Sawers and Belbin and Ors

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAWERS & BELBIN & ORS

[2014] FCCA 2343

Catchwords:
FAMILY LAW – Parenting – consideration of whether a parental responsibility order in favour of the Department of Family and Community Services is necessary to protect children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 69ZW, 91B

Applicant:

MR SAWERS

First Respondent:

MS BELBIN

Fifth Respondent:

MS WHITTON

Sixth Respondents:

MR GREY & MS DENHAM

Intervener:

DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

File Number:

PAC 994 of 2011

Judgment of:

Judge Dunkley

Hearing dates:

11, 12, 13, and 14 August 2014

Date of Last Submission:

14 August 2014

Delivered at:

Parramatta

Delivered on:

17 October 2014

REPRESENTATION

For the Applicant:

Self-represented

For the First Respondent:

Self-represented

For the Fifth Respondent:

Self-represented

For the Sixth Respondents:

Self-represented

Counsel for the Intervener:

Mr Moore

Solicitors for the Intervener:

Crown Solicitors Office

Counsel for the Independent Children’s Lawyer:

Mr Guterres

Solicitors for the Independent Children’s Lawyer:

Kathryn Renshall Solicitor

ORDERS

All prior parenting orders in relation to the children [X] born [omitted] 2000 and [Y] born [omitted] 2007 (“the children”) are discharged.
The Department of Family and Community Services (the ‘Minister’) shall have sole parental responsibility for the children [X] and [Y] until each child attains the age of 18 years.
The children shall live as directed by the Minister or her delegate.

Spend time with

[Y] shall spend time with the mother as follows:-
(a)On a minimum of 12 occasions per year, for a minimum of two hours on each occasion, as arranged by the Minister or her delegate, [Y]’s carer, and the mother;
(b)Supervised by the Minister or her delegate, or unsupervised with the prior written approval of the Minister or her delegate.
The mother’s time with the children shall be subject to the mother following all reasonable directions and instructions from the supervisor or an approved nominee, including directions as to the venue where the mother’s time is to take place.
[Y] shall spend overnight time with the paternal grandmother for a minimum period of one week, to take place a minimum of once per year during school holidays, as arranged by the Minister or her delegate, [Y]’s carer and the paternal grandmother.
The time in relation to Order 6 is subject to the paternal grandmother following all reasonable directions and instructions from the Minister or her delegate, including that the father is not to spend any time with [Y] during the period [Y] spends with the paternal grandmother, unless approved by the Minister or her delegate.
[Y] shall have telephone communication with the paternal grandmother a minimum of 12 times per year, for no longer than half an hour, at times as arranged by the Minister or her delegate, [Y]’s carer, and the paternal grandmother.
[X] shall spend time with the paternal grandmother, having regard to [X]’s wishes.
[X] shall spend time with the mother, having regard to [X]’s wishes, such time to be supervised by a person delegated by the Minister or unsupervised with the prior written approval of the Minister or her delegate.
That the children not spend any time with the father for a period of nine (9) months following his release from prison and thereafter, at such times and subject to such conditions as determined by the Minister, and further in making any determination, the Minister shall consult with, and consider the wishes of [X] and, once she attains the age of 14 years, the wishes of [Y].
Any time that the children spend with the father shall be supervised for as long as the Minister decides by supervisors nominated by the Minister or her delegate and conditional upon any requirements of the Minister or her delegate.
That the Minister shall, as part of any review of the children’s time with the mother, father, and paternal grandmother referred to in the Orders also consider and, if considered appropriate, arrange time between the children and their half siblings, [A], [B] and [C], as well as with their previous carers Ms R and Ms M.

Restraints

The maternal grandmother and Mr Grey shall follow all reasonable directions of the Minister or her delegate, including:
(a)To accept any referrals made with a view to assisting the maternal grandmother and Mr Grey to care for the children, and implement any referrals made for the children, including for counselling;
(b)To comply with any reasonable directions of any services or professionals who are engaged as a result of referrals made in accordance with these Orders;
(c)Allowing the Minister or her delegate to communicate with any services or professionals engaged as a result of referrals made in accordance with the Orders above;
(d)Allowing the Minister or her delegate to conduct home visits;
(e)Allowing the Minister or her delegate to speak with and interview the children.
The mother and father are restrained from consuming drugs, including illicit, synthetic, prescription pharmaceutical medicines (other than as prescribed to them by a registered health practitioner) at least 24 hours prior to spending time with the children, and during any time they spend with the children.
(i) The mother and maternal grandmother and Mr Grey are restrained from making critical or derogatory remarks about the father or paternal grandmother, or members of their households, in the presence or within hearing of the children and shall ensure that no other person makes such remarks about the father or paternal grandmother in the presence or within hearing of the children.
(ii)The father and paternal grandmother are restrained from making critical or derogatory remarks about the mother or maternal grandmother or Mr Grey, or members of their households, in the presence or within hearing of the children and shall ensure that no other person makes such remarks about the mother or maternal grandmother or Mr Grey in the presence or within hearing of the children.
(i) The father, the mother, and the paternal grandmother are restrained from initiating any contact with the children via social media, email or internet site, and shall ensure that no other person attempts to contact the children on their behalf via social media, email or internet site.
(ii)The father, the mother and the paternal grandmother are restrained from telephoning or sending a short message service (“SMS”) to the children.
Orders 17 (i) and (ii) do not apply in circumstances where one or both of the children initiate the communication, and the father, mother or paternal grandmother are responding to that communication.
The mother, the father, and the paternal grandmother are restrained from bringing any third parties (except the paternal grandmother can be accompanied by Mr W) to time provided for in the Orders above, unless prior written approval has been obtained from the Minister or her delegate.
No period of time the children spend with the father or the mother shall take place in the home of the maternal grandmother and Mr Grey and neither the maternal grandmother nor Mr Grey are permitted to be present during any period of time the children or either of them spend time with the father or the mother, except for delivering or collecting the children.

