WEAVER & MAHER
[2016] FamCA 426
•2 June 2016
FAMILY COURT OF AUSTRALIA
| WEAVER & MAHER | [2016] FamCA 426 |
| FAMILY LAW – CHILDREN – Interim Parenting – With whom the children live with – With whom the children spend time – Best interests of the children – Parents’ relationship was characterised by violence, drug use, illegal behaviour and personal conflict – Where the father filed an application for further interim parenting orders while judgment was reserved – Where three of the children have special needs – Where the children have significant relationships with both parents – Issues of risk in each household – Mother to undertake relevant parenting courses – Three eldest children to spend day time with the mother – Youngest child to continue to live with her mother and spend time with the father – Order of equal shared parental responsibility to continue. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Banks & Banks [2015] FamCAFC 36 |
| APPLICANT: | Ms Weaver |
| RESPONDENT: | Mr Maher |
| INDEPENDENT CHILDREN’S LAWYER: | Louise Coady Family Lawyers Pty Limited |
| FILE NUMBER: | PAC | 4774 | of | 2013 |
| DATE DELIVERED: | 2 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 16 March 2016 and 18 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Braine (18 May 2016) |
| SOLICITOR FOR THE APPLICANT: | S P Nasti & Co Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Petrie (16 March 2016) Mr Othen (18 May 2016) |
| SOLICITOR FOR THE RESPONDENT: | Somerville Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Stolier |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Louise Coady Family Lawyers Pty Limited |
Orders Pending further order
That Orders 1 to 5 made on the 16 March 2016 be discharged.
That the Father Mr Maher and the Mother Ms Weaver have equal shared parental responsibility for the children B born … 2007, C born … 2010, D born … 2011 and E born … 2014.
That the children B, C and D live with the Father.
That the children B, C and D spend time with the Mother as agreed between the parties in writing with such writing to include SMS and email communication but in default of agreement each Sunday from 9.00 am to 4:00 pm (5.00 pm Daylight saving time).
That the child E live with the Mother.
That the child E spend time with the Father as agreed between the Mother and Father in writing with such writing to include SMS and email communication and in default of agreement:
(a) During the elder children’s school terms each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday;
(b) Each alternate Monday being a Monday following a weekend when E is not with the Father from 9.00 am to 5.00 pm in order that both E and D will be together on that day and provided always that the child D shall spend time with the Mother on each other Monday from 9.00 am to 5.00 pm in order that both E and D will be together on that day; and
(c) During the older children’s terms 1, 2 and 3 school holidays for the second week of such school holiday period commencing at 5.00 pm on the mid-point Saturday of such holiday and concluding at 5.00 pm on the day prior to the older children returning to school or as otherwise agreed between the Mother and Father in writing with such writing to include SMS and email communication.
That within seven days the mother do all things necessary to enrol in the “Tuning into Kids” course at Suburb G Family Centre and the Aspect Early Intervention Service Building Blocks – Early Play Home Program with the mother to follow all recommendations and referrals including the length of time engaged with these programs and provide to all parties any certificates of achievements obtained.
That, without admission, the mother and father shall be restrained from physically disciplining any of the children.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weaver & Maher 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: PAC 4774 of 2013
| Ms Weaver |
Applicant
And
| Mr Maher |
Respondent
REASONS FOR JUDGMENT
Context
The present proceedings are parenting proceedings commenced by the applicant mother in November 2013 in the Federal Circuit Court of Australia. At that time the mother sought parenting orders in relation to the children B born in 2007, C born in 2010 and D born in 2011.
The mother, aged 33, and father, aged 36, now have four children.
The parents began living together in about 2003 and married in 2007. They separated initially in November 2011 and then later finally in January 2013.
In summary, the mother sought orders that provided for:
a)The mother and father to retain equal shared parental responsibility for the children;
b)For the children C and D to live with the mother and for the father to spend defined time with the children;
c)For the child B to live with the father and for the mother to spend defined time with the child.
Otherwise the mother’s application sought a recovery order to facilitate the return of the children C and D to her care.
