Walters and Mossimo and Anor

[2014] FamCA 1069

FAMILY COURT OF AUSTRALIA

WALTERS & MOSSIMO AND ANOR [2014] FamCA 1069

FAMILY LAW – PARENTING – Where longstanding proceedings – Where previous interim order granting parental responsibility to the Secretary, Department of Family and Community Services – Where father and subject child’s whereabouts not known for some years – Where expired warrant for the arrest of the father – Where mother has failed to engage in the proceedings for some years – Where child now nearly 14 years of age – Where application by the Secretary to discharge order for parental responsibility – Where effect of discharge will be that statutory provisions for parental responsibility will remain – Where continuation of the order not in the best interests of the child – Order for parental responsibility discharged and Secretary removed as a party to the proceedings.

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461

APPLICANT: Ms Walters

RESPONDENT: Mr Mossimo

INTERVENOR: Department of Family and Community Services

FILE NUMBER: PAF 1941 of 2005

DATE DELIVERED: 2 December 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 November 2014

REPRESENTATION

SOLICITOR FOR THE INTERVENOR: Crown Solicitor's Office

Orders

1. That Order 5 made on the 29 April 2011 that provided for the Minister for Family and Community Services to have sole parental responsibility pending further order for the child B born … 2000 be discharged.

2. That the Secretary, Department of Family and Community Services be removed as a party to this case.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walters & Mossimo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1941  of 2005

Ms Walters

Applicant

And

Mr Mossimo

Respondent

And

Department of Family and Community Services
Intervenor

REASONS FOR JUDGMENT

1. The primary issue in these proceedings relates to parenting arrangements for the child B born in 2000. The child will be 14 years of age shortly.

2. The applicant is the child’s mother and the respondent is the child’s father.

3. The proceedings before this court have had a long history, having been commenced by the applicant mother on 8 December 2005.

4. The child has a brother Mr C Mossimo born in 1994 now aged 20, and a maternal half sibling Ms D Walters born in 1992, now aged nearly 22.

5. In 2011 in circumstances referred to below the Secretary of the Department of Family and Community Services intervened in the proceedings.

6. The present application for determination is an application in a case filed by the Department on 19 May 2014. In that application the Department seeks orders that discharge an order made on 29 April 2011 giving to the Minister interim parental responsibility for the child and that the Secretary of the Department be removed as a party to the proceedings.

7. There has been ongoing litigation between the mother and father in relation to the child and his brother Mr C since 2005.

8. The father has had a history throughout the course of proceedings of failing to attend at court and failing to comply with orders in relation to the child.

9. In 2007 Dr E, child and family psychiatrist, was appointed the single expert in the proceedings. Dr E in his report dated 20 December 2007 recommended that the children reside with the father and have regular contact with the mother. In July 2010 Dr E prepared a further single expert report that recommended that the child the child reside with the mother and that there be no contact between the child and the father or with the child Mr C for a period of approximately a month to enable the child to settle in with his mother. Dr E suggested that contact between the father and the child then be introduced gradually.

10. Subsequent to the release of Dr E’s second report proceedings were listed for hearing commencing 11 October 2010 before Collier J.

11. At this time the child continued to reside primarily with the father and was to spend time with the mother.

12. On the first day allocated for trial there was no appearance by or on behalf of the father and a warrant was issued for the arrest of the father so as to procure his attendance before the court.

13. On the following day 12 October 2010 the father appeared in person as a consequence of the execution of the warrant. Proceedings were adjourned for further hearing to 8 November 2010 allocating three days for trial.

14. On 8 November 2010 there was no appearance by the father at the commencement of the trial. The trial dates were vacated and the court made interim orders in relation to the subject children that in summary provided:

    a)That the mother and father have equal shared parental responsibility for the children the child and Mr C;

    b)That the children live with the father;

    c)That the mother spend time with the child the child each Saturday between 10:00am and 1:00pm and that the mother spend time with both children from 10:00am Christmas Day until 10:00am Boxing Day;

    d)That the independent children’s lawyer make contact with JIRT and request an appointment to the father and the children to attend for interview in relation to allegations by the child the child of having being sexually molested;

    e)That the mother be restrained from causing or permitting or allowing either of the children to be brought into contact with Mr F under any circumstances;

    f)That the father shall not remove the children’s place of residence from G Street, Suburb H;

    g)That proceedings be adjourned for further hearing to 14 February 2011 for three days.

15. On 28 January 2011 the court made orders confirming the hearing dates and for the father to be notified of those dates and be advised that his personal attendance was required and in default of his attendance the matter would likely proceed in his absence.

