SKINNER & CORBIN (No.2)

[2014] FCCA 3135

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKINNER & CORBIN (No.2) [2014] FCCA 3135

Catchwords:
FAMILY LAW – Children – interim parenting arrangements – allegations of neglect – child’s absenteeism from school of concern – orders made on an interim undefended basis – allegations of drug use – Jones & Dunkel inference as drug testing orders not complied with – failure to appear and file material in the proceedings.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA(5), 69ZW

Federal Circuit Court Rules 2001
International Convention on the Rights of the Child
International Convention on Civil, Political and Indigenous Rights

Jones & Dunkel (1959) 101 CLR 298

Applicant: MR SKINNER

Respondent: MS CORBIN

File Number: PAC 318 of 2014

Judgment of: Judge Harman

Hearing date: 17 April 2014

Date of Last Submission: 17 April 2014

Delivered at: Parramatta

Delivered on: 17 April 2014

REPRESENTATION

Solicitors for the Applicant: Ms Daly of the Aboriginal Legal Service

No appearance by the Respondent

Solicitors for the Independent Children's Lawyer: Ms Coady of Louise Coady Family Lawyer

ORDERS

1. Discharge parenting Orders made 11 March 2014. 

2. On an undefended basis and pending further Order:

   (a)The father Mr Skinner shall have sole parental responsibility for the child X born (omitted) 2007;

   (b)X shall live with her father;

   (c)X shall spend time with her mother at such times and upon such terms and conditions as are agreed between the parents from time to time and not otherwise.

3. In the event that the mother should remove X from the father’s care other than with his consent or retain her within her care beyond a period to which he has provided his consent, then Mr Skinner shall be at liberty to relist the proceedings on 24 hours’ notice.

4. Adjourn the proceedings for undefended hearing on a final basis to 9:30am on 20 June 2014.

5. The attorneys for the Applicant shall notify the Respondent of Orders made today (by forwarding a sealed copy of same to her) together with the consequences of her failing to file a Response and Affidavit and appearing on the next Court event, 9.30am 20 June 2014, being that the matter will conclude in all probability on a final and undefended basis and with the consequence that Orders will in all probability be made on a final basis as sought by Mr Skinner, such notice to be forwarded to the Respondent by ordinary pre-paid post to the address at which she was served with the Initiating Application.

IT IS NOTED that publication of this judgment under the pseudonym Skinner & Corbin (No.2) 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

1. These are proceedings relating to future care arrangements for a young girl, X, born (omitted) 2007. 

Parties and proceedings

1. 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. 

2. The proceedings were commenced by Application filed 24 January 2014. After filing an Initiating Application it became necessary for the father to file an Application in a Case and that was filed on 7 March 2014.

Due process

1. The mother was served with the father’s Initiating Application and it would seem determined to take and took X into her care whereas X had previously lived with the father. That action necessitated the Application in a Case.

2. The proceedings have only been before the Court on one prior occasion, being 11 March 2014. On that date the mother appeared in person. A number of orders were made to advance the matter, including the appointment of an Independent Children’s Lawyer, who has become seized of the matter, inspected material produced on subpoena and in response to section 69ZW orders and supports the orders that are sought by the father today.

3. The mother does not appear today. Neither the Independent Children’s Lawyer nor the father’s attorney has any means of contacting the mother.  Nor does the father. 

4. It is suggested by the father that he does not have a phone number for her or certainly not a phone number that is current. That is somewhat consistent with his evidence as to the mother’s lifestyle generally, she being somewhat indigent. 

5. In any event the mother is not here today. She was here on the last occasion and thus I am satisfied that she is fully aware of the orders that were made on that occasion, including, the adjournment of the proceedings to today.

6. The mother has failed to file material. An order was made that she file material some little time ago. Thus she is also in default with that order and the Federal Circuit Court Rules 2001. As there is no means of being able to contact the mother and the Court having received no communication from her with respect to any inability to attend, one could perhaps infer that she does not wish to participate.  In any event, there may be some logical explanation for why she is not here, but she is not here.

