Turner and Brown

[2016] FCCA 841

FEDERAL CIRCUIT COURT OF AUSTRALIA

TURNER & BROWN [2016] FCCA 841

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975 (Cth), s.91B

Applicant: MR TURNER

Respondent: MS BROWN

File Number: WOC 86 of 2016

Judgment of: Judge Altobelli

Hearing date: 6 April 2016

Date of Last Submission: 6 April 2016

Delivered at: Wollongong

Delivered on: 6 April 2016

REPRESENTATION

Solicitors for the Applicant: McNamara & Associates

The Respondent appeared in person

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS

1. By consent as between the Applicant Father and the Independent Children’s Lawyer and pending further Order, Orders be made in accordance with the document marked “A” dated this day 6 April 2016 and attached hereto.

2. The Independent Children’s Lawyer is to forward an electronic typescript of the document marked “A” to the Court within seven (7) days.

3. Pursuant to section 91B of the Family Law Act 1975, the Secretary of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the X (born 2011), Y (born 2012) and Z (born 2013).

4. The Independent Children’s Lawyer is to forward to the Solicitor for the Secretary of the Department of Family and Community Services at its Head Office in Ashfield, not later than 4.00 pm on 20 April 2016 copies of the documents filed by each of the parties to date.

5. Upon request from the nominee of the Secretary the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

6. The Court notes that for the purposes of this notification the subject Children presently live with the Applicant Father, Mr Turner.

7. The matter be adjourned to 24 June 2016 at 9:30am for Interim Hearing before Judge Harman.

8. The parties file and serve any further material on which they seek to rely by no later than 17 June 2016.

9. Each party is to file and serve a Case Outline document by no later than 4:00pm on 20 June 2016, setting out:

   (a)a list of documents to be read in their case;

   (b)a precise Minute of Orders Sought;

   (c)a brief summary of argument touching upon the matters set out s.60CC of the Act, with reference to the relevant evidence relied upon.

10. Within 7 days, the Independent Children’s Lawyer is to notify the Respondent Solicitor of the Orders made today.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 86 of 2016

MR TURNER

Applicant

And

MS BROWN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have made Orders today in relation to three children, X, Y and Z (‘the children’).  The effect of the orders I have made is that the Father have sole parental responsibility, that the children live with him and that they spend time with their mother as set out in this document.

2. This is clearly a difficult and complex case.  What was already a difficult case was made much more so as a result of the fact that the Mother was not represented at the hearing this afternoon, and then she attended herself, but at 3.40 pm.  This afternoon at 12.18pm, during the course of today’s duty list, my Associate received a request from the Mother’s solicitors for them to be able to attend by telephone when the matter was listed at 2pm.  I declined that request in circumstances where this matter was listed for hearing on 29 February 2016. 

3. Notwithstanding that, when Ms Brown attended when the matter was called at about 4.10 pm, I arranged for Ms Moxy, the solicitor representing the Mother, to be called.  The message received was that she “was not back from Court yet”.

4. I invited the Mother to make an Application for adjournment.  My action in this regard was, of course, required, having regard to the Full Court’s decision in Re F:Litigants in Person Guidelines [2001] FamCA 348. I granted the adjournment and listed the matter before His Honour ,Judge Harman on 24 June 2016 at 9.30.

5. The Mother’s case should be presented properly by someone representing her and by someone who, hopefully, has looked at the objective evidence in formulating their submissions.

6. It was, of course, necessary for the Court to make Orders to cover the period between today and 24 June.  The Orders made, in effect, consolidate the arrangement that has existed in relation to the children for a period.

7. As I indicated, this is a difficult case.  A Child Dispute Conference was held on 29 February 2016.  The Father raised some very serious risk of harm issues in relation to the Mother,  specifically that she was a drug user and that she maintained drug associations.  The Mother agreed at the Child Dispute Conference that she used marijuana when stressed.

8. It was common ground that the children have been with their father since December last year, but had previously lived with their mother in (town omitted). The Mother, of course, made, likewise, very serious allegations against the Father.

