Munroe and Watson and Ors
[2014] FamCA 112
•7 March 2014
FAMILY COURT OF AUSTRALIA
| MUNROE & WATSON AND ORS | [2014] FamCA 112 |
FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of the trial by the mother – Consideration of the history of the litigation – Best interests of the children in respect of any further delay – Application dismissed | ||
| Children & Young Persons (Care and Protection) Act 1988 (NSW) Crimes Act 1900 (NSW) s 93X Crimes (Serious Sex Offenders) Act 2006 (NSW) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Family Law Rules 2004 (Cth) r 11.02 | ||
| Department of Family and Community Services NSW & Munroe and Ors [2013] FamCA 981 Farmer and Rogers [2010] FamCAFC 253 Goode and Goode (2006) FLC 93-286 Jarrah & Fadel [2014] FamCAFC 14 M v M [1988] HCA 68 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 MRR v GRR (2010) 240 CLR 461 |
| APPLICANT: | Mr Munroe |
| 1st RESPONDENT: | Ms A Watson |
| 2nd RESPONDENT: | Mr Mullow |
| 3rd RESPONDENT: | Ms V Watson |
| 4th RESPONDENT: | Mr Watson |
| INTERVENER: | Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Marsdens Law Group |
| FILE NUMBER: | PAC | 4413 | of | 2011 |
| DATE DELIVERED: | 7 March 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 24 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Leis |
| SOLICITOR FOR THE APPLICANT: | Forshaw Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr Moore |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor's Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Sloane |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Marsdens Law Group |
Orders
Parental Responsibility
That the Applicant father Mr Munroe (“the Applicant father”) have sole parental responsibility for the child D, born … December 2007, (“D”).
That the Minister for Family and Community Services have sole parental responsibility for the children B, born … September 2012, (“B”) and C, born … September 2013, (“C”) for a period of twelve (12) months from the date of these Orders.
That at the expiration of the period of twelve (12) months from the date of these Orders, the maternal grandparents, Mr Watson and Ms V Watson, (“the maternal grandparents”) have sole parental responsibility for the children B and C.
Live With
That D live with the Applicant father.
That B and C live with the maternal grandparents.
Spend Time With
That the child D spend time with the First Respondent mother, Ms A Watson, (“the mother”) on a minimum of six (6) occasions each year supervised by an agency nominated by or delegate of the Director-General of the Department of Family and Community Services or his nominee until the child attains 12 years of age, and thereafter, until he attains the age of 18 years supervised by a person approved by the Applicant father, Mr Munroe, provided always that such time shall not be in the presence of the Second Respondent, Mr Mullow, (“the Second Respondent father”).
That the mother be permitted to attend on occasions significant to the welfare of the child D being occasions relating to his education, extra-curricular activities, religious education, health or other occasion significant to his welfare where the attendance of either or both parents is to be reasonably expected provided always that on such occasions the Applicant father or his nominee is in attendance and the mother is not accompanied by the Second Respondent father.
That the children B and C spend time with the mother and the Second Respondent father supervised by an agency nominated by or delegate of the Director-General of the Department of Family and Community Services or his nominee on a minimum of six (6) occasions each year.
That the mother be responsible for any reasonable costs associated with her spending supervised time with B and C.
That the Second Respondent father be responsible for any reasonable costs associated with him spending supervised time with B and C.
That the Applicant father and the maternal grandparents use their best endeavours to facilitate the children D, B and C spending time together as agreed between the Applicant father and the maternal grandparents on a minimum of twelve (12) occasions each year.
Injunctions
That the parties are each restrained from making critical or derogatory remarks about the other parties and members of their household in the presence or within the hearing of D, B and C and that the parties shall ensure that no other person makes critical or derogatory remarks about the other parties and members of their household in the presence or within the hearing of D, B and C.
That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the mother, Ms A Watson, and the Second Respondent father, Mr Mullow, are restrained from attending at, entering upon, approaching or remaining on the residence or place of employment of the Applicant father, Mr Munroe, and the maternal grandparents, Mr Watson and Ms V Watson, except strictly in accordance with the Orders made herein and that this Order is made for the personal protection of the Applicant father and the maternal grandparents and is an order to which the power of arrest without warrant attaches pursuant to section 68C of the Act.
That pursuant to section 68B of the Act the mother, Ms A Watson, and the Second Respondent father, Mr Mullow, are restrained from approaching, contacting, communicating with or being in the presence of and from attending at, entering upon, approaching or remaining on the residence or place of education or care of the children D, B and C, except strictly in accordance with the Orders made herein and that this Order is made for the personal protection of the said children and is an order to which the power of arrest without warrant attaches pursuant to section 68C of the Act.
Procedural
All outstanding applications and cross-applications be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Munroe & Watson 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 PARRAMATTA |
FILE NUMBER: PAC 4413 of 2011
| Mr Munroe |
Applicant
And
| Ms A Watson And Mr Mullow And Ms V Watson And Mr Watson |
And
Department of Family and Community Services
Intervener
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The Proceedings
These parenting proceedings were commenced prior to 7 June 2012.
They are parenting proceedings in relation to the children D, B and C. All three children have been removed from the mother’s care by the Department of Family and Community Services.
The issue for determination is the future parenting arrangements for the three children.
The Applicant father is the father of the eldest child, D, born in December 2007.
The First Respondent mother is the mother of all three children: D; B born in September 2012; and C born in September 2013.
The Second Respondent father is the father of the two younger children, B and C. The Second Respondent father has a child from another relationship, O, born in February 2004. That child lives with her mother and has no contact with the Second Respondent father.
The Third and Fourth Respondents are the maternal grandparents of the three children.
