Sutton and Gainnes - [2008] FMCAfam 1259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUTTON & GAINNES

[2008] FMCAfam 1259

FAMILY LAW – Undefended parenting – where DOCS has intervened – risk of harm to the child – father to have sole parental responsibility – time to be spent with the mother.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Applicant:

MR SUTTON

Respondent:

MS GAINNES

Intervener:

DIRECTOR-GENERAL OF THE DEPARMENT OF COMMUNITY SERVICES

File Number:

WOC 189 of 2007

Judgment of:

Altobelli FM

Hearing date:

30 July 2008

Date of Last Submission:

30 July 2008

Delivered at:

Sydney

Delivered on:

4 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms Young

Solicitors for the Applicant:

Heard McEwan

Respondent:

No Appearance

Counsel for the Intervener:

Ms Boyle

Solicitors for the Intervener:

Crown Solicitor

Counsel for the Independent Children’s Lawyer:

Mr Maurice

Solicitors for the Independent Children’s Lawyer:

Williamson Isabella

ORDERS

That all previous parenting orders be discharged.
That the child of the relationship, [X] born in 2000 live with the father.
That the father have sole parental responsibility for the child.
That the child spend time with the mother at such times as are agreed between the parties on a supervised basis and in any case, not more than once in each calendar month for not more than 4 hours.
That the time referred to in order 4 herein take place at the

Wagga Wagga Contact Service or such other service as is located within 50 kilometres of the child’s home, subject to the parents completing all documents necessary to enable time to take place at that service within 7 days of being requested to do so by the other parent.
If the Wagga Wagga Contact Service is unavailable then either

Mr S or Ms P shall supervise the mother’s time with the child.
That the mother may send to the child letters, cards or presents and the father shall ensure same are suitable for the child and if they are suitable, ensure that the child receives same, and encourages her to respond.
That the mother and father shall keep each other advised of their current postal address and telephone number.
That the mother be restrained from bringing the child into contact with Mr T.
That the mother communicate with the child on a supervised basis by telephone on one occasion per week, with the mother to be under the supervision of an appropriate contact centre with the mother to initiate communication in accordance with the availability of the Centre and on the provision of 48 hours notice to the father.
That service of the orders of the Court be effected by the father’s solicitor serving the orders upon Ms E within 7 days of the issue of a sealed copy.
Any further application in this matter, be it interim or otherwise initiated by or on behalf of the mother should be listed before Federal Magistrate Altobelli if practicable.

Notation

A. The Court notes that there is no evidence that the mother has undergone any form of rehabilitation which would be necessary prior to the mother seeking unsupervised time with the child.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

WOC 189 of 2007

MR SUTTON

Applicant

And

MS GAINNES

Respondent

DIRECTOR-GENERAL OF THE DEPARMENT OF COMMUNITY SERVICES

Intervener

REASONS FOR JUDGMENT

Introduction

These proceedings are in regards to the parenting arrangements for [X], who is eight years old. Her parents are Mr Sutton, the applicant in these proceedings, who is 46 years old, and Ms Gainnes, who is 36 years old. The mother, who originally participated in these proceedings, has chosen not to participate since March 2008. Accordingly, the matter has proceeded to undefended hearing. The Director-General of the Department of Community Services participated as intervener, for reasons which will be made clear, and [X] was represented by the Independent Children’s Lawyer.
The current proceedings were transferred from the Family Court in March 2007, and first came before me on 7 July 2007, however the proceedings date back to a transfer to the Family Court from Nowra Local Court in May 2006. Furthermore, it is clear from the affidavit and subpoenaed material that various legal proceedings in the criminal, family, and care jurisdictions have been on foot for the majority of [X]’s life. It is hoped that the resolution of these proceedings will provide the stability and security that have clearly been lacking in [X]’s life to date.

Background

Due to the substantial involvement of the police, the Department of Community Services and multiple courts in the lives of the parents and [X] following her birth, I include by way of background the chronology prepared by the father’s solicitor, which was most helpful in setting out the history of the parties’ relationship since [X]’s birth. I note that [X] has been in her father’s sole care since October 2007.

