SCHMIDT & CURRY

[2013] FCCA 2290

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHMIDT & CURRY [2013] FCCA 2290

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975, ss.60CA, 60CC

Deiter & Deiter [2011] FamCAFC 82

Applicant: MS SCHMIDT

Respondent: MR CURRY

File Number: PAC 4865 of 2013

Judgment of: Judge Stewart

Hearing date: 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Parramatta

Delivered on: 29 November 2013

REPRESENTATION

Solicitors for the Applicant: Mr White

Solicitors for the Respondents: Mr Corbin

ORDERS

1. The children [X] born [in] 2007 and [Y] born [in] 2009 live with the mother.

2. The children shall spend time and communicate with the father as follows:

   (a)From 3.30pm Friday 6 December 2013 until 6pm on 8 December 2013;

   (b)From 3.30pm 20 December 2013 until 6pm on 22 December 2013;

   (c)From 4pm 25 December 2013 until 6pm on 26 December 2013; and

   (d)From 1 January 2014 on a week about basis from 5pm Wednesday to 5pm the following Wednesday until this matter returns on 29 January 2014.

3. Each of the parties by themselves, servant or agents are hereby restrained from discussing these proceedings, court documents in these proceedings or the children’ future living arrangement with the children or either of them or allowing other persons to do so save that the mother be permitted to tell the children that they are going to live with mummy and see daddy.

4. Each of the parties be and is hereby restrained from denigrating or criticising the other party to or in the presence or hearing of the children or either of them or allowing other persons to do so.

5. Changeovers to facilitate the children spending time with the father take place at McDonald’s Restaurant situate at [omitted] Railway Station save that on any Friday that [X] is at school changeovers take place at his school.

6. Until further order the father to continue to live with the paternal grandparents during periods he is spending time with the children.

7. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for [X] born [in] 2007 and [Y] born [in] 2009 and request the Legal Aid Commission of NSW to provide such representation.

8. The parties are to provide to the Legal Aid NSW (Parramatta Office) forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

9. Each of the parties is hereby restrained from taking the children to see a psychologist or psychiatrist or other such medical professional.  

10. Adjourn the matter to 29 January 2014 at 11.30am

11. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.

12. Reserve liberty to Independent Children’s Lawyer (when appointed) to apply on short notice.

13. The mother be and is hereby restrained from placing the children or either of them in a room with the door closed save and except for necessary privacy requirements for the children.

14. Direct my reasons be transcribed and be provided to the Independent Children’s Lawyer and the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4865 of 2013

MS SCHMIDT

Applicant

And

MR CURRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings come before the Court on the Application of the mother, filed on 8 November 2013, and initially returnable on 25 November 2013.  The application relates to parenting matters with respect to two children:

   a)[X], born [in] 2007 – [X] is going to be six in December; and,

   b)[Y], born [in] 2009 – she is four years old.

2. This matter comes before the Court as a matter of urgency and on Monday, I ordered the children to be placed in the child minding centre today, pending the resolution of this dispute. When the matter came before the court on Monday, the father had not filed any material and I am told by his solicitor and accept that there was an outstanding application for legal aid. I suspect that as at today that application is not finally finalised.

3. Nevertheless, the father quite appropriately has had material filed on his behalf, that being an affidavit filed on 27 November 2013 and a Response filed on the same day. Those documents were served on the mother through her solicitors, on either Wednesday or Thursday (there is a modest factual dispute in relation to that which nothing much turns on at this stage). The father has also filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence, and that appears to have been filed yesterday, on 28 November 2013.

4. The mother, in addition to her Initiating Application, relies on an affidavit filed in support on 8 November 2013 and an affidavit filed on 28 November 2013.

5. The parties in these proceedings commenced living together in either 2005 or 2006, on the father’s version and the mother’s version respectively. Nothing turns on the difference in date in that respect.  They separated in or around October 2012, on the mother’s version of events. The father says he thought separation had taken place a little earlier than that.  There are two children of the relationship:  firstly, [X], as I have described; [X] will be six very soon and he is presently in kindergarten;  and [Y], who was born in 2009, as I said, and she is four and she had been attending day care. 

6. There is a dispute between the parties as to the extent of the father’s involvement in the care of the children during the course of the relationship, the mother asserting that she was the primary carer and the father, whilst not necessarily completely quarrelling with that view, says that his involvement was far more extensive than the mother was prepared to give him credit for.

