Sandis and Feltham

[2020] FCCA 662

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDIS & FELTHAM [2020] FCCA 662

Catchwords:
FAMILY LAW – Parenting – best interests of child – where mother and independent children’s lawyer seek agreed orders – where father is absent from proceedings – where mother’s background of criminal offences and drug use raises concern about parenting capacity – where supervision and therapeutic interventions are in place for the mother and the children – where the children are a relatively mature age – orders made as agreed between mother and independent children’s lawyer – children to live with mother.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR SANDIS

Respondent: MS FELTHAM

File Number: ADC 2526 of 2015

Judgment of: Judge Young

Hearing date: 4 March 2020

Date of Last Submission: 4 March 2020

Delivered at: Adelaide

Delivered on: 4 March 2020

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: No appearance

Counsel for the Respondent: Mr Oliveri

Solicitors for the Respondent: ORB Lawyers

Counsel for the ICL: Ms Nelson

Solicitors for the ICL: CN Family Law

ORDERS

UPON NOTING THAT

A.The children X born in 2004 and Y born in 2008 (“the children”) have indicated to the Independent Children’s Lawyer in this matter that they do not wish or are reluctant to spend time or communicate with the father, the mother remains open to the children spending time with the father in the future if the children change their current views

IT IS ORDERED:

1. That all previous parenting orders made in these proceedings be discharged.

2. That the children live with the Mother.

3. That the Mother do have sole parental responsibility for the child, X.

4. That the parties have equal shared parental responsibility for the child, Y.

5. That the children spend time with the father at times as may be agreed between the parties from time to time in writing.

6. That the appointment of the Independent Children’s Lawyer be discharged.

7. That all extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2526 of 2015

MR SANDIS

Applicant

And

MR FELTHAM

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning two children, X, who is 15, and Y, who is 12. The matter came on before me last week with proposed orders by consent between the mother and the independent children’s lawyer. The father was absent and has been absent from the proceedings, not having played a part in the proceeding since, as far as I can see, about mid-2018. I refused to make the orders proposed by the independent children’s lawyer and the mother last week because I was not satisfied that the Court had been provided with what I consider to be essential information about this matter.

3. As I explained to Mr Oliveri and Ms Nelson, this Court is not a rubber stamp. When parties come in with agreement about orders the Court has to be satisfied that the orders are appropriate. My concern arose out of the background to the matter. In 2017, the mother was charged with various criminal offences, including one count of false imprisonment and four counts of aggravated causing harm with intent to cause harm. As far as I can glean from the materials the circumstances behind that were that at the time the mother was charged, in about September 2017, the victim of those offences was living in the mother’s home, possibly with other adults as well as the two children.

4. The mother suspected that the victim had a sexual interest in one or both of the children and she decided, along with others, to assault, harm and imprison the victim. Although it is not entirely clear, the background is that the mother at that time was using methamphetamine. The family report notes that the mother had provided a positive test for methamphetamine, whether it was exactly at that time, I am not sure. The background being the commissioning of a number of very serious criminal offences and the use of methamphetamine raises very serious concerns about the mother’s parenting capacity. It also raises concerns about whether it is appropriate to make an order, as is sought today, that the mother have sole parental responsibility for the children and that they live with her.

5. None of the material I considered necessary for addressing those concerns was given to me last week, but some further material has been filed in Court over the past day or so. That material, being an affidavit from the mother and an affidavit from Ms Nelson who is the independent children’s lawyer, goes some way towards addressing the concerns that arise from those background facts. The mother’s affidavit says that in October 2017 she was arrested for the criminal offences that I have mentioned. She was remanded in custody for a period. She was then released on home detention in October 2019 and then remained under various supervisory orders until she was sentenced in December 2019.

6. She was given a head sentence of three years and three months imprisonment and, after allowance was made for time served, she was sentenced to an actual period of imprisonment of two years and six months; in other words, 30 months. The first 15 months of that sentence were to be served on home detention and she would be about three months into that sentence, so she presumably has another 12 months to serve in-home detention. After that period is finished, in about a year, she is to remain on parole for a further 15 months, and the parole, I imagine, as with all parole orders that I am familiar with in Australia, would involve some degree of supervision by the correctional authorities.

7. In addition, the mother says that she is required to, as she describes it, “sign in” with a corrections officer. She is to attend a psychiatrist on a monthly basis. She attends therapy with the children to deal with issues of “trauma, stability and routine” and she also works with a trauma counsellor. She says she attends a support group at a church in Suburb A on a weekly basis. She says that she has been taking the children to appointments at Headspace, apparently as part of a mental health care plan, I think reading between the lines, for the children. It is not clear to me precisely what therapy the children are receiving, but they are receiving some therapeutic intervention.

8. The mother says that the children are no longer at risk of emotional harm or exposure to domestic violence or criminal activity.  I note that, as part of a safety plan entered into between the mother and the Department of Child Protection on 21 February 2020, only a couple of weeks ago, a safety risk was identified from a person called Mr B, who I take to have been the mother’s former partner.  I am not given any information about that relationship with Mr B beyond being told that the relationship is over. 

9. The affidavit from Ms Nelson, the independent children’s lawyer, deposes to her inquiries of the Department of Child Protection about this family and annexes an email chain between Ms Nelson and the Department of Child Protection. In an email dated 26 February 2020, a child protection worker informs Ms Nelson about Mr B and said that the children had resided with the mother and Mr B in 2019. Indeed, following the mother’s incarceration, which I have mentioned, the children apparently remained living with Mr B, however, they ultimately self-placed with the maternal grandfather, Mr C.

10. I might say that I was never aware that the children had lived with Mr B. In any event, it appears with the benefit of hindsight that Mr B was a completely inappropriate person for the children to have been living with last year. Presumably that is one of the reasons why the current safety plan between the mother and the Department of Child Protection provides that the children are to have no contact with Mr B. The material also says that, on the mother’s release from prison, the mother entered into the safety plan that I have mentioned with the Department. This provided for the children to remain living with the maternal grandfather, which I was aware of.

11. The email from Department of Child Protection goes on to say that mother has engaged with that service and appears to be supported by family and social networks, mental health, parenting and health supports. The family report is said to be dated August 2017 but the date of the order for the report was made 2018. I think that the correct date is August 2018. The family report goes into the background of the matter in some detail and I do not need to traverse that. In addition though, in the background there was an allegation made by the mother that after the father and mother had separated, the father had raped the mother on an occasion.

12. The recitation of the facts raises obvious concerns about the welfare of the children generally, and the capacity of the mother to care for them adequately. The position today however is the independent children’s lawyer supports the orders proposed. These are that the mother have sole parental responsibility for the children and that they live with her and that the children spend time with their father, as may be agreed in writing from time to time. I should add the independent children’s lawyer has told me the children have told her that they do not want to see their father or spend time with him, which is largely consistent with the observations of the family consultant.

13. The children are 15 and 12, so they are at an age when they are, to some degree one would hope, self-protective. The fact that the children are growing older gives me some confidence that they are safe in their mother’s care. If I was not confident of that I could not make the orders that are proposed. Nevertheless, the background to the matter is of deep concern to any Court that exercises a jurisdiction involving the welfare of children. I am reassured by the fact that for the next 27 or thereabouts months the mother will remain under the supervision of the correctional authorities. Further, that there are agreements in place for her to have therapeutic interventions and that the children are also involved in therapeutic interventions.

14. Those protections, I think given the background of this case, are minimum requirements. Ultimately, I am satisfied that the orders proposed are in the best interests of the children, essentially for the reasons that I have just mentioned, so I propose to make those orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  24 March 2020