PERRIN & PLOTT

[2016] FamCA 237

FAMILY COURT OF AUSTRALIA

PERRIN & PLOTT [2016] FamCA 237

FAMILY LAW – CHILDREN – With whom the children spend time – Parental responsibility – Best interests of the children – Issues of concern in relation to the mother and the father –Mother’s mental health and capacity –Father’s illicit drug use, criminal behaviour,  family violence and capacity – Where the father failed to engage with the Contact Service and has not spent time with children – Benefit to the children of a meaningful relationship – No proposal made by the father for therapeutic support or supervision –Need to protect the children from harm – Capacity to provide for the needs of the children – Attitude to the children and responsibilities of parenthood – Best interests of the children to live with the mother and spend no time with the father – Mother to hold sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Proceedings on foot for nearly four years – Listed for hearing several times – Father has been given extensive leniency – Non-compliance with directions – Need for finality – Application for adjournment refused – Matter proceeded to final hearing.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC, 68B.

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
Perrin & Plott [2014] FamCA 1098

APPLICANT: Ms Perrin

RESPONDENT: Mr Plott

INDEPENDENT CHILDREN’S LAWYER: Ms Youssef

FILE NUMBER: PAC 5656 of 2011

DATE DELIVERED: 11 April 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mahony

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

SOLICITOR FOR THE RESPONDENT: Father in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rafton Family Lawyers

Orders

1. All previous orders with respect to Y born … 2005, K born … 2006 and C born … 2009 (“the children”) are hereby discharged.

2. The mother shall have sole parental responsibility for the children.

3. The child shall live with the mother.

4. The children shall spend no time with the father.

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

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

   (b)       Approaching within 100 metres any school, educational facility, sporting or extracurricular facility the children, or any of them, attend from time to time, including F Catholic Primary School, H Street, Suburb I NSW.

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

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

6. Order 5 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

7. That the mother continue to engage herself and the children with the Department of Family and Community Services through any program or service she and the children may be referred to subject to the Department of Family and Community Services continuing to offer such service.

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. This matter concerns the long term parenting arrangements in respect of three children: Y, aged 11, K, aged nine and C, aged six.

2. The parents met in 2001 and married in 2006. The parents separated in late 2011 and in December 2011 the mother commenced the current proceedings.

3. On 12 October 2015 the matter was listed for undefended hearing. On that date the father attended and sought an adjournment. For the reasons detailed below that adjournment was refused and the matter proceeded to final hearing.

4. The mother seeks orders that she have sole parental responsibility for the children, that the children live with her and spend no time with the father. She further seeks an order pursuant to s 68B of the Family Law Act 1975(Cth) restraining the father from approaching within 100m of her residence, the children’s school or extracurricular facility or from stalking or intimidating her or the children.

5. The father’s position is unclear. At the hearing, the father expressed that he was no longer seeking orders set out in his Amended Response to Initiating Application filed 9 July 2012 but was seeking “weekend custody” of the children and “shared on Christmas holidays or holidays” and that if the mother “wants to be sole parent she can be sole parent”.

6. The Independent Children’s Lawyer (“ICL”) supported the orders sought by the mother, and proposed an additional order in relation to the mother’s engagement with the Department of Family and Community Services, to which the mother consented.

Application for adjournment

1. The parties separated in 2011 and the matter was first mentioned in the Family Court on 6 December 2011. The proceedings have been on foot since that time and this is the fourth time the matter has been listed for hearing.

2. On each of the last occasions the matter was fixed for hearing it did not proceed. On one occasion the hearing commenced and then became part heard and on each occasion subsequently the father has either not appeared, arrived late to Court or failed to file any material in accordance with the Court’s directions. From time to time the father has been legally represented.