7. On that basis, and as I am urged, orders will be made only on an interim rather than final undefended basis today.

8. I am satisfied that:

   a)The mother is aware of the listing today;

   b)The mother is aware of the orders that are sought by the father;

   c)The mother is aware of the consequences of her non-attendance and non-participation (such as through a failure to file material, same having been explained clearly to her on the last occasion);

   d)The mother has been afforded due process; and

   e)The father would be denied due process and indeed the child’s best interests would be other than properly addressed through any further adjournment of the proceedings. That particularly relates to the circumstances of young X’s life which I will touch upon briefly. 

The material considered

1. In dealing with the proceedings today I have read and considered each of the following documents: 

   a)The Initiating Application filed 24 January 2014;

   b)The Application in a Case, filed 7 March 2014; 

   c)The father’s Affidavit of evidence-in-chief filed 24 January 2014; 

   d)The father’s Affidavit filed 7 March 2014; 

   e)The orders made by the Court 11 March 2014; and

   f)The Affidavit of Service filed 11 March 2014.

2. What is clear from the father’s material, which is unchallenged and which I thus accept as truthful for present purposes, is that young X has had anything but a stable and consistent childhood. Put bluntly, she deserves better. 

3. Young X was born at a time when the parents’ relationship had broken down in most if not all respects. The arrangements for this little girl to spend time with her father and paternal family have been interrupted by a number of events, including a number of periods of imprisonment undertaken by Mr Skinner but also the mother’s largely itinerant and indigent lifestyle.

4. She has been difficult to locate, track down or keep in any one place.  Other than the periods when Mr Skinner has been incarcerated he has gone out of his way to pursue a relationship with X and to be part of her life.  That has been very much impeded not only by the mother’s indigent lifestyle but also by her attitude. She would appear to consider herself in a very real sense the gatekeeper for X’s relationship with the father.

5. Regrettably, the father’s evidence accepted for present purposes, would suggest that the mother’s attitude is defective not only in that regard but in a number of other ways, particularly the importance Ms Corbin would appear to place upon X’s education. 

6. The father’s evidence is particularly telling as it was he – notwithstanding that X was not living with him but with her mother – that arranged X’s enrolment at school, commencing in 2013. That then left the mother responsible only for ensuring that X attended school, a statutory obligation as well as a moral and parenting obligation. 

7. As of June 2013, approximately midway through the school year, X had missed six weeks of school, something between one third and one half of school days. How it would be expected that X would be properly educated and achieve her potential in those circumstances is difficult to comprehend.

8. The court does not have any explanation from Ms Corbin as to why school attendance was so sporadic, as she has declined to file material. 

9. This little girl came into her father’s care in September 2013. That would appear on the father’s evidence, to have been at the mother’s request and behest, she having arrangements she wished to attend to in (omitted).  The child then stayed in the father’s care and has been in the father’s care, save for a period from 13 February 2014 until the first return date of the proceedings 11 March 2014. On 13 February 2014 the mother resumed X’s care unilaterally and by removing her, it would seem with some force, from the care of relatives while she was being minded whilst the father attended a store to get necessary provisions.

10. The consequence of that is that X did not then attend school for the entire time that she was in the mother’s care, again clearly signalling the mother’s attitude towards and the importance that she places upon the child’s education. 

11. Since returning to the father’s care X has resumed regular school attendance and has been spending time with each of her parents, although the order that was put into place on the last occasion will today be discharged, although that is not to suggest that time cannot or should not occur.

12. The order that was made on the last occasion that provided during the adjourned period that X would spend time with her mother each weekend was:

    a)Clearly expressed and as was made clear to Ms Corbin was an arrangement pending the adjourned date fixed so that Ms Corbin could be properly heard in the proceedings; and

    b)An arrangement that was, whilst not expressed by the order as conditional, prefaced upon Ms Corbin being drug free and producing forensic testing reports to corroborate that fact.

13. Ms Corbin has not undertaken any drug testing as ordered, indeed, as consented to by her. Accordingly, by reference to Jones & Dunkel (1959) 101 CLR 298, I am satisfied that I can reasonably infer that Ms Corbin is drug affected.

Legislative Pathway

1. In dealing with the matter I must follow the legislative pathway commencing with the objects and principles in section 60B, which I incorporate herein:

   (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).