The father’s response filed in January 2014 in summary sought orders that provided for the father to have sole parental responsibility for the three children, for the three children to reside with him and for the mother to spend defined time with the children.
On 13 November 2013 the court, noting that all three children were at that time living with the father, ordered the appointment of an Independent Children’s Lawyer (“ICL”) to represent the interests of the children. It was relevantly further ordered that the child B spend time with the mother from 9.00 am to 5.00 pm each Saturday and the children C and D spend time with the mother each weekend from 5.00 pm Friday until 5.00 pm Sunday, with the children to spend time with the father when not spending time with the mother. Both the mother and father were further ordered to undertake drug screen testing by way of urinalysis.
On 7 February 2014 the proceedings were transferred to this Court. On transfer, the proceedings were identified as involving significant risk of immediate harm to the children and were included in the Magellan Protocol. A report was requested from the Department of Family and Community Services outlining that Department’s engagement with the family (Exh D).
On 17 February 2014 the Registrar ordered the preparation of a Family Report in anticipation of the proceedings proceeding to trial.
The Magellan Report 7 April 2014
The Department received the first risk of significant harm (ROSH) report in relation to the family in January 2009. The report raised concerns in relation to the child B being exposed to domestic violence within the family. A further report was received in September 2009 with the report raising concerns that the child B had again been exposed to domestic violence. The mother was later interviewed and was reported to minimise concerns held by the child protection case workers from the Department’s domestic violence team. The mother informed the Department that she would seek marriage counselling and enforce the then current Apprehended Domestic Violence Order against the father.
In May 2010 the Department received a further report outlining concerns in relation to domestic violence. It was alleged that the father had assaulted the mother in the presence of the child B. Once again the mother was interviewed and she minimised the concerns held by the domestic violence team. Both the mother and father then disengaged with the domestic violence team.
In December 2011 the Department received a report in relation to inadequate supervision for the child C at a time when the mother was shortly due to give birth to her third child. No action was taken in relation to the notification.
The Department received a further notification alleging inadequate supervision in January 2012 in circumstances where the mother had left the child C in the care of the maternal grandfather with the child suffering an injury whilst being cared for. At the time of this notification the mother was engaged with the Brighter Futures Program through the Department and no other action was taken.
In November 2013 a notification was received as to an assault by the father on the child C, striking the child on the bottom and drawing blood. The mother reported that she had addressed the issue but she had failed to report it to the Department or to the police. No action was taken.
On 2 December 2013 a further notification was received as to ongoing domestic violence between the mother and father. The mother was reported to be suffering from financial abuse and the report raise concerns in relation to the father using ice. A further report was received as to the father being diagnosed with bipolar disorder, passive aggressive behaviour and post-traumatic stress disorder. It was reported that the children frequently had unexplained bruises prior to visiting the mother on weekends. The notification was referred to the Brighter Futures Program which was engaged with the mother but it appears no further action was taken
On 4 December 2013 the Department received a report outlining concerns in relation to psychological harm. It was reported that the children attempted to intervene after the father physically assaulted the mother. No assessment was undertaken and no action taken. On 6 December 2013 the Department received a further report that outlined concerns in relation to significant bruising on the child C. These concerns were to be taken up with the father through the Brighter Futures Program. No further action was taken.
On 20 January 2014 the Department received a report that outlined concerns in relation to bruising to all three children’s limbs, legs and arms The children had been returned to the father after weekend time with the mother. Whilst the report was it appears investigated by the Department no action was taken. On 18 March 2014 the Department received a further report that outlined concerns in relation to small bruising on the child B after being returned from a visit to the mother. No further assessment was undertaken by the Department and no action taken.
Otherwise the Department had received nine other reports that were assessed as not meeting the defined criteria for ROSH.
Overall the Department expressed concerns in relation to the various notifications of the children returning from the mother’s care with injuries or bruising. Notwithstanding the Department’s significant engagement with this family the Magellan report indicated that the Department had no intention to intervene in the present proceedings nor take any further action.
