MORA & WORLEY (No.2)
[2019] FCCA 3938
•30 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORA & WORLEY (No.2) | [2019] FCCA 3938 |
| Catchwords: FAMILY LAW – Parenting proceedings - due process – whether Respondent has had reasonable opportunity to participate in proceedings - failure of Respondent to provide full and proper instructions – child experiencing serious neglect constituting abuse in Mother’s care – allegations of drug abuse – child exposed to family violence when in care of the Mother – circumstances where both parties have historically acted unilaterally in the removal of the child – impact of Mother’s mental health issues upon child – unacceptable risk – circumstances where child cannot safely practice a relationship with Mother – circumstances where equal shared parental responsibility is not in the child’s best interests – need to protect child from neglect prioritised over consideration of relationship – where parents do not have capacity to implement arrangement for equal or substantial and significant time – where relief sought seeks change of child’s name. |
| Legislation: Family Law Act 1975 (Cth): ss.4; 4AB; 60B; 60CA, 60CC; 61DA; 65DAA; 65DAC; 68P; 102NA; 117; 121 |
| Cases cited: Gordon & Gordon [2015] FamCA 616 Other sources: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) |
| Applicant: | MR MORA |
| Respondent: | MS WORLEY |
| File Number: | CAC 420 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 30 September 2019 |
| Date of Last Submission: | 30 September 2019 |
| Delivered at: | Canberra |
| Delivered on: | 30 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haddock |
| Solicitors for the Applicant: | Alliance Legal Services |
| Counsel for the Respondent: | Dr Behrens |
| Solicitors for the Respondent: | Snedden Hall and Gallop |
| Solicitors for the Independent Children’s Lawyer: | Ms Orczykowski of Boland Legal Family Lawyers |
ORDERS
Counsel for the Respondent Mother Ms Worley informs the Court that she does not have sufficient instructions from her client and accordingly seeks leave to withdraw.
Counsel for the Respondent be granted leave to immediately withdraw.
All prior parenting Orders with respect to the child X (born: in 2011) be discharged.
The Applicant Father Mr Mora shall have sole parental responsibility for the child X.
Mr Mora is to notify Ms Worley by email of any major medical emergency concerning the child.
Ms Worley shall be permitted to send letters (no more than 4 times per year), birthday cards, birthday presents, Christmas cards and Christmas presents to X and for the purpose of this order Ms Worley shall post any letters, birthday cards, birthday presents, Christmas cards or Christmas presents to a PO Box nominated by Mr Mora and Mr Mora shall be at liberty to examine such items and shall provide the appropriate ones to X.
Except as provided for in these Orders, there shall be no other face-to-face contact between Ms Worley and child X.
Mr Mora shall be at liberty, as the person with sole parental responsibility for X, to change X’s surname to ‘X’.
In furtherance of Order 7 herein, Mr Mora is at liberty to do all things, sign all documents and give all consents, authorities and instruction as are necessary, without the need of recourse to any other person, to complete an Application and cause the processing of that Application for the issuing of a new birth certificate for the child X with the name ‘X’.
Within 28 days of the date of these Orders, being by 28 October 2019, the Respondent Mother Ms Worley is to pay the sum of $700 to the Independent Children’s Lawyer in reimbursement of the costs incurred by the Independent Children’s Lawyer in funding the Respondent Mother’s hair follicle testing and, if the Respondent Mother Ms Worley does not pay that sum by 28 October 2019, interest will then accrue thereupon at the rate prescribed by the Federal Circuit Court Rules2001 and the Independent Children’s Lawyer shall be entitled to commence proceedings in a Court of competent jurisdiction for recovery of that sum together with interest and costs of enforcement.
The Independent Children’s Lawyer’s appointment be discharged.
By 4:00pm on 23 October 2019, Ms Worley may, pursuant to Rule 16.05 Federal Circuit Court Rules 2001, make an Application to re-list and re-open this matter, provided that:
Any such request is made by email directly to [email protected], and that request is to be in accordance with Federal Circuit Court protocols with respect to communication with Chambers; and
At the time of making such a request, Ms Worley shall file and serve an Affidavit explaining her non-appearance at the Final Hearing.
All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting Hearing.
At the expiration of the appeal period and absent any appeal having been filed all and any material produced on subpoena or produced to the Court pursuant to s.69ZW Family Law Act 1975 order shall be returned to the person who produced that material or, if so requested, securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Mora & Worley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 420 of 2015
| MR MORA |
Applicant
And
| MS WORLEY |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the future welfare and care arrangements of a young lad, X, born in 2011. As would be apparent, X has recently turned eight.
The parties to the proceedings are X’s father, Mr Mora, the applicant, and X’s mother, Ms Worley, the respondent.
The interests of young X are capably represented by an Independent Children’s Lawyer and counsel.
The proceedings are listed today for trial.
In addressing the conclusion of the matter, and I make clear from the outset that I do intend to conclude the matter, it is necessary to have regard both to past proceedings and the history of these and other proceedings, as well as considerations of due process.
History of Litigation
The arrangements for young X and their litigious determination have a strong foundation before this Court.
These parents separated in May 2014. At that point in time, X was two and a half years of age. Shortly after that separation, proceedings were commenced in this Court. Those proceedings – the first tranche of litigation - were concluded by Final Orders made on 11 May 2015. Those Orders provided for a substantial and significant time arrangement to be practiced by X with his Father, increasing his then practice of time from two nights per fortnight to five.
Further proceedings were commenced - the second tranche of litigation. Those proceedings concluded with Orders made on 27 July 2017. Those Orders provided for equal time to be spent by X with each of his parents. At the time that those Orders were made, X was five, nearly six years of age.
Not quite a year after those Orders were made, and a consequence of significant issues that will be touched upon in these reasons, young X passed into his Father’s full-time care. That occurred on 6 July 2018 when, without intending to suggest criticism, young X was retained by Mr Mora in his possession. No criticism could arise once consideration is given to the evidence to which I will turn shortly.
A number of Interim Orders were then made on 6 August 2018 in that, the third tranche of litigation, which this judgment will conclude. Those Orders provided for X’s mother, Ms Worley, to spend time with him on a supervised basis, with supervision provided by the Father or a person agreed by Mr Mora.
On 23 August 2018, Ms Worley resorted to what might be described as “self-help”, removing this young lad from his school without the Father’s knowledge and in circumstances that could only be described as unilateral.
That removal of X from his school led, particularly as a consequence of past involvement of the Territory Child Welfare Agency and the Mother being well-known to police, to the issue of what is referred to in Territory legislation as “an amber alert”, seeking the assistance of the general populace in locating young X because of concerns for his safety.
