SKINNER & CORBIN (No.3)
[2014] FCCA 3136
•20 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SKINNER & CORBIN (No.3) | [2014] FCCA 3136 |
| Catchwords: FAMILY LAW – Children – future care arrangements – proceedings dealt with on a final and undefended basis – allegations of neglect – exposure to family violence – departmental involvement – failure of parent to ensure child attends school. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61C, 61DA, 61F, 67ZBA, 69ZX(3) Children and Young Persons (Care and Protection) Act 1998 (NSW), s.248 |
| Skinner & Corbin (No.1) [2014] FCCA 3134 Skinner & Corbin (No.2) [2014] FCCA 3135 Jones & Dunkel (1959) 101 CLR 298 |
| Applicant: | MR SKINNER |
| Respondent: | MS CORBIN |
| File Number: | PAC 318 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 20 June 2014 |
| Date of Last Submission: | 20 June 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 20 June 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Anderson 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
The father Mr Skinner shall have sole parental responsibility for the child X born (omitted) 2007.
X shall live with her father.
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.
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.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
IT IS NOTED that publication of this judgment under the pseudonym Skinner & Corbin (No.3) 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 relating to future care arrangements for a young child, X born (omitted) 2007 and who is accordingly six and a half years of age.
The proceedings are listed today for undefended hearing on a final basis.
The parties to the proceedings are the young person’s parents being her father, Mr Skinner, who is the Applicant and her mother, Ms Corbin, who is the Respondent.
History of proceedings
The proceedings were commenced by an Application filed on 24 January 2014. Thus the proceedings have been on foot now for approximately six months or roughly the time period that the Court is mandated to hear and determine proceedings if at all possible.
The proceedings were first listed on 11 March 2014. Prior to that date, the mother had been served. An Affidavit of Service has been provided to the Court.
The mother appeared on the first return date of the proceedings and indicated her opposition to the orders that were sought. She also raised, from the bar table but has never committed to writing as she has not filed any documents, a number of allegations which she suggested should and would cause the Court concern with respect to Mr Skinner as a parent or primary parent for this young person.
Departmental involvement
On the basis of the matters raised a request was made to the Secretary of the Department of Family and Community Services for the provision of a Person History document. The request was made pursuant to section 248 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and included a request that the Person History be provided within two hours.
I make clear my abundant thanks to the Secretary and his delegates for the provision of the Person History document, not within two hours but within a matter of minutes.
The Person History document has been made an exhibit in the proceedings. The report suggests a significant history of reports with respect to the care of not only this young person but her siblings.
The reports relate to significant concerns regarding domestic violence and, most importantly, drug abuse by the child’s carer being, at that point in time, Ms Corbin. Allegations were also raised with the Department as to a risk of sexual harm or injury with respect to young X and her siblings.
The Departmental file has not been obtained. That is, however, on the basis that:
a)The Person History document makes clear the number and frequency of reports and the general nature of same; and
b)There is not presently a defended judicable controversy before the Court.
It is to be noted that section 2 of the Judiciary Act 1903 (Cth) makes clear that the starting point for the Court’s jurisdiction is the existence of controversy. There is controversy in the sense that whilst there are two parties to these proceedings one actively participates, being Mr Skinner.
On those bases I am satisfied that the Departmental file, in its totality, is not required and to require its production would be a misuse of public resources, both this Court’s and the Department’s, which can be avoided without in any way prejudicing the integrity of the determination of X’s best interests.
Allegations of neglect
Serious concerns were also raised by Mr Skinner regarding the general neglect, a term not defined within the Family Law Act 1975 but used within it, of X and of her care.
The affidavit material of Mr Skinner, which I have considered and which I will enumerate shortly, makes clear that X has not been appropriately fed and cared for. That allegation would seem consistent with that addressed in judgments delivered by me in these proceedings on each of 11 March and 17 April 2014, the reasons for which I publish simultaneously.
Ms Corbin’s capacity to care for X is manifestly reflected in her capacity for self-care, her capacity to maintain and manage an appropriate household for herself and the children in her care and including her inability to appropriately provide for the care and welfare of the family dog.
A number of photographs depicting Ms Corbin’s home and the emaciated and malnourished family dog are annexed to Mr Skinner’s material. There is no issue as to their having been inappropriately obtained. On the one occasion that Ms Corbin attended and participated in the proceedings she indicated that the dog had ultimately required euthanasia
Mr Skinner makes clear that it was he who contacted the RSPCA with respect to the dog’s state and instigated action as well as he who acted to rescue – and I use that term deliberately and advisedly – X from the neglect which she was experiencing in the mother’s care.
