Santanna and Santanna & Anor; (No 2)

[2012] FamCA 715

FAMILY COURT OF AUSTRALIA

SANTANNA  & SANTANNA AND ANOR
(NO. 2) [2012] FamCA 715

FAMILY LAW – CHILDREN –Parental Responsibility – where parties have 13 children – six children under 18 years of age being the subject children of the proceedings – allegations of the father and older siblings engaging in family violence – allegations of the father engaging in abusive and controlling behaviour – intervention by Department of Family and Community Services – where the mother was subjected to long-term family violence from the father – where the father is restrained from contacting the subject children by any means including through the older siblings – where the father had previously attempted to alienate the children from their mother - where the mother was allocated sole parental responsibility and residence for four of the subject children – where the department of family and community services retains parental responsibility for one of the subject children for the period of six months whereby parental responsibility and residence will revert to the mother - where the Department of Family and Community Services retains parental responsibility in relation to any interactions with the father and older siblings - where the paternal uncle was allocated sole parental responsibility and residence for  one of the subject children

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party - where orders were made on an undefended basis due to the father’s non-appearance  –  here application of the father was dismissed in previous proceedings - where orders were made by the consent of all other parties to proceedings in the absence of the father

Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA and 68C
Family Law Rules 2004 r 11.02

Johnson v Johnson (1997) FLC 92-764
Santanna & Santanna and Anor [2012] FamCA 213
Santanna & Santanna [2011] FamCA 1078
Zane & Allan (2008) FLC 93-378

APPLICANT: Ms Santanna

FIRST RESPONDENT: Mr Santanna

SECOND RESPONDENT: Mr B Santanna

INTERVENER: Director-General Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

FILE NUMBER: PAC 3013 of 2008

DATE DELIVERED: 15 June 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 14 and 15 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Flintoff Lawyers

FIRST RESPONDENT FATHER:	No appearance
SECOND RESPONDENT UNCLE:	No appearance required

COUNSEL FOR THE INTERVENER: Mr Allen

SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

Orders

1. All former parenting orders in relation to 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;

   (“the children”) are hereby discharged.

2. That Order 11(f) made on 25 May 2011 requesting the Australian Federal Police to place each of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia is hereby discharged.

3. The Australian Federal Police are requested to remove the names of each of the children S born … February 1997; B born … April 1998; J born … June 2000; O born … October 2003; L born … April 2006; and E born … April 2007 from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

4. That the children S born … February 1997; B born … April 1998; J born … June 2000; O born … October 2003; L born … April 2006; and E born … April 2007 be permitted to travel internationally and for that purpose that an Australian passport be issued for S, J, O, L, and E on the application of the mother.

5. That the child B (born … April 1998) be permitted to travel internationally and for that purpose that an Australian passport be issued for B on the application of the Second Respondent, Mr B Santanna  ("the paternal uncle").

E, L, O and S

1. That the mother Ms Santanna, shall have sole parental responsibility for the children:   

   (a)       S born … February 1997;

   (b)       O born … October 2003;

   (c)       L born … April 2006;         and

   (d)       E born … April 2007.  

   in respect of all aspects, other than the children's time spent and communication with the father and with TS (born … 1989), LS (born … 1991), ZS (born … 1992), JS (born … 1993) and BS (born …. 1995) (collectively "the older siblings").

2. That the New South Wales Minister for Family and Community Services shall have sole parental responsibility in respect of E, L, O and S's time spent and communication with the father and the older siblings.

3. That E, L, O and S shall live with the mother.

J

1. That the New South Wales Minister for Family and Community Services shall have sole parental responsibility in respect of J born … June 2000 in relation to all aspects for a period of six months from the date of this Order.

2. At the expiration of Order 9 the mother, Ms Santanna, shall have sole parental responsibility for J in respect of all aspects other than J's time spent and communication with the father and the older siblings.

3. That the New South Wales Minister for Family and Community Services shall have parental responsibility in respect of J's time spent and communication with the father and the older siblings.

4. From 30 June 2012 J shall live with the mother.

B

1. The paternal uncle, Mr B Santanna, shall have sole parental responsibility in respect of B (born … April 1998) in relation to all aspects other than B's time spent and communication with the father, the mother  and the siblings.

2. The paternal uncle will consult with the mother prior to making any major decisions in relation to B's health, major medical treatment, education, overseas travel, religion and will take the mother's opinion into account before making any such decision.

3. The New South Wales Minister for Family and Community Services shall have parental responsibility in respect of B's time spent and communication with the father, the mother and her siblings.