Ultimately, and through the diligence of officers of the Australian Federal Police, the amber alert was successful in locating young X, who was with his Mother in a remote area of a national park. That was, of course, in August, a time when, in the Territory, it is particularly cold. The circumstances of his location and retrieval are described in detail in the evidence, again to which I will turn in due course.
What flowed as a consequence of the amber alert and the Mother’s retention of the child until removed by police was the initiation of significant criminal action against the Mother. Shortly prior to Ms Worley removing the child into her care, an Apprehended Family Violence Order had been sought for the protection of young X. The Interim Order that was made, in not dissimilar terms to the Final Order ultimately made on 4 October 2018, provided that Ms Worley was prohibited from being at named premises, at the child’s school, from being within 100 metres of certain locations particularly relevant to the child, as well as, importantly, being precluded from contacting young X except through a legal practitioner or as the consequence of any Order as might be made by a Court, (subject to certain exceptions).
Proceedings were, accordingly, instituted against Ms Worley arising from her actions in breach of the Apprehended Violence Order. That resulted in Ms Worley being arrested and initially refused bail. She remained incarcerated for a period of time. She was ultimately released on bail pending trial.
A plea of guilty was ultimately entered to at least some of the charges. Ms Worley was sentenced to a period of imprisonment. That is now all past. The net consequence has been that Ms Worley has not, since the child’s removal from her care a little over 12 months ago, practiced any significant relationship with the child.
Thus, this third tranche of litigation arises in the most curious circumstances. Based upon an acceptance of Mr Mora’s evidence on its face as more probably correct than not, they were distressing circumstances, certainly for young X, but also, consistent with Mr Mora’s evidence, particularly his most recent affidavit, Mr Mora.
Mr Mora deposes to the impact of these and past proceedings upon X, the child’s presentation and statements to him and the general circumstances that preceded his retaining the child. All suggest trauma experienced by X.
Due Process
The nature of the proceedings and the circumstances that have seen this tranche of litigation initiated must be considered in addressing any issue in the matter, including, but not limited to, the issue of due process to which I now turn. So much is apparent from the discussion undertaken by Forrest J in Gordon & Gordon [2015] FamCA 616 and, in that regard, I incorporate paragraphs 2 to 5 thereof:
(2)The Applicant seeks such a parenting Order in circumstances where the father was not served with the application or affidavit material filed to support the application, where he was not aware of the hearing before me, where service is sought to be dispensed with, where the proceedings were heard in a closed Court and where an Order is also sought supressing publication of certain aspects of the matter including parts of the Court’s Orders that are sought.
(3)Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
(4)Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
(5)In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
If the child’s best interests are, as section 60CA of the Family Law Act 1975 (Cth) prescribe, to genuinely be paramount, then they must inform all decisions that the Court makes, including decisions of a procedural nature such as this.
In these proceedings, Ms Worley has, at times, appeared. At times, she has not. On some of the occasions that Ms Worley has failed to appear, she has good explanation - she has been incarcerated, whether bail refused or serving a sentence.
Ms Worley does not appear today. Ms Worley has been legally represented. Indeed, that legal representation has been triggered by declarations made by the Court by reference to section 102NA of the Family Law Act 1975. Those declarations and the representation then provided are for her protection and assistance, as Ms Worley had raised concerns as to her direct cross-examination of Mr Mora in these proceedings, she being then unrepresented, and in light of allegations that she purported to raise in earlier material filed by her as to violence that she suggests she experienced at the hands of Mr Mora.
Abundantly capable legal representation was provided to Ms Worley, whether as a consequence of the section 102NA of the Family Law Act 1975 (supra) declaration or an earlier application for Legal Aid funding that had been made by Ms Worley. The proceedings had been listed for trial on earlier dates. The hearing had been adjourned on the application of Ms Worley to enable her appeal of a refusal of Legal Aid to be determined.
Ms Worley was, until earlier this morning, legally represented by both solicitor and counsel. Ms Worley was sighted at the registry earlier today, but it would appear she has since taken it upon herself to depart. That would well explain why, when the matter was first called, Ms Worley’s then-counsel and legal representatives indicated that they did not hold sufficient instructions to appear and leave was sought to withdraw. That leave was granted. The matter was stood in the list to enable some opportunity for Ms Worley to return to the Court and to engage in the proceedings in some fashion. She has not returned and the matter thus remains listed for hearing absent Ms Worley.
In determining whether to proceed, I must be satisfied both that due process is served and that, more importantly, young X’s best interests, as the paramount consideration, are served.
In relation to due process, I am conscious of that which fell from the High Court in Allesch v Munch (2000) 203 CLR 172. What is required to afford due process in any given case is a reasonable opportunity to participate and be heard. Whether that opportunity has or has not been provided should not be determined arbitrarily by dogmatic reference to Court rules. Indeed, it cannot. There are circumstances in which due process is afforded by very little notice. There are circumstances in which far more abundant notice is required.
In this case, Ms Worley has had significant notice of these proceedings. She has, as already observed, had the benefit of an earlier adjournment of trial dates to enable her to participate more fully and to be legally represented. She has had the benefit of declarations made by the Court, pursuant to section 102NA, to aid and assist her in obtaining legal representation. I do not put it in those terms to be pejorative, nor to suggest that it is some charitable benevolence bestowed upon Ms Worley. It is a requirement of the legislation and appropriately included.
However, in all of those circumstances, I could not be other than satisfied that Ms Worley has had a reasonable opportunity to participate. Ms Worley has filed material, albeit that much of it is difficult to read, if not unintelligible, being prefaced in many circumstances in the nature of a pleading responding to affidavits that have been served upon her, but incapable of being properly or fully understood without specific cross-referencing.
These proceedings have been on foot for well over a year. That, in itself, is extraordinary. It is unusual for proceedings to be concluded so quickly due to a lack of resources, as highlighted, for example, by Brennan J in Harris & Caladine.[1]To address matters more quickly or, indeed, as his Honour observed, to do other than pay lip service to the objects and principles of the legislation, is somewhat impossible in light of current resources.
[1] Harris v Caladine (1991) 172 CLR 84.
The matter has been brought on with such expedition as was appropriate, having regard to:
a)This being the third tranche of litigation, (perhaps reflecting entrenched conflict between the parties but certainly speaking to extreme disadvantage for X);
b)X’s relationship with a parent being not practiced, and;
c)The significant and grave circumstances that have precipitated the present listing for hearing. That is focused purely upon the amber alert and circumstances relating thereto to which I have already referred, let alone the balance of the evidence addressing the circumstances that preceded the retention of X by Mr Mora.