3. On the last occasion when the matter was listed for undefended hearing (on 24 August 2015) it was made completely clear to the father that he was to file a Response and a single consolidated affidavit of his evidence and of each of his witnesses by 14 September 2015 and other directions were made about the filing of other documents. The proceedings were adjourned to 12 October 2015 to be dealt with on an undefended basis or in the event that the father wished for the matter to proceed to trial to fix trial dates. It was noted that the orders made and filing directions would be strictly imposed, and that there would be no further adjournment in the matter unless it was to proceed to trial noting that it was the third time it was listed for final hearing. Even if the matter were to proceed to trial on a future date orders were made that the parties were not permitted to rely on any documents unless they were filed in compliance with the orders.

4. The father has not complied with any of the directions once again. He gave some short oral evidence to the effect that only three weeks ago, that is after the date on which he was to have filed both his Response and his affidavits, he started making enquiries about representation with the Legal Aid Commission. It is not clear whether any steps have been taken to prepare for hearing but the father said that he spoke to somebody from Legal Aid recently who simply asked for the matter to be adjourned.

5. This is a matter involving three children which has now been on foot for nearly four years in circumstances where the father has been extended extensive latitude with respect to court orders. In such circumstances, where there is no certainty that the father would be in a position to proceed if his application was granted, the application for adjournment was refused and the matter proceeded to be determined.

The hearing

1. At the hearing, the mother relied on the following documents:

   ·Further Amended Initiating Application filed 27 July 2015.

   ·Her affidavit sworn 6 August 2015, filed 10 August 2015, relating to matters after 8 December 2014.

   ·Affidavit of Mr N (clinical psychologist) sworn 16 September 2015, filed 17 September 2015.

   ·Affidavit of Julie Davies sworn 25 September 2015, filed 30 September 2015, relating to service of the affidavit of Mr N upon the father.

   ·Notice of Risk filed 2 December 2011.

2. There is some lack of clarity as to the documents the father relies upon. As noted above, the father expressed at the hearing that he was no longer seeking the orders in his Response.  At the hearing the father expressed a wish to rely on his “affidavit” that he understood had been filed through his “welfare officer”. A handwritten, undated and unwitnessed document entitled “My Affidavit” that has not been filed or served was subsequently located at the Registry. It appears to be photocopied and it is unclear how it came to be located with the matter’s correspondence. Having regard to its form and the fact it has not been filed it was not read in the proceedings.

3. The father was given the opportunity to cross-examine the mother. He conducted very limited cross-examination which was in relation to only one incident on 25 May 2015 in which it is alleged the father’s partner assaulted the mother. While I understand the father’s case to be that the mother’s case is based on “false allegations”, he did not otherwise seek to cross-examine or challenge the mother’s evidence. As such, in effect, the mother’s evidence is almost wholly unchallenged by the father.

Background

1. The mother, now aged 32, and the father, now aged 42, commenced a relationship in 2001 and began living together in 2002.

2. The background of the family and proceedings are considered in my Reasons for Judgment[1] delivered on 9 December 2014 in determination of the mother’s application interim parenting orders, extracted below:

   [1] Perrin & Plott [2014] FamCA 1098

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

   7.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.

   8.The mother became pregnant in 2004 and [Y] was born in 2005.

   9.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.

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

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

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

   13.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.

   14.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.

   15.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.

   16.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.

   17.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.

   18.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.

   19.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.

   20.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.

   21.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.

   22.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.

   23.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.

   24.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.

   25.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 [K] and [C], but that [Y] was at risk and should be at home with her.

   26.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].

   27.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.

   28.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.

   29.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.

   30.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.

   31.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.

   32.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.

   33.On 13 October 2014 the mother says that [Y] telephoned her and said that he was ringing from nan (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”.

1. On 6 March 2014 a request was made to the Department of Family and Community Services to intervene in the proceedings, which Community Services declined in August 2014. A second request to intervene was made on 31 October 2014.

