Molina and Lawrence

[2014] FCCA 2044

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLINA & LAWRENCE [2014] FCCA 2044

Catchwords:
FAMILY LAW – Interim parenting orders pending further adjournment – whether release of Family Report changes anything – where Court not satisfied that risk issues have been addressed by the Mother – where s.91B orders appropriate.

Legislation:

Family Law Act 1975

Applicant: MS MOLINA

Respondent: MR LAWRENCE

File Number: WOC 286 of 2013

Judgment of: Judge Altobelli

Hearing date: 12 August 2014

Date of Last Submission: 12 August 2014

Delivered at: Wollongong

Delivered on: 12 August 2014

REPRESENTATION

Solicitors for the Applicant: Heaton Law

The Respondent in person

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

ORDERS

THE COURT ORDERS THAT:

1. The Final Hearing be adjourned to 20 April 2015 at 10:00am (allocating 4 days).

2. The matter be adjourned to 12 November 2014 at 9:30am for mention.

3. Pursuant to s91B the Director General of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the Children X born (omitted) 2000 and Y born (omitted) 2008:

   (a)The Court is to notify the Director General within 48 hours of this Order;

   (b)The solicitor for the Applicant, the Respondent and the Independent Children’s lawyer are to forward to the Solicitor for the Director General of the Department of Family and Community Services at its Head Office in (omitted), not later than 4.00 pm on 27 August 2014 copies of the documents filed by each of the parties to date.

   (c)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;

   (d)The Court notes that for the purposes of this notification the subject Child presently lives with Mr Dent born (omitted) 1965, and resides at (omitted), (omitted).

4. Leave granted to the Independent Children’s Lawyer to provide to the Department of Family and Community Services copies of the Family Reports together with this Court’s extempore reasons.

5. Leave granted to Independent Children’s Lawyer to relist this matter on 7 days notice.

6. Leave granted to all parties to attend by phone on the adjourned mention date upon appropriate and timely application made to chambers.

7. Without admission, Mr Dent be restrained from leaving the children Y or Z unsupervised by an adult at any time.

8. That each party be restrained from physically disciplining any of the children.

9. That each party be restrained from:

   (a)consuming more than 2 alcoholic beverages in a twelve hour period during any time the children are in their respective care;

   (b)consuming or being effected by any illicit substance during any time the children are in their respective care;

   (c)permitting the children from being in the presence of any      person apparently effected by or using any illicit      substance.

10. That the mother be restrained from permitting the children from being in the presence of Mr J or Mr W.

11. That the mother do all things necessary and take all necessary steps to;

    (a)engage in a drug and alcohol assessment and intervention programme within 14 days of the making of these orders;

    (b)engage in family counselling in respect of her relationship with Mr J, which shall include counselling for victims of domestic violence;

    (c)arrange for and facilitate the child X engaging in Counselling with the Aboriginal medical service, and to continue to attend that counselling for so long as is recommended by that service;

12. That Mr Lawrence, forthwith, do all things necessary to engage in Anger Management Counselling, and counselling aimed at assisting him to deal with stress and emotions, and continue to attend such counselling for so long as is recommended by the counsellor.

13. That Mr Dent use his best endeavours to support the children in identifying with their aboriginal heritage.

14. That the children, Z and Y communicate with the mother and X by telephone at any reasonable time, and in lieu of agreement, each Tuesday and Thursday between the hours of 5.30pm until 6.30pm, with the mother to telephone Mr Dent for the purpose of facilitating such communication.

15. That the child Y communicate with Mr Lawrence by telephone each Tuesday and Thursday between the hours of 6.30pm and 7.30pm with Mr Lawrence to telephone Mr Dent for the purpose of facilitating such communication.

16. That the children X, Y and Z, spend time with the mother for the first week of each of the NSW Term 1, 2, and 3 Public School holiday periods, from 3.30pm on the first Saturday of the school holiday period and concluding at 3pm on the following Saturday.