DATE	EVENT	SOURCE
1962	Father, Mr Sutton born
1972	Mother, Ms Gainnes born
1998	Parties commenced relationship
2000	[X] born
Dec 2000	Orders obtained by mother in Kiama Local Court	F’s Aff filed 15/6/07 Para 8
4/12/2001	Order made providing supervised contact for the father.	F’s Aff filed 15/6/07 Para 9
Dec 2002	Orders made by consent allowing that the father have contact every second weekend.
Feb 2002 – Aug 2002	Parties lived together in [T].	F’s Aff filed 15/6/07 Para 4
9/7/2002	Mother charged with assaulting the father. DVO taken out by the police.	F’s Aff filed 15/6/07 Para 12
Aug 2002	Mother left [T] with the child.	F’s Aff filed 15/6/07 Para 11
22/8/2002	Recovery Order granted to the father in the Local Court.	F’s Aff filed 15/6/07 Para 11
4/9/2002	Mother was granted residence on an interim basis.	F’s Aff filed 15/6/07 Para 11
13/9 – 15/12 2002	Father spent time with the child every weekend even though orders stated every second weekend.	F’s Aff filed 15/6/07 Para 13
11/12/2002	Maternal grandmother takes the child into her care from the mother.
13/12/2002	Assault matter before the Court. Assault charge dismissed as father refused to give evidence.	F’s Aff filed 15/6/07 Para 12
24/12/2002	Mother assaulted father. Father was charged with assault and malicious damage. Pleaded not guilty. Restraining order taken out on behalf of the wife.	F’s Aff filed 15/6/07 Para 14
January 2003	Mother takes out Apprehended Domestic Violence Order out against the father (2 years)
March 2003	Orders made by consent that [X] live with the father 8 days per month.	F’s Aff filed 15/6/07 Para 16
3/6/2003	Charges were dropped against the father.	F’s Aff filed 15/6/07 Para 15
4/7/2003	Mother assaults security guard at Nowra.
1/2/2004	Father openly admits breach of AVO when he goes out drinking with the mother. The mother was highly intoxicated and the police requested the service of mental health who refused due to her level of intoxication.
17/4/2004	Father advised by MGM that mother is going in to detox so father collects child and files for residence orders.	F’s Aff filed 15/6/07 Para 20
28/5/2004	Orders made that the child be returned to her mother.
January 2005	ADVO from 2003 expires
18/1/2005	Mother phones police and requests they take an AVO out against the father, simply because the prior one had expired – she is highly intoxicated at the time the police attend.
21/1/2005	Orders made in FCA Canberra that the child spend one week with each of her parents per fortnight. Father moves to [B] to assist with facilitation of the Orders.	F’s Aff filed 15/6/07 Para 151 F’s Aff of Mar 2007(referred to in ER)
1/6/2005	Father interviewed regarding making abusive telephone calls to the mother. Charges eventually dismissed as the mother is found to have misled the Court.
July 2005	Father moves to Cowra and consents to alternate weekend time with the child.	F’s Aff of Mar 2007 (referred to in ER)
1/7/2005	Mother alleges menacing phone calls from the father, when the police inform her they will check hers and the father’s mobile telephone records she withdraws her complaints.
4/10/2005	Mother allegedly abuses the paternal grandmother over the phone.
15/2/2006	Family Report in the FMC Canberra
Feb 2006	Orders in the FMC Canberra that the child reside with the mother and spend alternate weekends and half school holidays with the father.	Expert Report
March 2006	Father moves back to Nowra	F’s Aff of Mar 2007 (referred to in ER)
27/3/2006	DOCS report about child at risk – regarding drinking habits of the mother and new partner.	F’s Aff filed 15/6/07 Para 159
18/4/2006	Application to Nowra Local Court to vary Orders as there was a report that the child was at risk with the mother.	F’s Aff filed 15/6/07 Para 157
May 2006	Mother files Response seeking a dismissal of the father’s Application.	Expert Report
26/6/2006	Father report to DOCS re mother’s drinking.	F’s Aff filed 15/6/07 Para 161
June 2006	Mother advises father that she was going to Broken Hill and had left the child with a carer	F’s Aff of Aug 2006 (referred to in ER)
July 2006	Mother files Affidavit opposing change of Orders from Feb 2006. Father has conversation with MGM who was fearful of the child in the care of the mother.	Expert Report F’s Aff of Aug 2006 (referred to in ER)
23/8/2006	Mother again abused the paternal grandmother, this time for contacting DOCS.
25/8/2006	Father advised by DOCS the mother has left the child unattended.	F’s Aff filed 15/6/07 Para 165
Aug 2006	School contacts father to collect the child as she had severe headlice, the mother’s contact details were not current. The child discloses to the father that the mother had been assaulted by her current partner. Father files amended Application for the child to live with him and spend alternate weekends with the mother. Mother files Response seeking that the Father’s Amended Application be dismissed.	F’s Aff of Aug 2006 (referred to in ER) Expert Report Expert Report
29/10/2006	Mother fails to collect the child from Centacare at Nowra so the father takes the child home.
25/11/2006	Mother threatens self-harm and police are called. The child [X] did not appear to be present in this report.
15/2/2007	Contravention Application filed by the mother – claimed the father failed to return the child after contact.
19/3/2007	Mother attended school to pick up child but was so intoxicated that staff would not let her take the child.	F’s Aff filed 15/6/07 Para 168
12/4/2007	Father contacts child’s school and asks them to put his details as the child’s father on their files.	F’s Aff filed 15/6/07 Para 168
July 2007	Affidavit of Ms K (DOCS) – recommended updated Family Report be provided.	Expert Report
19/9/2007	Case Meeting at DOCS chaired by Ms K.
Oct 2007	Father amends his application asking the Court to make Orders that the child live with him and that he have sole responsibility. He seeks that the mother be supervised by DOCS. Further Affidavit of Ms K (DOCS) – seeking that child reside with the father and all contact with mother be supervised.	Expert Report Expert Report
22/10/2007	Department receives report alleging child was in risk of immediate harm - mother’s drinking while child swimming. Child gets slapped and knocked to the ground and repeatedly hit on the legs. Child goes into the care of the Father.	DOCS Aff
23/10/2007	Secondary Assessment by Ms M.
24/10/2007	ECPO granted
25/10/2007	ICL files Response to Application in a Case requesting the mother spend supervised time with the child once per week and on special occasions. DOCS files Application in a case intervening in proceedings and seeking same Orders as ICL.
29/10/2007	Father files Application in a Case in the same terms as the ICL and Intervener. Orders made that the child live with the father and that the father have sole parental responsibility. That any time spent with the mother be supervised and take place once per week.
12/11/2007	Orders made in FMC Wollongong adjourning the matter for final hearing on 30 July 2008
18/11/2007	Mother makes several unwanted and harassing phone calls and text messages in reaction to the Court Orders.
11/12/2007	Affidavit and Response of the mother sworn
16/1/2008	Interviews with Dr Quadrio for Expert Report. Mother does not attend.
18/2/2008	Child indicates that she does not wish to spend time with her mother when in a session with Ms M. Child refers to the mother as “[first name omitted]”
11/3/2008	Expert Report released to FMC
13/3/2008	Subpoena filed by the ICL issued to Shoalhaven District Hospital, NSW Police, Nowra Community Health Service.
8/4/2008	Father files Application in a Case requesting permission to relocate.
30/4/2008	INTERIM HEARING Previous orders discharged. Orders that the child live with the father, that the child be permitted to relocate. That the mother spend time with the child as agreed but on a supervised basis.