7. In these reasons, it is impossible to refer to every fact in the matter, but I have read all of the material and considered in detail the arguments put by each of parties’ advocates, and they are both represented in court today.

8. The mother alleges that the father indulged in excessive alcohol consumption during the relationship, and said that the father had been admitted to [omitted] Hospital due to excessive alcohol consumption, on three occasions. The father says that he was admitted to the hospital but it was due to other medical issues, namely having a stomach ulcer, although he does agree that sometimes he consumed alcohol to excess.

9. It appears that even when the parties were together, they weren’t living together on a full time basis. There are various allegations and counter-allegations that are put by each of the parties with respect to the other’s caregiving capacities.

10. The mother has two other children, namely a child [A], who was born [in] 2003, and a child [B], born [in] 2005.

11. Neither of those children are in her care. The child [A] is in foster care, he having been removed from her care by child welfare authorities in or around 2005. The child [B] resides full time with his father, and the mother has not a great deal of contact with this child (I note the mother’s most recent affidavit, in that regard, where she says at paragraph 6 that she agreed that that [B] could return or travel to Ireland with his father and she does not have contact with that child or his father. She says that she has heard that [B] and his father are back in Australia and may initiate some proceedings to see him.

12. With respect to [A], she says that he was removed from her care by the Department of Family & Community Services (FACS), following an allegation where it was alleged that she had hit the child with an open hand on his back and on his face, and with an advertising sign. The mother denies that she did that but agrees that [A] is now with foster parents. She sees him once a month at Anglicare and, by inference, that the subject children see him, so I assume that the children have at least some form of minimal relationship with [A]. I do not regard that child’s relationship with [X] and [Y] as being of the sort of sibling relationship that I need to afford a great deal of weight in these interim and urgent proceedings.

13. The care of [X] and [Y] in the last 12 to 15 months leaves a lot to be desired.  It seems that in around about October/November 2012, the children were placed in the care of the father for around 2 weeks while the mother travelled to New Zealand.  The mother says that she arranged for the father’s parents and the father to care for the children while she was away. Upon the mother’s return she collected the children and they have remained in her care until Friday, 20 September 2013. On reading the father’s material he says he was unable to exercise contact with the children because the mother refused to allow it. It is unnecessary for me to make any finding in how that occurred, but rather to note that it is an agreed fact in these proceedings that since November or thereabouts in 2012, [X] and [Y] have been in the sole care of the mother.

14. The mother says that on 20 September 2013 she placed the children in the father’s care for the duration of the school holidays between third and fourth term. She says there was an agreement that the children would go into the father’s care on 20 September 2013 and be returned on 8 October 2013. The agreement is not denied by the father.

15. The children were not returned on 8 October 2013, for reasons which are set out in the father’s material.  The mother says, in general terms, that she spoke to the father and he told her that the children would not be returned.  She gave him an opportunity to return the children to the school on 9 October 2013. She says that she thereafter went to the school every day and the children were not returned to the school.

16. There is then an incident that is described by the mother wherein she attended the home of the father’s parents and the father on 17 October 2013. She says she knocked on the door and the respondent answered the door:

    “saw my children at the window, waving to me.”

    The respondent apparently said, on her version of events:

    ‘ “I’m not giving you the kids back”. I asked to see my children but he refused to bring them out to me.’

    The father in turn responds to that allegation, or those facts, in his affidavit, and he responds at paragraph 13 at page 3 of his affidavit. He agrees that the mother attended the home. He says:

    “The kids do not want to go with you.”

    She says words with profane language that she wanted to see the children and she wanted to hear it from them.

17. What then happens, even on the father’s version of events, is an incident where the children were essentially involved in a tug of war, exposed to profane language; were, he says, manhandled by the mother. The father describes a version of events where the children expressed a high degree of reluctance to go with the mother.  He says that the mother threatened him, at this stage; that the grandparents were involved; that there was verbal abuse directed at the paternal grandmother; and he then says that the whole thing concluded wherein the mother put down the child [Y], who she had previously been holding.  The father says:

    I grabbed her and both children ran inside, shutting the door behind them.  I then said, “You need to leave.  The kids say they don’t want to go with you.”  I then walked inside.

18. I don’t know what happened on that day, but I am prepared to accept that there was a fairly tumultuous incident in front of the children, where the children were exposed to conflict. What is extraordinary in this case is that, first of all, the father, having been denied time with the children for a period of almost 12 months, did nothing about it for that period.  Secondly, that the children, and particularly the youngest child [Y], having not seen their father for a period of almost 12 months, were then placed in the father’s care, albeit with his parents present in the same home, for a period in excess of two weeks, even on the mother’s version of events. 

