Perrin and Plott

[2014] FamCA 1098

FAMILY COURT OF AUSTRALIA

PERRIN & PLOTT [2014] FamCA 1098

FAMILY LAW – CHILDREN – Recovery Order – where proceedings commenced undefended – where expert witness was cross-examined – where the mother has concerns for the father’s ability to care for the eldest child – where the eldest child lives with the father and the other two children live with the mother – where the father has not filed any documents despite several opportunities – where there are concerns about both parents’ ability to care for the children – where the Department has declined to intervene twice before – where the child has not seen his mother or siblings for eight months – benefit of a meaningful relationship – risk of harm – neglect – best interests of the child.

Family Law Act 1975 (Cth) ss 60B, 60CC, 67U, 67V

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520

APPLICANT: Ms Perrin

RESPONDENT: Mr Plott

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: PAC 5656 of 2011

DATE DELIVERED: 8 December 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 8 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weaver

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

RESPONDENT – SELF REPRESENTED: Mr Plott

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Knight of
Marsdens Law Group

Orders

1. All previous parenting orders are discharged.

IT IS ORDERED PENDING FURTHER ORDER THAT

1. The father shall cause the child Y born … 2005 to be delivered to the mother forthwith and by 7.00pm on the date of these orders.

2. For the purposes of order 2, the father shall cause the child Y (“the child”) to be delivered to the mother at the reception desk inside M Police Station located at ...

3. In the event the father fails to return the child in accordance with order 2, then all State and Federal Police shall be authorised and directed with such assistance as is required and if necessary by force:

   (a)To stop and search any vehicle, vessel or aircraft and search any premises or place for the purposes of finding the child , Y born … 2005; and

   (b)To recover the child Y and deliver the child to the mother.

4. The father is prohibited from again removing the child from the mother.

5. The mother shall have sole parental responsibility for the children being:

   (a)       Y born … 2005;

   (b)K born … 2006; and

   (c)C born …2009.

6. The children shall live with the mother.

7. Within 24 hours the father shall undertake (by the provision of urine screen in accordance with the Australian / NZ Standard 4308:2008 or any subsequent approved standard) Urinalysis for drug screening and provide copies of the results to the mother’s solicitor and the Independent Children’s Lawyer within 48 hours of receipt of same.

8. The father shall undertake (by the provision of urine screen in accordance with the Australian / NZ Standard 4308:2008 or any subsequent approved standard) Urinalysis within 24 hours of a request for Urinalysis being sent to the father by the Independent Children’s Lawyer and not less than on one occasion each month, and provide copies of the results to the mother’s solicitor and the Independent Children’s Lawyer within 48 hours of receipt of the same.

9. Within 24 hours the father shall establish and maintain an active email address and shall advise the Independent Children’s Lawyer of the father’s email address.

10. For the purposes of Order 9, the Independent Children’s Lawyer shall send a request for Urinalysis to the father by sending an email with such a request to the father’s email address and the father shall be responsible for checking his email at sufficient regularity to ensure the father complies with order 9.

11. Within 24 hours the father shall sign all documents, give all necessary consents and do all things necessary to complete an intake assessment at W Contact Service ...

12. The father shall pay all fees required to comply with Orders 8, 9, 10, 11 and 12.

13. Within 7 days the mother shall sign all documents, give all necessary consent and do all things necessary to enrol the child in primary school at F Catholic Primary School, ...

14. Pursuant to Family Law Act 1975 (Cth), s 68B, and for the personal protection of the children and the mother, the father is hereby restrained from:

    (a)Approaching within 100 metres of any place in which the children and / or mother reside including D Street, Suburb T, NSW.

    (b)Approaching within 100 metres of any school, day care centre or educational facility the children, or any of them, attend from time to time, including:

(i)F Catholic Primary School;

(ii)U Day Care.

(c)Stalking the mother and / or the children.

(d)Causing, encouraging or permitting any third party to stalk the mother and / or children.

(e)Engaging in any conduct that intimidates the mother and / or the children.