The Intervener is the Department of Family and Community Services (NSW) (“the Department”)
Orders sought
The Applicant father at trial sought orders in relation to the child D that, in summary, provided:
a)that the child to live with the father;
b)that the father have sole parental responsibility for the child;
c)that the child spend time with the mother each alternate Saturday from 10.00 am to 5.00 pm, Boxing Day from 10.00 am to 5.00 pm and on the child’s birthday as agreed and failing agreement from 4.00 pm to 6.00 pm;
d)that the mother be restrained by injunction from bringing the child into any contact with the Second Respondent father and associates of the Second Respondent father, whether that contact be face-to-face, telephone, mail, email, electronic, social media or any other contact;
e)that for the purposes of changeovers the Applicant father deliver the child to the mother outside the Commonwealth Bank in Suburb E Mall and the mother return the child to the father to the same place at the conclusion of her time with the child; and
f)that neither party denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the child.
The mother filed a response in the proceedings on the on 30 September 2011 and that response was amended on 17 May 2012.
In her Amended Response the mother sought orders in relation to the child D that, in summary, relevantly are as follows:
a)that the child live with the mother;
b)that the mother have sole parental responsibility for the child; and
c)that the child spend time with the Applicant father on alternate weekends and one overnight in the other week, and at times on the child’s birthday, at Christmas and on Father’s Day.
On 10 September 2012 the Department filed an application seeking orders in relation to the child B, born in September 2012. The Department, in summary, sought orders that provided:
a)that the Minister for Family and Community Services to have sole parental responsibility for the child;
b)that the child live with such person or persons as directed by the Department;
c)that the child spend time with the mother at such times and on such conditions as directed by the Department;
d)that the child spend time with the Second Respondent father at such times and on such conditions as directed by the Department; and
e)that the child spend time with her sibling D at such times and on such conditions as directed by the Department.
The Department sought that its application be consolidated with the proceedings commenced by the Applicant father in relation to the child D, and the proceedings were consolidated in November 2012.
On 5 December 2012 the mother filed a response to the application filed by the Department. In that response the mother sought orders that, in summary, provided:
a)that the children D and B to live with the mother;
b)that the mother have sole parental responsibility for the said children; and
c)that the child D spend defined time with the Applicant father.
On 25 September 2013 the Department filed an Application in a Case seeking orders in relation to the child C, born in September 2013. The Department sought orders, in summary, as follows:
a)that the application be listed on an urgent basis;
b)that pending further order sole parental responsibility for the child be allocated to the Minister for Family and Community Services;
c)that an Independent Children’s Lawyer be appointed to represent the child;
d)that the children B and C spend time with the mother and the Second Respondent father, supervised by the Department, on a minimum of one occasion each week; and
e)that the mother and the Second Respondent father must confirm by email their attendance at weekly scheduled contact visits at least 24 hours prior to each visit or the supervised visit will be cancelled by the Department.
Further background to the proceedings is relevantly set out below under the Reasons provided in respect of the mother’s adjournment application.
The Respondent Mother’s Application for Adjournment
At the commencement of the hearing on 24 February 2014 the mother and Second Respondent father made a joint application for an adjournment of the hearing.
The mother submitted that she had instructed a lawyer and revealed, after some enquiry, that that lawyer was a barrister named Ann Gibbons, whom it appears the mother and Second Respondent father had contacted in relation to the matter.
The mother and Second Respondent father had not conferred with the barrister and, indeed, had never met her. The mother submitted that Ms Gibbons was unavailable to attend the hearing as she was engaged in a nine-day trial elsewhere. No arrangements, it appears, had been made by Ms Gibbons for the mother and the Second Respondent father to be represented before the Court in relation to their adjournment application.
Neither the mother nor the Second Respondent father were in receipt of a grant of legal aid or had any application for a grant of aid pending or subject to any appeal.
The mother contended that this was a complex case and that she and the Second Respondent father had had insufficient time to prepare the matter for trial.
After consideration of submissions the applications for adjournment were refused with reasons to be published concurrently with final reasons for Judgment. The Court’s reasons for refusing the adjournment application are set out below, followed by reasons in respect of the parenting matters. It is of some utility to consider the history of the proceedings.
History of the proceedings
Federal Magistrates Court:
The proceedings were initially commenced in September 2011 by the Applicant father in respect of the child D.
On 15 November 2011 proceedings were listed before Dunkley FM, as he then was, in the Federal Magistrates Court. Orders were made by consent pending interim hearing that provided for:
a)the child D to live with the mother;
b)the child to spend defined times with the father;
c)the parties be restrained from removing the child from the Commonwealth of Australia;
d)that an Independent Children’s Lawyer be appointed to represent the child; and
e)that proceedings were stood over for interim hearing.
On 23 March 2012 the matter was further adjourned for interim hearing to 2 April 2012. Inter-alia the mother was ordered to file and serve her affidavit evidence by 30 March 2012 as to what if any alternate accommodation was available to her to ensure that Mr Mullow (the present Second Respondent father) is not a resident of any accommodation that she occupies with such information to include the availability of Department of Housing, refuge accommodation or other urgent temporary accommodation.
The Court noted:
a)that the mother had instructed her solicitors to advise that she and the Second Respondent father were not in a romantic relationship and that she is pregnant with a child of a Mr I with an estimated delivery date of … September 2012; and
b)that the order as to the mother filing her affidavit was made on the basis of Mr Mullow’s attendance at Court that day and his unwillingness to provide information as to his birthdate so as to enable the Independent Children’s Lawyer and solicitor for the father to subpoena relevant material from the New South Wales Police Service, the Department of probation and parole and other relevant government organisations arising from concerns raised in material produced to date on subpoena.
