SKINNER & CORBIN (No.1)

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKINNER & CORBIN (No.1)

[2014] FCCA 3134

Catchwords:
FAMILY LAW – Children – interim parenting arrangements – allegations of neglect – child’s absenteeism from school of concern.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA, 67ZBA, 69ZX(3)

Applicant:

MR SKINNER

Respondent:

MS CORBIN

File Number:

PAC 318 of 2014

Judgment of:

Judge Harman

Hearing date:

11 March 2014

Date of Last Submission:

11 March 2014

Delivered at:

Parramatta

Delivered on:

11 March 2014

REPRESENTATION

Solicitors for the Applicant:

Ms Daly of the Aboriginal Legal Service

The Respondent appeared in person

ORDERS

Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child the subject of these proceedings, X (also known as X) born (omitted) 2007.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order and with respect to same and in the event that an in-house appointment cannot be made then the appropriate officer seized with responsibility for appointments is requested to:
(a)Ensure that an individual is appointed from available Panel Solicitors.
Each of the parties shall within seven (7) days of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
Each of the parties shall within seven (7) days (or forthwith upon filing) forward to the Legal Aid Commission ((omitted)) copies of all any documents filed by them in these proceedings together with:
(a)Any medical reports they hold relating to the child;
(b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;
(c)Any school reports they hold for the child;
(d)Any other documents they hold and wish the Independent Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the child to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child.
Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
The appointment of the Independents Children’s Lawyer is made on the following bases:
(a)There are issues of anti-social tendencies on the part of a parent or parents or other persons with whom the child come regularly into contact;
(b)There are allegations of significant mental illness or personality disorder in relation to either party or a child, or to other persons having significant contact with the children the symptomology of which condition is alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect the child;
(c)There are issues of drug and/or alcohol abuse in relation to either party or other persons having significant contact with the child which are alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect the child;
(d)The child is of tender years and require protection from conflict;
(e)There are allegations of Family Violence and/or abuse suggested to impact upon the child’s best interests.
(f)The child is Aboriginal of the (omitted) people ((omitted)).
The matter is adjourned for further mention and directions to 17 April 2014 at 9.30am.
Each party shall, within 4 weeks, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer.
Within seven (7) days, the mother shall attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, the mother shall cause and ensure that report to be provided to the Independent Children’s Lawyer and the other party.
In the event that the testing report discloses a reportable quantity of any of the above substances, that parent shall then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances.
In the event any test is positive as above, the parent who has been subject to a positive testing report shall then forthwith contact such service local to them as the Independent Children’s Lawyer may nominate for the purpose of enrolling in a course or program designed to assist them in addressing their drug use and becoming and remaining drug free.
Pending further Order and pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X born (omitted) 2007 at such time as she is in their care.
Pending further Order, X shall spend time with her mother from the conclusion of school Friday to the commencement of school the following Monday commencing Friday 21 March 2014.
Pending further Order, X shall spend time with the father at all times other than when in the care of the mother.
Each parent shall ensure that X attends school on each day of scheduled school attendance in accordance with New South Wales law and more particularly:
(a)That she is delivered to school at or prior to the commencement time of the school day (i.e. is not delivered late);
(b)Is not collected from school prior to the conclusion of the school day unless with the school’s consent for the purpose of attending medical or legal appointments; and
(c)In the event that X is not presented to s school as above on any occasion then the parent in whose care X has been at the time that she is required to be presented shall ensure that a written explanation is provided forthwith to the school and if it is suggested that her non-attendance has been due to illness a medical certificate obtained and provided, detailing the medical condition suffered by X and the medical practitioner’s opinion as to why it was not appropriate for her to attend school that day.
The mother shall cause X to be delivered to the father at the father’s home no later than 6pm this evening.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Skinner & Corbin (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 318 of 2014

