Milne and Moore and Ors

[2017] FamCA 82

FAMILY COURT OF AUSTRALIA

MILNE & MOORE AND ORS [2017] FamCA 82

FAMILY LAW – INTERLOCUTORY – With whom the children should live – Where the subject children have different fathers – Where the fathers have an amicable and cooperative parenting relationship – Where the children have been in the care of the Second respondent father for two years and he has a cooperative relationship with the Department of Family and Community Services – Where the Department advised there were no concerns about the children living with the Second Respondent – Where the mother’s new partner presents a possible risk of physical and sexual harm to the children and historical allegations of sexual abuse by the maternal grandfather require a cautious approach by the Court – Decided the Court is to prioritise the children’s safety over maintaining relationships – Ordered the children live with the Second Respondent – Restraint on the children coming into contact with the mother’s partner and the maternal grandfather

Family Law Act 1975 (Cth), s 60CC

APPLICANT: Ms Milne

FIRST RESPONDENT: Mr Moore

SECOND RESPONDENT:	Mr Rutherford
THIRD and FOURTH RESPONDENTS:	Ms A Milne and Mr B Milne
INDEPENDENT CHILDREN’S LAWYER:	NLS Law

FILE NUMBER: (P)NCC 2056 of 2016

DATE DELIVERED: 8 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 7 February 2017

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE FIRST RESPONDENT: Winder Lawyers

THE SECOND RESPONDENT: In person

THE THIRD AND FOURTH RESPONDENTS: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: NLS Law

Orders

1. All parenting order in relation to C born … 2005, D born … 2007, E born … 2012 and F born … 2013 (“the children”) made in this Court and the Federal Circuit Court, prior to 9 December 2016 are discharged.

2. Further to the interim orders made on 9 December 2016 I make the following orders.

Pending Further Order it is Ordered That

1. The children shall live with the Second Respondent Mr Rutherford.

2. The children shall spend time with the mother either:

   (a)Supervised on each alternate Sunday from 10.00 am to 4.00 pm by a person agreed to by the mother and the Second Respondent with any such person to file an Undertaking with the Court confirming that the supervisor:

   (i)Has a copy of these Orders;

   (ii)Is aware of the obligation to be present with the children at all times during visits;

   (iii)Will terminate the visit if concerned for the welfare of the children for any reason.

   (b)Such periods of time to commence on the first Sunday of any such agreement about a supervisor being reached.

   Or in the event that there is no agreement then:

   (c)In a supervised contact centre nominated by the Second Respondent (convenient to the mother and the Second Respondent) for not less than two hours each alternate weekend and to that end, each party shall immediately make contact with the nominated centre and comply with all requirements.

   NOTING: that the mother may bring her baby daughter G, and no other person, to those visits

3. Each party is restrained from allowing the children, or any of them, to be brought in contact with:

   (a)       The maternal grandfather Mr B Milne; and

   (b)       Mr H, the partner of the mother

4. The Independent Children’s Lawyer shall provide a copy of these interim Orders and Reasons for Judgment to the relevant officer within the Department of Family and Community Services.

The Court Notes That

(A)The Independent Children’s Lawyer has agreed to the request by the Court to make enquiries with the Department of Family and Community Services as to whether the enquiry into notification of sexual misconduct raised by two of the subject children about Mr H are ongoing or concluded.

(B)The outcome of those enquiries are to be provided to the Court when the matter is before the Registrar on 15 February 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milne & Moore and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2056/2016

Ms Milne

Applicant

And

Mr Moore

First Respondent

And

Mr Rutherford
Second Respondent

And

Ms A Milne and Mr B Milne
Third and Fourth Respondents

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These were proceedings for interim parenting orders in respect to four children, girls aged; almost 12, almost 10, four and three.

Short History of Relevant Events

1. On 9 August 2016 proceedings were commenced in the Federal Circuit Court and transferred three weeks later to this Court.  The matter came before me on 9 December 2016.

