Olgun and Neilson and Anor

[2014] FamCA 25

FAMILY COURT OF AUSTRALIA

OLGUN & NEILSON AND ANOR [2014] FamCA 25

FAMILY LAW – CHILDREN – Interim parenting – Applicant is a non-parent seeking live with or spend time with orders and parental responsibility – Where the parents have previously relinquished the care of the children to the Applicant – Protection of the children from harm – Best interest of the children – Whether an order in respect of parental responsibility should be made on an interim basis

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61C(1)

Goode & Goode (2006) FLC 93-286, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13
Valentine & Lacerra & Anor (2013) FLC 93-539; [2013] FamCAFC 53

APPLICANT: Ms Olgun

FIRST RESPONDENT: Ms Neilson

SECOND RESPONDENT: Mr Thornburn

INDEPENDENT CHILDREN’S LAWYER: Ms Grew

FILE NUMBER: PAC 4207 of 2013

DATE DELIVERED: 24 January 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13 & 16 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Claremont Legal

SOLICITOR FOR THE FIRST 

RESPONDENT:

D M Roberts & Co

SOLICITOR FOR THE SECOND RESPONDENT:

Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Matthews Folbigg Pty Limited

Orders

1. The interim orders as sought in the Amended Initiating Application filed 22 November 2013 by the Applicant are dismissed.

2. The mother is restrained from leaving any of the children in the sole care of her mother, Ms B.

3. Neither party shall denigrate any other party in the presence or hearing of the children.

4. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Director-General of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

5. In the event that the Director-General intervenes, he or his delegate is to file and serve a Notice of Intervention by no later than close of business on 30 April 2014.

6. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Director-General of the NSW Department of Family and Community Services, or his delegate, to inspect and copy any documents on the Court file forming part of the Court record.

7. The matter is otherwise stood over, awaiting the preparation of a family report anticipated to be ready in late April 2014, to a date to be fixed no less than seven (7) days following the release of the report.

Notation

1. A copy of these Reasons for Judgment is to be provided to the Director-General of the Department of Family and Community Services to assist the Director-General in deciding whether to intervene in the proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olgun & Neilson and Anor 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 4207  of 2013

Ms Olgun

Applicant

And

Ms Neilson

First Respondent

And

Mr Thornburn
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. T, aged six, C, aged four, W, aged two, and S, aged one, (“the children”) are the children of Ms Neilson (“the mother”) and Mr Thornburn (“the father”). 

2. The mother and the father (“the parents”) commenced a relationship in about mid 2004 and separated in about March to May 2012.  The three eldest children remained in the care of the mother following the separation, and in September 2012, the youngest, S, was born.  By about May or June 2013 the Applicant, Ms Olgun, (“the Applicant”) a friend of the mother’s, had become the carer for the children in circumstances that are unclear and significantly in dispute.  In September 2013, the parents took action to have the children returned to them, which involved the police.  Immediately following this the Applicant commenced proceedings for parenting orders in respect of the children.

3. The two older children have lived with the father and his partner since September 2013 and the two younger children live with the mother and her partner.

4. The Applicant seeks interim and final orders that she have sole parental responsibility for the children, that they live with her and spend time with each of the parents.  This application is for interim orders and is opposed by both parents, who also oppose the children spending any time with the Applicant.

Background

1. Towards the end of 2003 the parents met and, by about mid June 2004, had commenced a relationship.  At the time of their meeting, the mother had a child D, who was born in June 2003.  D was and remains under the parental responsibility of his paternal grandfather in Queensland.

2. In March 2006 the mother gave birth to the parent’s first child (and the mother’s second child), E.  E was removed by the Department of Community Services (as it then was; “the Department”) from the parents’ care at four weeks of age and is now under an order of parental responsibility of his paternal grandmother made by the Children’s Court.  There are no formal arrangements for the mother to have contact with E, but the father has contact with the consent of the Department.

