Molina and Dent

[2014] FCCA 542

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLINA & DENT [2014] FCCA 542

Catchwords:
FAMILY LAW – Interim parenting – whether children at risk in mother’s care – two separate fathers – matter heard together.

Legislation:  

Family Law Act 1975 (Cth) ss.60CA, 60B, 61DA, 65DAA, 60CC and Part VII

MRR v GR [2010] HCA 4

Applicant: MS MOLINA

Respondent: MR DENT

File Number: BRC 892 of 2007

Judgment of: Judge Altobelli

Hearing dates: 19 & 26 February 2014

Date of Last Submission: 26 February 2014

Delivered at: Wollongong

Delivered on: 26 February 2014

REPRESENTATION

Solicitors for the Applicant: Heaton Law

Solicitors for the Respondent: Kelly Hardie Solicitors

Solicitors for the Independent Children’s Lawyer: Helen Volk Lawyers

ORDERS

1. The matter is adjourned to 11August 2014 at 10:00am for final hearing (allocating 4 days).

2. The matter is adjourned to 1 April 2014 at 3pm for mention.

3. Pending further order, X born (omitted) 2000 continues to live with the Mother.

4. Pending further order, Y born (omitted) 2008 and Z born (omitted) 2006 are to live with Mr Dent, to occur by 3pm Sunday 2 March 2014.

5. Children to spend time with each other and the Mother and Mr S as the parents agree (with assistance of the Independent Children’s Lawyer), but failing agreement, the time will be as the Court determines.

6. Leave is granted to the Independent Children’s Lawyer to relist the matter on 72 hours’ notice

7. Mr Dent is granted leave to appear by telephone on the adjourned date of 1 April 2014.

8. The Director General of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the children Z born (omitted) 2006, X born (omitted) 2000 and Y born (omitted) 2008.

9. The Court is to notify the Director General within 48 hours of this Order;

10. The Independent Children’s Lawyer is to forward to the Solicitor for the Director General of the Department of Family and Community Services at its Head Office in Ashfield, not later than 2 weeks from today copies of the documents filed by each of the parties to date;

11. Upon request from the nominee of the Director General the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

12. The Court notes that for the purposes of this notification X lives with the Mother and Y and Z live with Mr Dent

13. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

    (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;

    (b)to consider issues raised in the Family Consultant’s Memorandum to Court;

    (c)to profile of the parents (and other significant adults);

    (d)to assess the parents interactions (and those of other significant adults);

    (e)to assess the children’s developmental and emotional state;

    (f)to assess the relationship of the children to the parents (and other significant persons);

    (g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

    (h)to assess the proposed and actual home environments; and

    (i)to assess the proposals of each party as to the children’s future.

14. The Court requests the said report be released by 25 July 2014.

15. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

16. If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

17. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

18. In the event that the Family Report has been released by the adjourned date both parties be in attendance in person on the adjourned date.

19. The Court requests that the Family Report be allocated to a consultant with an understanding of Indigenous issues.

IT IS NOTED that publication of this judgment under the pseudonym Molina & Dent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

BRC 892 of 2007

MS MOLINA

Applicant

And

MR DENT

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. I provide the following ex tempore reasons in the matter of Dent & Molina and Molina & Mr S.

2. The case before me is in fact two separate cases.  The mother - Ms Molina - is the same.  There are two different fathers.  There are three children – X, who is 12, nearly 13, her sister, Y, 5, nearly 6.  Their father is Mr S.  There is another child - Z.  Z is 7, nearly 8.  Her father is Mr Dent.

3. The children currently live with their mother in Department of Housing accommodation in (omitted).  Mr S lives in (omitted) and Mr Dent lives in (omitted).  Ms Molina and Mr Dent were represented and Mr S represented himself.

4. The interim application first came before me on 19 February, when I heard submissions from all the parties.  The matter was adjourned until today, 26 February, to take advantage of the fact that the children were meeting the Independent Children's Lawyer, Ms Volk, in the hope that the Court would have some further assistance in making what is clearly a difficult decision possibly as a result of that meeting.