Mr Skinner’s material also makes clear that the statutory obligation imposed upon parents to have children attend school was an obligation which Ms Corbin found some difficulty in complying with. Records of absence for X are annexed to Mr Skinner’s material and suggest an appalling record for this young child’s attendance. As a consequence, her school report reflects that whilst her performance is certainly not perfect or as good as might be expected for her in light of her clear capacity, that this is explained through the difficulties with her absence. Indeed, the report concludes that X’s regular absences from school “prevent optimal learning”.
The records suggest that there has been substantial improvement in attendance but that corresponds with and reflects the period when Mr Skinner assumed the child’s care.
Material considered
In dealing with these proceedings today I have considered each of the following documents:
a)Mr Skinner's Initiating Application filed 24 January 2014;
b)Mr Skinner's Affidavit filed the same date;
c)A further Affidavit by Mr Skinner filed 7 March 2014;
d)Form 4 Notice of Abuse filed 24 January 2014.
e)The Person History document referred to and marked exhibit A;
f)An Affidavit Ms B; and
g)An Affidavit of Ms M.
Each of the above deponents save the father is an employee of the Aboriginal Legal Service. They each depose to notice of the proceedings being given to Ms Corbin as well as notice of orders made on 17 April 2014 and of notice given to Ms Corbin with respect to an amendment to the relief sought by Mr Skinner, he now seeking an order for sole parental responsibility rather than equal shared parental responsibility.
Court events
An Independent Children’s Lawyer was appointed principally as a consequence of the concerns that were raised by Mr Skinner but also based upon the concerns raised by Ms Corbin on 11 March 2014 when Ms Corbin appeared. That appointment was made and thus significant public funds committed to the representation of X’s best interests on the basis of Ms Corbin’s indication that she desired and intended to continue to participate in these proceedings.
Interim parenting orders were also made on 11 March 2014 and as a consequence of Ms Corbin having used the remedy of self-help to remove X into her care after being served with Mr Skinner’s application.
Orders were made pending further order that the parties have joint and several parental responsibility pursuant to section 61C of the Act as well as for X to live with her father and to be returned to her father’s care by 6 pm that evening and to thereafter spend time with her mother from after school Friday until the commencement of school Monday on each weekend. The mother, it would seem, has not been diligent in taking advantage of that arrangement.
An order was also made requiring that X attend school on each day of scheduled school attendance. That order was specifically directed at Ms Corbin particularly as she was to deliver the child to school on Mondays.
The proceedings were then adjourned to afford to Ms Corbin the opportunity to obtain legal advice and representation as she had indicated was her desire and to allow her to file a Response and affidavit material. That has not occurred.
Orders were also made for the mother and father to each participate in an online family counselling program and for the mother to participate in forensic testing with respect to drug use.
Mr Skinner has participated in the online program. Ms Corbin has failed to participate in or comply with any order made by the Court save to have returned the child to Mr Skinner’s care.
When the proceedings next came before the Court on 17 April 2014 Ms Corbin was not present. On the basis of evidence then available and which is again considered today the matter proceeded on an undefended basis and orders made on an interim basis for Mr Skinner to have sole parental responsibility.
Thus I am satisfied that there is no denial of due process to Ms Corbin in that order now being sought by Mr Skinner on a final basis as regards parental responsibility, it is the same as that presently operating. Ms Corbin is clearly aware that the order was made on an interim basis and that Mr Skinner now seeks it on a final basis.
On 17 April 2014 orders were also made for X to live with her father and to spend time with her mother at such times and upon such terms and conditions as agreed between the parents from time to time. That variation was made on the basis that Ms Corbin was not participating in the order that had previously been made and not availing herself of that time. Accordingly, it was inappropriate for that order to continue.
The proceedings were then adjourned to today, a period in excess of two months, and notice was to be given to Ms Corbin by ordinary pre-paid post forwarded to her last known address. It is unclear whether Ms Corbin continues to reside at the address at which she was served although there is no basis to believe that she does not.
Ms Corbin has not, as is required of her, both by the Federal Circuit Court Rules 2001 and a general obligation upon litigants, filed any document in these proceedings, including a notice of appearance. Strictly Ms Corbin is not entitled to any notice with respect to the proceedings. However, notice best as can be given, has be given and I am satisfied that Ms Corbin:
a)Is aware of the proceedings;
b)Is aware of the orders sought by Mr Skinner;
c)Is aware of the listing of the proceedings today and the material relied upon, all of it having been served upon her;
d)Is aware of the consequences of her failure to appear today, i.e., the conclusion of the matter on a final basis and with orders made as sought by Mr Skinner; and
e)Has been afforded due process.
