Pareira and Chase and Ors
[2007] FamCA 1347
•13 November 2007
FAMILY COURT OF AUSTRALIA
| PAREIRA & CHASE AND ORS | [2007] FamCA 1347 |
| FAMILY LAW – CHILDREN – Interim Orders – With whom a child lives |
| Family Law Act 1975 (Cth) |
| Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Pareira |
| 1st RESPONDENT: | Mr Chase |
| 2nd RESPONDENT: | Mr Quest |
| INDEPENDENT CHILDREN'S LAWYER | Ms Mowbray |
| INTERVENOR | The Director-General, Department of Community Services |
| FILE NUMBER: | WOC | 1155 | of | 2007 |
| DATE DELIVERED: | 13 November 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 12 November 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Lukes law |
| SOLICITOR FOR THE 1ST RESPONDENT: | DGB Lawyers |
| SOLICITOR FOR THE 2ND RESPONDENT: | John Dawson & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Verekers Lawyers |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor’s Office |
Orders
PENDING FURTHER ORDER:
That the operation of all prior parenting orders and injunctions in relation to the children L born … December 1997; N born … August 2003; and S born … July 2007 (together “the children”) is suspended.
That the children shall live with Mr Chase.
That the child L shall spend time with her father Mr Quest:
3.1Each alternate weekend from after school Friday to before school Monday.
3.2As may otherwise be agreed between Mr Quest and the Director-General.
That the children shall spend time with the mother:
4.1Between 9am and 5pm on two days each week and failing agreement as to place of changeover and/or which days at a time and place nominated by the Director-General of the Department of Community Services or his delegate (“the DG”).
4.2As may otherwise be agreed by the DG.
That each party (except the Independent Children's Lawyer) keep the DG informed of his or her residential address and contact telephone number.
That each party (except the Independent Children's Lawyer) permit the DG to visit the children at his or her home whilst they are in his or her care pursuant to these orders with or without prior arrangement.
That each party (except the Independent Children's Lawyer and the DG) shall be and hereby is by injunction restrained from:
7.1Consuming alcohol or being under the influence of alcohol whilst the children are in his/her care.
7.2Permitting the children to remain in the presence of an event of domestic violence.
7.3Permitting the children to be cared for by any other person without the prior consent of the DG and noting that consent will not be given to the following persons:
7.3.1Mr MM;
7.3.2Mr WM;
7.3.3Ms CH and
7.3.4Ms JH.
and in particular Mr WM not drive the child L to school or otherwise provide transportation for the child L.
That the person with who L lives pursuant to these orders shall ensure that she attends school.
The person with whom the child S lives pursuant to these orders shall ensure that he attends an appointment with an early childhood nurse with such frequency as the nurse shall recommend and in any event not less than once a month with the first such attendance to be before 26 November 2007.
That the mother shall engage in:
10.1drug and alcohol counselling;
10.2general counselling (noting that the one person may be able to perform both functions).
as recommended by Mr K in his report released 7 November 2007.
The court notes:
11.1that the maternal grandfather shall arrange with Mr Quest to ensure that the child L spends time with her brother B when L spends time with her father; and
11.2that the maternal grandfather shall arrange with Mr Chase to ensure that the children N and S spend time with their brother B when the children are living with Mr Chase.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Pareira & Chase and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC. 1155 of 2007
| MS PAREIRA |
Applicant
| MR CHASE |
1st Respondent
| MR QUEST |
2nd Respondent
| THE DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES |
Intervenor
REASONS FOR JUDGMENT
INTRODUCTION
This interim hearing is about where the children L born in December 1997 (aged 9 years), N born in August 2003 (aged 4 years) and S born in July 2007 (aged 3 ½ months) shall live between now and when the matter is resolved after the conclusion of the final hearing. I am told that the conclusion of the final hearing is scheduled to commence before Moore J on 29 January 2008. Other orders are sought which are not in significant contention. The applications before me are, in part, a review of a decision of Loughnan JR made on 23 October 2007 where the Judicial Registrar ordered that S and N reside with their father Mr Chase. The Judicial Registrar on that day issued a recovery order but stayed the operation of that order. He refused to stay of his order returning the children to their father on 26 October but Rose J granted that stay on the same day. N who had been returned to his father went back to his mother on 31 October 2007.
