Tarelli & Langley and Anor
[2017] FamCA 708
•14 September 2017
FAMILY COURT OF AUSTRALIA
| TARELLI & LANGLEY AND ANOR | [2017] FamCA 708 |
| FAMILY LAW – CHILDREN – Interim Orders – Best Interests – Where the Department of Family and Community Services has intervened in the proceedings – Where the Department urgently seeks parental responsibility and care of the child – Where there are serious concerns as to the mother’s mental health and personality functioning – Where objective evidence reveals a risk that the mother’s parenting capacity is diminished by her mental health issues and personality dysfunction – Where the child has a limited relationship with the father – Where the father has been assessed as being able to provide for the needs of the child – Where the Department proposes to supervise the father’s care of the child – Where it is appropriate to make orders for the Department to have parental responsibility and determine the child’s live with arrangements – Orders made accordingly. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 69ZN, 91B |
| Aldridge & Keaton [2009] FamCAFC 229 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Banks & Banks [2015] FamCAFC 36 Deiter & Deiter [2011] FamCAFC 82 Donnell & Dovey [2010] FamCAFC 15 Eaby & Speelman (2015) FamCAFC 104 Farmer & Rogers [2010] FamCAFC 253 George & George [2013] FamCAFC 182 Goode and Goode [2006] FamCA 1346 Jarrah & Fadel [2014] FamCAFC 14 Marvel v Marvel[2010] FamCAFC 101 Mazorski v Albright[2007] FamCA 520 McCall & F [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 Potts & Bims [2007] FamCA 394 Valentine & Lacerra and Anor [2013] FamCAFC 53 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Mr Tarelli |
| RESPONDENT: | Ms Langley |
| INTERVENOR: | Secretary, Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Robertson |
| FILE NUMBER: | PAC | 4311 | of | 2014 |
| DATE DELIVERED: | 14 September 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 8 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shaw |
| SOLICITOR FOR THE APPLICANT: | B David & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Hazelwood |
| RESPONDENT: SELF‑REPRESENTED LITIGANT | In person |
| COUNSEL FOR THE INTERVENER: | Ms Mahony |
| SOLICITOR FOR THE INTERVENER: | Lea Armstrong, Crown Solicitor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders Made on 8 September 2017
Leave is granted to the Intervener, the Department of Family and Community Services file in Court an Application in a Case with that application in a case returnable instanter.
Leave is granted to the Intervener, the Department of Family and Community Services file in Court and rely on an affidavit of Ms F sworn 6 September 2017.
Pending further order, the Respondent mother not attempt to contact or communicate with the child or any carer with whom the child is with today in any way whatsoever pending further order.
Leave is granted to the all parties and the Independent Children’s Lawyer to have access to all documents produced on subpoena in these proceedings.
The oral application by the mother for adjournment of the Intervener’s Application in a Case is dismissed.
In Respect Of The Application Filed On 8 September 2017 By The Intervener, Department Of Family And Community Services, It Is Ordered That Pending Further Order
The Minister for Family and Community Services have sole parental responsibility for the child, D, born … 2013.
The child shall live with as directed by the Secretary, Department of Family and Community Services or his delegate.
The child shall spend time with the mother, Ms Langley at time and for a duration as directed by the Secretary or his delegate.
The mother is hereby restrained by injunction from entering upon or approaching premises where the child may reside from time to time, any educational, day care or preschool attended by the child and any venue where the child is participating in extra-curricular activities.
The Court Notes That
In respect to the above orders the Secretary’s delegate proposes the child to live with the father, Mr Tarelli, and it is proposed the child will continue to live with him pending the Secretary’s delegate conducting a further assessment of him and his partner.
It is the intention of the Secretary to seek expert psychological guidance in relation to formulating the appropriate time for the child to spend with the mother and upon what conditions that the time shall take place including supervision, frequency, duration and location and the suspension of any time in the best interests of the child.
Leave granted to the ICL to provide a full copy of the Single Expert Report to the mother’s treating health practitioner Dr G, Suburb G, Psychiatrist.
It Is Further Ordered That
Order 3 made on 20 July 2017 be amended in that the mother shall file and serve one consolidated affidavit of her evidence in chief and one affidavit from each of the witness on which she relies by no later than close of business on 16 October 2017.
Order 4 made on 20 July 2017 be amended in that the father shall file and serve any further short updating affidavit material to be relied on by no later than the close of business on 16 October 2017.
Order 5 made on 20 July 2017 be amended in that the Intervener file and serve one consolidated affidavit of evidence subsequent to the affidavit of the case worker filed December 2016 for the trial by no later than the close of business on 16 October 2017.
Order 6 made on 20 July 2017 be amended in that each of the parties mother and father file and serve an updated Financial Statement by no later than close of business on 16 October 2017.
Until further order each party Ms Langley born … 1974 and Mr Tarelli born … 1978, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child, D born … 2013 from the Commonwealth of Australia for a period of a period of 2 years from this date or until further order of the Court whichever is the earlier.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child , D, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period or until the Court orders its removal.
The mother’s Application in a Case filed 8 September 2017 is stood over to the primary trial at 10.00am on 23 October 2017.
The Court Notes That
The mother’s treating mental health practitioner Dr G of Suburb G is unavailable to give oral evidence on the proposed trial dates and it is expected that a discrete time may be allocated for him to give oral evidence as soon as practicable after the trial dates if he is required for cross-examination.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tarelli & Langley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4311 of 2014
| Mr Tarelli |
Applicant
And
| Ms Langley |
Respondent
And
| Secretary, Department of Family and Community Services |
Intervener
REASONS FOR JUDGMENT
On 8 September 2017 in the context of an urgent application by the Secretary, Department of Family and Community Services interim parenting orders in relation to the child D born in 2013 were made late in the day.
