Palmer & Palmer
[2021] FedCFamC1F 47
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Palmer & Palmer [2021] FedCFamC1F 47
File number(s): CAC 617 of 2021 Judgment of: GILL J Date of judgment: 16 September 2021 Catchwords: FAMILY LAW – CHILDREN – Unacceptable risk – both parents compromised – Department declines to intervene – With whom a child lives – Best interests of child – Interim order – Status quo – With whom a child spends time – Supervised time – Injunctions – Undertaking – Information sharing orders – Drug and alcohol testing. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 10 September 2021 Place: Canberra Solicitor for the Applicant: KPW Lawyers Solicitor for the Respondent: Friedlieb Fox McLeod Solicitor for the Independent Children's Lawyer: Legal Aid ORDERS
CAC 617 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PALMER
Applicant
AND: MS PALMER
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
16 SEPTEMBER 2021
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The children X born in 2008, Y born in 2010 and Z born in 2013 shall live with the mother.
2.The children W born in 2011 and V born in 2021 shall live with the father.
3.For the purpose of these orders the children referred to in orders 1 and 2 above are collectively referred to as “the children”.
IT IS NOTED THAT
4.Q born in 2012 also lives with the father pursuant to arrangements made by the New South Wales Department of Communities and Justice (“the Department”) who have parental responsibility for Q.
IT IS ORDERED BY CONSENT THAT
Supervised time
5.The children will spend time with the parent they are not living with at B Services at times that can be facilitated by B Services.
6.For the purpose of the above order, both parties are to promptly complete the intake process at B Services.
7.Both parties are to share equally the cost of utilising B Services.
Injunctions
8.Both parties are restrained by injunction from physically disciplining or punishing the children in any way and must use their best endeavours to prevent any third party from physically disciplining or harming the children.
9.Both parties are restrained by injunction from leaving the children unattended in their home without adult supervision under any circumstances.
10.Both parties are restrained by injunction from leaving the children in the care of any person under the age of 18 years.
11.Both parties are restrained by injunction from leaving any of the children in the care of their siblings.
12.Both parties are restrained by injunction from using any illicit substances (including marijuana) and must use their best endeavours to prevent any third party from using illicit substances in the family home and in the presence of the children.
13.Both parties are restrained from consuming alcohol to excess while the children are in their care and must use their best endeavours to prevent any third party from drinking alcohol to excess in the family home and in the presence of the children.
14.Both parties shall comply with all recommendations made by treating medical practitioners and therapists regarding the children including attendance at their appointments, the provision of prescription medication and other therapeutic supports.
15.Provided that their school is open and willing to take the children, that Y and Z are to attend school on each school day, including during the COVID-19 lockdown, with the mother to deliver them to school at the commencement of the school day and to collect them from school at the conclusion of the school day.
16.For the purpose of Order 15, the mother is to ensure that she sends Z’s wheelchair and her AFO’s to school with Z each morning.
17.Upon the lifting of COVID-19 restrictions that prevent the children attending school, all children are to attend school each day.
18.In the event that the children are unable to attend school pursuant to Order 15 and 17 because they are medically unable to, the parent whose care the child is in must provide a medical certificate that sets out the medical condition the child is suffering from and is to provide a copy of this medical certificate to the child’s school and to the Independent Children’s Lawyer.
19.The mother shall sign all necessary documents to facilitate all therapies for Y and Z to occur at their schools.
20.In the event the mother does not sign the documentation permitting therapy to occur at school, these Orders will act as an irrevocable authority permitting the therapists to work with Y and Z at their respective schools.
Information sharing orders
21.These Orders act as an irrevocable authority for the Independent Children’s Lawyer to discuss all aspects of this matter, including but not limited to the children’s welfare, wellbeing, health issues and needs and any concerns held by the Independent Children’s Lawyer about the children, with the children’s schools and their treating therapists and medical practitioners (including specialist medical practitioners).
22.These Orders act as an authority for the Independent Children’s Lawyer to provide a copy of these Orders to the children’s schools, treating therapists, medical practitioners and any other service providing assistance and support to the children and family.
23.The Independent Children’s Lawyer is permitted to write to the children’s schools, treating therapists and medical practitioners and any other service providing assistance and support to the children and family, in terms similar to the letter proposed by her in her outline of case document.
24.These Orders act as an irrevocable authority for the children’s schools, treating therapists, medical practitioners (including specialist medical practitioners) and any other service they attend upon to discuss all aspects of the children’s attendance and/or non-attendance at the service including but not limited to, detailing the therapy provided to the children, recommendations made about treatment and any concerns held about the children’s welfare, wellbeing with the Independent Children’s Lawyer.