DOCUMENTS READ
Exhibit A sets out the documents relied upon by each of the parties to the proceedings. They were as follows:
The Department
1.Application in a Case filed in court 2 November 2007
2.Reports of Dr Q 12 October 2006 and 2 March 2007
3.Affidavit of Ms SG sworn and filed 2 November 2007
4.Affidavit of Ms EW sworn and filed 2 November.
Mother
1.Application filed 24 October 2007
2.Affidavits of mother sworn 24 October 2007 and 12 November 2007
3.Report of Mr K dated 7 November 2007
4.Affidavits of Mr Chase sworn 17 October 2007 and 24 October 2007
Mr Chase
1.Response to application in a Case filed in court
2.Affidavit of Mr Chase sworn 9 November 2007
3.Affidavit of Mr WE sworn 7 November 2007
4.Affidavit of Ms VE sworn 7 November 2007
5.Family report of Dr Q dated 12 October 2006
6.Affidavit of the mother sworn 24 October 2007
Mr Quest
1.Response filed 12 November 2007
2.Affidavit affirmed 12 November 2007
3.Affidavit sworn 9 March 2006
Material from subpoenaed records has also been tendered.
The maternal grandfather did not rely upon any documents.
APPLICATIONS
The Director-General of the Department of Community Services
The application of the Director-General of the Department of Community Services is in the following terms:-
1.That the operation of all prior parenting orders and injunctions in relation to the children [L] born […]/12/1997; [N] born […]/8/2003; and [S] born […]/7/2007 (together “the children”) is suspended.
2.That the children shall live with Mr [Chase].
3.That [the child L] shall spend time with her father Mr [Quest]:
3.3Each alternate weekend from after school Friday to before school Monday.
3.4As may otherwise be agreed between Mr [Chase] and Mr [Quest].
4.that the children shall spend time with the mother:
4.3Between 9am and 5pm on two days each week and failing agreement as to place of changeover and/or which days at a time and place nominated by the Director-General of the Department of Community Services or his delegate (“the DG”).
4.4As may otherwise be agreed by the DG.
That in the alternative to Orders 1 to 4 inclusive
5.That the children live with the mother.
6.That the children [N] and [S] spend time with their father between 5pm Sunday and 11am Wednesday each week, with changeover to take place at [T] Police Station.
7.That the child [L] spend time with her father between 9am Saturday and 5pm Sunday each alternate weekend, with changeover to take place at [T] Police Station.
8.That the mother shall ensure:
8.1That [N] attends preschool each Thursday and Friday.
8.2That [S] attends daycare for at least two hours on each Thursday and Friday.
8.3The Court notes that the DG will assist the mother with the implementation of this order including if necessary confirming the enrolments and making necessary payments.
Irrespective of the orders made in relation to where the children live
9.That each party (except the ICL) keep the DG informed of his or her residential address and contact telephone number.
10.That each party (except the ICL) permit the DG to visit the children and his or her home whilst they are in his or her care pursuant to these orders with or without prior arrangement.
11.That each party (except the ICL and the DG) shall be and hereby is by injunction restrained from:
11.3Consuming alcohol or being under the influence of alcohol whilst the children are in his/her care.
11.4Permitting the children to remain in the presence of an event of domestic violence.
11.5Permitting the children to be cared for by any other person without the prior consent of the DG and noting that consent will not be given to the following persons:
11.5.1Mr [MM];
11.5.2Mr [WM];
11.5.3Ms [CH] and
11.5.4Ms [JH].
12.That the person with who [L] lives pursuant to these orders shall ensure that she attends school.
13.The person with whom [S] lives pursuant to these orders shall ensure that he attends an appointment with an early childhood nurse with such frequency as the nurse shall recommend and in any event not less than once a month with the first such attendance to be before 26 November 2007.
14.That the mother shall engage in:
14.1drug and alcohol counselling;
14.2general counselling (noting that the one person may be able to perform both functions).
as recommended by Mr [K] in his report released 7 November 2007.
15.The court notes:
15.1that the maternal grandfather shall arrange with either Mr [Chase] or Mr [Quest] to ensure that [L] spends time with her brother [B]; and
15.2that the maternal grandfather shall arrange with Mr [Chase] to ensure that [N] and [S] spend time with their brother [B].
Mother
The mother seeks orders in the terms of Exhibit B as follows:-
1.That the children [L] born […]/12/1997; [N] born […]/8/2003; and [S] born […]/7/2007 live with the mother.