19. Further the father, in circumstances that I am about to describe:

    a)   decides to unilaterally retain the children, and not only do so in circumstances where there was an agreement that the children be returned to the mother, but has also changed the oldest child’s school in the middle of his kindergarten year, which cannot be to [X]’s benefit;

    b)     has done it without notice to the mother; 

    c)     has only told the mother that he is retaining the children when she complains to him that they have not been returned pursuant to the agreement; 

    d)     takes the child or the children to a GP – and I will deal with that in a moment; 

    e)     takes [X] to a child psychologist;

    f)   says that he would have taken [Y] to a child psychologist but couldn’t get her seen on a mental health plan;

    g)     deposes in his material that the children are now scared of the mother – and I will come to the reasons why he says that in a moment;

    h)     now proposes an order whereby the mother see the children for two hours once every fortnight, when that time can be accommodated by a children’s contact centre, which – doing the best I can in this region of New South Wales – could take many months in order to implement (I note that the father, during these proceedings, has not departed from that application).

20. The mother, on the other hand, has proposed that the children be immediately returned to her; that they spend weekly time with the father between 9.00am and 6.00pm on a Saturday.

21. I have concerns in this case that both of the parents are deficient in their parenting capacities, for different reasons. For that reason, as I had indicated to the parties at the commencement of this hearing, the proceedings and any decision that I make today will be pending the appointment of an Independent Children’s Lawyer which, in my view, is absolutely necessary in this case. Therefore, I propose to return the matter to court in late January or early February, depending on what dates are available, and by that stage an Independent Children’s Lawyer should be appointed.

22. I further note, from matters that I will examine in a moment, that solicitor advocate for the father, Mr Corbin, suggested that this case might be better suited to the Magellan list in the Family Court of Australia.  I had indicated to Mr Corbin– which I will record at this juncture – that I do not propose to transfer this matter to the Family Court of Australia, into the Magellan list or otherwise, until I have the assistance of an Independent Children’s Lawyer. Although there are serious allegations in this case, I propose to examine them, in a moment in order to make my interim decision at this stage.

23. I turn to the father’s material in order to examine the evidence that he puts before the court. He says, firstly, that he denies excessive alcohol consumption, save for on the odd occasion. He denies any drug use. As I have stated he says that his admissions to hospital were as a result of a stomach ulcer.

24. The father says (although it is non-particularised) that during the relationship the applicant was violent towards him. He also says that:

    On occasions the mother was also violent towards the children in my presence –

    Again, that is not particularised. The father says that at that time he would comfort the children and ask the mother not to be violent or abusive towards them.

25. The father says that on numerous occasions he had the care and custody of both children during the relationship. In that sense, there is a factual dispute between the parties as to the level of his involvement, and he sets out his level of involvement in paragraph 8 of his affidavit.  He agrees that the mother left the children with him (and his parents) in November 2012. He says at paragraph 11 of his affidavit:

    From November 2012 until September 2013, the mother did not allow me any contact with the children.  I made efforts to see the children but the mother would not engage. I attended her premises but there was never an answer and I could not be sure she was there. I took my son to school on 8 October.

    He says that school records would bear that out. In answer to an assertion that the mother was trying to ring him, he says that:

    To the best of my recollection, I did not receive any calls from the mother. If I had received a call, I would have answered it.

26. The father then sets out, at paragraph 13, the incident in the front entrance to the paternal grandparents’ home. He says that he received a visit from the Department of Family & Community Services and who conducted a welfare check at his home and they had no concerns in relation to his care of the children.

27. The father says at paragraph 16 of his affidavit:

    I changed [X]’s school once I made the decision that they were safer with me.

    He annexes a letter from [D] Public School, where [X] is now attending school, to his affidavit. I note from that letter that the two children have been enrolled at the school and that the children – the students, as they are referred to – were enrolled by their father, Mr Curry, as their custodial parent. There were no formal custody papers supplied to the school. [X] is enrolled and is currently in kindergarten. [Y] is enrolled for 2014 at [D] Public School.

28. The letters says that:

    At no time since we have had [X] attending our school and at no time during the kindergarten orientation/ transition program for [Y], has the children’s mother been to the school.  She has made no requests for documentation or information from the school in relation to her children.