On 2 April 2012 proceedings were further adjourned to 10 May 2012. The Court made directions as to the filing of further material to be relied upon by the father and mother. The Court ordered that the mother be restrained from allowing the child D from coming into the presence of Mr Mullow at any time and the Court noted the mother’s undertaking given to the court that day to a similar effect.
The Court ordered the preparation of a family report and proceedings were adjourned to 14 December 2012 for further directions, consequent upon release of the family report.
On 11 July 2012 proceedings were again before Dunkley FM, as he then was. On oral application to the Court, the Department was granted leave to intervene. The Court ordered:
a)that from 4.00 pm on 24 July 2012 until 4.00 pm on the first date the proceedings are listed before the Magellan Judge the child D live with the father;
b)that the child spend time with the mother as the parties and the Department agree in writing; and
c)that proceedings be transferred to the Family Court, Parramatta to be heard as part of the Magellan list.
Family Court
On 11 July 2012 the proceedings were listed before the Magellan Registrar at Parramatta and were adjourned to 27 August 2012 for possible interim hearing before a duty judge. The Registrar made directions for the preparation of a Magellan Report and for the filing and serving of any further material to be relied upon by the father, the mother and the Department.
On 15 August 2012 the Magellan Report was released. The report revealed that the child D had been assessed by the Department in June 2012 as being at risk of sexual harm. On 4 July 2012 the child was removed from the mother’s care under the provisions of the Children & Young Persons (Care and Protection) Act 1988 (NSW) and on … July 2012 a temporary protection Order was made in relation to the child at the Children’s Court. On 11 July 2012 the Department was granted leave to intervene in these proceedings.
On 27 August 2012 the proceedings were further adjourned to 15 October 2012 for possible interim hearing.
On 12 September 2012 the application filed by the Department following the birth of the child B was listed on short notice before Collier J. The Court made interim Orders for the Minister of the Department to have sole parental responsibility for the child B, for the child to live with such persons as directed by the Director-General of the Department and for the child to spend time with the mother on three occasions each week and at such times with the Second Respondent father as can be arranged, between the Department and the child’s parents.
The proceedings were then adjourned to 9 October 2012 before the Magellan Registrar.
On 9 October 2012 the proceedings in respect of the child B were allocated into the Magellan protocol and an Independent Children’s Lawyer was appointed to represent the child.
The mother and Second Respondent father were ordered to file a response and evidence upon which they sought to rely in relation to any interim application within 21 days and the proceedings were adjourned to 5 November 2012 for directions and possible transfer to a judge for interim hearing.
No documents were filed by the Second Respondent father pursuant to these directions. The mother filed an Amended Response and affidavit on 5 December 2012.
On 5 November 2012 proceedings were listed before a Registrar. By consent Orders that were made on 11 July 2012 by the Dunkley FM, as he then was, were continued until 4.00 pm on 10 December 2012 and the two sets of proceedings as commenced by the Applicant father in respect of the child D and by the Department in respect of the child B were consolidated.
On 10 December 2012 the proceedings were further adjourned to 18 February 2013 for possible interim hearing.
On 18 February 2013 the proceedings were adjourned pending allocation of interim hearing dates and the Court ordered:
a)that the mother and the Second Respondent file and serve any evidence intended to be relied on before any interim hearing date is allocated; and
b)that the Orders made by Dunkley FM, as he then was, on 11 July 2012 in relation to the child D be continued pending further order.
No documents were filed by the mother or the Second Respondent father pursuant to these directions.
On 19 March 2013 the matter was again listed for directions before a Registrar and was adjourned to 13 May 2013 for interim hearing and directions in relation to a single expert report. The mother and the Second Respondent father were ordered to file a Response, Application in a Case and any relevant affidavit evidence within 30 days.
No documents were filed by the mother or the Second Respondent father pursuant to these directions.
On 13 May 2013 the matter was further adjourned and was again listed before the Austin J on 21 June 2013. On that day Dr L was appointed as single expert by consent for the purposes of preparing a report. The Court further ordered:
a)that the proceedings be declassified from the Magellan Protocol;
b)that all applications for interim orders be dismissed; and
c)that the matter be remitted back to the docket Registrar.
On 21 June 2013 Dr L was appointed as the single expert to provide a report for the Court’s assistance regarding the welfare of the children D and B.
On 27 September 2013 the proceedings were once again before the Court as a consequence of the Application in a Case filed by the Department in relation to the child C, born in September 2013. The Court ordered, relevantly:
a)that an Independent Children’s Lawyer be appointed to represent the child C;
b)that the appointment of Dr L as single expert be discharged and that Dr G be appointed as single expert witness for the purposes of preparing a report in relation to the three subject children;
c)that pending further order sole parental responsibility for the child C be allocated to the Minister for Family and Community Services;
d)that previous Orders in relation to the child B spending time with the mother be discharged;
e)that the children B and C spend time with the mother and the Second Respondent father supervised by the Department on a minimum of one occasion each week provided that the mother and Second Respondent father confirm by email their attendance at weekly scheduled contact visits at least 24 hours prior to each visit or the supervised visit will be cancelled by the Department;
f)that the proceedings be adjourned to 15 November 2013 for interim hearing; and
g)that the Respondent mother and Second Respondent father file a response to the Application in a Case filed by the Department, together with any affidavits to be relied upon by them, by 8 November 2013.
The proceedings were adjourned to 15 November 2013 for interim hearing and the mother and Second Respondent father were directed to file a response to the Application in a Case filed by the Department, together with any affidavits to be relied upon by them, by 8 November 2013.
The mother and the Second Respondent father did not file a response to the Application in a Case but both filed affidavits on 6 November 2013.