MR SKINNER

Applicant

And

MS CORBIN

Respondent

REASONS FOR JUDGMENT

These are proceedings involving interim care arrangements with respect to a young child, X, born (omitted) 2007. X has recently turned six years of age.
The parties to the proceedings are X’s parents being her father, Mr Skinner, who is the Applicant, and her mother, Ms Corbin, who is the Respondent.
The proceedings were commenced by an Application filed 24 January 2014. Today is the first return date of those proceedings.
Since the proceedings were commenced, an Application in a Case has also been filed, that having being filed 7 March 2014.
The father appears today and is legally represented. The mother appears in person. The proceedings have been stood in the list during the course of the morning to enable the mother to obtain some assistance from the duty solicitor service. Having obtained that assistance, the mother seeks or continues to seek an adjournment of the proceedings to enable her to have a determination made with respect to an application for legal aid funding.
The adjournment is irresistible. However, there is a need to make some arrangement for the child’s time with each parent in the intervening period and that decision cannot be avoided or delayed.

Material considered

Clearly, the only material filed to date is that of Mr Skinner. For the sake of completeness, the material that has been read and considered is each of the applications referred to above, together with two Affidavits, one sworn or affirmed 23 January 2014 and one sworn or affirmed 6 March 2014. There is also a Notice of Abuse filed by the father and which alleges that the child has been exposed to family violence and abuse and is at risk of that being repeated in the future.
As the mother does not have material before the Court, I am cautious in approaching the allegations of fact made by the father save and to the extent that the matters are corroborated or conceded.
It is to be noted that when the matter was first called and in light of the Court’s statutory obligations pursuant to section 67ZBA of the Family Law Act 1975, inquiry was made of each party as to whether they raised any issue or allegation of abuse, neglect or family violence of the child. The father presses his allegations.
Ms Corbin indicated that she does not raise any such allegation. I accept that she is not legally represented and that the definition of those terms is somewhat nuanced and would benefit from the mother obtaining some legal advice. In any event that is what Ms Corbin indicates and I accept based on her lay understanding of those terms.