9. The Family Consultant indicated that the issue of child safety should be treated as a priority and foreshadowed the possible need to make an Order under section 91B of the Family Law Act 1975.

10. The evidence from the Father consists of his affidavit.  In summary, he says that there is a real risk of harm to these children in the Mother’s care.  The chronology that was prepared by his solicitor is useful. He says the objective material to which I will make reference in a moment is a concern.  He raises concerns about whether the Mother has resumed her relationship with Mr M, who he considers to be a known drug user. 

11. There is evidence from the Mother in this case.  Clearly, she wants the children back in her care, and she proposes that they spend time with their father one weekend per month.  She says that she has been the primary carer of these children, that the Father has alcohol and gambling issues and has perpetrated family violence.  She says that the Father’s post-separation time with the children was sporadic, but that this was as a result of a decision he made.  She raises concerns about the paternal grandparents who she says are drug users.  She agrees in her affidavit that she “does smoke pot on occasions”.  She refers to the Department of Family and Community Services’ (FaCS) current involvement with her, referring to random spot checks.

12. Of considerable use to the Court this afternoon was the Case Outline Document prepared by the Independent Children’s Lawyer, which will be incorporated into Schedule 1 to these reasons.  Of particular assistance are the submissions at part 9, commencing on page 5, where the Independent Children’s Lawyer draws out the inconsistencies in the Mother’s evidence, and the more objective material that is contained, for example, in the FaCS’ records.

13. In particular, the inconsistencies relate to whether, and the frequency of, the Mother’s consumption of cannabis,  the nature and extent of the FaCS’ involvement with the Mother’s family,  the Mother’s capacity to adequately parent the children in her care,  and the evidence as recent as 19 January 2016 to suggest that she has been drug affected whilst caring for the children.

14. In the circumstances, and perhaps by way of an Order that is in the least of the worst alternatives for these children, the Court is satisfied that the Orders it has made is, at least for the time being, and pending a further or a more complete Interim Hearing before His Honour, Judge Harman, in the best interests of these children.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 3 May 2016

Schedule 1

Case Outline Document of the Independent Children’s Lawyer

FAMILY LAW ACT 1975

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT WOLLONGONG  File No. (P)WOC86/2016

BETWEEN

MR TURNER  Applicant

AND

MS BROWN  Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

DATE OF INTERIM HEARING: 6 April 2016 at 2:00pm

CORAM:  JUDGE ALTOBELLI

CASE OUTLINE DOCUMENT

 

 

CASE OUTLINE DOCUMENT BY INDEPENDENT CHILDREN’S LAWYER

1. NATURE OF PROCEEDINGS

   The proceedings involve three children namely X born 2011, Y born 2012 and Z born 2013, with which parent they shall reside and what time if any, they shall spend with the other parent.

2. ORDERS SOUGHT BY THE APPLICANT FATHER

   The father seeks inter alia Orders that:

   i.Residence;

   ii.Sole parental responsibility;

   iii.Supervised time with the mother.

1. ORDERS SOUGHT BY THE RESPONDENT MOTHER

   The mother seeks inter alia Orders that:

   i.Children be returned to the mother;

   ii.Children live with the mother;

   iii.Joint parental responsibility;

   iv.Children spend time with the father the last weekend of each month from 5:00pm Friday to 5:00pm Sunday and phone contact at least one night per week.

2. COMMENT

   The Court has the benefit of a Child Dispute Conference Memorandum dated 29 February 2016. By way of future direction the Memorandum suggests that the Department be invited to intervene in the proceedings.

3. PLEADINGS

   The Applicant father appears to rely upon the following documents:

   i.Application filed 1 February 2016;

   ii.Affidavit filed 1 February 2016;

   iii.Affidavit sworn 30 March 2016;

   iv.Notice of Risk filed 1 February 2016.

   The Respondent mother appears to rely upon the following documents:

   i.Response dated 12 February 2016;

   ii.Affidavit sworn 12 February 2016.