3. In September 2007 T was born.  The mother requested assistance from the Early Intervention team of the Department to assist in keeping T in her care.  The Department noted that the parents were attending various services.  In January 2008, the matter was closed as no child protection concerns were identified.

4. In January 2009 C was born. 

5. In April 2009 there was an incident of domestic violence at the family home, the father was charged with assaulting the mother and an Apprehended Violence Order was put in place protecting the mother.

6. In November 2009 W was born.

7. Sometime between 2011 and January 2012 the Applicant and the mother met through the Applicant’s sister and became friends. 

8. Sometime between March and May 2012 the parents separated and the father moved in with his partner Ms F.  The children spent time with their father by arrangement with the mother. 

9. In September 2012 S was born.

10. In December 2012 and January 2013 notifications were made to the Department to the effect that the mother often goes out drinking with friends, leaving the children with friends and family, and other matters including inappropriate physical discipline, lack of supervision, neglect and sexually inappropriate behaviour of T.  No assessment was conducted in relation to either of these notifications and the matters were closed.

11. By early June 2013, at the latest, the children were being cared for by the Applicant, though there are significantly varying accounts of when and how this arrangement came about.  The children were spending time with each of the parents by arrangement with the Applicant. 

12. In June 2013 the mother commenced a relationship with her current partner. 

13. The Applicant has two children of her own in her care as a result of two previous relationships, who are aged ten and six respectively.  Each of the Applicant’s children has been diagnosed with Attention Deficit Hyperactivity Disorder and the younger child also has a diagnosis of Oppositional Defiant Disorder.  The younger child’s father, Mr G, lives with the Applicant in her home, but the Applicant says they are not in a relationship. 

14. The mother and Applicant notified Centrelink about the informal arrangement under which the children were cared for by the Applicant.

15. Between 22 and 24 September 2013 police were involved in removing the children from the Applicant’s home and returning them to their parents.  It appears that one of the children, W, was in fact removed from another person’s home, referred to as Ms H.  The relationship between this person and that child is unknown.  There are significantly varying accounts of the circumstances of the children between the time they were being cared for by the Applicant and their return to the parents. 

16. Further notifications were made to the Department of Family and Community Services in September 2013 at around the same time as the police intervention.  No assessment was conducted and the matter was closed.  Community Services has decided not to intervene in these proceedings at this stage. 

Contested Facts

1. In addition to the uncontested facts, in accordance with the decision of the Full Court in SS & AH[1], the Court may have some regard to the matters in dispute.  In that case, their Honours at [100] said:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In this matter, the Applicant makes many assertions, in addition to the uncontested facts, about the children’s circumstances when they were living with their parents and outlines in her affidavit particular events which she asserts demonstrate the inadequacy of the parents’ care.  These allegations are generally of a serious nature and include that the children were exposed to adult sexual behaviour and domestic violence between the parents, were inadequately supervised and were neglected and affected by the parents’ misuse of alcohol and illicit drugs. 

3. Although these matters are strenuously disputed by the parents, in weighing the probabilities of their truth I do have some concern in the context of the undisputed facts.  These facts include the mother not having the care of her two eldest children, with the parents’ first child having been removed as an infant of four weeks and being under a long-term Order of parental responsibility of another person, the private agreement for the Applicant to assume care of the children and the presence in the mother’s household of the maternal grandmother, who herself has had five of her eight children removed from her care and were/are the subject of long-term care Orders.  In my view, whilst this evidence does suggest that there are some real concerns about the children’s care, it is unlikely that they are of the magnitude alleged by the Applicant.  I note that the Applicant herself does not say that she reported any of her concerns about the inadequacy of the parents’ care to the Department.

4. In the mother’s case there is significant contest surrounding not only the circumstances when the children were in her care prior to being cared for by the Applicant but the details of how the arrangement itself came about.  The mother does not directly address in her affidavit how the children came to be cared for by the Applicant, except to say that she commenced a relationship with her current partner on 4 June 2013 and that at that time “none of the children were in the house”.

