerns about his ability to regulate his behaviour. Even Counsel for the Father in her closing submissions, quite properly the Court notes, acknowledged that the child protection concerns in relation to both parents could not be ignored. She acknowledged the Father’s family violence, possibly exacerbated by his use of drugs and alcohol. She described the Father’s assault of X as appalling, but pointed to his remorse and his acknowledgement that it was an act that he would have to live with for the rest of his life. Nonetheless, she emphasised that Z clearly does have a meaningful relationship with his father, Z wants to spend time with his father and the relationship between them cannot possibly be sustained on the basis of six visits each year.
By contrast, both the Independent Children’s Lawyer and the Secretary urged a more cautious approach. The focus was on the Father’s ability to regulate his emotions and behaviour during the times that he spends with Z. Both Counsel submitted that the evidence indicates that the only two occasions on which the Father has spent time with Z both demonstrate that he continues to struggle to regulate his emotions, and he continues to act inappropriately. In circumstances where Z has been subjected to so much change and instability in his life, they submitted that the Court’s focus should be on enhancing and supporting a stable and predictable life for Z. They both submitted that increasing the frequency beyond six visits each year was potentially destabilising for him.
On 22 February 2016 an interim consent order was made by the Court that provided for the Father to spend time with Z once per month pending final orders.
Pursuant to that order, Ms M on behalf of the Secretary deposes that on 23 March 2016 it was arranged for the Father to spend time with Z at the (omitted) CSC. She transported Z there at the commencement of his time with the Father. Z and Ms M waited for 30 minutes for the Father to arrive, but he did not. Ms M’s evidence is that Z was very excited about the visit with his father. He was very quiet when his father did not show up.
On 28 April 2016, over a month later, the Father rang Ms M and explained that he was unaware that the previous visit had been scheduled. He explained that he had changed lawyers, and that his previous lawyer had not communicated the information to him. There was a discussion about the attempts that the case worker had made to contact the Father directly at the (employer omitted), the number given as his contact number. Apparently the Father no longer worked there. Nonetheless, the Father maintained that it was the only number to contact him on.
A further visit was arranged for 11 May 2016. This visit took place, but in concerning circumstances. The case worker’s record of this visit was in evidence. During the contact visit, the Father proposed to his son that they leave the premises to obtain a present. The case worker reminded the Father that the visit was only scheduled for one hour, and it was to take place in the contact room. The Father maintained that he was not aware of this. The case worker reminded him that it was in the letter that was sent to him. The case worker, reluctantly, agreed to allow the Father and Z to go out to get Z a present, because Z was obviously excited about this. They started walking towards the (omitted) shops. Ms M alleges that the Father said words to the effect: “When you come home son, I have a bedroom for you all set up. All of your toys there.” She asked the Father not to speak about this as it was inappropriate. The Father then continued to say that he did not have his children because of “white people law” and that it was not his fault. He then said to his son: “Isn't that right my son?” The case worker again asked the Father to stop speaking about this. Apparently his son then said: “I know whose fault it is and her name starts with M.” The Father then laughed and said: “Yeah, you know it’s your mum don't you son.”
The case worker records that at that point she wanted to terminate the contact visit, but she considered it unsafe as the Father continued to become heightened where he would raise his voice and become emotional. He would then apologise to the case worker, and then thank her. The Father and son’s conversation about the Mother continued, notwithstanding the case worker’s attempt to redirect the conversation.
They entered the (omitted) store in (omitted). The Father asked Z if he needed new shoes. Z said that he had the shoes he was wearing. The case worker reports that the Father then again became heightened and spoke about (omitted) and (omitted) (the foster parents) getting money for the kids and spending it on their own kids then kicking them out and buying new cars. The case worker again reminded the Father that this was inappropriate and it was not the time or the place to speak about these concerns. She reminded the Father to concentrate on his time with Z, and the Father again apologised and thanked her.
Later, at the counter as they were paying for the clothes that the Father had purchased for Z the Father again became heightened about the manner in which the goods were to be purchased.