I am also satisfied that due process would be denied to Ms Corbin if the proceedings were not concluded today. He has attended to everything that is required of him. He has the care of his daughter. His time is better invested in attending to her care than attending at this Court repeatedly and without apparent purpose as there is repeatedly no appearance by her and no judicial controversy created by Ms Corbin. Ms Corbin has filed no material which would oppose or give any basis for the Court to not make orders in accordance with the application of Mr Skinner.
I am satisfied that X’s best interests would be prejudiced if the matter were not concluded. X deserves stability; she deserves certainty and finality in arrangements.
If there were some reasonable prospect that Ms Corbin might participate in these proceedings or if she had raised in these proceedings, even if she had not appeared on the last occasion and today, issues of real concern on her oath or affirmation which would suggest that the orders that Mr Skinner seeks were contrary to X’s best interests, another course might be adopted. However, Ms Corbin has failed to raise any issue and I can thus infer that she is either impeded through her own behaviours as complained of (i.e., chronic drug and alcohol use), or is so little committed to those concerns and allegations that she does not seek to raise them before the Court.
X has certainly improved since she has come into her father’s care. She is now housed, well cared for, looked after by Mr Skinner and other members of his family and, importantly, is well nourished, well fed, well presented and attending school on a regular basis.
Aboriginality and culture
It is to be noted, although it is not determinative or dispositive, that X is a young Aboriginal girl. X’s mother, Ms Corbin is not Aboriginal. X’s father Mr Skinner is Aboriginal and her Aboriginality derives from her paternal family. X has a right, separate and apart from her father, to enjoy and participate in and have the benefit of culture. It is her right.
The Court has specific obligations towards address of X’s cultural needs. These are set out in International Conventions and incorporated, as regards the International Convention on the Rights of the Child, in domestic legislation as enacted by Parliament.
The Court is also highly conscious of the significant statistical over representation, in populations of disadvantage of Aboriginal children and adults principally arising from difficulties in care arrangements during childhood, especially poverty and poverty related behaviours, and particularly through a less than fulsome education.
Clearly, this little girl was on a path to join those ranks of disadvantage whilst in Ms Corbin’s care. Ms Corbin was taking no active steps to ensure that this child’s needs were met. X was not properly housed, clothed, fed or nurtured. How she could be properly cared for by a parent who is not sober is difficult to comprehend. X was not presented to school to participate in education there and I have little doubt that she was not aided or assisted in her education outside of school (i.e., by Ms Corbin assisting her with homework and the like).
Accordingly, the benefits to this little girl of having moved to her father’s care are abundant.
As these proceedings are dealt with on an undefended basis (and, as already indicated, I propose to incorporate herein the reasons delivered by me on each previous occasion as the partial bases for the orders that are made) I do not propose to canvass in detail the legislative pathway. That is not to suggest that I have not considered the legislative pathway in full. However the matters which require address with respect thereto have previously been addressed by reference to the evidence presented by Mr Skinner and being identical to that relied upon today.
I incorporate herein my previous reasons in this matter; Skinner & Corbin (No.1) [2014] FCCA 3134.
1. 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.
2. 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.
3. The proceedings were commenced by an Application filed 24 January 2014. Today is the first return date of those proceedings.
4. Since the proceedings were commenced, an Application in a Case has also been filed, that having being filed 7 March 2014.
5. 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.
6. 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
7. 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.
8. 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.
9. 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.
10. 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
11. The relationship between these parties, at least on the father’s version of events, has been anything but smooth and stable.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. This young child’s childhood is nearly over. She is now six years of age. However, her childhood has largely been denied to her.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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”.
34. 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.
35. 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.
36. 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.
37. 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”.
38. 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.
39. 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.
40. 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.
41. 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
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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.
48. That of itself would obviate against equal shared parental responsibility. It would also suggest that this child is unlikely to reach her full potential.
49. 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.
50. 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.
51. 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.
52. 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.
53. 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.
54. 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.
55. 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.
56. In turning to section 60CA, the Court is reminded that in all that is done the child’s best interests are the paramount consideration.
57. 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.
58. 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).
59. 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.
60. 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.
61. 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.
62. 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.
63. 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.
64. 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.
65. 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.
66. 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.
67. 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.
68. 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.
69. 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.
70. In turning to the additional considerations.
Views
71. 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
72. 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
73. 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.
74. 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.
75. Respectful and civilised behaviour would appear to have been abandoned in these proceedings. It will not be abandoned in the future.
