Santanna and Santanna

[2011] FamCA 1078

FAMILY COURT OF AUSTRALIA

SANTANNA & SANTANNA [2011] FamCA 1078

FAMILY LAW – CHILDREN – Parental responsibility –parties have twelve children – eight children under 18 years of age with six of these children being the subject children of the proceedings – mother has Pacific Islands heritage and father has mixed European heritage - intervention by department of family and community services –where the mother has had minimal contact with the children since separation –mother alleges a history of serious domestic violence perpetrated on her by the father- father’s criminal history – father’s potentially inappropriate conduct with his daughters – children have a meaningful relationship with father – difficult to discern the mother’s relationship with children as the mother was excluded physically and emotionally from the lives of the children by the father – need to protect children from psychological harm – expert evidence that the children were at risk in the care of the father and needed urgent removal with the mother having inadequate capacity to protect the children from the father if children placed in her care - interim hearing - presumption of equal shared parental responsibility not applied – sole parental responsibility allocated to Intervener

FAMILY LAW – CHILDREN - with whom a child shall live and spend time - where mother suffers from depression – where father may suffer from a mental illness or the adverse effects of a drug addition or a manipulative nature or a combination of all three – father’s illicit drug use - father’s failure to comply with prior court orders requiring the father to consult his medical practitioner to obtain a referral for drug and alcohol counselling – best interests of children considerations – where views of children have not been properly obtained due to father’s failure to comply with assessment of the children – father has not shown a willingness to facilitate and encourage a relationship between the children and mother – father’s financial priorities inappropriate with the needs of the children – where one of the parties’ adult children receives a carer’s benefit for the youngest child of the relationship – orders father to have no contact with children until the completion of a drug and alcohol assessment by the father

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B

APPLICANT: Ms Santanna

RESPONDENT: Mr Santanna

FILE NUMBER: PAC 3013 of 2008

DATE DELIVERED: 25 May 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 16, 17, 18, 19 & 20   May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Flintoff Lawyers

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Hamilton

Orders

1. The Minister for Family & Community Services shall have sole parental responsibility for each of the following children referred to collectively as “the children”:

   (a)       S, born … February 1997;

   (b)       B, born … April 1998;

   (c)       J, born … June 2000;

   (d)       O, born … October 2003;

   (e)       L, born … April 2006;        and

   (f)       E, born … April 2007.

2. For a period of one month the children shall have no contact with either the father or the mother or the adult and older children.

3. After the period of one month, the children or any of them shall have such contact, if any, with the mother, father, adult and older children, whether supervised or not, as determined by the Minister or the Director-General of the Department of Family & Community Services, or her delegate (the Intervener), subject to Order 4.

4. The father shall have no contact with any of the children unless and until he signs all documents and does all things necessary to complete a drug and alcohol assessment, including but not limited to allowing a sample of hair to be taken for forensic hair analysis for the presence of illicit or non-prescription drugs.

5. Noting the father’s consent, the father shall attend upon a general medical practitioner nominated by the Director-General or her delegate, within 48 hours of written notice from the Director-General or her delegate, and shall allow a sample of his hair to be taken by the general medical practitioner for chain of custody forensic hair analysis for the presence of illicit or non-prescription drugs in his body as follows:

(a)for the purpose of this order the father shall not cut or bleach or dye his hair until after the hair sample is taken from him;

(b)the Court takes judicial notice of the father’s hair length and style today and the father shall permit photographs of the front back and sides of his hair to be taken today by the Director-General or her delegate;

(c)the father shall permit and fully cooperate in the taking of a sample of his hair by a general medical practitioner nominated by the Director-General or her delegate, and shall attend for the purpose without any of his children upon the nominated general medical practitioner at the appointed place, date and time;

(d)the father shall be identified by a delegate of the Director-General at the place, date and time of the appointment for obtaining the hair sample;

(e)the father shall not discuss these proceedings, or any issue in the proceedings, with the general medical practitioner;

(f)the test shall be for the presence of opiates, methamphetamines, amphetamines, benzodiazepines, cocaine, heroine, methadone and cannabis;

(g)the costs of the hair analysis shall be borne by the Director-General;

(h)the Director-General or her delegate shall serve a copy of the results of the hair analysis of the father’s hair sample and a report of the forensic toxicologist in relation to that hair analysis on each of the parties upon receipt.