In all of those circumstances, I am satisfied that due process is afforded to Ms Worley. She has had an opportunity to participate. She is aware of the Orders that are sought. She is aware of the material that is relied upon in seeking those Orders. She has participated in the commissioning of evidence in the nature of a family report, prepared expeditiously in these proceedings. She has had the benefit of legal representation until earlier this morning when, through Ms Worley’s failure to provide full and proper instructions, those legal representatives have appropriately sought leave to withdraw.
Lest I am in error with respect to the above, I am conscious, by reference to the passages of Forrest J’s decision in Gordon & Gordon, that I must also have regard, in assessing the reasonableness of the opportunity afforded to Ms Worley to participate, to X’s best interests as paramount.
The evidence suggests that young X has had a difficult run in life to date. That is and could be no criticism whatsoever of X. The difficulty for X arises from deficiencies in his parenting, particularly the parenting previously provided to him by Ms Worley. It is apparent from the family report, if nothing else, commencing at paragraph 108, that X is largely shielded at present by Mr Mora, his partner and others assisting in his care from any significant involvement to issues raised in these proceedings. For example, at paragraph 110 of the report, X indicated that he did not know why he was attending upon a family consultant or what the family consultant’s role was.
Young X indicates some degree of lingering trauma as a consequence of the events of 12 months or so ago. At paragraph 116, he indicates that when he last spent time with his Mother, “She stole me and put me in the bush. She took me from school”, advising that he felt worried and confused by those actions and did not wish to discuss the issue. He was quite positive in relation to his assessment of time that he has spent with his Mother in the past. He clearly has love for his Mother and one would expect that it is so. The child’s experience of his Mother’s parenting deficiencies need not necessarily suggest that he would have an absence of affection for her. However, he did indicate, incontradistinction, a feeling of security and safety with his Father, (paragraph 121) perhaps absent his relationship with his Mother.
The Father’s evidence, in his most recent affidavit, is that X has experienced some significant trauma as a consequence of his Mother’s actions. Those actions continue to impact him and would fall within the broad descriptor of unacceptable risk by reference to authorities such as B & B (1993) FLC 92-357 and M & M (1998) 166 CLR 69. Those events also impact Mr Mora, who cares for X, impacting his sleep, his functioning, his sense of safety and security for X and creating what could be described, without intending to be in any way offensive or pejorative, a sense of hypervigilance in relation to X.
All of those circumstances must also be taken into account in assessing whether due process is afforded to Ms Worley.
Additionally, I must balance any concern as to a perceived absence of due process afforded to Ms Worley against both the impact upon due process afforded to Mr Mora through taking any step other than conclusion of the proceedings, noting that he is fully and actively ready to proceed and has done all that is required of him in accordance with the Court’s Orders and directions and had, in fact, done so prior to the previous listing for trial.
All of those circumstances must ultimately, however, be subservient to young X’s best interests.
I am satisfied not only that Ms Worley has been afforded due process and a more than abundant opportunity to participate in the proceedings, but that Mr Mora would be denied due process through adjournment of the proceedings. There is no such application made. He is ready to proceed and desires to do so. The detriment to Mr Mora in not affording due process to him corresponds with detriment to X. These proceedings and their continuation being the third tranche of proceedings and having arisen from circumstances of real disadvantage for X which warrant, require and deserve conclusion.
I propose to proceed to hear and determine the matter on a final undefended basis. That is all the more so noting that, save for one discrete issue, Mr Mora and the Independent Children’s Lawyer representing young X’s best interests are at one as to the Orders that should be made as demonstrated by exhibit A, tendered in Court today.
Again, lest I am wrong in that regard, I am conscious that the Orders are made in Ms Worley’s absence and the provisions of rule 16.05 of the Federal Circuit Court Rules (2001) (Cth) will apply. That rule permits to Ms Worley an opportunity to apply to reopen proceedings. That opportunity is, as expressed in the rule, without fetter. Accordingly, I propose to incorporate within these Orders some restriction upon the exercise of that right. Ms Worley will have a period of 28 days from today’s date to make any application she desires to apply to relist and to seek to reopen.
It should also be made abundantly clear that whilst Ms Worley can apply to reopen, it is not a right simplicita to reopen. It is tempered, as described in previous authority,[2] by a requirement to demonstrate good reason why it would be so - and in this case, being a parenting dispute concerned and primarily focused upon X’s best interests - that it is in X’s best interests that it be so. It requires not only a reasonable explanation for delay and non-attendance, but the satisfaction of those requirements.
[2] Harper & Harper [2016] FCCA 1603.
However, I do propose to deal with the substantive matter and to determine the issue on its merits. Lest again that there be any controversy, the matter is not determined merely as a consequence of Ms Worley’s non-attendance as a summary entering of judgment. These are proceedings akin to proceedings commenced in other civil jurisdictions by a statement of ordinary claim, as opposed to a statement of liquidated claim. It is not that Mr Mora is “entitled” to the relief that he seeks merely because it is not opposed. He must still demonstrate, to the Court’s satisfaction, that the Orders that he proposes meet young X’s best interests. I am so satisfied. It is a merits determination.
The Evidence
In dealing with the proceedings, I have read the material that has been filed by each of the parties in these proceedings. That is set out in Case Outline documents provided by counsel for each of the parties, those documents having been prepared when counsel was retained by both parties, together with the Case Outline document prepared by counsel for the Independent Children’s Lawyer. That evidence includes not only the affidavits set out therein, but the family report prepared in these proceedings. Whilst the Case Outline documents refer to material to be tendered from that which has been produced on subpoena, I make clear that this material has not been tendered. The evidence, as it presently stands, is sufficient.
The evidence of Mr Mora and of the family report writer will be the predominant focus of my enumeration of evidence. As Ms Worley does not appear, Mr Mora’s evidence is unchallenged. Ms Worley’s evidence has been read and considered to the extent that it is able to be followed, but there is no agitation for relief by Ms Worley.
It should also be observed, before turning to the evidence in any more detail, that one of the matters that has more recently arisen, as is submitted by counsel for Mr Mora, is some issue as to the efficacy of a hair follicle test undertaken by Ms Worley as a consequence of Orders made on 29 July 2019. That report was prepared with financial contribution provided by the Legal Aid Commission, but possibly also by Ms Worley. The report would suggest that there may be no concern as to recent drug use on the part of Ms Worley. However, that must of itself be in question in light of that which has now become apparent, that Ms Worley has recently engaged in purchasing, through the internet, various adulterants that would impact upon and mask any positive result which might otherwise have been apparent from that testing.