The parties were advised that reasons for judgment would be delivered shortly thereafter. These are those reasons.
Background
The primary proceedings in this matter relate to two issues, firstly appropriate parenting orders in relation to the child of the applicant father and respondent mother, the child, and secondly the property adjustment as between the applicant and respondent.
The proceedings were commenced by the applicant father by application filed 10 September 2014. Since commencement of the proceedings they have occupied significant judicial time.
Proceedings were listed for interim hearing in the Federal Circuit Court of Australia on 23 March 2015. On that day the Court ordered that the father and mother be restrained from removing the child from the Commonwealth of Australia and that the child’s name be placed on the airport watch list. Otherwise, the parties were ordered to attend upon the K Contact Service for the purposes of being assessed as to the suitability for the provision of supervised time between the father and the child. It is noted that at this time the child was just two years of age.
On the same day the Court having concerns as to the child’s circumstances requested that the Secretary of the Department of Family and Community Services, NSW (“the Secretary of the Department”) intervene in the proceedings.
8 July 2015 and thereafter
Subsequently on 8 July 2015 the Secretary of the Department was granted leave to intervene in the proceedings. Otherwise, on that day interim parenting orders were made that in summary provided:
a)That all previous parenting orders save for the airport watch list order be discharged.
b)That the child live with the mother subject to the following conditions:
i)that the mother permit the Secretary to conduct random home visits to the premises at which the child resides;
ii)that the mother do all things necessary to ensure that the Secretary may meet and talk with the child as and when the Secretary or his delegate may choose;
iii)that the mother advise the Secretary of any intention to move from her current residence.
c)That the child spend supervised time as arranged by the Secretary with the father on Saturdays between 10.00 am and 11.00 am for four consecutive Saturdays and thereafter as directed by the Secretary but for not less than one hour per week with the Secretary to make arrangements for collecting and returning the child to the mother.
d)That the mother and father cooperate and follow all reasonable directions of the Secretary including:
i)that the child is not left alone at any time when the child is in their respective care;
ii)that they do all things necessary to ensure that the child attends all appointments with health professionals, counsellors and/or therapists as may be requested by the Secretary;
iii)accept all reasonable referrals made by the Secretary for the child to attend such programs or services as referred to by the Secretary;
iv)ensure that the child attends all services or persons as referred to by the Secretary;
v)accept all reasonable referrals made by the Secretary for the mother and father to attend programs or services;
vi)provide all authorities necessary to enable the Secretary to obtain information from and/or communicate with all healthcare providers and counsellors/therapists for the mother, the father and the child.
e)That the father be restrained from attending on, approaching, or contacting by any means for any purpose the mother, the mother’s home, the maternal grandmother and the child’s child care centres and employees of the child care centre.
f)That the mother be restrained from attending on or approaching the father during such times as the child is spending supervised time with the father or in circumstances where the child is in the presence of the father.
g)It was otherwise noted that further supervised time spent with the child by the father will occur as directed by the Secretary after consultation with a Community Services psychologist.
Proceedings were transferred to this Court on the same day.
It is readily apparent by reason of orders made on 8 July 2015 that the Department had significant ongoing concerns in relation to the welfare of the child living in the primary care of the mother.
Subsequent to transfer of the proceedings to this Court, an order was made on 14 September 2015 for the appointment of Dr H, clinical psychiatrist, to prepare a single expert report. Such order was subsequently renewed on 11 December 2015.
It was noted by the Court on 11 December 2015 that there were difficulties in relation to the mother making the child available for supervised time with the father but there was no application made to vary or discharge the relevant orders.
On 15 February 2016 it was relevantly ordered by the Court:
3.In the event of the Department making arrangements for the child’s time with the Father on a supervised basis as provided for in Order 3(v) of the orders made on 8 July 2015 and in the event that the Mother does not make the child available for such time without reasonable excuse the Mother shall upon receiving notification from the Department as to the fees thrown away by reason of the child’s non-attendance pay those fees to the Department within 7 days of receiving such notification.
4.The operation of the previous order be suspended until Friday 11 March 2016 noting that if prior to that date the Mother makes an application by way of application in a case supported by affidavit seeking to suspend the operation of the subject order then the prior order will remain suspended pending further order of the Court.
The report from the Single Expert became available in July 2016 and on 18 July 2016 orders were made as follows:
1.Pursuant to rule 15.03 of the Family Law Rules 2004, copies of the report by [Dr H] dated 27 June 2016 may be given to:
(a)the lawyer(s) for the parties; and
(b)the lawyer(s) representing the child in the proceedings under s 68L of the Act.
2.Except with the Court’s permission, no person is to release the report, or provide access to the report, to any person other than those mentioned in paragraphs (a) or (b) of the previous order.
UPON NOTING THAT THE ORDERS PROPOSED BY THE INDEPENDENT CHILDREN’S LAWYER ARE NOT OPPOSED BY THE MOTHER AND OTHERWISE BY CONSENT IT IS ORDERED THAT:
3.The legal representative for each of the parents is at liberty to give their client a general outline of the recommendations of [Dr H] in his report of 27/06/2016 (“The report”).
4.The mother shall be provided a copy of the report only after she has conferred with her solicitor about its contents, with a support person present and has in place arrangements to see her therapist [Ms L] concurrently or immediately after the conference with her solicitor.
5.The father shall be provided with a copy of the report after the mother’s solicitor confirms to the other parties compliance with order (2).
6.The report is released to the Secretary’s delegate.