2. The matter was listed for the first day of final hearing on 1 December 2014 and included the mother’s application for Y to be returned to her on an interim basis. On that date, the father did not appear and the trial proceeded in his absence. After the expert psychiatrist, Dr R, had been cross-examined and during an adjournment while enquiries were made in relation to the Department of Family and Community Services intervening, the father arrived.  An adjournment was sought on the father’s behalf and the matter was adjourned to 3 December 2014.

3. On 3 December, orders were made adjourning the mother’s application for the recovery of Y to 8 December. Further orders were made for the father to file and serve an affidavit, and for the mother to file and serve an updating affidavit. The mother complied with these orders but the father did not.

4. On 8 December 2014, the father appeared in person and the mother’s application was heard. On that date, all previous parenting orders were discharged and the father was ordered to deliver Y to the mother. Orders were also made providing that the mother have sole parental responsibility for the children, that the children live with her, that the father to undergo urinalysis on the request of the ICL and that the father complete an intake assessment at W Contact Service. The father was restrained from approaching the mother or children’s residence or school and associated orders, and the mother restrained from permitting the children to have any contact with Mr L. Further orders were made in relation to C and the mother attending upon medical professionals and for the mother to engage with the Brighter Futures service.

Events after December 2014

1. The mother provides considerable detail of her attendance upon a paediatrician with the children since the orders in December 2014. She also provides details of attendance upon an optometrist and dentist, particularly in relation to Y’s problematic dental health.

2. The mother has now enrolled all three children in Primary School. The mother attends various events at the children’s school and appears engaged with the children’s education.

3. C has been diagnosed with a receptive and expressive language disorder. The mother annexes a letter from C’s classroom teacher and Head of Learning Support detailing the support being provided for C and the mother’s positive engagement with the school.

4. In early 2015 the mother made various attempts to engage with Brighter Futures in compliance with the December 2014 orders. The program appears to have been unable to engage with the family due to its existing workload. The mother and children were referred by Family and Community Service to the Youth Hope program. The mother annexes a letter from a “Youth & Family Coach” detailing that the family has been engaged with the program since May 2015 and that the mother “has participated in weekly home visits and actively sought support…in various ways in how to up-skill her parenting capacity and to build up the children’s resilience”.

5. The father did not complete the intake assessment at the Contact Service, and none of the children have spent time with the father since at least December 2014.

6. The NSW Police records and Local Court records indicate that the father was sentenced to imprisonment for nine months, with a six month non-parole period, to commence on 4 August 2015 for breach of a s 12 bond.  At the time of the hearing the father was in custody. The Court records indicate that the father appealed the severity of the sentence, which was listed on 14 October 2015.

The father

Family violence

1. As discussed in the Reasons for Judgment extracted above, the mother states that the father was verbally and physically abusive towards her during the relationship, and post-separation.

2. The father’s criminal history indicates that he has been convicted for contravening an Apprehended Violence Order (AVO) and for stalking or intimidating with intention to cause fear of physical or mental harm on six occasions since December 2011.

3. The facts upon which the father was convicted on one occasion in February 2012 are that when the mother was collecting K from school, the father was also in attendance. After yelling various insults at the mother, he got into his vehicle and blocked the driveway of the school so that the mother could not leave, and subsequently drove off while the mother waited for the police. 

4. On another occasion in November 2012 the father sent the mother abusive text messages and made a threatening phone call for which he received a four month suspended sentence.

5. In his report in November 2013, the Chapter 15 Expert, Dr R, was not able to form a clear view about domestic violence. Although he was of the opinion that it was clear that there was some conflict between the parents he did not feel like he was in a position to make a firm assessment. Dr R of the opinion that the father “still appears to be obsessed and focused on [the mother]”. 

6. The mother gives unchallenged evidence that on 5 June 2015, the father drove past her home while the children were present and yelled out the window “you’re fucking dead slut”, and that the children all looked fearful and distressed. The police attended the mother’s home but she declined to make a statement at the time.