16. On 14 February 2011 at the commencement of the resumed hearing there was no appearance by or on behalf of the father notwithstanding an order being made that he be in attendance at court at 2:00pm that afternoon. The court  made further interim orders in relation to the child the child that in summary provided:

    a)That all existing parenting orders in respect to the child be suspended;

    b)That the mother have sole parental responsibility for the child;

    c)That the child live with the mother provided that she resides at the premises of the maternal grandmother, that the child continue to attend his present school, that the mother not cause permit or allow the child to come into contact with Mr F;

    d)That the father spend no time with the child;

    e)That a recovery order issue to recover the child the child and return the child to the mother and that if the father attempts to see the child again without further order of the court he may be arrested without warrant;

    f)That proceedings be adjourned to 25 March 2011.

17. On 17 February 2011 the matter was once again before the court. The court made orders in summary that provided:

    a)That the father be restrained from allowing the child Mr C to go to the school attended by the child the child and from causing or allowing or encouraging any of his friends to do so;

    b)That the father be restrained from attending the child’s school for any reason whatsoever or coming within 100 m of that school;

    c)That the father ensure that the child Mr C does not attend the child’s school or approach within 100 m of the school;

    d)That the father not permit, cause or encourage any friends or members of his family to attend the child the child’s school or approach within 100 m of the school;

    e)That the matter remain adjourned to 25 March 2011.

The Department’s involvement

1. On 12 October 2010 the Department received a risk of harm report in relation to the child. That risk of harm report involved the child disclosing that he was sexually abused by a Mr F whilst at the mother’s home.

2. On 14 October 2010 the Department referred the report to the Joint Investigative Response Team (JIRT).  In the period between 14 October 2010 and 4 November 2010 the Department was unable to contact the father or interview the child. The Department continued to seek to engage the father in relation to its involvement through December 2010 and January 2011.

3. As a consequence of the child not being able to be interviewed JIRT closed its file.

4. On 14 February 2011, as referred to above orders, were made that the child live with the mother.

5. On 1 March 2011 a Department caseworker attended at the child’s school in company with a police officer and interviewed the child. During that interview the child made disclosures of a sexual nature regarding Mr F. The child further disclosed that he was afraid about staying at his mother’s home in that the mother and Mr F drink, argue and throw plates.

6. As a consequence of Departmental concerns the child was assumed into care by the Department. The mother was served with a copy of the care order on 1 March 2011 and on that date the child was placed into foster care with the father’s male cousin.

7. On 2 March 2011 the Department caseworker received communication that the child had absconded from school and was with the father. On the same day the Department intervened in these proceedings and a recovery order was issued in relation to the child requiring the child to be returned to the foster carer Mr I, a cousin of the father.

8. On 4 March 2011 the court made an interim order providing that Mr I have interim parental responsibility for the child. A warrant was issued that day for the arrest of the father. On 16 March 2011 the child was recovered and returned to Mr I’s care.

9. On 17 March 2011 the father appeared before the court as a consequence of the warrant for his arrest having been executed. The father was released from custody subject to conditions that:

   a)He will appear before the court at 12:00pm on 25 March 2011;

   b)That the sum of $10,000 in cash by way of bank cheque be deposited with the court;

   c)That motor vehicle registered number … together with the ignition keys and registration document signed by the owner be produced to the court; and

   d)He report to a Registrar of the court on the third floor each weekday following his release between the hours of 3:00pm and 4:00pm and he shall not on any occasion leave the court until authorised to do so by the Registrar.

10. On 25 March 2011 orders were made for the mother and father to spend time with the child provided that the mother not bring the child into any form of contact or communication with Mr F and the father was to have unsupervised time with the child each Saturday with the father to collect and return the child to and from Mr I’s home.

11. The father’s bail was continued on condition that:

    a)The father report to the Registrar’s section of the court each Monday and Thursday between 2:00pm and 3:00pm;

    b)That the amount of $10,000 presently held by the court be retained and continue as a condition of the father’s bail;

    c)That the father shall not under any circumstances discuss with the child nor cause, permit or allow any other person to discuss with the child these proceedings, the material to be relied upon by any party and/or the contents of any reports under any circumstances whatsoever;

    d)That the father shall not under any circumstances whatsoever discuss the mother of the child or any member of the mother’s household or family with the child or cause permit or allow any other person to do so.

12. Proceedings were the listed for hearing for 5 days commencing 18 July 2011.

13. On 27 April 2011 the Department was informed that the child had not been returned to Mr I’s care after the father spent time with the child on 23 April 2011.

14. The child’s whereabouts have not been known to the Department since this date.

15. On 29 April 2011 the court in summary made the following orders :

    a)That pending further order the Minister Department of Family and Community Services have sole parental responsibility for the child;

    b)That Mr I be discharged from any further participation in the proceedings;

    c)That a warrant issue for the arrest of the father to facilitate him being brought before the court is firstly to show cause why he should not be dealt with for contempt of this court for breaching orders of 25 March 2011 and by breaching bail conditions imposed on him on 25 March 2011 requiring him to report to the Registry of the court each Monday and Thursday;

    d)That a recovery order issue to procure the return of the child to the Department;

    e)That upon the child being recovered or the father being arrested the matter be relisted within 72 hours.