7.Leave is granted to the Independent Children’s Lawyer (“ICL”) to provide a copy of [Dr H’s] report to [Mr M] and to liaise with him about whether he is willing to work with the father as contemplated by [Dr H] at paragraph [547].
8.If [Mr M] is not able to assist as contemplated by [Dr H] then the ICL shall consult with [Dr H] for another recommendation.
9.The father shall engage with either [Mr M] or such other therapist as recommended by [Dr H] and shall remain engaged with him for so long as recommended by the therapist.
10.The mother shall continue her engagement with [Ms L] for so long as is recommended by the therapist.
11.Leave is granted to the ICL to provide a copy of [Dr H’s] report to [Ms L], [Mr M] and any other therapist who is working with either party.
12.The Court notes that the 3 month period referred to by [Dr H] at paragraph [555] commences upon the mother receiving a copy of the report.
13.Noting the terms of the orders made today leave is granted to the ICL to make application to the Court in chambers to relist the matter when the ICL is satisfied that the matter is appropriate for relisting.
14.Leave is granted to the ICL to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
10 October 2016: The first trial directions and thereafter
On 10 October 2016 the matter was again before the Court and on that day trial directions were made for final hearing. The parties were to file their trial affidavits by no later than Friday, 16 December 2016. Proceedings were listed for a compliance check in relation to the trial directions before a Registrar on 23 January 2017.
On 23 January 2016 it was noted by the Registrar that the mother had not complied with the trial directions as to the filing and service of her affidavits. The mother was granted an extension to file and serve her affidavits by 28 February 2017 with the matter listed for further compliance check on 1 March 2017. Otherwise, proceedings were listed for a seven day trial commencing on 1 June 2017.
On 1 March 2017 the matter was again before the Registrar. The mother had again failed to file her affidavit material and sought to defer proceedings until after her application for legal aid had been determined. The Registrar ordered that the mother file and serve her trial affidavits and her financial statement by no later than 20 April 2017. The proceedings were adjourned for judicial case management to 26 April 2017.
On 26 April 2017 the mother informed the Court that she had a pending appeal in relation to a refusal to grant her legal aid. That appeal would not be determined in sufficient time for either her legally aided lawyer to prepare for trial or for her, in the event that her appeal was unsuccessful, to prepare her trial material. The trial dates commencing 1 June 2007 were vacated with fresh dates to be allocated as soon as practicable.
Proceedings were thereafter listed for further judicial case management on 20 July 2017.
20 July 2017: The second trial directions
On 20 July 2017 the Court relevantly made the following orders:
1.The proceedings are adjourned for hearing for five (5) days commencing 10.00am on Monday, 23 October 2017.
2.In the event that the mother seeks at trial orders other than as set out in any current Response, the mother file and serve any amended Response upon which she intends to rely by no later than Friday, 11 August 2017.
3.The mother file and serve one consolidated affidavit of her evidence in chief and one affidavit from each of the witnesses upon which she relies in support of the orders sought by her with such affidavits to be in compliance with rule 15.12 of the Family Law Rules 2004, by no later than Friday, 1 September 2017.
4.The father file and serve any short updating affidavit by him noting that he has filed his trial affidavit on 16 December 2016 and 3 March 2017 by no later than Friday, 1 September 2017.
5.The Intervener, Department of Family and Community Services file and serve any updating affidavit material to be relied upon by the Department by Friday, 1 September 2017.
6.Each of the parties file and serve an updated Financial Statement by no later than Friday, 1 September 2017.
Proceedings were listed for a judicial compliance hearing on 8 September 2017.
The mother’s Application in a Case and her oral application for adjournment
On 11 August 2017 the mother filed an Application in a Case seeking an order:
that the trial listed for 5 days in the week commencing 23 October 2017 in the Family Court of Australia be vacate (sic) pursuant to the Family Law Rules 2004 rule 16.03.
The application was listed for 8 September 2017. The mother’s application was substantially on the basis that her proposed solicitor and barrister were unavailable to represent her at trial on those dates and that her treating psychiatrist was also unavailable for cross examination at that time.
The mother also made application for the proceedings otherwise before the Court by reason of the Department’s application referred to below to be adjourned.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14.
In Jarrah Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11]:
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that, given the history of that litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
Such is the circumstance in this matter. There are significant issues as to the mother’s mental health and her capacity to care for the child. The issues are such that the Department of Family and Community Services has chosen to intervene in the proceedings. The mother has already procured the abandonment of a previous trial fixed for hearing for seven days. She now seeks to do so again with the prospect that the matter would not then be heard until some months into the new year. Meanwhile the child would remain in most problematic circumstances in the mother’s primary care and spend no time with the father as the mother simply refuses to comply with interim orders.
In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; e.g. it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
…
The Full Court then said:
201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.
202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. ..
In the circumstances, as discussed in [29] above, the mother’s application for adjournment of the Department’s application was dismissed.
Her application to adjourn the trial was stood over to the first day of the trial to be considered by the trial judge. She, of course, is at liberty to make such further or other application as she may be advised to the trial judge.
The Department’s present application: 8 September 2017
On 8 September 2017 the Secretary of the Department sought and was granted leave to file in Court an Application in a Case together with an affidavit in support sworn by Ms F, departmental caseworker.
The application sought orders as follows:
a)that this application be heard instanter;
b)that the Minister for Family and Community Services exercise sole parental responsibility for [D] born … 2013;
c)that [the child] live with as directed by the Secretary, Department of Family and Community Services;
d)that [the child] spend time with the mother [Ms Langley] at times and for a duration as directed by the Secretary or his delegate;
e)that unless otherwise agreed by the Secretary or his delegate the mother is hereby restrained by injunction from entering or approaching:
i)within 200 metres of the residence of [the child];
ii)within 200 metres of any educational institution attended by the child;
iii)within 200 metres of any venue where [the child] is participating in extracurricular activities.