Release of Expert Report

Leave is granted to the Minister or her delegate to provide a copy of the expert report prepared by Dr O to any psychologists, psychiatrists or professionals involved with the children and maternal grandparents.

NOTATION

A.The Court notes that the intention of the Minister or her delegate is that the children will be placed in the care of Ms Denham and Mr Grey.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 994 of 2011

MR SAWERS

Applicant

And

MS BELBIN

First Respondent

MS WHITTON

Fifth Respondent

MS DENHAM & MR GREY

Sixth Respondents

And

DIRECTOR GENERAL

DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Intervener

REASONS FOR JUDGMENT

Introduction

These are final parenting proceedings between the following parties:-
a)Mr Sawers (hereinafter ‘the father’);
b)Ms Belbin (hereinafter ‘the mother’);
c)Ms Whitton (hereinafter ‘the paternal grandmother’);
d)Ms Denham (hereinafter ‘the maternal grandmother’) and her husband, Mr Grey (hereinafter ‘Mr Grey’) (together referred to hereinafter as ‘the maternal grandparents’); and
e)Director-General, Department of Family & Community Services (hereinafter ‘the Department’)
relating to the children [X], born [omitted] 2000 (hereinafter ‘[X]’) and [Y], born [omitted] 2007 (hereinafter ‘[Y]’) (together referred to hereinafter as ‘the children’).
The mother did not file any recent documents for final hearing nor did she actively participate at final hearing. She did not cross-examine any witnesses nor make any submissions. She was however, present in Court for the entirety of the hearing and advised the Court on commencement of the hearing that she sought the same orders as those sought by the Department. The material that she had filed was so old it was irrelevant, having regard to the many changes that had since occurred.
The mother and father separated in 2010.
The mother and the father each have a history of drug use and were each separately convicted and sentenced with serious drug-related offences.
The mother is serving a suspended sentence and is subject to a good behaviour bond.
The father is in custody at present, having been arrested in 2012. His earliest parole date is November 2014, and if not granted parole, his head sentence is due to expire in November 2016.
The children [X] and [Y] have for many years experienced chaotic parenting and frequent changes to their living arrangements.
At the date of the parents’ separation, they and the children lived in Western Sydney.
Since separation, the children have moved between their parents’ care, and the care of others including family members and family friends living in New South Wales, and Victoria.
[X] has in that time attended four schools, some in New South Wales, and others in Victoria.
Prior to the father’s arrest, the children were living with him and his then partner, Ms M in Victoria. The father and Ms M [omitted] were never married.
For at least twelve (12) months or likely longer before his arrest, the father was using and distributing drugs.
Since the father’s arrest, the children have lived in both Victoria and New South Wales variously with each of the father’s brother, Ms M, Ms R, and then in foster care.
[Y] has spent some time living with Ms M, and has lived with the mother, from whose care she was removed by the Department, resulting in a foster care placement.
The children are currently living separately. [Y] is in foster care, and [X] is living with Ms M’s mother, Ms R, with the approval of the Department.
Ms R is unable or unwilling to have [X] live with her on a long term basis, despite that being his wish as he is settled there, enjoys his current school, and gets along with his peers.
Notwithstanding the mother was not involved at the final hearing, [X] and [Y] have continued to spend time with her for one hour each week, under the supervision of the maternal grandmother.
The children have three half-siblings, as follows:-
a)Maternal half-brother: [B], born [omitted] 1997;
b)Paternal half-sister: [A], born [omitted] 1996; and
c)Paternal half-sister: [C], born [omitted] 2013.