Informing Community Services of any change of address

1. The mother and paternal uncle are to inform the Director-General of the Department of Community Services (“the Director-General”) of any change of address or change of contact details until each child attains the age of 18 years.

Authorisation to provide expert reports to father 's psychiatrist or mental health professional

1. Pursuant to s 121 of the Act the Director-General is authorised to provide a copy of the report of Dr R dated 23 August 2011, 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, to any psychiatrist or mental health professional who conducts an assessment of the father for the purpose of the Director-General determining what, if any, time with and communication the children shall have with the father .

Injunctions restraining the father

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

   18.1from entering or remaining in any place of education or residence of any of the children;

   18.2from contacting any of the children by any means, including through the older siblings or any other third person, unless such contact has been authorised by the Director-General or her delegate for the purpose of the Father  spending time or communicating with the children;

   19.1from approaching or contacting by any means, including through the older siblings and any other third person, any person with whom the children live or who otherwise have the care of the children, including any authorised carer of the children, unless authorised by the person or persons who hold parental responsibility for that child or children;

   19.2from causing or threatening bodily harm to any of the protected persons or harassing, molesting or stalking any of the protected persons;

   AND for the purpose of this order "protected person" is:

   (i)Ms Santanna, the applicant mother;

   (ii)Mr B Santanna, the paternal uncle and second respondent;

   (iii)JS, born … 1990;

   (iv)SS, born …. 1990;

   (v)S, born, … February 1997;

   (vi)B, born … April 1998;

   (vii)J, born … June 2000;

   (viii)O, born … October 2003;

   (ix)L, born … April 2006;

   (x)E, born … April 2007;

   (xi)any counsellor of the children;

   (xii)any authorised carer of the children.

   These orders for the personal protection of each of the protected persons pursuant to s 68C of 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.

No variation of orders without order of the Court

1. In the exceptional circumstances of this case these parenting orders may only be varied by a subsequent order of the Court exercising jurisdiction under the Family Law Act and may not be varied by a parenting plan.

Undertakings from the paternal uncle

1. The paternal uncle undertakes to do all things necessary to ensure that the mother 's address or contact details are not communicated to the father.

THE COURT NOTES:

(A)That for the purposes of determining what if any time with and communication the children are to have with the father, the Director-General intends to request that the father  submit for a further psychiatric assessment.

(B)That the Director-General intends that the father’s time with and communication with the children shall be conditional upon:

a.the outcome of an updated psychiatric assessment of the father;

b.the recommendations of the children's counsellor/s in relation to the children spending any time with and communicating with the father;

c.the father  not being affected by drugs or alcohol for 12 hours prior to and during any time spent with the children;

d.the father  following all reasonable directions of the Director-General or her delegate at or in relation to any time spent and communication with the children.

(C)That the Director-General intends to arrange for B to spend time with her mother  and other children in the mother 's care at a frequency of no more than once a month and that the initial time to be spent between the mother  and B be held at a neutral venue and structured as considered appropriate by the Director-General.

(D)It is anticipated that flexible arrangements will develop for B to spend time and communicate with the mother and siblings at such times, venues and frequency as agreed between the mother, the paternal uncle and the Director-General.

(E)It is anticipated that flexible arrangements will also develop for E, L, O, J and S to spend time and communicate with the paternal uncle at such times, venues and frequency as agreed between the mother and paternal uncle.

(F)That the Mother will provide the paternal uncle with an email address so that the paternal uncle can communicate with the mother and forward her copies of B's school reports.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Santanna & Santanna (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)PAC 3013 of 2008

Ms Santanna

Applicant

And

Mr Santanna

First Respondent
And

Mr B Santanna

Second Respondent

And

Director-General Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These were proceedings to resolve arrangements for the parenting and care of six children: S, aged 15, B, 14, J, 12, O, 8, L, 6, and E, 5.  They are the youngest of their parents’ 13 children.  All but one of the seven older children are over the age of 18.  That one is BS.  He is now 17 years.  He is not a subject child in these proceedings. 

2. The applicant Ms Santanna aged 46, is the mother of the children.  She comes from the Pacific Islands and has a Pacific Islands background.  The respondent is the father of the children, Mr Santanna, aged 41.  He comes from South America and has a European background.  The parties lived together for about 20 years. 

3. The other parties are the Director General of the Department of Family and Community Services, who was the intervener, Mr B Santanna, the paternal uncle of the children, who became the second respondent, and the Independent Children’s Lawyer. 