4. The Court must consider the matters set out in Section 60CC being the primary considerations and the additional considerations referred to in Section 60CC(3) to determine what is in the children’s best interest.

   i.MEANINGFUL RELATIONSHIP

   i.Section 60CC(2)(a) requires the Court to consider the benefit to the children of having a meaningful relationship with both of their parents. There is no evidence before the Court about the relationship between the parents and the children in their respective Affidavit material. The CDC Memorandum indicates that both parents raise significant parenting capacity concerns about the other and that both parents allege that the other has parenting deficits and that the children may be at risk in the other's care. The extent of any meaningful relationship between the parents and the children is unknown.  

   ii.PROTECTING THE CHILDREN FROM HARM

   Section 60CC(2)(b) focuses on the need to protect the children from harm. The father alleges that the children are subject to significant neglect by the mother and that she fails to supervise the children and has been in a relationship with a violent partner (CDC Memorandum). The mother counters that she has been working with FACS following her relationship breakdown and she denies that the children are at risk in her care. The father makes further allegations about the mother's abuse or misuse of alcohol and other substances and that she has been residing with drug dealers. The mother acknowledges in the CDC Memo occasional use of cannabis but otherwise denies the use of any other illicit drug. Again she counters that the father is a heavy drinker and that he has been verbally and physically aggressive when intoxicated. The father alleges that the mother has a history of mood swings and a short fuse. He himself denies any mental health history as does the mother who says that the father has made threats to self-harm in the past. The father alleges that the mother has attempted to assault him in the past but the mother herself says that the father was aggressive towards her especially when drinking and refers to the AVO made against the father for the protection of her eldest son A.

   iii.CHILDREN’S VIEWS

   The children are not of an age where their views should be given any weight.

   iv.THE NATURE OF RELATIONSHIPS

   Section 60CC(3)(b) requires the Court to consider the nature of the children’s relationships with their parents and other relevant persons. The father has two older children who do not reside with him but they have a loving relationship with the children the subject of these proceedings. He refers to his extended family in paragraph 22 of his first Affidavit who all live locally. The mother also has three older children. The first two were apparently removed from her care by the Department and reside with grandparents. Her third child C resides with her.

   v.LIKELY EFFECT OF CHANGE

   Section 60CC(3)(d) requires the Court to consider the likely effect of changes in the children’s circumstances. The three children have resided with the father since late December 2015 being over three months. There is really no evidence before the Court about how the children have coped with the change from residing fulltime with their mother to now residing with their father. There is also no evidence about how they would cope with a return to living on a fulltime basis with their mother as she seeks in her Response. 

   vi.ISSUES OF PRACTICAL DIFFICULTY AND EXPENSE

   The father resides in (omitted) and the mother resides in (omitted). The father still has connections in the (omitted) area and does not seem to have any difficulty in visiting (omitted) regularly which he says is only 45 minutes away from (omitted) where the mother resides.

   vii.PARENTAL CAPACITY

   i.As previously referred to herein both parents challenge the level of the parental capacity of the other parent. Again, there is no evidence from either parent providing any sort of description of their parenting skills or abilities or even their day to day care of the children. Materials from FACS indicate that as at 27 October 2015 the Department had received 42 previous reports since becoming involved with the family with issues pertaining to risk of sexual harm/injury, DV, drug abuse by carer, risk of psychological harm, risk of physical harm/injury, DV, children exposed to violence and inadequate shelter or homelessness. There had been 25 prior reports starting when C was born including 7 ROSH reports pertaining to lack of supervision, neglect, DV and possible substance abuse. There were historical reports of sexualised behaviour before the mother's children B and A. There were concerns in July 2015 relating to C's presentation at school and concerns of neglect. The mother had indicated that there was no formal diagnosis in relation to her mental health however she had indicated to case workers that she was engaged with a doctor attached to (hospital omitted) for possible ADHD diagnoses though she had missed her appointment with the doctor. 

   ii.Both parents have had significant contact with the Police Department. Though it has been significant there have been no serious charges. Documentation from the Police indicate many call outs by the Police especially with the mother going back for a number of years.

   viii.ATTITUDES TO THE CHILDREN AND TO THE RESPONSIBILITIES OF PARENTHOOD

   The previous submissions are repeated.