17. That the child Z spend time with her father, Mr Dent for the second week of each of the NSW Term 1, 2 and 3 Public School holiday periods, from 3pm on the middle Saturday until the resumption of school. 

18. That, subject to Mr Lawrence providing evidence to each other party of his capacity to comply with Order 13(d) in respect of returning Y to Mr Dent, and subject to X’s wishes, the children X and Y spend time with their father, Mr Lawrence during each of the NSW Term 1, 2 and 3 Public school holiday periods, from 5pm on the middle Saturday until 5pm the following Wednesday.

19. To facilitate these Orders:

    (a)the mother shall collect Y and Z from Mr Dent at his home at the commencement of the time pursuant to Order 10;

    (b)Mr Dent shall collect Z from the mother at her home at the commencement of the time in Order 11;

    (c)Mr Lawrence will collect the children from the mother at her home at the commencement of the time in Order 12;

    (d)Mr Lawrence will return the child X to her mother, either prior to or upon his return from his journey to (omitted) to return Y to Mr Dent and, Mr Lawrence will return the child Y to Mr Dent at (omitted) railway station at the conclusion of the time pursuant to order 12.

20. In default of Mr Lawrence complying with Order 12, that the child Y return to Mr Dent when he collects the child Z pursuant to Order 11.

21. That, during the NSW Christmas school holiday period, the children X, Z and Y spend time with the mother for two weeks, at such times as are agreed between the parties, and in lieu of agreement, from 3pm 26 December 2014 for 14 consecutive nights, until 3pm on 9 January 2015, and that thereafter, Z remain in her mother’s care until the conclusion of the time that X and Y spend with Mr Lawrence pursuant to Order 16.

22. That, during the NSW Christmas school holiday period, the children Y and X,  spend time with Mr Lawrence for 4 consecutive nights, and in lieu of agreement, from 3pm on 9.1.2015 until 3pm on 3pm on 13.1.2014, provided that X spending time with her father shall be subject to her wishes.

23. That the children Z and Y spend time with Mr Dent during the NSW Christmas school holiday period for such period as is mutually agreed, and in lieu of agreement, from 3pm 13.1.2015 until the resumption of school.

24. That the child X spend time with Mr Lawrence, during NSW Public school terms in accordance with her wishes.

25. That the child Y spend time with Mr Lawrence on not more than 3 occasions during each school term, with at least one of those occasions occurring in the (omitted) area, at such times as are mutually agreed, and in lieu of agreement, the 3^rd and 6^th weekends, from after school Friday until 5pm Sunday, and the parties shall use their best endeavours to arrange for such time to occur at times that X spends time with Mr Lawrence pursuant to Order 17, with Mr Lawrence to collect Y from (omitted) Railway Station at the commencement of such time, and with Mr Dent to collect the children from Mr Lawrence at the conclusion of such time at (omitted) Railway station when the time occurs in (omitted), and from (omitted) Railway station when the time occurs in (omitted).

26. That the children Z and Y spend time with the mother during NSW Public school terms, on not less than 3 occasions during each school term at such times are mutually agreed, and in lieu of agreement, the 2^nd, 5^th and 8^th weekend, with at least one of those occasions occurring in the (omitted) area, with the mother to collect the children from Mr Dent at the commencement of such time and Mr Dent to collect the children from the mother at the conclusion of such time.

THE COURT NOTES THAT:

A.If Y expresses a wish to spend more time with her brothers and sisters during any time she is to spend with Mr Lawrence pursuant to these Orders, Mr Lawrence and Ms Molina will make such arrangements between themselves to facilitate this.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WOLLONGONG

WOC 286 of 2013

MS MOLINA

Applicant

And

MR LAWRENCE

Respondent

REASONS FOR JUDGMENT

1. In the matter of Molina & Lawrence and Molina & Dent, I provide the following ex tempore reasons. The matter comes before me again today in the following circumstances. On 26 February I delivered reasons for judgment in an interim application relating to the children. Those reasons for judgment were published as [2014] FCCA 542 and 543. On 26 February the matter was set down for Final Hearing for four days commencing yesterday.