History of litigation

1. There is a four year history of litigation, commencing in the Local Court, continuing in the Federal Magistrate’s Court, and finally in this Court, initiated by the mother with an application for residence of the children, filed 3 May 2010. 

2. Early in the proceedings a Children and Parents Issues Assessment was ordered by the Court.  The Family Consultant, Mr C. was unable to speak to all of the children, but identified the key issues at that time, in August 2010, as follows.

   ·The mother’s psychological health and parenting capacity, including any depression she may have experienced and the effect that this may have had on her emotional availability for the children. 

   ·The father’s psychiatric health and parenting capacity, including his ability to separate his own emotional needs from the emotional needs of the children, and his ability and willingness to actively promote the children’s relationship with their mother. 

   ·The mother’s allegations that the father is chronically abusive and controlling, and that the children are fearful of crossing their father.

   ·Rhe father’s chronic continuing marijuana abuse and the effect of this on his parenting capacity, including during periods of withdrawal, and the role model that this is providing for the children.   

   ·The co-parenting relationship and the impact that this has on the parent’s proposals, including consideration of long term decision making responsibility. 

3. After the delivery of that issues assessment report, directions were made for the preparation of a report by a single expert of the whole family. 

4. Ultimately, Dr Y, Psychologist, prepared two reports, both dated in April 2011.  The second report was an addendum to the main report relating to follow up telephone calls made to her by the father.  In her report, Dr Y made the following formulations and recommendations:

   In my opinion, it is quite intolerable for any young child to reside in the father’s household.  Such is his extreme and terrifying behaviour, and his abuse and neglect of the children, even if this behaviour is intermittent.  It is recommended that the Department of Human Services, in the first instance, urgently intervenes to remove the children from this abusive environment.  While it would seem logically to immediately place the children with their more functional mother, the alienation of these children has been so extreme that there may need to be a brief placement in neutral territory (short term foster care) so they can, in a sense, be de-programmed from the delusional beliefs of the father. 

   During this period, once the children have settled, they may be more amenable to be interviewed.  As well, the mother will need to arrange suitable accommodation.  If the children are eventually placed with the mother, in my opinion, it would be wise for her to move from the [Town A] area, as the father’s propensity to sabotage the placement, terrorise the family, or even harm the mother or children is considerable.  She would be wise to relocate near to the protection of her brothers.  The father needs urgent psychiatric and drug and alcohol assessment, but it is doubtful if he will undertake this willingly.

5. Dr Y made a notification to the Department at that time. 

6. Soon after, on the 16 to 20 May inclusive, there was a final hearing in this Court before me.  All parties were present and the father was self-representing. 

7. At the conclusion of that five day hearing, I made orders on an interim basis.  The reason for taking that course is set out in pars 83 to 85 inclusive of the judgment, Santanna & Santanna [2011] FamCA 1078. In summary, the reasons were these:

   1.That there was insufficient evidence before the Court at that time. 

   2.The father had not filed an affidavit or called any witnesses. 

   3.Provision was made for him to give evidence-in-chief in response to a list of issues that seemed to be relevant, nominated by the Court.  The father gave some evidence of events in his household, in particular:

   ·that the family tended all to sleep together on mattresses in the lounge room every night;

   ·that LS had given up her study in midwifery to become E’s fulltime carer, supported through Centrelink;

   ·the father borrowed money from his married daughter TS, in order to buy marijuana from time to time, despite an income stream of approximately $3,000 a fortnight from Centrelink. 

   4.That the father had not complied with the orders made on 22 October 2010, in particular he had not undertaken drug testing.

   5.The children had not been properly assessed. 

   6.Further, of concern was the recommendation from Dr Y that there should be a psychiatric assessment of both parents before the matter could be fully understood. 

8. Subsequent to that hearing in May 2011, orders were made for the removal into care of the six subject children.  Orders were also made for mental health assessments to be undertaken in respect of parents.

9. That removal did take place and it was not without difficulty.  The children were predictably distressed and confused and at one stage the older children organised for the sibling group to run away.  There was retaliatory attack made by some of the older children on the Department of Community Services Office in their local area. 

10. Mental health assessments of both parents were undertaken by Dr R, who provided a report to the Court, which was of considerable assistance.  Dr R’ assessments of the parents were summarised by him on pages 10 and 28 of his report, dated 23 August 2011.  The short summary is as follows.  In respect of the mother, he says this:

    In terms of my assessment of [the mother], I was unable to establish the presence of any psychiatric diagnosis and no evidence of any features in her presentation that would compromise her capacity, on psychiatric grounds, to exercise appropriate care for her children. 