Orders sought by the parties

Neither the mother nor the father sought at final hearing for the children to live with them.
The father sought, on a final basis, the following orders:-
a)The children to live with the paternal grandmother;
b)The children to spend supervised time with the maternal grandparents;
c)The children to spend supervised time with the mother; and
d)The children to spend supervised time with the father.
The paternal grandmother sought, on a final basis, the following orders:-
a)The children to live with the paternal grandmother and her husband;
b)The paternal grandmother to have sole parental responsibility for the children;
c)The children to communicate with and spend time with the maternal grandparents during the school holidays provided that Ms Denham to be a supervisor if Mr Grey is present;
d)The children to communicate with the mother under the supervision of Ms Denham;
e)The children to spend time with the mother during the school holidays under the supervision of Ms Denham; and
f)The children to communicate with their half-siblings.
By the time of the conclusion of the final hearing, the Department by way of final submissions sought the following orders:-
a)All previous orders in relation to the children are discharged.
Parental Responsibility
b)The Department of Family and Community Services (the ‘Minister’) shall have sole parental responsibility for the children until each child attains the age of 18 years.
Live with
c)The children shall live as directed by the Minister or her delegate.
Spend time with
d)That [Y] spend face to face time with the mother as follows:-
i)On a minimum of 12 occasions per year, for a minimum of two hours on each occasion, as arranged by the Minister or her delegate, [Y]’s carer, and the mother;
ii)For a minimum of two hours as arranged by the Minister or her delegate, the children’s carer, and the mother within a week of:-
a.Mother’s Day;
b.The mother’s birthday;
c.[Y]’s birthday; and
d.Christmas.
iii)Supervised by the Minister or her delegate, or unsupervised with the prior written approval of the Minister or her delegate.
e)The mother’s time with the children shall be subject to the mother following all reasonable directions and instructions from the supervisor or an approved nominee, including directions as to the venue where the mother’s time is to take place.
f)That [Y] spend overnight time with the paternal grandmother for a minimum period of one week, to take place a minimum of once per year during school holidays, as arranged by the Minister or her delegate, [Y]’s carer and the paternal grandmother.
g)The time in relation to the above Order is subject to the paternal grandmother following all reasonable directions and instructions from the Minister or her delegate, including that the father is not to spend any time with [Y], unless approved by the Minister or her delegate in accordance with Order k below.
h)That [Y] have telephone contact with the paternal grandmother a minimum of 12 times per year, for no longer than half an hour, as arranged by the Minister or her delegate, [Y]’s carer, and the paternal grandmother.
i)That [Y]’s time as set out in the Orders be subject to annual review and amendment as necessary by the Minister or her delegate, and further in making any determination, the Minister shall consult with, and have regard to, the wishes of [Y] once she attains the age of 12 years, and the mother and/or the paternal grandmother.
j)That [X] spend time with the paternal grandmother and mother as approved by the Minister or her delegate, and further that such time be subject to annual review and amendment as necessary by the Minister or her delegate, and further in making any determination, the Minister shall consult with, and have regard to, the wishes of [X], and the mother and/or the paternal grandmother.
k)That the children not spend any face to face time with the father for a period of 9 months following his release from prison and thereafter, at such times and subject to such conditions as determined by the Minister, and further in making any determination, the Minister shall consult with, and have regard to, the wishes of [X] and, once she attains the age of 12 years, [Y], the children’s carer, and the paternal grandmother.
l)That the paternal grandmother shall notify the Minister or her delegate if the father is using drugs or if, during supervised time, he is breaching any directions given by her, if she is approved as the delegate’s nominee and further, the paternal grandmother shall notify the Minister or her delegate if the father breaches any conditions of his parole.
m)That the maternal grandmother shall notify the Minister or her delegate if the Mother is suing drugs or if, during supervised time, she is breaching any directions given by her, if she is approved as the delegate’s nominee.
n)That the Minister shall, as part of the annual review of the children’s time with the mother, father, and paternal grandmother referred to in the Orders also consider and, if considered appropriate, arrange time between the children and their half siblings, [A], [B] and [C], as well as with their previous carers Ms R and Ms M.
Restraints
o)The maternal grandmother and Mr Grey shall follow all reasonable directions of the Minister or her delegate, including:
i)To accept any referrals made with a view to assisting the maternal grandparents to care for the children, and further any referrals made for the children, including for counselling;
ii)To comply with any reasonable directions of any services or professionals who are engaged as a result of referrals made in accordance with the Orders above;
iii)Allowing the Minister or her delegate to communicate with any services or professionals engaged as a result of referrals made in accordance with the Orders above;
iv)Allowing the Minister or her delegate to conduct home visits;
v)Allowing the Minister or her delegate to speak with and interview the children.
p)The mother and father are restrained from consuming drugs, including illicit, synthetic, prescription pharmaceutical medicines (other than as prescribed to them by a registered health practitioner) at least 24 hours prior to spending time with the children.
q)The mother and maternal grandparents are restrained from making critical or derogatory remarks about the father or paternal grandmother, or members of their household, in the presence or within hearing of the children and shall ensure that no other person makes such remarks about the father or paternal grandmother in the presence or within hearing of the children.
r)The father and paternal grandmother are restrained from making critical or derogatory remarks about the mother or maternal grandparents, or members of their household, in the presence or within hearing of the children and shall ensure that no other person makes such remarks about the mother or maternal grandparents in the presence or within hearing of the children.
s)The father, the mother, and the paternal grandmother are restrained from initiating any contact with the children via social media, email or internet site, and shall ensure that no other person attempts to contact the children via social media, email or internet site on their behalf.
t)The father and paternal grandmother are restrained from telephoning or sending a short message service (“SMS”) to the children or maternal grandparents, and further the mother is restrained from telephoning or sending SMS to the children.
u)Orders (s) and (t) do not apply in circumstances where one or both of the children initiate the communication, and the father, mother or paternal grandmother are responding to that communication.
v)The mother, father, and paternal grandmother are restrained from bringing any third parties to time provided for in the Orders above, unless prior written approval has been obtained from the Minister or her delegate.
Release of Expert Report
w)Leave is granted to the Minister or her delegate to provide a copy of the expert report prepared by Dr O to any psychologists, psychiatrists or professionals involved with the children and maternal grandparents.
NOTATION

B. The Court notes that the intention of the Secretary is that the children will be placed in the care of Ms Denham and Mr Grey.

The maternal grandparents agreed with the final submissions made by the Department and supported the orders as sought by the Department.
The Independent Children’s Lawyer also agreed with the final submissions made by the Department and supported the orders as sought basis by the Department, but sought to exclude the maternal grandparents as supervisors for the children’s time with the mother, on the basis that this may destabilise the placement of the children as directed by the Minister.

Issues to be determined

To whom should parental responsibility or aspects thereof be allocated for [X] and [Y], whether separately or together?
Where and with whom should the children live?
What time, if any, should the children spend with the other parties?
What conditions, if any, should be placed on the respective parties’ time with the children?

