Palmer & Palmer (No 4)

Case [2022] FedCFamC1F 634

Federal Circuit and Family Court of Australia

(DIVISION 1)

Palmer & Palmer (No 4) [2022] FedCFamC1F 634

File number: CAC 617 of 2021
Judgment of: GILL J
Date of judgment: 31 August 2022

Catchwords:

FAMILY LAW – PARENTING – Matter concerning the six youngest children of the parents where all of their older siblings have previously been removed pursuant to state welfare laws – Where both parents have limited capacity in caring for their children, as framed by instances of abuse and neglect – Where the parents’ respective challenges in prioritising the best interests of their children with the highest care needs, exemplifies their lack of capacity to care for their other children – Where the father initially sought sole parental responsibility for all six children – Intervention by the Minister for Families, Communities and Disability Services, NSW – Stark options of alternative care arrangements provided by the Minister in removing the children from parents’ residence – Where realities of alternate care include unspecified and uncertain stays in motel accommodation with supervision provided by rotating staff with minimal qualifications – Where it is determined that the least worst option involves the Minister being granted sole parental responsibility of all six children, including retaining capacity to determine the children’s residence, and providing intensive, practical support to scaffold care in the parents’ homes to counteract neglect.

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZK

Children and Young Persons (Care and Protection) Act 1988 (NSW) s 79
Cases cited:

Isles & Nelissen [2022] FedCFamC1A 97

Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No 3) [2007] FamCA 1364

M v M (1988) 166 CLR 69

Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41

Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Division: Division 1 First Instance
Number of paragraphs: 346
Date of hearing: 1–9 August 2022
Place: Wagga Wagga
Counsel for the Applicant: Mr Masters
Solicitor for the Applicant: KPW Lawyers
Counsel for the Respondent: Ms Bateman
Solicitor for the Respondent: Inner West Solicitors Pty Ltd
Counsel for the Independent Children’s Lawyer: Mr Stagg
Solicitor for the Independent Children’s Lawyer: Legal Aid, NSW
Counsel for the Intervener: Mr Moore
Solicitor for the Intervener: Crown Solicitors Office

ORDERS

CAC 617 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PALMER

Applicant
AND:

MS PALMER

Respondent

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Intervener

INDEPENDENT CHILDREN’S LAWYER

order made by:

GILL J

DATE OF ORDER:

31 AUGUST 2022

THE COURT ORDERS THAT:

1.All previous orders and undertakings in relation to X, born in 2008, Y, born in 2010, W, born in 2011, V and Q, both born in 2012 and Z, born in 2013 are discharged.

2.The Minister for Families, Communities and Disability Services New South Wales (“the Minister”) has sole parental responsibility for X, born in 2008, Y, born in 2010, W, born in 2011, V and Q, both born in 2012 and Z, born in 2013, with such parental responsibility…

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AGLC
Palmer & Palmer (No 4) [2022] FedCFamC1F 634
Case
[2022] FedCFamC1F 634
Decision Date

CaseChat Overview and Summary

Palmer & Palmer (No 4) involved the six youngest children of the parents, following the removal of their older siblings under state welfare laws due to instances of abuse and neglect. The parents, both deemed to have limited capacity in caring for their children, initially sought sole parental responsibility for all six children. However, the Minister for Families, Communities and Disability Services, NSW intervened, presenting stark options for alternative care arrangements. These included uncertain stays in motel accommodation with supervision by rotating staff with minimal qualifications. The court had to decide whether the Minister should be granted sole parental responsibility for all six children, including retaining the capacity to determine the children's residence, and providing intensive, practical support to scaffold care in the parents' homes to counteract neglect.

The legal issues before the court encompassed the determination of the best interests of the children, the parents' capacity to provide adequate care, and the necessity for the Minister to be granted sole parental responsibility. The court considered the evidence of past neglect and abuse, the parents' history of care, and the potential risks to the children if they were to remain in the parents' care. The court also had to weigh the available alternatives for the children's care and the likelihood of achieving better outcomes under the Minister's care. The court had to balance the rights and welfare of the parents against the paramount need to protect and promote the best interests of the children.

The court found that the parents' history of neglect and abuse, combined with their inability to prioritise the best interests of their children with the highest care needs, exemplified their lack of capacity to care for all six children. The court determined that the least worst option for the children was for the Minister to be granted sole parental responsibility. This included the authority to determine the children's residence and to provide intensive, practical support to scaffold care in the parents' homes to counteract neglect. The court emphasised that the absence of an order for the children to spend time with a parent did not restrict the Minister from placing any child to live with, or arranging for any child to spend time with, a parent. The court also issued injunctions to restrain the parents from physically disciplining or harming the children, leaving them unattended, or in the care of any person under the age of 18 years, using illicit substances, or consuming alcohol above the legal limit for driving.