    From the psychiatric viewpoint, the major hurdle as seen by her, and I would agree with [the mother]’s assessments in this regard, is that in order for her to re-establish an appropriate relationship with her children, it would be necessary for the children to overcome the attitude, that is my impression, that appears to have been inculcated in them by their father, of hostility to their mother. 

11. The doctor’s assessment in relation to the father is as follows:

    In regard to [the father] he is, at the very least, suffering from an AXIS II disorder of a cluster B personality disorder type, in which antisocial aspects (material confirms behaviour that is now described as being of an antisocial personality type, namely, a personality in which there is a pattern of disregard for, and violation of the rights of others, which was previously deemed to be evidence of psychopathy) of an AXIS I diagnosis of substance abuse disorder in possible remission, and a further AXIS I potential diagnosis of cognitive disorder not otherwise specified, also known as organic brain syndrome. 

    I have indicated that, at the very least, an MRI of the brain should be undertaken.  Due to the harm done to [the mother] by the behaviour of her former husband, she will on reasonable psychiatric grounds, require considerable support and assistance in managing her children.  I see no psychiatric reason why she should not achieve this goal.

1. The report was released to all parties and the father was given the opportunity to lead his own psychiatric evidence; he disagreeing with the assessment of him by Dr R. 

2. The father did produce an affidavit annexing a report by Dr V, a psychiatrist.  The report constituted a social history provided to the doctor by the father.  Subsequently, Dr V indicated to the Court that in his view, his report and referral had been used out of context, and the doctor would not be participating to any extent in the proceedings. 

3. There was no further expert evidence from the father.

4. The Department made an application for summary dismissal of the father’s application for parenting orders (see Santanna & Santanna & Anor [2012] FamCA 213). That application was successful and on that occasion, namely 23 February 2012:

   i.The application, which was in fact an oral application for residence by the father, was dismissed on the basis that there was no reasonable likelihood of the father succeeding with an application for residence.

   iiA further two days were set down in June 2012 for remaining issues to be determined.

   iiiThe father was directed to file and serve on all parties no later than 4.00 pm on 12 April 2012 a minute of orders for the time and communication he sought with the children, and an affidavit by himself limited to the issue of proposed time and communication between himself and the children.

   ivAt that time, the paternal uncle of the children was joined as a party to the proceedings.

5. On 14 June 2013, the final phase of the hearing commenced for those two days which had been allocated.  The outstanding issues included time to be spent between the children and their father and parental responsibility. 

6. All parties except the father were present.  There was no appearance by or on behalf of him.  The matter was called at 10.00 am and again during the course of the day.  Attempts were made by a court officer to telephone the father on the two telephone numbers previously supplied by him to the Court.  The mobile phone number was disconnected.  The home line was continuously engaged on each occasion attempts were made.

7. The father had been present at Court on 23 February 2012 when the dates were allocated.  A copy of the orders of that date was sent by the Court to the address confirmed by the father on that occasion as his permanent residence.  Further, the father was apparently personally served this week with updating affidavit material by the Director General, together with a letter to the father reminding him of these hearing dates.

8. I am entirely satisfied that the father was aware of the hearing date yesterday and today.  He has failed to appear without explanation.

9. In light of the Father’s direct non-compliance with orders of this Court, I am satisfied that it is appropriate to make undefended orders with the consent of all the other parties pursuant r 11.02(2)(c) of the Family Law Rules 2004 (see Zane & Allan (2008) FLC 93-378 at 82,750).

The law  

1. I must consider some of the relevant factors in s 60CC of the Family Law Act 1975 (“the Act”).

S 60CC(2) – Primary considerations

1. The children no longer have a meaningful relationship with their father.  There is presently no relationship at all.

2. Provision is made in the orders for a resumption of that relationship under certain conditions.  They are noted in notation (b) of the orders made by consent, as follows:

   a)     ……..

   b)The Court Notes that the Director-General intends that the father’s time with and communication with the children shall be conditional upon:

   i.      the outcome of an updated psychiatric assessment of the father;

   ii.the recommendations of the children’s counsellors in relation to the children spending any time with and communicating with the father;

   iii.the father not being affected by drugs or alcohol for 12 hours prior to and during any time spent with the children;

   iv.the father following all reasonable directions of the Director General or her delegate at or in relation to any time spent and communication with the children.