On 15 November 2013 the competing applications in relation to the child C were listed for interim hearing and judgment was reserved. Reasons for Judgment were delivered on 16 December 2013 (see Department of Family and Community Services NSW & Munroe and Ors [2013] FamCA 981).
The Orders made by the Court on 16 December 2013 provided:
a)that pending further order sole parental responsibility for the child C be allocated to the Minister for Family and Community Services;
b)that the child spend time with the mother and the (Second Respondent) father supervised by Departmental officers;
c)that the mother and (Second Respondent) father confirm by email their attendance at weekly schedule contact visits at least 24 hours prior to each visit or the supervised visit will be cancelled by the Department; and
d)that the proceedings be relisted for judicial case management hearing as soon as practicable after the release of the single expert report.
Prior to the interim hearing as to C and on 5 December 2013 the consolidated proceedings were listed before a Registrar in respect of the final hearing. All parties appeared by telephone and, relevantly, the following directions were made:
a)that the matter be listed for final Magellan hearing before a Judge for an estimated five days commencing 24 February 2014 at 10.00 am;
b)that the parties file and serve evidence upon which they seek to rely by 3 February 2014; and
c)that the parties file and serve an outline of case document not less than seven days before the commencement of the trial; and
d)the Court noted that the Chapter 15 Expert, Dr G, is required for cross examination and that his report is anticipated to be available for release in the week commencing 13 January 2014.
Subsequently the single expert report by Dr G dated 13 December 2013 was released to the parties and to the Independent Children’s Lawyer.
On 10 February 2014 the matter was listed before the Court for case management directions. There was no appearance by or on behalf of the mother or the Second Respondent father. The mother and Second Respondent father had failed to comply with trial directions in so far as filing and serving their affidavit material. The Court then ordered:
a)that trial dates commencing 24 February 2014 for a possible five days be confirmed;
b)that the mother and Second Respondent father file and serve one consolidated affidavit as to their evidence in chief to be relied upon and one affidavit from each witness to be relied upon by no later than the close of business on 19 February 2014; and
c)that in default of the mother and Second Respondent father complying with the previous Order, the hearing proceed on an undefended basis commencing on 24 February 2014.
The law & discussion
The application for adjournment should be considered in the light of the history and subject matter of the proceedings.
In Jarrah & Fadel [2014] FamCAFC 14, the Full Court of the Family Court of Australia refused to allow the husband a further adjournment of the final hearing. Ainslie-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11]:
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Their Honours Murphy and Aldridge JJ agreed with her Honour’s reasoning and that the application should be dismissed. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that given the history of the litigation it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
In the earlier decision of Farmer and Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke[1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential .... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
See also Reynolds v Reynolds (1973) 1 ALR 318 per Mason J at 322-325; M v M[1988] HCA 68; (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76; U v U[2002] HCA 36; (2002-03) 211 CLR 238 per Hayne J at 285 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 per Kirby J at 1332.
The Full Court then said:
201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities. (emphasis added)
202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
205. Section 69ZQ(1) of the Act provides that in giving effect to the principles in s 69ZN the Court must:
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f) if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g) deal with as many aspects of the matter as it can on a single occasion; and
(h) deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
206.In the revised explanatory memorandum at paragraph 362 it was said that s 69ZQ(1) of the Act:
lists a number of general duties that the court must carry out in giving effect to the principles in new section 69ZN. These will ensure that cases are actively managed in a way that encourages parents to focus on their child and on their ongoing relationship as parents and without undue delay or formality. They will also ensure the proceedings are not protracted, and should help to reduce the overall costs. (emphasis added)
…
210. In the revised explanatory memorandum at paragraph 402 it was said that s 69ZX(1) “supplements the duties in section 69ZQ which must be followed in giving effect to the principles and to ensure active management of children’s matters to minimise the effect of the proceedings on children and to promote a cooperative parenting relationship between parents”.
…
Rule 11.02 of the Family Law Rules 2004 (Cth) facilitates the Court hearing proceedings on an undefended basis in default of a party’s compliance with a procedural order.
Having regard to the background and circumstances of the proceedings as set out above and the serious protective concerns in relation to the subject children, the Court was concerned that the circumstances of the subject children needed to be determined with finality and as soon as practicable.
The applications for adjournment were accordingly refused.
Substantive Matters
The background circumstances in relation to the two younger children B and C, the children of the relationship between the mother and the Second Respondent father, are set out above.
Background: The Applicant Father’s Evidence
The Applicant father of the child D was born in New Zealand and is presently aged 28. The mother is presently aged 29.
The mother and Applicant father met in around 2006 and, a short time after meeting, the mother moved in with the Applicant father in the home of his mother and stepfather at Suburb Q.
In early 2007 the mother fell pregnant with the child D, who was born in December 2007.
The father, shortly prior to the birth of the child, suffered a leg injury and was placed on workers’ compensation. In October 2008 he had remedial surgery on his right knee.
Whilst recuperating from surgery the father met and became acquainted with the Second Respondent father. The mother later commenced a relationship with the Second Respondent father and on 4 September 2010 the mother and the Applicant father separated under the one roof. Later the mother proposed that she would move out and move in with the Second Respondent father.
Shortly thereafter and on 27 October 2010 the Applicant father was arrested and charged with two counts of sexual assault and one of domestic violence. The assault charges were later changed to common assault.
On hearing of the charges in June 2011 evidence was given by the mother and the Second Respondent father against the Applicant father and the charge against the Applicant father was dismissed.