25.These Orders act as an irrevocable authority for the children’s schools, treating therapists, medical practitioners (including specialist medical practitioners) to provide the Independent Children’s Lawyer with copies of all documentation requested by the Independent Children’s Lawyer.
26.The Independent Children’s Lawyer is granted leave to provide a copy of these Orders and the Tender Bundle and Supplementary Tender Bundle tendered by the Independent Children's Lawyer in these proceedings to the NSW Department of Communities and Justice.
Drug and alcohol testing
27.Within 7 days of the date of this Order, the mother is to undergo a 3 month, 5 panel chain of custody hair follicle test and within 24 hours of the receipt of such results is to provide those results to the father’s solicitor and the Independent Children’s Lawyer.
28.In order to complete the hair follicle drug test, the mother is to contact the C Clinic (…) to make a booking to complete the test.
29.In the event the mother’s test is positive for any illicit substances, the mother is required to submit to further hair follicle tests as requested by the Independent Children’s Lawyer and is to complete the test within 7 days of any request being made. The results are to be provided to the father’s solicitor and Independent Children’s Lawyer within 24 hours of receipt.
30.Within 7 days of the date of this order, the father is to undertake a carbohydrate-deficient transferrin (CDT) test and is to provide the test results to the mother’s solicitor and the Independent Children’s Lawyer within 24 hours of receipt.
31.In the event that the father’s CDT test returns a result indicating excessive alcohol consumption, the father is to submit to further CDT tests as requested by the Independent Children’s Lawyer and is to complete the test within 7 days of any request being made.
32.The Independent Children’s Lawyer is granted leave to provide all test results to DCJ.
33.Legal Aid NSW will be responsible for the fees associated with the hair follicle drug tests and the CDT tests referred to above.
Family report
34.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X, Y, Z, W and V (“the children”) attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to address:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children's relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children’s relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
35.Not later than 4.00 pm on 23 September 2021 the parties must provide their contact telephone numbers and email addresses to ...
36.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
37.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
38.The Family Consultant shall be at liberty to inspect any material filed by the parties.
IT IS FURTHER ORDERED THAT
39.The mother is restrained from leaving the children alone and unsupervised with Mr D.
40.The mother is restrained from allowing the children to have any contact with Mr D until the undertaking attached to these orders has been signed by Mr D and returned to the Court.
41.The parties are granted liberty to re-list the matter for further directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Palmer & Palmer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
UNDERTAKING
I, Mr D, undertake to the Federal Circuit and Family Court of Australia – Division 1 that:
(a)I will not be alone and unsupervised in the presence of any one or more of the following children:
(i)X;
(ii)Y;
(iii)Z;
(iv)W; and
(v)V (“the children”).
(b)I will not physically discipline or punish the children in any way.
I promise the Court that I will comply with the terms of the undertaking.
I understand that the undertaking has the same effect as an order of the court and that if I breach the undertaking, I may be guilty of contempt of the Court and may be punished by a fine or imprisonment.
Signed: Witnessed:
Date: Date:REASONS FOR JUDGMENT
GILL J:
These proceedings concern the interim parenting arrangements for the children of the relationship between Mr Palmer and Ms Palmer. The parents have had twelve children, of whom three are presently in the care of the mother and three presently in the care of the father. Save for R, the parties’ eldest child who was sadly stillborn, the balance of the children have been removed from the care of the parents with a number of those having now become adult.
On appearance at the interim hearing the parents presented a partially unified position whereby each agreed that the children currently in each parent’s care would remain in that parent’s care and that they would consent to a suite of complex injunctive orders proposed by the Independent Children's Lawyer (the ICL) that provide mechanisms for the monitoring of the well-being of the children.
Despite this level of agreement between the parents, the interim parenting arrangements remain deeply troubling, as illustrated by the ICL not supporting the making of orders for the children to live with either parent, on the basis that she asserts that there is an unacceptable risk of harm to the children no matter which parent they are with.