2. The Court is mandated to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives and that being subject to the potentially competing obligation to ensure that children are protected from physical or psychological harm through exposure to abuse, neglect or family violence. 

3. Those objects are largely repeated by the primary considerations in section 60CC of the Act. The arrangement for X at present living with her father is the most stable arrangement she has experienced in her short life. Any interference with it on an interim basis and on the evidence that is available to the Court, Ms Corbin having had a more than abundant opportunity to present evidence should she so desire, would not likely result in arrangement that would meet her needs as well.

4. I am also concerned that there is a need, if one were to contemplate any change to that arrangement, to consider the emotional or psychological harm to this child if returned to the mother’s care.  Ms Corbin does not send her to school.  She would appear to engage in violence with other people, (both by her towards others and by others towards her) in the child’s presence and has clearly exposed the child to such events in the past.

5. In those circumstances I am satisfied that the objects could not be met other than by making orders as sought by the father that X live with him.

6. I am also required to ensure that children receive adequate and proper parenting so that they can achieve their full potential. X is a young Aboriginal girl from the (omitted) people. She has a right, entitlement and expectation that she will not only be well parented physically, but emotionally and educationally, to achieve her potential and to take her place in civil society.

7. How Ms Corbin expects that that will be achieved by her attending school periodically and when it is either convenient to Ms Corbin or she is able to actually get her there, notwithstanding that the school she is enrolled in is a very short distance from Ms Corbin’s home, is entirely unclear.

8. I could not be satisfied that the child being in Ms Corbin’s care, based on the father’s unchallenged evidence and noting that Ms Corbin has had ample opportunity to answer it, would allow this Court to discharge its obligations or ensure that this little girl would receive adequate and proper parenting. She clearly has not in the past. She clearly does now. 

9. I must also ensure that parents fulfil their duties and meet their responsibilities. By making an order that X continue to live with her father I can be satisfied that Mr Skinner at least will do that.  I cannot be satisfied Ms Corbin has the capacity to fulfil her duties and meet her responsibilities, if indeed she recognises them, based on Mr Skinner’s evidence, particularly regarding school attendance and the indigent lifestyle that little X has been exposed to.

10. It is suggested for instance, that for a period of 12 months X was living with Ms Corbin and moving from home to home, as it were, “couch surfing”. That is no way for a child to be raised. Mr Skinner provides stability for this child to ensure that her needs are met. 

11. Young X also has rights created by sections 60B(2) and (3) of the Act, being the right to know and be cared for by both of her parents. Mr Skinner has demonstrated his ability to ensure that this right is met far more abundantly than Ms Corbin was able to.

12. Children have a right to spend time and communicate on a regular basis with both parents and other people of significance to their care.  Again, Mr Skinner has discharged that responsibility far more abundantly. 

13. Parents share duties and responsibilities.  Ms Corbin has demonstrated that she is unable to actively participate with Mr Skinner or indeed with government agencies such as schools in ensuring that this little girl’s needs are met.  Mr Skinner, again, is more abundantly able to do so.

14. X also has a right to enjoy her culture, expanded upon in subsection (3).  I am satisfied that this right can be given its best and most complete meaning by an order being made for X to continue to live with her father. 

15. X's Aboriginal culture is derived through her father’s side. Thus, the court’s obligation, consistent with the International Convention on the Rights of the Child and the optional protocol to the International Convention on Civil, Political and Indigenous Rights, is to ensure that X is able to maintain a connection with her culture, have the support opportunity and encouragement necessary to explore that culture and develop an appreciation of it and to participate and live that culture with others of it. That right is, coincidentally but importantly, far more abundant when living in her father’s care.  Ms Corbin would appear to have taken no step towards addressing the child’s rights in that regard.

16. Section 60CA of the Act reminds the Court that the child’s best interests are the paramount consideration at all times.

17. I must determine by reference to section 61DA whether the presumption of equal share parental responsibility applies and if it does apply determine whether it is rebutted. The presumption does not apply if there is evidence that satisfies the Court that there has been family violence perpetrated by a parent.