It is important to record that the only significant difference in the account of this incident is the Father’s evidence that he said: “if you come home son…” not “when you come home son…”.
Even if the Father’s version of this event were preferred (which it is not) it still shows significant deficits in insight. However, the Court does not accept the Father’s evidence over that of Ms M. Ms M’s evidence was, of course, challenged in cross-examination, but the Court still prefers her evidence over that of Mr Allsop. In particular, the Court expresses its concern that a seemingly experienced child protection case worker wanted to terminate the Father’s time with Z but felt it was unsafe to do so because of the Father’s state of arousal.
A further concern to the Court was evidence about the Father’s visit with Z on 8 August 2016, ie, the date before the last day of the hearing. This is significant because the Father had already been cross-examined, and seen his Counsel as well as the Independent Children’s Lawyer’s Counsel, cross-examine Ms M about the first contact visit discussed above. He agreed that he spent time with his son Z at the (omitted) CSC, supervised by case worker Ms K. He agreed that he was upset and agitated when he asked the case worker to leave the offices in order to have lunch with Z. He agreed that he had raised his voice, but said it was not aggression, though it was obvious that he was cranky with the decision not to leave the room. He agreed that he was a little bit annoyed that the girls were not there, but accepted that he had been told that the order only related to Z. He had it in his mind, somehow, that he was visiting all three children, and thus he was upset and agitated, he acknowledged. He accepted that the order did not provide for him to spend time with all three children, and he further accepted that no one told him that that was the case.
The Father agreed that he was told by the case worker not to whisper to Z to the effect that “you’re coming home”. The Father acknowledged that the case worker spoke to him about that, but again, insisted that he said “if you come home”. The Father was reminded that this was precisely the same as what was alleged to have happened during the first contact visit on 11 May 2016. He agreed. It was suggested to him that, in fact, he knew it was not a good idea to raise the subject. He said words to the effect: “My emotions took over. I’m an emotional sort of guy.” It was put to him that indeed he was so emotional that he had to leave the office in order to get a drink. He agreed. It gave him a chance to cool down, he agreed, but also to get Z a drink. Even the Father agreed, however, that Z seemed to take this all in his stride.
The Father’s own evidence confirms the concerns of the Secretary, the Independent Children’s Lawyer, and the Court itself. During the second visit on 8 August 2016, the Father’s emotions took over. Moreover, the Court finds, there was almost an exact repeat of the earlier contact visit. The Father was unable to regulate his emotions on both occasions. He was upset and agitated on both occasions. On one occasion, the first visit, the Court finds that the situation was, in effect, out of the control of the case worker.
Of course, it should be noted and recognised that there is no evidence before the Court of Z becoming upset, or being adversely affected by his father’s behaviour. Nonetheless, it is the risk of this occurring in circumstances where the Court considers there is real risk of the Father’s continued inability to regulate his emotions that is of concern to the Court. The Father’s attitude seems to continue to be that at least Z, and probably both X and Y, should one day come back into his care at (omitted). If his attitude continues to be expressed, either directly or indirectly, with any of the children it is a real risk, this Court believes, to the stability that they so desperately need, indeed deserve, after the chaotic and dysfunctional life that they had whilst in the care of the Mother and Father.
So what is the difference between six visits a year, and twelve visits a year? The Court accepts that whether it is six, or twelve, having regard to Z’s age, and the existing nature of his relationship with his father, it will be enough to maintain the relationship that exists between them. But in terms of risk management, specifically the risk of the Father continuing to be unable to manage his emotions whilst in the presence of Z or his sisters, the Court believes the risk is much greater in proportion to the frequency of the visits. In short, it is easier to manage the risk when there are only six supervised visits a year. The Court believes this frequency to be in the best interests of Z. The order that the Secretary proposes for six visits each year is appropriate.
The Father’s time with X and Y
The Father proposes that he also spend time with X and Y, initially for one hour and then two hours, albeit on a limited number of occasions each year. The Secretary and the Independent Children’s Lawyer oppose any order for X and Y to spend time with the Father.