I do not suggest that a finding is made that it is so, but it means that the testing report and any suggestion that it causes no concern cannot be relied upon with any real assurance at all. It may be some basis, Ms Worley being aware that this evidence has been obtained by Mr Mora, for Ms Worley to have withdrawn herself from the proceedings. I need not pursue the issue to the point of a finding. I need only observe that Ms Worley is, without any known impediment or misadventure, absent.
The Father’s evidence paints a bleak picture for young X. It is not a criticism of Mr Mora or a suggestion that he has been culpable in those disadvantages. He has quite clearly initiated three tranches of litigation to seek to address the concerns that he has raised and has, at different times, accepted the reassurances provided through drug testing or other evidence to ameliorate or at least partially address his concerns. The more recent evidence discussed above might cause him some disquiet in having done so. However, it is not disadvantage that Mr Mora has inflicted on young X that is the concern in this case.
There is clearly and significant history of engagement with the Child Youth and Protection Service in the ACT regarding X’s care. Those concerns are myriad. They are founded in the mother’s lifestyle, whether that is generalised neglect, drug use and her experience of family violence, and thus X being exposed to it.[3] All of the above may well have a genesis in the concerns with respect to the Mother’s drug use and, possibly, an underlying psychological or emotional disturbance.
[3] I do not suggest that the mother should be “victim-blamed” as a consequence of experiencing family violence but it cannot be ignored that X has been exposed to violence and that this has impacted him. It is sufficient to observe merely that X has experienced a level of adult conflict and violence which he should never have been exposed to
One would think, for example, that the significant neglect that is complained of in relation to the Mother’s care (and corroborated both through the Father’s evidence and that reported to him by numerous others, as well as photographs taken by the Father of the Mother’s premises and annexed to his material), might have its genesis in the Mother’s use of and/or dealing in illicit drugs. I do not suggest that there is evidence that permits a finding that the mother has actively engaged in the sale or supply of drugs, although it might be inferred from a number of aspects of the evidence.[4] Drug use may well have occasioned the neglect. It may well have impacted upon the mother’s psychological or emotional health, the general state of presentation of herself and the child, as well as exposing her to violence.
[4] For example, on one occasion, X was exposed to the Mother being choked and otherwise assaulted by a man upon whom the Mother had attended, misguidedly, with X to seek to collect money suggested to be owing to her by the man
The interaction between all of those behaviours impacts upon and disadvantages X. It is sufficient, however, for the Court to be aware that X has been exposed to these behaviours.
The photographs annexed to the Father’s material depict, for example, a fridge with a partially consumed bottle of juice, a bottle of tomato sauce, a partially consumed dip and a lemon. Beyond that, there is little that would provide sustenance to this child contained within that fridge – hardly the staples to prepare a meal. On the top shelf, there are a number of tins, whether opened or otherwise, of bourbon and Coke. They are more resplendent in the Mother’s provision than food for this child.
Complaints arose by X to not only the Father, but others, including, it would seem, staff at the school and friends of the Mother who have relayed those concerns to the Father, about generalised neglect for this child.
The Child Welfare Agency had attended at the mother’s home in June 2018 when complaints had been made to the RSPCA as to the neglect of pets. Officers attended and found young X at home alone without the mother, complaining of being hungry. Weapons and marijuana plants were found, whether for the Mother’s personal use or otherwise. The house was found to be in an unclean and unkept state, with dog faeces inside and outside of the home. The property was described as “disgusting”, the backyard cluttered and full of objects and not a suitable place for a child to play or be.
There are myriad complaints littered throughout the Father’s evidence of a similar nature and I accept his evidence on its face as more probably correct than not. There are complaints raised as to drug use occurring in the child’s presence, whether the Mother or not, but including others in the Mother’s presence and company.
There are complaints of the Mother requiring the child to leave his bed so that the Mother could use it to engage in sexual intercourse with others.
The litany of complaints in that regard continues. I do not use the word litany to suggest that the complaints are inappropriate, manufactured or maliciously advanced.
There is basis to accept these allegations on their face as correct, not the least of which is the repetition of those complaints not only to the father, but by others by young X.
That is no way for a child to be raised, especially having regard to the International Convention on the Rights of the Child,[5] commencing with its preamble that:
Childhood is a special place deserving of protection so that children might meet their full potential.
[5] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
One wonders how, if things had continued along that path, young X might have achieved his full potential with such disadvantages in his life.
The International Convention provides that X is entitled to grow up in a family environment of love, peace and understanding. One wonders how that occurs when X is taken by his Mother on errands to collect money from others, to then experience his Mother being assaulted in his presence, potentially being exposed to assault himself.
The school record for this young child, whilst he was living with his Mother, is far from ideal. To put as euphemistically as possible, he was routinely late or absent with a number of sicknesses noted, which may or may not arise from his general neglect and the malaise in his care.
All of those disadvantages are the basis upon which the Father, having become fully appraised, not only by the child but by child welfare officers, and friends and associates of the mother, took the unilateral step of retaining X.
The Court is generally critical of parents who act unilaterally. There are circumstances in which that criticism is misplaced, and indeed it is a positive step which must be taken. It is a step for which this Father should be commended. The environment from which the child was removed was less than acceptable - again, at its most euphemistic - if not directly disadvantageous for this child.
Following the child’s retention, it would seem, whether through child welfare officers or otherwise, the child provided further information to police together with others, and the totality of evidence then available led to the commencement of the Apprehended Domestic Violence proceedings resulting in the very Order which was breached by the Mother in her removal of the child from the school.
Prior to doing that, however, the Mother’s behaviour was, at the very least, curious, if not bizarre. Annexed to the Father’s material at page 30 are detailed and intricate messages left for the child via chalk drawings and writings at the child’s school. One can understand and sympathise with Ms Worley’s distress - the child having been taken from and removed from her care - but those actions are anything but child-focused. They meet the Mother’s needs. They would cause real embarrassment, one might think, to the child, no matter how delightfully drawn the messages are.
There are then the difficulties with the Mother’s removal of the child and her actions thereafter. The Mother went, as it were, “to ground” - taking the child into a remote area of a national park during winter, and staying with the child without tent and without adequate provisions.
A media report from the Sydney Morning Herald[6] makes clear that the police and Child Welfare Agency held concerns for the child’s safety, suggesting that the child was on foot with his mother in a remote bush area with no tent and inadequate supplies, and suggesting real concern for how things may have ended up for the child if they had not been located through the vigilance of members of the community passing information to police.