The court made orders granting the Minister sole parental responsibility for each of the six children. This included decisions about where and with whom each child shall live, who a child may spend time with, what therapy or medical intervention will take place for each child, and each child's attendance at school. The court also issued injunctions to restrain the parents from physically disciplining or harming the children, leaving them unattended, or in the care of any person under the age of 18 years, using illicit substances, or consuming alcohol above the legal limit for driving. The Independent Children's Lawyer was permitted to explain the operation and practical effect 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.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. All previous orders and undertakings in relation to X, born in 2008, Y, born in 2010, W, born in 2011, V and Q, both born in 2012 and Z, born in 2013 are discharged.

2. The Minister for Families, Communities and Disability Services New South Wales (“the Minister”) has sole parental responsibility for X, born in 2008, Y, born in 2010, W, born in 2011, V and Q, both born in 2012 and Z, born in 2013, with such parental responsibility to include, but not be limited to:

(a) where and with whom each child shall live;

(b) who a child may spend time with;

(c) what therapy or medical intervention will take place for each child; and

(d) each child’s attendance at school.

3. The mother and father 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.

4. The mother and father are restrained by injunction from leaving the children unattended in their home without adult supervision under any circumstances.

5. The mother and father are restrained by injunction from leaving the children in the care of any person under the age of 18 years.

6. The mother and father are restrained by injunction from leaving any of the children in the care of their siblings.

7. The mother and father 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.

8. The mother and father are restrained by injunction from consuming alcohol to a level above the legal limit for driving during any time the children are in their care pursuant to these orders.

9. 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.

10. The Independent Children’s Lawyer is permitted to explain the operation and practical effect 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.

11. The Independent Children’s Lawyer is to be discharged 7 (seven) days after the date Final Orders are made.

It is noted that the absence of an order for the children to spend time with a parent does not restrict the Minister from placing any child to live with, or arranging for any child to spend time with, a parent.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

This calls for a careful consideration of the care of the children, who are the subject of the proceedings, the arrangements available to the children, and more generally the parenting history of the parents. That history is set out below.Factual BackgroundEvidence in relation to the parties and the care of children It is appropriate to summarise the history leading up to the removal of the older children, then to set out the history of the care of the children leading up to and following the parents ceasing to live under the one roof, through to the hearing of the matter.History of the older children leading up to orders of the NSW Children’s Court in early 2008 It is convenient to outline the care history of the Department of Communities and Justice (“DCJ”) involvement with the family in relation to the older siblings of the children, Mr M, Ms F, Ms J, K and L. This history may be recited in summary form, but is significant as it speaks to the capacity of each of the parents and as to risks to the older children that emerged whilst under the care of the parents. It culminates in final orders being made, pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1988 (NSW), by consent in the NSW Children’s Court allocating parental responsibility for the children to the Minister until the children are eighteen. Such an order is predicated upon the court concluding that the children are in need of care and protection. Those orders have resulted in the children being placed in various forms of out of home care. The history underpinning those proceedings is contained in the affidavit of a DCJ caseworker prepared in support of the ultimate application before the NSW Children’s Court.[7] That affidavit outlines both numerous notifications made to DCJ along with the responses to such. As the notifications do not identify the notifier, only limited weight can be given to the notifications themselves. However, where the notifications were followed by direct interaction between DCJ caseworkers and the children and parents, the observations made, and conversations recited by the caseworkers are of assistance in identifying instances of harm occasioned to the older children.[7] Exhibit ICL 2. Similarly, the clinical assessment provided for those proceedings by Dr AC,[8] a clinical psychologist, is also of assistance in establishing the background to the earlier removal.[8] Exhibit ICL 3. Dr AC concluded that the parents “have minimal insight into developmentally appropriate expectations for their children.” Concerningly, the father’s view was that he had left the child rearing to the mother, whilst the mother “does not appear to have an ability to form an adequate attachment with [Ms F] or her other children.” Dr AC considered that the children were at risk of a disorganised attachment with the mother, being fearful of her responses to them, and at further risk of psychopathology. The father, however, appeared to Dr AC to be “more able to develop more appropriate attachment with the children,” and to be more emotionally available.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Lastly, the mother sought an injunction preventing either party from moving more than fifty kilometres from G City. This was (it seems) reliant upon the father having formed a relationship with a woman who lives in Region BJ (a relationship that he was deceptive about in his affidavit evidence). Under circumstances where the Minister will have parental responsibility and so will be tasked with making decisions about where the children live and the arrangements that permit the children to spend time with each other and with the parents, such a restraint is not called for.Conclusion Orders will be made for the Minister to hold sole parental responsibility for each of the children, specifically including but not limited to:(a)where and with whom each child shall live;(b)who a child mat spend time with;(c)what therapy or medical intervention will take place for each child; and(d)each child’s attendance at school. Injunctions will be made as identified above.

Ratio Decidendi

Legal Principle Established

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