The Family Report
On 17 April 2014 an order was made for the preparation of a Family Report in the matter. It was further noted that the mother had given birth to a fourth child in February 2014, with the father asserting that he was the father of the child and the mother being uncertain as to the child’s paternity. Subsequently it was ascertained that the father was indeed the father of this child, E, who was born in 2014.
The child E was subsequently included in the proceedings.
The Family Report was released to the parties on 28 November 2014 and proceedings adjourned to 22 January 2015 to facilitate the parties considering the Family Report.
On 16 March 2015 leave was granted to the ICL to provide a copy of the Family Report to the children’s therapist, Ms H, psychologist. It was subsequently noted that the parties were to engage in mediation arranged by the ICL.
On 21 May 2015 following completion of the mediation it was noted by the Registrar that the parties are trialling arrangements in relation to the children, that the father had commenced to spend time with the child E on alternate weekends and that the mother was now engaging with the children’s psychologist.
Judicial Management
On 17 June 2015 proceedings were listed before Hannam J for judicial case management. Orders were made that in summary provided:
a)That the mother and father within seven days file and serve an affidavit in relation to their engagement with ASPECT (Autism Spectrum Australia);
b)That the Secretary, Department of Family and Community Services is requested to intervene in these proceedings;
c)That the mother and father undertake urinalysis testing within 24 hours of being requested to do so by the ICL.
In her reasons for judgment (Weaver & Maher [2015] FamCA 509) as to the order requesting the Secretary to intervene Hannam J provided a useful snapshot of the issues as her Honour found them at that time:
MATTERS OF RISK AND CONCERN
8. The following matters have been identified by the parties, the Department and the author of the Family Report as relevant to this family.
Family violence
9. First, the parties have a volatile relationship history with each claiming to be the victim of violence perpetrated by the other parent. The relationship until final separation was characterised by separations and reconciliations.
10. Police records indicate numerous occasions when police attended the family home, Apprehended Violence Orders have been made and both parents have been found guilty of offences against the other. Police records indicate allegations of severe violence made by both of the parents against each other in the former family home.
11. The father’s criminal history reveals that he was placed on a good behaviour bond for firearms offences in 2009 and a condition of the bond was that he not assault, molest, threaten, intimidate or interfere with the mother. Police records indicate that a firearm for which the father was not registered was located unsecured in the family home at a time that the eldest child, [B], was a 15 month old baby.
12. However, while making allegations against one another, the family consultant was concerned that each of the parents minimises the level of violence to which the children have been exposed and demonstrates a poor understanding of the impact of family violence upon children.
13. The mother has also reported concerns about family violence since separation. She maintains that the father is verbally aggressive and controlling of her and that she feels intimidated by him. She claims that the father has used his position as carer of the children to avoid incarceration.
14. At one point the father’s gambling was identified as a “huge issue” in the parent’s relationship.
Children’s disabilities
15. The three eldest children have disabilities, with [B] and [D] being quite severely impaired as a result of their autism spectrum disorder. [C] has mild to moderate developmental delay. There are recorded concerns in Departmental records about each of the parent’s capacity to appropriately care for their disabled children and at the time of the family consultant’s assessment the mother had had no involvement in the children’s treatment, though the reason for this was a matter for dispute between the parties.
16. The father has made numerous allegations about the children being physically harmed when in the care of the mother, though it appears that he alleges the children are harmed by each other, as a result of the mother not being able to manage their behaviour, rather than by the mother.
Drug use
17. Each of the parents allege significant drug use by the other parent. The mother alleges that the father uses ice, cocaine and speed and Departmental records indicate a concern about the father’s alleged use of “ice”. As I understand it, the mother has also admitted to using cannabis since the age of 18 including through her pregnancies, although she currently denies using the substance. On the last Court occasion, orders were made for the Independent Children’s Lawyer to facilitate the parents participating in random urinalysis.
Father’s criminal activity
18. The father has an extensive criminal history and is at particular risk of incarceration in relation to driving matters. His criminal record includes eight convictions for driving while disqualified for which he has received a range of penalties over the year including imprisonment. He also has a record for numerous drink driving offences and firearms offences. Police records indicate that on one occasion when the father was driving while disqualified the mother, who held a valid driver’s license, and the children were in the car when it was being driven by the father.