The Applicant father had no contact with the child D between 27 October 2010 and 4 December 2010. However, thereafter by agreement with the mother, the Applicant father commenced to have time with the child D initially each Tuesday and each alternate Saturday. The relationship between the Applicant father and the mother then soured and the mother precluded the Applicant father from seeing the child from early April 2011 until interim Orders were made on 15 November 2011 as referred to above.
The Applicant father expresses concerns as to the mother’s mental health. During the period that they resided together the mother used a blade to cut the word “bitch” into her arm. On occasions that the Applicant father and mother argued, he says the mother would lock herself in her room and slap herself around her face and hit her head.
On 28 March 2011 the child claimed to the Applicant father about being struck. The father understood the child’s complaint to relate to the mother’s partner, the Second Respondent father. Subsequently on 2 April 2012 Orders were made restraining the mother from allowing the child to come into contact with the Second Respondent father.
Notwithstanding the restraint on the mother the Applicant father has had ongoing concerns that the mother continued to bring the child into contact with the Second Respondent father. The mother has previously denied a relationship with the Second Respondent father, denied that he was the father of their first child B and refused to provide details to the Court and the Independent Children’s Lawyer that would facilitate independent enquiry as to the background and circumstances of the Second Respondent father.
The child D came into the father’s care on 4 July 2012 after being removed by the Department from the mother’s care.
D attends Suburb R Public School where he is in Year One.
The father has re-partnered with Ms S. There are two children of their relationship:- T, born in August 2011, and U, born in January 2013. Ms S has another child, V, aged 10, from a previous relationship who lives in their household and spends time with his father on the weekends. She says that all of the children get on well together with V and D sharing a bedroom together.
The father resides in a three-bedroom privately rented home that provides comfortable accommodation for the members of his household.
The father has a good relationship with the Third and Fourth Respondents, D’s maternal grandparents and the parents of the mother.
The two younger children B and C have been placed with the Third and Fourth Respondents by the Department.
The child D attends at the Third and Fourth Respondents’ home as arranged between them and the child D spends time at that home with his siblings.
The Applicant father has family in New Zealand and subject to financial considerations would like the opportunity of travelling to New Zealand for a family holiday. At present there remains an Order preventing overseas travel in relation to the child D.
The Department’s Evidence
The Department holds concerns in relation to the subject three children. Those concerns are:
a)the criminal convictions and allegations against the Second Respondent father and the risk of sexual harm to the children;
b)the Second Respondent father’s mental health history as detailed above;
c)the ongoing association of the Second Respondent father and the mother with sexual offenders as detailed above;
d)the mother’s lack of insight into the risk of harm posed by the Second Respondent father;
e)the mother’s efforts to conceal her pregnancy with the child C and consequent failure to obtain antenatal care as detailed above; and
f)the mother and the Second Respondent father’s unwillingness to take direction from or cooperate with the Department.
In September 2010 the Joint Investigation Response Team (“JIRT”), comprising of employees of the New South Wales Police Service, the Department and New South Wales Health, conducted an investigation into an allegation that the Second Respondent father had exposed his biological daughter, O, to significant risk of sexual harm by associating with child sex offenders.
In September 2010 the Second Respondent father and his mother the paternal grandmother, Ms Mullow, attempted to visit an associate of the Second Respondent father who was in custody. The Second Respondent father and that associate had spent time together whilst incarcerated in a protected unit at W gaol. On the attempted visit the Second Respondent father had with him his daughter O. The associate of the Second Respondent father was a convicted child sex offender. Staff at the gaol refused to allow the visit to occur due to the Second Respondent father’s parole status at that time.
The outcome of the investigation was that the Second Respondent father and the paternal grandmother were recorded as persons associated with causing harm to the Second Respondent father’s daughter O.
The child D
Between 30 November 2010 and 3 July 2012 the Department received six risk of significant harm reports in relation to the child D. Those reports related to risks of sexual harm from the Second Respondent father and the mother’s lack of insight into the risk of sexual harm.
When interviewed on 26 June 2012 by the Department the mother when confronted with the Second Respondent father’s background informed the case workers that she wanted to help in clearing the Second Respondent father’s name. She informed the Department that she was at that time temporarily residing in the Second Respondent father’s mother’s home but acknowledged that she was registered on the lease at the Second Respondent father’s home and attended at that home regularly. The mother later conceded that since the initial Family Court Orders that the child D primarily reside with her, she had been residing with the Second Respondent father.
The mother defended the Second Respondent father’s history saying that he had been “stitched up” and that “he should have never been in prison”.
At the conclusion of the interview the Department identified risks to the child D as being exposure to the Second Respondent father and the Second Respondent father’s extensive criminal history posing a risk to the child’s safety.
The mother agreed to conditions of a signed Safety Plan that included:
a)complying with the Court’s Orders and not exposing the child D to the Second Respondent father;
b)that she and the child not reside with the Second Respondent father;
c)that she not visit the Second Respondent father with the child; and
d)that she continue ongoing work with the allocated Departmental caseworker.
Subsequently on 2 July 2012 the child D was interviewed at his preschool by a Child Protection caseworker. The child disclosed that he had ongoing contact with the Second Respondent father and had been hit by him. The mother was further interviewed the same day and reasserted that the Second Respondent father was “being stitched up” and informed the Department officer that she had no concerns in relation to the child and that she was complying with the Court Orders. The Departmental officer informed the mother during the interview that the Department would be unlikely to approve the Second Respondent father being present at the impending birth of the child as it was likely to be considered unsafe for the newborn to live with the Second Respondent father.
In a subsequent telephone call to the Department the mother informed the Department that her current partner (the Second Respondent father) is the father of her unborn child and she would not be ending her relationship with him, that he visits and stays in the home and is an ideal parent.