The tenuous nature of the Father’s relationship with his daughters is indeed reflected in the somewhat tentative proposal the Father makes to spend time with them. Even he appreciates that he would have a lot of work to do in terms of resuming his relationship with them. This was not the strongest part of the Father’s case. He did not try to contend against the proposition that X had expressed a wish not to spend time with him. There was some attempt by his Counsel to submit that the articulation of X’s views in the Family Report were perhaps more equivocal than it seems, but the Court does not accept this. Counsel for the Father submitted that Y’s views in the Family Report did show some ambivalence and that the Family Report should receive greater weight than the evidence that Ms M gives in relation to the children’s views.
Ms M’s evidence about the children’s views was unchallenged. She refers to the records indicating the children had expressed a view that they were scared of the Father and did not want to see him. The Father’s perspective was that the children’s views were being influenced by their mother, but the record of the children’s contact with their mother and the supervised nature of it makes that highly improbable.
In an interview with the children on 25 January 2016, Ms M records that all three children disclosed further domestic violence between the parents, and Z further disclosed an incident where his father attempted to choke him by putting his hands around his neck and pulling him off the ground. The Secretary accepted that the disclosures were historical.
In the affidavit of Ms A at paragraph 54 she refers to the discussion she had with all three children on 13 October 2015 in which X said to her “I am scared of him” and Y said “I am worried about being taken away”. However, Z said “I do not want to see him, but I do have a card for you to give to him”.
By the time these reasons for judgment are published X will be almost 12, and Y within a few months of 10. The Court accepts that the totality of the evidence suggests, quite strongly in X’s case and strongly in Y’s case, that they are afraid of their father and do not want to spend time with him. Given their ages and the circumstances of this case, it is very difficult to ignore these expressions of views by the children.
The risk of destabilisation is as great for the girls as it is for Z. Even the very limited number of visits proposed by the Father has the potential to undermine the stability that all three children appear to be enjoying at this particular time. The fact is that Y and X do not appear to have a meaningful relationship with their father in any event. Even if they did, there would arguably be the same risk of harm to them as there is for Z, such risk being associated with the Father being unable to manage his emotions. It is not, therefore, in the best interests for X and Y to spend time with their father, and thus there will be no order for X and Y to spend time with him.
Suspension of time in the event that a parent fails to attend visits without explanation
The Father proposes the Secretary be able to suspend the children’s contact pursuant to these orders if a parent fails to attend two consecutive visits without explanation, provided that no period of suspension of time shall be greater than three months. The Secretary proposes that a failure to attend two consecutive visits without explanation warrants suspension and that the parent must attend a meeting with departmental case-workers before that time will recommence.
The problem with the Father’s proposal is twofold. Firstly, any objective view of the evidence does raise concern about his capacity to sustain and be consistent with any order for the children to spend time with the Father. The problems of communicating with him were recognised throughout the hearing, but the Court believes that the Father contributes to this in large measure. It is always somebody else’s fault (generally his lawyer) when he is not notified about contact visits. He needs to take more responsibility for this. There is a real risk that, for whatever reason, the Father will indeed fail to attend two consecutive contact visits with Z without explanation. The second issue, of course, is the impact of this on Z. What is objectively known about Z’s attitude about spending time with his father is that he gets excited about it in anticipation but disappointed when it does not happen. This is hardly surprising. The Father struggles at times to be able to understand this situation from Z’s perspective rather than his own. Moreover, failure to attend consistently is not only destabilising for Z and possibly undermining of his placement but also potentially re-traumatises him.
The order the Father proposes is, in effect, licence for him to drop in and drop out of Z’s life whenever the Father wants to. It is clearly not child-focused.
The proposal advanced by the Secretary is child-focused because it suggests that any possible re-instatement of time depends on the circumstances of the case and consultation between the parent or parents and case-workers. The order proposed by the Secretary, therefore, is in the children’s best interests.