19. It has also been alleged that the father has a mental disorder and there are concerns about some of his criminal associates.
Sexual harm in the mother’s home
20. In November 2014 the father alleges that following the children spending time with their mother, [B] and [C] both expressed fear of a person called [Mr F] who was present in the mother’s household and [C] asserted that [Mr F] had sexually assaulted him. According to police records, [C] made similar disclosure to a counsellor. In the course of a police investigation the mother apparently denied knowing a person by the name of [Mr F] and claimed no knowledge of the disclosures from the children. In the course of a JIRT interview, [C] told the JIRT officer that “[Mr F] hurts me” and repeated on numerous occasions that “[Mr F] opened my mouth”. It is to be remembered that these children have significant intellectual disabilities and for this reason are particularly vulnerable.
21. The mother resides with her parents but previous concerns have been expressed about the maternal grandparents’ capacity to assist her as they apparently both have serious health issues and their home has been described as unsafe and unhygienic. The children have on occasions been harmed as a result of accidents due to a lack of supervision whilst in the maternal grandparents’ care.
22. As noted, the family has been assessed by a family consultant for the purposes of a Family Report. However, a family consultant does not have the capacity to carry out an investigation, including home visits. Further, the applications before the Court involve competing proposals by the parents for the care of the children. It may be that following a more complete examination of the matter that neither parent is providing the children with good enough care to protect them from various forms of harm in this case. In these circumstances orders which by necessity involve the Department may be regarded as in the children’s best interest. For these reasons I made the order inviting the Department to intervene.
On 1 September 2015 Hannam J granted leave to the ICL to provide a copy of the Family Report to the Secretary, Department of Family and Community Services who had also sought access to other documents comprising part of the Court record.
By letter dated 1 October 2015 (Exh E) the Department informed the Court that it would not seek to intervene in the proceedings. Lest it be thought that the Department’s decision was made lightly it is useful to set out the Department’s reasons provided in the correspondence that provide a useful overview:
Upon receipt of the request the matter was allocated for assessment to [Ms I], Caseworker and [Ms J], Manager Casework at [Suburb K] Community Service Centre. Matters of concern that were identified by the parties have been assessed and information collated as follows:
Family Violence
1. The history of family violence between the parents has been noted. [Ms Weaver] and [Mr Maher] continue to remain separated and have not resumed their relationship.
2. The father’s criminal history indicated that he was placed under Home Detention for a period of twelve (12) months. Probation and Parole indicated that he has completed his sentence and that he was no longer under supervision as of 15.12.2014
3. There have been no further recorded incidents of criminal activity in relation to [Mr Maher] since the event which led to his home detention.
4. Review of police records indicates that there have been no reported domestic violence incidents or AVO’s in place between [Mr Maher] and [Ms Weaver]. The last reported domestic violence incident was on 24.11.2013 and was recorded Domestic Violence – no offence.
5. [Mr Maher] and [Ms Weaver] have indicated to FaCS that they will not be resuming their relationship at any time.
6. [Mr Maher] admitted to a history of gambling but indicated that was in 2011 and it was during the period of his life when he was suffering from depression Currently [Ms L], paternal grandmother, organises the budget for Mr Maher and has his money paid into her account. [Mr Maher] advises her when he needs money. [Mr Maher] realizes that historically he had a history of gambling and this is a way to overcome his addiction. [Mr Maher] is happy about the arrangement he has with his mother.
Children’s Disabilities
7. The three eldest children have disabilities. [B] and [D] have quite severe Autism Spectrum Disorder and [C] has a mild to moderate developmental delay. The children were not interviewed due to their limited language skills but they were sighted.
8. During the course of this assessment, information was sought to establish the supports and interventions that [Mr Maher] has employed in helping to care for the children.
[M School]
9. [B] attends [M School] in [Suburb N]. This school is designed to offer educational programs for students with special needs from their early years through to the end of high school.
