Penn & Laird
[2023] FedCFamC2F 571
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Penn & Laird [2023] FedCFamC2F 571
File number: DNC 277 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 5 May 2023 Catchwords: FAMILY LAW- parenting application – where the mother is seeking that orders made in 2018 be set aside and that the children live with her – where the children currently live with the father’s former partner – where the father is currently incarcerated for a violent offence – where the children wish to remain living with their father’s former partner – where all parties have a history of illicit drug use – where the mother has significant mental health issues – where there is a need to protect the children from harm in the mother’s care – where the father is not in a position to care for the children on his release from prison – where the court is satisfied the children should remain living with their father’s former partner and she should have sole parental responsibility. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 4–5 May 2023 Place: Darwin Solicitor for the Applicant: Self-Represented Litigant Counsel for the First Respondent: Ms Fuller Solicitor for the First Respondent: AFL Withnalls Counsel for the Second Respondent: Mr Cahill Solicitor for the Second Respondent: Hunt & Hunt Counsel for the Independent Children's Lawyer: Ms Visser Solicitor for the Independent Children's Lawyer: Legal Aid ORDERS
DNC 277 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PENN
Applicant
AND: MR LAIRD
First Respondent
MS LAWSON
Second Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE YOUNG
DATE OF ORDER:
5 MAY 2023
THE COURT ORDERS THAT:
1.That all previous orders be and are hereby discharged.
PARENTAL RESPONSIBILITY
2.The Second Respondent have sole parental responsibility for any major long-term decisions for the children X born in 2005 and Y born in 2009 ("the children").
3.For the purpose of Order 2, the Second Respondent will inform the Applicant and the First Respondent of the major long-term decision to be made, consider any reasonable comment either of them may make but shall have liberty to make the decision in her absolute discretion.
LIVING ARRANGEMENTS
4.The children live with Second Respondent.
5.The children spend time with the Applicant and First Respondent as agreed between the Applicant and First Respondent respectively with the Second Respondent.
RESTRAINTS AND INJUNCTIONS
6.Pursuant to s.68B(1) of the Family Law Act 1975 that Mr Laird, the Father of X born in 2005 and Y born in 2009 (“the children”), shall be restrained and injuncted from:
7.Causing or threatening to cause bodily harm to the children, X and Y and to Ms Penn and Ms Lawson; and
8.Committing any act of family violence or exposing X and Y and Ms Penn and Ms Lawson to family violence;
9.AND IT IS NOTED this order is for the personal protection of X and Y and Ms Penn and Ms Lawson and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 68C of the Family Law Act 1975 (Cth).
10.All outstanding application be otherwise dismissed.
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 a pseudonym Penn & Laird has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Young:
This is a parenting application about two girls, X, who is 17, and Y, who is 13. Both girls presently live with the second respondent, Ms Lawson, who is not biologically related to the girls but is the former partner of their father. The applicant, Ms Penn, is the biological mother of the children. The first respondent is the father of the children, Mr Laird. Mr Laird is currently serving a period of imprisonment for a violent assault but he is due to be released next week under supervision.
The proposals of the parties are as follow. The mother seeks to vary or have set aside consent orders made on 22 November 2018 providing for the children to live with the father and to spend time with the mother after she had completed a drug rehabilitation program. The mother presently seeks orders that the children live with her. The father also seeks to have the earlier orders set aside and for the children to live with his former partner, Ms Lawson.
The second respondent, Ms Lawson, seeks orders that would regularise the current situation of the children, that is, that they continue to live with her. The Independent Children's Lawyer seeks orders in line with those of the father and Ms Lawson, that is, sole parental responsibility to Ms Lawson and that the children spend time with the mother as agreed with Ms Lawson. Currently, the arrangement is for the girls to spend one overnight a fortnight with their mother, though, in recent times, it is not clear to me that that has actually been occurring.