    It seems disingenuous for the father to have put that as supporting his case, albeit being in a letter from the school, in circumstances where there is no assertion that the mother had any involvement in the enrolment of the children at that particular school.

29. The father denies that he has any addiction issues, and then sets out the occupations of his parents.  I note that it is put by Mr Corbin, on behalf of the father, that the parents will, necessarily, need to be put on evidence in these proceedings. I acknowledge the matters put by

    
    

    Mr Corbin in relation to an assertion by the mother that they are personal friends of a Dr N, which I will come to shortly. I accept that Mr Corbin has accurately put instructions that there will be a denial that the paternal grandparents are personal friends of that doctor.  That is one of the multiple disputed facts in this case.

30. The father says at paragraph 5 of his affidavit that he is:

    deeply concerned over the welfare of the children whilst in the sole care of the mother.

    He says:

    I am aware that the applicant mother was charged with a serious assault on another of her children, [A].  She was in custody for a period of time regarding this.  I do not know what the result of the charge was.  I am aware that [A] was ultimately removed from her care and was placed in foster care.

31. Ultimately there will need to be a decision about these things, but I do note that this awareness on the part of the father, although not particularised in this affidavit, was at least apparent to him during the course of the relationship; certainly apparent to him from November 2012; and was probably apparent to him – although I can’t be sure – prior to the birth of [X]. I cannot regard the issue in respect of [A], in the circumstances, as a significant issue in terms of the limited issues in this interim and urgent proceedings.

32. The father says at paragraph 6 (page 4) of his affidavit:

    I am aware that another child of the applicant was taken from her by the father of that child. I have been informed and verily believe that the father of that child left Australia but I do not know the circumstances nor if the mother ever sought to have the child returned.

    Again, the father must have been aware of this fact, at least by November 2012, and probably during the relationship between the parties.

1. The father says at paragraph 7 (page 4) of his affidavit that he had concerns about the mother’s tendency towards violence and irrational acts, which he:

   cannot enumerate here at this point in time.

   He says:

   I thought that by being around regularly I could reduce the likelihood of her getting angry, abusive or violent towards the children. However there were instances in which the mother would get angry and grab the children’s hair, smack them with an open hand or with the nearest available object. On a few occasions I saw her slap [X] in the back of the head. I told her that she could not do that as it was harmful to the children, and she responded, “Don’t tell me what to do” (with profane language).

2. The father then says:

   I could not report this as there was no witness and I knew that the police rarely believe the male in any domestic situation. I fully intend to list as many incidents of violence as I can recall, once I have the opportunity to do so.

3. I pause here to comment that, again, this is another fact that must have been apparent to the father during the relationship, and at least by November 2012. The father has failed to do anything about his concerns for that entire period of time.  In a matter such as this, that is a factor that influences my decision on the very interim arrangements that I am about to   order.

4. In paragraphs 8 and 9 (page 5) of the father’s affidavit we see what is perhaps the genesis or the catalyst for the father retaining the children.  It is the only incident that is relevantly said to have occurred during the period that the children were in his care over the September school holidays of this year.  Because of the seriousness of the allegations, I propose to read that into the transcript. He says at paragraph 8 (page 5):

   When the children came to me in September I noticed that [X], whenever we closed a door to go to bed or closed the door to the toilet or the bathroom, would cry out, “Daddy, daddy, leave it open. We are going to get locked in.” I asked him why he would think that. He replied, “Mum always locked me in the room and wouldn’t let me out.” [Y] then said that “mummy would stand there and hold the door to stop [X] getting out”. I asked why she would do this.  They told me, “If we were naughty or the boyfriend was there”. By boyfriend I took this to mean a person known as ‘[omitted]’. I had become aware that this person had been violent towards the applicant mother, but I did not know the full circumstances.

   (there is no explanation or particularisation as to the father’s allegation that there had been violence between the mother and her present partner),

   Later on, when we were having dinner I noticed that when I told [X] to finish his dinner, he would shy away and say, “Why, Daddy, am I going to be sent to bed without dinner?” I said, “No, why would you say that?” He replied, “That’s what Mum would do. She always sent me to bed without dinner.”

   He then says at paragraph 9 (page 5):

   I also noticed if I left the room or went out the back of the house the children would straight away call out to me and get upset. I asked them why they would do that as I was not going anywhere, just out the back and [X] said “Mum used to leave us alone and always go out with her boyfriend.” I did not know if that meant they were being left alone or they were with someone else.