Due to the mother’s lack of involvement in these proceedings, the above chronology stands unchallenged, and is accordingly accepted as being a comprehensive outline of the events pertinent to the father’s application.
As can be seen from the above chronology, [X]’s life has been characterised by regular incidents of domestic violence, change of residence and care arrangements, police, court and DOCS involvement. [X] has had a very unsettled, unpredictable and unstable existence for the entirety of her short life. The chronology alone would give rise to concerns for [X]’s wellbeing, however in reading the evidence referred to above, a very disturbing picture of abuse and neglect emerges.
Of particular concern was the incident on 22 October 2007 in which the mother was alleged to have struck [X] repeatedly. This incident lead to both Police and DOCS involvement, resulting in the Emergency Care and Protection Order placing [X] in her father’s sole care. This order was brought to my attention soon thereafter, with DOCS filing to intervene, seeking orders that [X] live with her father. The matter came before the Court on 29 October 2007, and on that occasion, due to the evidence I shall consider at greater length below, I found that the mother had in fact perpetrated this assault on [X]. On the evidence, it was clear that if [X] remained in the mother’s care she would face significant risk of harm. Accordingly, I made orders at that time for [X] to live with her father and spend supervised time with the mother.
I note that following these orders, the mother began to disengage with these proceedings. The mother has not participated in these proceedings since March 2008. She did not participate in the preparation of Dr Quadrio’s report. The mother reported to both the father and the Independent Children’s Lawyer that she intended to relocate to Tasmania. Whether she has, in fact, relocated is uncertain. At the time the matter came before the Court for undefended hearing, the mother’s location was unknown, and neither the parties nor the mother’s relatives were able to provide any assistance as to her contact details.