7. On the basis of the evidence of the father’s criminal history, details of the offences to the extent they are known and the uncontested evidence of the mother, I am satisfied that there is a real risk that the father will perpetrate violence towards the mother to which the children will be exposed, if the two are to have ongoing contact.

Drug use

1. Another issue of risk associated with the father is his drug use.

2. The Local Court records and father’s criminal history available to the Court indicate that on 8 July 2014 the father pleaded guilty and was convicted for possession of methyl-amphetamine in February 2014. The conviction was confirmed at the Suburb O District Court in August 2014.

3. The father’s criminal history also indicates that he was convicted and fined for possession of equipment for administering a prohibited drug in November 2014. The father was also convicted and had his license suspended for driving a vehicle with an illicit drug present in his blood (amphetamine and methyl-amphetamine) in December 2014.  

4. The mother gives unchallenged evidence that Y made disclosures to her in January 2015 of observing the father smoke and sell “ice”, and stated to her “[w]hen cops pull us over dad puts little bags and money in my pockets, when I tried to stop he said ‘do you want to send dad to jail?’”

5. The NSW Police records reveal that the father has been was stopped and searched a number of times in 2015. On 31 May 2015 it is recorded that the father and a companion were searched and the police located “objects of interest including clear resealable bags containing residue and a set of scales”. It is recorded that the father’s companion stated he had been a user of “ice” for 20 years and he used the scales to measure his “gear” when he bought it. No further action appears to have been taken by police.

6. The Community Services records dated 3 February 2015 also record under the “History for [Y]” that Y had previously contacted his mother and stated that “dad is always using drugs”, that his father smokes ice from a glass pipe and “sells drugs”.  

7. On the basis of the father’s criminal history I am satisfied that the father has a history of illicit drug use.

Criminal behaviour

1. The father has a lengthy criminal history, including a number of recent offences.

2. In May 2015, the father was convicted and fined for the custody of a knife in a public place in addition to possession of equipment for administering drugs in November 2014.

3. In May 2015, the father was also convicted and fined for possession of ammunition on 28 February 2015. Police records indicate that “eight live rounds of 9mm Luger ammunition” and an “unloaded pistol” were found in the vehicle the father was driving.

4. As noted above, the NSW Police records and Local Court records indicate that the father was sentenced to imprisonment for nine months, with a six month non-parole period, to commence on 4 August 2015.

5. The father has a lengthy criminal history with offences spanning from 1989. His criminal behaviour commenced when he was 16 and includes offences such contravening an AVO, custody of a knife in a public place, possessing a prohibited drug and using a false document to influence the exercise of public duty. He has served a number of custodial sentences.

The mother

1. As discussed at length in the earlier Reasons for Judgment[2], Dr R, held significant concerns about both parents’ capacities.

   [2] Perrin & Plott [2014] FamCA 1098

2. In his report in November 2013, Dr R was of the opinion that the mother’s “drug use, poor self-image, fears of abandonment, low self-esteem, low self-worth, emotional dysregulation, impulsiveness, poor quality relationships, mood instability and opiate dependency I believe would qualify for borderline personality disorder”. He was particularly concerned about the mother’s relationship with Mr L, who had introduced the mother to heroin, and opined that even “though she is on a methadone program while she is in a relationship with [Mr L] I believe there is a high risk that either one or both of them will relapse and begin using again and in higher doses”. Dr R further opined that he had “major concerns about the mother’s long term ability to maintain the children and be able to maintain her stability”. However ultimately his recommendations included that the three children reside together with the mother, that neither parent use any drugs or alcohol with the children, that the mother as quickly as possible withdraw from any opiates and continue her involvement with Community Services.

3. As indicated, Community Services were invited to intervene in the matter on the basis of my significant concerns about the parents’ capacity but have declined to do so.

4. Under cross-examination in December 2014, Dr R was given brief updating evidence from the mother including that her relationship with Mr L was “over” and that she was engaged with Brighter Futures. The doctor stated that his recommendation that the children live with the mother would depend on her being able to demonstrate that she was providing well for the children, cooperating with the Department and had stability in her drug use and accommodation.