History

The relationship between these parties, at least on the father’s version of events, has been anything but smooth and stable.
The parties are suggested to have met and commenced a relationship in 2005. They separated from each other, although it is unclear as to the extent to which they ever lived together on a full-time basis, in May 2008.
The father suggests that throughout the relationship between these parties that there has been at least verbal abuse and at times physical altercation between them, he suggests, instigated by the mother. The mother has not yet had the opportunity to place her position fully before the Court.
The father has undergone two periods of imprisonment. One predates the child’s birth and is in relation to driving offences. The second conviction arising after the child’s birth and relates to malicious damage. The father, with some candour, discloses that he had consumed a vast quantity of alcohol and had woken up in hospital and was later charged with malicious damage having set fire to an unoccupied house which presumably he did not have permission to be in or upon.
His sentence with respect to that offence has been served. That was a period of 15 months that he was absent from X’s life. During that time of imprisonment X was clearly cared for by the mother.
Following the father’s release in March 2010, the father resumed his relationship with X and hostilities between the parties would appear to have resumed.
In December 2012, X was enrolled at (omitted) Public School where she “attended” for the 2013 school year. I use the term “attended” with some hesitation and in its loosest sense as her attendance record is atrocious during 2012.
X would not appear to have attended school since 12 February, 2014 notwithstanding the assurance of the mother, when the matter was first called, that X has always attended school whilst in her care and the father’s denial that this was so.
The mother has subsequently indicated that she does not feel safe or confident in sending the child to school lest the father would attend and uplift her therefrom. Apparently, the potential for that to occur when there is no allegation of concern with respect to the father outweighs, in the mother’s mind, the obligation imposed by state law, let alone the moral obligation as a parent, to ensure the child is educated.
The child’s school attendance at that school in 2012, poor as it is, was terminated sometime in November 2013, when the father uplifted the child from school and at a time when it is suggested that the mother was less than diligent in her care of the child. From that date until 12 February 2014, the child lived with the father.
The child’s school attendance would appear to have improved somewhat although not completely by passing to the father’s care albeit at a different school.
On 12 February 2014, the child was removed from the father’s care by the mother. On the father’s allegation the child was removed from the home of a neighbour where the child was playing with that neighbour’s child. The father details in the second of his affidavits that which he suggests occurred thereafter involving the Police, various other persons and moving about various portions of (omitted) or (omitted) ultimately, the mother decamped and the child has remained in the mother’s care.
In the intervening period apprehended domestic violence proceedings have been commenced by the Police with respect to concerns arising from the mother’s behaviour. Those proceedings came before the Local Court at Mount Druitt and, in the mother’s absence but following service, final orders were made. The father suggests that those proceedings arose following an assault upon him by the mother wherein the mother had attended at his home and had bitten him repeatedly. It is suggested that a warrant may have issued for the mother’s arrest with respect to a criminal charge. However, there is nothing to indicate whether that is so.
The orders that were made by the Local Court Mount Druitt on 4 December 2013 remain in force for a period of 12 months from the date of their making. Thus they remained in force at the date that the child was removed. The order imposes the statutory prohibitions upon the mother as well as a condition that Ms Corbin not approach or contact the father by any means whatsoever save through his legal representatives or as authorised by a parenting order. There are and have never been parenting orders in force between these parents.
This young child’s childhood is nearly over. She is now six years of age. However, her childhood has largely been denied to her.
The father alleges that the mother has been engaged in substantial and significant use of drugs, including but not limited to, marijuana. The father concedes that he has, particularly in the early years of this child’s life, engaged in significant use of alcohol.