5. The mother responds in her affidavit filed on 28 November 2013. She says at 2(ii) that each of the children has a separate bedroom at her home. She says at 2(iii):

   The only time that the children are in their bedroom by themselves is at bed time. Even then, the door to each bedroom is not closed. Instead, I purposely leave it open and I also leave my own bedroom door open so that I can hear them in case there is any problem with either one of them during the night.

   She further says at 2(iv):

   Usually, in the morning the children both come into my room and often get into bed with me.

   She says at 2(v) that she has a routine for the children. She says at 2(vi):

   I have never punished either of my children by locking them in a room by themselves. I have never had to punish either one of my children.  If they have done something which I consider is unacceptable I sit them down and talk to them and explain to them the problem.  That has always been sufficient.  Both my children are well behaved and are motivated to do the right thing so that the discussion with them and an explanation of why their behaviour has been unacceptable is always sufficient.

6. Therefore, the most relevant competing facts in this matter are the verbal disclosures of the children, as reported by the father, and the denial by the mother of the substance of those disclosures. 

7. In November 2012, the paternal grandfather had made a report to the Department of Family & Community Services with respect to the mother.  That is annexed to the affidavit of the father filed on 27 November 2013 as annexure A. 

8. Whilst I will not read that in its totality, it is clear that the allegations against the mother included:

   a)   the removal of the child [A] from her care; 

   b)     the arrest of the mother; 

   c)     the fact that [B] does not live with her; 

   d)     an allegation that her brothers have criminal histories and drug and alcohol issues; 

   e)     an allegation that the mother has links to what, I believe, is a group of people who were colloquially referred to as “bikie gangs”; 

   f)   that the mother is a violent person and had assaulted adult victims on numerous occasions; 

   g)     the mother is a “stand over” offender and has engaged in four offences;

   h)     that the mother is promiscuous and had allegedly had sex in front of the children; 

   i)   the mother fails to prioritise the welfare of the children; 

   j)   the mother failed to care for the children in that she did not provide food or clothing for them, but rather prioritised her own needs for cigarettes and alcohol above that;

   k)     that there had been bruising seen on the children’s arms and legs;

   l)   that, at that time of the report, that the children exhibited fear of the mother; and,

   m)   the mother saw the children as a source of income. 

9. At that time there was an allegation that the children had been exhibiting sexualised behaviour towards the paternal grandfather, and the father therefore took the children to see a family doctor (unnamed) as a result.  It appears that the concerns in relation to sexual behaviour were apparent even during the period in October-November 2012 when the children were in the care of the father at the paternal grandfather’s home, because it said that [X] exhibited sexualised behaviour during that period, and the father and the grandparents were concerned about the behaviour at that time and intended to seek advice from the family doctor.

10. There were further allegations that the mother was intoxicated, demanding to see her children, at the time engaged in verbal abuse and threats, with the assistance in the intimidation by two males.

11. At the conclusion of the FACS Report, it reads:

    Due to the serious concerns of the adult victim, his partner and the paternal grandparents, FACS was contacted on the above mentioned time and date and a formal complaint initiated.

    As it was mandated to do, the Department of Family & Community Services appears to have investigated those complaints.

12. At paragraph 5 of the mother’s affidavit, she says that she is greatly concerned about the FACS report. She says she does not have any involvement with a motorcycle gang.

13. It appears that the Department investigated that report and did not have cause to interfere with the mother’s care of the children.

14. I turn now to the annexures to the father’s affidavit.  First of all, there is the annexure from a Dr N, dated 12 November 2013.  If I have not already done so, I record that the mother alleges that Dr N was a close family friend of the paternal grandparents, which is denied by the father. It is clear that Dr N has been the medical carer for the father for the last 10 years, has a high opinion of the father’s upbringing and family, and has a view of the father as being “an excellent father to his children, with insight and compassion”.

15. Dr N says that since the children have been living with the father and his parents, the children are much settled emotionally and with good behaviours. She says that Mr Curry, being the father, is a kind and caring person who would take his role as the sole caring father seriously. She asks the court:

    Please assess on compassionate grounds in the special case taking into consideration of the children’s wishes to be with their father as they have told me that Mummy has locked me in the room, abandoned us at home alone in order to be with her boyfriend [errors as in original].

16. She says:

    I feel that the children’s safety and welfare should be first priority as this is AUSTRALIA – every child has a chance to grow healthily physically and emotionally [errors as in original].

