Robles and Causey

[2019] FCCA 2915

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROBLES & CAUSEY [2019] FCCA 2915

Catchwords:
FAMILY LAW – Parenting – best interests of children – sole parental responsibility – Independent Children’s Lawyer appointed – whether applicant should have no spend time – spend time arrangements – supervision – whether spend time arrangements present an unacceptable risk to the child – supervised time at contact centre – family violence – significant allegations of illicit substance abuse – application for an adjournment granted.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 69ZL, 102NA

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode [2006] FamCA 1346

Marvel & Marvel [2010] FamCAFC 101

Applicant: MR ROBLES

Respondent: MS CAUSEY

File Number: MLC 6541 of 2018

Judgment of: Judge A Kelly

Hearing date: 1 October 2019

Date of Last Submission: 1 October 2019

Delivered at: Melbourne

Delivered on: 23 October 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr T. Byrne

Solicitors for the Respondent: Pentana Stanton Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The respondent mother have sole parenteral responsibility for [X] born … 2013 and [Y] born … 2005 (the Children).

3. The Children live with the respondent mother.

4. The Children spend no time with the applicant father.

5. The Children communicate with the father in accordance with their wishes.

6. Nothing in the preceding paragraph of this Order operates to prevent the applicant father from seeking to contact the child [X] by telephone twice a week.

7. If the applicant father seeks to apply to this court for further parenting order, he must file and serve with any such application an affidavit deposing to his current state of health and exhibiting the following:

   (a)a hair follicle test indicating that the applicant father has been clear of illicit substances a period of for at least six months;

   (b)a supporting letter from a drug and alcohol counselling service attesting to the applicant father’s abstinence from the use of illicit substances for a period of six months;

   (c)a current psychiatric assessment by an appropriately qualified medical health professional;

   (d)a certificate of completion of a post separation parenting course; and

   (e)a certificate of completion of a parenting skills course.

8. The respondent mother enrol in and complete a post separation parenting course and a parenting skills course and furnish certificates of completion of each such course to both to the applicant father and the Independent Children’s Lawyer.

9. Pursuant to s.68L(2) of the Family Law Act1975 (Cth) the children [X] born … 2013 and [Y] born … 2005 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

   (a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;

   (c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at:

   ( in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7 of those Guidelines; and

   (d)the Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the Final Hearing.

10. As section 102NA of the Family Law Act 1975 (Cth) applies in this proceeding, the applicant father is to do all things necessary and sign all documents so as to make application to Victoria Legal Aid for funding under the Scheme known as the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his being legally represented at the final hearing. 

AND THE COURT NOTES THAT:

A.The respondent mother is to facilitate any request by the Children to contact their father.

IT IS NOTED that publication of this judgment under the pseudonym Robles & Causey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6541 of 2018

MR ROBLES

Applicant

And

MS CAUSEY

Respondent

Ex tempore REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for parenting orders which was commenced on 13 June 2018 by initiating application filed on behalf of the applicant father.  At the time of commencement of the proceeding, parenting orders were sought in relation to two children [X] born … 2013 and [Y] born … 2005 (Children).

2. The child, [Y], is not the biological child of the father while [X] is his son.  The allegations in the proceeding involve family violence, substance abuse and a high level of conflict between the parents.  The matter has been the subject of interim orders on 23 July 2018, 23 May 2019, 12 August 2019 and again on this day. 

3. Included in the steps which have been taken to assist the parties in resolving appropriate parenting arrangements for the children have been the provision of a family report which has recently been updated.  Earlier orders provided for the child [X] to spend time with his father on the basis that that time would be supervised by the paternal grandmother, however, the paternal grandmother has now declined to provide further support by way of supervision by reason, as she says, of the father’s continued substance abuse. 

4. As I explained to the father, today is not the date on which I can finally determine whether any of the facts which are brought forward in this proceeding are properly made out or not.  Although the matter was listed for final hearing this day the father found himself without legal representation and applied for an adjournment which I am granting.  However, as explained to him the grant of that adjournment carries with it the consequences as to what is proper to be done on an interim basis in circumstances where the risks to the child, [X], are real. 