There has been substantial violence around this child. Whilst the mother’s material is not yet before the Court, the father’s evidence makes clear on an acceptance of even a portion of it, that there has been substantial violence perpetrated by Ms Corbin towards the father and other persons, including a number of fights, brawls and brouhahas when X has been present.
The father suggests that he has been contacted on a number of occasions by a number of persons, including shortly before the child came into his care last November, and told that the mother was involved in “punching on” with other women.
This little girl’s school attendance is particularly concerning. Annexed to the father’s material is a copy of the child’s semester two school report. It does not make good reading. It suggests that this little girl is somewhat prone to dreaming and inattentiveness in class, something which of itself is no great criticism of her. It is perhaps how a six year old should be entitled to be.
In light of the circumstances that have been circumjacent to her life it is far from surprising that X would be inattentive in the classroom. She has clearly been exposed to significant drug and alcohol use and violence. In those circumstances, her neuropsychology would likely have been impacted negatively and thus her educational achievement is also in all likelihood already damaged. X’s reports note that there had been some improvement from first to second semester. It is noted that it was “pleasing to see her small gains” in the second semester.
The reports suggest that whilst X enthusiastically participates in class activities, that “X’s regular absences from school prevent optimal learning”. That is consistent with the usual euphemisms expressed in school reports.
No doubt what the teacher is trying to say is that there is no hope for this child’s educational future when she misses school with the frequency that she does and has the chaotic home life which she has had throughout her school career thus far.
The report concludes by suggesting “X has missed many small group intervention sessions and she is often absent when new concepts are introduced. Her attendance will need to improve in year 1”.
Sadly, that is the very thing that has now been rendered impossible as she would not seem to have been to school for about a month, has not attended since the school term commenced, notwithstanding the initial assertion of Ms Corbin that this was not so.
The school absence record for 2013 is incredibly poor reading. It suggests that this little girl was absent for 89 days or close to one half of the school year. That includes both periods when she has been substantially late or completely absent. It also includes a great many days when she is absent without explanation and in blocks of weeks at a time.
How anyone would expect this little girl, no matter what natural talents and abilities she may possess, to move from the disadvantage into which she is born with such lack of attention to her education beggars belief.
The other pressing concerns for X relate to that which is raised in Mr Skinner’s material. I accept that the mother has not had any substantial opportunity to answer that material. However, as David Gates sang, “a picture paints a thousand words”.
Pictures are annexed to the father’s Affidavit depicting the exterior of the mother’s home or at least the backyard thereof. What is depicted suggests some significant inattention thereto, as well as depicting a dog clearly malnourished and which it is now suggested has been or will be destroyed as a consequence of its poor condition. The mother suggests, not surprisingly, that the dog is affected also by illness. The dog is X’s pet. Clearly, the dog has not received any medical attention or proper feeding for some little time.
As I have already remarked to Ms Corbin it is difficult to accept that she can care for a child when she cannot care for a dog. A dog needs less care but is no less deserving of attention.
In dealing with the application today I propose to make orders that will provide arrangements only during the adjourned period. The matter will, through creation of space in the list which would not otherwise be available, return as quickly as can be accommodated and as is required and so as to allow the appointment of an Independent Children’s Lawyer.
I have some reservation in making that appointment absent the mother’s material. On the assumption that the mother will continue to participate, as she says she will, clearly an independent children’s lawyer is required. If the mother fails to participate then the Independent Children’s Lawyer can always be discharged if it transpires that the appointment was unnecessary. However, X’s interests, neglected as they have been, deserve all available resources.