17. She then goes on to say that:

    Mr Curry and the two children -  [Y] and [X] are all receiving counselling in order to heal and reducing their separation anxiety from their daddy when mother had turned up to Mr Curry’s home uninvited, causing loud commotion with surround neighbours, threatening to evict the children from their current safe haven with their father and supportive grandparents, this has further traumatised their young minds, especially not having delay gratification in having the children’s welfare being high on their mothers list [errors as in original].

18. In relation to this medical report. First of all, there seems to be no balance in the document or the assessment. It is clear that this doctor has obtained all of her information, save for the alleged disclosure by the children which is not particularised, from the father and/or the father and his parents.  This document could hardly be said to be a balanced account or assessment of the children’s welfare in both parents care. It reads like a reference for the excellent personality characteristics and traits of the father’s family. 

19. Although I accept that this document is this doctor’s view on face value and, for the purpose of the case today, it has very little probative value whatsoever.

20. It seems the children, or [X], were referred to a Ms T, Psychologist, whose report is annexed to the father’s affidavit as Annexure D. It was put by the solicitor, for the mother, that this letter is extraordinary because it does not appear to be signed by her and that the Court can’t be sure that this person is a registered psychologist. Further, it was noted that the letter is addressed to Ms T herself. It was pushed by the solicitor for the mother that this was “quite a concoction”.

21. I do not find that this, even on an interim basis, that I can make that sort of deduction [that it is a concoction] from the letter, even though it’s not signed and does not appear to be addressed to anyone else besides the author. I will take it at face value and I will take it at face value that this is a registered psychologist. If there is any suggestion that she is not, then that can be dealt with through the assistance of the Independent Children’s Lawyer.

22. Ms T identifies that the child, [X], was referred to her by Dr. N, although it was not put in the doctor’s letter. It is clear that during the initial assessment with [X], the father was “present but not participating”.  She says that [X] disclosed that he was “terrified of being in a room by himself when the door is closed” and that he felt very scared if left by himself (separation anxiety). 

23. It says in questioning [X], it was disclosed that his fears came from events that transpired when he was in the care of his mother,

    
    

    Ms Schmidt. She says that [X] expressed that his mother punished him on more than one occasion (approximately three times) by locking him in a room by himself.  [X] stated he felt that she was not going to come back and was “terrified”.

24. She says there was no indication that the mother reassured him when he experienced those strong fears on those occasions.  His reaction to being left in a room by himself was phobic in proportion and clearly the events imposed on [X] can be seen as creating trauma for this child.

25. She says that [X] was described (in the context of his time with the mother) a situation where he was often left by himself with his sister.  He said his mother would go off many times with her boyfriend and just leave them.

26. It is reported that:

    Often she would just lock the children in a room when her boyfriend was there so as to “get us out of the way”. He said he felt very scared a great deal of the time when with his mother and now he is living with his father was feeling better.

27. Extraordinarily, given the history of care in the matter, it is reported that he said:

    He stated that he doesn’t want to see his mother.

28. It then goes on and reports that:

    When asked to draw pictures of his family, [X] [sic] drew pictures of himself, his sister, his father, his father’s parents and the family pets, but did not include his mother on any occasion. It is clear that the bond with his father is very strong and the interactions I observed between father and son indicated that [X] [sic] was regaining security through the careful parenting that his father was providing.

29. It then says, but does not particularise that:

    But does not particularise that: [X] [sic] sighted many examples of how he was treated by his mother which strongly point to him being emotionally abused. 

30. It then reports that the child reported that the mother had tried to take them, and he said that she had previously just taken him and his sister and kept them for nine months, and he is scared that she will take him and/or his sister again and he doesn’t want that.

31. The father apparently confirmed that the children’s mother did take both children without mutual consent for nine months and that he could not access them, and he is also concerned that she may attempt such actions again.

32. It’s reported that [X] categorically said that he wanted to be with his father and felt safe with his father.

33. Ms T then observes bonds/ attachments and then goes on to report that, in her view, [X] is making progress and that [Y] is to be booked in but has not been able to obtain a mental health plan, and the psychologist can’t see her for another three weeks.

34. What is quite concerning about this report is that the psychologist draws conclusions when:

    a)She has had no involvement with the mother whatsoever;

    b)Clearly had not seen the children prior to them being in the care of the father; and

    c)Appears to have applied no reflective thought to the assertions that she makes.