Issues

The issues in this matter are quite serious, and can be summarised as follows:
a)Should the father have sole parental responsibility for [X]?
b)What time, if any, should [X] spend with her mother?

Evidence

The father’s affidavit evidence, along with that of the DOCS caseworker Ms K, and the subpoenaed records of DOCS and the NSW Police form the basis of the lay evidence in this matter. Along with this, an expert’s report was prepared by Dr Quadrio and released on

11 March 2008
. The mother has not filed any affidavit material in these proceedings since July 2006.

Expert’s Report

Dr Quadrio’s report was of significant assistance in this matter, as she had comprehensively reviewed all affidavit and subpoenaed evidence in this matter. I do note, however, that she did not interview the mother as the mother did not attend at any of the arranged interview times.
The report includes details of interviews with the father, one of his two older sons from a previous relationship, [Y]; the father’s ex-wife,

Ms S; the paternal grandmother, Ms M; the paternal uncle, Mr S; and the father’s cousin and her husband, Mr & Ms L. Dr Quadrio found that they were a very close and supportive extended family group, all of whom had good relationships with [X].
In his interview with Dr Quadrio, the father detailed the family history in much the same terms as his affidavit evidence. He spoke of the mother’s chronic alcohol abuse, and her admissions to psychiatric wards at Wagga and Shellharbour hospitals at various times during [X]’s life. These admissions are noted in the mother’s copious medical records which Dr Quadrio read as part of the subpoenaed material. The father stated that the mother was diagnosed as having bipolar disorder, but refused to take the prescribed medication. He went on to give a lengthy history of apprehended violence orders as detailed in the chronology, both for the protection of himself and [X], and for the protection of the mother. Where the AVO was taken out by the mother against him, the father says he consented to said order as it was easier than fighting it. On the father’s evidence, both in affidavit form and in interview with Dr Quadrio, it appears that many of the mother’s violent outbursts and incidents of self-harm seem to be linked to her alcohol abuse.
On the father’s recollection, DOCS had become involved with [X] when it was found that she and the mother’s son from a previous relationship, [Z], were being left at home unattended for several hours each day after school. DOCS involvement continued when the principal of [X]’s school refused to let the mother collect her as the mother was highly intoxicated. His evidence in this regard is corroborated by DOCS records of these events.
The father also stated that the mother changed residences on a regular basis, and had changed [X]’s school as well without notifying him. He told Dr Quadrio that when he contacted the [school omitted] she had attended, he found [X] was no longer enrolled there and had left $2,000 in arrears of unpaid fees.
Mr Sutton told Dr Quadrio that since [X] had come to live with him following the DOCS intervention in October 2007, [X]’s school work has improved, and she has begun swimming and gymnastics lessons. She has also spent significant time with her brothers and extended family.
The father further stated that he had received numerous abusive phone calls from the mother, who usually appeared to be under the influence of alcohol. He alleged that the mother made threats against both himself and Ms K, [X]’s DOCS caseworker.
The father acknowledged that in the past he has been too lenient in assisting the mother and facilitating her relationship with [X], but says that he now understands that he has to prioritise [X]’s wellbeing over the mother’s requests for assistance. Furthermore, he states that he does not think [X] should have any unsupervised time with her mother until the mother resolves her alcohol and substance dependencies.
Interviews with the father’s extended family revealed that [X] has close and loving relationships with all those who were interviewed, in particular her grandmother, half-brothers, and her brothers’ mother, who [X] said is ‘a good mum, she lets me call her mum. I wish she was. She is very kind and special’, when questioned by Dr Quadrio.

Dr Quadrio’s report was favourable with regards to these relationships and the support and care they offer [X] now and in the future.