Legislative Pathway

In dealing with arrangements, I must follow the legislative path commencing with section 60B and the objects and principles which I incorporate herein:
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

I am obliged to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests.
I must ensure that orders are made that protect children from physical and psychological harm through exposure of abuse, neglect or family violence and I must make orders that ensure, as best the Court can, that children receive adequate and proper parenting and that parents fulfil their duties.
The objects and principles do not form part of the substantive law but guide the application of those provisions. Turning to them, however, is instructive.
These parents have not been able to achieve a meaningful involvement by each parent at many times since the child’s birth. The mother, on the father’s evidence, has been controlling of the child’s relationship with him and has determined when it will occur largely, on his evidence, by reference to considerations other than the child’s best interests.
It would seem that for the parties it is very much “all or nothing” and X lives with one person or the other and they cannot cooperate.
That of itself would obviate against equal shared parental responsibility. It would also suggest that this child is unlikely to reach her full potential.
The primary issue that arises from the objects and principles is the need to protect this child from abuse, neglect and family violence. I can for the purpose of this determination (and noting again that the mother whilst served and appearing today has not filed material and would thus be less disadvantaged by focusing upon one factor) focus upon neglect.
I am concerned for this child. This is a child who would probably, but for the overstretched resources of the Department of Family and Community Services, have already been involved in proceedings in that jurisdiction. The uncontested elements of the past history would suggest that perhaps she should have been.
The Personal History Report produced by the Department of Family and Community Services, and for which the Court is extremely thankful, lists three pages of reports with respect to this child predating her birth.
Three reports are made prior to the child’s birth in relation to “drug abuse by the mother”. There are then further notifications to the Department following X’s birth with respect to drug abuse, emotional state of the mother, (whom, it is suggested, at one point in time attempted to commit suicide by hanging in a public place) and there are concerns raised with respect to domestic violence.
It is unclear to whom the reports of domestic violence relate. One cannot discern who is suggested as the perpetrator although, clearly, at least one of the notifications with respect to domestic violence occurred at a time when the father was imprisoned and so it would not be him.
There are repeated and ongoing allegations with respect to “drug abuse by the mother”, “domestic violence in the mother’s household”, no matter whom it may have been perpetrated by, “inadequate provision or shelter”, “risk of sexual harm or other injury to the child”. Since August 2008 regular, frequent and continued reports with respect to the child and her siblings.
No doubt, the stretched resources of the Department are all that have saved this child from an application made in the care and welfare jurisdiction.
In turning to section 60CA, the Court is reminded that in all that is done the child’s best interests is the paramount consideration.
In turning to section 61DA, I must determine whether the presumption of equal shared parental responsibility applies and, if it does, determine whether it is rebutted.
The presumption does not apply when the Court is satisfied, on reasonable grounds, that there has been family violence. The Local Court has determined, albeit in the mother’s absence, that there has been family violence. However, I do not propose to rely upon the finding of that court to avoid controversy as regards the operation and application of section 69ZX(3).
I am satisfied, however, that there is sufficient in the available evidence and the parties’ concessions to find that the parties can not cooperate and communicate with each other and are unlikely to do so at any time in the foreseeable future. Thus, I prefer to apply subsection (3) which provides that the presumption need not be applied in interim proceedings when it appears inappropriate.
If a fraction of the allegations raised by the father and those yet to come from the mother are proven, then clearly equal shared parental responsibility could not operate. Thus, an order will in due course be made pursuant to section 61C and such that the parties will each have parental responsibility separate from each other at such times as X is in their care.
In then turning to section 60CC, I must commence with the primary consideration of the benefit to the child of a meaningful relationship with each parent and the need to protect the child from physical or psychological harm caused by exposure to abuse, neglect, or family violence.
I am satisfied that the best arrangement that can occur in that regard is that which is demonstrated as maximising, although not optimising, X’s attendance at school, that being to stay with her father during the week.
Clearly, the child’s attendance at school whilst in the mother’s care has been anything but complete. The records of absence suggest whole weeks at a time when this child has not attended, including, for instance, the consecutive weeks of 4 March, 11 March, 18 March, 25 March, and so it goes on, weeks or months at a time when this child has not attended school.
There may be some explanation for that. But it is difficult to fathom what that explanation could be that would see this child attending school so infrequently.
The social damage that not attending school would do to her is significant enough, let alone the impact it is clearly having on her educationally. She is suggested in her reports to be trying fairly hard within the context of her minimal attendance.
Non-attendance gives some real explanation to why she might be inattentive in class for the periods she is there. As the reports suggest, she has missed the introduction of new concepts and no doubt is not following what is happening because of that. One is not left with the impression that the mother would have gone out of her way to get work for her to do when she was not at school or to do work with her when she is at home.
If Ms Corbin had any level of commitment to X’s education then X would have been at school, thus, on the evidence presently available, X being with her father during the school week is the best arrangement to avoid this child’s exposure to further neglect.
As regards the benefit of a meaningful relationship with both parents, the best that I can do is to divide time between these parents, to make clear and specific orders, and to make clear to both parents that any failure to comply with them, (i.e. over-holding the child) will result, in all probability, in that parent’s time being suspended and not resumed until the Court can be satisfied that there will be compliance in the future.
I am also concerned as regards to the child’s relationship, that the most consistent, stable and settled period of time the child has had, both with school and otherwise, is the period from November to February. It does not mean that I am seeking to restore that “status quo”. The Full Court has been clear that this is not the appropriate approach. However, on the evidence available, X being with her father during the school week is that which I can best rely upon as meeting this child’s needs.
In turning to the additional considerations.

Views

The father has led some evidence that the child has desired to stay in his care or come into his care, however, the mother has not yet answered it. I do not place any significant weight on that evidence.

Nature of the child’s relationship with each parent and other persons

This child, on the evidence available, would appear to have as good a relationship as possible with each of her parents in light of the disruptions and difficulties that she has experienced to date. She has had periods of time when she is removed by one parent from the other, and not even allowed to interact with them by telephone. In those circumstances, this little girl’s life is chaos. The Court will do what it can to bring order.

The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time with, or communicate with the child

What seems to have applied for some little time is an exercise of who can get to the school gate first, or who can come upon this child when she is unattended by a parent, such as occurred on 12 February. Such nonsense should stop.
There is a way that civilised members of a civil society conduct themselves within the rule of law. How these parents have behaved is not that way.
Respectful and civilised behaviour would appear to have been abandoned in these proceedings. It will not be abandoned in the future.
Neither parent can be significantly criticised for failing to take the opportunity to participate in the child’s life. Rather, that which was previously contained in subsection (4) would seem to apply. The other parent has precluded it.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

That is not raised in the evidence.