1. The father be and is hereby restrained by injunction as follows:

   (a)from entering or remaining in any place of education or residence of any of the children and contacting by any means, including through any third person, any place of education or residence of any of the children;

   (b)approaching or contacting by any means (including through any third person) any person, including any foster carer in whose care any of the children may be placed by the Minister pursuant to Order 1;

   (c)from approaching or contacting any of the children by any means, including through any third party, except as provided by Order 3;

   (d)from causing or threatening bodily harm to any of the protected persons or harassing, molesting or stalking any of the protected persons;

   (e)For the purpose of this order “protected person” is any person in whose care any of the children are placed in exercise of the Minister’s parental responsibility pursuant to Order 1 (including any foster carer), and any counsellor of the children; &

   (f)These are orders for the personal protection of each of the protected persons pursuant to s 68C of the Family Law Act 1975 (“the Act”) whereupon a police officer believes on reasonable grounds that the person against whom the injunction is directed has breached the injunction by causing or threatening to cause bodily harm to the protected person or harassing, molesting or stalking the protected person, may be arrested by the police officer without warrant.

2. The mother is authorised pursuant to s 121 of the Act to provide to any treating psychologist or mental health professional a copy of the reports of Dr Y dated 7 April 2011 and 12 April 2011 and the report of Family Consultant, Mr C, dated 25 August 2010.

3. Each of the parents shall have a mental health assessment conducted by a qualified person (preferably a psychiatrist) or service nominated by the Director-General or her delegate AND IN THAT REGARD the Intervener is authorised pursuant to s 121 of the Act and the Family Law Rules 2004 to provide a copy of the reports of Dr Y dated 7 April 2011 and 12 April 2011 and the report of Family Consultant, Dr C, dated 25 August 2010 to the person or persons conducting the mental health assessments.

4. There shall be an assessment and report of the bonding and attachment between LS and the two youngest children, L and E.

5. The children shall be delivered at or before 2.00 pm today, 25 May 2011, to the Intervener at Town A Police Station at … Town A and for that purpose the father may remove the children from school at lunch time in order to have sufficient time to deliver the children to the Centre AND IN THE EVENT the children are not delivered by 2.00 pm then the officers may recover the children pursuant to Order 11 herein.

6. A recovery order in the following terms shall issue from 10.00 am on 25 May 2011:

   (a)The Marshall of the Court, all officers of the Australian Federal Police and all State and Territory police officers are requested to find and recover the children and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that any of the children may be found.

   (b)Upon recovery, each of the children are to be delivered to a delegate of the Director-General at Town A Community Services Centre at …, Town A, New South Wales.

   (c)Until the children are returned under these Orders and pending further order:

   (i)The father is prohibited from again removing or taking possession of any of the children;  and

   (ii)The persons to whom this recovery order is address are authorised and directed to arrest the father without a warrant if he again removes or takes possession of any of the children.

   (d)That the Director-General be permitted to publish or broadcast the name, date of birth, description and photograph of each of the children and the father and a description of where the children were last seen.

   (e)The Commonwealth Recovery Order will remain in force for 12 months from the date of this Order.

   (f)That the Australian Federal Police are requested to place the names of each of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain each of the children’s names on the Airport Watch List until the children attain the age of 18 years.

7. This matter is to be listed for mention and further directions as required at 9.30 am on Wednesday, 20 July 2011.

8. This matter is listed for further directions for the hearing of the matter at 9.15 am on Wednesday, 31 August 2011, including but not limited to:

   13.1the preparation of a family report;

   13.2the filing of amended applications and further affidavits;

   13.3the provision to the reporter of:

   13.3.1all assessments, mental health and parenting; &

   13.3.2affidavits of the Case Worker, Mr M as to the welfare and progress of the children in foster care and in the schools in which they are enrolled;  AND FURTHER as to the contact if any between the subject children, each of the parents and the adult and older children.

THE COURT NOTES:

(A)That the Intervener proposes to place the children in a foster care placement together at least initially.