5. In short, both fathers want their respective children to live with them, but the mother opposes this.  The fathers’ case, which is supported by the Independent Children's Lawyer, is that the children are exposed to a risk of neglect or harm whilst in their mother’s household.  The mother denies this. 

6. By way of summary of the risk of harm that is contended for against the mother it includes, for example, the risk of family violence perpetrated by the mother’s former partner, Mr J, who is the father of the mother’s four other children and who lives, it would seem, from time to time, together with other associated people, with the children and the mother in her home at (omitted).

7. The other contended risk is a more generalised risk of neglect and harm which arise out of concerns in relation to the mother’s parenting capacity, the reasons for which are not clear but might include drug and alcohol issues and simply not being able to prioritise the children’s needs over her own and/or to protect them from the risk of harm or neglect.

8. In these ex tempore reasons I am describing the risks in very general terms and trying to summarise them.  The transcript will more clearly identify what both fathers and the Independent Children's Lawyer say those risks are.

9. Putting aside the present issues and doing the best the Court can, it seems that with the exception of the oldest child, X, the children are spending time with their respective fathers.  At the moment X’s relationship with her father appears to have broken down such that she is not spending time with her father, that is, Mr S, since Christmas last year.  Based on what she told the Independent Children's Lawyer today, it appears she is hopeful that that relationship might be repaired at some time.

10. The evidence before the Court consisted of the affidavits filed by the parents, listed below:

    a)Affidavit of Ms Molina filed 4 April 2013;

    b)Affidavit of Ms Molina filed 19 September 2013;

    c)Affidavit of Ms Molina dated 19 February 2014;

    d)Affidavit of Mr Dent filed 25 October 2013; and

    e)Letter to the Court from Mr S undated.

11. In addition, the Court had the benefit of a Child Inclusive and a Child Dispute Conference memoranda dated 21 January 2014 and 19 February 2014.  In addition, on the last occasion, a substantial quantity of documents that had been subpoenaed were tendered in evidence, listed below:

    a)Letter dated 19 September 2013 produced by (omitted) Public School;

    b)Witness statement by Y concerning Mr J produced by the New South Wales Police;

    c)Documents produced on subpoena by the Department of Family and Community Services;

    d)Event/incident reports produced by the New South Wales Police; and

    e)Case history file of Mr J produced by Corrective Services New South Wales.

12. Because these are interim proceedings involving what are asserted to be significant issues of risk for these children and, indeed, because Mr S was self-represented, I was quite liberal in terms of allowing things to be said from the Bar table.  That is not to say that I necessarily place significant weight on it, but I certainly do take it into account. 

13. In particular, I acknowledge that Ms Volk, as the Independent Children's Lawyer, was put in the difficult position of having to tell the Court, in the presence of the children’s parents, what the children said to her in conference today.  Whilst this might be less than ideal, the context of this decision has to be appreciated and that is that serious concerns have been raised about the welfare of these children and there was, I accept, a necessity to make a decision today.

14. As with all of these cases, the Court simply does the best it can in circumstances where the evidence is conflicting, incomplete and hastily prepared.

15. Having said all of that, the applicable law is the same that applies to any other case involving children.  It is found in Part VII of the Family Law Act.

16. In determining parenting matters under Part VII of the Family Law Act, the Court must regard the best interest of the child as the paramount consideration: s.60CA

17. 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.

18. At the very core of the new Part VII of the Family Law Act 1975 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.

19. If the presumption applies, I am 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.

20. Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I 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.

    Consent orders

    (5)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

    Right to enjoy Aboriginal or Torres Strait Islander culture

    (6)  For the purposes of paragraph (3)(h), an Aboriginal child's or a 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.

1. 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".

2. 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.

