Newman and Olson

[2014] FamCA 509

FAMILY COURT OF AUSTRALIA

NEWMAN & OLSON [2014] FamCA 509

FAMILY LAW – CHILDREN – with whom the child lives – where the mother has had limited engagement in the court proceedings – where the mother did not attend the hearing – where the matter was heard on an undefended basis – where the children live with the father – where the children have had limited contact with the mother – where the mother lives in another state – where the relevant child protection authorities in that state removed other children from the mother’s care.

Family Law Act 1975 ss 60CA, 61DA, 65D, 65AA, 65DAB,

Vigano & Desmond [2012] FamCAFC 79
Cox v Pedrana [2013] FamCAFC 48

APPLICANT: Ms Newman

RESPONDENT: Mr Olson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 11583 of 2011

DATE DELIVERED: 1 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 1 July 2014

REPRESENTATION

APPLICANT: No appearance

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hodges

ORDERS

1. All previous parenting Orders and parenting plans are discharged.

2. The children R, born … 2007 and T, born … 2007 (“the children”) live with the father.

3. The father have sole parental responsibility for the major long term issues in relation to the children.

4. The children shall spend time and communicate with the mother at all times as may be agreed between the parties.

5. These Orders are sufficient authority to enable each party at that party’s expense to:

   a)obtain copies of all school reports, newsletters, photographs and any other documents relevant to the children’s schooling;  and

   b)contact any medical practitioner or other allied health practitioner who is providing treatment to the children to obtain information and or documents about the children’s treatment as requested by that parent from time to time with any cost of the provision of such information or document to be borne by the party requesting the information.

6. The father take all reasonable steps to advise the mother immediately should either of the children require any emergency medical treatment.

7. The Order for the appointment of the Independent Children’s Lawyer is discharged, alternatively, the Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newman & Olson 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 BRISBANE

FILE NUMBER: BRC 11583 of 2011

Ms Newman

Applicant

And

Mr Olson

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. I am well persuaded, having heard the submissions made by Counsel on behalf of the Independent Children’s Lawyer, as supported by the respondent father, Mr Olson, who appears on his own behalf, to proceed to hear the matter in the mother’s absence. 

2. I arrive at this conclusion having regard to the following: 

   a)the proceedings were commenced by an application filed on 5 July 2011 - it is immediately apparent that they have been on foot for a significant period of time;    

   b)there are two Family Reports for the Court’s assistance:  the first filed in October 2012, and the more recent filed on or about 24 January 2014 - it is clear from a perusal of those documents that, whilst the mother participated in the first Family Report interviews, she did not participate in interviews conducted for the purpose of the preparation of the second Family Report;

   c)when the matter was called over by Justice Kent as part of the Court’s case management process on 2 December 2012, the mother appeared on her own behalf by telephone - his Honour’s Order clearly directed the matter be adjourned to a Registrar for the making of further directions to prepare it for final hearing and listed the matter for one day commencing at 10.00 am today - Clause 3 of the Order made on 2 December 2012 also provided that, in the event that the mother did not participate in the hearing today, or file material as directed, leave was granted for the matter to be heard in her absence on an undefended basis. 

3. The mother appeared before a Registrar on 10 March 2014.  A number of orders were made on that occasion directed to ensuring that this matter proceed for final determination today. 

4. Despite the Orders providing an opportunity to the mother to file additional affidavit material to update the material previously filed by her - the last affidavit having been filed on 15 May 2013 - the mother has filed no further affidavit material. 

5. It is clear from the affidavit relied upon by Counsel for the Independent Children’s Lawyer - namely that of Ms B, filed 30 June 2014 - that documentation, including a copy of the Order made on 10 March 2014, was forwarded by the Independent Children’s Lawyer, to the mother, by registered post.  An annexure to the affidavit of Ms B makes it clear that the bundle of documents forwarded by registered mail was delivered on 4 June 2014. 