(B)The parties have seven older children known collectively as the adult and older children:

(a)       TS – 22;

(b)       SS - 20;

(c)       JS - 20;

(d)       LS - 19;

(e)       ZS - 18;

(f)       BS - 17;  and

(g)       HS - 16.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)PAC 3013 of 2008

Ms Santanna

Applicant

And

Mr Santanna

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are competing applications for parenting orders, as defined in section 64B(2) of the Family Law Act 1975 (Cth) (“the Act”). There are three applicants for orders.

2. The applicant mother, Ms Santanna (“the mother”), was born in the Pacific Islands in 1966.  She came to Australia in 1988.  She is now 45 years of age.  The respondent, Mr Santanna (“the father”), was born in South America in 1970.  He came to Australia with his family as a young child.  He is now aged 40 years.  The parties have been separated, at least since January 2010, but probably longer than that.  There is no application by either party for divorce.

3. The parties met in 1988, when the mother arrived in Australia, pregnant with a child from a broken relationship in the Pacific Islands.  The mother came with two of her brothers.  The mother’s child TS was born on in 1989, and on 14 October of that year the parties married.  They both refer to the father as having adopted TS, although that adoption may not have been a formal one.  TS was treated by the father as his child.  During his evidence, the father said that a big part of his decision to marry the mother was that he would be able to raise TS.

4. Between 1990 and 2007, the parties had 12 children together.  They are:

   1.      SS and JS (twins) born in 1990; 

   2.      LS born in 1991; 

   3.      ZS born in 1992; 

   4.      HS born in 1993;

   5.      BS born in 1995; 

   6.      S born in February 1997; 

   7.      B born in April 1998;

   8.      J born in June 2000; 

   9.      O born in October 2003; 

   10.    L born in April 2006;  and

   11.    E born in April 2007.

5. Eight of the children are under the age of 18 years.  BS is 16 and HS will be 18 in September of this year.  The six youngest children will be referred to in these reasons as “the subject children.”  The seven older children will be referred to as the “adult and older children”.  All but the three eldest, who have now married or formed relationships, live with the father in the parties’ house in Town A.  The twins apparently have a close relationship with their mother.  One of them has two children of her own.

6. The father has banned his twin daughters from visiting the home in Town A.  The mother has had minimal contact with the other children since final separation in January 2010 and very little contact overall since late 2008. 

7. The parties’ 19 year old daughter LS, receives a carer’s benefit for E.  This fact emerged during questioning of the father and it is the extent of the Court’s knowledge about the arrangement.  The father said this about LS:  “She is probably a fulltime mum now.”  It does seem likely that LS has become a mother figure to E and perhaps also to L. 

The competing applications

1. The competing applications are as follows.  The Director General of the Department of Family and Community Services intervened in these proceedings on 4 May 2011.  The Intervener seeks orders in accordance with exhibit ‘I4’.  The thrust of the application is that the subject children be placed, on an interim basis, into the sole parental responsibility of the Minister.  They would be placed in foster care.

2. There would be no contact with either parent for three months and thereafter any contact would take place at the discretion of the Minister, whether supervised or not.  During that period, the father would have a mental health assessment and a drug and alcohol assessment.  There would be restraining orders in relation to the father making contact with the children and as to his behaviour.  There would be recovery orders.

3. The mother’s application was filed on 3 May 2010 and initiated the proceedings.  That application was for the subject children to live with her and to have defined time with the father, subject to a finding by the Court that they were not at risk in the father’s care.  However after the intervention, the mother moved to a position of supporting the orders proposed by the Intervener. 

4. The application of the father was not reduced to writing.  The father wishes for the children to continue to live with him.  There was no proposal for defined time between the children and their mother.  The father’s position fluctuated between no time at all with their mother because of alleged abuse of them by her, and as much time as the Court saw fit to order. 

5. The position of the Independent Children’s Lawyer was to highlight the strengths and weaknesses of the applicants.  On one hand, the emotional enmeshment of the father with the children, his failure to establish boundaries between himself and themselves, the history of domestic violence, against the good progress of the children at school and the good reports, generally, of their conduct by the principals who gave evidence.

Issues in dispute

1. This is a matter where the mother alleges a history of serious domestic violence.  In her affidavit filed 3 May 2010, there are many allegations of such violence[1].  A history of heavy pushing; of the father having hit her and necessitating removal to a Refuge in 1997; of being squeezed by the father on the back on her neck in a very painful way; of TS having received a backhander from her father when she stepped in, in an attempt to defend her mother.  The mother says she was kicked out of the house in front of the children on more than one occasion throughout 2009. 