10. [Mr Maher] informed the Department that he did not send [B] every day and that if [B] had a ‘bad day’ or a ‘melt down’ that he would not send him to the school the next day. [Mr Maher] also mentioned that some days B refuses to go to school and once again has a ‘melt down’. [Mr Maher] is considering home schooling [B]
11. The Principal of [M School] [Ms O] has indicated to Family and Community Services (FaCS) that [B’s] absences from school have a marked impact on his behaviour and ability to do his school work on his return. His teacher feels that he needs to ‘relearn’ things each time he comes back to school due to the number and length of his absences.
12. School records have shown that during 2015 [B] has had 61 days absent. [B] has had one partial absence, 28 sick with explanation and 32 days absent with no explanation. There appears to be nothing put in place at this time to address the numbers of days absent except for Mr Maher wanting to home school [B]. It is the caseworkers intention to meet with the school and discuss [B’s] attendance and put in place a plan to assist the father when [B] has melt downs.
Autism Spectrum Australia (ASPECT)
13. Autism Spectrum Australia (ASPECT) have been working with the three boys following a referral made for [B] on 3 February, 2012 and he was placed on a waiting list for the [P Centre] for language and speech therapy. [Mr Maher] indicated that he would accept a placement when one became available.
14. [B] was offered Aspect Building Blocks which is early intervention for autism where the therapist works both at the home and in the school setting. [B] was to have weekly sessions until the funding expired. The initial visit to the home was on 30 April, 2014 while the initial visit to the school was 20 May, 2014 [B] is still receiving a service from ASPECT
15. [C] and [D] were referred in February, 2014. ASPECT offered to the family home visits, early intervention and therapy. The initial home visit to the family was on 3 March, 2014 when [Mr Maher] was offered an Early Child Developmental Program for [C] and [D]. [D] concluded his sessions in November, 2014 and [C] concluded this service in January, 2015. On 29 July 2015 the ASPECT caseworker, [Ms Q], indicated that she has no concerns for the father’s care of the children.
R Society
16. [B] received services from the [R] Transition to School service between August 2012 and June 2013. This programme was to support [B] with transitioning into mainstream school settings. The [R] therapist worked with the family, pre-school and school to help [B] smoothly transition into kindergarten.
17. [C] is currently receiving a service through the [R] for occupational therapy, speech therapy and the estimated date of completion is 31 December 2015
S Pre School
18. Both C and D are attending [S Pre-school] every Thursday and Friday and every second Wednesday. [Mr Maher] placed both boys on the waiting list on 1 May, 2014 and as a result [C] commenced on 5 June 2014 while [D] commenced on 19 January 2015. Prior to this the boys were attending [T] Child Care Centre.
19. The Director of the [S] Pre-school confirmed that he is aware that [Mr Maher] has/or is engaging with a number of services which included ASPECT Early childhood development program, [R’s] Transition to school program, [U School] and [S] Skills Development Program
20. [Ms L], (sometimes together with [Mr Maher]) transports [C] and [D] to and from school daily. They are reliable and prompt and [Mr Maher] generally contacts the school if they are unable to attend. [Mr Maher] is involved in the process of developing and evaluating educational objects for [C] and [D]. He regularly discusses developmental and behavioural challenges with educators and implements the suggested strategies.
21. [Ms Weaver] has requested meetings at the pre-school on two occasions and attended with her mother. These meetings focussed on [C’s] development and emotional state and information in relation to promoting his development during access visits was shared by the Early Childhood teaching staff.
[U School]
22. [C] will be commencing kindergarten next year at [U School] in [Suburb V] which is special school that caters for children with mild to moderate developmental delay. A phone call was made to [U School] and [Ms W], the assistant PA stated that [Mr Maher] had made an application earlier in the year for [C] to commence at [U School] in 2016. C will commence on 28 January, 2016.
Brighter Futures – Suburb G
23. Suburb G MacArthur Brighter Futures were engaged with the family for a period of two years concluding in November, 2014. The Brighter Futures caseworker stated that she had worked with the family initially when [Mr Maher] and [Ms Weaver] were together, and when [Ms Weaver] left and [Mr Maher] had the primary care of the three boys she continued to work with [Mr Maher].