Likely effect of change, including separation from either parent or other child

This little girl deserves some stability. Sadly, it seems that has been something beyond the capacity of these parents to be able to provide, at least jointly, since her birth.
The Court will now do what it can to artificially create stability.
As regards separation from either parent, the child is suggested to have been in the father’s full time care for a period in excess of three months prior to 12 February 2014. The child was in the mother’s primary care prior to that.
As is very clear, primacy of care in this case means very little. It is a matter of the quality and stability of that care when it is provided.
I am satisfied that the most positive effect for this child would be to maintain a relationship with each parent, but more importantly, to actually go to school and live in an environment where she is fed, clothed, and bathed. They seem to be basic elements, fundamental to the welfare let alone the human rights of any person. Those basics, which have been absent this little girl’s life as well as the life of her pet dog.

Practical difficulty and expense

I incorporate section 65DAA(5).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The parents live very close. In fact, within the same suburb. That is the only manner in which they are close. Beyond that, their capacity to implement an arrangement for the child to spend time with either of them, let alone equal or substantial and significant time, is entirely problematic.
The parents have little, if any, capacity to communicate and resolve difficulties.
The impact on this child of the unsettled arrangements is catastrophic. It will no doubt impact upon her for many years, if not for the totality of her life and or at least well into adulthood.
One would hope and it will take extensive and intensive assistance that her educational deficits already created can be overcome.
It is appalling that a child in kindergarten can be absent for nearly half a year and neither the Department of Family and Community Services or the appropriate school liaison officers through the Department of Education are able to intervene to address and remedy that problem.
There is nothing to suggest there has even been the slightest inquiry as to why this child is not attending school and one would think, based upon the photographs annexed to the father’s material, let alone his evidence as to what the inside of the home looks like, that any attendance thereat would demonstrate as the photos would appear to do a level of squalor befitting the third world, not a child being raised in a first world society.

The capacity of each parent to provide for the child, including the child’s emotional and intellectual needs

The child’s intellectual needs have been ignored by the mother during 2013. One begins to lose interest in the basis for X’s absence from school for one half of the year. It is suggested, generously by the father, that on one occasion the child missed some weeks because she had a broken arm, although that is hardly a medical condition that requires absence from school.
This child simply has not been attending school. That will not be countenanced in the future.
There is a specific obligation under state law for a child to attend school on every day of school attendance for which they are fit and the school is open. There is no suggestion the child has been unfit at any time. The suggestion is simply that it is too difficult for the child to be walked the short distance to the school gate. That suggests nothing but an absence of commitment to or understanding of the importance of education.
Certainly, neither of the parents have had a wonderful educational start in life. But one would hope that they, like all parents, would want their child to have a better life than them and that will not be procured in the 21^st century without education. The Court will make orders for this period that will optimise and maximise the chance for the child’s school attendance.

Maturity, sex, lifestyle and background of the child

The child’s background suggests that she has come from squalor and disadvantage. The Court cannot change that. There is no pool of money to fix such problem. Money is neither the cause of nor solution to the problem.
Poverty is no excuse for neglect. Nor is it any excuse for squalor. Poverty does not, when the school is a short walk away, dictate nor excuse non-attendance at school. Those things are not caused by poverty nor are they symptoms of it. They are caused by absence of dignity and self-respect.
The majority of children in this world are raised in poverty in the third world. Those children are loved and cared for by their parents. Those parents would send their children to school if there was one for them to attend.
Poverty does not equate to nor dictate an absence of parental competence. These circumstances arise because of parental attitude. These parents have no dignity and they have relinquished it and not merely (or even) because they are poor. That is a choice made, an attitude adopted, by these parents. They will not be permitted to perpetrate that disadvantage upon this child.
Poverty does not dictate this child’s future. The attitude of her parents does.
The Court can work with the parents that is all the Court can do. The Court can make resources available to parents to become instruments of change in their own lives. The Court cannot change parents or their parenting that is a job for the parent. They first need to recognise the need for change.
This child’s maturity, at six years, would appear to have been relied upon by the parents at different points in X’s young life and especially Ms Corbin as a basis to delegate to her a level of self-care that is simply inappropriate.
The Court will make orders today under Part II of the Act to commence an exercise of the parents gaining information and, should they desire, changing their attitudes and behaviours. One would hope that self-education, to understand the importance of ameliorating conflict between them, of not exposing their child to family violence and drug and alcohol use and, most importantly, to learn the importance of education and what is needed to support learning, will ultimately benefit X.