[6] Whilst the report discloses the full identities of both parents and child, and publishes photos of them, it would not appear to be a breach, or a conscious breach, of section 121 of the Family Law Act 1975 (supra) because there is nothing to suggest they were aware of the existence of proceedings under the Act. The reporting relates to the police action and the call for information.
That is a matter which must weigh heavily upon young X, as well as upon Mr Mora. I can accordingly accept the evidence that he leads in his affidavit of 12 September that they are matters that cause him real concern.
The family report, to which I have already referred, suggests that young X is generally quite well-adjusted, perhaps surprisingly so having regard to the disadvantages he has experienced in his Mother’s care, although it should not be forgotten that his Father has always been a constant presence in his life. He has had substantial time with the child and equal time with the child before assuming his full-time care.
Young X describes, (paragraph 118 of the family report), that the only time that he has felt sad, worried or scared was the time that he spent with his mother in the bush in August 2018. And whilst he did not identify anything he would seek to change about himself or his parents, he was clear that his primary wish was to “let the Judge to know he wanted to live with his Father” because he feels more safe with his Father, ending with the statement:
He feeds me well and puts me to bed at night.
For a child, then not yet eight, to be describing, in the most innocent of terms, his own understanding of his basic needs is compelling. He wants to have someone care for him, to be properly accommodated and looked after. X seeks nothing more than to have his basic, fundamental human needs, such as food, met. This is understandably concerning for Mr Mora. It is concerning for the Court.
X’s statements suggest, even though the child does not articulate it as clearly as he might, an understanding by him that his Mother was not meeting his needs and that his Father does. For a child to describe that he feels safe with one parent in contradistinction to another suggests that he has some real knowledge and understanding of those deficiencies. That makes his views, per Re R Children’s Wishes [2000] FamCA 43, all the more compelling.
There are real concerns, and those concerns must remain unaddressed in Ms Worley’s absence, as to the mother’s present use, or abstinence from use, of drugs, as well as concerns with respect to the Mother’s mental health symptomology and the Mother’s general capacity to be insightful as to the child’s needs and to meet those needs.
The Mother has recently, on the business day before the scheduled listing of this hearing, filed an affidavit seeking to address a number of those concerns. However, in light of that which arises in relation to the Mother’s purchase of adulterants in relation to the drug testing that has occurred, the Mother’s affidavit could do nothing to address those concerns.
The Mother’s mental health is sought to be addressed by annexing to her affidavit a report prepared by a psychiatrist in relation to her criminal proceedings. Leaving aside any issue as to the admissibility of the report, what is clear is that the Mother is described as having been diagnosed with a major depressive disorder, albeit in partial remission, post-traumatic stress disorder and stimulant use disorder.
The last diagnosis, of itself, must draw some concern as to the Mother’s previous disavowal of the accuracy of the father’s allegations of her drug use, its extent and its history.
The Mother is not criticised for experiencing mental health disorders, and to some extent, she is to be congratulated for seeking assistance and treatment, as she deposes she does. However, the simple reality is that the Mother’s diagnoses have has significant impact upon X. They may well have been the basis for her actions, (that is the purpose for which the report was prepared by her for the criminal proceedings, to seek to mitigate her culpability in those actions and behaviours). What is clear is not a criticism of the Mother for experiencing ill health, but a concern that it has the potential to continue to impact upon this child.
I do not propose to canvass the evidence in greater detail, save to observe two specific aspects of Mr Mora’s evidence which are substantially supported by the family report.
Young X, since coming into his father’s care, is well settled. He is attending school. He is doing well, indeed, surprisingly well in light of his past history of absences, lateness and the failure to provide for his basic needs, such as feeding, which would have enabled him to be a diligent student. That speaks well for the child’s resilience and his inner strength.
Stability for X in the arrangements made for his care is somewhat new for the child. It could certainly not be projected back to the periods when the predominant care was provided by the Mother. Thus, one would be reluctant to interfere in those arrangements in any substantial way.
It should also be observed that Ms Worley does not seek to cavil with the Order that is sought by the father and supported by the Independent Children’s Lawyer that X continue to live with him.
The Mother, by her Responses filed in these proceedings, proposes, subject to leave being sought to amend the relief proposed by her upon release of the family report, such amendment not having occurred nor leave having been granted, that X would live with his Father.
Ms Worley proposes that she have a graduating regime of supervised time to reintroduce her relationship with X and, subject to providing a negative hair follicle test, the efficacy of such an Order being significantly questionable in light of the purchase of adulterants, that time then progress further.
The family report provided some little support to such an arrangement, proposing, for example, (paragraph 169), that X live with his father and spend supervised time with Ms Worley for six months or so, and that there then be a gradual move towards weekend time, including unsupervised and, ultimately, overnight-time.
Those recommendations are, however, subject to the caveat of accepting that the Mother participates in drug and alcohol counselling and remains drug and alcohol abstinent, that the Mother participates in certain parenting courses or programs and that she demonstrate those things, presumably if the matter had been concluded on a final basis with such Orders, to the Father’s satisfaction.
Secondly, there is one issue that is not agreed between the Independent Children’s Lawyer and the Father. It is an Order that will meet young X’s best interest and is proposed by Mr Mora, being that both he and young X will change their surname from Mora to B.
That is addressed in very limited evidence in Mr Mora’s affidavit, (paragraph 181), but I am satisfied sufficiently so. I will canvass that issue together with all others by reference to the legislative provisions for which I now turn.
Legislative provisions
I must commence with section 60CA of the Family Law Act 1975 (Cth) which reminds the Court that the child’s best interests are the paramount consideration.
I must have regard to the objects and principles in section 60B of the Family Law Act (supra) and which I incorporate herein.
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.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles do not form part of the substantive law to be applied to the facts and circumstances of the case, but do guide the manner in which the substantive provisions will be interpreted and applied, as well as guiding the outcome that the Court should endeavour to achieve.
The objects require that the Court make Orders that ensure that children’s best interests are met through ensuring that children have the benefit of both parent’s having a meaningful involvement in their lives, to the maximum extent consistent with their best interests, as well as being protected from physical or psychological harm to exposure of abuse, neglect or family violence.
Those objects are not prioritised as they are by reference to the primary considerations in section 60CC(2) of the Family Law Act 1975 (supra), however, they are in remarkably similar, although not quite identical terms, to the primary considerations. And on that basis alone, I am satisfied that the prioritisation provided by reference to the primary considerations by section 60CC(2A) must apply. Further, it would be nonsensical to suggest that such prioritisation would not apply. It would be inconsistent with the next step to be taken by the Court, but also, one could not consider the maximum extent to which involvement could occur without a consideration of risk.