5. It is the mother’s case that the Applicant and the mother’s sister sometime in May 2013 told the mother that the father and paternal grandmother had made reports to the Department about the care of the children and offered to help the mother as an alternative to them being taken into care.  The mother said that she was upset and shocked and that about four days later she went with the Applicant, at the Applicant’s insistence, to advise Centrelink of the circumstances of the children.  As I understand the case, this was so that the Applicant could receive some form of benefit for caring for the children.

6. It appears to be suggested in submission that the mother was in some way coerced into relinquishing the children into the care of the Applicant.  In my view, even taking the mother’s evidence at its highest, the mother does not say in her affidavit that she was coerced.  I attach little weight to the mother’s version of other details of this arrangement as, in my view, it is contradicted in her own evidence.  For example, it is the mother’s case that she relinquished the care of all four children in around May 2013 but, in her affidavit, she says that when she and the Applicant advised Centrelink of the arrangements (in about early June 2013) the Applicant was already receiving some form of benefit for the younger two children.

7. The father’s version as to the way in which the children came to be in the Applicant’s care is equally problematic.  In his affidavit of 3 October 2013 he says it was his observation from late 2012 that every time he went to the mother’s home the two younger children were not there but were with the Applicant and says that S “mostly remained in [the Applicant’s] care from about four weeks after her birth from my observation.  This was not done with my consent.  This was done between [the mother] and [the Applicant].”  It seems a most extraordinary proposition that the father’s four week old child could be relinquished by her mother into the care of another person without his consent and that, even though he was aware of it, he took no action to remedy the situation for another nine months.

8. It is simply not possible in this application to determine the circumstances in which the Applicant came to care for the children.  However, there is no dispute that they were being cared for by the Applicant from June 2013, at the latest, that no action was taken by either parent until September 2013 and that the return to the parents involved the children being physically removed from the Applicant’s home by the police.

9. There are also competing claims about the current circumstances of the children.  The Applicant has not seen the children since they were removed from her care but says that she is concerned that the same circumstances that existed prior to them coming into her care present current risks for the children.  She is also concerned that the mother is residing with the maternal grandmother, who is known to be of concern to the Department, having had a number of her own children removed.  The Applicant also asserts that C and T were distressed when being removed from her care.

10. The parents’ case is that the children have settled well in each of their respective homes and that any parenting problems are now a matter of the past.  Further, the parents now express concern about the Applicant’s capacity.  In particular, they note that there have been a large number of police events involving the Applicant between March 2009 and October 2013.  Although a number of the incidents, particularly in recent times, seem to involve allegations made by the father to police and relate to incidents related to the retrieval of his children from the Applicant, there is nonetheless a disturbing pattern of aggressive and violent behaviour alleged against the Applicant.

11. There is no evidence, however, to suggest that concerns have been raised at any time with the Department about the Applicant’s care of her own children or about her care of the children the subject of the proceedings.  Once again, it is not possible to form any conclusion about the Applicant’s care of the children on the available evidence.

12. So far as the current circumstances for the children are concerned, the parents rely upon the school report of T, which indicates that he has settled back into his kindergarten class after being returned to his parents and is progressing well.

13. Both parents give evidence of the children progressing well and being appropriately cared for and the parents working together.  This is supported by the lack of concern by the Department, which is not intervening in these proceedings at this stage.  However, I am not satisfied that there are no child protection concerns in each of the parents’ homes given the very fact of the relinquishment of the children and the timing and circumstances of their return.

The Submissions

1. The general thrust of the Applicant’s submissions is that given the significant role she has played in the lives of the children it is in each of their best interests for her to have parental responsibility for them, for them to live with her, or to spend some time with her at the very least.

2. It is the Applicant’s case that the children were unsafe living with their parents, she came to assume care of them at the request of the mother and that they enjoyed a more stable and fulfilling routine while they lived with her.