Consequences of children not living together
In order 7 the Father proposes an order that in the event that the children do not live together in the same residence (i.e. the Secretary is not able to place them in the one home) then all reasonable steps must be taken to ensure that the children spend time with one another not less frequently than once every four weeks. The Secretary and the Independent Children’s Lawyer both propose that the children spend time with one another “not less than twelve times per year”. Firstly, it should be recognised that the children are currently placed together in what seems, at least for the time being, to be a long-term placement with very suitable carers. Of course, the Secretary cannot guarantee that this will continue. In the event that the children are separated, the Secretary proposes that it will ensure that the children see each other not less than twelve times each year. In an ideal world, ensuring that the children see each other once every four weeks would be a good outcome for the children. To impose that obligation on the Secretary is, in this Court’s opinion, unreasonable. If the children do unfortunately have to be split between different carers, the Secretary would face the logistical challenge of having to co-ordinate up to three different households. Doing that twelve times a year is onerous enough without overlaying the obligation to make sure that it is once every four weeks. The order will be as the Secretary proposes.
Telephone communication
The Father proposes that the children are able telephone the parents each month. The Secretary and the Independent Children’s Lawyer oppose telephone communication.
Even if one puts aside the very pragmatic reality that the Father neither has a dedicated landline or mobile number and that past attempts to telephone him have been fraught with difficulty, the same issues about destabilisation and the Father’s inability to regulate his emotions continue to surface. The order proposed by the Father is neither in the children’s best interests nor reasonably practicable.
Communication by letters, cards, photographs and gifts
In order 9 the Father proposes that reasonable steps are to be taken to ensure that the children could communicate with their parents with the parents sending letters, cards, photographs and gifts to the children, but not more than once per month. The Secretary and Independent Children’s Lawyer’s only objection to this is that the secretary be required to forward the items in question if it is of the opinion that such material is appropriate. This is neither an unusual nor unreasonable limitation to place, particularly in circumstances where the evidence manifests the Father’s propensity to say and do things which are inappropriate in the presence of the children. The order will be as proposed by the Secretary and Independent Children’s Lawyer.
Parental attendance at sports or extracurricular activities
The Father proposes that the injunction that prevents him from communicating with or spending time with the children other than in accordance with these orders only extend to a venue at which the children are participating in sport or extracurricular activity up until 1 January 2017. In other words, the Father proposes that as from next year he be able to attend the children’s sport or extracurricular activities. Both the Independent Children’s Lawyer and the Secretary oppose the parents’ attending any such activity of the children.
For the same reasons that have been given above, the orders proposed by the Secretary and Independent Children’s Lawyer will be made. At the risk of repeating past events, the Father demonstrated in the evidence his capacity to not only say inappropriate things to Z, but behave inappropriately in front of him, as well as become agitated and upset. If all of that has occurred in the context of supervised contact, then surely he must appreciate that the risk is exacerbated in the unsupervised context that he proposes.
Orders for counselling for the children
In orders 15 and 16, the Father proposes that the Secretary arrange counselling for the children as a matter of urgency, at an Aboriginal service or one with an Aboriginal counsellor. The order is opposed by the Secretary, and the Independent Children’s Lawyer, on the basis that arrangements have already been made for counselling.
The Father’s proposal clearly signals his lack of trust in the Department, but there is no objective basis to believe that the Secretary will not always act in the best interests of these children, and has, indeed, made arrangements for their counselling by an appropriate provider. The need for the children to have therapy is clearly reflected in Ms K's Family Report. The Minister has sole parental responsibility. The Court is satisfied he will always act in the best interests of the children.
The Father seeks a notation that the Minister will make all endeavours to place the children with family members if such placement is approved by the Minister or his/her delegate. Both the Secretary and the Independent Children’s Lawyer oppose this on the basis that it is unnecessary.
The evidence provided by Ms M, and Ms A, attested to the efforts that were made to place the children with family, but ultimately to place the children with carers, one of whom identifies as being Aboriginal. Despite the Father’s lack of trust in the Secretary, the Court has no reason to doubt that the Secretary will always act in a way that places the children’s needs first, and if that means a family placement which is suitable, that will happen. The evidence suggests, however, that the only family placement that was considered feasible, was ruled out. There is no need for the notation proposed.