   [1]  Affidavit of the mother filed 03/05/2010, pars 9, 10, 17, 21, 24, 25

2. There are allegations of death threats made between the couple and in front of the children, threats by the father to kill the mother using a knife or poison.  There are allegations of painfully hurtful verbal abuse directed by the father at the mother.  There is also the issue of drug abuse.  There is some agreement that the father has always smoked marijuana, but the extent of his smoking and the impact on him is unknown.  There had been an order for drug testing which the father did not comply with.

3. There is an issue of criminal conduct by the father.  The records speak for themselves.  The police records are exhibits in the proceedings and confirm convictions for the father of accessory to armed robberies and other offences, including breaches of an existing Apprehended Violence Order (AVO). 

4. There is the issue of the father’s treatment and care of the children.  Matters have been raised of potentially inappropriate conduct by the father with his daughters.  There is a reference in the Wesley Mission notes to the father bathing his daughters, then aged something like eight, 11, and 12 in the bathroom with an open door.

5. There is a reference in hospital notes to the father having been touching J who was in hospital for examination, putting his hand on her pubic area and under her clothes and sucking her fingers for the 14 minutes of examination.  There is also the issue of the relationship between LS, E and L. I will come to that later in these Reasons. 

6. It may be that the mother suffers from depression, or is traumatised, or both.  The father may suffer from a mental illness, the adverse effects of addiction to marijuana, or a manipulative nature, or a combination of all three.

7. These possibilities were identified by Dr Y, the single expert in the matter.  Ms Y was present in Court when the father was giving evidence.  She was present in Court for a period of a couple of hours.  In her oral evidence Dr Y said that she was drawn more to the final possibility, that is, that the father was being both manipulative and controlling. 

8. There is the issue of the children’s progress at school.  They do well academically, especially B, and also socially.  They have friends.  There have been concerning absences by all children from school, lateness and absence.

9. The two school Principals who gave evidence, from the primary school and the high school, were somewhat critical about the father’s demanding nature at the school, but positive about his interest in the children and about the children themselves. 

10. The father has not complied with orders made by this Court on 22 October 2010.  Order 13 required the father to consult his medical practitioner to obtain a referral for drug and alcohol counselling and education, to understand the impact on him of his own illicit use of the drug and its relationship to his parenting.

1. There was an order that the father be restrained from using illicit drugs in the presence or vicinity of the children.  There was a note that it was recommended that the father seek legal representation.  There was also an order that the father present the children for assessment by the single expert.  In the event that the father complied with any of those orders, that was not supported by evidence in these proceedings.  The consequence is that orders in the hearing could have addressed matters which are now still unknown, especially the extent and impact of the father’s drug use.

2. The children have not seen their mother, other than very briefly, over the last 16 months approximately and not often in the two or three years before.  Their relationships with her, especially the younger children, are no doubt quite damaged. 

3. There is an issue about the care of the children.  The parties lived in Town A between Christmas 2003 until February or March of 2008, perhaps a little earlier.  The parties seemed to agree that an issue arose over the management of their twin daughters then aged about 17.  The parties moved to Suburb I in Sydney in February 2008, although the father wished to move the whole family to Queensland and the mother wished to remain in New South Wales.

4. The parties separated and they agreed that the girls would remain with their mother and the six boys went with their father.  They also agree that the father regularly visited the girls, sometimes bringing two or three of the boys. 

5. The father tendered into evidence the applications of the mother and the affidavits of both the mother and himself, filed in May 2008 in the Local Court at Campbelltown[2].  The mother filed her affidavit on 22 May 2008 and the father’s affidavit was sworn on 30 May 2008.  It was responsive to that of the mother.

   [2]  Exhibit ‘F1’

6. Some issues of agreement and dispute emerged.  The mother asserts that she was at home with the children attending to all of their needs[3].  The mother says that the father took E on 29 April 2008 for a visit and refused to return her, saying on 4 May 2008, “If you want her, you will have to go to court”[4].