2.That the child [N] spend time with the father from 12 noon Sunday to 12.00 noon Tuesday of each week.
3.That the child [S] spend time with the father for two hours on a Sunday and two hours on a Tuesday.
4.That the child [L] spend time with her father as per current Court orders.
5.That all changeovers take place at [T] Police Station.
The solicitor for the mother indicated that in relation to orders 7 to 15 as sought by the Director-General:-
7.1.orders 7, 9, 10, 11.1, 11.2, 12, 13 and 14 were consented to without admission;
7.2.in relation to [the child L] coming into contact with [B], she consents to that but expresses concern that [L] may be adversely affected by contact with the maternal grandfather;
7.3.in relation to order 11.3 as sought, she opposes an order that would restrain her from having the children cared for by any other person without prior consent of the Director-General, although without prejudice, she agrees to the named persons being restrained from being carers.
Mr Chase (father of N and S)
Mr Chase seeks orders in the same terms as paragraphs 1 to 4 and 9 to 15 of the application made by the Director-General of the Department of Community Services.
Mr Quest (father of L)
Mr Quest wants orders in terms of paragraphs 5 to 15 of the application of the Director-General of the Department of Community Services, except that in relation to order 7 he would seek that L’s time with him be between 5.30pm Friday, and not 9am Saturday. The 5.30pm Friday commencement time is in accordance with the current orders, made 23 January 2007, and is what is happening at the moment. In the event that that application is unsuccessful, Mr Quest would prefer that L come and live with him as opposed to going to live with Mr Chase. Mr Quest also wanted an alteration to order 3 as sought by the Director-General of the Department of Community Services, in that if L lived with Mr Chase, then she would spend time with him in accordance with paragraph 3.1 and any further time in accordance with paragraph 3.2 would be agreed on between the mother, himself and the Department.
Independent Children's Lawyer
The Independent Children's Lawyer was supportive of orders 5 through to 15 as sought by the Director-General of the Department of Community Services with the following amendments:-
10.1.It was suggested that in order 6 as proposed, T Police Station be replaced by a neutral location such as T McDonalds and a similar alteration be made to order 7.
10.2.It was further proposed that order 7 be amended so that it was in accordance with the current orders, namely from 5.30pm on Friday.
An amendment to order 11.3 as sought so that the words are added at the end “and in particular [Mr WM] not drive [the child L] to school or otherwise provide transportation for [L]”.
In relation to the notations that were sought, the Independent Children's Lawyer suggested that they should be amended to read:
15.1That the maternal grandfather shall arrange with Mr [Quest] to ensure that [L] spends time with her brother [B] during the weekend when [L] spends time with her father.
15.2That the maternal grandfather shall arrange with Mr [Chase] to ensure that [N] and [S] spend time with their brother [B] when the children are living with Mr [Chase].
The Maternal Grandfather
The maternal grandfather wanted the child L to come and live with him so that she is reunited with B who is currently living with him. The maternal grandfather acknowledged that that would mean that L was separated from N and S. The maternal grandfather relied on no evidence nor made any submissions to support his application.
WHAT IS CURRENTLY HAPPENING
All three children who are the subject of this application are currently living with their mother. L is seeing her father each alternate weekend pursuant to the order that has been in place for some time. There is no order in place at the current time for N and S to spend any time with their father and they have not had any contact with him (apart from N being with his father in the second part of October 2007 as a result of the orders made by Loughnan JR) since September 2007.
THE FUTURE OF THE MATTER
As already mentioned, the matter is listed before Moore J for continuation of the final hearing on 29 January 2008. I am informed that Her Honour indicated at 9.45am on 12 November 2007 that she did not have time available to hear an interim application in this matter.
SHORT HISTORY
Mr Chase was born in March 1966.
Ms Pareira (the mother) was born in September 1974.
The child B was born in February 1994.
The child L was born in December 1997.
The relationship between the mother and Mr Chase commenced in June 2002.
The child N was born in August 2003.
Mr Chase said he and the mother separated in March 2007 but he continued to spend occasional time at her home.
The child S was born in July 2007.
Mr Chase asserts that the final separation took place on 5 September 2007. The mother disputes that that is so.
In September and October 2007 the Department received three notifications in relation to the mother’s excessive use of alcohol.
The father received the information from Y Preschool on 15 October 2007 that the child N had been un-enrolled at the school. He filed an initiating application for a recovery order on 16 October 2007.