16. Subsequently the recovery order in relation to the child expired on 29 April 2012, was renewed until 18 May 2013 and thereafter renewed again until the 17 May 2014. Similarly the warrant for the father’s arrest has continued to be renewed.

17. On 18 July 2011 a Commonwealth Information Order was made addressed to Centrelink Australia. No information has been forthcoming that has assisted with the location of the child.

18. The NSW Police Service has had an active engagement in relation to the warrant for the father’s arrest and the recovery order in relation to the child. On 5 September 2011 the father and the child were taken into Police custody. However the Duty Officer inexplicably released the father and the child on the agreement they would attend at the police station the following day at 9:00am. They did not attend. At the time of being spoken to by the Police the child said to the Police “you can’t take me away from my dad. I won’t go into care. I’ll kill myself if you make me leave my father”. With that the Police Officer observed the child to vomit and cry.

19. Notwithstanding ongoing enquiries by the Police the whereabouts of the father and child are not known. The Department has been informed that the Police were no longer actively investigating the matter as it was deemed that the father and the child were not “missing persons” but of evading Police detection.

20. The Department on an ongoing basis has exercised its powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW) to seek information from various government entities, including interstate and various schools at which the child may attend. Those enquiries have failed to reveal the child’s whereabouts.

21. The Department has continued to engage with other persons who may know of the child’s whereabouts but to no avail.

22. It is the Department’s position that as a consequence of the child’s whereabouts being unknown since April 2011 the Minister has not been able to exercise parental responsibility for the child. The Department is of the view that there is little utility in the Minister continuing to hold parental responsibility for the child in circumstances where the child cannot be located.

23. The child, says the Department, is now of a more mature age being almost 14 years of age. Whilst the child’s current wishes are not clear it is readily apparent from the child’s actions and his communication with the Police as referred to above that he has clear wishes to remain in his father’s care.

24. Should the court discharge the order allocating parental responsibility to the Minister then parental responsibility for the child would remain as provided for in the Family Law Act 1975 with both parents having parental responsibility for the child. A responsibility that they could each exercise unilaterally.

Discussion

1. The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Family Law Act 1975 (Cth) (“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 children.

   (2)      The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)      Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)      Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)      Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)      Parents should agree about the future parenting of their children; and

   (e)      Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. 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.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. 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.

6. The presumption does not apply in respect of final proceedings where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)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)].

7. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. The Full Court in Goode and Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

9. However the application of the general parenting principles as referred to above in this case would have only illusory relevance.

10. The child is now of more mature years, there is no doubt having regard to the history that his relationship with his mother and it appears his mother’s partner is fractured and the strong inference is that he has remained in the care of his father now for almost three years.

11. The Department quite properly seeks to be discharged from its obligations in relation to parental responsibility for the child in circumstances where it has had no engagement with the child for some years and the prospects of the Department so doing at least on present indications are remarkably remote.

1. Whilst the application for a discharge of the present orders is to be regarded as a parenting issue and thus subject to the strictures of the statutory pathway it is readily apparent that there is simply no evidence before the court as to the child’s present circumstances that touch upon the primary considerations set out in section 60CC(2) being his relationship with his parents and any relevant protective concerns.

2. There is limited evidence as to the child’s views and no evidence as to the nature of any of the child’s present relationships.

3. Similarly there is little evidence that would assist the court in assessing most if not all of the other additional considerations set out in section 60CC(3).

4. The Department in considered submissions refers to the child’s age and that this should be a significant factor favouring the making of orders sought by the Department in circumstances where the child’s current views except as noted above cannot be determined and it could reasonably be inferred that the child maintains his desire to be with his father.

5. The Department further submits that the child’s maturity significantly limits the likelihood of a permanent foster placement being located for the child and even should one be located it heightens the likelihood or risk that the child would simply abscond again, a likelihood alluded to in the second report of Dr E.

6. Importantly the Department contends that the court should have regard to the likelihood that in discharging the order for the Minister to have parental responsibility for the child there may be some encouragement for the father to reveal his or the child’s whereabouts.

7. The Department further contends that ultimately there is little practical utility in maintaining the order for parental responsibility in favour of the Minister.

8. Circumstances are that the Department has expended considerable resources whilst parental responsibility has been invested in the Minister in endeavouring to locate the child so as to facilitate the discharge of its obligations in terms of parental responsibility. It is contended on behalf of the Department that maintenance of the order impacts on the allocation of scarce resources, in particular the availability of case workers and that a discharge of orders would enable resources that have to date only resulted in futility being allocated to other children in relation to whom the Minister has responsibility.

9. The court is satisfied that in the circumstances it is in the best interests of the child that the orders sought by the Department be made. Orders will be made accordingly.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 December 2014.

Associate: 

Date:  2 December 2014