The underlying context is the parties commenced their relationship in 1996, finally separating in 2018. The five of their children that were placed into care were removed by the Department in 2007, with orders being made in the local court in 2008 that specified that the care arrangements would continue until the children were 18. Of the remaining children, Q, who is aged nine and who has been described as having Mosaic Down Syndrome, Oppositional Defiance Disorder, Global Developmental Disorder and a Reactive Attachment Disorder is subject to orders granting the Department of Communities and Justice (the Department) parental responsibility. She was placed into foster care, but is currently in the care of the father, under the supervision of the Department, with the proposal that the Department will allocate parental responsibility to the father, to the exclusion of the mother, later this year. Given that Q is, and presumably will remain the subject of orders under the state welfare jurisdiction, no order can be made in this Court about Q pursuant to s 69ZK, absent the consent of the Department or the order being structured as to only come into effect once the welfare orders concerning Q have ended.
In addition to Q living with the father, W who is aged 10 also lives with him, as does V aged 9 who has been described as having autism (level 2), intellectual disability, ADHD, anxiety and emotional dysregulation.
X, aged 13 lives with the mother and has been described as having Oppositional Defiant Disorder and ADHD. Y, aged 11 also lives with the mother and has been described as having autism and an intellectual disability and finally, Z aged 7 lives with the mother and has been described as having cerebral palsy, epilepsy and an intellectual disability.
It may be seen that this is a complex family, with children who have complex needs, set against a history suggestive of compromised parental capacity. The position of the ICL is reflective of the hard questions arising in respect of the welfare of these children. The material produced by the ICL points towards issues of risk in the father's care, being risk of neglect, physical abuse, psychological abuse and risks flowing from alcohol abuse on his part. In the mother's care risks have been identified as including neglect, physical abuse, psychological abuse and inadequate supervision. Ultimately, the ICL did not agree with, or propose any orders for the children to live with either parent, asserting that there is an unacceptable risk with both parents.
The position taken by the ICL comes in the context where, although the Department was invited to join the proceedings on 6 July 2021, the Department has declined having assessed the children in August 2021. The Department assessed the children in the mother's care as safe with no immediate dangers despite identifying issues then present of Y not taking medication, of Y having frequent suspensions from school, of X having been left with one of the mother's friends for a period six weeks, of poor school attendance and of the mother's partner and X admittedly yelling insults at each other. The assessments in the father's care also did not identify immediate concerns.
Despite declining to join the proceedings the Department appeared in the hearing of this matter and made Departmental officers available for cross-examination. It may be anticipated that at the final hearing of this matter it will be necessary to take further evidence from the caseworkers from the Department involved with this family.
The Department's current position comes in the face of risks identified by the ICL in the interim proceedings additional to the historical concerns and including the following:
(a)In August 2021 the father presented as under the influence of alcohol, contrary to his self-report.
(b)In July 2021 a report was made that the father was locking Q in her room overnight, without toilet access, and monitoring her with cameras. This report was apparently promptly closed by the Department.
(c)In August 2021 a report was made of serious neglect in the mother's home and lack of adult supervision, including Z, non-verbal, being found crawling in the street. Again, the investigation of this report was apparently promptly closed by the Department.
The Department made available its Risk and Safety Assessments that have led to the position that is now taken by the Department. It is unclear how reliable those devices are in assessing whether the children are at risk of abuse or neglect. At present it is not possible to have confidence in their reliability, particularly given recent instances of closure of cases where apparent instances of neglect were identified as set out above.
In determining the issues in the case it should be recognised that, whatever position is taken by the ICL, this Court is caught between a choice of parents. Unlike the state welfare jurisdiction, which arises where there is no suitable parent, this Court is not at liberty to place the children under the care of the Department unless the Department joins the proceedings. The court does not have access to the various foster and other arrangements that may be available in state welfare proceedings where neither parent is suitable.
Where there is no suitable parent the Court cannot simply compel the joinder of the Department. It may take the step previously taken in the then Federal Circuit Court to invite the Department to join the proceedings. Where, as here, there is a genuine question as to whether there is any suitable parent available it might be expected that the Department would take up such an invitation. In this case the Department has chosen not to join the proceedings.
As indicated above, the Court is thereby limited to choices in respect of the parents, as supplemented by the making of other protective orders to seek to secure the well-being of the children as proposed by the ICL.
Whether such orders are made on a final, or as here, a temporary basis, the paramount consideration in determining the arrangements of children is their best interests. In determining the best interests the Court is to take into account the considerations contained in s 60CC of the Family Law Act 1975. Presently the dominant of those considerations relate to issues of protection from harm occasioned by either abuse or neglect. They also prominently include a consideration of the effect of the change in the circumstances of the children.
In determining matters on an interim basis the Court is limited, by the limited capacity to test evidence, as to the factual findings that are able to be made in support of such orders.
Serious issues about the capacity of each parent arise and the material is neither persuasive, nor suggestive that the children will be better protected from neglect or abuse in one household or the other.