   [3]  Affidavit of the mother filed 22/05/2008, pars 5, 6, 18

   [4]  Affidavit of the mother filed 22/05/2008, par 14

7. The father says he was asked by the mother to take E and then the mother continued to refuse to take the child back.  The father asserts that it was only his request to Centrelink for benefits for E that prompted the mother’s application.  I am unable to make a finding about that.  What is clear and important is that both parents were actively engaged in the care of all of the children early in 2008.  The father’s evidence in these current proceedings, that the mother had no interest in engaging with the children and that she was abusive to them, is inconsistent with the affidavits of May 2008 of both parties.

8. There is agreement between the parties, at least to the extent of the period between 1989 to 1996, that the father was working full time and the mother was at home full time caring for what would have then been seven children.  Both parents agree about that. 

The law

1. Turning to the law, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.[5] Section 60CC of the Act sets out those matters which I must take into account in the proceedings.

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

Section 60CC(2)(a) - meaningful relationships between children and their parents

1. These children have a meaningful relationship with their father, some of them have an intact relationship with their mother, although it has been impossible to discern those relationships.  The children are dependent solely on their father, because they do not presently have a relationship with their mother, who has tried throughout 2009, but was excluded physically and emotionally from the lives of the children.

2. Throughout these proceedings, other than for a short period after the court spoke to the father about it, he referred to the children’s mother as “the woman”.  He also referred to himself in the first person plural, “we”.  When asked about that, he said that “we” meant himself and the children.  There is a real possibility that the children, especially the younger children, believe that their mother does not love them and has abandoned them.

Section 60CC(2)(b) – the need to protect children from physical or psychological harm

1. There is a need to protect children for psychological harm arising from abuse.  The father maintains strict control over the children, which is appropriate in some ways but not in others.  Clearly, no one comes to the home without the father’s knowledge and consent.  There is no reference to the children having friends in the home.  The father has delegated parental authority over E to LS.  He is protective of the children, openly contemptuous of their mother.  Dr Y reports that the children, on the first interview, when they were brought against his express direction, sat “perfectly still and mute”, silent as their father shouted and swore at Dr Y.

2. These matters are set out in pages 20 to 21 of Dr Y’s first report.  The father yelled criticisms of the children’s mother.  There was a reference by the children, in the interviews conducted by departmental officers of hard smacking by the father, and past fighting between the parents. 

Section 60CC(3)(a) – any views expressed by the children

1. These have not been properly obtained, because of the father’s failure to comply with assessment of the children.  This obstructive attitude taken by the father means that the two younger children have not been assessed at all.

2. The four older ones were seen by Mr C (Family Consultant) in August 2010, in the Family Court.  None of them were seen by the highly experienced Clinical Psychologist, Dr Y, who could have assessed family dynamics, identified mental health issues and guided the family to a better outcome than has been possible.  The children have been, on the evidence of Mr C, which evidence I accept, thoroughly exposed to all of the information about the litigation by their father.  In the assessments that took place with Mr C, the children apparently spoke with one voice, using the same words and phrases, and were unanimous in their criticism of their mother.

Section 60CC(3)(b) - the nature of the relationship of the children and each of their parents

1. Only the parents have given evidence.  The paternal grandparents are apparently significant in the lives of the children, but were not witnesses in these proceedings.  Two of the older children, TS and LS, were present throughout the proceedings, together with the husband of TS.  Neither of them gave evidence.  On the first occasion, all of the other children were brought to court, although the father had been expressly told that they would not be participating in the proceedings.  I am unable to determine the significance of the presence of the two older girls sitting in court throughout the proceedings.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate a continuing relationship between the children and the other parent

1. The father has not shown any willingness to facilitate and encourage a relationship between the children and their mother.  The parties lived together from 1988 until 2007 it seems likely, with the father dominant and the mother compliant.  Once she moved to separate from the father, the father moved to exclude the mother from the children’s lives.  It is possible that the mother was depressed for many years, in which case she was likely to be less available to the children, as alleged by the father. 

2. The Court cannot assess that matter without evidence.  Accordingly, there would need to be a mental health assessment of the mother.

3. The father says the mother was abusive to the children.  The four children who were interviewed by Mr C did not say so.  There is no evidence of abuse by the mother of the children before me.