6. I am, therefore, satisfied that the mother has been made aware on a number of occasions of the fact that this matter would proceed to hearing today.  I am also satisfied that the mother was aware, as a consequence of her attendance at the callover before Justice Kent on 2 December 2013, of the prospect that, should she fail to appear, the matter would proceed in her absence. 

7. In the circumstances, where the proceedings have been on foot for a significant period of time, and the children have been living with the respondent father for a significant period of time, I am well persuaded it is in their best interests that the matter proceed today so that their living arrangements can be determined finally, and they can have the benefit of knowing that litigation between their parents is at an end.  For those reasons I intend to hear the matter on an undefended basis. 

8. The proceedings concern two children R and T, both born in 2007. These proceedings, being proceedings for a parenting order in relation to the children, has the consequence that I may, subject to s 61DA of the Act and s 65DAB of the Act and Division 6 of Part 7 of the Act make such parenting order as I think proper. So much is apparent from section 65D of the Act. I must have regard to the Objects of Part 7 of the Act and the principles which underpin those Objects.

9. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration. So much is made clear by s 60CA and s 65AA of the Act.

10. I do not intend to repeat the reasons I have delivered in relation to the mother’s non-participation in the proceeding before me.  Insofar as they are relevant, I incorporate those reasons into the reasons I now deliver.

11. The proposals of each of the parties who appear, namely that of the Independent Children’s Lawyer and the father, may be found contained within Exhibit 2.  Those Orders, if made, would see the children continue to live with the father, as they have since about mid-2010; that the father have sole parental responsibility for them; and that the children spend time with and communicate with the mother at all times, as agreed between the parents. 

12. In addition, the orders would constitute sufficient authority for the parties to obtain information about the children from the schools at which they attend and from any medical or allied health practitioner who provides treatment to them. 

13. The order, if made in the terms advanced by both the Independent Children’s Lawyer and the father would see an obligation imposed upon the father to advise the mother immediately should either of the children require any emergency medical treatment.  In addition, the Independent Children’s Lawyer seeks, unsurprisingly, an order that the Independent Children’s Lawyer is discharged. 

14. Authority emphasises that a finding that there is a benefit to the children of a meaningful relationship with both parents does not depend simply on there being a lack of danger of physical or psychological harm to the children arising from time and/or communication with that parent.[1]    

    [1]           See:  Vigano & Desmond [2012] FamCAFC 79.

15. In the current circumstances, as I have already observed, the children have been living with the father since mid-2010.  The care arrangements which pertained to them prior to that are comprehensively detailed in the first Family Report prepared for the Court’s assistance:  also as summarised within the chronology prepared by the Independent Children’s Lawyer as included within the updated Outline of Case filed 25 June 2014.  I accept, as an accurate representative of the factual circumstances described within it, those matters particularised in that document. 

16. It is clear that, despite previous dislocations and removals of the children between the households of their respective parents - the father in Brisbane and the mother in Western Australia:  prior to mid-2010, the children have, as I have said, lived with the father primarily since about that time. 

17. In assessing the benefit to the children of a meaningful relationship with the mother, it is difficult to arrive at any firm conclusion.  That is because the mother has not participated in the hearing before me today - it seems to me that the best that can be said from the comments of the children, as reported in the most recent Family Report - to paraphrase:  that they do not know why they have not spoken to their mother for some time – that they at least retain some residual desire to have a relationship with her.  This has not been made possible because of her lack of engagement with them, at least most recently.

18. In assessing the parenting capacity of each of the parents, I take into account and accept that the father and his household have, since the children have lived primarily with him in mid-2010, provided stable care to the children.  There is nothing to suggest that the father’s household, constituted by he and his partner, with whom the children appear to have a good and established relationship, has not met the children’s physical and emotional needs. 

19. I note for the record that the Independent Children’s Lawyer - entrusted with the obligations imposed upon that role by statute - has no concern about the level of care provided by the father to the children. 

20. In assessing the mother’s parenting capacity, I must have regard to the evidence in relation to previous drug use, domestic violence in her relationship and a substantiated medical neglect of C, one of her then 11 month old twin daughters. 