The background to the matter is as follows. The mother and the father separated in about 2013. The father commenced a relationship with Ms Lawson in 2013 and that relationship continued until about 2021. The children came to live with the father and Ms Lawson in 2016 amid concerns about their care by the mother arising from her mental health and use of illicit drugs. In 2021, the father was convicted of a serious assault on a woman with whom he was then in a relationship and he was sentenced to a period of imprisonment.
The precise sentence is not before me but the father said in evidence that he has served a term in jail and is due to be released next week under supervision. It is implied in the way the father’s case is presented and I think also implied in his oral evidence that he does not feel able to adequately care for the girls on his release. His trial affidavit also mentions an intention to travel to Western Australia on his release, where his youngest child, who is less than 12 months old on my calculation, resides. It is not clear from his oral evidence whether that continues to be his intention.
Since the father’s imprisonment, the children have lived solely with Ms Lawson. According to the child impact report, they wish to continue living with her.
X, the eldest child, has left school but has had some employment. Her plans are unclear. Y is doing well at school by all reports. Y appears to have had some mental health issues herself but they appear to have settled. The children are, by all reports, well cared for by Ms Lawson. They have expressed concern about living with their mother and raise concerns to the child expert about her ability to manage day-to-day care of them and, significantly, to protect them from the risk of exposure to family violence stemming from a relationship the mother has with a Mr C.
Each of the parties has a history of illicit drug use. In the case of the mother, she was ordered to complete a residential rehabilitation program in the 2018 orders. She completed that program in 2019 but it appears clear that she has continued to use illicit drugs. The mother was admitted to the B Hospital and/or D Unit, the mental health facility, three or four times since these proceedings commenced in June 2021. In late 2021, she was admitted to the B Hospital, or D Unit, suffering from psychosis. Drug testing showed the presence of illicit drugs in her blood.
In 2022, the mother was admitted to D Unit suffering from drug induced psychosis and was, again, on a drug screening, found to be positive for illicit drugs. It is clear from the evidence, and particularly the oral evidence of the mother, that she has little or no insight into her mental health problems or use of illicit drugs. She denied both. The father said he ceased illicit drugs use some time ago but his trial affidavit did not provide any information about that. Ms Lawson, his former partner, said he was a good father when he was sober which I took to be a reference to be when he was not using illicit drugs and/or alcohol. The father is, therefore, an unknown quantity. He said he wished to return to university study after his release from prison but the father’s prospects after release are, in my view, unclear.
Ms Lawson also has a history of illicit drugs use. She said she had last used illicit drugs in 2013 but I note she failed to comply with a request to undertake urinalysis by the Independent Children’s Lawyer. She has also been charged with possession of a commercial quantity of cannabis and is facing charges in the Supreme Court arising from that.
Ms Lawson struck me as an intelligent woman with a high degree of insight into the needs of the children. The fact that they appear to be doing well in her care is a credit to her. There is little, if anything, to indicate that she has any drug dependency issues but given the matters I have mentioned, I do not feel I can make a positive finding about that.
The Court Child Expert was also cross-examined. She had prepared a child impact report and I do not intend to refer to that in detail but I accept that the children expressed a clear wish to remain living with Ms Lawson. I also accept they are well cared for by Ms Lawson and will continue to be well cared for while they live with her.
I should note that Ms Lawson said in evidence that she considered there is some risk that she would be sentenced to a period of imprisonment as a result of the drug possession charges. She said that if that happens that her father has agreed to care for the children. There is no evidence from her father and I cannot assess whether, in the event that she is imprisoned, that he is a suitable carer for the children. However, for the reasons I have given, I am satisfied that neither the mother nor the father are suitable carers in that event.
As there are existing Court orders made by consent in 2018 it is necessary before any further orders are made or those orders are set aside that the Court be satisfied that there are matters, usually described as a significant change in circumstances, that merit the changing or setting aside of the orders. I am satisfied that that is the case and that the present orders do not reflect, in any adequate way, the present circumstances or needs of the children.
In deciding a parenting matter, a Court exercising jurisdiction under the Family Law Act is required to follow the legislative pathway set out in Part VII of the Act. In deciding a parenting case, the best interests of the children are the paramount consideration. A court determines what is in a child’s best interests by having regard to the matters in section 60CC and other sections that may be relevant in some circumstances.