3. The majority of the Applicant’s submissions are to the effect that the children are exposed to significant harm living with their parents as demonstrated by the past removal of a child from their care by the Department of Community Services (as it then was) and allegations of inappropriate discipline, exposure to domestic violence, drug use and sexually inappropriate behaviour and neglect. 

4. In terms of the s 60CC (of the Family Law Act 1975 (Cth) (“the Act”)) best interest considerations significant weight in the Applicant’s case is placed on the primary consideration of the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

5. In relation to the nature of the relationship of the children with each parent and other persons, the Applicant relies upon the mother’s agreement to the children going into the her care and submits that the father’s awareness and lack of opposition to the arrangement demonstrates the poor nature of the relationship between the children and their parents.

6. Likewise, the fact that the parents allowed the children to remain with the Applicant is relied upon to indicate that the parents demonstrate a poor attitude to their responsibilities as parents and represents a failure to participate in making decisions about major long-term issues.  It is submitted that although the parents allege that the Applicant took the children from their care against their wishes, they can provide no reason why they did not act sooner to have them returned to their care.

7. In relation to the likely effect of any changes in the children’s circumstances, the Applicant submits that it is of concern that the siblings are currently separated and, of importance to her application, that they are not spending any time with her.  The Applicant asserts that the children have become attached to her and that the sudden change to their living circumstances has caused them a great deal of distress. 

8. The allegations involving the parents’ involvement with the Department of Family and Community Services and the inadequacy of their care, as alleged, also demonstrate in the Applicant’s submission the incapacity of the parents to provide for the needs of the children, as does the mother’s consensual decision to hand the children over to the Applicant. 

9. It is also submitted that the parent’s decision to terminate the children’s contact with the Applicant represents an inability on their part to understand the importance of this relationship to the children, in particular in relation to S.

10. The Applicant submits that she is an experienced carer who has the capacity to meet the children’s needs as demonstrated by the care of her own children. 

11. Another fact or circumstance that the Applicant considers the Court should regard as relevant is that, as it is not in dispute that the children were residing with the Applicant for a number of months and the parents did not take any steps to have them returned, the only conclusion that could be drawn is that they were not concerned with the quality of care that the Applicant was providing to the children.  It is further submitted that the children are of an age where they may misunderstand that the Applicant’s lack of contact means she does not care for them or has forgotten about them, which would be distressing for the children.

12. It is the mother’s position, in summary, that whilst it was a significant failure on her part to allow the children to live with the Applicant, any difficulties are now matters that are in the past and that the children currently are appropriately cared for with each of their parents.

1. In terms of the s 60CC considerations, it is submitted that each of the children shares a good relationship with each of the parents. In addressing the extent to which the mother has taken or fails to take the opportunity to participate in decision making, spending time with or communicating with the children, it is submitted that the children did spend some time with their parents during the time they were in the care of the Applicant, but on many occasions the mother was thwarted by the actions of the Applicant. She is particularly concerned that the Applicant was able to change the children’s school and pre-school without her consent.

2. In relation to the extent to which the mother has fulfilled or failed to fulfil her obligations to maintain the children, the mother acknowledges that it was a significant failure on her part to allow the children to live with the Applicant, but that she and the father are now fulfilling their responsibilities towards them.

3. In respect of the likely effect of any change in the children’s circumstances, including the likely effect of separation, it is submitted by the mother that it is likely that if the children were to return to live with the Applicant that she will, once again, change the children’s schools. 

4. In relation to the capacity of each parent, it is submitted that the only matter that the mother agrees may affect her capacity is previous mental health problems, which are currently under control.  It is submitted that the current circumstances, including the mother being in a stable relationship, show that she currently has a better attitude towards the children and the responsibilities of parenthood.  It is conceded that the circumstances in which the children came into the care of the Applicant do show a significant lack of responsibility on the part of the mother.