If the child is from an Aboriginal or Torres Strait Islander background, the child’s right to enjoy their culture with others and the impact of the orders upon that right

That is far from dispositive in this determination. However, it is not to suggest that it is not unimportant.
This is a little girl of Aboriginal heritage from her father’s side. The disadvantage of Aboriginal Australians is clear and apparent from the many reports prepared by government and community agencies. Such reports and their composition is almost an industry.
Educational disadvantage and the prospect of out of home care and the like are significantly increased for Aboriginal children for reasons that are not always entirely explicable.
In this case X’s path to disadvantage is clear and the bases for it even more abundantly clear. The father’s past alcohol difficulties, the mother’s past and suggested present drug difficulties, the indigent lifestyle of the parties, particularly the mother of recent times, the squalor in which the child has been living at the mother’s home, and the child’s failure to attend school.
They are all matters which will cause this child significant disadvantage and cause some real pessimism that this will be yet another Aboriginal child who is disadvantaged, not through intervention but the absence of it. Not through any active step by parents to harm her but through inaction and neglect and a lack of appreciation of the harm caused by behaviour such as not taking her to school. It is unacceptable. There have been too many generations of disadvantaged Aboriginal children and enough is enough.
If Ms Corbin can find the time to procure and ingest drugs (let alone pay for them from her Centrelink benefits) surely if she applied herself to it she could have walked with X the 100 metres or so to the school gate a little more frequently.
I am not blind or ignorant of the grip that addiction has upon a person and the psychological and emotional scaring that may well fuel a person’s drug use. But they are not X’s demons. They are demons possessed by and possessing of these parents. Mr Skinner asserts that, if not exorcised, he is at least able to recognise and resist his demons.
I would be failing in my duties to X, whose interests are paramount, to stand back and raise my hands decrying “What am I to do?” What I am to do, is to shield and protect this child as best as the Court’s resources and legislative provisions allow and ensure her needs are met. In doing so I will do what can be done by Court order to assist these parties by referral to services, but these parents must engage not X.
X needs and no doubt desires no more than to be fed, clothed, housed, and loved and to go to school on time, clean, rested and with lunch in her bag. That is a tiny request which, perhaps because of her tiny voice has not been heard. The Court, thankfully, has better hearing.

The attitude to the child and responsibilities of parenthood demonstrated by each parent

There are clear problems with this as addressed above.

Family violence

The father raises significant allegations of family violence with respect to the mother. The mother when asked plainly and directly whether she has similar concerns with respect to the father indicates “no”. That must favour the father’s proposal for primary care during the adjourned period of some six weeks.

Family violence orders

As recited above there is an order placing prohibitions upon the mother and being an order for the father’s protection.

Whether it is preferable to make the order that will least likely lead to the institution of future proceedings

I am satisfied that the best that can be achieved in this regard is to appoint an Independent Children’s Lawyer and notwithstanding that the mother’s material is not yet before the Court.
I have earlier today made orders to gather information from the Department of Family and Community Services, Police and the child’s school.
I will make orders under Part II of the Act so as to endeavour to assist the parents to understand the impact of their actions or inactions on this child. It is a matter for them to be an instrument of change in their lives and, through their change, their daughter’s life.
For all of those reasons I am satisfied that the primacy of care during the adjourned period must fall with the father. He is the only one who has demonstrated any capacity to understand the importance of and to facilitate the child’s attendance at school.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 12 March 2015

[2014] FCCA 3134

11 March 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies

Standing