Otherwise, the application sought Notations in the following terms:
a)the Secretary’s delegate proposes to place the child to live with [Mr Tarelli] (the father) and it is proposed that [the child] continue to live with him pending the Secretary’s delegate conducting a further assessment of him;
b)it is the intention of the Secretary to seek expert psychological guidance in relation to formulating the appropriate time, for [the child] to spend with his mother, and the conditions that the time shall take place including supervision, frequency, duration and location and the suspension of any time if it is in the best interests of [the child].
Both the ICL and the father supported the orders sought by the Department.
The Evidence
The Department relied upon the affidavit of Ms F, caseworker, filed 8 September 2017.
Engagement with the mother
Ms F has been responsible for the day-to-day casework in relation to the child and in the course of preparation of her affidavit she has had access to the Department file in relation to the child including a risk of harm reports received by the Department.
On 7 March 2017 Ms F together with a Ms N, manager casework, attempted to visit the mother and the child at the mother’s home at Suburb C. Prior to such a visit the child had not been sighted by the Department since 30 April 2016 and the Department had become aware that the child had ceased attending the O Child Care Centre after being removed from that centre by the mother. There was no response at the mother’s home and an attendance card was left by the case workers requesting the mother contact them.
On 17 March 2017 a risk of significant harm report (ROSH) was made to the Department. The reporter stated that the mother had made inappropriate comments in front of the child such as “is it okay for one child to die” while gesturing at the child. The child said to the reporter “my mummy is always sad”. There were reported concerns as to the mother’s level of distress. It was further reported that the mother had been observed on a number of occasions and in the presence of the child lying in a foetal position resulting in an ambulance being called.
On 20 March 2017 a further ROSH report was made to the Department. It was reported that the mother had attended a local community centre in a distressed state with the child and she sat on the floor crying. The child was reported to have said “my mummy is sad, my mummy is crying”.
Following this report Ms F placed a telephone call to the mother leaving a message requesting a return call. The mother returned the call to Ms F, asked how Ms F got her number and then terminated the call.
Ms F that day contacted Suburb C Police requesting that a welfare check be undertaken in relation to the child. On the same day Ms F contacted the P Centre, a community service to which the mother had been referred and spoke to the mother’s case worker at that service. Ms F was informed that the mother had not been seen since January 2017 and that the service would no longer be dealing with the mother as she had been aggressive to staff.
Subsequently, Ms F spoke to Ms Q from the R Centre, the mother having previously been engaged with that centre. Ms F was informed that the mother had been spoken to about her “presentation” at the centre and about conversations the mother was having in the child’s presence. The mother was reported to have been dismissive about concerns expressed to her.
On 21 March 2017 Ms Q contacted Ms F and advised that the mother had attended the centre on 20 March 2017 and that her presentation was observed to be less “elevated”. However, it was reported that the mother had said “strange things”.
On 21 March 2017 two case workers from the Department visited the child at his preschool. Several teachers reported being concerned about the way the mother presented at the school which was described as being “in a manic and disorganised way and very easily escalated”.
Consequent upon growing concerns in relation to the mother and the child an unannounced home visit was conducted at the home of the mother by the case workers who had attended at the child’s preschool. Initially the mother refused to permit the caseworkers entry but later did so. The mother, for reasons only known to her, refused to allow the case workers to take any notes during the visit. In discussions as to the mother’s mental health she informed the case workers that she was not currently on any medication.
On 22 March 2017 the caseworker was unable to contact the mother, left a message and received no return call.
On the limited information available to the Department at that time a safety assessment report was completed on 6 April 2017. Overall, the Department concluded that the child was safe in his present circumstances. However, the report noted that the mother’s current emotional, psychological or cognitive functioning or physical condition/disability which may seriously impair her ability to supervise, protect or care for the child was considered as part of the assessment but was “not identified as circumstances did not meet the threshold”.
Subsequently, Ms F sought to contact the mother on 19 April, 1 May, 24 May, 4 July and 5 July 2017. The mother did not respond to Ms F’s calls.
On 7 July 2017 Ms F was contacted by the child’s day care and it was reported that there were issues with meeting with the mother regarding the child’s behaviour. It was further reported that the child was “hitting, slapping and punching other children and having difficulty with impulse control”. When the mother was spoken to she “appears to ramble and repeat herself and won’t allow others to speak”.
On 14 July 2017 the Department undertook a further safety assessment report. On reviewing the history, particularly the ongoing and significant concerns in relation to the mother’s mental health, the report concluded that the risk of neglect in relation to the child was high.
On 24 July 2017 the mother met with Ms F. The mother expressed to Ms F concerns about material that had been produced on subpoena in these proceedings. She informed Ms F that there was no way that she could facilitate the child’s contact with the father and if that was to happen then the child “will lose his mummy”. The mother reported to Ms F that she would not work with the Department as she sees the Department “as an extension of the father and does not feel believed”.
Subsequently on 9 August 2017, Ms F met again with the mother at a local shopping centre which was the only venue that would be agreed to by the mother. Ms F observed the mother to have difficulty managing the child’s behaviour including the child’s use of inappropriate language. The mother sought to speak to Ms F about the current family law proceedings and compared her situation to that of Rosie Batty.
Subsequently on 17 August 2017, the mother sent Ms F a text message in which she compared herself with Tanja Ebert, a mother who had recently gone missing.