On 22 October 2007 the mother’s lawyers indicated to Mr Chase that the mother might be residing at … Street, C. It is not disputed that the mother unilaterally moved from the Wollongong area to C (which is some way outside T) without reference to the father and unilaterally moved the children when doing so.
On 23 October 2007 the Judicial Registrar made an order for recovery. The child N was returned to the father on 25 October 2007 but the child S was not.
As indicated earlier, N went back to his mother on 31 October 2007 after Rose J had granted a stay on 26 October 2007 of the orders made by Loughnan JR on 23 October 2007.
INTERIM PARENTING – CHILDREN
As the Full Court observed in Goode & Goode (2006) FLC 93-286, an interim application for parenting orders is by its nature an “abridged process where the scope of the inquiry is necessarily significantly curtailed”.
THE ISSUES IN DISPUTE
Many of the facts in the evidence of each of the parties in this case are not agreed. I am unable, within the confines of an interim hearing, to be drawn into disputed issues of fact or disputed matters relating to the merits of each of the parties’ cases.
BEST INTERESTS (Section 60CA)
The best interests of the children are paramount.
SECTION 60CC MATTERS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents
It was not suggested by anyone in submissions that each of the children would not benefit from having a meaningful relationship with both of their respective parents.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The primary focus in the submissions was on the second primary consideration. It was put on behalf of the Director-General and Mr Chase that there was an urgent need to protect the children from being exposed to a risk of neglect by their mother arising from concerns that flow both from her alcohol dependence and her mental state.
Dr Q completed her first report on 12 October 2006. The interviews for that report were carried out by her on 7 September 2006.
At page 47 of her report Dr Q says:-
“[The mother] has a grossly disturbed history. There is a long and well documented history of alcohol abuse and violence. She has shown this kind of disturbance since her early teenage years and it is clear that her early family life provided an extremely difficult developmental environment. As is to be expected with such a background, she has severe post traumatic personality disorders (in DSM terms this is understood as Cluster B Personality Disorder). This, in turn, has led to problems with alcohol, at least, and possibly with drug abuse, although the latter issue seems open to question.”
At page 48, Dr Q says:-
“[The mother] is insistent that she is now stable and that the problems with violence and alcohol abuse are behind her. It is unusual with such an entrenched pattern for a complete turnaround to be achieved in 18 months, but it is certainly encouraging. She is confident and seems very committed to maintaining her current stability but it is difficult to share her confidence that this can be sustained. In my view she has not been adequately treated; she has had some limited counselling and has not attended AA; she repeats that she is ‘not an alcoholic and that has been proven’ but this does not accord with the well documented history.
Given [the mother]’s history, I would expect a minimum of a two year period of rehabilitation and an ongoing commitment to a formal program of drug and alcohol counselling and of personal psychotherapy. Otherwise, given her past history and the volatility of the current situation, the pressures operating to trigger a relapse into a repetition of past difficulties must be enormous.”
An order was made on 23 March 2007 that the mother see Mr K. Mr K received correspondence about this order in mid May 2007. By this time the mother was very late in her pregnancy with S and interviews on 28 September and 5 October had to be cancelled because the mother had at that time moved to C. The face to face interviews undertaken by Mr K with the mother happened on 31 August 2007 and 22 October 2007. The first interview was relatively brief because the mother got lost on her way to the appointment and N became restless during the interview. Most of the information was obtained by the mother from the mother at the second interview.
The mother denied the use of drugs by injection but acknowledged to Mr K the recreational consumption of alcohol with occasional heavier consumption.
The mother gave Mr K the impression that she was reluctant to provide detail of biographical data but she acknowledged a history of having formed attachments to males who were substance abusers and violent. He concluded she was the recipient of extreme violence and impressed as quite traumatised. During her presentation at the interviews, Mr K saw no signs of intoxication or signs of chronic problematic consumption of substances or dependence. Mr K however said that his face to face contacts had been limited by the circumstances in which the interviews took place.
Mr K’s conclusion was that based on his limited assessment there was no indications that would lead him to propose that the mother undertake detoxification or a structured residential treatment program.