Documents relied upon by the parties

The documents relied on in the father’s case were as follows:-
a)Amended Initiating Application filed 1 May 2012;
b)Affidavit of Mr Sawers filed 7 July 2014;
c)Affidavit of Mr Sawers filed 29 July 2014; and
d)Affidavit of Mr Sawers filed 11 August 2014.
The documents relied on in the paternal grandmother’s case were as follows:-
a)Response to Initiating Application filed 5 December 2013;
b)Affidavit of Ms Whitton filed 24 January 2014; and
c)Affidavit of Ms Whitton filed 16 May 2014.
The documents relied on in the maternal grandparents’ case were as follows:-
a)Affidavit of Ms Denham filed 7 July 2014; and
b)Affidavit of Mr Grey filed 7 July 2014.
The documents relied on in the Department’s case were as follows:-
a)Single Expert Chapter 15 Report of Dr O, dated 6 March 2014;
b)Affidavit of Ms E filed 27 June 2014; and
c)Affidavit of Ms E filed 5 August 2014.
The documents relied on in the Independent Children’s Lawyer’s case were as follows:-
a)Single Expert Chapter 15 Report of Dr O, dated 6 March 2014.
A number of documents became Exhibits during the course of the final hearing, including a Family Report prepared by Dr V dated 25 November 2011, which became Exhibit ‘M’.
At final hearing, little weight was given to the recommendations in

Dr V’s Report given that it was prepared in 2011, before a series of significant changes took place regarding the mother’s, father’s, and children’s circumstances.
A Kinship Placement Assessment commissions by the Department and prepared by Mr A, Psychologist, dated 27 May 2014 became Exhibit ‘A’.

Chronology of litigation

This case came before the Local Court at [omitted] on 22 February 2011, on which date it was transferred to the Federal Magistrates Court (as it then was) at Parramatta.
The case was then listed in the Federal Magistrates Court at Parramatta on 12 April 2011 for mention. At this stage, the proceedings were as between the father and mother. The Independent Children’s Lawyer was appointed by the Court on this occasion.
Also on this occasion, parenting orders were entered into by consent on an interim basis, namely that [X] live with the father and spend time with the mother, and that [Y] live with the mother and spend time with the father.
On 30 May 2012 after the case had been adjourned on a number of occasions, interim orders were made by consent for [X] and [Y] to live with the father, and for them to have telephone communication with the mother.
On 11 July 2012, the interim orders made 30 May 2012 were continued.
On 12 December 2012, the paternal aunt, Ms S and the paternal uncle Mr S were joined as the Second and Third Respondents respectively, as [X] and [Y] were at that time living with the paternal aunt and uncle.
On 6 February 2013 at a mention, the Independent Children’s Lawyer advised the Court that she would, during the adjourned period, circulate to the parties a minute providing for the paternal aunt and uncle to have parental responsibility for the children, pending further order of the Court.
Upon request of the Independent Children’s Lawyer, the case was re-listed for directions on 11 April 2013.
On 11 April 2013, the paternal aunt and uncle were granted leave to withdraw as parties to the proceedings.
On this occasion, NSW Police and the Department of Family and Community Services were requested pursuant to section 69ZW(1) of the Family Law Act 1975 to each provide information and reports to the Court in relation to the father, the mother, and the children. The Department was also requested to intervene in the proceedings pursuant to section 91B of the Family Law Act 1975.
The mother was ordered to provide a urine sample for the purpose of a drug screen, and to provide the results to the Independent Children’s Lawyer and the Court.
At interim hearing on 19 April 2013, Ms M was joined in the proceedings as the Fourth Respondent, and the Department was also granted leave to intervene in the proceedings.
On 16 May 2013, with the consent of the mother, Ms M, and of the Department, and on an undefended basis as and against the father, orders were made such that [X] would live with Ms M, and she would have sole parental responsibility of [X], under the supervision of the Department. The Department was to have sole parental responsibility of [Y], and it was ordered that [Y] spend time with Ms M and [X] for one day each week. It was the Department’s intention at that time for [Y] to be placed with the mother.
On 9 October 2013, Orders were made in Chambers for the case to be relisted as the Department had decided to place [Y] in the care of

Ms M instead of the mother, because the mother returned positive results to drug screen tests.
On 6 November 2013, the father appeared by video-link from custody. The paternal grandmother was granted leave to intervene in the proceedings as the Fifth Respondent. The maternal grandmother and Mr Grey are granted leave to intervene as the Sixth Respondents.
Also on this occasion, Orders were made by consent for the Department to have sole parental responsibility of [X]. Trial directions were made for final hearing, and a Single Expert Report was ordered to be prepared in relation to [X] and [Y].
The case proceeded to final hearing and was heard on 11, 12, 13, and 14 August 2014 in Parramatta. Judgment was reserved.

Chronology of events

On or about mid-1999, the mother and father form a relationship and commenced living together.
On [omitted] 2000, [X] was born.
On [omitted] 2007, [Y] was born.
On 20 July 2010, an Apprehended Violence Order was made protecting the father from the mother. This Order has since expired.
In late 2010, the father and mother separated on a final basis. [X] was living with the father whilst [Y] was living with the mother. At the time, the father was living in [omitted], New South Wales and the mother was then living nearby in [O].
On or about March 2012, the father relocated with [X] to [omitted] in Victoria. [Y] remained living with the mother in Western Sydney.
On 12 May 2012, the mother is arrested following a search warrant being executed and police locating a drug manufacturing laboratory at her property in [O]. [Y] was living with the mother at the time.
On or about mid-2012, [Y] travelled to Victoria to live with the father and [X], pursuant to Orders made 30 May 2012.
On 14 November 2012, the father is arrested and incarcerated for drug related offences. The children commenced living with the paternal aunt and uncle in Victoria.
On or about April 2013, the children commence living with Ms M in Sydney.
On 31 July 2013, methyl amphetamine is detected in the mother’s hair follicle sample.
In September 2013, the mother received a two (2) year sentence, that sentence is suspended, subject to her entering into a two (2) year good behaviour bond.
On 26 September 2013, the mother undergoes urine analysis testing, which returns positive for methyl amphetamine and amphetamine.
On 27 September 2013, the father receives a four (4) year sentence, with a non-parole period of two (2) years commencing 14 November 2012.
On 9 October 2013, [Y] is removed from the mother’s care by the Department and is placed with Ms M, with whom [X] is also living, thereby reuniting that sibling group.
On 6 November 2013, Orders are made by consent on an interim basis such that the Department has sole parental responsibility for [X].
On 10 December 2013, [X] and [Y] are placed with Ms R (Ms M’s mother), who agrees to care for them pending the outcome of the expert assessment.
On 5 March 2014, [Y] is placed in foster care.

