Samson and Ackerland (No.2)
[2009] FMCAfam 1511
•23 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMSON & ACKERLAND (No.2) | [2009] FMCAfam 1511 |
| FAMILY LAW – Interim arrangements for care of child aged 4 years – significant family violence concerns – Child Protection Service involvement – child independently represented – maternal great aunt seeks parenting orders – maternal great aunt has previously had care of child with approval of Families SA – maternal great aunt’s position supported by independent children’s lawyer and mother – best interests. |
| Family Law Act 1975, ss.60CC |
| Applicant: | MS SAMSON |
| Respondent: | MR ACKERLAND |
| File Number: | ADC 2205 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 23 July 2009 |
| Date of Last Submission: | 23 July 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 23 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dixon |
| Solicitors for the Applicant: | Polly Dixon & Co |
| Counsel for the Respondent: | Mr Thomas |
| Solicitors for the Respondent: | Armour & Allen |
| Counsel for the Respondent: | Ms Litchfield |
| Solicitors for the Respondent: | Susan Litchfield Solicitor |
| Counsel for the Independent Children’s Lawyer: | Mr Bowler |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission |
ORDERS
This matter be listed for final hearing before Federal Magistrate Brown on 9, 10, 11 and 12 March 2010 at 10.00am NOTING 4 days hearing time has been allocated and will not be exceeded without leave of the Court.
The child [X] born [in] 2005 do live with the maternal aunt.
The child spend time with the mother on Wednesday and Saturday of each week between 10.00 am and 4.00 pm.
The child spend time with the father on each Friday from 11.30 am to 5.30 pm and each Sunday from 10.00 am and 4.00 pm.
All handovers for the mother take place at the home of the maternal aunt unless otherwise agreed.
All handovers for the father take place at the home of the maternal aunt unless otherwise agreed.
A Family Assessment be undertaken by a pschologist to interview all parties and to provide recommendations as to the living arrangements for the child. The person to undertake the report is to be agreed between the parents and if no agreement can be reached, then to be nominated by the Independent Children’s Lawyer with the costs to be shared equally between the father and the mother.
The father deliver the child to the maternal aunt on Friday 24 July 2009 at 5.30 pm.
Further consideration of the matter is adjourned to 18 September 2009 at 9.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Samson & Ackerland (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2205 of 2009
| MS SAMSON |
Applicant
And
| MR ACKERLAND |
Respondent
REASONS FOR JUDGMENT
The proceedings today concern arrangements for the interim care of a young child, [X], who was born [in] 2005, so [X] is a little over four years of age at the present time.
I am dealing with interim arrangements for [X]’s care. What that means is that today I am not determining the long‑term arrangements for [X]’s care. In order to determine the long term arrangements, I am going to fix the matter for a final hearing. The final hearing will be in the New Year. At this stage, what I propose doing is allocating four days for the final hearing.
I am allocating four days because the first week I have available, which has no other commitments in it, is the sitting week starting 9 March, which is a Tuesday. The day proceeding is a public holiday by reason of the Adelaide Cup holiday.
So I will do my level best to hear the matter in four days from 9 to 12 March 2010. So today I am dealing with arrangements for [X]’s care for the next six, seven or eight months or so. The purpose of these reasons is to explain the decision I have reached as to how [X] can be best cared for until that final hearing date.
I have already delivered two earlier reasons for judgment in this matter on 29 June 2009 and 7 July 2009. What I have to say today must be read in conjunction with those earlier reasons for judgment.
Since 7 July, a number of things have happened in terms of the procedural history of the matter. Firstly and most importantly, [X], although a child of very tender years, is independently represented in these proceedings. His representative is Mr Kent, who is an experienced family lawyer. Today Mr Kent has briefed Mr Bowler, a barrister to appear on [X]’s behalf.
Secondly, there is now, besides the independent children’s lawyer, another party to the proceedings. She is Ms W, to whom everyone refers as “[Ms W]”. She is now a party in the proceedings. She has made an application that [X] be returned to live in her care.