Subsequently Departmental officers spoke to the Second Respondent father at his residence and he confirmed his ongoing association with the mother.
On 4 July 2012 the mother agreed to a further condition of a Safety Plan for the child D in that she and the child would reside with the maternal grandmother, Ms V Watson, from 4 July 2012 until 6 July 2012.
As a consequence of ongoing concerns the Department on 4 July 2012 removed the child D from the mother’s care and that day placed the child in the care of the Applicant father. On 11 July 2012 an Emergency Care and Protection Order was made by the Children’s Court of New South Wales allocating parental responsibility for the child D to the Department for a period of 14 days. The child has remained in the Applicant father’s full time care thereafter.
On the same day the Department made an oral application to intervene in these proceedings, which were then in the Federal Magistrates Court.
On 16 August 2012 the Department received a placement assessment in relation to its proposal to place the child D with the Applicant father and his partner Ms S as authorised long-term carers for the child.
Subsequently the Department received two risk of significant harm reports, one in relation to the child D and the other in relation to harm to the child’s stepsiblings V and T. Both notifications were identical and complained of the use of physical discipline by the Applicant father in relation to the child V.
Following enquiries and various interviews the Department prepared a Safety Plan excluding the use of physical discipline in relation to the children in the Applicant father’s household. The Safety Plan was agreed to by the Applicant father and his partner. Thereafter the Department has had no concerns, save for contact with the Applicant father and his partner in relation to the child D’s attendance at speech therapy. Department officers attended at the Applicant father’s home for a home visit that was uneventful on the 6 January 2014.
The child B
On 26 June 2012 the mother informed the Department that the Second Respondent father was the father of her unborn child B, but then on 23 August 2012 the mother informed the Department that the Second Respondent father may not be the father of the child.
On 3 September 2012 the Second Respondent father informed the Department that he would be prepared to undertake a paternity test. Subsequent DNA testing confirmed that the Second Respondent father was indeed the father of the child B.
In respect of the Department’s concerns as to the risk of harm posed by the Second Respondent father to the unborn child, it related to the Second Respondent father having previously committed sexual offences, for which he was sentenced in August 2004 to a period of 6 and a half years imprisonment, and information arising from the Second Respondent father’s engagement with NSW Probation and Parole that revealed a complex history of mental health disorders and ongoing assessment by a number of medical experts prior to his conviction and during his imprisonment. Notwithstanding the Department communicating their concerns regarding the Second Respondent father to the mother, she informed the Department that she wished to continue her relationship with the Second Respondent father.
The child B was born in September 2012. Prior to the child’s birth the Department had received two risk of harm reports in relation to the child concerning the risk of sexual harm from the Second Respondent father and the mother’s lack of insight into the risk of sexual harm.
In September 2012 case workers from the Department attended at the hospital to assume care of the child under the provisions of an Emergency Care Order. The child was initially placed with a short-term carer.
Thereafter, following the application made by the Department to this Court an Order was made on 12 September 2012 allocating sole parental responsibility for the child B to the Minister.
On 14 December 2012 the child B commenced a medium-term care placement with an Anglicare authorised carer. Since 26 September 2013 the child C has been placed with the same authorised carer as B.
The child C
On 26 April 2013 a Departmental caseworker observed that the mother appeared bloated and may be pregnant.
Notes of the mother’s general practitioner, Dr P, dated 22 March 2013 state that one of the reasons for her attendance was pregnancy. The mother informed the doctor that a pregnancy test had been faintly positive two weeks before. The mother attended upon Dr P again on 10 April 2013 and he referred the mother for an ultrasound. On 23 April 2013 the ultrasound revealed that the mother was some 14 weeks pregnant.
Notwithstanding this information, the mother continued to assert to the Department that she was not pregnant, and endeavoured to hide her pregnancy from the Departmental officers when she was spoken to.
On 18 June 2013 a Departmental officer spoke to Dr P who confirmed the mother’s pregnancy. The doctor’s notes confirm that the mother attended no antenatal visits at his practice.
It is also clear from Dr P’s notes that on each occasion the mother has attended upon him since February 2012, she has been accompanied by the Second Respondent father.
On 27 June 2013 the Department received a risk of harm report in relation to the mother’s unborn child C. This report notified that the mother and the Second Respondent father had been associating with two convicted sex offenders who are on the Child Protection Register and reside in the Suburb E area. Both of the offenders had been in regular contact with the mother and the Second Respondent father and one of the offenders frequented their address.
One of the offenders (“Mr X”) had made a request to New South Wales Probation and Parole to attend the birth of B in September 2012 but did not attend. Information available to the Department reveals that this person has a long and substantial criminal history, including serious and aggravated sexual offences, for which he was convicted and served lengthy periods in imprisonment. This person is a Serious Sex Offender on a Supreme Court Extended Supervision Order under the Crimes (Serious Sex Offenders) Act 2006 (NSW).
The other offender (“Mr Y”) has been convicted of sexual offences against children and was recorded in New South Wales Police entries to frequent the home where the mother and the Second Respondent father were then residing, and have regular contact with them by telephone. This person was on the Child Protection Register having been convicted of (Child Sexual Intercourse) Registrable Offences.
Subsequently the Department was informed by an officer of the New South Wales Police that the Second Respondent father had made admissions that he had been associating with convicted sex offenders in the Suburb E area and further informed that the mother and the Second Respondent father were residing in premises with a person wanted for theft.
In May 2013 the Second Respondent father and the two offenders referred to above had been given non-association Orders. The Second Respondent father was given an information booklet and warned in relation to the offence of Consorting (Persons Convicted of Indictable Offences Habitually Associating/ Communicating with Each Other) under section 93X of the Crimes Act 1900 (NSW). Police observation at the time was that the Second Respondent father had a controlling influence over his younger female partner, the mother.