24. Brighter Futures was working with the family to de-escalate domestic violence in the home. When [Ms Weaver] and [Mr Maher] separated Brighter Futures worked with the parents to ensure a smooth changeover when the boys went to their mother for access. [Mr Maher] had completed a parenting program with the early intervention services and they also assisted with [Mr Maher] to obtain suitable housing.
25. Brighter Futures indicated they had met all the goals and the matter was closed. The caseworker indicated that in the time that she had worked with [Mr Maher] she had no concerns for the care for the children or the home and that the children had improved while they were in his primary care.
26. On 31 July, 2015 a phone call was made to [Ms H] who is the psychologist that was working with the family. [Ms H] indicated that she has not worked with [Mr Maher] for a while now and this was due to the distance that the family had to travel. [Ms H] is located in [Suburb X]. [Ms H] indicated that she spoke with the ICL and her recommendations were that the parents have share care of the children. [Ms H] said that she had spent time with the children and indicated that [Mr Maher] did not need counselling but just needed to learn how to teach the boy’s life skills. [Ms H] indicated that she had no concerns for the family.
27. [Mr Maher] informed FACS that all three children have reviews with their G.P on a 6 monthly basis. Contact was made with [Dr Y’s] office and the worker indicated that all three children do attend that service. [B’s] last visit was on 30 June, 2015, [C] was 3 March, 2015 and [D] was 18 September, 2014. This information was verified by phone calls to the [Z] medical centre on 18 September 2015
28. [B], [C] and [D] have all seen [Dr AA] in [Suburb N]. The last attendance for the boys was [B] – 11 September, 2014, [C] 10 December, 2014 and [D] 10 December, 2014.
29. All information received from the services which are or have been involved, which are ASPECT, [R], [S], [M School], Brighter Futures [Suburb G], indicate that [Mr Maher] has a good understanding of the children’s disabilities and is able to seek out support from services, advocate for the children and work with these services.
30. A referral was made by [Ms BB] from [DD Org, Suburb CC] for [Ms Weaver] to attend the [Suburb EE] Neighbourhood Service. The [Suburb EE] Neighbourhood Service is an Early Intervention Program and assists parents with children aged 0-12 years with advice, support, case management, home visiting and counselling.
31. After this referral was made that [Ms Weaver] was moved to [Suburb FF] as part of the Housing Temporary Accommodation Program (TAP) and for that reason this agency could no longer work with [Ms Weaver]. This is a generalised service for all children.
32. A referral was made to SWS Family Referral Service. This is a service that sets up a support plan to link the families to the right services. A telephone call was made to this service and [Mr F] confirmed while [Ms Weaver] has an open case with FaCS they cannot offer her any services.
Drug Use
33. [Mr Maher] admitted to trying ‘ice’ when he was with [Ms Weaver] and that was prior to the birth of [B]. [Mr Maher] further stated that following the birth of [B] he did not use any form of drugs.
34. During his period of house detention [Mr Maher] completed urinalysis on two occasions where the outcome was negative for illicit drugs. On 20 August 2015, [Mr Maher] completed a chain of custody urinalysis as requested by the caseworker, which was negative for illicit drugs.
35. [Mr Maher] completed urinalysis on 17 and 21 September, 2015. The results showed that on the 17th the sample was inconclusive due to dilution. The father indicated he drank water close to his appointment time in order to pass urine. There was no evidence of any drug use in the results for the 21st.
36. During the course of the assessment there has been no indication from any services that [Mr Maher] had appeared drug affected.
37. [Ms Weaver] admitted to using marijuana when she was about 18 years of age but states that she no longer uses and that the last time she used was two years ago.
Father’s Criminal History
38. [Mr Maher] has a criminal history dating back to 2000 which included assault, unregistered firearm and a large number of driving charges.
39. The last criminal charge for [Mr Maher] was in July, 2013 being a driving violation. On this occasion [Mr Maher] was sentenced to twelve months home detention which concluded 15 December 2014.