2. On that day, consent orders were made for all the children to spend time with the maternal grandmother for four hours on alternate Saturdays and on Christmas Eve. Without admissions there was a restraint on the children spending time with the maternal grandfather.

3. The maternal grandparents had, in 2006, been involved in the care of C and orders had been made to that effect at that time.

4. The matter was adjourned to 7 February 2017 and the Court noted the following matters:

   a)That the Independent Children’s Lawyer (“ICL”) had made contact with the Department of Family and Community Services who had indicated concerns in relation to the mother’s partner Mr H and that that matter needed to be considered;

   b)That there were discussions on the day in an attempt to arrange some time between the mother and the children but that had not been productive on the day; and

   c)That there are records in relation to the maternal step-grandfather and past events involving the mother which will be put before the Court. 

5. In the intervening period between December and February there was some dispute arising from time for the children with the maternal grandmother, particularly on 17 December 2016 when it appears that there were allegations made that Mr H may have been in the vicinity. 

6. The parties to the proceedings are as follows:  The Applicant mother, Ms Milne aged 31 who is the mother of all four subject children.  She lived with the Second Respondent Mr Rutherford, the father of the three younger children, for approximately 10 years with some periods of separation until final separation early in 2016.  Since May 2016, at the latest, the children have lived with Mr Rutherford. 

7. The mother is apparently living on the north coast of New South Wales, her address is undisclosed.  There is no current information about the mother’s circumstances, as to residence, household members and financial support.    Critically, there is no relevant information about Mr H.  He is the father of the mother’s youngest child G aged five months.  Oral submissions were made by the Applicant mother that Mr H had done nothing wrong in respect of any of the children.  There was no reference to whether or not he continued to be the mother’s partner.

8. The mother tendered into evidence, and it became exhibit 1, a letter from Mr H dated 3 February 2017.  In that letter Mr H refers to the mother as his partner, he referred to a family celebration on 17 December 2016 which was his sister’s birthday which he attended with the mother.  This letter represents some evidence that there is an ongoing relationship between the mother and Mr H.

9. The Application of the mother filed on 9 August 2016 is that on an interim basis the children should live with her, that, in respect of C, she should share parental responsibility with Mr Moore and in respect of the other three children she should have sole parental responsibility.  On an interim basis she proposed supervised time for Mr Rutherford with those three children.

10. The mother filed a Notice of Risk with her Application on 9 August 2016.  The Applicant mother states;

    The Second Respondent stepfather has averred the child in this application have been molested. However, no specifics of said molestation have been disclosed. 

    The Applicant mother instructs she contacted FACS (DOCS) and reported same and nothing has eventuated.

    The mother has a point, there is nothing from the Department other than ongoing information of concerns held.

11. There is, however, a complaint raised by Mr Moore on behalf of the two younger girls.  In his Affidavit[1] he says that C told him;

    When I was with mum [Mr H] would shove us round, he pushed me into walls doors and table and mum and [Mr H] would go out and leave us at the house with other people.

    C went on to say words to the effect,

    Every time he pushed me I got bruised and it hurt 

    Mr Moore goes on to say,

    Later, while travelling back to my home [C] said to me words to the effect, “I was in my room with a towel around me after I had a shower and [Mr H] came in, he tried to touch me and [D] up.”

    [1] Affidavit of First Respondent dated 8/12/2016, pars 45-48

12. The First Respondent, Mr Moore, 34, is the father of the oldest subject child, C.  He has two children aged eight and six from a later relationship.  Those children were removed into care from himself and their mother. 

13. Mr Moore expressed satisfaction with Mr Rutherford’s attitude to time for him and with his parents for C and the other children.  He described an amicable, cooperative parenting relationship between the two fathers. 

14. The Second Respondent, Mr Rutherford, aged 41, is the father of the three youngest children.  He has three children, young adult sons, from an earlier relationship, who were members of the household with the mother for a substantial period of time.  They are said to have assisted at times with the care of the younger children.  The father has a new partner, Ms I.  There is no particular evidence before the Court about Ms I or her children.  That would be a matter for the final hearing.