In determining the child’s best interests, the primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect, or family violence, with the latter consideration to be given the greater weight.
I am satisfied in this case that there is a need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. I am satisfied that should the children live with the mother, there is such a risk. That risk stems from her history and, I am satisfied, current mental ill-health, her historic and at least quite recent use of serious illicit drugs, and also the fact mentioned by the children in their discussion with the child expert of their concern about the mother’s relationship with Mr C, a person whom, in evidence, the mother referred to, without irony as far as I could see, as “God”.
I find it very difficult to assess the father’s present prospects on his release from prison next week but I am satisfied that should the father revert to the use of illicit drugs there is such a risk. Also, given the father’s conviction for a serious crime of violence against a domestic partner, I am satisfied that there is a risk to the children stemming from that should the children live with him.
That being said, both children appear to be strongly attached to their mother and father and everything in the child impact report indicates that the children wish to have a continuing relationship with both their mother and their father. Ms Lawson, to her credit, has facilitated the continuation of a meaningful relationship of the two children with each of their mother and father. The children have, according to the evidence, regularly visited their father in prison, and the children have also regularly spent time with the mother, including over-night time, all facilitated by Ms Lawson.
In relation to the question of parental responsibility, which I think should be addressed at this point, the father and Ms Lawson and the ICL submitted that there ought to be an order for sole parental responsibility reposing with Ms Lawson. The reason for that is essentially the hostility expressed by the mother in her oral evidence, primarily to Ms Lawson, but also to the father. I am not satisfied that the mother will always be able to constructively engage with Ms Lawson about important decisions concerning the children and I am satisfied that an order for shared parental responsibility is not in the interests of the children.
It appears that the father reposes great trust in Ms Lawson, however, and it is also clear from the evidence that Ms Lawson and the father are able to communicate constructively about the children, nevertheless, the father does not seek an order for shared parental responsibility, and in those circumstances, I will not make an order that any shared parental responsibility repose in him.
The additional considerations in section 60CC subsection (3) are as follows:
(a)views expressed by the children –
I have referred to those views which are essentially that they continue in their present arrangement living with Ms Lawson.
(b)the nature of the relationship of the children with each of the child’s parents and other persons –
The children are strongly attached to each of their parents and wish to continue with a relationship with their parents. That, of course, is qualified by the matters that I have referred to. The children have a close relationship with Ms Lawson.
(c)the extent to which each of the child’s parents have taken or failed to take the opportunity to participate in decision making about major long-term issues in relation to the children spending time with and communicating with the children –
For the reasons that I have given, I am not persuaded that the mother has constructively participated in making those decisions in recent years. I have dealt with the issue of spending time and communicating with each of the parents. There was no evidence about the issue of maintenance of the children.
(d)there will be no change in the children’s circumstances;
(e)was not the subject of any significant evidence;
(f)the capacity of each of the child’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs –
I am satisfied that the mother’s capacity to provide for the needs of the children is severely curtailed by her mental health problems and use of illicit drugs. In the case of the father, as I say, he did not seek that the children live with him and I think the reasons for that are probably that he is uncertain what his prospects in the immediate future hold, and indeed, whether he continues living in Region E –
(g)I do not propose to say anything about that;
The children identify as Aboriginal children and it was proposed at one point that the father have parental responsibility in relation to cultural matters. I am not satisfied that is necessary given the father’s position about parental responsibility. I am satisfied that the children will not be denied their right to enjoy their Aboriginal culture, including the right to enjoy that culture with other people. I am satisfied that Ms Lawson will facilitate that to the extent that she considers appropriate for the children.
(h)I do not propose to say anything more about that.
There has been evidence of historic family violence, certainly between the mother and the father, according to the mother and there is other evidence of family violence, though that appears to be largely historic notwithstanding the concerns expressed by the children about the mother’s relationship with Mr C. I note that there is no current family violence order.
I take account of factors at (l) and (m).
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young. Associate:
Dated: 5 May 2023
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