2. Last week, by consent, the hearing was vacated and instead the matter was listed for a possible interim hearing today.  The reason why it was vacated is to do with a late Family Report, but also each of the parties have experienced difficulties with Legal Aid and representation.  To say that this matter is a complicated case is an understatement, so there is certainly no criticism about the hearing having to be vacated.

3. It is a difficult matter involving a mother, two fathers and seven children in different combinations.  The matter was listed for interim today to consider whether – and, if so, how – the release of the family reports would lead to a change of the existing parenting arrangements in relation to the children.  I am not going to go over matters of background or the applicable law, because that is adequately set out in the previous reasons for judgment.  The reality is that the only person who has filed further evidence is Mr Dent.  The only other evidence before the Court is that of the Family Consultant in the form of the two family reports. 

4. Firstly, let me identify the four competing proposals.  The Independent Children’s Lawyer submitted a detailed proposal the effect of which is to maintain the status quo, that is with the children remaining with Mr Dent, but with a much more closely articulated arrangement for spends time with and communication with the parents.  The Mother’s proposal was for Y and Z to be returned to her care and for a number of restraints, some of which are quite consistent with the Independent Children’s Lawyer’s proposal, plus fairly detailed arrangements for spends time with and communicates.

5. The proposal submitted on behalf of Mr Dent is broadly consistent with the Independent Children’s Lawyer’s proposal, that is, that the children remain with him.  He proposes a number of restraints and, in addition, he proposes different spends time with arrangements than that proposed by the Independent Children’s Lawyer.  And, lastly, there is the proposal submitted by Mr Lawrence and that is expressed as a first preference and a second preference.  The first preference is that both Z and Y live with him, but the next preference in the alternative is that they be returned to their mother’s care.  And he, too, offers a number of specific proposals. 

6. The starting point is to go back to the original reasons for judgment a and to understand why the court back in February made what can only be considered as quite drastic orders in taking the Children off their Mother. 

7. The risks of harm are identified and summarised in paragraphs 6 and  7 of the reasons for judgment.  For example, paragraph 6 talks about 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.  Paragraph 7 refers to the more generalised risk of neglect and harm that arise out of concerns in relation to the Mother’s parenting capacity and that includes drugs, alcohol, and inability to prioritise the children’s needs over hers.  At paragraph 24 I noted that what the Court was doing was primarily a risk-management exercise.  Back then both Mr Dent and Mr Lawrence were united in saying to the Court that the risk was so great for these children that the Court would reverse the existing care arrangements.

8. The Independent Children’s Lawyer made submissions that are reproduced at paragraph 26 of the reasons where having met with the children, particularly Z and X, she reported the concerns that they had articulated about life in their mother’s household.  I will just give one example of that.  For example, at page 18 of the reasons for judgment:

   Z this morning said, “Today I couldn’t find my toothbrush and I 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 is, of course, important to her.

9. And that is just an example of neglect issues that were raised.  I summarised at paragraph 27 the impression that was formed by looking at the quite substantial volume of documents that had been produced on subpoena.  At paragraph 27 I noted that 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 had been exposed to family violence in the past, particularly when the father of the four older children, Mr J, was on the scene.  In subsequent paragraphs I refer to the history of departmental involvement, police involvement, Mr J’s criminal history. 

10. I noted at paragraph 28 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 are talking about here.  I go on to talk about concerns about drug and alcohol issues, etcetera.

11. The Court clearly recognised back then that it was caught between a rock and a hard place.  Whether to remove them from a home environment that was considered to be risky and neglectful, but otherwise to create very significant disruption in the lives of these children, especially in terms of rearrangement of their relationship, but with the other significant people in their lives, including their older siblings.

12. Nonetheless, the Court made the orders that it made and no appeal was lodged in relation to those orders.  The history of the matter that is reflected in the Family Report indicates that the orders made had not necessarily been successful.  The Family Report, in fact, confirms that the worst fear that was foreshadowed in those reasons for judgment have come about, and that is the significant change in the children’s lives as a result of being removed from their mother and from their older siblings.