Sections 60CC(3)(d) & 60CC(3)(e) – a change of circumstances and the effect on the children including the practical difficulties or expenses

1. The children are likely to be frightened, stressed, and confused by removal from the home.  They will be distressed by removal from contact with their older siblings.  This is a matter where such distress is inevitable, and the only possible basis for it could be long-term gains for the children, in terms of their relationships and emotional health. 

2. Contact, whatever it would be, will be arranged by the Department and financed by them, in the event that the children are removed into care.

Section 60CC(3)(f) - the capacity of the children’s parents to provide for the needs of the children, including emotional and intellectual needs

1. The father loves the children and is emotionally available to them, at least to some extent.  However, to use his own words, “he is married to his kids”.  He provides a closed world where they believe they have just one parent, and each other.  The sleeping arrangements, which I’ll refer to further in these Reasons, are emotionally and physically inappropriate.  The father is proud of the children’s academic achievements, and promotes learning in the home.  He relies on his older children, especially LS in this regard. 

2. However, the father often does not get the children to school on time, or at all.  An exhibit in the proceedings was the records of the children’s school attendance.  S, from 1 August 2010 to 9 May 2011, missed 58 days.  B, for the same period, missed 49.  O, for the period from 1 January 2010 to 10 May 2011, missed 110 days.  J, from 1 January 2010 to 10 May 2011 missed 99. 

3. The father has cut the children off from their adult twin sisters and has done so because of his disapproval of the way they live their lives.  The father has approximately $3000 a fortnight coming into the household.  This is a combination of a Centrelink, supporting parents benefit, with additional payments for telephone, internet and other expenses of the family, plus payments made to the older children in the order of $200 per fortnight, and $600 per fortnight paid to LS as a carer for E.

4. The father has borrowed money from TS and called on public assistance.  He spends money on marijuana at the rate of $20 per gram.  His evidence was that in the last few days, he had smoked three to four grams of marijuana.  It is clear that the father’s priorities financially are not what they should be. 

Section 60CC(3)(g) – maturity, sex, lifestyle and background of the children & parents

1. The children are four girls aged 14, 13, 10 and four and two boys, aged seven and five.  Their maturity and psychological health has not been fully assessed.  There are no particular health problems. 

2. The mother was born in the Pacific Islands.  The father was born in South America, of European background and culture.  English, a language of the Pacific Island and a number of European languages are available languages.  The children do not participate in sports or extra-curricular activities. 

Section 60CC(3)(k) - any family violence order that applies to the children or a member of the children’s family

1. There is a current AVO for the protection of the mother and there have been breaches of that order, which the mother has found frightening and confronting. 

2. The father has a somewhat child-like relationship with his children, which could point to immaturity, or unhealthy control. 

3. During the course of the proceedings, he kissed his daughters regularly in Court, nuzzled his head into the neck and shoulder of his older daughter, TS.  He is reported to have, in open Court, wrapped his legs around one of his daughter’s thighs. 

4. There is a reference from the Town A Public School, to the father’s relationship with the older girls as being described within the school as “icky”.   The father said he could understand that outsiders might see it that way.

5. It may be that the father has shown defiance, simply thumbing his nose at what he describes as the “wowsers”, or there could be a mental illness or personality disorder. 

6. Given the evidence of the Family Consultant, Mr C, of what happened during this assessment with the children in August 2010, it could be a matter of dominance and control.  Mr C says that the father, during the interview, quite inappropriately gently placed his hand on Mr C’s, hand, leg and shoulder, and at times blocked his exit from the room, when it did not suit the father for Mr C to leave.

7. Reverting for a moment, to sub-paragraphs (j) and (k) of section 60CC of the Act in relation to family violence, there is no evidence of a child being hurt by the father, other than the reference to TS having been back handed in her early teens and the children being disciplined by smacking. However, they have been dominated by their father’s views. There is evidence that the mother has been hit more than once by the father and humiliated and ridiculed in the presence of the children over recent years.

8. After five full days of hearing the normal expectation would be for final orders.  This is not appropriate in this case.  The mental health and physical state of each party and each of the relevant children is unknown.  The capacity of each parent and their observed relationship with the children is not fully known. 

9. There is a great deal at stake for these children.  The relationships with each other, and their parents.  Their emotional development as individuals, their academic progress, and their happiness.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

1. The father has defied orders and been quite proud of it.  He has failed to comply with orders and threw correspondence away, in particular the letters which came into evidence sent by the Independent Children’s Lawyer. 