5. In his submissions, the father contends that most of the evidence upon which the application is based is highly contested and that the Court should proceed with the matter with great caution. It is agreed that the most significant s 60CC factor in this matter is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

6. The father’s case is similar to the mother’s in that he submits that the children are currently being well cared for with all of their needs being met.  The father relies upon a clean urinalysis result, having completed two parenting programs and T’s latest school report indicating that he is progressing well at his new school, together with the fact that the Department is satisfied with his progress and has allowed him overnight contact with the parent’s eldest child, E, who was previously removed from their care.

7. Unlike the mother, the father does not concede any failure on his part in not challenging the situation whereby his children came into the care of the Applicant.  The father also relies to a great extent on the evidence of the Applicant’s involvement in incidents that brought her to police attention, though he does not make any submissions on the uncontested evidence as to the specific harm that the Applicant represents to the children.  He does, however, refer on numerous occasions in his affidavit to the Applicant being intrusive and disruptive and causing harm to the children by her involvement in their lives.

8. The Independent Children’s Lawyer in her submissions expresses dismay at the nature and tone of the allegations, particularly made by the father, in circumstances where there is no dispute that the children were cared for by the Applicant for at least four months.  She submits that it is not helpful to cast allegations in terms of the intrusion of the Applicant and is particularly concerned that neither parent took steps to have the children returned to their care.  The Independent Children’s Lawyer is also concerned that in the claims and counter-claims made by the Applicant and parents, the parties appear to have lost sight of the needs of the children and that in this matter there is very little evidence about the past and current circumstances of the children.

9. The Independent Children’s Lawyer agrees with the submission made by all of the parties that the most significant consideration in terms of the best interests of the children is the need to protect them from harm, which is multi-factorial in this case.  It is submitted by the Independent Children’s Lawyer that it is difficult to determine, on the uncontested evidence, whether the environment provided by the Applicant or the environments provided by the parents best meet the children’s best interests and is particularly concerned about the lack of disclosure and frankness from all parties in this matter.

10. The Independent Children’s Lawyer submits that as the maternal grandmother has been determined as a source of risk in the past, it is probable that she remains a current risk.  In relation to the children remaining in the care of their parents, the Independent Children’s Lawyer is concerned about the difficulties that both parents have had with alcohol and drugs in the past and also in relation to the father’s behaviour as is suggested by his criminal history, including some relatively recent entries for assault.

11. The Independent Children’s Lawyer submits that the Court would continue to have concerns about the adequacy of the parents’ care, particularly considering how they came to be in the care of the Applicant.  However, the Independent Children’s Lawyer submits there is evidence of some apparent success since the children were returned to the parents, including T’s very good school report, and the workable arrangement that the parents seem to have achieved with respect to caring for their children.

12. The Independent Children’s Lawyer is also concerned about the way in which the children were returned to the parents, which she says was lacking in sensitivity given that the children had lived with the Applicant for a matter of months and was spectacularly not child-focused.

13. It is the Independent Children’s Lawyer’s submission that given the length of time the children were in the care of the Applicant, the absence of notifications to the Department or criticism by the parents about the adequacy of her care at the time and the evidence of basic care having been provided by the Applicant, such as enrolment in school and pre-school, it is in the children’s best interests for them to spend some time with the Applicant, but not to reside with her.  The Independent Children’s Lawyer proposes in her minute of order that the children spend two hours with the Applicant each alternate Saturday with the changeovers to occur at the I Contact Centre.  In the Independent Children’s Lawyer’s Minute of Order she also seeks an order restraining the Applicant from bringing any other persons to the time that she spends with the children, restraining the mother from leaving the children in the sole care of the maternal grandmother and a non-denigration clause.

14. Whilst both parents consent to the non-denigration and restraint on care by the maternal grandmother, they oppose any time between the children and the Applicant.

The Law To Be Applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting. The objects are to ensure that the best interests of the children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects include:

   (a)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (b)parents jointly share duties and responsibilities concerning the care, welfare and development of their children.

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. Goode & Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility. 