Dr Quadrio interviewed [X] alone, and found that [X] had very clear memories of traumatic experiences whilst in the care of her mother, including seeing her mother slit her wrists at age 3, being smacked, and being cursed at. [X] reported having bad dreams, wetting the bed, and being jumpy. Dr Quadrio noted that [X] was ‘quite vigilant to noise. She has the symptoms of a child who has [been] exposed to a traumatic household’. [X] described her mother as ‘a drunk person, an alcoholic, not a very good mum; she’s cruel, she smacks me and calls me f and c’. In contrast, [X] described her father and his extended family in very positive, affectionate terms. Unsurprisingly, [X] expressed a wish to live her with father.
Dr Quadrio made a number of findings in her report. She found that there was a substantial risk of physical and psychological harm to [X] should she return to her mother’s care, and noted that [X] already exhibits symptoms of Post Traumatic Stress Disorder. Dr Quadrio found that [X] was alienated from the mother for obvious reasons, and has a strong attachment to her father, who has the ability to provide a safe and nurturing environment for her. Dr Quadrio stated that the father is willing and able to facilitate a relationship between [X] and her mother, now that he is aware that [X]’s safety is more important than supporting the mother.
Dr Quadrio further advises that there is no benefit to [X] to remain in contact with her mother, especially given that at the time of the report the mother was reportedly moving to Tasmania, leaving the child in the father’s care. This is especially the case in light of Dr Quadrio’s finding that [X] has symptoms of Post Traumatic Stress Disorder.
Dr Quadrio’s report was accepted in its entirety by the Father, the Independent Children’s Lawyer and DOCS. Accordingly, I accept the observations and recommendations therein. The report certainly gives weight to the concerns expressed by the father and the Independent Children’s Lawyer regarding the risks to [X] whilst in her mother’s care, and the harm she has already suffered.

Evidence of Ms K

Ms K, [X]’s DOCS caseworker, swore three affidavits in the proceedings. The first, sworn 3 July 2007, was in support of the Department’s application to intervene. The second, filed 26 October 2007, was in relation to the incident which precipitated [X] being removed from her father’s care. The third, filed 25 June 2008 was in support of the father’s application to relocate with [X] to [T] from [B].
Her first affidavit confirmed that whilst DOCS believed [X] was at risk of harm as a result of her mother’s alcoholism, it did not believe she was at immediate risk of harm. Ms K’s second affidavit, however, sets out a number of incidents that came to light leading to the removal of [X] from her mother’s care.
Ms K details a number of conversations with [X] in which [X] disclosed that she had seen her mother and her mother’s then partner, Mr T, involved in physical altercations on several occasions. [X] also disclosed that her mother often cursed at her, in terms such as those that were disclosed to Dr Quadrio.
Ms K states that in a visit to the mother’s home in September 2007 the mother was affected by alcohol and there was an empty wine bottle in the kitchen sink which the mother admitted to having consumed over a two hour period prior to the visit. The mother said to Ms K on this occasion words to the effect of “I know that I need assistance and my psychologist Mr L has diagnosed me with Post Traumatic Stress Disorder”.
Ms K was not the caseworker who interviewed [X] with regards to the incident on 22 October 2007 which resulted in DOCS urgent application before this Court. However, she had access to the file notes and interview notes made by Ms M who interviewed [X] along with Ms D.
[X] had been taken to a police station earlier that day by an associate of her mother’s, Ms F. The mother and her friend had been consuming alcohol at the Nowra Motor Inn when the mother hit [X] twice in the face, and then repeatedly on the legs after knocking [X] over. Ms F walked [X] to the Nowra police station, while the mother continued to try to hit [X]. The interviews with both Ms F and [X] referred to in

Ms K’s affidavit with annexed file notes both record a similar version of events.
Following this incident, DOCS applied for an Emergency Care and Protection order on 24 October 2008, placing [X] in her father’s care. Subsequently DOCS applied before this Court for interim orders for [X] to live with her father. Such orders were made on 12 November 2007.
Ms K’s final affidavit records the Department’s position following [X]’s move to the full-time care of her father. Ms K records that she has made enquiries of [X]’s father, grandmother and new school principal, all of whom confirm that [X] has adjusted well to living in [T] with her father and his family. Ms K states that the Department holds no concerns for [X]’s safety and wellbeing whilst in her father’s care.
While acknowledging [X]’s resistance to contact with her mother,