2. During the course of the proceedings, the father alternately begged for help and attacked various authorities.  The father conceded at one point that he, himself, was to blame for the failures.  Unfortunately, he attributed his decision not to engage with the proceedings and to throw mail unopened into the bin for a period of several months, to the children themselves.  He asserted that the children had begged him to stop participating and he had acceded in some way to this request.  It does not speak well of the father that he attributed his decision to his children in this way. 

Section 60CC(4a)

1. Section 60CC(4) has particular relevance in this matter. Since January 2010 the father has moved to cut off the children from their mother. He has assumed sole responsibility at home and at school. I quote his words, “I am their mother and their father”, something that he said both to Dr Y in interview and during these proceedings.

2. Until 2008 all children were clearly in daily contact with both parents.  In the records of the Wesley Mission, in November 2008, there is reference to the mother tearfully acceding to the father’s suggestion that he would now take control of the family.  Certainly, the mother signed over the right to obtain financial support to the father, either at the end of 2008 or 2009, on the basis that he would be at home and she would go out to work.  Shortly thereafter, the mother was excluded from the home and was so repeatedly until she ceased to come. 

3. Other than briefly, after orders were made in October 2010, the children have not seen their mother, other than accidentally for about 16 months.  There has been no discussion of long-term issues, time or communication between the parents and the children.  This has particular significance for E and L, aged four and five, whose attachment to their mother may have been disrupted.  It is for that reason that the significance of their relationship with their sister LS requires both assessment and careful protection.

4. This conduct by the father, in combination with a defiant refusal to participate in this litigation, is at the heart of the decision to remove the children into temporary care. 

Parental responsibility

1. I must apply the presumption that it is in the best interest of children for parents to have equal shared parental responsibility.[6]  However, when making an interim order, if the Court does not consider the application of the presumption appropriate, it need not be applied.[7]  I consider that the presumption should not apply on an interim basis in these proceedings. 

   [6]  Family Law Act 1975 (Cth) s 61DA(1)

   [7]  Family Law Act 1975 (Cth) s 61DA(3)

2. Even if equal shared parental responsibility is not applied and neither party seeks an order for equal time, the Court is nonetheless required to consider the arrangements that will best promote the children’s interests. 

3. In this particular situation, what will best promote the children’s interests is that they have some respite from their father’s conduct, generally and in relation to their mother, and that they have an opportunity to settle in neutral circumstances. 

4. During the course of these proceedings, the father conducted himself in a particular way.  At times he became tearful, at times his voice rose, the volume of his speech increased.  At times he interjected and in particular, he broke in with an interjection during the time when the mother was being sworn in. 

5. The father was removed from the Court whilst the mother was re-sworn.  Counsel for the Independent Children’s Lawyer asked Dr Y about the significance of that interruption.  Dr Y said that such disruptive conduct by the father had the effect of sidetracking people from their line of thought, that he was able to distract people, control and finally exhaust them.  I accept that evidence by Dr Y unreservedly and considered the disruption of the oath was a deliberate tactic by the father to overbear the mother, and to threaten her, especially as the mother is a religious person, committed to the principles of her faith.

6. There were also several occasions during the evidence, that the father, as I have previously described, kissed his daughter and nuzzled against her.  The father would have been aware of how hurtful it was for the mother to see TS in Court supporting her father and being treated in this way. 

7. When this conduct was raised by counsel for the Department with Dr Y, the father leant over and kissed his daughter TS again.  On this occasion it appeared to me that the father’s conduct was an act of defiance.  There were times when the father’s tone became pleading and occasionally high pitched and whining.  At other times his voice became loud, aggressive and threatening.  On two occasions he foamed at the mouth.  On one occasion he turned his back on the Court and said that he was turning his back on the justice system.

8. I considered that the father did understand the effect of what he was doing and that at least part of his conduct, related as a reminder to the mother of his authority in her life and that of the children, and a demonstration for the Court of his power. 

9. Throughout the time that the father was giving evidence and being cross-examined, his daughter TS stared at her father, kept perfectly still, her face tight with concern, and she sometimes cried herself. 