(f)Causing, encouraging or permitting any third party to engage in conduct that intimidates the mother and / or the children.

1. Pursuant to Family Law Act 1975 (Cth), s 68C, a Police Officer, including a member of the NSW Police, may arrest the father without warrant if a Police Officer believes on reasonable grounds that the father has breached the injunction in order 15 (changed in chambers), being an injunction made for the personal protection of the children and the mother.

2. Pursuant to Family Law Act 1975 (Cth), s 68B, and for the personal protection of the children the mother is hereby restrained from permitting the children to have any communication with or remain in the presence of Mr L.

3. Within 7 days the mother shall sign all documents, give all necessary consent and do all things necessary to cause the child, C born … 2009 (“C”), to attend and be assessed by Dr A, Paediatrician, … Telephone … (“Dr A”).

4. The mother shall cause C to attend all appointments required by Dr A including attending any appointments with other health professionals recommended by Dr A (“the child’s attendance”), until Dr A advises the mother in writing that the child’s attendance is no longer required.

5. Within 7 days the mother shall attend Dr B, General Practitioner, … (“Dr B”) and obtain a referral to a mental health professional for assessment, and if necessary, treatment to improve the mother’s parenting capacity.

6. The mother shall attend all appointments required by Dr B, pursuant to order 21 including attending any appointments with other health professionals recommended by Dr B (“the mother’s attendance”), until Dr B advises the mother in writing that her attendance is no longer required.

1. Within 7 days the mother shall contact the Department of Family and Community Services and request a referral to the “Brighter Futures” program.

2. Within 14 days, the mother shall attend on Brighter Futures and engage with Brighter Futures until the mother is advised in writing that her attendance at Brighter Futures is no longer required.

3. The Applicant’s costs of this Recovery Application are hereby reserved.

THE COURT FURTHER ORDERS

1. The matter is listed for further directions on 9 February 2015 at 2.15pm.

Notation

1. The father left the Courtroom at 10.58am being a time prior to the completion of orders being made.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perrin & Plott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5656  of 2011

Ms Perrin

Applicant

And

Mr Plott

Respondent

REASONS FOR JUDGMENT

introduction

1. The mother of Y, who is almost ten years old, seeks that a Recovery Order be made so that he is returned to live with her and his siblings. Y has been living with his father since October 2012 and has not seen his mother or his two other siblings since the end of March 2014. It has been submitted that recent events are such that it is in Y’s best interest to return to be living with her.

2. The father opposes the order and says that Y wants to remain living with him. He says that the mother is not capable of looking after Y.

3. The Independent Children’s Lawyer agrees that in light of recent events Y should return to the care of his mother and a Recovery Order is required in these circumstances.

4. The question for me to determine is whether it is in Y’s best interests for the Recovery Order to be made.

BACKGROUND

1. The father, who is currently 41 and the mother who is currently 31 met and commenced a relationship in 2001. They began living together in 2002.

2. The mother says that the father was verbally abusive, controlling and sometimes physically abusive towards her from about 2003.

3. Both parents used the drug crystal methamphetamine, commonly known as “ice” throughout their relationship, and in the case of the mother, this continued after the birth of each of the children.

4. The mother became pregnant in 2004 and Y was born in 2005.

5. The mother says that throughout her pregnancy and after Y was born the father continued to be physically abusive towards her. She also alleges that she was sexually assaulted by the father and that on numerous occasions he also damaged their property.

6. Despite these allegations, the mother and father were married in early 2006.

7. The second child, K, was born in 2006 and is currently eight years of age.

8. The parents’ youngest child, C, was born in 2009 and is currently five.

9. The mother says that she first became aware that the father’s conduct towards her amounted to abuse when she sought assistance from various services in the first half of 2011. The mother said that although the father was violent and unprepared to be assisted by counselling she did not report his behaviour to police.

10. The parents separated in around September 2011 and the children remained living with their mother in the former family home and the lease was transferred into her name. Initially the children saw their father when he visited on Saturdays.

