Mullens and Mullens and Ors

[2013] FamCA 1110

FAMILY COURT OF AUSTRALIA

MULLENS & MULLENS AND ORS [2013] FamCA 1110

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – Cultural considerations – Abuse and family violence - Where child one, two and three have biological mother in common – Where child one and two have biological father in common – Where children are of aboriginal ancestry - Where child one and two ordered to live with father and paternal grandmother and time spent with mother to be as agreed between the parties – Where father ordered sole parental responsibility – Where mother failed to appear and put forward a proposal in relation to time with the children – Where abuse and family violence allegations on both parents part – Where abuse at least minimised by order to live with the father and paternal grandmother – Where mother demonstrates poor attitude to parenting – Where child three ordered to live with maternal great aunt and to spend time with father and mother as agreed – Where such arrangement has been in place for 2 years and there is no present contradictor to its continuance – Where there is no abuse or family violence indicated with the maternal great aunt – Maternal great aunt ordered sole parental responsibility.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms A Mullens

1^st RESPONDENT:

2^nd RESPONDENT:

3^rd RESPONDENT:

4^th RESPONDENT:

Ms B Mullens,

Mr C,

Ms D Mullins

Mr E

INDEPENDENT CHILDREN’S LAWYER: Ms S. Gray

FILE NUMBER: CSC 316 of 2012

DATE DELIVERED: 11 November 2013

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 11 November 2013

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE 2^ND RESPONDENT Mr. Hibble

SOLICITOR FOR THE 2^ND RESPONDENT: Stevenson & McNamara Lawyers

THE 3^RD  RESPONDENT:

THE INDEPENDENT CHILDREN’S LAWYER

In person

Ms. S. Gray

Orders

1. All previous Parenting Orders are discharged.

Living arrangements and parental responsibility

1. The childrenF born … 2008 and G born … 2009 (“the children”) live with the father Mr C and paternal grandmother, Ms H.

1. The father have sole responsibility for the major long term issues for the children including but not limited to:-

(a)their education (both current and future);

(b)their religious and cultural upbringing;

(c)their health;

(d)their names;

(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.

1. The father is to advise the mother in writing at least 21 days prior to making any long term decision in relation to the children and is to provide the mother the opportunity to consider the decision and provide any response in writing.  The final decision will be that of the father.

Time with the children

1. The children will spend time with the Applicant maternal grandmother and First Respondent mother as may be agreed between the relevant parties from time to time.

Communication

1. The maternal grandmother and mother will communicate with the children at all reasonable times as may be agreed between the relevant parties from time to time.

Information in relation to the children

1. These orders are authority for the children’s school and treating medical practitioner to communicate directly with the maternal grandmother and the mother on any matters concerning the children and to provide copies of any reports or other information available pertaining to the children that would ordinarily be available to parents.

1. The mother and maternal grandmother are permitted to attend any school activity to which parents are usually invited and permitted to attend pursuant to the school rules and regulations.

1. The father Mr C will:

(a)within three (3) months of the date of these orders attend upon a counsellor through ATODS or an appropriate drug and alcohol service to address his issue of illegal drug use for a period of at least 12 months or longer as directed by ATODS or other service;

(b)within three (3) months of the date of these orders enrol and participate in the Parenting Orders Program provided by Relationships Australia;

(c)provide a copy of the Family Report to the agency or counsellor nominated in para.9(a).

J

Living arrangements and parental responsibility

1. The child J born … 2010 (“the child”) is to live with the Third Respondent maternal great Aunt Ms D Mullins and her partner Mr K.

1. The maternal great Aunt have sole parental responsibility for the major long term issues for the child including but not limited to:

(a)her education (both current and future);

(b)her religious and cultural upbringing;

(c)her health;

(d)her name;

(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

1. Notwithstanding the provisions of Orders 11:

(a)the mother will be responsible for the day to day care, welfare and development of the child when she is living with her; and

(b)the father Mr E will be responsible for the day to day care, welfare and development of the child when she is living with him; and

(c)the maternal great Aunt will be responsible for the day to day care, welfare and development of the child when she is living with her.

Time with child

1. The child will spend time with the maternal grandmother, mother and father Mr  E as may be agreed between the relevant parties from time to time.

Communication

1. The maternal grandmother, mother and the father Mr E will communicate with the child at all reasonable times as may be agreed between the relevant parties from time to time.

Information in relation to the child

1. These orders are authority for the child’s school and treating medical practitioner to communicate directly with the maternal grandmother, mother or father Mr E on any matters concerning the children and to provide copies of any reports or other information available pertaining to the children that would be ordinarily available to parents.