Evidence

Due to the case for the maternal grandmother and Mr Grey being aligned with the orders as sought by the Department, and because the Applicant father was self-represented throughout final hearing, evidence was first heard from the witnesses for the Department. This change to the usual order of the hearing was explained to each of the self-represented litigants and they did not express objection.

Mr A - Psychologist

He prepared a Placement Report that became Exhibit A, at the request of the Department.
As can be seen from evidence discussed later in this judgment,

Mr Grey was not as frank with Mr A as he should have been which diminished the value of the Report.

Ms E – Case Worker

She provided helpful and highly relevant information about placement options and service delegates. The tenor of her evidence was that organisations would refuse delegation from the Minister if ‘spend time with’ orders relating to the children were more frequent that on average once a month. This would then limit placement options.
She recognised the deficiencies created by a less than full departmental investigation of Mr Grey, and said the Department would undertake further investigations.

Mr Grey – Maternal Grandmother’s Husband

He lives in [omitted] on the NSW Central Coast, where he and the maternal grandmother have been living for over 11 years.
At final hearing, a series of documents were tendered by the Independent Children’s Lawyer in relation to Mr Grey’s police and hospital records that became Exhibits B, C2, and H. The existence of these records had not been disclosed to Mr A by Mr Grey during their appointment and Mr A had not factored this information into his Report.
In his Affidavit filed 7 July 2014 and in his oral evidence, he denied the father’s claims in paragraph 45 of Dr O’s Report, namely the allegation that Mr Grey disclosed to the father that he videoed a boarder at his home using Asian prostitutes, as he thought it was funny.
He also denied the father’s claims of family violence between himself and the maternal grandmother. He also denied allegations of him ever having exposed himself to [name omitted], who is the mother’s sister.
In his Affidavit, he says that none of the allegations made by the father in paragraph 45 of the Report are true. He says in his Affidavit that there have not been any incidents of domestic violence between him and the maternal grandmother.
He did however concede in his evidence in chief that he has had four Apprehended Violence Orders made against him on application of his former wife, but “thought that they were all lies”.
He said that he did not tell Mr A about his suicidal thoughts because this related to his mental state “a long time ago, and he was asking about the current”.
He said that the medication he and the maternal grandmother take is “irrelevant”, despite his concession that he does currently suffer from depression.
He conceded however that he had once smashed a beer bottle over his head as a result of his former wife calling the police to visit at his home.
In answering questions in cross-examination by Counsel for the Independent Children’s Lawyer, he conceded that his depression could limit his parenting abilities.
He said that his depression stems back to when he was hit by a car about 15 years ago.
He said that he has in the past had to go to [omitted] Hospitals as a result of his depression. His visit to [omitted] Hospital in 2011 was as a consequence of him smashing the beer bottle over his head.
He said in relation to his hospital admissions:
“I felt I was being overloaded.
I felt I was being treated badly at home by adult children. I had a friend who had committed suicide, and I felt guilty. I was constantly trying to fix other people’s issues.
My family was expecting a lot of me.
I had difficulty getting out of bed (at the time).
The problem with me is that I am too hard on myself.
I become withdrawn and keep it all inside until it gets really bad”
He added that:
“For the last couple of years, I was in a good place”.
Although conceding he has had thoughts of suicide following media reports of recent ‘celebrity’ suicides.
He said in re-examination that he has been “okay” for two and a half years now, notwithstanding the above.
He said that he does not anticipate the stress from [X] and [Y] coming to live with him to become overwhelming. He said that although he gets overwhelmed by his adult children mistakes, he is not similarly affected by the mistakes of children, who are minors.
He said that he currently takes one Avanza tablet at night, and that he sees his General Practitioner, Dr G once a month.
He said that when [X] and [Y] lived with the mother and father, his visits to the children were either day visits or single overnight visits. He said that the longest period of time spent with the children was the weekend prior to final hearing, where he was with them from Friday afternoon to before school on Monday.
He finally said that if the children are to live with him and the maternal grandmother, he does not want the mother to come to their home to see the children, as he wants his home to be a safe place for the children.