3. The updating psychiatric assessment referred to in that notation is not a mere second opinion.  It is essential, given the assessment of Dr R and his recommendation for at least an MRI scan of the brain in respect of the father.

4. Tremendous consistent effort has been made by officers of the Department of Family and Community Services, especially Mr M the children’s case worker, to arrange both appropriate foster care and ongoing therapeutic interventions for the children. 

5. The father has been destructive in the lives of his children by his deliberate exclusion of their mother from their lives and his abusive, controlling behaviour of her and them during the marriage.  He has also been at times a loving father, interested in their education and protective of their safety.  He has had a heavy dependence on marijuana, and to a lesser extent alcohol, such that he has been unable to provide financially for the family despite significant Commonwealth support.

6. He has encouraged an attitude of “us against the world”, which has led his older children to anti-social conduct, both at this Court and at the office of the Department of Family and Community Services.  Two of the older boys have convictions for that malicious destruction in relation to the office of the Department.  One of the older boys is now an involuntary patient at a mental health unit.

7. There is an allegation of a threat by the father of malicious destruction of that unit by the older boys.  That allegation is reported in the affidavit of Mr M of 12 June 2012.  I am unable to make a positive finding that the threat was made.  However, the conduct allegedly threatened is similar to the conduct which occurred on 27 June 2011 at the Family and Community Services office.  This is a significant matter of the role modelling by the father to the children.

8. The children do now have a meaningful relationship with their mother.  Four, soon to be five, of the children now live with her.  Relationships with their older twin sisters and those girls’ partners and children have been restored.  There is a need to protect the children from physical and psychological harm They have been exposed to family violence.

S60CC(3)– Additional considerations

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

1. The views of the children should be taken into account.  The children had previously expressed a uniform opposition to all contact with their mother.  I am satisfied that these views were influenced by their father, whose open criticism of and contempt for the mother was expressed in this court and to the experts who have been referred to in these reasons (see Johnson v Johnson (1997) FLC 92-764 at p 84,415).

2. Five of the children have now freely moved from foster care placements, where they have been happy, to their mother.  The fifth child moves at the end of this month.  One of the six children will be living with her paternal uncle, and that view is respected by the mother.

3. Mr B Santanna has sworn an affidavit in the proceedings dated 12 June 2012, which sets out the very satisfactory progress that has been made for B who will remain in his care.

4. The subject children are all born in Australia. They have diverse cultural backgrounds, namely: Australian, Pacific Islands, South America and South Western Europe (s 60CC (3)(g) of the Act).

5. In the care of their mother, the children will have access to their Pacific Islander culture, and in the case of B, in the care of her paternal uncle, there will be extensive access to their South American and European background, but all children will have that, as the children in the mother’s care increasingly spend time with the paternal family.

6. These are intelligent children who do well at school, despite changes to their school and disruptions in their education.  They have had an unusual, cloistered upbringing, beyond any description such as protective or strict.  However, they continue to do well.

7. Their mother, for a time, lost her ability to protect her children.  She has now recovered sufficiently to do so.  There is a file note , which forms Annexure A to Mr M’ affidavit which sheds light on the extent of the recovery of the mother.  It refers to the change in the mother that has occurred in the observation of Departmental officers in the last 12 months:

   I have said to [the mother] that when we first met her she came across as dour and solemn, but very truthful.  I said, ‘I guess the best way to say it is that you were the typical domestic violence victim.’  [The mother] laughed, and said that she has made great changes in her life and she no longer wanted to be the victim, but needed to take control. 

   The officers asked her what the greatest change was for her, as he was amazed at the transformation.  [The mother] stated that when she first took the matter to Court, she only wanted to be able to see the children, but knew that they needed to be away from their father. 

   She goes on to say that she had been unsure, initially, about the involvement of the Department.

   The fact that she now had three children living with her and she knew that two more would live with her shortly is ‘beyond my wildest dreams’.

8. The mother has become optimistic in a way that no one might have predicted.  This is an excellent outcome for the children, who are now benefiting from being reunited as a group of siblings, or young siblings, in their mother’s care.

9. The father failed to fulfil his responsibility as a parent to include the mother in decision-making about the children (s 60CC(3)(c) of the Act). Moreover, he did not allow them to see her at all. He did not comply with early orders in that regard, and was unconcerned about non-compliance.

10. For these reasons, I am entirely satisfied that the orders made by consent of all parties, other than the father, presently and for the future will meet the children’s needs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 15 June 2012.

Associate:     

Date:              9 July 2012