76. 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
77. That is not raised in the evidence.
Likely effect of change, including separation from either parent or other child
78. 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.
79. The Court will now do what it can to artificially create stability.
80. 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.
81. 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.
82. 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
83. 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.
84. 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.
85. The parents have little, if any, capacity to communicate and resolve difficulties.
86. 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.
87. One would hope and it will take extensive and intensive assistance, that her educational deficits already created can be overcome.
88. 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.
89. 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
90. 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.
91. This child simply has not been attending school. That will not be countenanced in the future.
92. 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.
93. 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 21st 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
94. 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.
95. 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.
96. 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.
97. 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.
98. Poverty does not dictate this child’s future. The attitude of her parents does.
99. 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.
100. 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.
101. 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
102. That is far from dispositive in this determination. However, it is not to suggest that it is not unimportant.
103. 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.
104. 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.
105. 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.
106. 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.
107. 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.
108. 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.
109. 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.
110. X needs and no doubt desires no more than to be fed, clothed, housed, 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
111. There are clear problems with this as addressed above.
Family violence
112. 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
113. 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
114. 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.
115. I have earlier today made orders to gather information from the Department of Family and Community Services, Police and the child’s school.
116. 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.
117. 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 incorporate herein my previous reasons in this matter; Skinner & Corbin (No.2) [2014] FCCA 3135.
1. These are proceedings relating to future care arrangements for a young girl, X, born (omitted) 2007.
Parties and proceedings
2. 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.
3. 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
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. On that basis, and as I am urged, orders will be made only on an interim rather than final undefended basis today.
11. 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
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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 occur.
23. 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.
24. 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
25. 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).
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. Section 60CA of the Act reminds the Court that the child’s best interests are the paramount consideration at all times.
41. 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.
42. 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.
43. 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.
44. I must then turn to section 60CC of the Act, incorporating therein section 65DAA(5).
45. 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.
46. 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.
47. 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.
48. 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
49. 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
50. 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
51. 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.
52. 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
53. 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
54. 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.
55. 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
56. I incorporate here the factors to be considered pursuant to section 65DAA(5) of the Act.
57. These parents do not live any significant distance apart. However, reasonable practicality is about more than physical and logistical reality.
58. 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.
59. I am satisfied the parents have no real capacity to implement any arrangement properly, effectively or on a sustainable basis.
60. 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
61. 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.
62. 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
63. Clearly from the above material Mr Skinner is way ahead in that race.
Maturity, sex, lifestyle and background of the child
64. 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
65. 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.
66. 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.
67. 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.
68. 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.
69. 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
70. 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
71. The only allegations of family violence relate to the mother’s behaviour. That would support the relief sought by Mr Skinner.
Family violence orders
72. 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. 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
73. 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
74. 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.
75. 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.
76. 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.
77. 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 have addressed the above matters specifically to ensure that there is no controversy as to a consideration of due process in favour of the mother and the basis upon which I have determined to proceed with and conclude the matter on a final and undefended basis.
I do note, in addition to that which is already stated and incorporated above, that the provisions of the legislation, which specifically relate to this little girl as an Aboriginal child, are fundamentally important to the determination of her welfare.
Section 60B(2)(e) of the Act creates a right for X, it being her right, and no other persons to enjoy her culture, including the right to enjoy that culture with people who share it. Mr Skinner is the parent who is Aboriginal and through whom X derives her Aboriginality. Thus an order for X to live with her father is entirely appropriate. However, I make clear it is not dispositive of the issue.
There is no precedent established by this Court, or, more importantly, the Full Court of the Family Court or High Court which suggests that the child’s right to enjoy culture can only be met through a child living with a parent who shares that culture. However, the importance of sharing culture with others from that culture is fundamentally clear from the right created for her by the section referred to as well as subsection (3).
Section 60CC(3) provides that the right to culture includes the right to maintain a connection with culture and to have the support, opportunity and encouragement necessary to explore that culture to the greatest extent consistent with the child’s age and developmental needs and to develop a positive appreciation of that culture.
Exploration of culture includes all engagement in culture up to and including complete immersion in it. It is not and should not be a token or “bolt on”. Culture is lived not read about. Lived, practiced culture speaks to and gives a sense of self and self-identity. It both forms and supports an individual’s personality. It points to and assists in defining both a place in and an understanding of the world, by so doing culture nurtures the individual and through them their family and community.
The importance of culture is not confined to Aboriginal children. The importance of culture is relevant and applicable to every child. However, special provision is included within the Family Law Act 1975 to reflect the historical withholding and suppression of Aboriginal and Torres Strait Islander cultures.