5. The court is authorised by s 69ZL of the Family Law Act 1975 (Cth) to provide reasons in short form and in relation to interim parenting orders. I propose to adopt the course authorised by s 69ZL in this case having regard to the application for an adjournment and the evidence which is presently before me.

6. In Goode & Goode,[1] the Full Court set out the pathway to be followed in a procedure for making interim parenting orders.  The Full Court endorsed the principle that such orders could be made upon an abridged process where the scope of the inquiry was significantly curtailed and where the court could not make findings of fact, it should not do so on matters relating to the substantial merits of the case where that was not possible.[2]

   [1]             Goode & Goode [2006] FamCA 1346.

   [2]See also Marvel & Marvel [2010] FamCAFC 101, [120] – 122; Deiter & Deiter [2011] FamCAFC 82, [61].

7. The risk assessment to be undertaken for the purposes of s 60CC of the Act essentially comprises two elements, first, prediction of the likelihood of the occurrence of harmful events and, secondly, consideration of the severity of the impact caused by those events. The court held that the assessment of risk involving welfare of children could not be postponed until the last piece of evidence had been tested. However, it would also be a question of degree depending upon the evidence that was then before the court.

8. In the circumstances, it is unnecessary for this court to do more than identify the objects and principles underlying parenting orders as set out in s 60B of the Act and the requirement to have regard to the best interests of the child as the paramount consideration.[3]

   [3] s 60CA, Family Law Act 1975 (Cth).

9. As discussed with Mr Byrne of counsel, the primary and additional considerations set out in ss 60CC(2) and 60CC(3) also require consideration in all cases including on an interim basis.

10. In this application for an adjournment, I have been assisted by the outlines of case filed by the father and mother respectively which identified the factors which were considered to be of special relevance to the matter both on a final and interim basis. 

11. In addition to the family report which was prepared on 10 July 2019, a supplementary report was furnished on 3 September 2019.  A confidential report dated 30 September 2019, was also prepared by the Department of Health and Human Services (DHHS).  I have paid close regard to those documents.  For the present purposes it is important to recognise that the child, [X], is having contact with his father by telephone, but his supervised contact with his father has ceased for the reasons outlined above.  DHHS has conferred with the paternal grandmother and it records her advice that she is no longer willing to supervise her son’s contact with her grandson.  She attributes an overall decline in his behaviour and her suspicion that her son has resumed illicit substance use to her concern for the likely impact on [X] and any another child.

12. Further, DHHS attempted to confer with the father on several occasions. Its report records that a number of appointments were cancelled or that he had failed to attend them.  On some occasions during phone calls made to reschedule appointments, the authors of that report recorded that the father’s speech sounded slurred and it appeared difficult to obtain the father’s focus on relevant issues during those conversations.  However, more optimistically the father was able to attend an interview with DHHS on 20 September 2019 at Location A  and on this occasion, the father was observed to be in a markedly clearer in his frame of mind than he had appeared during telephone conversations.  In fairness to the father, the report records that he denies having spoken inappropriately in the presence of the child and also denied substance abuse issues.  At the same time he acknowledged to the department to having recently used heroin on two occasions and also to having used cannabis.  The report further identifies that the father is having issues with housing and reference is made to both Support Service B, (a housing, drug and alcohol support service) and to his having filed applications with DHHS housing. 

13. DHHS has also interviewed the Children, [Y] and [X].  It is clear that [Y] no longer wishes to have contact with his non-biological father.  However, he has on occasion attended so as, it would seem, to provide some support to his younger sibling. 

14. At the same time, the younger child, [X], who expressed concern while being physically present with his father, advised DHHS that he was not worried when speaking to his father by telephone.