40. During a home visit on 29 July, 2015 [Mr Maher] spoke about his driving violations and acknowledged that he will not have a license for a period of eight years and that if he is caught once again driving without a license he will go to jail. The paternal grandmother, [Ms L] is aware of [Mr Maher] not being able to obtain a license and assists in transporting the children and [Mr Maher] to their various appointments.
41. There has been no record of [Mr Maher] having any criminal associates.
Sexual harm in the Mother’s Home
42. A full investigation by JIRT was carried out in regard to the allegations of sexual abuse of [C]. The abuse was not substantiated and it was concluded that [C] was safe.
43. [Ms Weaver] has informed FaCS that is she currently not in any relationship.
[Ms Weaver]
44. [Ms Weaver] is no longer residing at the home of her parents. She advised this is due to an altercation between [Ms Weaver] and her father over [Ms Weaver] lending money to [Mr Maher] to buy cigarettes. The altercation involved some pushing and shoving. [Ms Weaver] stated that the police were not involved and that [E] was in the bedroom with her grandmother.
45. The residence that [Ms Weaver] has moved to the [Suburb FF] area and is part of the Temporary Accommodation Program (TAP). The property was secured through Housing NSW. [Ms Weaver] is required to inspect six private rentals per week to remain in the unit.
46. The unit has three bedrooms and is on the ground floor. The bedroom the boys use when they visit was observed to be appropriate with an adequate number of beds and bedding and the house was also in a neat and tidy state.
47. [Ms Weaver] stated that her parents are her support but went on to say that she was unable to move back into their home as they were contemplating selling the property.
Department of Family and Community Services caseworkers have conducted assessments and investigations which have concluded that the children are safe in their current circumstances. Caseworkers concede that risk may be high due to historical information in relation to the parents however, current assessments have shown that there has been no reason to believe that the current arrangements are not suitable.
[Mr Maher] has sought assistance and is currently involved with relevant services to assist in the care of the children. Overall all services report, that [Mr Maher] is doing well and that there are no risk concerns.
[Ms Weaver] has indicated that she is happy with the status quo of the current arrangement. She indicated she was seeking the care of [C] because that is what was recommended in the family report. [Ms Weaver] will be referred to a family support service and to ASPECT to assist in care of the children when she has time with them.
Caseworkers will assist the family through any necessary casework for a further 60 days, during which a case plan will be developed with the family to provide guidance. A case plan is envisaged to address:
a. [Mr Maher’s] continuity of working with all relevant services
b. [B] improving his attendance in school and the father managing his meltdowns appropriately.
c. [Ms Weaver] being educated by ASPECT about the boys Autism and their needs.
d. [Ms Weaver] being referred to a Family support service to educate her around being a parent.
A risk re-assessment will occur prior to the matter being closed to ensure no risk factors exist.
It is for the above reasons that the Secretary for the Department of Family and Community services will not intervene in the current Family Court Proceedings. We are happy to continue to liaise with the Independent Children’s Lawyer should this assist the Court.
On 6 October 2015 proceedings were again before Hannam J and were adjourned to 18 January 2016 with the Court noting that the Department had declined to intervene, that the mother and father had reached some agreement in relation to future parenting arrangements which at present was not supported by the ICL and the ICL was continuing to monitor the mother and father’s drug use through ongoing urinalysis testing.
On 18 January 2016 proceedings were further adjourned to 12 April 2016 with the Court noting:
a)The Department’s ongoing engagement with the mother and father;
b)That the mother was currently in short term housing only without the children;
c)That the youngest child had recently moved into the care of the father; and
d)That the mother had failed to comply with two recent requests for urinalysis testing and that the father had returned two diluted samples.
The Present Applications: The Amended Response
Prior to 12 April 2016 and on 11 March 2016 the father filed an amended response that included relief sought by way of interim orders to the effect that he have sole parental responsibility for the child E, that the child E live with him, that the appointment of the ICL be extended to include the child E and that the child E spend time with the mother as agreed or ordered by the Court and that pending further order the mother be restrained from withdrawing the child’s enrolment at S Org and be restrained from collecting the child from those premises or attending at those premises.