The Father further proposes a notation to the effect that should there be a significant change in either the Mother or the Father’s circumstances, that such party may file an application in relation to these orders. Both the Independent Children’s Lawyer and the Secretary, consider this notation unnecessary. It is, indeed, unnecessary. The law is quite clear – if there is a significant change in circumstances, and if it is in the best interests of the children, the Court will reconsider the appropriateness of these orders. The Secretary proposed a number of notations at the end of the document, which the Court considers appropriate.
The Court is satisfied that the remaining orders are in the best interest of the children. All the evidence before the Court suggests that for the first time in a considerable part of their lives, X, Y and Z are enjoying a measure of stability that they have not previously enjoyed. Their placement appears to be proceeding satisfactorily, and appears to be long-term. All of the resources of the Minister are available to support them.
Their right to enjoy their Aboriginal culture is receiving as much weight and regard as is possible under the circumstances. Whilst the Minister has sole parental responsibility, the provisions in place for the parents to be kept advised of what is happening in their children’s lives are adequate.
Z will spend time with his father six times each year. Out of abundant caution, and to deal with the current calendar year, the order will record that Z is to spend three further times with his father this year and then six each year thereafter. Moreover, and significantly for the Father and the children, the Father’s time, albeit supervised if necessary, will take place in the (omitted) Community Centre or, if the weather permits, at an adjoining park or beach.
No order will be made for X and Y to spend time with their father. One notes, however, that as time goes by they will be able to increasingly assert their own autonomy and may express a view to spend time with their father.
The order provides for the children to spend time with their mother. The Minister can decide whether supervision is necessary from time to time, and the conditions under which contact may be terminated. No telephone communication will be permitted, because of the risks associated with this. There will be other channels of communication between the parents and the children, via letters, cards, photographs and gifts, subject to an appropriate vetting by the secretary.
The orders provide for adequate exchange of information relating to the children. The injunctions made are proportionate, and warranted by the evidence. The Court is confident that the secretary will ensure that the children are provided with the appropriate supportive counselling that they need. Overall, the Court is satisfied that these orders are in the best interests of the children.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 31 October 2016
Schedule 1
Order proposed by the Father with Annotations
That in exercising parental responsibility and in determining living arrangements for the children of the relationship, namely:
a)X, born (omitted) 2004;
b)Y, born on (omitted) 2007; and
c)Z, born (omitted) 2008.
the Minister for Family and Community Services of NSW ("the Secretary") shall:
a)have regard to the rights of the children to enjoy their Aboriginal culture pursuant to s60CC(3)(H) and s 60CC(6) of the Family Law Act 1975, or as amended from time to time;
b)notify each parent of any proposed change that the Secretary intends to make in exercising parental responsibility for major long term issues, such notification to be made in writing at least 28 days prior to the proposed change; (such notification to be made within 28 days of the change)
c)notify each parent of any proposed change that the Secretary proposes to make for the living arrangements of the children or any of them, such notification to be in writing, at least 28 days prior to the proposed change. (The Secretary submits this has the same effect as (b) above, in the event the Court does not accept such argument the Secretary proposes (such notification to be made within 28 days of the change)
Subject to Order 6 hereof, the Secretary shall ensure that the child, Z, spend time with the Father as follows:
a)Until the end of the 2016 school year, for not less than 2 hours on the following occasions:
i)Wednesday 15 June from 3.30pm to 5.30pm
ii)Thursday 9 July from 11am to 2pm (School Holiday and NAIDOC Week)
iii)Wednesday 10 August from 3.30pm to 5.30pm
iv)Sunday 4 September (Father's Day) from 11am to pm
v)Thursday 13 October from 11am to pm (School Holiday)
vi)Wednesday 9 November from 3.30 pm to 5.30pm
vii)Wednesday 7 December from 3.30pm to 5.30pm
viii)Friday 23 December from 11am to 2pm (School Holiday & Christmas)
b)From January 2017 and thereafter:
i)Second Thursday in January from 11am to 2pm (school Holiday)
ii)First Wednesday in each of February, March, June, August, November and December from 3.30pm to 6.30pm
iii)First Thursday in each of the Autumn and Spring school holidays from 11am to 2pm
iv)First Thursday in NAIDOC week from 11am to 3pm
v)Father’s Day from 11am to 3pm
vi)Christmas Eve, if it falls on a week day, from 11am to 3pm or on the week day immediately preceding Christmas Eve if Christmas Eve falls on a weekend.