11. The mother alleges that after separation there were a number of instances of physical and sexual abuse of herself and of excessive physical punishment of the older two children in November and December 2011. During this period, the mother on two occasions fled from her home and left the children in the care of the father for lengthy periods of up to around three months in total. At around this time, the mother commenced a relationship with Mr L who it appears was previously a friend of both parents. Mr L has an extensive criminal history, including a number of drug offences.

12. The mother says she was introduced to heroin use by Mr L which she says she used for the purposes of relieving stress and assisting helping her get to sleep though she does not specify when she began using heroin. She says that she commenced on a methadone program at an unspecified date in 2012 after using heroin about twice a week for about two months. At the time of the proceedings, she was still taking methadone and said she had advice from a medical practitioner that she would begin reducing her methadone after the family law proceedings had ended.

13. As a result of an incident on about 1 December 2011 when the mother says the father was aggressive and threatening towards her, she sought and obtained and AVO for her protection.

14. Although it is not clear when the parenting proceedings commenced, the matter was mentioned in the Family Court on 6 December 2011. At this stage the children were still living with the father and the mother left court while the matter was stood down, and before the matter was completed.

15. The mother, made a number of complaints to police, alleging that the father had breached the AVO in December 2011, by writing, messaging and ringing her and sending messages through another person. She says that she was frightened about her safety, but the children remained in the father’s care.

16. When the father telephoned the mother on 24 December 2011 the mother reported the breach to police who arrested the father and placed the children into her care.

17. Although it is not clear how this arrangement came about the parents agree that the children continued living with their mother and began spending time with their father at a Contact Centre. The father spent time with the children on three occasions in accordance with this arrangement.

18. The mother reached agreement with the paternal grandmother with whom the father was living in about October 2012, for Y to spend time with the father for one week. The mother says that Y was not returned to her at the end of the week as agreed, but the police were unable to assist the mother in having the child returned, as there were no orders to this effect in existence and the mother had agreed for the child to spend time with the father.

19. At around this time, the mother stopped making the two younger children available to see their father at the Contact Centre. As a result of these events Y spent no time with his mother or siblings for a period of eight months from around October 2012 to June 2013, and the younger two children did not see their father during this time.

20. In June 2013, the parents reached an agreement and consent orders were made on 16 August 2013. The orders provided that Y was to live with his father and the younger two children were to live with their mother. The children spent a few hours on both days of each alternate weekend alternating between the mother and the father, except during school holidays.

21. From March 2013 to February 2014 the mother received assistance from the Department of Community Services, and says she commenced working with “Brighter Futures …” and Ms Z, a case worker, from around 2012. The mother says she was involved due to her previous difficulties with illicit substances and housing. She says that in around January 2014 Ms Z told her she was closing her file as the Department were happy with her progress and changes. She says that Ms Z told her she was of no risk to the younger children, but that Y was at risk and should be at home with her.

22. On 6 March 2014 further consent orders were made by Foster J, including an order inviting the Director-General of the Department of Community Services to intervene in these proceedings. The parenting orders of August 2013 were discharged and new orders were made whereby the two younger children were to reside with their mother and Y was to continue to reside with the father. Under the orders all the children were to spend weekends together alternating between the mother and the father, except during the school holidays. The mother was also restrained from allowing the children to come into contact with Mr L at any time during the period when they were in her care and both parents were restrained from using drugs or alcohol while the children were in their care and for a period of 72 hours immediately prior. It is not entirely clear why the mother was restrained from bringing the children into contact with Mr L, though it appears to have been believed by both parents at some time that Mr L had convictions for sexual assault, possibly relating to a child. Mr L’s criminal history indicates that he has been charged with sexual offences but was not convicted. No further details in relation to this matter have been provided. After the orders were made, the mother continued to associate with Mr L.