Engagement with the father
On 11 August 2017 Ms F and another caseworker attended at the home of the father and his partner Ms S. They observed that the home had a bedroom set up for the child. The father and Ms S were spoken to about their capacity to provide care for the child should he come to live with them and informed the case workers as to the flexibility of their work arrangements in order that they might be available.
The Department’s concerns
The Department has significant concerns in relation to the mother’s mental health and the effects of this on her capacity to parent the child. Concerns are such that the Department is of the view that it is in the child’s best interests that he be placed in the care of the Minister.
The mother has consistently failed to allow Department workers access to her home for casework purposes and has dictated terms of meetings with caseworkers including meetings away from her home. The mother has refused to engage with the Department caseworkers during these meetings regarding her parenting capacity and mental health. The Department is of the view that the child is at risk of serious harm due to the mother’s psychological well-being with such risk likely to increase as the current family law proceedings move to determination.
The Department was of the view that prior notification to the mother of their present application would itself present a risk to the child in that the mother could harm herself or the child.
The objective evidence
Exhibit “B” comprises documents from the R Centre. It appears that the mother has been attending the centre for food handouts and to use the computer resources at the centre.
On 20 March 2017 the mother attended the Centre and was upset that the Centre had made a risk of harm report. At one stage the mother sat on the floor and “was wailing and crying”. An ambulance was called but later cancelled as the mother had in part composed herself. The mother requested that the report be retracted. The Centre reported the incident to the Child Protection Helpline.
The mother had engaged from about May 2016 with the P Centre: Exh “C”. She disclosed, at that time, her diagnosis of post-traumatic stress disorder. The Centre exited her from their service in March 2017. The Client Exit Form dated 20 March 2017 reveals that the Centre was of the view that the mother’s “needs were much more complex” and that she “needs a more intensive family service” with the mother declining referrals to other services.
Documents were available as to the mother’s engagement with the Suburb C Medical Centre: Exh “D”. Her attendances were mostly with a Dr T at the centre. Notes reveal the mother has been medicated for some years on Cipramil, an antidepressant medication.
In April 2013 she was referred to Dr U, psychiatrist.
In May 2013 she was referred to a psychologist Ms L for post-natal depression.
On 9 July 2015 the mother presented to the emergency department at the V Hospital “with depression, anxiety and stating that she felt like she was dissociating”. The hospital notes reveal the mother’s history of depression and anxiety over the previous 10 years and that she had been on Cipramil medication for 10 years. The mother was reviewed by the mental health team and discharged.
In October 2015 she was referred to Dr W, psychiatrist. The referral reveals the mother had “a few presentations” to the Emergency Department of V Hospital in the preceding six months for panic attacks. In circumstances where there was a pending single expert report in the context of these proceedings, Dr W did not provide a detailed report to the referring practitioner. The mother did attend on Dr W again on 10 November 2016 but seemed intent on discussing medico legal issues. Then on 6 March 2017 she again attended upon Dr W seeking advice as to how to challenge the Single Expert Report that had been released.
On 1 September 2016 the mother was admitted to V Hospital under the care of the psychiatric team. The mother had previously attended the emergency department of the hospital on 27 August 2016. The September admission reveals the mother’s concerns arising from the current proceedings with the mother describing symptoms of “anxiety/panic, including subjective distress and a sense of being overwhelmed, with hyperventilation, tremor, nausea, dizziness, fatigue and impaired concentration and memory disturbance”. The hospital notes reveal that the mother was currently seeing a psychologist and counsellor. She was discharged the following day.
In October 2016 she was referred to Dr X, psychiatrist “for ongoing care”. Dr X had been earlier engaged with the mother in February 2009. At that time he provided a report to the mother’s then referring practitioner. The report reveals that the mother had had earlier psychiatric treatment from a Dr Y. After a review of the mother’s childhood and developmental history in the context of a home where there was significant exposure to domestic violence, emotional neglect and strict physical discipline Dr X opined:
(The mother) presents with chronic, long-standing anxiety which fluctuates in severity. I think this pattern of worry associated with physical symptoms and occasional distress would qualify her for a diagnosis of generalised anxiety disorder…… Her personality can only be dealt with in a perfunctory way, but I certainly note her sessional features, including extraordinary attention to detail and unrelenting standards, with perhaps some degree of cognitive rigidity. In addition there were aspects of her personality such as a tendency to have intense relationships, followed by concerns about abandonment as well as an underlying view of herself as fundamentally flawed that might reflect the developmental difficulties outlined above.
Dr X on 8 November 2016 reported to the referring practitioner that the mother attended upon him but was intent on a referral to a forensic psychiatric expert for the purposes of the family law proceedings.
On 26 December 2016 the mother was again admitted to V Hospital with migraine aura. Then on 9 February 2017 she was referred to Prof Z, Neurologist, at V Hospital for review after the admission with “migraine with aura causing her to present to hospital where she was hospitalised for 3 days with symptoms of right arm paralysis and incoherent speech”.
Then on 7 March 2017 the mother was referred to Dr G, psychiatrist for “psychiatric care”.
On 28 March 2017 she was referred to Mr M, psychologist for “psychological care”.
On 12 April 2017 the mother’s treating general practitioner Dr T authored a short note to “Whom it may concern” stating that the child “is currently at risk of neglect as [Ms Langley] is currently suffering from post – traumatic stress disorder.”
Then on 19 April 2017 he authored a longer report, again to “Whom it may concern”. He reports that the mother “describes currently experiencing dissociative attacks or pathological dissociation on a weekly basis”. He reports that:
[Ms Langley] describes experiencing a detachment from reality including from physical and emotional experiences; becomes unaware of her surroundings; amnesia; and depersonalisation during a dissociative attack. This affects [Ms Langley’s] usual way of responding or functioning and according to [Ms Langley] is unpredictable.