   ix.FAMILY VIOLENCE

   Both parties allege violence by the other party. The father alleges a high conflict relationship with the mother attempting to assault  him in the past. The mother alleges that the father was aggressive towards her and that this intensified if he had been drinking (CDC Memo). The mother refers to a previous AVO against the father for the protection of her son A.

   x.BEST INTERESTS

   It is in the best interest of the children to remain in an environment in which it is more likely that they would be protected from harm. Though there is no evidence before the Court how the father cares for the children there is objective evidence that the mother does not have any plans for care of the children. The mother's two older children have been taken from her. The mother's third child C has been known to FACS since 2008 with reports concerning neglect, emotional state of carer, inadequate shelter, risk of physical harm, DV child exposed and inadequate supervision (FACS document Contact Record dated 19 January 2016). It is likely that the mother does not have the capacity to properly care for the four children which had been in her care up until December 2015.

5. The Objects of the Act set out in Section 60B are extremely important in this matter in particular and as referred to previously herein in attempting to protect the children from harm. 

6. The Court is required to give a full investigation of the competing Applications before the Court but that can only occur at a Final Hearing. The Court necessarily can only make a shortened enquiry based on competing and untested allegations and what objective evidence might be available. The parties have not provided any supporting Affidavits by other deponents in this interim application. In the case of Goode the Full Court required consideration of Sections 60CC, Section 61D and Section 65DAA in dealing with an Interim Application. The Court is required to consider the competing proposals of both of the parties and make what findings of fact it can based on the evidence supporting such proposals

7. SUBMISSIONS

   i.In paragraph 21 of her Affidavit the mother says, "I do smoke pot on occasion usually when I am stressed. The last time I smoked was before a funeral." Materials from FACS indicate that is not the case, acknowledging using marihuana daily. See below.

   ii.In paragraph 26 of her Affidavit the mother indicates that she has random spot checks from FACS and there are never any problems. Material from FACS do not support her claims.

   iii.FACS interviewed the child C on 21 July 2015 and he indicated that he cared for the younger children in the home. The child A who was present stated that he had cooked bacon and eggs that morning while the mother was asleep. The mother in interview confirmed that she smoked cannabis because she is sad.

   iv.FACS Safety Assessment Decision Report of 27 October 2015 reported sibling sexual abuse of B by A occurring while the mother was not in the home and therefore not protecting her children. The lack of supervision had been a previous reported concern. The Report indicates that the mother has a history of drug use that includes speed and ice as well as current cannabis use. The mother advised the case worker that she was currently using cannabis on a nightly basis and confirmed that she had used speed in the past.

   v.A Contact Record from FACS dated 6 December 2015 reported an older sibling had got up during the night to get a drink to find that his mother was not in the house. It appeared that the children had been left in the home by themselves.

   vi.Contact Record on 19 January 2016 where on interview the mother presented as being very tired and her speech was slow and difficult to understand. The mother indicated that she has smoked cannabis the night before and again that morning and was drug affected whilst the case workers were there. The mother talked about the father with the case worker saying that he likes a drink and that he is a bad driver but he would not hurt the children. Though the father had the children with him for more than three weeks on that date the mother indicated that she would only then plan to contact a solicitor to try to get them back. The case worker expressed concerns in relation to the girls in that the mother seemed to lack any emotional attachment to them and was unable to assess safety issues for them but rather had allowed them to go somewhere that may put them in harm’s way.

   vii.The case worker reported, "I hold concerns to Ms Brown’s capacity to parent and manage the children's behaviour, particularly when the three girls return to her care."

   viii.It is clear that the Department have concerns about the mother's ability to properly care for her children, especially the three younger children. As previously stated, the father had the children for some three to four weeks and the mother had made no plans whatsoever to do anything to seek their return. It was only when she was speaking to the FACS case worker that she indicated that she might go and see a solicitor. It is noted that the father did not file his Application until 1 February 2016.

10.ORDERS SOUGHT

Interim Orders 1-3 as sought by the Applicant Father.

Dated this 1^st day of April 2016

Peter Williamson – Independent Children’s Lawyer.