2. In this matter, as it is a non-parent seeking an order of parental responsibility the provisions dealing with the allocation of parental responsibility between parents do not apply and the matter is determined by reference to the best interests of the child.

3. It is noted that unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child. In other words, as the Applicant only seeks an order in relation to parental responsibility, if the order is not made then each parent will continue to have parental responsibility for each of the children.

4. In relation to each of the orders which is sought, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), 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.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. In this matter it is the Applicant’s case that the greatest concerns of harm for the children arise from the parents’ inadequate care, and greater weight must be given to the need to protect them from harm than to the benefit of the children having a meaningful relationship with both of the parents.

4. In applying the considerations it is to be noted that the primary consideration in s 60CC(2)(a) only relates to a meaningful relationship with the child’s parents, not a third party, such as the Applicant, though the relationship between the children and the Applicant can be considered under other additional considerations.

5. Each alternate proposal would provide for the children to receive the benefit of a meaningful relationship with both parents, and greater weight must be given to the need to protect them from harm.

6. It is my view, on the uncontested evidence and even having some regard to the contested facts, the Court could not be satisfied that either proposed position will necessarily protect these children from harm.  So far as the parents are concerned, there are serious concerns arising from the uncontested fact that the parents, at the very least, allowed the children to go into the care of the Applicant and took steps only many months later to have them returned.  On the other hand, there is some suggestion that the children’s current circumstances may be more settled and provide greater protection for them, such as the Department permitting the father to have contact with his first child, T’s progression at school, the absence of any recent notifications to the Department and the parents’ preparedness in the past and currently to accept support services to assist them in the care of the children.  Whilst there is likewise some uncontested evidence that the Applicant provided an adequate level of care to the children for a period of some months, there are also real concerns about the Applicant’s propensity for violence and aggression and about the circumstances in which she assumed the care of the children.

7. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

8. Unfortunately, I have no evidence before me as to the nature of the relationship between the children with each of their parents and other significant persons including, in particular, the Applicant.  I remain very concerned, despite the Department not intervening in this matter, that the undisputed fact of the mother effectively placing the children into the care of the Applicant and the parents taking no action for many months in response to this situation of itself raises serious concerns about the relationship of the children with their parents.

9. Other than the fact that the Applicant cared for the children for a matter of months and clearly met their basic needs, and in the absence of complaints to the Department, there is nothing known about the nature of the relationship between the children and the Applicant, or their relationship with other people living in the Applicant’s home, including her own children and one of the children’s fathers.

10. I have significant concerns about the failures of the parents to not only take the opportunity to participate in decision making in relation to the children but to fulfil their obligations in respect of the children in placing them or allowing them to be cared for by the Applicant for a period of at least four months.  Currently it appears that there has been some improvement and there is no evidence to suggest that the parents are not currently fulfilling their obligations with respect to the children.  The orders proposed by the Applicant would not support the parents in taking these opportunities and fulfilling their obligations because she would, in effect, be substituted as the parent for the children.

11. There is no specific evidence from an appropriate expert about the likely effect of any change in the children’s circumstances under the orders proposed by the Applicant, including the likely effect of separation from either parent or another child, nor can I speculate about the impact that the change in circumstances in the past in returning to their parents care had upon them.  I have no evidence about the nature of the attachment between the children and their parents and the children and the Applicant.  However, even in the absence of such evidence, there can be little doubt that all of the changes that have occurred in these children’s short lives must have had some impact upon them.  The only specific evidence before me which supports this inference is T’s school report from the time he was in the Applicant’s care suggesting that he was anxious and reserved in contrast to his school report from the period in his father’s care.

12. I have serious concerns about the capacity of both of the parents and of the Applicant to provide for the children’s needs.  I accept the submission by the Independent Children’s Lawyer that the actions of all of the parties in this matter have not been child-focused.