Current, possible neglect could be emotionally distressing for the child during an episode
Dr T further reports that the mother is “currently experiencing flashbacks on a weekly basis” and:
[Ms Langley] believes she is still able to provide some diminished supervision to the child while experiencing a flashback; however “witnessing his mother’s current crying, unresponsive or inattentive attacks is nevertheless emotionally distressing. When I am catatonic, which is involuntary and unpredictable but usually occurs around a threatened contact visit, supervision is impossible by its very nature, it has resulted in emotional abandonment, acute psychological impairment and possible self-harm”.
The mother also reported to Dr T frequency of hyperventilation that may occur on average once per week. Dr T opines that “witnessing a threat to his mother’s health” creates a possible risk of emotional distress to the child when he is at home to witness it.
The mother further reported that she “currently suffers from headaches/migraines on a weekly basis”. Dr T notes that:
[Ms Langley’]s headaches caused distress to the child as she has told me that she is unable to provide the child with attention during an attack. [Ms Langley] at times takes codeine which makes her drowsy and sleepy and there is a possible risk that the child will not be attended to. [Ms Langley] has told me that “a migraine with aura results in me being unable to utilise my right arm to feed, clean or dress the child. I was unable to communicate with the child, and unable to see the child, or provide the child with supervision during an attack.
It appears that Dr T failed to notify any responsible party as to the risk to the child so clearly evidenced in his report.
The Single Expert Report: Dr H
The Single Expert provided a report dated 27 June 2016.
The Report was provided with the caveat by the report writer:
I am concerned that the content and recommendations of this report will create a distress in the mother. I feel that she is likely to handle this circumstance, but she will benefit from support, and there is some risk that she could experience an acute decompensation into despair or anger. I recommend that the mother discuss and view the report with the mother’s legal representative, and that the mother is accompanied to that meeting by a support person, for example the maternal grandmother. That support person should then take the mother home and be with the mother for the remainder of that day, and assist the mother to obtain what professional support may be necessary during the subsequent week, for example for the mother to see her therapist [Ms L].
The background to the reasons for the caution expressed by the single expert report writer can be distilled from the mother’s engagement with various mental health professionals over the years until mid-2016 as set out above. Otherwise, the reasons for such caution are clearly evident from the report itself.
The report writer reviewed the background of the mother, the maternal grandmother, the father and the father’s partner Ms S together with several of the father’s friends.
In the context of his enquiry the report writer had occasion to speak to some of the mother’s mental health professionals.
Ms L, psychologist first saw the mother shortly before the birth of the subject child. The mother had been referred by the hospital antenatal team as it was concerned about her mental health and well-being. It was reported to the single expert that the mother had at times been very distressed during therapy. She has been emotionally dis-regulated and rocking back and forward with distress. It was further reported to the single expert that the mother had pulled back from connection with the Department because of her fears that by stealth the Department would let the father in. The mother it was reported believes that the Department are on the father’s side and that the police are on the father’s side. The mother was warned by Ms L that she was “treading a fine line” between protection of the child and perceived obstruction of paternal time. However the mother asserted that she could not give in.
The Director of the child’s day care, O Centre, was spoken to by the single expert. The Director observed that the child more recently had been somewhat unconstrained with the other children slapping or kicking in what appeared to be unprovoked action. But the Director held no concerns for the child’s developmental norm. The Director reported that there were some challenges in interacting with the mother. The mother always blamed others and not the child. The mother was reported as being somewhat inconsistent in collecting the child on time.
The Single Expert reported on the mother’s mental state in the following terms:
221. I observed that the mother has experienced long-standing significant anxiety symptoms and fluctuating associated depressive symptoms.
222. These symptoms occur in the context of the mother’s personality dysfunction, an important element of which is a marked instability of self-image, thought and emotion such that the mother’s inner emotional state and her outer expression of emotion can shift markedly and between extremes within periods of seconds, hours or days.
223. I do feel that the mother’s anxiety symptoms have been persistent, severe and disabling enough to warrant the separate diagnosis of an anxiety disorder.
224. The most appropriate DSM 5 anxiety disorder diagnosis I feel is post-traumatic stress disorder (PTSD).
The Single Expert was of the view or that it was likely “that in fact some if not all of the triggered recollections are of bidirectional abusive behaviour between the parents and that some may be of incidents of primarily maternal aggression”.
The Single Expert continued to say:
More generally, I think it likely that the mother experiences a strong urge and at times felt need to avoid interactions that she expects to be intrusive, judgmental or controlling, because of the propensity for such interactions to trigger PTSD symptoms. This avoidance has created practical problems of the mother and damaged relationships important for herself and the child for example in recent years relationships with [AA Group] staff and with the Child Care Centre.
In the view of the Single Expert:
… the mother has significant personality dysfunction, with prominent borderline personality traits. I think it highly likely, says the single expert, that the mother has a borderline personality disorder, the same is suggested by the intensity, pervasiveness, persistence and impact of personality dysfunction evident in the mother’s intimate and family relationships and in her relating to helping, educational, policing and child protection professionals and would be made more likely if this dysfunction is also evident in other settings such as friendships and occupational relationships.
…
In terms of borderline personality style the mother has shown a pervasive pattern of instability of emotion, thought, self-image and relationships, and impulsive behaviour.
The Single Expert perceived the mother as quite socially isolated. The mother was also observed to have some narcissistic and antisocial personality traits. It was the Single Expert’s impression that the mother shows some grandiosity and sense of superiority or status, can show a sense of entitlement, can be interpersonally exploitive, can lack empathy, will be unwilling to identify with the feelings and needs of others and can show arrogant behaviours or attitudes.
