Warren and Barlow

[2018] FCCA 1030

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARREN & BARLOW [2018] FCCA 1030

Catchwords:
FAMILY LAW – Parenting – where the matter has been in and out of the court system for years – where the two children aged 15 and 10 are now living with the father, the oldest due to self-placement – where there are serious concerns about the mother’s mental health, possible drug use and choice of partner – where the mother attended the most recent family report interviews but where her presentation raised alarm and where she failed to attend the mention of the matter after the release of the report – where the father has stepped up and is doing a good job caring for the children – orders made on an undefended basis for the children to live with the father and spend no time with the mother.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS WARREN

Respondent: MR BARLOW

File Number: NCC 866 of 2009

Judgment of: Judge Terry

Hearing date: 4 April 2018

Date of Last Submission: 4 April 2018

Delivered at: Newcastle

Delivered on: 4 April 2018

REPRESENTATION

Appearance for the Applicant: No appearance

Appearance for the Respondent: In person

Solicitor for the Independent Children’s Lawyer: Fielden & Associates – Family & Relationship Lawyers

THE COURT ORDERS THAT:

1. The father has sole parental responsibility for the children:

   (a)[X] born 2003; and

   (b)[Y] born 2008.

2. The children live with the father.

3. The mother spends no time with the children.

4. Pursuant to Section 68B of the Family Law Act 1975 an Order is made for the protection of the children, and the mother and/or her partner MR N are restrained and an injunction is granted restraining them from approaching the children or either of them in person via electronic communication or via any form of social media or via any third party.

5. Pursuant to Section 68B of the Family Law Act 1975 an Order is made for the protection of the children and the father and/or his agents or any members of his family are restrained and an injunction is granted restraining them from allowing the children to have any form of contact with:

   (a)MR R (maternal uncle);

   (b)MR N (mother’s partner/associate);

   (c)MR P (paternal uncle);

   (d)MR J (paternal uncle); and

   (e)MR G (paternal uncle).

THE COURT NOTES THAT:

(A)There was no appearance by or for the Applicant Mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

No. NCC 866 of 2009

MS WARREN

Applicant

And

MR BARLOW

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter of Warren & Barlow involves two children: [X] who turned 15 in (omitted) and [Y] who also had a birthday in (omitted) and who is now 10.

3. The matter has been in an out of the court system for some considerable time.

4. For most of their lives the children have lived with their mother and until recently the father was only seeking to spend time with them.

5. The mother is the applicant in the proceedings. She filed an application to vary previous orders after the father filed a Contravention application but notwithstanding that there was considerable difficulty in getting her to engage in the proceedings. In March 2017 a warrant for her arrest was issued and she was brought to court by police. She subsequently attended court on some occasions but in the recent past she has not attended.

6. Not long ago [X] voted with her feet and left the mother’s care and went to live with the father and on 8 November 2017, because of the concerns expressed about the mother in the family report released in August 2017 and subsequent events including [X] leaving the mother’s care, I made an order that both children live with the father and they have lived with him ever since.

7. I made an order for the mother to spend supervised time with the children and some supervised visits did take place at (omitted family relationship centre) in (Town A) but the last visit prior to the preparation of the most recent family report was cancelled by (omitted family relationship centre) due to the mother’s presentation.

8. On 8 November 2017 I ordered the preparation of an updated family report and the mother attended the family report interviews which took place on 1 February 2018. However family consultant Ms D was so concerned about the mother’s presentation and about the uncertainty about the current state of her mental health that she recommended that careful consideration be given to how the report was released.

9. Ms D said as follows at paragraph 47 of the report:

   The mother made alarming comments about her current mental health and her intentions to self-harm if the Court proceedings did not go in her favour. While the mother’s presentation was histrionic, her reported mental health history including suicidal threats and her past threats to harm others, may indicate that there is some degree of risk associated with the mother’s wellbeing at this time. These issues are discussed in the “Mental Health” section of this report.[1]

   [1] Paragraph 47 of the Family Report dated 14 February 2018.

10. Ms D recommended that the father have sole parental responsibility for the children and that the children live with him. She said very serious consideration needed to be given to the extent to which and the circumstances under which the children saw the mother. She strongly recommended that the children have no contact with the mother’s partner Mr N. There are concerns about Mr N in relationship to drug use and criminality.

11. The family report makes particularly sad reading.

12. [X] left the mother’s care because of the physical and emotional abuse that she was being subjected to in the mother’s home. I subsequently made an order for [Y] to live with the father and [Y] found the change of residence difficult because she had always lived with the mother. However she has adapted to it and part of the reason for that is because she has a very strong bond with her sister and wishes to live with her sister.

13. [Y] appears to have been physically and emotionally abused by the mother. The family consultant said as follows:

    When asked to describe the mother [Y] explained that while most people could be “poked” about 20 times before they got angry; the mother could only be ‘poked’ 10 times. [Y] said that she could get away with “11 pokes” because “I know how to handle her better”.

    When asked what happened at ‘11’, [Y] paused for some time and became anxious and withdrawn. She eventually explained that she had an imaginary friend who talked her through the situation. She explained that it was like talking to herself, but her imaginary friend made her feel like she was not on her own. When asked what happened next, [Y] said that the mother eventually “calms down” but she is not sure what has happened or what the mother has said while her friend is there. It sounded to the family consultant that [Y] was describing a process of dissociation; a mechanism used to cope with the extreme stress caused by the mother’s behaviour at times. [2]

    [2] Family Report paragraph 130, 131

14. Ms D previously had a concern about the father’s commitment to being a full time father to the children but there is absolutely no doubt that in recent times he has stepped up and is now totally committed to looking after his girls. [X] told the family consultant that the father had made conscious changes so that he could be a good father to the children including cutting back on his drinking. She was very proud of the fact that the father had made that effort.

15. This is a complex matter in which there are issues with both parents and concerns about members of the extended family on the father’s side in particular but the only place for the children to be at present is with their father. They would be unsafe with their mother. I cannot make an order for them to spend even supervised time with her because there are serious concerns about whether she is using deleterious drugs and about the state of her mental health. She has failed to provide the results of a hair follicle test she allegedly did in August 2017 and prior to that she failed to do a number of drug tests requested by the Independent Children’s Lawyer. She has failed to attend Court recently and her presentation at the report interviews alarmed the family consultant. The children would be unsafe in her unsupervised care and there is no point in me making an order for supervised time.

16. Sad as it is for the girl, I am going to make orders in terms of the minute of order prepared by the Independent Children’s Lawyer and consented to by the father and I will settle these reasons so that they are on the file in case the mother brings another application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     26 April 2018