15. Other matters of significant concern identified by DHHS include the sporadic and inconsistent attendance by [X] at his school.  The department recognised the significant risk that would be posed to the child if he continued to fall behind in his education.  Again, perhaps optimistically, DHHS has been informed by the school that [X] has attended on nearly every day since 2 September 2019.  Contrastingly, the advice received by DHHS from [Y]’s school indicates that while there are no known learning difficulties, his attendance has been low (58 per cent) on the stated basis that he both lacked motivation and was distracted in his classroom environment. 

16. In forming an assessment in relation to the matter, DHHS stated that it assessed the father was likely to be minimising his actual substance use.  In addition, it noted that the father has had an extensive history of substance abuse including heroin and that the paternal grandmother has noted marked differences in his presentation and concern as she expressed it for the wellbeing of the grandchildren. 

17. It also noted that while the father had spoken of seeking help through Support Service B, their last record of his having contacted them was in June 2019.  Of further concern in this matter is that DHHS has substantiated reported concerns in relation to [X] holding both the father and the mother as “each responsible for harm”. 

18. Recommendations made by DHHS included that the Children continue to reside with the mother and that any further contact with the father should remain supervised at this stage.  In making those recommendations DHHS recognised that at present there were no family or friends known who would be able to assist in supervision.  While encouraging the need for supporting contact between the father and son, the department also recognised the equal importance (indeed the paramount importance) of ensuring that [X] had a safe and healthy relationship with his father.  For that reason, it is suggested that arrangements be made for the parents to make an application to a contact centre and for the father to make attempts as he has been doing to seek new housing.  To that end, DHHS has provided emergency contact housing details to the father and it has recorded that the father is aware that DHHS housing is another avenue through which he might obtain support.

19. The detailed history in the family report prepared on 23 July 2019, asserts to confirm the considered attention which has been given by the family report writer to what would be in the best interests of the Children.  I am fortified in that view by the content of the supplementary report dated 3 September 2019. 

20. Matters identified in the supplementary report include that the family report writer conducted telephone interviews with each of the paternal grandmother, the mother and the mother’s partner.  A limitation which was placed upon the supplementary report was that the father had not been interviewed.  The report states:

21. He was aware of the scheduled interview but did not attend.

22. It is not necessary in the circumstances of this case to recount the background or proposals of the parties.  I agree in the risk factors that have been identified in the supplementary report.  However, like DHHS, the family report writer also recognised the reasons why the paternal grandmother had withdrawn her support by way of supervision. 

23. An ongoing source of concern are the two reasons the report writer has recorded in assessing the proposals for what would be in the best interests of the Children.  On the one hand, the family report writer notes that the mother accepts that some members of the extended paternal family have a supportive relationship with [Y] and recognises (as occurred in the earlier report) that [Y] was keen to see his extended paternal family.  It also recorded that the mother was very happy to arrange a time with the paternal grandmother so that the grandchildren could visit her and others in the extended family.  Further, the report writer recorded that the mother did not want [X] to speak further with his father on video calls.  In this regard the mother recounted that the child, [X], had recently asked her what “three grams” means?  The mother surmised that the child’s reference to “three grams” was a reflex of conversations which the child had overheard in the presence of the father. 

24. Of greater concern is the following:

25. [The mother] is also apprehensive about threats Mr Robles has made.  She thinks that he is reasonably serious.  He has said it will depend on how things go in court.

26. I note also that the family report writer recorded the mother’s shock when she observed the father in court on the last attendance on 12 August 2019 by reason of him having lost so much weight.  She expressed serious concern as to whether he was engaging in ongoing substance abuse. 

27. Contrastingly, the mother has been in an ongoing relationship for a period of at least eight months.  Having regard to the matters disclosed by the paternal grandmother during the family report writer’s interview, the family report writer evaluated that since the preparation of her last report “the father’s behaviour has deteriorated significantly.”  He was fortunate that his mother, Ms C, was willing to provide supervision so that he could see [X].  She has attempted to facilitate a relationship between [X] and his father at some inconvenience to herself and her partner. 

28. The family report writer concluded that whilst the father’s behaviour may be exacerbated by his having been “institutionalised” (as he had earlier described himself during contact with the family report writer), the safety and wellbeing of the child was considered to be a priority.  I agree in that conclusion. 