5. Order 20 of 9 December 2014 provided that the mother attend her General Practitioner and obtain a referral to a mental health professional for assessment and if necessary, treatment to improve her parenting capacity.

6. The mother says in her affidavit that she obtained the referral from a General Practitioner to a psychologist for a mental health assessment, but describes difficulties funding a mental health assessment in early 2015. In July 2015 the mother secured funding for a mental health assessment.

7. The mother attended an assessment with Mr N, a clinical psychologist, on 17 August 2015. Mr N was not cross-examined. Mr N states in his report that he conducted an interview with the mother for 90 minutes and administered three psychological tests. He does not appear to have had access to the material produced or filed in the proceedings.

8. Mr N opined:

   My impressions of [Ms Perrin] are that of a person who experienced strong feelings of rejection from early childhood and throughout her adolescence… By early adulthood, [Ms Perrin] engaged in behaviours that she reports were well outside of her values (such as prostitution and substance abuse) and endured traumatic experiences (such as her reported history of being a victim of domestic violence and sexual assault) in efforts to avoid abandonment by her ex-husband. [Ms Perrin] reported a history of intense and unstable relationships during her interview, which was consistent with her moderately elevated score on the Negative Relationships scale of the Personality Assessment Inventory. While [Ms Perrin] denied being an impulsive person during the interview, her reported history indicates some impulsivity (with regards to substance abuse and engaging in sex work). [Ms Perrin] also has a reported history of self-harming behaviours and suicidal ideation, although not since separating from [Mr Plott] in November 2011. These symptoms are suggestive of personality difficulties; however, further assessment would be required to ascertain whether criteria are met for a personality disorder.

9. In discussing the psychological assessment, Mr N opined:

   With the exception of [Ms Perrin’s] Substance Use Disorder which is reportedly well-managed under the supervision of her GP, I did not find that [Ms Perrin] met criteria for a diagnosable mental disorder during this assessment. [Ms Perrin’s] reports indicate a history of personality difficulties rendering it hard to her to establish and maintain stable relationships and rendering her prone to emotional lability including periodic feelings of anxiety. However, her reports indicate an increased stability in her mood and anxiety and an improved an improved level of functioning across the past 2 years, and in particular, the past 9 months, following her son [Y], being reinstated in her care. [Ms Perrin] reports now being engaged in a consistent daily routine built around her children…

10. Mr N was of the opinion that the mother would benefit from skills training to increase her interpersonal effectiveness, in particular assertiveness training. He also discussed that the “[p]ersonality difficulties during this assessment are likely to response to skills and strategies within the psychological treatment framework known as Dialectical Behaviour Therapy (DBT).”

11. The mental health assessment was prepared subsequent to the mother swearing her affidavit on 6 August 2015 and it is unknown what action, if any, the mother has taken in response to the psychologist’s recommendations.

12. While the mother does not discuss the issue in her affidavit, in interviews with Mr N, it is recorded that the mother reported that she was continuing with the same daily dosage of methadone under the supervision of her doctor.

13. Although there were no orders requiring the mother to undertake urinalysis or hair follicle testing, the mother says she undertook urinalysis at her General Practitioner’s office on 28 May 2015 which returned “clean”. The mother annexes correspondence between her solicitor and the ICL stating that the mother had made enquiries in relation to hair follicle testing but that it was beyond her means, costing at least $500 and the ICL was unable to suggest any less expensive alternatives.

14. The mother states that since December 2014 she has had infrequent contact with Mr L, and in compliance with the December 2014 has not permitted the children to have any contact with him. In her recent interviews with Mr N it is recorded that the mother reported that she had separated from Mr L.