15. The Second Respondent father proposes, on an interim and final basis, that the children live with him and spend time with the mother on alternate weekends, both days from 10.00 am till 4.00 pm, until she has suitable accommodation and then for the whole of the weekend period.  Mr Rutherford proposes that the maternal grandmother spend time with the children by arrangement with the mother during those weekends. 

16. The children have been in the full-time care of the Second Respondent father, Mr Rutherford, for almost two years.  It is apparent that he is protective of them by his cooperative relationship with the Department of Family and Community Services (“the Department”) and willingness to report the allegations of the older two children to police.

17. Mr Rutherford does not enjoy a good relationship with the maternal grandparents, particularly since they retained the oldest child, C, in their care at the end of 2015 until early 2016.

18. The ICL reported that the Department had advised they had no concerns about the children living with Mr Rutherford. 

19. Mr Rutherford filed a Notice of Risk in Court on 7 February 2017 in which he set out an allegation that,

    [Mr H] the partner of [the Applicant mother] grabbed the girls by the throat and chucked them on the lounge [Mr H] makes the two older girls undress in front of him;  [Ms Milne], the mother, leaving the children in hot car while she is visiting family and friends and doing shopping.

20. The Third and Fourth Respondents are the maternal grandmother, Ms A Milne, aged 48, and her husband, Mr B Milne, aged 61.  Mr B Milne is the step‑grandfather of the children.  The maternal grandparents have been married for 24 years and had lived together since the mother was an infant.  The maternal grandparents have three adult children of their relationship.  Mr B Milne has three adult children in their mid-thirties from a prior marriage.  The maternal grandparents assisted the mother and Mr Moore with the care of C after she was born, which continued when the relationship between the two of them broke down.

21. The Applicant mother apparently left C with her parents for a period of weeks in early 2006.  Police were called when the mother wished to claim the child back.  Litigation followed.

22. The Family Report from that time has been released to the parties in these proceedings. 

23. The relationship between the mother and the maternal grandparents is presently volatile. A complicating factor is that in the late 1990’s the mother made an allegation that Mr B Milne behaved inappropriate towards her. The mother was then aged about 13 or 14 years. She was removed by the Department from the home and went to live with her natural father, Mr J, in Queensland and later in the Northern Territory. The maternal grandmother raised this matter in her affidavit,[2] and stated that she did not know the outcome of the investigation.

    [2]Affidavit of the maternal grandmother filed 1/12/2016 pars 15-18

24. Tendered into evidence as exhibit 2 from police records was the criminal history of Mr B Milne which reflects that he was, in March 1992 charged with offences as follows: sexual intercourse with a person 10 or over and under 16, and attempt sexual intercourse with someone over 10 and under 14.  He was committed for trial in respect of both charges.  The Director of Public Prosecutions decided not to proceed further with the charges.  That is the extent of the information on that topic. 

25. It will be a matter for the mother in final hearing to raise any reservations or current concerns she has about her stepfather.  There are no admissions by Mr B Milne.

26. In an interim proceeding, as on the occasion of 9 December 2016, the appropriate course, in highly charged proceedings, where the mother and her own mother and stepfather do not presently enjoy an easy, cooperative relationship, is to maintain a restriction on the children being brought in contact with their grandfather.

27. The interim application of the maternal grandparents is that all the children live with them.  There was a revision in the form of a Minute of Order for interim arrangements which was to the effect that the maternal grandparents share parental responsibility for the children with each other, to the exclusion, clearly, of all parents;  that the children live with them;  that the children spend time with the mother as agreed between the mother and the maternal grandparents;  that C spend time with her father, Mr Moore, for four hours on the third Sunday of every month, supervised by the paternal grandmother;  and that the three younger children spend time with their father for four hours on the third Sunday of every month.  The final orders were as set out in the Response document.

28. I do not consider that this application was particularly child-focused, to disrupt the children after nearly two years of a settled arrangement and to reduce the time of the three younger children with their father, particularly the two very young children, to four hours once per month.  The proposal also distinguishes between the children as a group of siblings and excludes all three parents from decision‑making about issues of long-term parental responsibility. 