18. On the father’s evidence a family violence order has been made against the mother for the father’s protection. That order may or may not presently include X, although there is a clear suggestion that it has in the past. 

19. I am satisfied that there has been family violence perpetrated by the mother.  Thus, the presumption does not apply.  Lest I am wrong in that regard I am not satisfied that it would be in X’s best interests for it to apply if for no other reason than it is reasonably impracticable.  Additionally, Ms Corbin has demonstrated her incapacity to discharge her duties and responsibilities as a parent in an appropriate and effective fashion by neglecting X’s needs.

20. I must then turn to section 60CC of the Act, incorporating therein section 65DAA(5).

21. I commence with the primary considerations being:

    a)The benefit to the child of having a meaningful relationship with both parents; and

    b)The need to protect the child from physical or psychological harm. 

22. I am satisfied that there is a risk to X of psychological harm through, if nothing else, neglect in the mother’s care.  The failure to send a child to school for six weeks out of 20 could not be described as other than neglect.  Indeed, it would begin to verge upon any common language usage of the term “abuse”, although it does not fall within the section 4 definition in the Act. In any event circumstance favours the relief sought by Mr Skinner.

23. As to the benefit to the child of having a meaningful relationship with both parents, I have no evidence as to Ms Corbin’s relationship with the child.  I am not entitled to simply infer that there is a relationship of any kind between this child and Ms Corbin in the absence of evidence upon which a finding could properly be based, Ms Corbin has declined to file material.

24. I am satisfied that young X has a meaningful relationship with her father. Indeed, I am satisfied that the relationship would be all the more meaningful as this little girl has experienced, for the first time, some relative degree of stability in her care arrangements. One can well envisage that her father’s capacity to present her at school on a regular basis, properly prepared both physically and emotionally to participate in her education, would have a profound impact upon the meaningful nature of his relationship with her.  She would be entirely grateful and would benefit from that in a way that would make her affections towards her father all the deeper and more profound.

Additional considerations

Views

1. There is no real evidence as to X’s views other than that she has clearly expressed her satisfaction with the care arrangements put into place by her as members of his extended family.

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

1. Clearly, X has a meaningful relationship with her father and members of his extended family.  There is no reason to interfere in that.  It is the most stable and consistent arrangement she has ever known.  There is no evidence as to X’s relationship with her mother or other persons in the mother’s household or family.

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

1. That could not be a criticism of Mr Skinner.  He has since X’s birth done all he can, within the limits of his practical availability, to be involved.  He is abundantly involved at present. 

2. Ms Corbin on the other hand can be criticised. She has failed to participate in decision-making by failing or refusing to file material or attend Court today. Thus the matter proceeds in her absence and without her input. That is a concrete demonstration of her inability to participate appropriately in decision-making. When she has participated in decision-making, such as X’s school attendance, she has demonstrated a deficiency.

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

1. Mr Skinner is presently maintaining the child without assistance. Ms Corbin does not participate in that regard. 

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

1. I am satisfied that there would be a detrimental impact upon X of separation from her father. It would plunge her back into the maelstrom of uncertainty that is care by the mother. 

2. I am satisfied that there is a corresponding benefit to X of remaining in her father’s care.  She will have her needs met properly and fully for the first time in her life.

Practical difficulty and expense

1. I incorporate here the factors to be considered pursuant to section 65DAA(5) of the Act.

2. These parents do not live any significant distance apart. However, reasonable practicality is about more than physical and logistical reality. 

3. The parents’ current and future capacity to implement an arrangement for equal or substantial and significant time or any time for that matter is dependent upon the mother’s moods, attitudes and behaviour. The mother attends to matters when she considers it appropriate.  When she does not consider it important she simply does not attend to matters such as these proceedings. 

4. I am satisfied the parents have no real capacity to implement any arrangement properly, effectively or on a sustainable basis. 

5. The parents’ current and future capacity to communicate with each other and resolve difficulties is highly problematic. Indeed the problems are largely created by Ms Corbin who refuses to participate. 

The impact upon the child of an arrangement

1. I am satisfied that it is entirely appropriate and advantageous for X to continue to live with her father and that X spend time with her mother in accordance with agreements between her parents from time to time. 