23. It then appears that there was an incident around 18 March 2014 which involved an allegation that Y had harmed C while the children were spending time together in the father’s care. The mother does not set out the details of this allegation in her affidavit, but she does say that she consulted a doctor at a medical centre who told her that it was important for her to contact Community Services. According to the mother the doctor also said “this is not a (sic) normal or experimental behaviour. There is no penetration, but there has definitely been pressure and rubbing applied to the area.” The records of the medical centre in relation to this consultation indicate that C attended with her mother and stated she was sexually abused by her nine-year-old brother on the weekend. The records indicate that the seven-year-old son (K) saw that she was kissed on her lips with (the brother’s) tongue pushing inside, and that the brother was lying upon her with her clothes on. The mother reported to the doctor that C had redness around her vulva and upon examination the doctor found that that was the case and advised the mother to contact Community Services and keep the child safe.

24. The mother reported her concerns about Y’s behaviour to Community Services, but Community Services records are inconsistent in relation to the response. In some parts of the Community Services records it is indicated that the complaint was not investigated “due to competing priorities”, whilst in other parts the complaint is regarded as not meeting the threshold of harm for investigation. However, the mother believes and it seems to have been accepted by the Independent Children’s Lawyer, and possibly the court, that has been a JIRT investigation., but the result is unknown.

25. Although the mother says that at this time she had heightened concerns about the father’s behaviour and level of supervision of the children, she returned Y to live with his father and made the younger children available to the father in accordance with the orders. She did not seek any alternative orders at that stage, despite her concerns.

26. The following week, on about 28 March 2014 the mother says that Y told her that he had seen the father selling ice. There is evidence from a number of sources at around this time, including Community Service records that drug screens indicated the father’s ongoing illicit drug use. The mother also said she was concerned at about this time as K had reported that all the children slept in the same bed as the father and that sometimes Y sleeps with dirty clothes on the floor.

27. At about this time the mother saw Y hitting K at her house and started clapping her hands and flicking the light switches to stop the boys fighting. The mother says that when she asked the boys why they were fighting, K said that it was because Y was “girlfriend kissing [C] again”. The mother says that Y agreed that he had been kissing his sister with his tongue because he loved her, that he sees his father naked and the father cuddles and kisses girls all the time, that he lays in bed with his father all the time and also agreed that he had laid on top of C. The mother appears to have reported these incidents numerous times to Community Services, but as noted, there appears to be conflicting information about the Department’s investigation. The Department has twice declined to intervene in these proceedings, and the situation has been unable to be clarified, even through documents produced on subpoena.

28. Even though the mother says that a police officer advised her twice not to make the children available to the father, on 31 March 2014 she delivered Y to school in accordance with the orders and has not seen him since. The mother says that on 4 April 2014 a police officer named Constable X advised her not to make the children available to the father and that the father had advised he would not make Y available to her.

29. On 13 October 2014 the mother says that Y telephoned her and said that he was ringing from nan’s (the paternal grandmother’s) telephone as the father had left him there and was “back with” a woman named E, who it appears has been said to have been recently released from jail. The mother claims that Y said things like “I spend most of my days with depression” and that he is yelled at and maltreated by the father’s siblings, Aunty G and Uncle J. The mother says that when Y was about to reveal some other conduct to her, her phone “died”. She subsequently called the police to conduct a welfare check on Y, but the officer told her that she could not use police to harass her husband. On 17 October 2014 the mother made a further report to Community Services about Y and was given a report number and informed that the matter would be “forwarded to the office”.

The history of the proceedings

1. The parenting proceedings were listed for hearing to commence on 1 December 2014 and orders had been made for the filing of trial affidavits. The father did not appear on a number of occasions when the matter was mentioned and did not file a trial affidavit in accordance with the orders. The last affidavit filed by the father is dated 15 February 2012. It had been anticipated that the father may not attend the proceedings and they would proceed undefended.

2. On 1 December 2014 the father did not appear when the trial was listed to commence and it proceeded in his absence. The mother’s legal representative identified the documents upon which the mother relied and the expert psychiatrist, Dr R was cross-examined by the Independent Children’s Lawyer. The doctor’s recommendations, which are dealt with later in these Reasons were that all three children should reside with their mother to a very large extent because he felt it was important that the children live together and maintain their sibling bond. However the doctor said he had major concerns about the parenting capacity of both parents, but by default felt that in the absence of any other better alternative the mother was more likely to provide more ongoing stable parenting than the father.