Ms Denham – Maternal Grandmother

She has known the father for approximately 13 years.
She said that she was diagnosed with depression first in 2003, and then resumed taking antidepressants 6 – 7 years ago.
She said that she told Mr A that she has taken antidepressants twice over the years.
In answering questions put to her in cross-examination by Counsel for the Department about Mr Grey’s actions when affected by depression, she said “(Mr Grey) would shut himself off in the bedroom for a day or two days. (He would) keep away from people and come out to get meals”.
She said that Mr Grey does not have a temper, but is “sometimes irritable, sometimes short”.
She said that she and Mr Grey jointly attend Dr G’s consultations, and Dr G deals with each of them in turn.
She said that when Dr O interviewed her and Mr Grey, she did not feel comfortable with Dr O and felt agitated as she believed their personalities clashed.
She said that after the mother was arrested, she did not have a lot of face to face contact with her.
She and Mr Grey now see the mother once every 2 – 3 weeks.
She said that the mother currently lives in a caravan with her partner Mr J, her brother [name omitted] and [his] girlfriend [name omitted], at a caravan park in [omitted], New South Wales.
She would prefer if the mother was not with Mr J, because, she says, the mother “lost [Y] through DoCS’ removal because of her relationship with [Mr J]”.
She says in her Affidavit filed 7 July 2014 that she told Dr O that if the mother was able to abstain from drug use for a long period of time, and was assessed by the Department, then the children could have overnight contact with her.
However whilst giving oral evidence at final hearing, she said that she asked the Department to ensure that the mother’s contact visits were not at her and Mr Grey’s home, so that the children would know that the mother cannot at will come in or out of their home.
She said that she had spent time with [X] on about 15 occasions this year, but had seen [Y] more often than that.
Prior to spending time with the children this year, she said that she had not seen either [X] or [Y] for about 7 years.
She said that [X] had said to her on the weekend prior to final hearing, that “my dad is a liar”. She said that she told him, “you have to have all the facts before you make a decision”. She said that he responded, “I am sick and tired of his abusive phone calls with Ms M and Ms R”, to which she says she responded, “You will need to hear his side of the story”.
She believes that [X] will need counselling if he is to live with her and Mr Grey. She said she is worried as to [X]’s emotional response if he is to live with them.
She also believes that [X] will need dental work.
She acknowledged that the last 4 years had been difficult for the children because they had been moved between homes and schools, have been separated, and have had their parents spend significant time in prison. She agreed that these difficulties meant that the children would need support and counselling to help them settle with her and Mr Grey.
She said that she spoke with Ms R the week prior to final hearing, that being the second time they had spoken.
She said that she knows [X] wants to stay with Ms R.
She said that she and the paternal grandmother had spoken on two occasions, one occasion having taken place during final hearing.
In answering questions put to her in cross-examination by the paternal grandmother, she agreed that “we [maternal and paternal grandmothers] have talked about making it as best as possible for the grandchildren”.
However she also said that she believes that the paternal grandmother would not be able to protect the children from the father.
She says in her Affidavit filed 7 July 2014 that she has seen the father become aggressive whilst under the influence of alcohol.
She says in her Affidavit filed 7 July 2014 that there was an incident many years ago where police were called to the mother and father’s home in [omitted] because the father and mother had been involved in a domestic incident where the mother sustained a cut over her eye. She says that the mother did not report it to the police, but instead told the police that she had hit her head on the car door.
She said that she would not be worried about the paternal grandmother having telephone contact with the children, but conceded that it is “not up to me”.
In answering questions put to her in cross-examination by the father, she said that she does not have a problem with the children visiting the paternal grandmother, but repeated that it is “not up to me”.
She said finally, that she believed that the children need to see their paternal family.

Ms Whitton – Paternal Grandmother

She and her husband are retired, and live together in a three bedroom house in [omitted], Victoria.
She says in her Affidavit filed 16 May 2014 that the children have a large extended family in and around [omitted], Victoria, including her son, Mr S and his wife and three children.
She says in her Affidavit at paragraph 25 in response to Dr O’s Report, that although she was treated for glaucoma for 7 years, she was later told by a specialist in Melbourne that she never had glaucoma.
She says in her Affidavit filed 16 May 2014 that [X] has an eye condition that has required medical procedures in the past. She says that he is a good [sport omitted] player and his vision has impacted his ability to play.
She says in her Affidavit at paragraph 28 that she saw [X] regularly eating fruit and vegetables when staying at the father’s home. This was in response to paragraph 204 of Dr O’s Report, namely that [X] said that he had only ever eaten steak and potatoes at his father’s home.
She says in her Affidavit that she has never been offensive towards

Ms R or Ms M, nor her daughter [C].
She says in her Affidavit that she and her husband are not too old to take care of the children. She also says that she would be willing to do any parenting courses to update her parenting skills, if necessary.
She said in her oral evidence at final hearing that she sees herself and her husband as “holding the fort until Mr Sawers is able to care for the children”.

She said that she and her husband each have driver’s licences, however her husband does the driving, and she has not driven for 4 years.
She said that if the Court orders the children to spend no time with the father, then she would not allow the father to have any contact with them. She said that if he is released on parole from November 2014, he would “need to prove himself”.
She said that it has hurt the children that the father went to jail, and has been separated from them.
However she also said that she does not believe the father would present any risk to the children on his release from prison. She said that despite the father being at possible risk as a result of providing assistance to the police against his co-accused, she does not see this as a real risk.
She said that prior to 9 November 2012 when the father called her, she “never had a clue [that] he used drugs”.
She proposed that the father could visit the children at her home, supervised by herself or her husband, or alternatively and if not appropriate, his visits could be supervised by her away from their home.
She said that she does not think that the children should see the mother whilst she is on probation, or in the alternative, any time that she spends with the children should be supervised by the maternal grandmother.
She said that the children should not be left alone with Mr Grey, and that the maternal grandmother should supervise the time that he spends with the children.
She said that the last time she saw [X] was for interview with Dr O on 5 February 2014.
She said that she has read that [X] does not want to move to Victoria. She said that she has not spoken to [X] or [Y] for so long that she does not know what they want.
She said that if [X] did not come to live with her, she would still care for [Y].
She says in her Affidavit at paragraph 17 that “the longer it takes to finalise things for [X] and [Y], the harder it will be to have happy, well-adjusted and safe children”.