1. The parties will not denigrate each other nor permit others to do so in the presence or hearing of the children.

1. The mother, father Mr E and maternal grandmother are permitted to attend any school activity to which parents are usually invited and permitted to attend pursuant to the school rules and regulations.

1. The parties will communicate by text and email on matters relevant to the children.

OTHER ORDERS:

1. The Independent Children’s Lawyer be forthwith discharged.

1. Otherwise all extant applications stand dismissed and the matter is removed from the list of active pending cases.

1. Pursuant to s.65DA and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

AND IT IS NOTED THAT:

A.The father Mr C, the paternal grandmother Ms H, the maternal great aunt Ms D Mullins and her partner Mr K, agree to promote the relationship between the children F, G and J ensuring regular contact and communication between all three children.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 316 of 2012

Ms A Mullens   (Applicant)

AND

Ms B Mullens   (Respondent)

AND

Mr C   (2^nd Respondent)

AND

Ms D Mullens   (3^rd Respondent)

AND

Mr E  (4^th Respondent)

AND

Independent Children's Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter was listed before me today for the commencement of a five day trial relating to three children:  F, G and J.  F is presently five years old; G is four years old; J is nearly three years old.  The matter has a very complex factual history which I will turn to in a moment, but at the outset I should say that although it was listed before me for a hearing today, there was no appearance by the applicant maternal grandmother, the first respondent mother or the fourth respondent, who is the father of J.  Those who appeared before me today were the father (who is the second respondent), Ms D Mullins, (who is the maternal aunt of the children), and Ms Gray, the Independent Children's Lawyer. 

2. There was no explanation as to why it is that three of the parties, including the moving party, did not appear.  However, whilst the matter proceeded on an undefended basis before me, it was ultimately a much more truncated hearing than would otherwise have potentially ensued because in fact all three parties who appeared before me consented to a regime of final orders.  Sensibly, albeit perhaps with a little reluctance on the part of the third respondent, the parties have also indicated that, given the unexplained non-appearance of three of the parties to these proceedings, the final orders which I propose to make in terms of those consented to by the parties, should not come into force for 30 days, to enable – if they should so desire – any or all of the three parties who did not appear this morning to seek to agitate the further hearing of the trial of this matter. 

3. I am conscious that that does not bring this matter to a conclusion today, but I am also conscious that there may be some good explanation as to why it is that one or all of those three parties did not appear today, and the service of these orders upon them will give them the opportunity, should they see fit, if there be some reason for their non-appearance today and if there be some reason as to why the trial should continue, to agitate for it to so do.

4. Of course, that creates some practical problems in a registry such as Cairns because the trial, if one were to ultimately ensue, would involve me choosing between different versions of fact, and nothing that I say in these reasons should be read or otherwise construed as me having foreclosed the opportunity for revisiting factual matters for my determination, in the event that a contested trial of this matter were ultimately to be required.  So the matters of fact which I am shortly to advert to should not be seen as being intended to represent a closed mind in relation to the prospect of other factual conclusions ensuing in the event that one of the three missing parties chooses to seek to re-agitate the trial. 

5. It appears as though these children’s backgrounds have been beset with issues of violence and complex movements between their parents and family members.  It is convenient, if I deal with the three children in two groups.  I will deal firstly with the regime of orders that I propose to make in relation to F and G, and then turn to the orders in relation to J. 

6. It is trite to observe that the Court’s obligations are to determine what is in the children’s best interests. It does so by reference to the factors enumerated in section 60CC. I therefore propose to address those matters, insofar as they appear relevant, in determining where the child’s best interests or the children’s best interests lie.

7. The first primary consideration is the benefit of the children having a meaningful relationship with both of their parents.  The proposed orders see the children living with their father and paternal grandmother, and spending such time with the mother and her family as may be agreed from time to time.  Such a form of order may well be subject to legitimate criticism because, in effect, it puts the parties in control of the operation or the content of the orders, which might be otherwise seen as undesirable.  However, here there is no real opportunity for any other order as the mother did not appear before me to agitate for some other regime of time that she would spend with the children.

8. I am satisfied, however, that in the past the father has demonstrated a desire to foster a meaningful relationship between the children and the mother, and I am satisfied that although her conduct in the past has been – and may continue to be – problematic, nonetheless it would be of benefit for the children to have a meaningful relationship with her.  Plainly, it is of benefit to the children to have a meaningful relationship with their father, with whom they have been resident now for some time. 

9. I then turn to the second primary consideration, which looms large in this case, namely the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  It is plain from a consideration of the Family Report in this matter that the mother has in the past had great challenges in being able to properly provide for the children, and prevent the prospect of physical or psychological harm to them.  On occasions, she has realised this herself, or had other family members draw it to her attention, in consequence of which on occasion the children –including J, for that matter – have lived with her own mother and not with her.