Mr K organised a referral of the mother to Ms KL who is a drug and alcohol worker at T Community Health Centre. The mother’s first appointment with Ms KL is today, Tuesday 13 November. Mr K reports that Ms KL has indicated that she sees the referral as most usefully focused on relapse prevention. Mr K says that Ms KL is very much aware of the dimension of the drug and alcohol clinical case work that is concerned with ensuring the safety and wellbeing of children who are in the care of a person affected by their own substance use or by the substance use of their associates and intimates.
The mother during her interview with Mr K told him (at page 6 of the report) that she had been using alcohol since the age of 16 and by the age of 19 or 20 she was having “drinking episodes” two or three times per week. She would have nine standard drinks over a period of four hours. The mother denied to Mr K that she had ever engaged in daily consumption of alcohol.
In relation to recent alcohol consumption she told Mr K that three weeks before the first interview (that is, in the first week of August 2007) and at a time when the child S was barely one week old, she had consumed 5.2 to 6 standard drinks. At the second interview she told Mr K that the last occasion of drinking was about 5.8 to 6.75 standard drinks on Friday 5 October 2007.
The mother denied adverse events associated with alcohol consumption (other than those associated with being “assaulted by Mr [Chase]”). The mother gave Mr K the impression that it was Mr Chase who was the aggressor in their relationship, particularly at times when she had been drinking.
The mother has indicated in her affidavit (sworn 12 November 2007) that she is agreeable to comply with the recommendations of Mr K. At paragraph 33 of her affidavit she says that she is willing to attend counselling through the T Area Health Service and has an appointment with them on Tuesday 13 November 2007.
Dr Q has summarised material relating to the history of the mother’s alcohol use. Some of the COPS records which have been tendered confirm part of Dr Q’s summary.
In October 2004 there was an incident between the mother and Mr Chase. The entry reads (page 3):
“October 2004: domestic violence. POI (which stands for person of interest) is [the mother] and the victim is [Mr Chase]. They are in a defacto relationship and were consuming alcohol together, she was extremely intoxicated and the police eventually found her using the dog squad, lying on the grass with the child who is one year old”.
It is clear that the child referred to in that entry is N and based on the entry he must be considered to have been at risk at that time.
There is a COPS report in May 2004 where the mother had become intoxicated and had an argument with a female person against whom she then committed an offence.
In April 2004 there was a domestic incident between the mother and Mr Chase and the mother was noted in the police records as being the perpetrator. The incident involved alcohol and an argument.
The mother was convicted and placed on a bond for breaching an AVO in November 2004.
There are over 30 incidents recorded on pages 3 and 4 of Dr Q’s first report. Most of them involve violence and alcohol. Many of them occur at a hotel. A reading of this summary in Dr Q’s report would indicate that it was probable that the children were at risk during some of the periods when the mother was drinking. A lot of the time she was drinking with Mr Chase when the recorded incidents occurred. On some occasions the police have recorded him as the POI (person of interest) and the mother as the victim but more often than not she is the person of interest to the police and Mr Chase is the victim.
At page 6 Dr Q refers to DoCS records and a protection planning meeting in December 2004. It is recorded that there are concerns about DV and the mother’s alcohol use. The March 2006 assessment (referred to on page 7) records that the mother “is currently addressing issues relating to alcohol and violence, tends to blame others for her behaviour, namely her parents”.
Mr Cook referred to the notification in August 2001 which reported that the mother was known for picking up guys and later making allegations that she had been assaulted.
The child B’s recollection of his time with his mother are not positive. At page 22 Dr Q records B remembering:
“Mum has been drunk, smashed a car. She has driven the car with me and [the child L] in it and nearly smashed it. [Mr Chase] drinks a lot. Mum does too. She will do anything to get drunk like every second day. She wasn’t very good on the daily chores either, she would be fighting with [Mr Chase]. I got my own breakfast and tried to help [L] and [N]. I had to feed the baby. Sometimes mum fed him but often she was drunk.”
This passage also complains about Mr Chase and concludes:
“Mum can be violent when she is not drunk as well and so can [Mr Chase].”
At page 26 of Dr Q’s report she records the maternal grandfather saying that the mother was into alcohol first and then she got into drugs.
The solicitor for the mother said that I should look at Mr Chase’s most recent affidavit (and particularly paragraphs 19, 24, 26, 27, 29, 30 up to 38) with some reservation. They contain material that paints a black picture of the mother’s use of alcohol and drugs which is not contained in an affidavit that he swore on 17 October 2007 in support of his application before the Judicial Registrar. I accept that submission.