Mr Sawers

He admitted during cross-examination to misleading and lying to the District Court Judge that sentenced him. He conceded he did so to obtain a personal advantage.
The father is not, therefore, a witness of credit. Wherever his evidence is challenged or contested by another witness or called into question by any document that became an exhibit, then I do not accept his evidence as reliable and reject it.
He arranged for the children to be cared for by his brother and sister-in-law on his arrest even though his mother was nearby.

Dr O

She was cross-examined about the detailed Single Expert Chapter 15 Report that she had prepared. At the time of preparation, both [X] and [Y] were living with Ms R. Hers is the most up to date and reliable expert opinion. I agree with all her opinions and conclusions and make findings accordingly.
In her view, foster care for [X] is the least preferable outcome, especially if it were a group home.
Her summary of [X] found in paragraph 210 of her Report and her summary of [Y] found in paragraph 250 of her Report are immensely helpful and informative, and underpin many of the orders sought by the Department and consented to by the Independent Children’s Lawyer.
Her recommendations can be found in paragraph 248 of her Report. They are all broadly based on the evidence in the case.
Her recommendation with respect to placing [X] with Ms R, she recognises is dependent on Ms R being willing to accept [X]’s care.

Ms R is now not willing to do so.
Her recommendation for two single week periods of time for [Y] and [X] to spend with Ms Whitton may not be affordable for reason of cost. It is only for this practical reason that there will not be an order that fully implements this recommendation.
Her recommendation about the children’s time with their mother is not protective enough. Until the mother can demonstrate two years of drug abstinence with appropriate rehabilitative treatment, her time with both children should be supervised, unless the Minister at some time decides otherwise. It is not an abrogation of judicial function to give this power to the Minister. It will hopefully allow flexible adaptation of orders and thereby limited re-litigation.

Determination

Neither the mother nor father is currently in a position to have a meaningful relationship with the children. The mother because of her living circumstances, and because of her long term drug addiction. The father because he is currently in prison and even if released on parole, will have to re-establish himself in the community, find accommodation and employment, and comply with his parole conditions.
Both the mother and father at this time present as a risk to the children. The mother primarily because of her drug addiction and associates. The father because of his circumstances. The father too, is a person who is willing to do anything or say anything to advance his circumstances without considering the consequences for his children, as exemplified by his drug distribution activities, and lies to his sentencing Judge.
I can have no confidence in anything that the father says, given his admitted misleading and deceitful evidence given at his District Court sentence hearing.
For the above reasons, there is little benefit that will accrue to either [Y] or [X] from a relationship with either of their parents at this time. Both concede the children cannot currently live with either of them.
[X]’s views can be gleaned from the Report of Dr O dated 6 March 2014 and can be summarised as follows:-
a)He feels happy and safe with Ms R (paragraph 196);
b)He regards Ms Whitton as nice (paragraph 197);
c)He has mixed feelings about Ms Denham and he would be angry and really upset if forced to live with her (paragraph 198) and would not mind living with her so much but does not want to move again (paragraph 205);
d)He was upset when he and [Y] were not living together after his parents’ separation (paragraph 199);
e)His three wishes are that he stay with Ms R, stay at the same school, and continue living the happy life he has now (paragraph 204);
f)He cares for [Y], but would be “okay” if separated from her (paragraph 206); and
g)He does not want to live with his father but would like some telephone contact with him (paragraph 207).
[Y]’s views can be gleaned from the Report of Dr O dated 6 March 2014 and can be summarised as follows:-
a)She does not know if she wants to live with her father (paragraph 214);
b)She felt sick and scared when living with her mother in recent times, preferring to live with Ms R (paragraph 215);
c)She regards Ms Denham as nice and Ms Whitton as kind (paragraph 216); and
d)She would like to live with Ms Denham, but her preference is to live with her mother more than anyone else (paragraph 218).
[Y] and [X] were observed by Dr O to enjoy spending time with