35. It may be that, and with all due respect, that I’m being unfair to the psychologist, but I can place little weight on this report and I am concerned that, as reported in terms of what the child drew in terms of his family and his statement that he doesn’t want to see his mother, that in the circumstances of this case where the children were in the sole primary care of their mother for approximately 12 months prior to the date of this report, that there seems to have been a complete and utter breakdown of the relationship as reported between, at least, [X] and his mother.

36. I am concerned in this case that when the child reports that his mother tried to take him and that his mother denied contact to the father for a period of nine months, that such statements have a level of sophistication and analysis that would be beyond a six year old, and appear to, at least on the balance of probabilities, and at this early stage, to have been influenced by input from the father and/or the father and grandparents.

37. Finally, there is a letter annexed from the [D] School talking about [X] and saying that he is a very pleasant young boy.

38. Mr Corbin, on behalf of the father, in circumstances where instructions and material have required to be prepared under some pressure of time, tells me, and I accept, that he will be putting further matters before the Court. 

39. Mr Corbin, on behalf of the father, has put everything that could possibly be put in relation to the father’s case.  Whilst I am of the view that there are matters that are to be investigated in these proceedings, I am of the view that, at this juncture, the children need to be returned to the mother and that there needs to be some time with the father.  In both parents’ care, I believe that there need to be safeguards. 

40. As I have said, I am very concerned that neither of these parties present as entirely competent parents and I expect that both of them, once there’s involvement of family consultants and the independent children’s lawyers, will be invited, if not mandated, to undertake counselling procedures and some courses and perhaps interventions that will assist in their care of the children.

41. As part of feeling confident in relation to returning the children to the mother’s care I note that she appears to have ongoing involvement with Catholic Services and there is a letter annexed to her most recent affidavit that appears to be dated fairly recently (although I accept what Mr Corbin says that it doesn’t have a date on it) that she has regular weekly contact with a Family Support Worker/Counsellor, Ms P.

42. Ms P says that she has worked with Ms Schmidt, being the mother, her family and has had regular weekly contact with her, making home visits and assisting her with appointments with a financial counsellor and advocacy with the Department of Housing.  It’s said that during that time, Ms Schmidt has succeeded in keeping up to date with her rent payments and other bills.

43. That the mother has also worked with the Department of Family & Community Services with respect to concerns from the children’s father that the children were witnessing domestic violence, and that she has worked with the [L] office at the Department.  It says that the Department closed Ms Schmidt’s case about three months ago because there were no concerns for the well-being of the children and

    
    

    Ms Schmidt had made good efforts to make sure that both children attend school and preschool.

44. It’s said that Ms Schmidt had also made attempts at mediation with the children’s father by contacting Family Relationships in [L].  It is said that when visiting Ms Schmidt, the author had observed that she is very warm and responsive to her children:

    I have observed that Ms Schmidt always makes an effort to make sure that the children are provided with a healthy lunch when they go to school and are dressed appropriately and are always clean.

45. Mr Corbin put that Ms P was likely to be partial to the mother.  Whilst I accept that she probably has, over the time of her involvement with the family, developed a personal relationship with the mother, I do not accept that she would put something untrue in a letter such as this which would be so fundamentally detrimental to the children’s welfare that it would put the children at risk. Being a family support worker, it would seem that would be totally contrary to what she does for a living.

46. I am heartened by the fact that the mother has engaged with FACS, and whilst I would not make an order for it, if FACS seek to engage with her, I would expect her to be compliant with that engagement into the future (and I am talking about an adjournment of about eight weeks).

47. To the extent that I haven’t already covered these things, I need to deal with the Law.  The Family Law Act 1975 (Cth) says, and I’m going to do this in summary form, that these children clearly have a right to have both parents in their lives and in a meaningful way, and very importantly in terms of this case, that they should be protected from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

48. Children have a right to know and be cared for by both of their parents. Children have a right to spend time on a regular basis and communicate on a regular basis with both of their parents. S.60CA of the Act provides that in deciding whether or not to make a parenting order in relation to a child, a court must regard the best interests of a child as the paramount consideration.

1. I now turn to the s.60CC considerations. s.60CC(2) sets out the primary considerations I must take into account when determining what is in the bests interests of these children. s.60CC(2A) mandates that I consider the benefit to the children of having a meaningful relationship with both of their parents and s.60CC(B) provides that when determining the best interests of a child, the Court is required to consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

2. I have considered that matter carefully, particularly in terms of the allegations raised by the father, but I’ve also considered it in terms of the emotional or psychological risk to the children in remaining in the father’s care might present as well. I have dealt with this previously in these reasons and s.60CC(2A) provides that I’m to give greater weight to the need to protect the child from psychical or psychological harm.