29. The maternal grandmother indicated that she did not want the current interim order to continue.  I interpret that to mean that she wanted the orders she proposed, but in the event that those orders were not made, she would continue with the current order.  If I am wrong about that, the maternal grandmother should advise the other parties that she no longer wishes to spend time as per the interim orders from December 2016.

Primary Considerations

1. The law requires a consideration of the relevant factors in section 60CC of the Family Law Act.

2. The primary consideration is a meaningful relationship for children with each of their parents.  In this case, the four children do have, clearly, a meaningful relationship with their mother and their respective fathers.

3. The other consideration is their safety and in this case allegations have been raised about the past conduct of the man who is the father of the mother’s youngest child and is perhaps her current partner. 

4. The law compels the Court to give priority to safety over relationships.  However, where it is possible to maintain those relationships in a safe way, that is the appropriate course.

Additional Considerations

1. There are some secondary considerations. 

2. One of those is the views of children.  The two youngest children were clearly too young to express a particular view to anyone, but in the observations with the Family Consultant in November 2016, the Family Consultant asked the older children if they had any questions.  D asked when the children could see their mother.  D was asked if she would like to do that and she advised that she would, but that she did not want Mr H to be there.  C was then asked if she would like to see her mother, referred to as “[Ms Milne]”, and C also stated that she would, but that she did not want Mr H to be there.[3]  It is clear that the children are missing their mother, as would be expected.

   [3] CAPIA dated 18/11/2016  par 36

3. The mother is at a disadvantage, being self-represented.  She has been the carer for the children, either primary or together equally with Mr Rutherford, all their lives.  She has not seen her children for eight or nine months.

4. In November 2016 the Family Consultant recommended that as a matter of urgency the children spend time with their mother.  Clarity on the relationship with Mr H and exploration of whether or not he is her ongoing partner and whether he represents a risk of harm to the children is crucial.  The mother denies that he is.  Information inconsistent with that belief is put forward both by Mr Moore, Mr Rutherford, and the ICL as a conduit for the Department. 

Conclusion

1. Accordingly, I have come to the conclusion that the appropriate course is to leave the children in the current arrangement, living with Mr Rutherford.

2. On an interim basis, I make no order for parental responsibility.  Each of the three parents has parental responsibility by virtue of being a parent:  Mr Moore, in the case of C; the mother, in respect of all four children; Mr Rutherford, in respect of the younger three.

3. It is appropriate for there to be time between the children and the mother as soon as possible.  Provision has been made for supervised time each alternate Sunday from 10.00 am till 4.00 pm if the mother and Mr Rutherford can agree on a person who will supervise.  That person must be given a copy of these orders, be aware of their obligation to be present with the children at all times during visits, and would terminate the visit if concerned for the welfare of the children for any reason, clearly with particular reference to Mr H being in the vicinity of the children.

4. In the event that no supervisor is available or can be agreed on or is willing to undertake that task, then there is provision for the children to see their mother in a supervised contact centre convenient to herself and Mr Rutherford for not less than two hours each alternate weekend, and within seven days the mother and Mr Rutherford should make contact with a centre and comply with all the requirements to ensure that they can use it.  There is a note that the mother may bring her baby daughter G for those visits and no other person.

5. All the parties are restrained from permitting themselves or anyone else to bring the children into contact with Mr H and Mr Moore. 

6. The ICL is to provide a copy of these interim orders and these reasons for judgment to the relevant officer within the Department.  The ICL was asked by the Court and has agreed to make inquiries with the Department as to whether the inquiry into notification of sexual misconduct raised by two of the subject children about Mr H are ongoing or concluded.  The outcomes of those inquiries are to be provided to the Court when the matter comes before a Registrar on 15 February 2017. 

1. Orders are made accordingly.

I certify that the preceding forty five (45) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 8 February 2017.

Associate: 

Date:  21 February 2017