29. The family report writer considered that the father would need to make significant changes and demonstrate over time that a relationship with [X] would be in the child’s best interests and that a platform for such conclusion would include abstinence from illicit substances, a capacity for insight and self-regulation and a commitment to a regular schedule of visits.

30. The family report writer also noted that at his young age, [X] was vulnerable and that the father appeared incapable of providing the protection and nurturing needed from some of the adults in his life. 

31. Recommendations made by the family report writer concluded that the Children live with the mother and only spend time with the paternal grandmother by agreement with the mother.  The further recommendation made included that the father’s time with [X] be reserved until certain steps had been completed.  Those steps were as follows:

    (a)12 months of clear urine drug screens; 

    (b)alcohol and drug counselling with a supporting letter from his treating practitioner attesting to the father’s abstinence from drug usage over a period of 12 months;

    (c)a psychiatric assessment;

    (d)a post-separation parenting course;

    (e)a parenting skills course.

32. The family report writer further considered that following completion of those conditions the father should be at liberty to make application for a conveniently located Children’s Contact Service for supervised time with the child. 

33. As discussed with counsel for the mother, it is desirable to introduce an element of equilibrium to the parenting arrangements that both the mother and father should undertake a post-separation parenting course and a parenting skills course, respectively.  The family report and supplementary report speak loudly to the desirability of the mother undertaking such courses with a view to assisting her in taking further steps to encourage both of the Children to obtain the best education that might be possible. 

34. Commendably, Mr Byrne of counsel (with the assistance of a duty lawyer and a men’s support representative of the court) was able to contact with the D Family Contact Centre (being the closest or most convenient centre in terms of location to the parents).  Mr Byrne submitted that the duty lawyer had provided the relevant application forms to the father and the mother. 

35. In my view, having regard to the settled principles respecting parenting, the present risk is such that the appropriate order is that the father should not spend time with his son at this stage.  In future he may continue to do so, albeit on a supervised basis (and that that will not be possible until he effectively makes it to the front of the queue at the D Family Contact Centre). 

36. As a further step to assist the parties in resolving proper parenting arrangements, I will make an order for the appointment of an Independent Childrens Lawyer (ICL).  I think that it would be of assistance both to the court, the parties and, indeed, the ICL that the appointment should operate for the benefit of both the non-biological child, [Y], and for [X].  I think that appointment will be of assistance to each of the persons mentioned because it seems that [Y] has a demonstrated insight into what would be in the best interests of his younger sibling.  It may be hoped that [Y] will be part of the key to identifying what future parenting arrangements involving the father, if any, are appropriate in final orders. 

1. I am further concerned that the father now finds himself self-represented and given the serious allegations of family violence it is necessary for an order to be made pursuant to s 102NA of the Act.

2. Mr Byrne of counsel helpfully supplied submissions as to what orders were appropriate on an interim and final basis.  I am satisfied given the state of the evidence and the history of the proceeding to this date that it is appropriate for the mother to have sole parental responsibility for both of the Children and for the Children to live with the mother and spend no time with the father. 

3. I also endorse the proposal that the Children should be free to communicate with the father, however, the limitation that they should only do so “as agreed by the mother” is a limitation which I do not endorse.  In particular, it seems sufficiently clear that the Children both have and want to maintain communication with the extended paternal family, especially their paternal grandmother.  It seems entirely open that the Children may on future occasions express the view (whether to each other, their mother, their grandmother or other members of their extended family), that they wish to have some ability to communicate with their father on occasion.

4. I see no reason in all of those circumstances to confine the Children’s communications with their father to be subject to a condition that it only occur in circumstances where the mother agrees to that happening.  I have already stated the conditions which were identified in the supplementary report and I propose to make each of those a condition upon which the father may seek any further relief in this proceeding.  To do so does not, of course, foreclose the possibility that either the mother or the ICL might make application for the final determination (including the dismissal) of this proceeding, at such time and in such circumstances as they may be advised.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.

Associate: 

Date: 23 October 2019