3. After Dr R was excused and during an adjournment when enquiries were made whether the Department of Community Services were going to intervene following a second request to do so, the father arrived and sought an adjournment to obtain legal advice. A lawyer who appeared on an amicus basis from the Legal Aid Commission sought that the matter be adjourned to 3 December 2014 to enable the father to obtain advice from the Aboriginal Legal Service.

4. On 3 December 2014 a lawyer from the Aboriginal Legal Service informed the court that she was only instructed to seek an adjournment on behalf of the father and was not instructed to proceed further with the trial or with the mother’s foreshadowed application for a Recovery Order in relation to Y. On 3 December 2014 the matter was listed for hearing of the Recovery Order on 8 December 2014. Directions were also made for the filing of further evidence in relation to that application, as it became clear that the mother had only just obtained access to documents produced upon subpoena and was expecting to obtain access to further documents the following day. Although the father had not previously complied with any orders for the filing of affidavits, he was given an opportunity to file any evidence upon which he may seek to rely in relation to that application. It was also made very clear to the father, and the lawyer indicated that she would ensure he understood, that it was important that he arrived at court and on time when the Recovery Order application was listed.

5. On 8 December 2014, the father failed to appear until around 3:00pm, even though the matter had been listed at 2:15pm. The father did not file any affidavit. In addition to her trial affidavit, the mother also filed a short updating affidavit concerning events immediately prior to the hearing of the recovery order.

6. It is the mother’s case that whilst she acknowledges there have been many concerns about the children’s care relating to both herself and the father, she has particularly recently started taking steps to address some of the concerns about her care for the children, while the concerns in relation to the father have escalated. It is the mother’s case that documents produced on subpoena indicate that the father has continued to use illicit drugs, has continued to offend, which has resulted in his incarceration and likely future incarceration, that he has not been appropriately caring for Y or leaving him in the care of other family members, and that in recent times Y has expressed to her that he is frightened and concerned. Further, the father has provided no evidence about these concerns or Y’s current circumstances and in accordance with the recommendations of Dr R, it is in Y’s best interests to be placed with his siblings and more competent parent. The Independent Children’s Lawyer supports the mother’s application and agrees that it is in Y’s best interests for those orders to be made.

7. The father filed no evidence upon which he could rely but submitted that Y would prefer to stay with him, and the mother is not capable of looking after the children as I understand it, due to her drug use.

The law

1. Section 67U provides that subject to section 67V the court may make such Recovery Order as it thinks proper. Section 67V provides that, in deciding whether to make a Recovery Order in relation to a child, a court must regard the best interests of the child as the paramount consideration. In addition to the Recovery Order, the mother is also seeking a number of interim orders relating to assessment for the children, monitoring of each parent’s drug use, therapy required to be undertaken by her and arrangements for the children to spend time with their father. So far as the interim parenting orders are concerned, in accordance with Goode and Goode[1] the court must, of course also regard the best interests of the child as the paramount consideration.

   [1] (2006) FLC 93-286

2. In applying the law to the uncontested facts, the court must also uphold the relevant objects and principles in the Family Law Act 1975 (Cth) (“the Act”) at section 60B, that deal with parenting, which set out the ways in which the best interests of children are to be met and the rights of children underlying the objects. I note of particular relevance in this case the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect and family violence.

3. I have made reference to the uncontested facts in this matter, which, as a result of the father failing to file any evidence for some years despite having being given numerous opportunities to do so, are those facts as alleged by the mother. However, I attach greater weight to those matters which are corroborated by documents provided by various reliable agencies such as police, Community Services, the Department of Education and the Department of Corrective Services. I also attach significant weight to the evidence of Dr R having regard to his expertise, the range of documents to which he had access, and his observations of each of the parents and the children, which was tested under cross-examination, and was not significantly altered.