10. In my view, whilst there are allegations made about the father that there is the prospect of there being some form of harm visited to the children when they are in his care, I am nonetheless satisfied that the orders do protect the children from any substantial risk of physical or psychological harm being visited upon them.  I am mindful that the father has in the past, and the recent past, ingested, it would seem, both marijuana and other drugs.  However, I do note that the orders require him to attend upon ATODs counselling, and it is to be hoped that that counselling will assist him in dealing with issues associated with drug ingestion.

11. I then turn to the additional considerations, which I will deal with in a shorthand form.  The children are too young to express any views.  The children do have established relationships with each of their parents and each of their grandmothers.  The mother has on occasions failed to take the opportunity to participate in making decisions, spending time with the children or communicating with the children.  The father, on the other hand, has always been anxious to do so.  There is no real evidence as to maintenance of the children.  Suffice it to say that the children appear to be maintained in good health when they are with the father.  There have in the past been concerns in relation to the mother’s ability to physically provide for the children.

12. These orders do not propose to effect any changes in the child’s present circumstances, and whilst it may be undesirable for F and G to see little of their mother, as appears to be the prospect, nonetheless, as I have indicated at the outset, given that the mother has not appeared before me today, there is really no other set of orders which can be made.  Sub-paragraph (e) does not appear to be relevant; on the other hand sub-paragraph (f) is invoked here in that there is real doubt as to the capacity of the mother to provide for the emotional, intellectual or indeed physical needs of the children.  To the extent that there has been any doubt in relation to the father’s capacity to do so, over the last while, when the children have been with him, there is nothing in the evidence to suggest that he is not presently demonstrating a good enough capacity to provide for them. 

13. Sub-paragraph (g) does not appear to be relevant; (h) is invoked here in that the children have Aboriginal ancestry and I am satisfied that the father will promote that; (i) is relevant here, however, it has been sufficiently addressed by the comments I have made thus far.  The mother has presented a poor attitude to the responsibilities of parenthood.  The father, on the other hand, has demonstrated a satisfactory attitude.

14. Sub-paragraph (j) is relevant here.  There has been extensive family violence involving the child or the children, or a member of the child’s family.  It is unnecessary to recite that history.  It is extensive and it spans on both the mother’s and the father’s side.  However, I am satisfied that the proposed orders – bearing in mind that they will have the children living with both the father and the paternal grandmother – will provide some reasonable basis for thinking that the children’s exposure to family violence will be nil or at least minimalised.  Sub-paragraph (l) is potentially relevant here in that the orders I am proposing to make do leave the door open for there to be a continuation of the trial.  However, I have explained already why it is that I think that is desirable, given that three parties have not appeared before me today.

15. Turning then to the question of parental responsibility, it is plain that there is no real prospect of there being joint parental responsibility between the mother and the father for F and G.  The mother does not seek this morning to appear before me to have an order that the children live with her.  The orders which I make will see the children live with the father and the paternal grandmother.  In those circumstances, the only sensible order is that the father have sole parental responsibility as contained in order 3. 

16. I then turn to the question of with whom the children should live. Here, there is only one proposal that is live on the table before me, given the absence of the applicant or the first respondent before me. In any event, I am satisfied that, weighing the section 60CC factors, it is in the children’s best interests on the material before me, and given that the matter has proceeded on an undefended basis, that the children live with the father.

17. That then leaves the balance of the orders which I propose to make.  I do not propose to address them in detail.  Suffice it to say that I am satisfied that the balance of those orders in relation to F and G are in the children’s best interests and will so order. 

18. I then turn to consider the child J.  Her position is a little different to that of F and G.  The orders which the parties who appear before me ask me to make, will see J live with her maternal great-aunt and her partner.  J’s background is equally complex in that she was surrendered, or the care of her was surrendered by the mother to her sister first, then to the maternal grandmother, and ultimately her care was transferred to the maternal great-aunt, the third respondent.  She and her partner have now been caring for her for something in excess of two years, and the evidence before me satisfies me that they have been doing so in an exemplary way.

19. There is, of course, on the parties who appear before me, no contradictor to that arrangement continuing and, indeed, inevitably, since the third respondent and her partner have had the care of J since she was eight months old until today, given that fact alone, I would very much require some persuasion as to why that regime should change.

20. The orders again contemplate that J will spend time with her parents as agreed between the third respondent and the parents from time to time.  It is important to note that the maternal great-aunt, has sought, in the time that J has been living with her and her partner, to maintain strong communication between J and her parents.  That has been more successful with the father than the mother, and I must record that to the extent it has been unsuccessful with the mother, that seems to lie squarely at her feet and could not be attributed to Ms D Mullins.