Thirdly, a number of documents have been subpoenaed and I now have a lengthy report from the Child Protection Service. The report was written by Ms C, who is a senior clinical psychologist. Her report is dated 27 April 2009.
In general terms, it is the independent children’s lawyer’s position that [X] should live with Ms W and spend regular periods of day time with both his father and his mother. Ms Samson falls in with that recommendation as does Ms W.
It is Mr Ackerland’s position that it would be a retrograde step for [X] to be exposed to yet another change in arrangements for his care. It is Mr Ackerland’s position that [X] is well settled in his home, where he is well looked after by him and his current partner.
These proceedings will not, as I say, determine long‑term arrangements for [X]’s care. At this stage I have not seen either of the parties, nor Ms W in the witness box, nor indeed Mr and Mrs Ackerland Senior, [X]’s paternal grandparents, who are also vitally interested in the outcome of this case.
All these people are very interested in [X]’s wellbeing. I have not seen any of them in the witness box answering, perhaps, difficult questions about their previous behaviour. As such it is difficult, if not impossible, for me to form any opinion as to what sort of people they are and what sort of parents, in the case of Ms Samson and Mr Ackerland, they are.
What I have to do today is fashion the orders which I think will best serve [X]’s best interests. I think it is self-apparent, given the difficult circumstances of this case, that the parents – Ms Samson and
Mr Ackerland – cannot exercise shared parental responsibility in respect of [X].
I think, therefore, I have to consider the various section 60CC matters and determine how [X]’s best interests will be served in the short to medium term.
Firstly, I have to consider the benefits that [X] will have from having a meaningful relationship with both of his parents. I think it is a significant factor in this case that the child welfare authorities considered that [X] would benefit in the medium to longer term by being reunited into his mother’s care.
That was the plan after [X] came to the notice of Families SA in October of 2008. I think it is a significant factor that, in April of this year, Mr Ackerland determined that [X] should be cared for primarily by him, and in reaching that decision, I think it is difficult to refute – that is reach any other conclusion – that his (Mr Ackerland’s) parents were in agreement with his decision and Ms Samson was not, because she was not consulted about it.
I think, as a result of what happened after that decision, it is clear that not a great deal of thought was given as to how [X] would maintain his relationship with his mother, which must be significant for [X].
The chief benefit, I think, of Ms W’s proposal, which is supported by the independent children’s lawyer and by Ms Samson, is that [X] will have the best possible means of reforming his relationship with his mother.
I would not be persuaded that, if the current status quo is maintained, such an outcome could be guaranteed because of the animosity that
Mr Ackerland and his parents are likely to have for Ms Samson.
I also have to consider the need to protect [X] from being exposed to abuse, neglect or family violence, which may result in him coming to physical or psychological harm. In October 2008, [X] came to the notice of the police and then to Families SA, and then to the Child Protection Authority.
All three of those organisations had very grave concerns about [X]’s wellbeing, because the authorities had reached the view that there was significant evidence to indicate that [X] had been exposed to abuse and to family violence, whilst in the parents’ care.
I think it is clear that the authorities thought that there was much to be concerned about in the parenting of [X], by both his parents. For that reason, there was the temporary placement order, as a result of which [X] came into the care of first his grandparents and then his maternal aunt, and then more recently again, his paternal grandparents.
The view of the authorities, through that period from October 2008 to April 2009, was that both Ms Samson and Mr Ackerland had to do something about their lives. In particular, demonstrate that they were turning their lives around both in terms of their use of drugs and alcohol and in terms of their understanding about the consequences of violence for young children before any thought would be given to the child being reunited with one or other of them, or possibly both in some sort of shared care arrangement.
It is the Independent Children’s Lawyer’s position, supported by the documents provided by Families SA and the evidence that I heard from Ms D that Ms Samson was doing that. However, although initially the Department was impressed with Mr Ackerland’s level of insight into his difficulties, as time went on, they grew concerned that
Mr Ackerland was downplaying previous aspects of his behaviour.