Then in late June 2013 the Second Respondent was seen again in the presence of the offender “Mr X”.
In response to the risk of harm report case workers accompanied by two police officers attended on the home of the mother and the Second Respondent father. The mother appeared to be pregnant and made attempts to conceal her stomach during the home visit. The mother informed the caseworker that she had not received any prenatal care because she was not sure that she was pregnant. The mother was informed that she should attend a medical appointment that day in relation to the unborn child.
Subsequently high risk birth alert requests were submitted to New South Wales Health by the Department.
On 22 August 2013 the Department received information that confirmed that as of 18 April 2013 the mother was 16 weeks pregnant with an expected due date of 11 October 2013. The mother and father did not confirm the pregnancy until 27 August 2013, at which time the mother was approximately 7 months pregnant.
On 11 September 2013 Departmental case workers attended at the mother’s residence. The Second Respondent father refused them entry and demanded that they leave the property. Subsequently the Department received information that the mother had attended a prenatal clinic at Town F Hospital and had been booked into Suburb E Hospital for the birth.
On the same day the Departmental caseworker telephoned the prenatal clinic at Town F Hospital. The caseworker was informed that the mother and the Second Respondent father, who had attended with her, had poor hygiene and volunteered information that they had previous children removed by the Department and that the Second Respondent father had a criminal history that did not relate to child offences.
In September 2013 the child C was born and the Department received notification of her birth. At the time of birth the mother was suffering from a “strep B” infection. The child was placed in the special care nursery. On the same day Departmental officers attended at the hospital to assume care of the child under the provisions of an Emergency Care Order. The child was initially placed on discharge from hospital with a short-term authorised carer from Anglicare by the Department.
Notwithstanding requests from the Department the mother and Second Respondent father failed to complete birth registration papers for the child B and those documents were subsequently sent on 18 October 2013 by the Department for registration of the birth. As a consequence the Second Respondent father’s name does not appear on the child’s birth certificate as the father.
Subsequent to her birth the child B was seen by a cardiologist on 24 January 2014. She was diagnosed with a hole in her heart and will likely require surgery.
The Second Respondent father’s history of sex offending and mental health
The Second Respondent father was charged with sexual intercourse without consent and two charges of doing an act with intent to pervert the course of justice arising out of that incident in June 2003. In June 2004 the Second Respondent father was convicted by a jury on all charges and was remanded in custody pending sentence. The Second Respondent father was sentenced in the District Court of New South Wales in August 2004.
During sentencing remarks the trial judge said:
The offender has demonstrated no remorse for his crime and no insight into his behaviour. His impulsiveness and lack of sensitivity for the needs of others is a matter of concern. Although he has his family support I cannot be optimistic about his prospects of rehabilitation and that he will not reoffend. …
… I am satisfied beyond a reasonable doubt that, at the time of intercourse, the offender knew that the victim was vulnerable because of her disability. This is an aggravating feature. The fact that he called his friend and arranged for the time of his visit to be put back, leaving himself and the victim alone in the house, shows that there was some premeditation.
In September 2003 the Second Respondent father was examined by Dr H, forensic psychiatrist. In his resultant report, it was observed that:
It is probable that [the Second Respondent father] has a severe personality disorder and it is also likely that in the context of that he suffers significant disturbances of mood from time to time.
And then:
He hasn’t seen a psychiatrist now for a number of years and in view of his long history of reported difficulties it would be my recommendation that he received long-term community-based care from psychiatrists and psychologists. I note he is receiving an antipsychotic medication and he has been on this medication now for some years. Psychiatric review will be necessary because medications of that type can have side effects if used in the longer term.
In March 2004 the Second Respondent father was examined by Dr J, consultant psychiatrist, on referral from his general practitioner. The subsequent report notes “[The Second Respondent father] has a long history of troubled behaviour going back to infancy when he was diagnosed as suffering from autism”. In interview the father told the psychiatrist that his cousin had been sexually abusing him for many years and had introduced him to the “S & M” scene. The father is reported to have said when asked what his life had been like over the years: “shit, that’s why I’ve tried to kill myself plenty of times, though there’s been some good times.” The psychiatrist reported that the father had mutilated his face, cut himself, taken substantial overdoses of Dymadon, jumped in front of cars and a gamut of like behaviours. As to diagnosis the psychiatrist reported:
[The Second Respondent father] provides a challenge both diagnostically and in terms of management. As regards diagnosis, a number of features are striking. He appears to have minimal capacity for empathy with others, poor communication skills and distinctly odd prosody characterised by a monotonous voice. I suspect the likeliest to diagnosis is one of Asperger’s disorder or high functioning autism….. His presentation is underpinned by a personality structure grounded in the autistic spectrum.
The psychiatrist continued:
Management is an even more difficult proposition. I think he will need guardianship of all his affairs including his finances, his health and his accommodation…. The process would need to be managed through the Office of the Public Guardian. ….. He has a recognised psychiatric illness but not one that would justify hospitalisation under the Mental Health Act.
In a report in April 1996 Dr K, consultant psychophysiologist, observed:
[The Second Respondent father’s] behaviour has been such that it appears that he has been a sexual perpetrator to other members of his family and for this reason he was asked to leave home some time last year.
And then:
… he currently also presents as having many of the features of borderline personality disorder….. Perhaps a differential diagnosis of schizophrenia could be considered.