21. It is clear from the material before me, including that contained in Exhibit 1, that the relevant Western Australian authorities charged with the obligation to protect children reached a determination about those children.  Police attended at the home of the mother and her partner, the father of the twin girls, in relation to a domestic violence incident at the end of May 2013 and decided it necessary for the children to be conveyed to medical assistance. 

22. The Police noted injury to one of the twins and burn marks to the other.  As a consequence, C was transported to the D Hospital Burns Unit.  After this, the Western Australian Department took the children into care, filing an application on 18 June 2013 in the Children’s Court of Western Australia seeking a two-year Protection Order. 

23. On 26 September 2013, the mother’s twin daughters, C and N, became subject to a two-year Care and Protection Order.  For a period after that, the mother and her partner had supervised time with them. 

24. One of the concerns clearly outlined in the contents of Exhibit 1 is the difficulties with which the mother has struggled in terms of drug use.  It is clear, when regard is had to the reunification plan formulated by the Western Australian authorities in about August 2013, that included within one of the criteria required to be met in order for the Department to be satisfied that reunification of the mother’s younger children with her is appropriate is that she provide clear, random drug test results. 

25. It was also made apparent, as a consequence of the contents of the relevant document, that the Western Australian authorities would proceed on the basis that there was deliberate avoidance of testing if a sample provided was not clear or was dilute. 

26. It is clear from the test results provided that, on 20 August, 12 September and 18 October 2013 the mother had results which indicated - on the first occasion - the presence of amphetamine, and, later, a query about the presence of amphetamine that required further testing.  On 5 December 2013, 21 February 2014 and 10 April 2014 the mother’s test results recorded the presence of benzodiazepines - again with a notification that this may require further testing.  Whilst a result for a test undertaken on 31 March 2014 recorded that “Nil” illicit substances were detected, those results took place in circumstances where the report also records an incomplete chain of custody. 

27. It is apparent from the documents provided by the Western Australian Department that they consider the mother has provided clean urine samples since late October 2013.  Further, they report she has engaged with the Department:  an unannounced home visit in mid-November 2013 suggested there were no difficulties in her physical surrounds. 

28. Department documents record - at page 11 - the mother’s report of “longstanding problems” with domestic violence.  I note, that during a reunification meeting held on 27 March 2014, the Department outlined the plan for the children in care to spend unsupervised time with the mother from 9.30 am to 3.30 pm each Tuesday.  Those records also record that the parents – the mother and the biological father of her twin daughters - have previously bought and sold marijuana.

29. It is against that background then, namely that of the test results to which I have referred, that one must assess the Departmental comment that the mother’s household had not undertaken or been found to have undertaken any substance misuse for more than five months.  It seems to me that against a significant background of difficulties with illicit substance use, it is very early days yet in the mother’s hoped for recovery.  I should also note that, whilst the mother was dealt with in a Criminal Court in Western Australia in February of this year for a drug offence, perusal of the relevant records suggests this offence occurred toward the end of May 2013. 

30. It cannot, of course, be forgotten, however, that the concerns which led the Western Australian Department to take the steps that it did, involved:

    a)the mother’s involvement in illicit substance abuse;

    b)the difficulties in the relationship insofar as domestic violence is concerned;  and

    c)the conclusion of substantiated neglect of children aged about 11 months of age at that time. 

31. Whilst the mother appears from the contents of Exhibit 1 to have commenced a process of engagement with a view to reunification with those children, there is nothing before me to persuade me that it is in these children’s best interests that there be orders for specific time with the mother in her household, particularly given the extent of her likely engagement in the various programs and matters identified by the Western Australian Department as necessary before they consider a reunification of her twin daughters into her care.

32. I'm not persuaded, at this point in time, that it is beneficial for the children in respect of whom I am asked to make orders that there be, as I've said, any specific orders for time with the mother.  That conclusion is, of course, strengthened by the fact of the mother’s disengagement in the process in this Court, the fact that there has been no unsupervised face to face time between the children and their mother since about 2011, that there has been very limited Skype communication, (two occasions between about March 2013 and September 2013) between the children and the mother and that she did not participate in the interviews for the most recent Family Report. 