2. There is real concern raised by Mr Skinner not only as to the mother’s physical arrangements and her capacity to make appropriate decisions and implement them, but whether she is presently drug affected.  In those circumstances, I am satisfied that X’s time with her mother is a matter that should be left to Mr Skinner as the parent who will have sole parental responsibility to determine from time to time as and when it appears appropriate and safe.

Capacity of the parents to provide for the child’s needs, including emotional and intellectual

1. Clearly from the above material Mr Skinner is way ahead in that race. 

Maturity, sex, lifestyle and background of the child

1. This is a little girl who is in her formative years. If the Jesuits are right about anything, one can expect that there has been significant damage to the lifelong development of this child in light of the difficulties she has faced in the first six years of her life through her mother’s neglect.  However, one would hope that this can be addressed and reversed to some extent and Mr Skinner is doing all within his power to ensure that her needs are met and she is catching up. 

If the child is an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their culture and the impact of the proposed parenting order upon that right

1. This is expanded in section 60CC(6) whereby the Court is enjoined to ensure the child’s right to maintain a connection with culture, to have the support, opportunity and encouragement necessary to explore that culture and to develop a positive appreciation of it, including by spending time with and participating in her lived culture with others. That is not in any way a token consideration. In this case it is profound and important.

2. This little girl has a right to do the best she can in her life consistent with her capacity.  Not all children are created equal even though all are equally important. Not all children are endowed with the same gifts and capacities. Some have greater capacity than others. However, their capacity can be curtailed and restricted through a failure to meet their needs.

3. There is an historical disadvantage to the entire Aboriginal population through 226 years of settlement, legislation and practices. Mr Skinner is doing what he can to address those difficulties for his daughter, difficulties created ironically largely by the child’s white mother. 

4. X has a right to enjoy her culture. She also has a right to take her place within broader society as well as the Aboriginal community as the best person she can be, a right to become an important and worthwhile member of each. This child’s rights in that regard will be best met, fostered and facilitated by her father and his family. 

5. Her rights in that regard will be negatively impacted by her returning to the mother’s care.  It may well be that the mother presents evidence to this Court at some future point in time which allows a broader consideration of matters. However, at this time, the matter is undefended and thus the only evidence available and unchallenged is the father’s.  It entirely supports findings on that basis.

The attitude to the child and responsibilities of parenthood

1. I am satisfied that this is addressed above. Mr Skinner’s attitude is not criticised. Ms Corbin’s clearly is and should be, particularly as regards school attendance. 

Family violence

1. The only allegations of family violence relate to the mother’s behaviour.  That would support the relief sought by Mr Skinner.

Family violence orders

1. There is a family violence order presently in force and imposing prohibitions upon the mother as regards the father. That order is in the statutory terms together with an additional order that Ms Corbin not approach or contact the father by any means whatsoever save as authorised by a parenting order under the Family Law Act 1975. Thus the Local Court Magistrate was satisfied that an order of such extent was required.  It is also to be noted that the order comes into place as a consequence of the mother’s actions towards the father in the child’s presence.

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

1. I am satisfied on the basis of Ms Corbin’s lack of participation in these proceedings that the relief sought by Mr Skinner is the order that will achieve that end.

Other facts that are considered relevant

1. There are numerous photographs annexed to the father’s material of the mother’s prior household in a state of significant disrepair. Those arrangements within her household would cause disquiet to her neighbours let alone to poor X having to endure such living circumstances. 

2. Without intending to be pejorative to the majority world, it would seem from those photographs which Ms Corbin when attending on the previous occasion did not deny accurately portrayed her home (although she suggested she was in the process of cleaning it up), portrayed what could be described as nothing short of third world. 

3. What is also concerning and as Ms Corbin confirmed although with some suggestion that it related to matters beyond her control, is the fact that she was unable to even appropriately or properly care for X’s pet dog which ultimately needed to be put down as a consequence of that neglect. 

4. All of those factors combine to support on an undefended basis and with Mr Skinner’s evidence being unchallenged the irresistible conclusion that the orders that Mr Skinner seeks are the only orders that could possibly be made on an interim basis. 

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  12 March 2015