(The Secretary proposes an order “That the child Z spend time with his Father on 6 occasions per year, such time to be the subject of conditions as the Secretary considers appropriate”)
c)Such further or other times as agreed between the Secretary and the Father.
To facilitate time in accordance with 2 above, in default of agreement about a venue at which time is to take place, time shall take place in (omitted) in the Community Centre and that if weather permits, then at a park or at the beach at (omitted).
Subject to Order 6 hereof and commencing in Term 4 of the 2016 school year, the Secretary shall ensure that the children, X and Y, spend time with the Father as follows:
a)During 2016:
i)For at least 1 hour on a day in November 2016, at a time and venue to be agreed between the Secretary and the Father, but in default of agreement on 9 November 2016 from 4pm to 6pm at (omitted);
ii)For at least 1 hour during the first week of the Summer school holidays, on a day, at a time and venue to be agreed between the Secretary and the Father, but in default of agreement between them from 11am to 12noon on 28 December 2016;
b)Commencing 2017:
i)For at least 2 hours during each Easter long weekend, on a day, at times and at a venue agreed between the Secretary and the Father, but in default of agreement then at (omitted) on the Easter Monday from 11am to 1pm; and
ii)For at least 3 hours on at least 1 occasion during NAIDOC week on a day, at a time and venue agreed between the Secretary and the Father, but in default of agreement, at (omitted) on the Wednesday of the NAIDOC week from 11am to 2pm; and
iii)For at least 3 hours on 24 December at a time and venue as agreed between the Secretary and the Father, but in default of agreement, from 11am to 2pm at (omitted).
iv)Such further or other times as agreed between the Secretary and the Minister.
Subject to Order 6 hereof, the Minister and the Mother shall take all reasonable steps to ensure that the children spend time with the Mother as agreed between the Minister and the Mother, provided that such agreed time does not interfere with the time that the children are to spend with their Father as provided for in Orders 2 and 3 above.
(The Secretary opposes an Order for X and Y to spend time with the Father).
That to facilitate compliance with Orders 2,3,4 and 5 above, the Minister:
a)Shall determine whether the imposition supervision is necessary and if so determined, the Minister shall be responsible for arranging such supervision;
b)May terminate the occasion of time spent by the child/ren with the Father and/or Mother] in the event of the subject parent:
i)Being accompanied to a visit by another person not authorized in advance by the Minister;
ii)Attending a visit, in the opinion of the Minister or his or her delegate, intoxicated by alcohol or some other illicit substance;
iii)Physically disciplining the children or any of them;
iv)Using abusive language in the presence or hearing of the children or any of them, in circumstances where the abusive language is specifically used to refer to the children or any of them, the other parent, a career of the Minister’s delegate;
v)Conducting themselves during a visit in a manner in which, in the opinion of the Minister or his or her delegate, poses an immediate risk to the safety of the children or any of them;
c)May suspend the child/ren’s further time pursuant to these Orders with the parent in the event that a parent fails to attend two consecutive visits without explanation, provided that no period of suspension of time shall be greater than a three month period. (The Secretary proposes at the end of the 2nd line the words “and that the parent must attend a meeting with the Departmental caseworkers before that time will recommence.)
In the event that the children do not live together in the same residence, the Minister shall take all reasonable steps to ensure that the children spend time with one another not less frequently than once every four weeks, (the Secretary proposes the words “not less than 12 times per year”) with the first such occasion to occur within 14 days of the date of these Orders, for not less than two hours on each occasion, otherwise on the condition determined by the Minister.
The Minister shall take all reasonable steps to ensure that the children are able to communicate with each of their parents by telephone on a monthly basis in addition to any such other times as requested by the children or any of them, such communication to be facilitated by the Minister placing the telephone call to the respective parent on the telephone number nominated by that parent. In the event that the respective parent is unavailable to answer the call at that time, then the Minister shall make 2 further attempts during the following week to facilitate such communication. (The Secretary opposes telephone communication).