The most extreme example is paragraph 26 of Mr Chase’s affidavit where he records the mother saying to him that she went to a Hotel in November 2006 “for some crystal”. He says he believed that was a reference to crystal meth. This is a serious allegation and one that I would have expected to have seen in the affidavit material filed in October 2007 by the father.
At a time when Mr Chase was supporting the mother’s case (September 2006), he told Dr Q that the mother had a problem with drinking and that there would often be an argument that would blow up and that she would get violent (page 35).
A recent report of the mother’s drinking is contained in paragraph 5 of the affidavit of Ms SG sworn 2 November 2007. A report was received on the Help Line at DoCS in relation to the three children on 25 September 2007. The reporter was concerned with the mother’s excessive use of alcohol. The reporter said she observed the mother consume six beers in a period of 45 minutes. The reporter said the children were present with the mother. The Department has not disclosed to the Court who the notifier was on this occasion. It is impossible therefore to assess the independence of the report, but if true it is disturbing.
There are two further notifications about the mother using alcohol to excess on 4 October 2007 and 9 October 2007.
Exhibit C records that there have only been two recorded incidents involving the mother and the police in 2007. One involving Mr Chase and the other involving a neighbour.
Mr Quest is supportive of the children remaining with their mother. At paragraph 49 of the affidavit of Mr Quest sworn 12 November 2007, he reports that he went to C on 12 October 2007 and took 24 stubbies with him. He says that he returned home with twelve stubbies and he drank seven or eight himself. This means that Mr Quest is asserting that the mother on that occasion only drank four or five stubbies. This evidence is corroborative of what the mother told Mr K about her alcohol consumption on Friday 5 October 2007.
At paragraph 28 of the mother’s affidavit sworn 12 November 2007 she says:-
“I do not have a problem with alcohol but have agreed to not drink any alcohol at all. I am aware that an order has been made that I am not to drink alcohol and I agree to abide by this.”
This most recent statement by the mother on her oath is quite disturbing. On the one hand she is agreeing to participate in counselling with Ms KL to assist her with her problem with alcohol; on the other hand she has no insight as to why it might be that Mr K has recommended that counselling.
Dr Q (at page 48) indicated that she would expect a minimum of a two year period of rehabilitation and ongoing commitment to a formal program of drug and alcohol counselling and of personal psychotherapy to avoid the risk of a trigger of a relapse into the repetition of past difficulties.
Additional considerations
Views expressed by the children and the weight they should be given
Dr Q at page 40 cautions against the weight to place on the child L’s wishes. She concludes that L rarely indicates what she wants in any context and rather she will say what she believes others wish. Neither the children N or S are old enough to express any wish.
The nature of the relationship of the children
Dr Q opines at page 41 that L is primarily attached to her mother. She was very anxious not to betray loyalty to her mother in any way.
Mr Chase is recorded by Dr Q (at page 42) as having a strong and appropriate bond with N and visa versa. He relates very appropriately to and has a very affectionate bond with L and she with him as would be expected in a relationship between step parent and child.
The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
As indicated previously, the mother’s move from the Wollongong area to the T area was made by the mother unilaterally. This reflects poorly on the mother’s willingness to encourage a continuing relationship between the children and their fathers.
The likely effect of any changes including effect of separation from parents or others
The Full Court in Goode & Goode (supra) at paragraph 72 made it clear that where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child/children, the court must follow the structure of the Act as it has been amended.
In my view, on the information available, there is doubt as to whether or not the mother’s current arrangements could be described as settled or stable.
I am mindful of S’ age and that the interim orders suggested by the Director-General might have an effect upon S’ attachment to his mother.
It seems an agreed fact that S is currently not being breastfed.
Mr Cumming relied upon statements made by Mr Chase in his affidavit material. He pointed to the fact that based on paragraph two of Mr Chase’s affidavit of 9 November 2007; one should assume the father has only had minimal time with the child S since he was born. In that paragraph the father says “we finally separated in about March 2007 however I continued to stay occasionally and spent time with the children on a flexible arrangement until September 2007”.
Page 81 of Exhibit D contains a record of attempts by DoCS to identify where it was that S was receiving early childhood care.
The Director-General complains that the mother has been tardy in taking S to an early childhood nurse and submits that there is only one record of that happening. There is only one record; there is evidence the Department made inquiries to see if there were other efforts made by the mother and those inquiries did not reveal other efforts but I do not know if S has only seen an early childhood nurse once.