4. In relation to the best interest considerations set out in section 60CC of the Act, I note that I am considering them in the context of an interim application as the matter will be returning to court early next year for further hearing.

5. The first primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents is currently not being met as the father has not made Y available to his mother for eight months and I have no confidence that he will do so in the future, even though the current court orders require him to do so.

6. The mother initially sought orders for Y to live with her and spend no time with the father. However, after the evidence of Dr R to the effect that Y and the other children would obtain some benefit from having “recognition contact” with their father two to three times per year in a supervised setting, the mother then amended the interim orders sought and now seeks to allow for that relationship to be maintained. Although it may be that the limited time the mother proposes in the next few months may not amount to a “meaningful relationship” with the father in accordance with the meaning which has been given to that expression by the Full Court[2], the orders proposed by the mother, including the Recovery Order are more likely to allow Y to have some form of relationship with each of his parents than is currently the case, or likely if the order is not made.

   [2] Mazorski & Albright  [2007] FamCA 520

7. The most significant consideration in this matter is the other primary consideration of the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. Although it is the case that the mother alleges that while she and the father were living together Y and the other children were exposed to family violence, for the purposes of the Recovery Order and the other interim orders sought, the greater concern is the neglect of Y while living with the father. Dr R recently expressed the opinion that there was a significant risk of neglect of the children in the care of the father.

9. It is the father’s own case as it can be gleaned from his submissions that in recent times he was incarcerated following his arrest and prior to being granted bail, and he conceded in his submissions that, at that time Y was in the care of other family members. Corrective Service records show that the father was also refused bail for one night on 25 March 2014 and it is unknown who cared for Y at that time.

10. The quality of extended family member’s care is unknown, but the mother says that for the first time in her recent telephone conversation with Y he was unhappy and depressed and complained about the care by his aunt and uncle and said that his father had also placed him with his paternal grandmother. The mother’s evidence is that the paternal grandmother has recently told her that she is unable to care for Y but is afraid of the father’s reaction if she does not agree to care for Y. According to the mother’s 4 December 2014 affidavit, the paternal grandmother has said that Y should be cared for by the mother. Dr R is concerned that the father functions at a low level and was of the opinion that he was only capable of caring for the children at a basic level. He noted that the father largely relies on his mother and lives in a caravan on her property and probably needs her assistance and support. He formed the view that the father struggled to support himself and function independently and seemed quite reliant on his mother. In these circumstances, it is of significance that the paternal grandmother appears to no longer be in the position to assist the father in Y’s care.

11. There is also evidence of the father’s ongoing drug use in the records of the Department of Corrective Services and Family and Community services, which includes relatively recent admissions by the father himself of drug use and failure to undergo a drug screen as recently as 6 November 2014, from which an inference can be drawn that such a drug screen would have returned a positive result had it occurred. The father has a very lengthy history of problematic drug use.

12. There is also a relationship between the father’s ongoing drug use and his criminal conduct. On 6 November 2014 the father was arrested in relation to offences concerning illicit drugs, including supplying a prohibited drug. Records from the Department of Corrective Services also indicate that the father has repeatedly failed to address his family violence offending by completing a program as directed by his probation officer. On 6 June 2014 and 9 October 2014 Corrective Service records indicate that the father’s response to supervision has been regarded as unsatisfactory, in particular in his failure to comply with domestic violence programs and ongoing drug use.

13. There are also concerns about Y’s school attendance and performance which are indicative of neglect. School records indicate that Y has missed 35 full days and eight partial days of school in 2014 and persistently fails to complete his homework and rarely participates in home reading.

14. So far as the other considerations are concerned, when Y was assessed by Dr R in November 2013 and was at that time living with his father, Y said that he had missed his brother and sister a great deal. Dr R described the three children as very distressed. It appears that Y expressed the view, at that time, that he wanted to live with his father, but Dr R did not feel that significant weight should be given to Y’s views as he was, in the doctor’s opinion in a “reverse parenting role” and presented as if he needed to support the father, but was not negative towards the mother.