In December 2007 a psychological report was prepared by the Department of Corrective Services whilst the Second Respondent father remained incarcerated in anticipation of a forthcoming parole hearing. At the time of the report the Second Respondent father’s non-parole period was to expire in December 2007 and the full term of his imprisonment in December 2010. The Second Respondent father’s criminal history included previous convictions for common assault in March 1999 and a common assault and malicious destruction of property in December 1999. The author of the report had regard to the remarks of the sentencing judge in August 2004 on which date the Second Respondent father was sentenced to a term of six years and six months with a non-parole period of three years and six months. The Second Respondent father reported that he was sexually molested by a female cousin three years his senior between the ages of 18 months and 16 years. He asserted that this molestation included touching, oral sex, penile – vaginal intercourse from the age of 11 and bondage from approximately 13 years old. The Second Respondent father further reported that he and his cousin were gang raped by a group of males when he was 12 years of age, although the incident was never reported by him. The report writers noted that some of the Second Respondent father’s self-reported behaviours during interview were contradicted by information contained in other reports.
Whilst incarcerated the Second Respondent father participated in an “Understanding Sexual Offending” course over eight sessions. The course facilitator reported that the Second Respondent father presented as attention seeking and argumentative, he appeared to perceive himself to be the victim and made somewhat extreme misogynistic statements. In July 2007 the Second Respondent father was referred to the Sex Offender Program. He was found to be unsuitable due to his categorical level of denial. He attended one session out of a possible 14 of a pre-treatment motivational course in March 2007. It was reported that his participation was “dismissive”. He was offered a further opportunity to participate in the pre-treatment motivational course in September 2007 but refused the offer.
The report noted that, in addition to the behaviours noted above, the Second Respondent father reported that he had attempted to overdose on various medications mixed with alcohol, has attempted suicide by jumping in front of cars and trucks, by hanging and attempting to shoot himself. The Second Respondent father reported that all of these occasions have been a reaction to difficulties he has experienced with females. As to the offence in respect of which he was incarcerated the Second Respondent father denied any responsibility, asserting that he had been set up. The report notes that the Second Respondent father may lack understanding of the dynamics of sexual assault and minimise the responsibility of perpetrators.
The Primary Considerations: s 60CC(2)
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
Some of the Court’s considerations above apply to this factor. The primary concern is the determination of orders that would prospectively facilitate a meaningful relationship between the children and the mother. The capacity for that relationship to be developed is, at present, significantly impaired by the mother’s ongoing relationship with the Second Respondent father. Regrettably, as a consequence, the mother’s relationship with the children must be constrained by reason of the considerations set out above. That constraint is indicative of orders being made that provide for the mother’s ongoing relationship with the children to be the subject of protective constraints.
Section 60CC(2)(b) – need to protect.
This primary consideration, as noted above, is, in reality, the nub of these proceedings.
The Court is required to determine whether there is an “unacceptable risk” of harm to the children.
As the High Court said in M v M [1988] HCA 68:
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. …
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A v A [1976] VicRp 24; (1976) VR 298 at p 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp 76,240-76,242; (1987) 11 Fam LR 765 at pp 770 and 771 respectively), ‘a real possibility’ (B and B [ Access] (1986) FLC 91-758 at p 75,545), a ‘real risk’ (Leveque v Leveque (1983) 54 BCLR 164 at p 167), and an ‘unacceptable risk’ (In Re G (a minor) (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
By reason of the factual matters referred to above and the reasons given, the Court is satisfied that there is an unacceptable risk of harm to the children in the event that the children were to live primarily with the mother and in the event that the mother was to have time with the children unsupervised.
There is, the Court is satisfied, an unacceptable risk that the mother will bring the children into contact with the Second Respondent father in circumstances where he presents as an unacceptable risk of harm to the children.
Accordingly, it is necessary to fashion protective orders to address the reality of unacceptable risk of harm to the children.
The presumption of equal shared parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted in circumstances set out above.
Having regard to the factual background and a consideration of the best interests circumstances provided for in section 60 CC, it is not in the best interests of the children that the presumption apply. Accordingly, the presumption is rebutted.
As a consequence of the presumption not applying, the Court is not required to consider the provisions of section 65DAA and a consideration of orders to be made in the best interests of the children are governed by the provisions of section 60 CC of the Act.
The Applicant father, the Department and the Independent Children’s Lawyer are in agreement as to the orders sought, save for the final order sought by the Independent Children’s Lawyer as referred to above in respect of the additional time spent between the mother and the child D.
For the reasons set out above, it is concerning that the mother’s time is sought to be severely restricted, in particular where she has a sound relationship with the older child D and a developing relationship demonstrating early attachment by the younger children to her, with those children.
An unusually restrictive relationship, particularly with the younger children, would compromise development of the mother/child relationship. This indicates a more flexible approach that is propounded for by the parties, but subject to appropriate protective constraints.
As to the child D, he is of an age where he can report concerns that may arise in relation to his time with the mother, whether it be supervised to unsupervised. The Independent Children’s Lawyer seeks an order that D be able to spend additional time with the mother as agreed between the mother and the Applicant father, with such time to be supervised by a person approved by the Applicant father and subject to a condition that such time at not be in the presence of the Second Respondent father. This would provide an opportunity for the child’s relationship with his mother to continue to develop and would address the present protective concerns.
Otherwise, there appears to be no reason why the mother should be prohibited from attending upon occasions significant to the welfare of D, being occasions that are significant in relation to his schooling, health, extra-curricular activities, religion, or other significant welfare occasion where the attendance of either or both parents is to be reasonably expected. Such an arrangement would be restricted by an order prohibiting any communication or contact between the child and the Second Respondent father and an order providing such time be on condition that the Applicant father was also present.
Accordingly, the Court makes the orders set out at the forefront of these reasons for Judgment.
I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 March 2014.
Legal Associate:
Date: 7 March 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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