The practical difficulty and expense of a child spending time with and communicating with a parent and the effect on personal relations and direct contact with both parents on a regular basis
The practical difficulty and expense of children spending time with and communicating with their fathers has been affected by the mother’s move.
The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs)
Dr Q comments (at page 44) that the mother’s parenting capacity is quite limited (and is probably a reflection of what she has experienced in being parented herself). She expresses disappointment as anger, condemnation and rejection.
The mother has taken the child L out of her school in the Wollongong area.
A phone call to C School on 9 October 2007 disclosed that although L was at school that day she had not gone to school the previous day and she was not going to be at school on the following day.
Since L has been in the T area her attendance at school has been less than good. Exhibit C (records produced by the NSW Police) contain a DoCS file note dated 31 October 2007. Case worker Ms D records that L is not at school on that day and speaking to the principal she has been absent three days out of the two and a half weeks that she has been enrolled at the school.
Page 79 of Exhibit D records that whilst L was in the Wollongong area her school attendance was good and she was well behaved.
I am informed that there is no issue that L would be able to go back to Y Public School to complete her 2007 education there.
Dr Q records that Mr Chase appears to have a reasonable capacity for relating to the children. He enjoys very solid support from his parents, and his parents are very grounded people who have good capacity to relate to the children and to respond to their needs (page 44).
Issues in relation to the mother’s present circle of friends in C
Part of Exhibit C records that a close friend of the mother (who lived next door to her at C) was Mr WM. A criminal history check of Mr WM indicated a sexual offence against a child with which he was charged “but this was dropped due to the young age of the child and the police’s inability to gain a clear disclosure in order to gain a conviction”. Another person known at the mother’s address was Mr MM “who was also known to police for a number of assault charges”.
The attitude to the children, and to the responsibilities of parenthood
Dr Q concludes that the mother’s ability to accept responsibility for her children has been greatly limited in the past by alcohol abuse and violence. Dr Q says “If these problems were adequately dealt with she may be able to function more responsibly and this appears to have been the case over the past year”.
This statement by Dr Q was relied upon by the solicitor for the mother to indicate that there had been a change over the last year that the Court could rely upon. When one however looks in Dr Q’s report for the basis upon which she might make that statement, it seems that the only clue might be the history the mother gave (at page 10) about her seeing Dr G on and off, who was not only providing the services as a general practitioner but also as a counsellor and the mother reporting that she now feels she is doing OK. That information provided by the mother to Dr Q has to be taken with a large grain of salt given the information on the Departmental file from Dr G.
Exhibit E
Exhibit E is a note on the Departmental file of a phone call by Ms SG to Dr G on 12 September 2006. It is in the following terms:-
“[Dr G] stated that she stopped seeing [the mother] and had only seen her a few times. She stated that [the mother] had given her an unbelievable story and she had asked for the case worker to attend but this never happened and there was no way she could verify the story. She stated she was unable to work with [the mother] in an effective way due to the lack of background information and unable to establish what is true with others involved. Told by [the mother] that DoCS said she did not need A&D counselling and that seeing [the mother] was never routine.”
I note that the interviews between the mother and Dr Q for the first report took place on 7 September 2006. During those interviews (recorded at page 10) the mother told Dr Q that she “has been seeing Dr [G] ‘on an off’, who is both a GP and a counsellor but she feels she is doing OK now, she is on no medication”.
On the basis of that record by Dr Q, it seems that the mother was attempting to give the impression that she had a useful and continuing therapeutic relationship with Dr G.
That certainly does not appear to be Dr G’s assessment of that relationship at that time.
Dr Q concludes at page 45 that Mr Chase has mostly manifested responsible attitudes towards the children and his life overall has been relatively stable and responsible. Whilst that may be a matter of dispute at the final hearing I take it as an assessment by Dr Q that Mr Chase has the better attitude to the responsibilities of parenthood of all the adults involved in this matter.
Mr Quest’s application
The solicitor for Mr Quest indicated that if the child L was to be moved his client’s preference was that she come and live with him. He said that notwithstanding comments made about him in the material, he was in full time employment and that demonstrated that he was not an alcoholic as had been indicated in some of the material. I am not sure that I can conclude, as I have been invited to, that full time employment and alcoholism are mutually exclusive.
Dr Q’s assessment of Mr Quest at page 45 is that he has not shown a consistent commitment to providing for his child, either materially or emotionally.