13. I understand that the mother of the children identifies as Aboriginal and the parents submit that only the parents facilitate the enjoyment and sharing of the children’s Aboriginal culture.  I do not accept the submission made by the father that whilst in the care of the parents, the children are given the opportunity to be exposed to and immersed in their culture and heritage as there is no evidence before me as to how any aspect of Aboriginal culture is enjoyed in either of the parents’ home.  The Applicant does not submit how her proposed orders would promote the children’s right to enjoy their culture.  In my view, neither of the proposed positions, on the evidence before me, would promote the children’s right to enjoy their Aboriginal culture.

14. As I have indicated in relation to a number of other considerations, the parents have each shown a very concerning attitude to the children and responsibilities of parenthood in placing them in the care of the Applicant.  However, it appears that since the children have been returned to the parents’ care, that the parents are demonstrating a more responsible attitude to parenthood and their children.  The proposal for the children to remain in their care would promote the parents continuing this more responsible attitude to parenthood.

15. Each of the parties alleges circumstances which would fall within the definition of family violence involving these children in both households.  Whilst most of this evidence is highly contested, there is evidence of the father having a number of convictions for violence and having been charged with assaulting the mother.  There is also evidence of numerous occasions where allegations of the Applicant’s violent behaviour have resulted in police action.

16. In relation to the order for sole parental responsibility, whilst it is more unusual for a non-parent to seek parental responsibility, the Judgment of the Full Court in Valentine & Lacerra & Anor[3] makes the position clear when their Honours said at [43]:

    The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent …

    And at [73]:

    … there is no entitlement that a parent has to a preferential position from which the decision making process is to commence.

17. On the very limited uncontested facts before me, I could not be satisfied that the making of an order of sole parental responsibility that would oust the parents’ decision making in respect of the children would be in the best interests of these children having regard to the primary and secondary considerations.

18. Likewise, in relation to the proposed order that the children live with the Applicant, I could not be satisfied that this gives greater protection to these children from harm in the Applicant’s home as opposed to in their current homes.  In the absence of evidence concerning the nature of the children’s relationship with the Applicant and the capacity of the Applicant to provide for the needs of the children, notwithstanding the attitude to the children and the responsibilities of parenthood as demonstrated by the parents and the extent to which they failed to take the opportunity to participate in making decisions about the children, I cannot be of the view that it would be in their best interests to live with the Applicant.  In this regard, I am also particularly concerned about the likely effect of further changes in the children’s circumstances that would be involved in moving their residence again, especially as they have had so many disruptions and instability at such a young age.

19. A very limited period of time with the Applicant is proposed under the Independent Children’s Lawyer’s orders and the Independent Children’s Lawyer and the Applicant submit that this time would promote the maintenance of the relationship with the Applicant to some limited extent.  However, I have concerns about making an order in relation to any time with the Applicant in the absence of any evidence about the nature of the relationship of the children with the Applicant and the likely effect of re-introducing her to the children at this stage.

1. On 13 January 2014 I ordered a family report be prepared in the matter and am informed that it will be available within three months.  It is hoped that the parents and Applicant will be more forthcoming with the family report writer and that the report will provide greater assistance to the Court in relation to appropriate orders to be made in this matter.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I have balanced the various matters to which I have referred.  In my view, it is not in the best interests of the children to make any of the orders sought by the Applicant on an interim basis and the application is dismissed.

2. However, I will make the orders sought by the Independent Children’s Lawyer, agreed to by the parents, in respect of a non-denigration clause and a restraint on the children being left in the care of the maternal grandmother.

3. In light of the concerns that I have in respect of both the parents and the Applicant in respect of the care of these children, I will make an order requesting the Director-General of the Department of Family and Community Services to consider intervening in these proceedings.  A copy of these Reasons for Judgment will be forwarded to the Department to assist them in their determination.

4. Otherwise, the orders that I make are as set out at the forefront of the Reasons for Judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 January 2014.

Associate:     

Date:              24 January 2014

[1] [2010] FamCAFC 13

[2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

[3] (2013) FLC 93-539; [2013] FamCAFC 53