3. Both cases have a procedural history.  In the case of Dent & Molina the history goes back to 2007. 

   a)Mr Dent filed an Initiating Application on 25 January 2007 regarding Z.  The matter came before the Court on 1 March 2007 and Orders were made regarding Z spending time with her father and an Independent Children’s Lawyer was appointed.

   b)The matter returned to the Court on 19 March 2007, where additional time for Z to spend with her Father was agreed upon and a Family Report was ordered.

   c)The mother filed her material on 4 May 2007, and the Family Report was released on 17 May 2007.

   d)On 20 June 2007, the Dent & Molina matter was adjourned for a two day hearing before myself on 11 September 2007.  Orders were then made after the final hearing for Z to live with her mother, spend time with her father and without admissions undertakings were made by both parents.

   e)The mother reignited proceedings with Mr Dent by filing an Initiating Application on 19 September 2013, seeking a recovery order for Z.  Such was granted on 20 September 2013. 

   f)Mr Dent filed his material on 25 October 2013, and when the Dent & Molina matter was before the Court on 29 October 2013 an Independent Children’s Lawyer was again appointed for Z, non-denigration orders were made and the matter was adjourned for an interim hearing.

   g)At the interim hearing for Dent & Molina on 4 December 2013, orders were made for the parties to participate in a Child Inclusive Conference, undertake chain of custody urinalysis testing, injunctions were made against both parties regarding alcohol and illicit drugs, the mother was ordered to ensure Mr J left her home and did not return pending further order. A further interim hearing was ordered for 19 February 2014 and both Dent & Molina and Molina & Mr S were noted to be dealt with concurrently.

   h)In Molina & Mr S, the mother filed an Initiating Application on 4 April 2013 seeking a recovery order for Y.  Such was granted on the same day, and orders were made for Y and X to live with the mother, spend no time with the father and restraints were made against the father, Mr S, contacting or approaching the mother and children.

   i)On 11 April 2013, the mother sought for such restraints to be discharged and for the children to spend time with the father, Mr S.  It was noted that Y was returned by the father prior to the execution of the recovery order.

   j)No parties appeared on 2 July 2013 and the matter was adjourned on 17 July 2013 to 23 August 2013. By consent all previous orders were then discharged, orders were made for Y and X to live with the mother, spend each alternate weekend with their father, Mr S, injunctions were made against both parties regarding alcohol and illicit drugs, non-denigration orders and orders regarding notification of medical treatment and authorities regarding schooling were made.

   k)On 19 September 2013 the mother filed fresh proceedings in Molina & Mr S.  The matter came before the Court on 29 October 2013 whereby the mother was ordered to ensure Mr J left her home and did not return pending further order, the father, Mr S, was ordered to return Y to her mother’s care, non-denigration orders were made and an Independent Children’s Lawyer was appointed.

   l)On 4 December 2013, Molina & Mr S was dealt with concurrently with Dent & Molina and the same orders as stated in g) were made. 

4. The focus today is primarily risk issues and what the Court is trying to do is fundamentally an exercise in managing risk to these children.  The case that is advanced on behalf of Mr Dent and by Mr S is that the risk is so great for these children that the Court would reverse the existing care arrangements.  The mother’s case is that what she does adequately manages the risk. 

5. Despite the unsatisfactory nature of the evidence, because of the reasons I articulated before, there are a number of independent sources of information that assist the Court in making a decision.  For example, both Child Inclusive Conference memoranda contain sections that deal with risk factors.

   Family violence – the father alleges that there are highly dysfunctional dynamics in the mother’s home and that she associates with others whose first resort to conflict resolution is violence – this is denied by the mother. 
   Orders are in place preventing Mr J (who is the nephew of Mr Dent and the father of the mother’s four eldest children) from attending the mother’s home when Z (also X and Y – see Memorandum of same date WOC 286 of 2013) is there.  The mother advised that Mr J was imprisoned on 12 February 2014.  She was unaware of the reasons for this or how long he might be in gaol.  She, however, maintains that their relationship ended approximately six weeks ago.  The father alleges that Mr J was at the mother’s home over the Christmas period.

   Drug and alcohol -  the mother advised that she has undergone two urinalysis tests but is not aware of the results.  The father has undergone one test which he asserts was “clean”.  The father asserts that the mother has long standing drug and alcohol problems but that, when necessary, she is able to abstain.  He believes that, in the context of litigation, she is unlikely to be consuming alcohol to excess or to be using drugs but expresses concern for her status once the Court proceedings are no longer on foot.