21. The role of the Court is, as I have already indicated, to make orders which it determines to be in the best interests of the children.  Turning to the primary considerations, whilst I am satisfied that J would benefit from having a meaningful relationship with both of her parents, I am of the view that the mother’s conduct has, unfortunately to a large extent, deprived J of the benefit of that relationship.  It is to be hoped in the future, as the mother matures, that she will recognise that she has much to offer J and will seek to actively involve herself in her life.

1. I am satisfied that J’s father has a desire to involve himself in J’s life but, as I read the material, the time which he has spent with her has been an hour or two on occasions.  I don’t believe he has ever had her in his care overnight and, moreover, there is again the fact that he has not appeared before me today.  So whilst I am satisfied that there would be a benefit to J in having a meaningful relationship with both of her parents, I have to say the prospect of that ensuing seems slight.

2. Again, with J sub-paragraph s.60CC(1)(b) looms large. There is clearly violence that is associated with the mother’s home. It appears as though J’s father is not of a violent character, however, that was not tested before me. Suffice to say that the need to protect J from the prospect of physical harm, whether from her uncle, Mr L, or from other visitors at the mother’s home or, indeed, from psychological harm from witnessing violence or violent behaviour, looms large.

3. On the other hand, I am satisfied, on the material before me, that Ms D Mullins and her home does not present any risk to the child of either physical or psychological harm. 

4. Turning then to the additional considerations, the views of J, who is only nearly three years old, are not relevant, and not before me in any event.  The nature of the relationship between her and her parents does appear to be one in which she recognises them both, and she does appear to have some feelings towards them.  However, I am satisfied that her relationship with the third respondent and her partner is of greater significance to her, or at least of greater importance to her, because they provide her with stability, nurture and love.

5. As to s.60CC(3)(c), it is plain that the mother and father of J have not taken much opportunity to participate in making decisions about her, to spend time with her, or to communicate with her. That is to be regretted but it is to be applauded that she has other relatives who are prepared to fill the void which their lack of interest has created.

6. As to sub-paragraph (ca), it appears as though there has been no attempt by either of J’s parents to provide maintenance for her since at least the age of eight months old.  That role has fallen to her maternal great-aunt and her partner. 

7. As to sub-paragraph (d), the orders which are proposed would not see any change in the child’s circumstances and, whilst there may well be, in consequence of them, separation from both of the child’s parents and the maternal grandmother, that is a separation which has largely occurred since she was eight months of age.

8. Sub-paragraph (e) is not relevant.  Sub-paragraph (f) is invoked here because the capacity of the mother to provide for J seems small, and the evidence of the father’s capacity to provide for her is relatively non-existent.  Sub-paragraph (g) is not relevant.  Sub-paragraph (h) is relevant here, however, I am satisfied that the third respondent and her partner will facilitate the child in enjoying all aspects of her cultural heritage. 

9. Sub-paragraph (i) is relevant here.  To the extent that I have not already addressed it, it is plain that the mother’s attitude to parenting could do with great improvement.  Whilst it is hoped that will improve in the future, the evidence before me would not allow me to hold anything other than a fond hope; certainly there is no room for a realistic hope. 

10. Sub-paragraph (j) is relevant here in that there is a history of family violence in the mother’s home and in the maternal grandmother’s home.  There is no evidence of family violence involving her father.  Refreshingly, there is not even the slightest suggestion of any family violence associated with the third respondent’s home.  As to sub-paragraph (l) I adopt what I’ve previously said in relation to the children, F and G, in that regard.  

11. I then turn to considering what orders should be made for parental responsibility.  There is no real prospect, on the evidence before me, that a court could responsibly make any order other than that J continue to reside with the third respondent and her partner.  It appears as though, whilst on occasions the mother and her maternal aunt have been able to communicate, in recent times there has been little, if any communication.  I do not put that down in any sense as being the fault of the third respondent.

12. The only realistic option open to the Court, therefore, is that the child must live with her present carers, the third respondent and her partner.  In those circumstances, I conclude that it is in the best interests of J for parental responsibility to rest with her maternal great-aunt. 

13. I then turn to the question of with whom the child, J, should live.  As I’ve already indicated, I am firmly of the view that the best outcome for her in these proceedings, on the basis of the material before me, and conceding that there was not a contested trial, is for the maternal great-aunt and her partner to be the people with whom J lives.  They represent a real opportunity for a normal childhood for J.  The third respondent and her partner do not have any children of their own but have, over the course of their 18 or so years together, responsibly looked after a number of children from time to time as need has arisen.  The Court expresses its great gratitude that there are such people in the community. 

14. As to the balance of the orders in relation to J, I am satisfied that they also are in her best interests. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 November 2013.

Associate: 

Date:  11 November 2013