13. As mentioned before, the only evidence that the Court has received since then is some affidavits filed on behalf of Mr Dent, all of which tend to suggest that the children are doing well in his care and that the concerns that were adverted to in the Family Report have no foundation or are otherwise being addressed.  Of course, since then we have two detailed Family Reports.  They are dated 4 August and, not surprisingly, there is much commonality between these reports.

14. In the matter of Molina & Dent the recommendation at paragraph 95 is as follows, and I think, perhaps, the subtlety of this has been missed by the parties;  that the parents have equal shared parental responsibility for Z and, secondly, that this report be considered with other evidentiary material to ascertain the most appropriate parenting arrangement for Z.  In relation to Molina & Lawrence, the recommendation at paragraph 104 is a little clearer - that Y and X live with their mother, and then it goes on to talk about spending time with. Despite the recommendations, it would not be a correct assessment of this report to say that it is unequivocal and that the family consultant does not have concerns.

15. Just picking on some of the issues that are raised, for example, at paragraph 17 of the Molina & Lawrence report, where the family consultant records what the mother said to her:

    Ms Molina said she is not currently in a relationship.  She said that she reconciled with Mr J in 2013 until early 2014 when he was incarcerated for what she believes were drug charges.  She is unclear when he is to be released.  She said that there had been previous significant violence in relationship with Mr J, but she denied that he had been violent to her or the children on their recent reconciliation.

16. And this is the important sentence:

    She said that she continues to have feelings for Mr J and the relationship status appeared somewhat unresolved.

17. That is what she told the Family Consultant as recently as 2 and 3 June.  I heard something slightly different from the bar table, but with great respect I’m not sure what weight can be placed on it.  The significance of the Mother’s feeling of ambivalence towards Mr J must be seen in the light of the concerns that were expressed in the original reasons for judgment in this matter.

18. In terms of the potential risk that is at present in the form of Mr J and in circumstances where there was no evidence before the Court about when he might be released from jail there can hardly, with respect, be reassurance to the Court on the question of the children’s exposure to family violence, let alone the Mother’s exposure to family violence.  In any event, the report writer records – and these are my summary, rather than her words – the multiple issues and the problems that are faced by the Mother and her other children, especially the older ones. Those problems were hinted at in the original reasons for judgment.

19. There is nothing in these family reports that reassures the Court about the matters of dysfunctionality within the mother’s household.  Before the interim orders there were real issues about dental health for Z, but the evidence is quite clear that they have been addressed and whether the problem is genetic or otherwise the fact is for the first time it would seem in recent history something is actually being done to address those concerns.

20. The Family Report actually does not do much at all to reassure the Court about the concerns that were raised in its first judgment.  What it quite correctly does is to focus attention on the incredible complexity of this case and the impact of trying to protect the welfare of some of the children when they have such family connections with siblings, step-siblings and other adults.

21. The Family Report is very valuable in other respects.  Clearly the Mother has a good relationship with these children.  There is just no question about that.  That is not the issue in this case.  The issue is not whether the Mother loves the children or whether the children love the Mother, the question continues to be in this Court’s opinion unresolved issues about safety, parental capacity and neglect.

22. Mr Lawrence was observed to struggle in terms of the relationship with Y.  Y spoke in relatively positive terms about Mr Dent.  X is absolutely devastated by the separation that these orders have brought about from the girls.  Z really misses her mother, wants to live with her mother and reports that her father is talking to her about the mother.

23. A and B feel as if the Court has taken away their father and in their opinion the risk presented to the girls from Mr Dent is greater than the risk that would be presented by their mother.  Interestingly, the observations of Y, Z, X and Mr Dent were what I would describe as tense initially but they certainly warmed up and can only be described as positive by the time of the observation. The Family Report writer felt that Mr Lawrence became critical of X and had a distant relationship with her. 

1. With all of this complexity nonetheless the evaluation was that the girls live with their mother, but the risks about the Mother’s parenting capacity were acknowledged and the Family Consultant said that these are risks that are hard to resolve.