15. The father did not challenge any of the mother’s evidence which suggested that she had reduced her drug use, accessed mental health care and programs to improve her parenting capacity and I accept the mother’s evidence as to these matters.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

1. The primary considerations (under s 60CC(2)) are:-

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. It is noted that these proceedings commenced prior to June 2012 and as a result each of the primary considerations are to be evenly balanced.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [3] (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.

   [4] (2007) Fam LR 518.

   [5] [2006] FamCA 994.

4. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

5. As the Full Court said in McCall & Clark (supra) at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

6. While written some time ago, Dr R’s report in November 2013 sets out his opinion about the children’s relationship with the parents. Dr R was of the opinion that the children seemed to have a good relationship with both parents. The doctor opined that the children appeared to be responding well to the mother and have a close relationship with her. Since the report was written, Y has come into the mother’s care and the mother is now the primary carer for all three children. Under the orders proposed by either the mother and supported by the ICL, or under the proposal of the father, the children will remain in the primary care of the mother and continue to enjoy a meaningful relationship with her.

1. The orders proposed by the mother would allow for no time or support for the relationship between the father and the children. In the November 2013 report, Dr R observed that the children gradually interacted with the father, and that he appeared to have a good rapport with Y. However, the children have not spent any time with the father since at least December 2014, and given the children’s young ages it can be inferred that the relationship with the father has been damaged. In any event, in my view, given the harm associated with father’s behaviour and the period of time that has elapsed since the father last saw the children, therapeutic support or supervision would likely be required to rekindle the relationships. The father puts forth no clear proposal for either and simply asserts from the bar table that he wants “weekend custody”. Further, given the father’s drug use, involvement in criminal activity and violent and threatening conduct towards the mother it is difficult to see that the children will benefit from a significant relationship with the father.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. A significant consideration in this matter is the need to protect the children from harm.

2. The mother’s evidence, which was unchallenged, was that in the father’s household the children were exposed to family violence perpetrated by the father against the mother. The father has been convicted on a number of occasions for breaches of apprehended violence orders and stalking or intimidating the mother. On at least one of the occasions, the facts in the Local Court records state that K was present when the father was verbally abusive to the mother and blocked her car from leaving K’s school. As recently as 5 June 2015, the father drove past her home and threatened the mother while the children were present.

3. While the circumstances in the father’s household are unclear, the mother’s unchallenged evidence is that in the father’s care Y began to exhibit sexualised behaviour towards C. The Community Services records indicate that the report was sent to the Joint Investigation Response Teams (JIRT) Referral Unit but was rejected given no disclosure had been made by the children. Concerns arise that the sexualised behaviour may indicate psychological harm may have been experienced by Y while in his father’s care.

Additional considerations

1. Section 60CC(3) and (4) (as it applied prior to 2012) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. In November 2013, when Y was eight, he expressed to Dr R that he enjoyed spending time with his mother although he hadn’t seen her for a period of time. He wished that his parents could get back together and that his missed his brother and sister a great deal. Dr R opined that Y was being forced to taken on adult roles and felt as though he needed to support the father. Despite this, while he was aligned with the father he was not negative towards the mother.

2. At the time of the assessment, K was only seven. Dr R formed the view that he was closely aligned with the mother. It is recorded that K expressed that he really liked his mum but didn’t like his dad “that much” and “[the father] smacked [him]” and “kicked mum in the guts”. The doctor was of the opinion that these appeared to be pre-planned statements.

3. C was only four at the time of the interviews and didn’t have any clear statements to make of her own.

4. Dr R did not express an opinion about the weight to be attached to the children’s views other than to say that all three children were very distressed. Given the children’s ages and underlying factors I attach little weight to their views.

The nature of the children’s relationships

1. Dr R was of the opinion during his assessment in November 2013 that the children had a good relationship with each parent. However, since at least December 2014 the children have had no contact with the father and it can be inferred that these relationships have deteriorated.

2. The Expert Report also suggests that the relationships that the children have with each other is of great importance to them.