   Parenting capacity – the father expressed concern about the number of days Z has missed school. The mother asserts that, when the father visits during school terms, he requests that the subject child not attend school on the school days he is there.  The father asserts that some of the mother’s older children “rarely” attended school during their high school years.   The father alleges that the mother has a lax attitude to her older children’s sexual activity as well as their drug and alcohol use and that the subject child is exposed to these behaviours.  The mother denies these allegations.

6. It would be fair to say that the Family Consultant conducting the conference identified risk issues as a result of meeting with the children.  The theme of the risk issues was continued quite explicitly this afternoon when Ms Volk explained to the Court the essence of what the children have said.  The essence of it, I think, is that the children described a living environment that was somewhat haphazard, disorganised and in some respects indicative of issues of neglect and risk to them.  I simply incorporate that part of the transcript into these reasons.

   MS VOLK:… This is quite a difficult case and it’s probably not an easy pill to swallow, the things I’m about to say, your Honour.  But I suspect that by the time I finish speaking, you will probably form the view that there’s one option most likely but it’s not going to be an easy one.  Your Honour, I might start.  I’ve seen all three children.  I saw them together and then I saw them individually, and I might start with the more simple and that is X’s plans in relation to her hopes to head to boarding school.  It is most certainly the case that she does wish to go to boarding school and at the soonest possible time to get out of here, to get away from the people that she is around.  She is achieving extremely well at school.  She’s excelling

I have not only spoken with X and the children but I’ve also spoken with the deputy principal from her school who provided a letter that X showed me of her own volition this morning, and I might just read it.  It says, “X has performed extremely well.  Her efforts and attitude towards – toward her work have improved dramatically.  This enthusiasm had – has led X to being placed in our able and interested class” - which I think is a gifted class with a different label – “We are currently looking at ways to support X’s quest for excellence.  She has indicated that a boarding scholarship would be something she would consider.  We are looking at that now.  Only our best and enthusiastic students are considered, and X is being considered.”

When I spoke to the deputy principal, your Honour - are you content for me to give – I’m aware that this is evidence from the bar table but I had this conversation at 1 pm.  Your Honour, the deputy principal certainly indicated that he’s been familiar with the family for about 15 years.  He certainly spoke very highly of – of X and he is highly motivated to assist her to achieve that scholarship.  And at the moment, there are two different schools that they’re looking at.  I think one’s (omitted) and the other is (omitted).  One that X named herself had a different name.  She wasn’t quite sure it was and I – I don’t want to do it an injustice by trying to guess what it could be.  And one of the things they are looking was a remote area scholarship.

But he said, “She’s fantastic here.  She seems to have an emotional edge about her.”  He perceives her to be worrying about what’s going on at home.  She seems to be a little bit parentified if I can extrapolate from his comments.  I – I will go into further detail about some of the things that all three children told me, but I put those things to the deputy principal.  One of the things – so far as I can understand, I think there’s about 13 people living at the mother’s home on my – each of the kids named but they got a bit mixed up because there’s a few people with the same name that are different but there’s a lot of people living there.  Some temporarily, some permanently.

And all three children expressed that people try and break in all the time and the most recent so far as I could gather was about two weeks ago, and the kids – I think Z says she has to go and sleep in with mum.  Sometimes they go upstairs, they get things to protect themselves with.  Certainly, all three were extremely open about how often this happens, and some of them – this seems to occur when they’re home.  Certainly, Z indicated that mum’s hoping to relocate to somewhere around (omitted) or something to stop people annoying her and – and doing this sort of thing.  Sometimes they do get in.  The brother left the window unlocked the other day and then it was half open.  “Heaps of people come in, people try to take my brother’s bike and sell it.  He keeps them inside now.  Every two weeks or something.  Last time I put my bike under the house, I locked it up and the next day, the lock was broken and my bike was gone.”  The – all three of them relay these – they volunteered it, your Honour.