Ms K stated that it was her view as a caseworker that it would be of benefit to [X] to maintain some contact with the mother and the mother’s family, although this should be on very limited and carefully supervised basis unless the mother addresses the concerns raised in

Dr Quadrio’s report.
Ms K’s evidence was useful in adding to the picture painted in

Dr Quadrio’s report regarding [X]’s experiences while in the care of her mother. If Dr Quadrio’s report had not fully convinced me that [X] was at serious risk of harm in her mother’s care, then reading the disturbing transcripts of the interview with [X] in which she disclosed the abuse her mother inflicted on her certainly would. I have no reason to doubt the evidence contained within Ms K’s affidavits, particularly as they attach the file notes and interview transcripts of DOCS involvement with this family of the course of the last two years.

Evidence of Mr Sutton

The father’s evidence largely deals with the lengthy history of the problems in this family. He filed affidavits on 11 July 2008, 8 April 2008, 29 October 2007, 15 June 2007 and 25 May 2007.
His affidavits, all but the last two of which were prepared whilst he was self-represented, set out the incidents as detailed in the chronology, as well as his concerns for [X] due to the mother’s alcoholism, the verbal abuse and neglect [X] reported experiencing while in her mother’s care, and the domestic violence [X] witnessed between her mother and her mother’s partner Mr T. His final two affidavits relate to the living and care arrangements for [X] since she came into his care, and following their relocation to [T].
His affidavits accord with the findings of the Expert’s Report and the evidence of Ms K. I find that the father and [X] have a warm and loving relationship, and that [X] is well cared for by him and his extended family. Furthermore, she is settled in her current school and it is her expressed wish to remain living in [T] with her father.
I note that in the past the father has been at pains to try and assist the mother with her various issues, at times to [X]’s detriment. He has been overly willing to compromise and allow her to have a great deal of flexibility in arrangements regarding [X]’s care. However, I am satisfied that the importance of putting [X]’s safety and wellbeing ahead of that of the mother has been impressed upon him, especially since [X] was removed from her mother’s care after the incident at the Nowra motel.
I accept the father’s evidence also as it relates to supporting a future relationship between [X] and her mother. It is clear that the father has been willing to allow and facilitate this relationship in the past, and, subject to the restrictions which both Dr Quadrio and Ms K have advised are necessary for [X]’s safety, I am satisfied that if the mother and the child do not have an ongoing relationship, it will not be the fault of the father.

Applicable Law

In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B 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.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
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.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)     Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)     The primary considerations are:
(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)     Additional considerations are:
(a)     any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)     the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)     other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)     the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)     the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)     if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)     any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)     the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)    any other fact or circumstance that the court thinks is relevant.

Application of the Law

Firstly I consider s.61DA, in which there is a presumption of shared parental responsibility. In this matter it is submitted by all parties bar the mother that such a presumption is rebutted. Clearly, in circumstances where the mother’s whereabouts are not known, and where the mother poses a serious risk to the child’s physical, mental and emotional wellbeing such as in this case, and where there are clear examples of family violence and abuse of the child, it would not be at all in the child’s best interests for her parents to have shared parental responsibility. Accordingly, I make an order that the father have sole parental responsibility for [X]. I am satisfied that he will act in a child focussed manner in exercising that responsibility. In light of this finding, I will not consider s.65DAA.

Benefit to [X] of a Meaningful Relationship with her Mother

Section 60CC(2)(a) requires me to consider the benefit to [X] of a meaningful relationship. In this context, it can be argued that [X] does not have a meaningful relationship with her mother, if ‘meaningful’ is taken to refer to a positive relationship. Given the psychological harm that Dr Quadrio has found the mother has inflicted on [X], the physical and verbal abuse I have found [X] was subjected to by the mother, and the mother’s relocation to parts unknown, I consider that [X] does not, in fact, have a positive meaningful relationship with the mother. However, as Ms K has stated that extremely limited, controlled and supervised time with the mother may be of assistance in [X]’s psychological development (even if only to prevent [X] from developing a false, idyllic idea of her mother in future), I am prepared to make very restrictive orders allowing the mother to spend time with [X]. In the event the mother chooses to take advantage of these orders, I am satisfied the orders contain the safeguards required to protect [X] from further harm.