In the face of the combined position by the parents that the children should remain where they are, I am unable to conclude that they are better protected by an alternative arrangement, such as for the children all to live with one parent or another, or some combination thereof.
Under those circumstances orders will be made such that the children will continue to reside with the parent that they are living with.
The parties and the ICL agreed that there should be orders that provide for the children spending professionally supervised time with the parent that they are not living with. Orders should be made to support such an agreement.
While orders were pursued by the father seeking sole parental responsibility for the children the material at present does not justify taking such a course. It does not establish that the father is in a better position than the mother to exercise long-term decision-making for any of the children and at present no order should be made in respect of parental responsibility. The complexity of this particular case means that in the context of interim proceedings it is not appropriate to apply the presumption in favour of an order for equally shared parental responsibility and, absent the operation of presumption, no order should be made on the evidence in this case.
As noted earlier, the ICL has proposed a suite of orders that are agreed to by the parties. Those orders will restrain the parties from physically disciplining or punishing or allowing any third party to, restrain them from leaving the children without adequate supervision, and restrain them from the use of illicit substances or from consuming alcohol to excess. Further, the injunctions will compel the parties to comply with recommendations made by treating medical practitioners and therapists and to cause the children to attend the consultations with such people. The orders will provide that the children must attend school when the school is available (that is when it is not subject to a COVID-19 lockdown) which presumably is a mechanism designed to ensure the children are having appropriate contact with mandatory reporters.
The parties and the ICL also agree to a number of orders which will cause information to be shared with the ICL, and permit the ICL contact with the children’s schools, treating therapists, and medical practitioners and for the ICL to provide material including these orders to the medical practitioners. The ICL will also, unusually, be permitted to discuss all matters concerning the children with their various therapists and schools.
It may be observed that the above suite of orders proposed by the ICL are atypical and cast a heavy burden upon the ICL. However, the mechanism proposed is suitable for supporting welfare of the children and for seeking to protect them from neglect and abuse pending the final hearing in this matter.
In aid of preparing for a final hearing at the earliest opportunity an order will be made for the preparation of the family report with the parties to attend upon the Court Children's Expert in November of this year.
There remains however an outstanding issue that was not agreed to by the parties, or at least the mother, and was pursued by the ICL. That matter relates to injunctions preventing the mother’s partner, Mr D, with whom she lives, from coming into contact with the children.
Rather than consent to the ICL’s orders which would exclude Mr D completely from the children, the mother offers a part restraint such that Mr D will not be left alone with the children, and Mr D offers an undertaking to refrain from physically disciplining the children, and not to be with the children unless supervised by another adult. It should be observed at this point that part of the ICL’s concerns relate to the lack of capacity on the part of the mother to act in a way that might restrain Mr D.
The ICL points to material contained in the father’s affidavit where he alleges that the parties’ daughter, Ms F, now an adult, has told him that Mr D has hit X and Y and been verbally intimidating of Y, and further that Y expresses fear of him. The ICL also identified a COPS (New South Wales police records) entry of November 2020 indicative that X was found outside the mother and Mr D’s home and was upset following a dispute with Mr D. It is not material suggestive that the occasion was founded on abuse however.
The ICL also pointed to reports from the Department from October 2020 which alleged that Mr D had placed one of the children in a headlock or chokehold. The ICL further pointed to an incident where Mr D was seen to be yelling in one of the children's faces in a public park.
A number of these reports are weakened by the fact that they are anonymized as to their source. It should also be observed that the report said to come from Ms F is a hearsay report and care should be taken in terms of reliance upon it. It should also be seen though that the mother has conceded to the Department that Mr D and X had been yelling insults at each other.
The evidence is sufficient to demonstrate that there are significant issues in respect of Mr D’s interaction with the children.
However, there are matters that point the other way. Mr D is clearly a person who provides significant support to the mother under circumstances where she struggles to adequately parent and support the children that are living with her, being children who have significant special needs. Mr D has been reported as being the person who takes Z to school and to her appointments and so may be seen, despite the other concerns, as being significant to ensuring that the children have adequate support.
Despite the limitations in the protections offered by Mr D and the mother, on balance, it is not appropriate to exclude Mr D in the manner pursued by the ICL for the reasons I have identified above. Orders will be made as suggested by the mother and on Mr D’s giving of the undertaking by executing the undertaking document which will be annexed to the court orders, and the return of that to the court, Mr D will be then permitted to come into contact with the children.
Orders will be made accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 16 September 2021
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