33. Against that background, when considering the likely impact on the children of the orders sought by the father and the Independent Children’s Lawyer, it seems to me well established that there is unlikely to be any impact to them of a detrimental nature.  As I’ve said, the children have lived primarily with the father since mid-2010.  There has been some communication between the children and the mother during that period of time but, as a consequence of – it seems to me - the mother’s actions, that interaction has not progressed. 

34. I am well persuaded in the circumstances and on the material before me that it is in the children’s best interests that they live primarily with the father.  I have, as would be apparent, given consideration to whether it is possible to make orders for specific time or specific communication between the children and their mother but I am persuaded that there is no evidence before me which permits of such a conclusion.  The best that can be done, I consider, is to afford to the father the responsibility of ensuring that the children have an opportunity to spend time with and communicate with the mother at all times as may be agreed between the parents.

35. I turn now to consider the issue of parental responsibility. When making a parenting order I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them. This presumption is rendered inapplicable by the matters prescribed in s 61DA(2 )of the Act or may be rebutted by evidence which satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.

36. Section 61DA(2) of the Act provides that if the Court is satisfied there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of them or another child or family violence, the presumption does not apply. I'm well satisfied on the evidence before me, given the substantiated findings of medical neglect in relation to an 11 month old child whilst in her care and the care of her household comprising herself and that child’s biological father that the mother has engaged in abuse of a child. Thus, I am satisfied the presumption does not apply.

37. The consequence is that the power to make parenting orders pursuant to s 65D of the Act is at large, albeit subject always to the best interests of the children being the paramount consideration.[2] 

    [2]           See Cox and Pedrana [2013] FamCAFC 48.

38. The consequence for parents of an order for equal shared parental responsibility is that if they are called upon to make decisions about matters which are major long term issues for the children, as that term is defined in the Act, they are required as a matter of law to reach such decisions jointly. 

39. I am not satisfied that these parents in these circumstances in the background established and taking into account:

    a)the absence of communication between them for a significant period of time;  and

    b)the fact that communication attempted by the Independent Children’s Lawyer with the mother has not been successful - the email address has not been working and there is no current telephone number provided,

    could reach decisions jointly as they would be required to do as a matter of law if an order for equal shared parental responsibility was made.  Thus, I am well persuaded that an order for equal share parental responsibility is not one which would be in the children’s best interests. 

40. I am, however, satisfied on the evidence before me that it is in the children’s best interests the father have sole parental responsibility for them.  I arrive at this conclusion because, in circumstances where they have lived primarily with him since mid-2010, there is no evidence to suggest he has done anything other than discharge the obligations of parental responsibility appropriately by making decisions for the children to ensure that their needs are met.  He is the parent who is best placed to undertake and make any such decisions into the future.

1. I have also taken into account and considered whether it is in the children’s best interests that there be an order requiring the father to:

   a)seek the mother’s view and/or opinion about a particular proposed decision covered by the operation of an order for sole parental responsibility;  and

   b)take that view into account in arriving at his decision. 

2. Again, because of the absence of communication between the parents and the fact that there is no method by which there can be communication (whether by phone or email) it appears to me that any such order would be doomed to fail – in addition, it potentially would place the father in the position of attempting to meet an ordered obligation in circumstances where compliance with the order could not take place.

3. For those reasons, I am not persuaded to make an order in terms commonly made to require consultation between the parent with sole parental responsibility and the other parent. 

4. Insofar as Clause 6 of the orders proposed by the Independent Children’s Lawyer is concerned, because of this difficulty in communication it seems to me an appropriate order is to require the father - as the parent with whom the children live with and the parent to whom sole parental responsibility is accorded - to take reasonable steps to advise the mother immediately should either child require any emergency medical treatment. 

5. To cast the obligation any higher would, in the circumstances to which I have already adverted, place the father in a position where I consider it more likely than not that he would be unable to fulfil the obligations imposed by an order made by this Court. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 1 July 2014.

Associate:                 

Date:    1 July 2014