Risk is fundamentally important in all that the Court does. Unless a child is safe, Orders could not be safe. Unless the child is safe, involvement cannot occur or cannot occur to any significant extent. Unless the child is safe, a relationship cannot develop or be meaningful. A relationship to which fear, anxiety and concern are circumjacent is not meaningful. It is dysfunctional.
The Court must also make Orders that ensure that children receive adequate and proper parenting. That again impacts upon an assessment of the maximum extent of involvement either parent can have. The Court must finally make Orders that ensure that parents fulfil and meet their duties and responsibilities.
In this case, there is no ability to assess the extent to which Ms Worley could be meaningfully involved, (assuming that the use of the prefix has the same impact upon involvement in its assessment as it does in relation to relationships, per Mazorski & Albright [2007] FamCA 520), in the absence of Ms Worley’s participation. There are too many questions to be answered with respect to the past history of care provided by Ms Worley which can only be answered by Ms Worley’s participation.
There might have been some comfort through a negative hair follicle testing report being produced but for the clear reality that adulterants had been purchased, and thus, one might assume, purchased with the intent of being used and, in all probability, having been used by Ms Worley, to mask reality. For this child, however, leaving that issue to one side, there is the clear reality of a past experience of, at least, neglect.
Family violence is clearly, on the evidence, something to which this child has been exposed, noting that, by reference to the definition of family violence in section 4AB of the Family Law Act 1975 (supra), exposure to family violence, includes the child overhearing threats, seeing or hearing an assault, comforting or providing assistance to a family member who has been assaulted, cleaning up after the damage of property or an assault, and being present while police or ambulance officers attend an incident, or take other steps in assisting a person assaulted. They are but examples of exposure, however, most, if not all of those, apply to this child’s past-lived experience, noting that all of this was before he was seven years of age.
If one takes St. Francis Xavier as correct in stating “Give me the child until he is seven and I’ll give you the man,” then there must be real concern as to the impact upon this child, and his future psychological and emotional development, as a consequence of his first seven years of neglect and disadvantage.
Abuse, as defined in section 4 of the Family Law Act, also connects with exposure to family violence. Abuse can be found by the Court, (although I hasten to add that no such finding is made as it is not necessary, and thus the safer path to take is to proceed upon that which is clear), if satisfied that the child has been exposed to family violence so as to cause the child serious psychological harm or through serious neglect.
The child has clearly been exposed to family violence. There is no specific evidence that suggests the extent to which the child has been psychologically harmed, but on its face, one might opine that any psychological harm to a child under seven is, of itself, serious. Again, I do not pursue the issue, purely to avoid appellant controversy. A finding is not necessary, although it may well be open.
I am satisfied that X has experienced serious neglect that would constitute abuse. Neglect is not defined in the Family Law Act, but when one has regard to the photographs taken by Mr Mora of the Mother’s premises and circumstances in which this child was living, including the fridge - largely deficient any provision for this young lad, and the general environment in which he has been raised, it is irresistible on any definition.
A finding of neglect is also irresistible from:
a)The Mother parenting X whilst largely drug affected;
b)The Mother’s parenting being impacted by an underlying premorbidity for psychological and emotional disturbance or mental disorder;
c)X being exposed to family violence;
d)X being exposed to adult sexual congress and the like.
It could not be otherwise than a finding that the child has been neglected by Ms Worley. Such a finding is not made to punish Ms Worley or to punish the child merely as, factually, it must be addressed.
This child has experienced significant neglect in his short life and at the hands of his mother. There may well be significant reasons for that. As I have already indicated, the three significant disadvantages of drug use, mental health disorder impacting upon the mother’s parenting and exposure to family violence may all be interconnected.
It may be that some underlying trauma has led to the mother’s disorder which causes her to seek out drugs, which more significantly exposes her to violence. There could be any other number of combinations by which the three interact. What is clear, certain and known is that they are all disadvantages for X.
To that extent, I thus cannot assess the maximum extent, if any, to which involvement, let alone meaningful involvement, between X and his Mother could safely occur at this time. It could only be safe if the Court could be reassured that there would be no risk of this child being exposed or subjected to abuse, neglect or family violence, all three of which, in all probability, he has experienced in his short life.
I am conscious of the rhetorical questions posed by Tree J in Johns v Jasapas [2016] FamCA 471 guiding an assessment of unacceptable risk.
In this case, I am satisfied the risks are established. Indeed, to some extent, Ms Worley concedes aspects of them.
There is nothing in the evidence that would suggest any step that this Court could take, or take with any certainty or assurance, that would ameliorate against those risks in the future, their reduction or minimisation, nor address of the underlying circumstances that give rise to those risks.
Thus, by reference to those questions, which I do not specifically pose and answer but of which I am conscious, there would be, without some involvement of Ms Worley to contest and challenge Mr Mora’s evidence, and that of other witnesses, as well as the ability for Ms Worley to be examined herself, difficulty in determining the question of the extent of involvement which could benefit young X.
That is not to suggest X does not love his mother - he clearly does. It is regrettable for any child who loves a parent, (even one who has been, at the least, neglectful, let alone potentially abusive of their child, as discussed above), to terminate that relationship.
As similarly discussed by Tree J in Johns v Jasapas, it is a significant step for the Court to take to terminate the practice of a relationship. That is not necessarily the effect of the orders that are to be made by the Court with the consent of Mr Mora and the Independent Children’s Lawyer. The Mother may well seek to utilise her opportunity to reopen, and if it is granted, agitate for further relief.
However, on the evidence as it stands, there is no positive Order that could be contemplated that could be assessed, as is the necessary test, as positively meeting X’s best interests. There are too many questions unanswered and which cannot be answered without Ms Worley.
The principles underlying the objects create rights for X. They are not absolute rights. They are neither enlivened nor practiced when to do so would be contrary to X’s best interests. In this case, that caveat applies. However, the rights include a right to know and be cared for by both parents, the right to spend time and communicate with both parents and others of significance, to have parents share duties and responsibilities, agree about future parenting, and to enjoy and participate in culture. The latter right is not raised on the evidence, the former four rights are.
X cannot practice a relationship with his Mother safely on the evidence as it presently stands. It would require, at the very least, stringent and formal supervision through a contact centre, although not even the assessment of that arrangement as appropriate can be made absent Ms Worley and her response to, and leading and testing of evidence regarding, the above matters.