15. Although the expert had significant concerns about each of the parents, which are dealt with elsewhere in these Reasons, he did observe a close bond between each of the children and each of the parents. As indicated, he described the relationship between the father and Y as one in which Y is in a reverse parenting role and described Y as “probably the more functional person between him and his father”. However, under cross-examination, Dr R still felt that Y benefited from the relationship with his father. So far as the mother is concerned, although the father had many criticisms of her, the doctor said that despite all the problems the children appear to be responding well and have a close connection with her and that even Y seemed to start to have a connection with her.

16. One of the other significant considerations in this matter is the likely effect of any changes in the child’s circumstances. If the Recovery Order is made as sought by the mother then the children will all be living together, which Dr R feels would be a significant advantage for them. The strength of the sibling bonds was emphasised both his in his report and under cross-examination. The doctor said that “the potential strength of the relationship is very important and may be the major form of stability they have throughout their lives”. In my view, if the Recovery Order is not made it is not likely that Y will spend any time with his siblings or his mother until the proceedings are completed, which would be to their detriment having regard to Dr R’s evidence. It also appears that in recent times Y may not have been cared for, or primarily cared for, by his father and that the loss associated with that separation may have already occurred. The doctor emphasised that the mother has a slight advantage in providing a more stable environment for Y than the father.

17. Under the mother’s proposed orders or the current situation, there should be no practical difficulty or expense associated with Y spending time with the parent with whom he does not live.

18. The other most significant consideration in this matter is the capacity of each of Y’s parents to provide for his needs. Dr R’s opinion, which he continued to maintain following cross-examination, was “the prognosis regarding the future of these children is guarded as neither parent is adequate and therefore I fear greatly for the long-term well-being”. Whilst it is of grave concern that the Department of Family and Community Services has on two occasions failed to intervene notwithstanding the undisputed evidence about parental drug use, the father’s low functioning and mother’s personality disorder and mental health problems, it appears clear that the Department does not propose intervening with this family. Dr R was of the opinion under cross-examination that although both parents had serious problems in relation to their capacity to meet the children’s needs, there were less concerns about the mother than the father.

19. The issue of the children’s aboriginality is possibly a factor in this matter, though neither parent positively asserts that the children are Aboriginal. However, the mother said in her affidavit that she received a telephone call from the school in September 2014 querying why the children’s aboriginality had not been recorded in their enrolment or school records and the father has availed himself of the Aboriginal Legal Service in these proceedings in a limited way. However, as previously noted, the father has not filed any recent affidavits in the proceedings, and as I understand it has not previously asserted that the children are of aboriginal heritage.

20. So far as the attitude towards the children and the responsibilities of parenthood are concerned, there is evidence of irresponsibility by both parents. Although it is of significant concern that the mother has previously prioritised her own relationship with a highly concerning person over the care of the children and has effectively abandoned them at times, in recent times it appears that she has shown a greater level of understanding and now specifically seeks an order prohibiting herself from brining the children into contact with Mr L. Dr R suggested that she had an ongoing need for supervision and monitoring but as stated was of the view that the position of the children was slightly less detrimental with the mother then with the father.

21. Although the father has not filed an affidavit, it appears that he and the mother each allege family violence against each other. There have been apprehended violence orders in the past made against the father, including a final order in January 2012, which is soon due to expire.

22. As I have previously indicated, there are serious concerns about the care of these children by both of their parents. However, the most pressing and immediate concern is that Y is being neglected by father and that the person who appears to be currently highly connected with his care, his paternal grandmother, is now unwilling to continue it. Under the current circumstances, it is unlikely that the father will allow Y to have a relationship with his mother, or his siblings. The sibling relationship has been described as a major form of stability and very important for Y. Although the mother has a long way to go, there are signs that she is currently developing greater insight into the needs of her children and currently she provides a greater buffer against neglect, more stability and a little more capacity to independently care for Y than the father. In these circumstances, in my view it is in the best interests of the children for the orders sought by the mother to be made, with the exception of the future date for continuation of these proceedings.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 December 2014.

Legal Associate: 

Date:  9 December 2014.