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The mother proposes orders that would see the children have no relationship with the father.

2. Dr R was of the opinion that the father would support a relationship between the mother and the children. However, it appears that this may be associated with the father’s obsession and focus on the mother and desire for her to “take him back”.

The likely effect of any changes in the children’s circumstances

1. There were a number of changes in the children’s living arrangements after separation. The mother had care of all three children from late 2011. At the end of 2012 Y was permitted to go to the father and did not return and lived with the father until December 2014. Since December 2014 all three children have lived with the mother and spent no time with the father.

2. The orders proposed by the mother would to a large extent formalise the children’s current circumstances on a final basis. The children would continue to live with the mother, spend no time with the father and she would continue to hold parental responsibility for the children.

The practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

1. At the time of the hearing the father was in custody and it is unclear when he will be released. Clearly there would be very significant practical difficulty to the children spending time or communicating with the father if he is in goal.

The capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

1. This is one of the most significant considerations in this matter.

2. In his report and in cross-examination in December 2014 Dr R held concerns about both parents’ capacities. Dr R was of the opinion that the father was “very dependent and reliant on others”. He formed the view that:

   …[the father] could function at a low level and was capable of caring for the children at a basic level. However he appears to be low functioning and would struggle to care for the children full-time without significant assistance… I find it difficult to decide as yet whether his high dependency on others and low functioning makes him unable to provide parenting for the children unless with substantial support.

   …

   I formed the view that he had significant dependent features and probably has a dependent personality disorder.

3. In particular, the doctor expressed concern that there was a risk the children could become parentified and that the father may rely on them for his emotional reserve. The doctor observed that Y appeared to have developed a parenting role in the father’s care and was “probably the more functional person between him and his father”.

4. While the mother does not annex any medical records, she was not challenged on her evidence that she took Y to a dentist in January 2015 and was told that his mouth was in “terrible shape” due to the neglect of his dental health [in the father’s care]. 

5. Dr R was of the opinion that the mother had a higher level of functioning than the father. However, he expressed that he had “major concerns about the mother’s long term ability to maintain the children and be able to maintain her stability”. Under cross-examination in December 2014, he stated that his recommendation for final orders would depend on the mother being able to demonstrate that she could provide well for the children and that she was cooperating with the Department, had stability in her accommodation and was able to follow through with the health and needs of the children.

6. The mother has made significant improvements in her capacity to meet the children’s needs in the past two years. In his psychological assessment in August 2015, Mr N records that the mother’s “reports indicate an increased stability in her mood and anxiety and an improved an improved level of functioning across the past 2 years, and in particular, the past 9 months, following her son Y, being reinstated in her care.”

7. The mother provides extensive detail of her efforts of meet the children’s health and educational needs. The children’s school records annexed to the mother’s affidavits indicate that the children are doing reasonably well at school and that the mother has consistently engaged with the school, particularly in relation to C’s special needs. She has also engaged well with the Youth Hope program with Community Services and consented to an order proposed by the ICL to continue to engage with Community Services.

8. While there are still concerns about the mother’s capacity, including her continuing daily dosage of methadone under the supervision of her doctor, she appears to be stable and be providing well for the children.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the child’s parents, and any other characteristics of the children that the court thinks are relevant

1. The child C has been diagnosed with a receptive and expressive language disorder. The mother seems to be attending to the child’s special needs and annexes a letter from C’s classroom teacher and Head of Learning Support detailing the support being provided for C including speech therapy and the mother’s positive engagement with the school.

2. The father lifestyle, particularly his anti-social and criminal behaviour are a salient issue.

If the child is an Aboriginal child or a Torres Strait Islander children: the children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order on that right;

1. As noted in the earlier Reasons for Judgment,[6] though neither parent positively asserts that the children are Aboriginal it appears the children are Aboriginal through their paternal family. However, the father has not filed any recent affidavits in the proceedings and, as I understand it, did not assert that the children are of Aboriginal heritage. There are no details of the particular tribe to which the children belong or culture specific to that tribe.