Accordingly, the principles cannot be perfectly achieved. They can be achieved perfectly well, however, as regards to the relief that is sought by Mr Mora and supported by the Independent Children’s Lawyer.
Clearly, X is thriving in his present placement. He is supported and loved, not only by Mr Mora but Mr Mora’s partner and others including by his school community, by all of his “social capital” through his school and other agencies that support him. He is receiving therapeutic and rehabilitative assistance through counselling. He is getting what is needed in a fashion. That clearly was not the case immediately prior to his removal from the Mother’s care by the Father’s retention of him.
The Father and Independent Children’s Lawyer propose that the Mother be permitted to send letters, cards and gifts. That is tempered, however, by a requirement that the Father be permitted to open and read the material and to determine whether it is provided to the child.
Whilst placing Mr Mora in a position of being a gatekeeper to the mother’s relationship may seem intrusive, it must follow as appropriate, as both Mr Mora and the Independent Children’s Lawyer propose, in light of the material annexed to Ms Worley’s material.
Ms Worley has, as many litigants in this day and age choose to do, sought to engage in sharing her story with the world at large through social media. Her posts are concerning, not because they are critical of what is described in one post, for example, as the “global evil industry of Family Court corporations”, but because of the content of those messages and what would be signalled to young X were the Mother to forward similar material to him.
The Mother’s actions in leaving the elaborate chalk drawn messages for the child at his school suggest that the Mother’s ability to restrain her own actions, or to place the child’s needs insightfully ahead of her own traumas and concerns, is impeded or at least limited. For all of those reasons, I am satisfied those Orders are appropriate, and, further, fulfil the Court’s objects and principles.
I must then have regard to section 61DA of the Family Law Act (supra), the presumption of equal shared parental responsibility. The presumption does not apply in circumstances where the Court is satisfied that a parent has engaged in abuse of the child or family violence.
Abuse is made out on the basis of serious neglect. Thus, on that finding being made, as it is, the presumption could not apply. Lest I am wrong in that regard, I am conscious that if the presumption were to apply, that it would be rebutted. It is clearly not in X’s best interest for his parents to have equal shared parental responsibility.
There are other concerns with respect to Ms Worley’s functioning and insight into X’s needs and her ability to prioritise those needs and interests above her own. But, more importantly, the real and practical difficulty is these parents do not and cannot communicate. It would be an onerous and unreasonable expectation to impose upon Mr Mora that he would communicate with Ms Worley in light of his evidence, which I accept on its face as more probably correct than not.
If an Order for equal shared parental responsibility were to be made, noting that the presumption does not dictate the Order that is to be made as to the allocation of parental responsibility but assuming that it might then support such an Order, section 65DAC of the Family Law Act (supra) would require that these parents consult with each other and make genuine effort to arrive at mutual decisions as to major issues. That is unattainable in light of the evidence.
There is a family violence Order which has bound, or possibly still binds, the Mother to not even contact the child, let alone the Father. And in those circumstances, reasonable practicality, as discussed in sections 65DAA(5) and 60CC(3)(e) of the Family Law Act 1975 (supra), would render such an order nonsensical.
Primary considerations
That aside, I propose to consider all arrangements at large by turning to section 60CC of the Family Law Act. I must commence with the primary considerations in subsection (2), being the benefit to young X of a meaningful relationship with both parents as well as the need to protect X from abuse, neglect or family violence - the latter prioritised over the former by subsection (2A).
In this case, the need to protect X from neglect, if nothing else, must be prioritised over any consideration of relationship. Absent Ms Worley’s participation and accepting Mr Mora’s evidence, and, for that matter, the family consultant’s evidence, as more probably correct than not, a positive assessment could not be made that X would be safe in practicing unsupervised time with his mother.
Lest I am wrong in that regard, I am conscious that any consideration of a meaningful relationship is problematic absent Ms Worley’s participation.
While, certainly, X loves his Mother - indeed, one could go so far as to suggest that he worries about her and craves for her attention, to know that she is safe and that she still loves him - there is difficulty in describing the relationship as meaningful. X’s parenting by Ms Worley has been neglectful. That would not be a basis to support a finding that the relationship is meaningful. It is a relationship that would, on that basis, and particularly as expressed by X to the family report writer, as discussed above, involves some degree of anxiety on the part of X regarding that relationship.
In any event, as the relationship cannot be assessed, its practice cannot be considered as safe. It would obviate against any Orders, save those which are sought.
Views
Additional considerations commence with X’s views. Young X’s views are clearly stated to the family report writer. He wishes to stay where he is living with his father. He does not express any significant or clear view as to the relationship he desires to practice with his Mother, but that need not trouble me at this point. It could not be assessed as safe for him, in any event.
Clearly, X’s views support his ongoing placement in the Father’s care. He feels safe and well provided for in that arrangement, perhaps for the first time in some little time.
The weight to be attached to those views must be considered by reference to authorities such as Harrison v Woollard (1995) FLC 92-598 and R and R: Children’s Wishes. This child’s lived experience of his Mother has been neglectful and disadvantageous. His lived experience informs the views that he now expresses in naïve and somewhat innocent terms. He likes living with his Father because he feels safe. No child should be put in a position of having to determine, in his own mind, that an arrangement is preferable because it is safe. That is the position X has been put in. It suggests that the weight that should be afforded to those views is substantial.
In any event, as already observed, Ms Worley concedes the issue. She consents to an Order that X live with the father.
Nature of the child’s relationship with each parent and any other person
The relationship between X and his Mother, as already observed, cannot be assessed. X has a close and meaningful relationship with his Father. At this point, noting the Full Court’s decision in Burton & Churchin & Anor [2013] FamCAFC 180 confining a consideration of the primary considerations in subsection 60CC(2)(a) to the parents only, I can now have regard to other relationships.
X has an excellent relationship with his Father and with Mr Mora’s partner. He has excellent relationships with a number of persons whose relationships are facilitated through the Father. Accordingly, those relationships provide extra support, care and vigilance for this child, as well as emotional stability and nurture. They all lend support to Mr Mora’s application.
The Mother’s position is less clear. She would not appear to have any significant supports, or any persons of significance from the perspective of X, which would be impacted by the absence of Orders made in favour of Ms Worley.
The extent to which each parent has taken, or failed to take the opportunity to participate in decision making, spend time with, or communicate with the child
This does not assist to any great extent, save to observe that Ms Worley has failed to participate in these proceedings, a significant aspect of decision making. She has, thus, left the Court to determine the matter in her absence and the best that can be done is to make the Orders sought by Mr Mora and supported by the Independent Children’s Lawyer.