Having said that, X is clearly very close to her mother.  She would not entertain going to live with her father, X.  And in fact, at the moment, she still doesn’t want to spend any time with him.  She foresees they may well – you know – repair their relationship but they had a blue at Christmas.  She’s still a bit cross but she certainly doesn’t want – she doesn’t even want to go up there at the moment but she doesn’t want to go and live there.  She, however, would not have concerns for Y if Y was in the care of her father, but she did indicate that her father drinks a lot and takes drugs and she has concerns about the amount that he drinks, and that that doesn’t stop when the kids are there.

The – Z presented very much as – as Ms K suggested except perhaps slightly more aligned with her mother.  She likes her current school.  Like she said to Ms H, she’d be very happy to go to school up in (omitted).  She has about six cousins that go to school up there.  She certainly likes going up to her dad’s.  She talks about sleeping in all different rooms, sometimes mum’s, sometimes on the floor because I think there’s a dog that wets – you know – wees all through the house and because of the people breaking in and they just fill up the house with mattresses.  They were I think – I think they were Y’s words.  She certainly likes going up to dad’s.  She’s got lots of friends up there.  Sometimes she sleeps over. 

What she said is that generally, dad comes down – this is Z – dad comes down, they spend a couple of days here, then they head up to dad’s and then they come back down here and spend a few days here, and so far as I understand it, generally Y will join X – Z in that – the visits down here.  I couldn’t quite figure out whether Z – sorry, Y goes with Z up to (omitted) or not but certainly, the – the (omitted) all live in (omitted) too so they’re sort of extended family of their siblings in (omitted) besides Mr Dent.  So, that there’s sort of some indirect relations of Y’s and X’s up there through their siblings, if that makes sense.  Whether that’s a positive or not, I don’t know but – but they certainly have family connections up there.

She does – certainly Z said – you know – she reported that when she goes to Mr S’s, that he swears and stuff.  When he stays there – there’s a double bunk there and there’s clothes all over the top bunk but – so she and Y share a bunk.  She – I – I’d have to say I think I couldn’t support a proposal that the girls go and live with Mr S.  I certainly would support Y spending time with her dad.  X I think would have to do in accordance with her wishes.  It’s interesting, Z – almost her first words to me this morning – oh, she was – hang on, ..... all up, just – I think that X said to me that – that the kids spend almost every weekend with their aunt or another relative, and I – and she said that her – her mum generally only drinks when they’re at their aunts or someone else’s which turns out to be each weekend and she thinks that mum’s drinks about 10 drinks.  This X, the 14-year old.

Z this morning – you know – she said, “Today, I couldn’t find my toothbrush and just look at my dirty teeth.”  She indicated she keeps her toothbrush in the bedroom because the two-year old that’s there tips it over or she can’t find it.  Her dental hygiene of course is important to her and X seemed to have no issue but I have to be very, very concerned about Y’s level of hygiene and – and most certainly her dental hygiene.  She has a – I’m going to call it a metal tooth – on one of her molars.  She’s had some – I think she had a gum disease.  And – and just Z’s comments in relation to her own toothbrush gives some – and that was my comment to you last time, your Honour, is the concerns about the parental capacity.  I do not doubt that the mother loves her children and that they love her.  Not for a second do I doubt that, your Honour.  The concern is the capacity to protect them from these people who try and break in all the time, from people like Mr J who I understand is in custody. 

Even the overcrowding in the house, and the dog that urinates all over the beds so they can’t – kids can’t sleep in them.  I mean, we all – you know – sometimes have puppies and they do things they ought not.  At the moment, the mother’s sister and her children are living there because the husband’s yelling and fighting and causing mayhem, according to all three children.  To which I can only say they must have been exposed given they’re spending an awful lot of time there.

Even I think, your Honour – I’ll just a look.  I’m pretty sure it was – it was Z who again volunteered, “My house smells because B’s new dog, it goes” – well, all of them swore actually – all three children – you know – they’re – they’re language was – you know – even in my office, the vernacular was very course, so I’m not going to quite quote what they said.  But it goes around the house and it wees and it stinks and I don’t let it in my room.  “I’ve got cockroach spray in my room and I keep it close.”  That’s from Z, your Honour. 