As a result, at this stage I have concerns that Mr Ackerland will not be able to protect [X] from physical or psychological harm. It is, I think, early days in terms of his relationship with his new partner. I am concerned that the only evidence, in terms of what insight
Mr Ackerland has about his previous behaviour comes from
Mr Ackerland himself, and necessarily that must be partial and self-serving to some degree.
In terms of the additional considerations, [X] is too young to express any view. [X] is a very vulnerable child, by reason of his age. He is totally dependent on the adults around him to supply his needs.
I accept there are a lot of people, who are very concerned about [X] and have a close relationship with him. These people include Ms W, who has previously had a significant amount to do with him, his parents, of course, and Mr and Mrs Ackerland Senior. I think whatever order I make must ensure that [X] maintains all of these important relationships.
I have to consider the willingness and ability of each of the child’s parents, to facilitate and encourage a close and continual relationship between [X] and the other parent. As I say, I have some concerns that Mr Ackerland has demonstrated some deficits in this area because, until Ms Samson brought her application, it seems to me that
Mr Ackerland had not given a great deal of thought as to how [X] would continue his relationship with his mother.
On any view, it would seem to be the case that she has had a significant involvement in [X]’s life. Although there is a dispute, between the parties, as to who of them has been [X]’s primary carer in the past, it is clear [X] lived in his mother’s household from the date of his birth until October 2008. I also note that initially Mr Ackerland was wanting [X] to remain in the care of his mother.
I now turn to other considerations, which I have to take into account, these include the capacity of [X]’s parents to provide for his needs, including his emotional, intellectual needs and the attitude that each of the parties’ parents have shown to the responsibility of being a parent.
I think, up until October of last year, there are significant question marks about the capacity of both Ms Samson and Mr Ackerland to provide for [X]’s needs. I have remarked before that my impression is that [X] is an emotionally traumatised child, a vulnerable child, and I think that must be as a result, to a very large extent, of the deficits in each of the parties’ parenting capacities.
I think, to some extent at this stage, given the departmental involvement and the offers of assistance that have been made to
Mr Ackerland, that it is glib for him to assert at this stage that all is right in his household.
I think the evidence is clear that [X] has been exposed to a significant level of family violence. It, I think, is the subtext of Mr Ackerland’s case that if he has behaved inappropriately, in the past, it is because of the dynamics of his relationship with Ms Samson and others of her children.
Ultimately that may be how the evidence unfolds, I do not know at this stage, but at this point I think there is some unacceptable aspects to
Mr Ackerland’s proposals.
So I have formed the view that I ought, at this stage, to, in brief, accept the submissions of the independent children’s lawyer and put in place arrangements for [X] to see each of his parents during the day for the same rough periods of time.
In reaching this view, I am strongly influenced by what Ms C has said in her report, that in April of this year the Child Protection Service was of the view that both parties needed to demonstrate an ability to make and sustain change with regard to their personal struggles and that the CPS recommended that Families SA continue to monitor both parties, as to how they are engaging with the services offered to them, to assist them with issues to do with relationship conflict, family violence and substance abuse.
I think at this stage [X]’s best interests will be served by him living with Ms W. The main element of the father’s case is that this will be another change for [X], and so it is, but it seems to me that it is the lesser evil in this case and it would be not in [X]’s best interests if I allow Mr Ackerland, through his own unilateral actions, to take advantage of a change which he has created without reference to either the mother or Families SA.
It is, I think, the clear import of Ms D’s evidence that although she and the bureaucracy which she represents do not believe that Mr Ackerland will satisfy any of the statutory criteria for the removal of [X] from his care, they (Families SA) do not believe that what has come about is necessarily likely to be in [X]’s best interests. So for those reasons, I propose making the orders that the independent children’s lawyer proposes.
I certify that the preceding thirty-eight (38 paragraphs) are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 23 July 2009
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