3. I observe, and I refer to the case of Deiter & Deiter in 2011[1], that the mere fact that matters are in dispute before the Court does not mean that I can ignore concerns that are raised in the material before the Court, and I pause to record here that I am not ignoring the concerns by the father, but rather balancing those in the mix with the concerns I have about the children in the father’s care and the undisputed fact that these children, for almost 12 months, had been in the sole care of their mother and there must be a significant impact on them of having been removed from her care in the way that they have been.

   [1] Deiter & Deiter [2011] FamCAFC 82

4. I pause here to record that while I have commented on what I regard as the inappropriate behaviour of the father in over holding the children, I have not elevated that consideration to greater than it should be and have considered all the factors pertaining to the children when making this assessment.

5. To the extent that I have not already done so, I turn to a consideration of the section 60CC(3) factors which I will do in narrative form. The first factor is that I’m to consider any wishes expressed by the child, and I note at this juncture that it appears that [X], at least, has expressed a view that he does not want to see his mother. In the circumstances of this case, given the way the care of the children in the father’s care has unfolded, and my concern that the children have been influenced in some way, putting aside the age of the children and in particular, [X], I place very little weight on that assertion whatsoever.

6. Even if I’m wrong about that, at these children’s ages of six and four, their wishes would be of marginal relevance in any event.

7. I think that both parties have a difficulty in their willingness and ability to facilitate and encourage a close and consumed relationship between the child and the other parent.

8. On the mother’s side, I note that she did not ensure that the children saw their father in the 12 months preceding the holiday. In the father’s case, I note that when these matters arose, there has been no invitation for the children to see their mother on any terms whatsoever and nor did he even ring the mother to discuss the disclosures made, allegedly, by the children. 

9. I find that the failure to do that, in the circumstances of this case, to be most inappropriate, and even if the father felt he was unable personally to communicate with the mother due to the history between them, I would have expected that there be some overtures made, even a third party.

10. I note that the children’s circumstances changed abruptly when the father over held them and I find that it’s in their best interests to return to their mother’s care, although I will be making orders that the father see the children pending the return to Court.

11. The mother has indicated that the child, [X], will continue to go to his present school and I will make an order for that in that regard.  School is likely to present as a safe place for this child. It is unfortunate that he was ripped untimely from his previous school, but I do not regard a return to that school was being appropriate, given the amount of time between now and the end of the year.

12. [X] should be able to enjoy his time at his present school until the end of the year and enjoy the Christmas festivities, or festivities of the season that are offered to children at this time. 

13. I am going to order more extensive contact than has been suggested by the mother in this case, and particularly because we’re coming into a period of school holidays.  I think that there should be a greater sharing of the children’s care than has been suggested by the mother until we can return with the input from the Independent Children’s Lawyer.

14. I find that, in the circumstances of this case, there is no real difficulty or practical difficulty for the children to spend time with either of their parents.

15. In these reasons, I incorporate my comments in relation to the parents and various capacities and include here observations that it appears that the paternal grandparents, or at least the paternal grandfather, seems to have a dim view of the mother.

16. I am not aware of any cultural issues in this case, but they can be dealt with on the next return date.  The attitude to the children and to the responsibilities of parenthood demonstrated by each of the child’s parents has been addressed in these reasons.

17. The family violence is alleged, which I have dealt with and to that extent that I have concerns about both parents.  I note that there will be a short adjournment and the Independent Children’s Lawyer will be involved.  There will need to be a greater consideration of family violence issues when this matter comes to trial.

18. I’m not aware of any family violence orders that have been made, and as this is an interim proceeding, clearly the matter is going to come back to Court. Accordingly, in all of the circumstances of this case, I order as follows.

19. I pause there to record that the children this morning were appropriately and compliantly placed in the childcare centre at lunchtime.

20. Due to an oversight on my part, I neglected to make an order as to where the children were to go prior to the luncheon adjournment.  I was contacted by the childcare centre and I made an order during that period that the children be placed in the mother’s care until 2.30 pm when they were returned to the childcare centre.  Part of the reason for that was for the reasons that I’ve set out in these reasons.

21. The other part of the reason for that is that the mother was the first person that we could locate on short notice and that was the reason that that order was made.  I apologise for the parties for not having a more ordered approach to that and it was simply an oversight on my part.  Accordingly in this matter, I order as follows.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Associate: 

Date: 21 January 2014