I have expressed them as cultures plural as Aboriginal and Torres Strait Islander culture is not uniform or homogenous. There are myriad diverse cultural practices throughout Aboriginal and Torres Strait Islander peoples as there are throughout any group such as “Europeans”. To suggest, for example, that a Shetland Islanders practice of culture is identical to that of a Cornishman simply because they are both from the British Isles is nonsense. They are as uniquely and fiercely different as the cultural practice of a Tiwi Islander and a (omitted) person. Thus to suggest that a homogenous Aboriginal culture exists is nonsense. That is recognised by section 61F requiring evidence of culture and practice.
I am satisfied that X’s care, nurture and, importantly, education impact upon X’s right to culture. She is going to be in a far better position to fully and properly maintain a connection with culture, explore it and understand it and embrace it as a fundamentally important aspect of her development and self-esteem and image of self if she is well cared for and well educated and absent the behaviours which she has been exposed to in Ms Corbin’s care, such as chronic drug and/or alcohol use.
Sections 60CC(3)(g) and (h) as well as section 60CC(6) also specifically address the issue of culture and, importantly, X’s right to enjoy her culture. Those sections also require that I address the impact of a proposed parenting order upon that right.
X’s capacity to participate in, enjoy, understand and have, as a fundamental core of her spiritual, emotional and physical development, her appreciation and understanding of culture, is dramatically impacted by the neglect and disadvantage which Ms Corbin was subjecting this child to. Such neglect is not apparent in the care that Mr Skinner provides for this little girl. Mr Skinner meets his obligations where Ms Corbin failed.
To be clear, and as set out in the reasons previously provided and adopted herein, Mr Skinner has had his own difficulties in life and his own demons to struggle with, but he has dealt with them. Dealing with adversity is what adults do. No one expects any adult to parent in angelic fashion, particularly when they have come, as Mr Skinner has, without any intent to be pejorative of his parents or their provision for him in his minority, a background of disadvantage. That background of disadvantage came from without his family. However, he has risen to his responsibilities as a parent and he meets this little girl’s needs and he understands them. Not only her cultural rights but her basic, fundamental human right to care, nurture and support in childhood as well as her right to an education.
Through meeting and recognising those rights, no doubt through the strength that he has drawn upon through his connection with his culture, he is better able to meet this little girl’s cultural rights and fundamentally and perhaps more importantly, all of her care needs and rights.
The legislation is clearly focused upon ensuring, as the primary considerations require, the benefit to a child of having a meaningful relationship with both parents albeit set against and balanced with the need for her protection from physical and psychological harm, particularly through exposure and abuse, neglect and family violence.
What is clear from Mr Skinner’s evidence, and as corroborated by the Person History document provided by the Secretary of the Department of Family and Community Services, is that whilst X was in Ms Corbin’s care this little girl’s life has been typified by abuse, neglect and family violence and exposure thereto.
The late Scott Mitchell, whilst Chief Magistrate of the Children’s Court, had often remarked his relish in “a good photo case”. Sadly, that continues as a common occurrence now augmented with social media and thus “a good Facebook case”. In this case, the photographs, to use the cliché, do in fact paint a picture more eloquent than a thousand words.
The emaciated condition of the family dog which required destruction and the state of disrepair and disarray of the mother’s home in which this little girl lived is such as to compel her removal by this Court if not by the Secretary of the Department of Family and Community Services. No criticism is raised in that regard as to the absence of prior removal. Circumstances had not deteriorated to the point where that intervention became necessary. However, this Court would be completely derelict in the discharge of its duties to allow, let alone even contemplate a child continuing in those arrangements.
As was remarked in the previous judgments and incorporated herein, if Ms Corbin is unable to meet the basic needs of a dog, her prospects of meeting the basic needs of a human child are fairly poor.
For all of those reasons and the reasons previously delivered and incorporated I am satisfied that it is entirely appropriate for the matter to conclude. Mr Skinner and X can now have the stability they require with clear and certain arrangements they can work with and through which Mr Skinner can address, on an ongoing basis, and, one would hope, wind back and ameliorate the disadvantage that X, in her short life, has already experienced.
I have every confidence on his evidence, which is unchallenged and which I thus accept, that this father with the support of his extended family and networks and including the entirety of his (omitted) community will continue to meet this little girl’s needs and do whatever is required and do those things selflessly and without concern for reward, other than the reward of seeing his young Aboriginal daughter grow up to take her place in civil society, achieving, as the legislation requires, her full potential, having regard to her inherent abilities and underlying skills.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 12 March 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Appeal
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Costs
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Procedural Fairness
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