The pop now lives in a – in a caravan out the back also.  So, my concerns are, your Honour, these significant issues that all three children volunteered – I – I wasn’t cross-examining the kids.  I did speak with them and sit for some element of time.  X’s desire to get out as soon as she could is not because she doesn’t love her mother, but her living environment is unacceptable.  I don’t think what she means is I don’t like living in the house with my mum, I think it’s her – the whole neighbourhood, peer group, everything.  Her – she has a great deal of support from the deputy principal that I spoke to in endeavouring to do that.  I put to him that was – was that likely not to be something that could come about until 2015.  He said, “Oh, I would not say that.”  So – so, that may not take as long as we think.

X would be sad to her sisters not living in the same place as her.  However, that sadness didn’t extend to the prospect of boarding school.  So when I put to her the possibility that you might consider that the girls go and live with Mr Dent - as you suggested, the younger girls – you know – she expressed she would miss them, she – she wouldn’t really like that.  But – but in the face of saying, “Oh, I can’t wait to go to boarding school and I would only come home in the holidays.”  So, probably if you - considering the issue separating the siblings, these – and – and how X might feel about that – you know, they’re – they’re very close to each other, all – all of them.  But the two younger ones are clearly very close also, and – and if she were to go to boarding school, that may become an issue that just – it happens anyway however much you try to avoid it.

One of the big problems in this case is the distance that we have.  Mr Dent lives in (omitted), Mr S in (omitted) and the mother at the moment in – in the (omitted) area.  I believe the mother doesn’t have a licence.  I believe Mr S will be eligible to have his licence back in April this year, and I think Mr Dent drives.  Mr Dent tells me that the mother has a number of people who are available to assist with travel and indeed, when she was using Mr J when he was up in (omitted), there seemed to be no difficulty with her getting up there with some regularity.  So, if – if your Honour is minded to act today to change the current arrangements for the children, if – because I’m not sure I’m – I – I’m really just going to tell you what I see.  I suspect there probably is only one answer.  If your Honour is minded to do that, I – I would support there being as regular contact as can be managed.

HIS HONOUR:   So, let’s just be very clear though.  When you talk about if the court is minded, minded to do what, Ms Volk?

MS VOLK:   Okay.  So ‑ ‑ ‑ 

HIS HONOUR:   Let’s articulate it.

MS VOLK:   Yes.  It appears to me that the wellbeing of these children would be served – I don’t – I wouldn’t support any change of X’s residence at the moment because I don’t know that she would cope well with a change to somewhere else and then boarding school, and nor does she want it.  She’d probably ..... her ..... .  I do think the younger girls need parenting.  They need help with hygiene, with being – being parented and not having to protect themselves with their own things.  And it appears to me that they love one another.  They’re quite closely attached to Mr Dent.  He seems to be a – he has the least form if I might say, your Honour.  The – the respective criminal histories are in evidence and he seems to have the parental capacity.  He’s not working at the moment, he’s available.  He does have a licence.

The children could be supported to have frequent time with the mother and for Y with Mr S, and of course, with X - their sister - and I would support as often as can be managed in the face of the cost of that travel and facilitating that travel.  I started to tell you and I didn’t finish it.  When I spoke to the principal and I said, “Look, all three girls are concerned about people breaking in all of the time.”  “Yep.”  And I said, “I think there’s 13 people” - “Yep.”  It came as absolutely no surprise to the deputy principal who’s known this family he said for 15 years.  Supportive and he – you know, he expressed how close the kids have all been to their mother.

The question I suppose then, your Honour, is do you need to do it on an interim basis or not.  Maybe if these people – you know –the protection strategies don’t seem to be there.  They’re very young children.  Z and Y are very young children.  They’re vulnerable young children.  They don’t have the capacity to protect themselves.  X ought not be in a position where she must protect them, let alone herself.  She herself described some of the things she’s been subjected to by Mr J.  She’s very, very scared of him.  He – she told me herself that he’s in gaol at the moment.  The other two think he’s in (omitted) working or something like that.  The other two have no fears of Mr J.  They say he’s okay.  But X of course is very scared of him, and he is the father of the other kids, so once he’s out of gaol, one would have to expect he would continue to be part of the mother’s life in some way or other, whether on good terms or bad.