10. Dr Y makes the point that the father’s conduct in public is a very worrying indication of what his conduct in private must be.  In the report Dr Y made to the Department on 17 March 2010, a notification which Dr Y agreed to be made public, she noted the following concerns:

    I had major concerns about [the father]’s mental state.  He seems quite delusional and paranoid.  His thinking at times is quite disordered.  His level of angry agitation was extreme.  He was quite dishevelled in appearance.  He was bare footed with filthy feet, although his clothes were clean.  His eyes were extremely blood shot.  I wondered about drug use, given his history.  His appreciation of social rules, respect and boundaries were quite deviant.  Although extremely disjointed, his narrative was …..  It was difficult to interrupt the flow of his angry conversation, which was delivered like a shouted monologue without any apparent structure. He did not modify this presentation in front of the children. 

    And further in that notification, par 6:

    The father’s current deteriorated mental state, his agitation, anger and paranoia, when seen in conjunction with his history of violence.  The father has no respect for authority, rather he views society as being against him and his children, because he is male and the mother has hoodwinked authorities.

1. I accept the content of that notification as being consistent with my observation of the father’s conduct in Court.  The implications of such conduct for the children are obvious. 

The conduct of the proceedings

1. Despite being conducted as a final hearing, I will make orders on an interim basis. 

2. There was insufficient evidence before the Court.  The father did not file an affidavit or call any witnesses.  Provision was made for him to give evidence in chief, in response to a list of issues nominated by the Court.  The father was antagonistic, loud, erratic, offensive in his language and histrionic in presentation. 

3. Significant facts emerged by chance.  Prime examples being:

   ·the father slept with eight of the children in the lounge room on the floor, on layers of blankets, whilst the two older boys slept in a bedroom;

   ·LS had given up her choice of graduate study in midwifery to become E’s carer;

   ·the combined Centrelink income of all members of the household was inadequate to meet the family’s basic needs;

   ·the father borrowed from his daughter TS to buy marijuana from time to time, and on one occasion a bottle of whisky;

   ·the father had not complied with the orders of 22 October 2010;

   ·the father has not undertaken any drug testing as ordered; and

   ·the children had not been assessed. 

4. The Department had been invited by the Court to intervene on 22 October 2010.  This invitation was declined on 7 February 2011.  On 17 March 2011, the single expert made the reports to the Department of Family Services Helpline[8], to which I have referred.  On that day Dr Y had interviewed both parties and the father brought the children against instruction. 

   [8]  Exhibit ‘13’

5. In April 2011, the report and an addendum to the report of Dr Y  were served on the Director General.  Contained in the report was a request by Dr Y for the Department to intervene[9]. 

   [9]  Report of Dr Y filed 7/4/2011, p 50

6. On 4 May 2011 the Department intervened and filed a notice of address for service. 

7. The affidavit of the case worker, Mr M, was sworn on 10 May 2011.  This affidavit was filed in Court on 16 May 2011, the first day of hearing.  An unsworn copy had been left for the father at his home.

8. The intervention of the Department in this matter has been crucial, in a situation where the single expert reported that the children were at risk in the care of their father and needed urgent removal.  The urgency aggravated by the assessment of the mother, as having inadequate capacity to protect the children and withstand the father, in the event the children were placed in her care. 

9. The intervention, 12 days before the commencement of the hearing, with an application and supporting affidavit served on the first day of hearing, changed the course of the litigation.

10. The mother supported the new application, but had not had sufficient time to reconsider the extent of the evidence she might give. 

11. The father was unrepresented and had to contend with an affidavit, including 158 pages of annexures. 

12. It is commendable that the Department interviewed the children at school and the mother. The Department assembled the evidence with speed, comprehensively.

13. However, it is possible that had the father had more notice of the serious case he had to meet, he may have taken up the recommendation from October 2010, to obtain legal representation, or at least read and consider the evidence.  He may or may not have behaved in a more considered way. 

14. On the fourth day of hearing the father sought an adjournment.  That application was declined.  It is a matter of great concern for the welfare of these children that when the hearing resumes, all relevant evidence will be before the Court in sufficient time for each party to be as prepared as possible. 

15. For those reasons the matter will be run cooperatively between the Department of Family & Community Services and the Court, with two further mentions as described.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 25 May 2011.

Associate: 

Date:  3 April 2012