To adopt Mr Quest’s alternate position would be to separate the three children in the interim, and I find that that is not in their best interests.
Family violence
The children have been exposed to considerable family violence in the past. It seems to have been invariably associated with abuse of alcohol.
Any family violence order
Although I am aware there have been AVOs against the mother in the past, and she has been convicted of breaching one, my attention has not been drawn to any current AVO.
EQUAL SHARED PARENTAL RESPONSIBILITY
Neither the Director-General nor any of the parties or the Independent Children's Lawyer sought an order for equal shares parental responsibility.
Section 61DA FLA creates a presumption of equal shared parental responsibility. This presumption does not apply if there are reasonable grounds to believe there has been abuse of the child/children or family violence. This is the situation in this case.
SECTION 61DA(3)
The presumption for equal shared parental responsibility does not apply in interim matters where the court considers it would not be appropriate in the circumstances of the case for that presumption to be applied when making the interim orders. The Full Court in Goode & Goode (supra) (at paragraph 78) states that:-
“s.61DA(3) provides a discretion, not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal difficult.”
Given the likely duration of this interim order and the distance the parties are now living apart I do not think it is appropriate to consider equal time or substantial and significant time in this case.
CONCLUSION ABOUT WHAT ORDER IS IN THE CHILDREN’S BEST INTERESTS IN THIS CASE
The solicitor for the mother relies upon a statement made by Mr Chase to Dr Q at page 35 at a time when he was supporting the mother’s case. Mr Chase is said to have indicated to Dr Q “over the last 18 months things have been going well. [the mother] is making good progress and Mr [Chase] tries to keep the equilibrium”.
The solicitor for the mother submitted that the Department and Mr Chase have not made out the case that there has been an increase in risk since Dr Q’s assessment. With respect that somewhat misses the point. The risk assessed by Dr Q as at September 2006 could have been addressed by the mother adopting the recommendations of Dr Q both in relation to treatment for her alcoholism and treatment for her mental health. She has only just got around to treating the first. There is no indication that she has done anything to assist herself by accessing any personal psychotherapy. On the material available to me I conclude that the mother lacks insight into her psychological condition and her alcohol abuse problem. In her most recent affidavit she still denies she has a problem with alcohol.
In my view the risk to the children have been increased by the mother’s unilateral decision to remove the children from their residence and in circumstances where a final hearing of this matter is imminent. It was not in the child L’s best interests in the short term to unilaterally remove her from her schooling.
I am told that what the mother has done is not reversible in that she has given up public housing in the Wollongong area. It is not a proposal that she put in the alternative that she move back to the Wollongong area.
Conclusion as to best interesta:-
109.1.The children are at risk in the event that the mother consumes a large amount of alcohol in a short period of time;
109.2.That the history disclosed in subpoena material would indicate that there had been a significant number of periods in the past where the children may have been at risk as a result of the mother’s drinking;
109.3.There is some material (untested) that indicates there could have been three such incidents in September and October 2007;
109.4.That Dr Q made a recommendation in October 2006 that the mother have counselling for her drinking and she has failed to act on that recommendation until today;
109.5.As recently as 12 October she claimed under oath that she did not have a problem with alcohol;
109.6.The mother has had opportunities in the past to address her drinking problems and has apparently misrepresented the counselling that she had been receiving to Dr Q;
109.7.The mother has unilaterally removed herself from the area in which she had some established support structure and where the other parties in these proceedings could more actively be involved in the care of the children;
109.8.The support that the mother has chosen in the C area raises concerns;
109.9.L’s school attendance at C School has been less than satisfactory, particularly when compared with her school attendances at Y Public School.
Taking into account all the considerations to which I have referred in these reasons, I conclude that pending the outcome of the final hearing it is in the children’s best interests for orders to be made substantially in the terms of the first alternate proposed by the Director-General.
Given the likely short term duration of these orders, I am comfortable with leaving the logistics of the mother’s time with the children to be as agreed or, failing agreement, at times and places nominated by the Director-General. I should indicate that I have no problem given the material I have read in this case for one of the possible changeover locations to be at T Police Station rather than McDonalds at T.
Given the information I have on the mother’s choice of companions at C, I consider it appropriate to make the order as sought in paragraph 11.3 of the Director-General’s application.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate
Date: 13 November 2007
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Standing
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