The Minister, the Father and the Mother shall take all reasonable steps to ensure that the children are able to communicate with each of their parents in the following manner:
a)By the Father and the Mother, respectively, being able to send letters, cards, photographs and/or gifts to the children or any of them, but not more frequently than monthly and (The Secretary proposes an Order-“By the Father and Mother, respectively, forwarding to the Secretary, letters, cards, photographs and/or gifts to the children or any of them but not more frequently than monthly, and the Secretary if he is of the opinion that such material is appropriate, will forward it to the children.
b)By the Minister sending to the respective parent and letters, cards, photographs or other written communication that the children, or any of them, wish to be conveyed to the parent.
For the purposes of implementation of Order 9 hereof, the Minister shall, within 28 days hereof, notify the Father and the Mother, respectively, of any address to which that parent may send the written communication and shall inform the respective parent of any changes to these details within 14 days of such change.
To facilitate compliance with these Orders, each parent shall, within 28 days hereof, keep the Minister informed of his/her contact details, including current address and telephone number and shall inform the Minister of any changes to these details within 21 days of such change.
The Minister shall authorize and request the principal of any school attended by the children or any of them to provide the Father and Mother respectively, at the parent’s individual expense, copies of all school reports and school photograph order forms relating to the children. (The Secretary proposes “The Secretary will provide to the Father and Mother respectively, copies of all school reports and yearly school photographs relating to the children.)
Pursuant to s68B of the Family Law Act 1975, the Father and Mother are each hereby restrained from:
a)Communicating with or spending time with the children or any of them other than in accordance with these orders or at any venue at which the children or any of them is participating in sport or extra-curricular activity, (the latter commencing from 1/1/2017) The Secretary opposes the words in brackets;
b)From entering upon or approaching within 200 metres of:
i)The residence of the children or any of them;
ii)Any school attended by the children or any of them,
Without the prior written authorization of the Minister.
Pursuant to s68B of the Family Law Act 1975, the Father and the Mother are each hereby restrained from:
a)Criticizing, blaming, insulting, speaking badly about the other parent, a career or a delegate of the Secretary to or in the presence or hearing of the child/ren; and
b)Discussing these proceedings or the reasons for these proceedings with the children or in their presence or hearing.
The Secretary shall do all acts and things necessary to arrange counselling for the children as a matter of urgency but no later than 14 days from the date hereof, and one of the aims of such counselling shall be to include strategies to assist and support the children, in particular, X and Y, exercise their right to spend time with their Father in accordance with these orders and to enjoy their Aboriginal culture. (This Order is opposed by the Secretary, arrangements have already been made for counselling.)
For the purposes of implementation of Order 15 hereof, the Secretary shall use his/her best endeavours to arrange such counselling at an Aboriginal service or with an Aboriginal counsellor. (This order is opposed by the Secretary, counselling has already been arranged.)
Leave is granted to the Secretary to furnish copies of the Family Report dated 23 June 2015 to any professional engaged by the Secretary to assist in the psychological care, welfare and development of the children, including but not limited to counselling the children or any of them.
Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached act Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
NOTATIONS
A.The Minister will make all endeavours to place the children with family members if such placement is approved by the Minister or his/her delegate. (Such a Notation is unnecessary).
B.The parties agree that should there be a significant change in either the Mother or the Father’s circumstances, that party may file an application under the Family Law Act 1975 in relation to these orders. (Such a Notation is unnecessary).
The Secretary proposes Notations as follows:
D.It is the Secretary’s current proposal that time between the Father and Z be supervised.
E.The Secretary will arrange for X (X) and Y (Y) to undertake counselling with a view to initiating face to face supervised contact with the Father.
F.In circumstances where the counselling proceeds well, and should the children X and Y wish to spend time with their father, the Secretary will consider face to face supervised time scheduled to occur simultaneously with Z’s time.
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Jurisdiction
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Remedies
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Natural Justice
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