As to the mother’s antisocial personality traits the single expert was of the view that the mother could behave in ways that disregard and violate the rights of others, can behave unlawfully in that regard, can be deceitful, irritable and aggressive, irresponsible in terms of honouring obligations and lack remorse.
AA Group, the Single Expert observed, appear to have experienced the mother as interpersonally exploitative in terms of a willingness to press for their involvement in terms of funding, but not to respect the need for the home visiting component of their program or to work in with their staff.
As to the parental conflict the Single Expert was of the impression that:
… the parental relationship was mutually abusive, and that the mother’s borderline personality functioning played a large role in that process, both in terms of the mother herself behaving in angry, aggressive, violent, threatening, emotionally abusive, and controlling ways towards the father and in terms of the mother having poor personal boundaries and in effective interpersonal strategies in terms of responding effectively to disrespectful, intrusive, coercive or aggressive behaviour in the father.
However, the Single Expert was conscious of the father’s contribution to parental conflict and the mutually abusive nature of the parental relationship.
The Single Expert observed the child to be quite physically dysregulated at times. The Single Expert was of the view that the child was more dysregulated and provocative than the norm. He was of the view that the child’s behaviour in part reflects the child having a higher overall level of neurobiological arousal because of his experience of adult stress and conflict during his infancy and toddler years. Related to the same, the Single Expert opined:
… this the behaviour is part of an anxious – avoidant attachment style where the child at times needs to escalate behaviour or display of emotion in order to activate the carer, who may be dissociated or distracted by their own struggles or tasks in that moment.
The Single Expert was of the view that the mother was then currently able in a day-to-day way to meet the child’s basic needs for food, shelter and protection from harm and the child’s intellectual and developmental needs. The Single Expert was of the view that the mother was capable of meeting the child’s basic emotional needs but perceived some instability in such capacity with some periods of maternal emotional unavailability associated with maternal distress, preoccupation or dissociation.
The Single Expert cautioned that there remains a risk of the mother having future periods of broader emotional decompensation, when the mother may not be emotionally available or functional in the parent role for a period.
There were concerns in the mind of the Single Expert as to the mother’s capacity to meet the child’s more complex emotional and relational needs. A child, opined the Single Expert, “has a need to develop a balanced awareness and relational response to the emotions and needs of self and of the other in intimate relationships and with regard to engagement with peers and adults within societal institutions such as the school”. The Single Expert expressed concern that:
… the mother models some dysfunctional patterns of thinking and relating in this regard. The child is protected from the direct effect of the same, because he is incorporated into the mother’s self-focus, as the mother’s child, referred to by [one of the mother’s therapists] as a potential “pedestal child”. But I perceive a risk that the child will develop a narcissistic pattern of thinking and relating over time, mirroring the mother’s own.
The Single Expert noted that it had been the appropriate priority in therapy to assist the mother to manage her emotional dysregulation so as to be available for and non-dangerous to the child. In the Single Expert’s view it would further assist the child if the mother was able to address in therapy her own entitled and aggressive emotional and relational responses within adult relationships.
After a detailed and critical analysis of the father’s background and personality the Single Expert was of the view that the father has the capacity to meet the child’s basic needs for food, shelter and protection from harm. Otherwise, the father has the capacity to meet the child’s intellectual relational and developmental needs and his basic emotional needs for affirmation and acknowledgement and responsiveness.
The Single Expert expressed the view that:
The father may struggle to meet the child’s more complex emotional needs for empathic attunement and sensitive empathic responses. But I note that that the father makes good use of his broad friendship and community connections and it is likely that others in the father’s support base, including potentially the father’s partner would aid the father in meeting these more complex emotional needs of the child.
I observe that the father has a strength in the area of the father’s strongly communal model of relationships.
…
My impression is that the father’s capacity will be enriched and made more resilient and secure by the input of the father’s partner, who respects the father and also can encourage and challenge him where needed.
Risk
In terms of risk of emotional or physical abuse or neglect of the child the Single Expert identified that the mother’s experience of instability of emotion, thinking and in relationships, episodes of intense anger and impulsive action can put the child at risk stating:
This can be a momentary risk or in a period of more sustained decompensation, could be a period of risk lasting from hours to weeks.
…
During any longer period of maternal decompensation, risk and disruption to the child would be markedly reduced by the child being able at such a time to spend time with the father, as a known and established the parental care figure.
Otherwise, the Single Expert identified risks to the child’s character development associated with an exclusive and narcissistic “special child” bond between the mother and child which would be ameliorated by the child having a broader-based parental system which included some care provided by the father and connection with the paternal household.
The Single Expert further observed that in his view:
… to put all the child’s “eggs” in the “basket” [my words] of maternal care is too great a developmental risk to the child, considering the mother’s history of severe personality dysfunction and associated instability in self-function. By placing the child in sole maternal care one is removing the important mitigating role that would be played by the child maintaining a relationship with the father.
Ultimately, the Single Expert’s recommendations were that the child continue to reside with the mother but there be put in place a regime that would facilitate the child having a meaningful relationship with the father and the mother engaging in therapy to assist her coping with such orders in addition to which the Department would remain involved.
However, the Single Expert opined that should the mother prove unwilling or unable to comply with orders as to the child’s time with the father and if in that context the father is motivated to take on the primary care of the child and if he can present a realistic and considered plan then, the Single Expert said a transfer of the child’s primary residence to the father would be preferable to the child remaining in maternal care in the context of a “no time” order with the father.
In the single expert’s view, the latter option of putting all of the child’s eggs in the mother’s basket incorporates a greater risk to the child over time.
The Department’s Role
The Secretary of the Department has intervened in these proceedings under s 91B of the Family Law Act 1975 (Cth) (“the Act”).