The extent to which each parent has fulfilled, or failed to fulfil the obligation to maintain the child
This is far from dispositive, but Ms Worley does not provide assistance.
The likely effect of change, including separation from either parent, or any other child or person with whom the child is living
This must be conceded on the basis of the relief Ms Worley proposes as disadvantageous. This young lad is well-settled and well-provided for, his needs are met – well-met and better met than they had been met at any point in his past. Thus, the effect of change is somewhat disadvantageous at least, if not potentially disastrous.
What was going through Ms Worley’s mind, save her own distress, grief and trauma, in the actions that she took in not only removing the child from his school, but prejudicing his well-being, possibly to the point of his life, in secreting him within a cold and secluded forest, is unclear. What it suggests, however, is a significant issue with respect to insight and attitude.
Practical difficulty and expensive.
I incorporate herein section 65DAA(5).
(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.
The parents do not live any significant distance apart from each other, however, their capacity to implement an arrangement for time, let alone equal or substantial and significant time, verges upon the non-existent. It certainly could not be further considered without Ms Worley’s participation. Their capacity to communicate and resolve difficulties is non-existent and there is no basis upon which to offer a positive prognosis. The impact of the arrangement on the child, on the evidence presently available – that of Mr Mora and the other witnesses and family report writer – and accepting that evidence on its face as more probably correct than not, is significantly disadvantageous to X, were the arrangement to change.
Capacity of each of the parents
There is no real issue raised with respect to Mr Mora’s capacity. Mr Mora is clear, frank and candid in portions of his evidence, including the concession of an assault by him upon his partner. A context is given to that. It is a context that is given, rather than a self-victimising explanation or a suggestion that he was not culpable. He is clear and frank. Beyond that, there are no criticisms raised of Mr Mora’s parenting and, indeed, he is meeting this child’s needs in difficult and stressful circumstances. That is in contradistinction to the criticisms raised in the evidence of Ms Worley’s past parenting of the child.
Maturity, sex, lifestyle and background of the child
This has real relevance in this case. This is a little boy who has just turned eight and who has experienced significant disadvantage since the separation of his parents and whilst in the care of Ms Worley. That is now addressed and it should not be interfered with. He needs all of the stability, support and assistance he can receive to overcome past disadvantage, let alone to meet his full potential.
Aboriginality
Neither parent would appear to identify as Aboriginal or Torres Strait Islander, nor does X.
Attitude of the parents
This is addressed by the above evidence and, as already alluded to, favours Mr Mora’s position. His attitude is positive. There are many parents who continuously return to Court, intent to pursue litigation until the other parent buckles and yields. That is not the case here.
Mr Mora has appropriately commenced three tranches of litigation as he has had ongoing concerns which are not addressed by Ms Worley and which are entirely valid, as the evidence has played out.
The attitude of Ms Worley is deficient. She has demonstrated a lack of insight into the child’s needs, a lack of ability to prioritise the child’s needs and interests above her own.
I do not criticise Ms Worley for the sake of the exercise. There may well be evidence which gives a context to her trauma, such as to predispose her to the very behaviours which disadvantage X - drug use, an underlying mental health condition, and her propensity to expose herself, and thus the child, to family violence. Again, she is not criticised for being the victim of another’s actions. It may well be that her involvement in the drug culture has led her to live in circles whereby that is almost inevitable, and regrettably so. However, the deficiency in attitude applies to Ms Worley, not Mr Mora. The disadvantage that flows to X arises from those deficiencies.
Family violence
This is addressed above and I do not repeat that which is already discussed.
Family violence orders
The family violence Order made for X’s protection – not Mr Mora’s – is extensive. I need not go behind it.
I have an obligation, pursuant to section 68P of the Family Law Act 1975 (Cth), to not make orders that are inconsistent with family violence orders made by State and Territory Courts. I have the greatest respect for that which is undertaken by my colleagues in those Courts. The family violence order that was made by the learned Magistrate will very shortly expire, in less than a week. However, the Order is extensive and, I accept, must have been made by reference to the evidence then available and the Orders made as necessary for this child’s protection. It precludes communication between the mother and the child, thus the Orders that are proposed are entirely consistent.
Whether it is preferable to make orders that will avoid future proceedings
There is little that can be done in that regard.
Conclusion
There are two specific aspects of the relief sought which must be addressed.
Firstly, the change of name. Whilst the evidence lead by Mr Mora is frugal, I am satisfied it is sufficient. The Order that is sought is protective of X. His name and photograph are in the public domain. It will enable some degree of anonymity, as is suggested by Mr Mora. It is a name that has a connection for Mr Mora and thus for X. It is a change of name that I am satisfied is in the child’s best interests. In any event, on the basis that I am satisfied that the above evidence fundamentally supports an Order for sole parental responsibility in favour of Mr Mora, it would be his decision, in any event. All the Court is really doing is giving its imprimatur, to some extent. As is submitted by counsel for Mr Mora, the Order is unnecessary, but to the extent that it is sought, I am satisfied it is appropriate and in the in child’s best interests.
Secondly, an Order is also sought by the Independent Children’s Lawyer, for Ms Worley to reimburse to the Commission the sum of $700 expended towards the cost of hair follicle testing. In light of the evidence that the efficacy of the testing has been rendered nil by Ms Worley’s actions, it is somewhat disingenuous of her to have sought that contribution, or to have advanced so readily her consent to participate in such testing with the full knowledge that she was engaged in actions that would be mischievous. For those reasons, I am satisfied that an Order for reimbursement of that expense – it being strictly not an Order for cost, but an expense, but still bound by section 117 of the Family Law Act (supra) – is appropriate.
There is a justifying circumstance. The money is, in effect, wasted, as the testing could never have been effectatious. I am satisfied it is just that the public purse be reimbursed by Ms Worley for that expense. It is possible that Ms Worley is legally aided and thus it might be a matter of simple internal accounting by the relevant commission. It may be that the funding, if provided pursuant to the section 102NA declaration, is not means tested and thus costs can be pursued from Ms Worley. Irrespective, the Order is, I am satisfied, justified and just.
I am satisfied by reference to subsection (2)(a), that whilst little is known of Ms Worley’s financial circumstances, they would be of less relevance than the conduct that is suggested to give rise to the basis for justification and justice - direct and active suggested interference – or, at least, mischief – in proper administration of the Order made.
For those reasons, accordingly, Orders are made as follows.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 20 November 2020
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