1. The documents that were produced on subpoena produce a broad impression about the mother’s household over a period of years.  This is just an overview and summary, but the documents create an impression of a dysfunctional household in many respects, a household where the children have been exposed to family violence in the past, particularly when the father of the four older children – Mr J – was on the scene.

2. The documents suggest departmental involvement in the past, though that fell short of intervention.  There was police involvement to a certain extent.  The documents suggest a significant criminal history for Mr J.  The overall impression is created of the mother that she is struggling with parenting and suffering from significant deficits, particularly in terms of insight in relation to the needs of her children and not just the three children that we’re talking about here.

3. There are concerns about drug and alcohol issues in the mother’s household.  It needs to be noted that these are longstanding issues of which both fathers have been aware and to be fair, have sought to do things at various times in the past.  The Court has a number of concerns but is caught in a situation where whatever the Court does there is a risk to the children. 

4. To leave them where they are would be, as it turns out, a failure to do what the Court can to remove them from a risky and neglectful situation but to take action likewise precipitates a disruption in their lives and a significant rearrangement in their relationships that might be equally harmful.  Possibly the biggest issue in this Court’s mind is a loss of confidence in the mother in terms of her ability to care for these children and prioritise them.  I think that the risk that was presented, and for all the Court knows, may still be presented, by Mr J has been minimised by her. 

5. Indeed, I should record that it is by no means clear where Mr J is.  The mother asserts that the relationship has ended.  There is a real issue about if this happened, when it happened and the circumstances of it and whether he has been back to the house.  The extent to which Mr J presents a risk to these children is, of course, greatly exacerbated by the fact that it is the home of his other children.  I think there are inconsistencies in the mother’s evidence about Mr J.  For example, as between what she told the Family Consultant on 21 January 2014 when she said that her relationship with him had ended six weeks before and what the father’s report about Mr J’s presence in or in the vicinity of the home over Christmas and the inconsistency between these things and what the mother was ordered to do on 29 October 2013 to ensure that Mr J leaves her home and does not return. 

6. Ms Heaton who, in difficult circumstances, valiantly advocated on behalf of the mother and probably said everything that could possibly be said on her behalf, sought to explain this away on the basis of cultural constructs of time.  The Court acknowledges that these children and the mother have an Indigenous background and indeed, that is an issue that will need careful attention at a final hearing.  But the submission that when she told the Family Consultant on 21 January that the relationship had ended six weeks before means potentially a greater period of time is hard to reconcile in circumstances where both the fathers report Mr J’s involvement or presence in December. 

7. The order was made on 29 October 2013 that she do all things to ensure that Mr J leave her home and does not return.  The only reasonable inference that I can draw on the albeit limited and conflicted material before the Court is that she was tardy in complying with this order.  This merely confirms a number of things.  The lack of confidence that the Court has in the mother’s ability to understand risk, protect the children from risk and comply with orders of the Court.  Prima facie, the concerns that have been expressed about the risk to the children in the mother’s household through the independent sources that I have referred to earlier in these reasons, as well as what the Independent Children’s Lawyer mentioned in Court today, suggest that the risk is clear and one that cannot be ignored even on an interim basis and even in circumstances where I intend to expedite the final hearing. 

8. The concerns expressed about the mother’s inability to protect the children and her lack of insight in relation to their care clearly presents a danger to them from which they must be protected.  But another equally great dilemma is what to do, assuming that something needs to be done about the children in her care.  Is there an alternative to the mother?  The situation is complex.  The girls are part of a family of seven siblings, though there is about a two-year age gap between X and her older step-sibling, A, the youngest of the four Mr J children. 

9. If the Court finds that these children are at risk, as it does, the relationship between the siblings, particularly the younger ones with the older ones, cannot be allowed to dictate whether they are placed in someone else’s care.  The relationship between the three girls does seem close on the available evidence.  To split them along the lines of going to their respective fathers means Z would be going to (omitted) and X and Y would be going to (omitted), which is a formidable distance between them. 