2. In the circumstances the Court is presented with a number of different proposals.  Mr Lawrence’s proposal is clearly well intended.  Here is somebody who is absolutely passionate about the children, but some of the observations would contra-indicate making orders in terms of his main proposal that Z and Y live with him.  His alternative proposal that the children live with the Mother,– he told me from the bar table – is based upon him being satisfied that the risks in the Mother’s care that he agrees existed at the time of the earlier proceedings are no longer there. He now sees Mr Dent as the greatest risk to the children rather than with the Mother.  Mr Lawrence’s main proposal can’t be accepted.  The alternative proposal depends very much on whether the Court accepts what is fundamentally the Mother’s case. 

3. The Mother’s case fails to deal with the fundamental issue of establishing what has changed since the interim orders were made other than the Family Consultant noting the matters to which I have had reference to. With great respect the Mother’s proposal does not address the concerns that were raised in my earlier reasons for judgment.  The absence of any further evidence from the Mother as to how she has sought to deal with the concerns that were raised is noticeable and certainly does not assist the case.  It would be fair to say that from where I sit this afternoon and despite the Family Reports the concerns held at the time of the first reasons for judgment continue for the most part to be unaddressed. The Mother’s ambivalence about Mr J in particular is a concern. 

4. I wish to specifically acknowledge the argument put by Ms Heaton about the section 61F issues in this case; that is to say that the Mother and the children identify as being of Aboriginal background.  It was put that some of the concerns about the Mother’s parenting capacity are perhaps Eurocentric.  It’s hard to raise these sorts of arguments at an interim level because by definition these issues are issues for expert evidence, and it may well be that this will become a very significant feature at a final hearing.  But that will only be after there is expert evidence. Indeed, on re-reading my reasons for judgment from February I think I said precisely that point.  So the 61F issue doesn’t assist the Mother at this particular point. 

5. That leaves, in effect, the Independent Children’s Lawyer’s proposal and Mr Dent’s proposal.  The differences are not significant except as regards the spends time with arrangements.  Mr Dent’s proposal simply seeks to recast the obligations for this in a different way to that proposed by the Independent Children’s Lawyer.

6. I am satisfied that the Independent Children’s Lawyer’s proposal at orders 19 and 20 are, in fact, more child-focused than Mr Dent’s.  I think there is much to be said for the Independent Children’s Lawyer’s proposal about the importance of the children spending time with their respective parents in their communities, and I think the Independent Children’s Lawyer’s orders more closely reflect this.

7. Pending further order of the Court I am going to make orders in terms of the minute of interim order proposed by the independent children’s lawyer that I have marked A, initialled and dated today’s date.  I’m going to – well, firstly, confirm, that I am going to set this matter down for hearing on 20 April next year for four days.  I won’t make directions at this stage.  I’m going to bring this matter back in about three month’s time.  I will get my associate to get me a mention date to specifically consider the question of expert evidence and I will ask the independent children’s lawyer to take this on board. For my part I think the mother has correctly identified that there are aspects of this case that do need the involvement of an appropriate expert who has expertise in indigenous matters. 

8. I’m going to make a further section 91B order in both matters inviting the department to intervene and to this extent I’m going to give leave to the independent children’s lawyer to provide to the department copies of the family reports together with these ex tempore reasons for judgment that I will have taken out.

9. I want to stress to the parents that I am not suggesting that any of the children be taken into departmental care. It’s just that this case presents such a level of complexity that it needs the involvement of the Department even if it is for the limited purpose of resourcing the expert evidence that is needed, the support that the mother needs in particular in this Court’s opinion, as well as perhaps some tangible assistance with facilitating the children spending time with each other and each other parent.

10. It is of concern that the alliances between the parents appear to shift so quickly.  At the moment on one view it would seem that Mr Lawrence is more aligned with Ms Molina than he certainly was six months ago, and Mr Dent less aligned than he was with Mr Lawrence but possibly more aligned with the Mother.  There are some difficult issues here that departmental intervention would be able to assist with.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  1 October 2014