Need to Protect [X] from Harm

There is clearly a need to protect [X] from psychological and physical harm, and neglect, abuse and family violence (s.60CC(2)(b)). As is obvious on the evidence above, her short life has been characterised by her mother’s alcoholism, verbal abuse, neglect and violent outbreaks. There is no evidence that she will be exposed to any of these things while living with her father, but rather the opposite – Dr Quadrio’s report indicates that she will be well cared for not only by her father, but by his close-knit extended family. The orders I make will reflect the very serious and very real need to protect [X] from further harm.

Section 60CC(3) Considerations

As [X] is only 8 years old, usually limited weight would be given to her views. In this case, [X] has expressed very strong views to both

Dr Quadrio and her social workers regarding spending time with her mother. She is adamant that she does not want to see or talk to her mother, which one can understand having viewed the evidence discussed above. However, as there is evidence in this case that it may prove detrimental to [X] in the long term to terminate all contact, I will make orders allowing for very limited contact to occur, rather than acceding to [X]’s wishes. I note that [X] might very well get her wish should the mother choose not to initiate contact (s.60CC(3)(a)).
As previously discussed, [X] has healthy, supportive, beneficial relationships with her father and his extended family. In contrast her relationship with her mother can be characterised as abusive, and likely to remain so unless the mother takes steps to deal with her alcohol and violence issues (s.60CC(3)(b)).
I am satisfied that the father will facilitate the mother having contact with [X] in accordance with the orders I make. He has shown willingness in the past to accommodate the mother with regards to spending time with the child, and I believe he is now able to do so whilst protecting [X] from harm. I cannot say the same about the mother (s.60CC(3)(c)).
The orders I make will not change the arrangements which have been in place since the Emergency Care and Protection Order was made in October 2007. [X] will continue to remain in her father’s care, and her time with the mother will not be practically affected as the mother has chosen not to see [X] for some months now. On the evidence, there will not be any negative effects as a result of the making of an order that [X] live with the father and have heavily circumscribed contact with the mother (s.60CC(3)(d)).
I am satisfied that the orders I make will not cause undue practical difficulty or expense. If the mother has indeed relocated to Tasmania, then she will need to pay travel expenses to spend time with [X], however under the circumstances, I do not consider this to be a bar to the making of these orders. This is especially the case in circumstances where the mother’s current whereabouts is unknown. The once-weekly phone call the mother is permitted to make poses no undue expense or difficulty (s.60CC(3)(e)).
The father’s parenting capacity is clearly far greater than that of the mother. He is able to provide for her needs in a safe and supportive environment. The mother has the primary care of [X] for seven years and has not been able to demonstrate her ability to do so, instead subjecting [X] to violence, verbal abuse and neglect. It is inexcusable that this has gone so far as to result in [X] being diagnosed with Post-Traumatic Stress Disorder at the age of 8. The mother’s attitude to parenting has been extremely poor, and it is clear that she places her own wants and needs above those of [X]. She has been given ample opportunity over the last eight years to obtain help to address her alcohol abuse issues, and has failed to do so. I am convinced that the father will care for [X] far better than the mother has in the past, particularly with regards to protecting her from violence (ss.60CC(3)(f),(i),(j) and (k)).
It is hoped that the orders I make will limit the likelihood of further proceedings between the parties as regards [X] as there should be little room for parties to misinterpret orders, and if the mother’s behaviour does not change rather dramatically, there will be no need to revisit these orders (s.60CC(3)(l)).

Conclusion

It is disturbing that with the high level of involvement of the Department of Community Services, the NSW Police, and various Courts in the lives of this family, the emotional, psychological and physical harm that [X] has suffered was not prevented. It is hoped that these orders will provide [X] with the safety and stability she has clearly lacked in her young life to date.
If the mother chooses to try to repair her relationship with [X], there is scope for her to do so, but it will be up to her to make the effort and remedy the damage she has done. It would serve the mother well if she was to read the recommendations contained in Dr Quadrio’s report and avail herself of the assistance she clearly needs to deal with her alcohol abuse issues.
I note that on 4 August 2008, after the final orders in this matter were made, the mother filed a notice of discontinuance in these proceedings.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Monique Robb

Date: 4 December 2008