10. One of the least of the Court’s concerns in this case is about the ability of the fathers to make any contact arrangement work wherever they live so that the girls would be spending time with each other as well as with each parent.  X’s situation is challenging.  She has made it clear that her relationship with her father is such that for the time being it has broken down.  I have no confidence that she would abide by any order I make that she live with her father, Mr S. 

11. The other complicating factor, though this is probably a positive in her life, is that it would seem that she is a candidate for a scholarship to a boarding school for which she is a serious contender.  To move her from her present school might jeopardise that.  As against that, of course, there’s the issue of the risk to X, but as she is the oldest one she appears to be the one who is best able to protect herself in that context and some of the things she told the Independent Children’s Lawyer today and indeed, that she has told the Family Consultant in the Child Inclusive Conference seem to confirm that. 

12. Whilst it isn’t ideal, probably the least of the worst options for X is that she remain where she is, at least pending the final hearing or pending her going to boarding school.  Now, to split Y and Z is difficult.  Clearly, Mr S’s preference is that both X and Y lived with him but I sense even he understands that with X, that might not be possible.  His preference would be nonetheless that Y lives with him and Z with her father, Mr Dent. 

13. Mr S was very passionate in his description of the things he has sought to do in order to protect these children and the Court must recognise that from the first day that he appeared in this Court, he was both vocal and consistent in articulating the risks which the Court now finds, at least on a tentative basis, exist in the mother’s household.  In these circumstances, one can understand why he would want his daughter to live with him.  The difficulty is that it would involve splitting Y and Z at a really vulnerable time in their lives, when there is going to be big change. 

14. On the last occasion, that is, on 19 February, in exploring all the options with the Independent Children’s Lawyer, I raised the possibility of all the girls living with Mr Dent, that is to say, Z’s father, in (omitted).  Of all the parents, he presents as the most stable and the most child-focused, though I have to accept Mr S’s implied criticism of him for not acting earlier to seek to protect the children. 

15. It would be somewhat unconventional, in the circumstances of this case, for Y, who is Mr S’s daughter, to be placed in the care of Mr Dent, who is Z’s father.  It is an arrangement that Mr Dent is prepared to support.  The interesting thing is that, based on what evidence the Court does have, limited as it is, it seems to be an alternative that Y and Z and indeed, X may well support.  At the end of the day, the Court is making the decision that Y and Z live, for the time being, with Mr Dent, on the basis of the impact that would occur in their lives if they were separated.

16. Trying to view the situation from Z and Y’s perspective, what the Court is doing is taking them away from their mother, taking them away from the place where they have lived for so long and if I were to make the orders that Mr S asks me to make, separating them, whereas at least Mr Dent – and I think this is supported by the Independent Children’s Lawyer – proposed something that keeps them together, in an environment that is, on the limited information available before the Court, a stable one.

17. At the end of the day, the Court’s desire to minimise the adverse impact of disruption and change for them is the factor that tips it in favour of both Y and Z living, for the time being, with Mr Dent.  In terms of a way forward, I’m going to list this matter for hearing now, an unorthodox step to take in circumstances where we do not have a family report, but one which, I think, is necessitated by the rather unusual circumstances.  I think that whilst the risk is great enough to take Y and Z away from their mother, if at a final hearing the evidence suggests that the risk was not as great as what was thought, then a period of what could be as little as six months away from their mother will, hopefully, be not that deleterious to them.

18. A family report, subject to what the Independent Children’s Lawyer says, may well be adequate in this case.  I think that the indigenous issues need to be carefully explored.  On that basis, some consideration needs to be given to who prepares the family report.  I am going to make orders, in both cases, under section 91B of the Act, inviting the Director‑General to participate in these proceedings.  I am going to suggest that my reasons for judgment, together with the transcript, be made available to that Department, so that they have an insight into the risk issues that the Court perceives in this case.  What the Department can do is to bring to bear a level of resources that I don’t think any of the parties, or all the parties together, are able to do.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Altobelli.

Date:  2 April 2014