   [6] Perrin & Plott [2014] FamCA 1098 at [59].

2. The mother has engaged with some activities related to their Aboriginal culture, including Y attending choir through the school’s Indigenous Students Program.  The mother has also engaged Y with Aboriginal Medical Services.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

1. The parents have engaged in a protracted dispute over the care of the children with little apparent insight into the effect of their conflict and the children’s separation from one another.

2. The mother for her part appears to have settled in the past couple of years, and has responsibly attended to the children’s health and educational needs and provided them with a stable routine.

3. The father has demonstrated an unacceptable attitude to the children and his responsibilities of parenthood by his aberrant conduct towards the mother and drug use in the presence of the children. He has intermittently and superficially engaged with these proceedings to determine the parenting orders for these children.

Family Violence

1. The mother states that the father was verbally and physically abusive towards her during the relationship and the father’s criminal history indicates that the father has been convicted for contravening an AVO for the protection of the mother and for the offence of stalk or intimidate intending to cause fear of physical or mental harm on six occasions since December 2011.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. These proceedings have been on foot for a number of years, and there is a need to provide certainty and finality to the children’s parenting arrangements.

The extent to which each of the children’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child, to spend time with the children; and  to communicate with the children

1. Since December 2014, the children have lived with the mother and she has held sole parental responsibility for them. She has made the long-term decisions in relation to their education and health.

2. The father has not taken the opportunity under the orders to spend supervised time with the children.

The extent to which each of the children’s parents has facilitated, or failed to facilitate, the other parent: participating in making decisions about major long-term issues in relation to the child; spending time with the child; and communicating with the child; and

1. It appears that prior to December 2014 each parent simply made decisions in relation to the children in their care and did not facilitate the other parent participating in making decisions about the children.

2. Since December 2014 the mother has made the decisions for the major long-term decisions for the children and has not facilitated the children spending time with the father. However, under the orders it was the father’s responsibility to undertake the necessary intake assessment at the Contact Service which he did not complete so the mother’s facilitation of the father spending time with the children did not arise.

The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. Neither party provided evidence in relation to this consideration

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. In Goode & Goode[7] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. The effect of a parenting order that provides for shared parental responsibility pursuant to s 65DAC(2) is that decisions about major long-term issues are required to be made jointly and require the parents to consult one another in relation to such decisions and make a genuine effort to come to a joint decision about that issue.

   [7](2006) FLC 93-286.

3. The ICL and mother propose that sole parental responsibility be given to the mother. The father stating in the hearing that “if she [the mother] wants to be the sole parent she can be the sole parent”.

4. Although the expression “sole parental responsibility” is not defined in the Act, having regard to the definition of parental responsibility in s 61B, an order providing that a parent have sole parental responsibility for the children must mean that the parent would have all the duties, powers, responsibilities and authority which by law parents have in relation to children and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the children.

5. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

6. For the reasons previously given, I am satisfied that the father has been the perpetrator of family violence and accordingly the presumption does not apply.

7. As stated, the mother has held sole parental responsibility for the children since December 2014.

8. Given the parents’ lack of cooperation and communication, the father’s disengagement with the children, the children’s future parenting arrangements and having regard to the considerations above I am of the view that it would not be in the children’s best interests for the parents to equally share parental responsibility for them. Having regard to my findings I am satisfied that it is in the children’s best interests for the mother to hold sole parental responsibility for the children.

Conclusion

1. In considering each of the matters relating to the children’s best interests as required by the Act I have attached particular weight to the primary consideration of the need to protect the children from harm which strongly favours the orders proposed by the mother and ICL. Other weighty factors include the capacity of the parent’s to provide for the children’s needs, the attitude to the responsibilities of parenthood and family violence.

2. The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 April 2016.

Legal Associate: 

Date:  11 April 2016.