Mr and Ms Whitton. She thought the children to have a comfortable relationship with them. In reality, although it is a familiar relationship, it is not what [X] wants. It is likely on the father’s release to result in the children, if they live with Ms Whitton, being returned to their father. This would not be in their best interests.
[Y] and [X] were observed by Dr O to be comfortable in spending time with Ms Denham and Mr Grey.
[Y] and [X] were observed by Dr O to be in high spirits when interacting with their mother. Both children sought her attention and [Y] sought physical proximity and affection with the mother.
Dr O could not observe the children with the father but listened to Corrective Service recordings of the father’s telephone communications with the children, which she thought were mostly appropriate but occasionally manipulative.
Neither the mother nor father has in recent times met their obligations to maintain the children.
[X] and [Y] have experienced many disruptions since their parents’ separation in 2010. [X] is more keenly aware of these disruptions and can enumerate his changes in homes, schools and carers.
Since 2012, the father has been limited to telephone communication with the children because of his imprisonment. He has not used all of this telephone communication wisely. On occasion, he has in these conversations attempted to manipulate [X].
Since 2010, the parents have not jointly participated in decision-making relative to the children.
The mother has spent more time with [Y] than with [X] but in doing so, has exposed [Y] to her drug affected lifestyle and choices.
For some time now, longer in the case of the father, both children have been separated from their parents so as to protect the children.
Continued separation from their parents will be necessary to continue protection of the children.
Currently because of the father’s imprisonment, there is significant difficulty for the children in communicating with him or spending time with him. On his release, his living circumstances are not certain although if he returns to Victoria, distance will create difficulty in spending time with him, although he would be freer in terms of his ability to have telephone communication with them.
No such practical difficulties or expense would occur for the children’s time with the mother, except that she will consent to the Department’s orders which seek supervision of her time and limitation of these periods to about 2 hours, 12 – 16 times a year.
The mother for reason of her drug addiction and her relationships is incapable of safely parenting either child. She seems to recognise this.
The father cannot parent for reason of his imprisonment. On release, he is a risk to the children because of his propensity to act or say things that advance his circumstances rather than focusing on and preferring the needs of the children.
Due to his experiences, [X] is mature beyond his chronological age. Therefore, significant weight and regard is to be accorded to his views, where it is overall in his best interests to do so.
[Y] is chronologically immature, and therefore little weight is attached to her views. In any event, her views are ambivalent, especially as they relate to her mother.
Both the mother and the father have displayed appalling and unacceptable attitudes to the responsibilities of parenthood, preferring their own needs to the needs of the children.
When together, the parents have exposed the children to significant incidents of family violence. The mother post-separation has exposed [Y] to incidents of family violence.
It is preferable that given the disruptions that both [Y] and [X] have experienced since 2010, that there be as few as possible changes for them into the future. An order for parental responsibility to the Minister until each child is 18 is the best way in this case to achieve such an outcome.
Both [X] and [Y] will need ongoing psychological counselling from time to time to help them adjust to and cope with the parental neglect and parental deficits that they have experienced.
To date, neither Mr or Ms Whitton nor Ms Denham and Mr Grey have spent much time caring for, nor meeting the needs of [Y] and [X].
If [Y] and [X] return to Victoria to live with Mr and Ms Whitton, the Departmental oversight of the children will cease, because their jurisdiction is limited to New South Wales. Departmental oversight acts as a bulwark that protects the children from the shortcomings of the parents.
Ms Whitton is also likely at some time in the future after the father is released from prison, to relinquish the children into his care. She might do so at a time that is not in the children’s best interest and contrary to their wishes.
Given the father’s inability to prioritise the children’s needs over his own and the uncertainty as to how he will provide for and accommodate the children in the long term, such relinquishment is also unlikely to benefit them and will expose the children to further change in their homes, schools and relationships.
If the children live with Ms Denham and Mr Grey, the Department or its delegate can have continued oversight and can assist with the provision of any counselling needs for the children, and can ensure that the children spend time with their parents in a manner that is safe and does not expose them to risk.
For the above reasons, the orders as sought by the Department are in the best interests of the children because they protect the children and enable them to be cared for adequately and properly, and enable a safe relationship with their parents and paternal grandparents.
By reason of the mother’s drug addiction, only supervised time with her is currently possible so as to protect the children and so as not to expose the children to her associates.
That supervision is not to be provided by Ms Denham or Mr Grey so as to remove them from exposure to the mother and her influence. Nor is the supervised time to occur in their home, so that their home remains a safe haven for the children. If the mother remains drug free and rehabilitated, then at an unknown time in the future, she could have unsupervised time. The Minister or her delegate will be best placed to know whether and/or when this is to be possible.
The sixteen (16) periods of time proposed by the Department for the children to spend with the mother is excessive as too many periods with the mother will not, as the periods will be supervised, add any meaning to the child/parent relationship. Additionally, the mother’s drug addiction could expose the children unnecessarily regularly to her erratic behaviour and lifestyle.
Too many visits will also limit stability for the children.
One supervised visit a month will enable continuation of a safe relationship and should, on the Department’s evidence, be able to be implemented by any non-governmental organisation that they delegate too.
The limitation on the frequency of holiday periods in Victoria with Mr and Ms Whitton is necessary for reasons of cost and practicability. If Mr and Ms Whitton came to New South Wales, there is enough flexibility in the orders to accommodate those visits by agreement.
The orders as they relate to the father recognise, appropriately, the uncertainty of his circumstances post his release from prison.
I accept the Department’s evidence that there is a limited quantum of supervised visits that its contracted delegates are able to facilitate.
If more supervised visits are ordered, a delegate may not accept a contract from the Department, which leaves only departmental foster carers as placement options. Such an option is not in the best interest for either [X] or [Y].
Being able to be placed with Ms Denham and Mr Grey is preferable. Even if that results in more limited supervised time with their parents, that is preferable to a foster care placement. This is notwithstanding

Mr Grey’s and Ms Denham’s depressive illnesses, as I am satisfied that currently, those illnesses are being properly medically managed. Undoubtedly, the Department or its delegate will continue to monitor this aspect.
The orders sought by the Department as varied by me are reasonably practicable. The Department submits that they have the capacity to implement them.
By limiting the quantum of supervised visits, the orders are reasonably practicable. Because the orders are also in [Y] and [X]’s best interests, they will be made.
In conclusion, the orders broadly as sought by the Department, and submitted for by the Independent Children’s Lawyer, accord with the recommendations made by Dr O. Importantly, they recognise the incapacity of both parents to meet the needs of the children.
The orders will result in the children being protected from what I accept to be the risk they would be exposed to if they lived with their mother or their father upon his release.[1]
[1] See Single Expert Chapter 15 Expert Report by Dr O dated 6 March 2014.
Not all the orders sought by the Department are necessary. Given parental responsibility is to be given to a Minister of the Crown, orders that unnecessarily fetter the Minister will not be made, even though they are consented to.
[X] is already of an age where significant regard must be had to his views. However, his desire to live with Ms R cannot be implemented given she is unwilling to take on the care of [X].
[Y] is much younger, and so her views do not attract as much weight due to her immaturity however by the time she is fourteen (14), her views also should be considered. The Department says that it will.
A reunion of the siblings is preferable. The orders will implement this.
Separation of children from their parents is a sad outcome for any child. In this case however, it is a necessary outcome so as to protect the children.

I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate:

Date: 17 October 2014

[2014] FCCA 2343

17 October 2014

Key Legal Topics

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Family Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

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Standing