As such the Secretary is a party to these proceedings: s 91B(2).
The Department, of course, is a non-parent.
Many of the considerations set out in the Act relate to parents. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.
It is clear having regard to the circumstances of the child both historically and at present as referred to above that the Applicant Department is concerned with the care, welfare and development of the children.
The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.
Consideration of the Applicant as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is, therefore, appropriate to apply the relevant considerations in respect of the Applicant Department by way of application of s 60CC(3)(m).
It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:
… there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act).
As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.
Finally, the Full Court in Yamada & Cain [2013] FamCAFC 64 said at [27]:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
Interim Parenting
In Marvel v Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.……In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter (supra) in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.
50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
THE LAW:
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(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.
(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).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
Best Interests:
The Primary Considerations: s60CC (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.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship:
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & F [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
There is no issue that the child is primarily attached to the mother. However, that primary attachment relationship is fraught with underlying risks and difficulties as discussed above. The possible unconstrained and continuing relationship between the mother and child represents a relationship that is not important, significant and valuable to the child in terms of the child’s overall developmental and emotional needs. Indeed, such relationship presents a risk to the child as discussed above.
At present there is no relationship between the child and the father that relationship having been in effect suspended by the mother’s conscious decision not to comply with previous orders as to the father having time with the child.
The consequences and risks of there being no paternal relationship are referred to above in considering the single expert’s report. A relationship between the child and the father in the context of this matter must be regarded as important, significant and valuable for this child and indeed protective for this child as against the risks presented by the mother’s mental health and personality dysfunction.
Section 60CC(2)(b) – need to protect.
This factor, in itself, determines the present application by the Department.
The single expert was, in the context of interviews conducted in mid-March 2016 and his subsequent enquiries leading to his report dated 27 June 2016, aware of the mother’s strengths in relation to the child but more particularly aware of the prospective risks presented to the child by the mother’s long-term mental health issues and personality dysfunction.
The single expert was cautiously optimistic in relation to the mother but his report sounded at that time a significant reservation as to the mother’s frailties.
Subsequent circumstances as outlined in the case presented by the Department and the objective evidence comprised in the Exhibits before the Court are clearly evident of significant and urgent concerns as to the child’s welfare in the care of the mother.
The only risk factor present in the context of the application by the Department is that presented by the mother to the child. The mother has a constellation of mental health and personality dysfunction issues. They appear to be omnipresent in her day-to-day life. The Department expressed significant concerns as to the mother’s lack of engagement and willingness to engage with the Department (and others) as to the welfare of the child. Concern has been expressed by voluntary organisations that have provided assistance to the mother in various capacities.
More concerning are the deliberations of her general practitioner in his lengthy letter of April 2017 which, surprisingly, did not result in any notification of risk to appropriate agencies notwithstanding what would be perceived as his professional responsibility.
The issue of risk is to be given primacy over that of relationships. In this matter the pervasive risks to the child simply renders the child’s primary attachment to the mother as a very subsidiary consideration.
The Department has undertaken a risk assessment in relation to the father’s household and is satisfied that the father and his partner present as viable full-time carers for this small child. The Department proposes to appropriately supervise and monitor the father’s engagement with the child, preserving to itself the right to proscribe the child’s residential circumstances.
The Additional Considerations:
Section 60CC(3) sets out the additional considerations:
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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
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)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
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.
Whilst regard has been had to the additional considerations set out above as relevant, they provide little guidance in the overshadowing consideration of risk to the child presented by the mother.
The child is of immature years and there is no appropriate evidence in relation to the child’s wishes.
The nature of the child’s relationships with the mother and father has been referred to above. It is to be inferred that the child has a relationship with the maternal grandmother who seems to reside from time to time with the mother.
The mother has unilaterally assumed responsibility for decisions in relation to the child’s welfare by excluding the child from contact with the father. As such, the father has had little opportunity to engage in the child’s life in that regard.
The mother has assumed the primary obligation to maintain the child. There is no evidence in the context of the present application as to financial support provided by the father since separation.
The likely impact on the child of the orders placing the child in the care of the Department and the Department placing the child, if appropriate, in the care of the father would be significant. However, any adverse impact on the child must be balanced as against the ongoing risk that the mother’s mental health and personality dysfunction presents to the child. The child is of tender years and it is expected the child will settle after a period in the care of the father and his partner. It is to be expected that this circumstance will be closely monitored by the Department.
The question of the mother’s ongoing contact with the child will be the subject of enquiry and professional opinion sought by the Department.
The question of parental capacity has been considered above in the context of the single expert’s report, the evidence adduced by the Department and the objective evidence comprised in the material exhibited in the proceedings.
Issues as to parental attitude to the child and responsibilities of parenthood await determination at a final trial where the mother and father will be subject to examination in oral evidence.
There are significant allegations of family violence in the context of this matter. Both the mother and father make allegations one against the other and the issue was considered briefly above in considering the single expert’s report. The circumstances of family violence within the relationship will in due course be considered at final hearing. There is no evidence of any current family violence order.
These are interim proceedings with orders put in place pending final hearing. It is not a circumstance where consideration can be given to orders that would avoid the further institution of proceedings.
The Presumption: Parental Responsibility
The Court is satisfied that in all the circumstances of this matter as considered above that the presumption as to equal shared parental responsibility is not appropriate and thus should not apply. It is in the child’s best interests that whilst the father’s capacity as primary carer is being assessed the Department hold parental responsibility for the child.
In the circumstances, it is in the best interests of the child that orders be made as set out at the forefront of these reasons.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 September 2017.
Associate:
Date: 14 September 2017
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