The father’s amended response came before Hannam J on 14 March 2016. It was ordered that the appointment of the ICL be extended to include the child E and that the proceedings be listed for interim hearing on 16 March 2016.
On 16 March 2016 the mother filed an amended initiating application seeking final and interim orders in relation to the child E. The interim orders sought by the mother provided that she have sole parental responsibility for the child, that the child live with her and the child spend time with the father as agreed or as ordered by the Court.
At the interim hearing on 16 March 2016 the parties reached substantial interim agreement in relation to equal shared parental responsibility for all of the children, the living circumstances of the children B, C and D and the time those children should spend with the mother. Otherwise, orders pending delivery of reasons for judgment were agreed in relation to the child E without admission. The only issue for determination was the parenting arrangements for the child E.
The orders made relevantly were as follows:
BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT:
1. The Father [Mr Maher] and the Mother [Ms Weaver] have equal shared parental responsibility for the children [B] born … 2007, [C] born … 2010, [D] born … 2011 and [E] … 2014.
2. The children [B], [C] and [D] live with the Father.
3. The children [B], [C] and [D] spend time with the Mother as agreed between the parties in writing with such writing to include SMS and email communication but in default of agreement:
a. During school term each alternate weekend from 5:00pm Friday to 5:00pm Sunday commencing in the current school term on Friday 18 March 2016 and thereafter commencing on the first weekend after the resumption of school terms; and
b. During school holidays at the conclusion of Terms 1, 2 and 3 for the first week of such holiday periods commencing at 5:00pm on the day that school concludes to 5:00pm on the mid-point Saturday or as agreed in writing with such writing to include SMS and email communication.
WITHOUT ANY ADMISSION ON BEHALF OF THE FATHER AND PENDING DELIVERY OF REASONS FOR JUDGMENT AND BY CONSENT IT IS FURTHER ORDERED THAT:
4. That the child [E] live with the Mother.
5. That the child [E] spend time with the Father as agreed between the Mother and Father in writing with such writing to include SMS and email communication and in default of agreement:
a. During the elder children’s school terms each alternate weekend from 5:00pm Friday to 5:00pm Sunday being the weekend that the older children are not spending with the Mother pursuant to the orders made above;
b. Each alternate Monday being a Monday following a weekend when [E] is not with the Father from 9:00am to 5:00pm in order that both [E] and [D] will be together on that day and provided always that the child [D] shall spend time with the Mother on each other alternate Monday from 9:00am to 5:00pm in order that both [E] and [D] will be together on that day; and
c. During the older children’s terms 1, 2 and 3 school holidays for the second week of such school holiday period commencing at 5:00pm on the mid-point Saturday of such holiday and concluding at 5:00pm on the day prior to the older children returning to school or as otherwise agreed between the Mother and Father in writing with such writing to include SMS and email communication.
OTHERWISE BY CONSENT IT IS FURTHER ORDERED THAT:
6. The Mother shall facilitate changeovers for the purpose of the above orders by collecting and returning the three older children to the Father’s home as necessary and by collecting and returning the two youngest children as necessary.
7. The Father and Mother do all things necessary to ensure the continued attendance of [D] and [E] at the [S Org] on five days per fortnight in accordance with the routine for their previous attendances.
8. The Father and Mother do all things necessary to obtain from a GP a referral that will facilitate the child E being seen by a paediatric specialist for consultation and if possible diagnosis as to whether the child falls within the autism spectrum or suffers from any other disorder or disability.
IT IS FURTHER ORDERED THAT:
9. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
10. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
11. The matter is adjourned to a date to be fixed for delivery of reserved judgment.
12. Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon [Ms GG] on a date and at times to be advised for the purposes of the preparation of an updated Family Report …
As can be seen the subject of the reserved judgement was the parenting arrangements in relation to the child E only.
The Father’s Application in a Case
Whilst judgment was reserved and on 8 April 2016 the father filed an application in a case supported by affidavit that in summary sought orders as follows:
a)That the father have sole parental responsibility for all four children;
b)That orders 1, 2, 3, 4 and 5 made on 16 March 2016 the suspended;
c)That all four children live with the father; and
d)That the children spend supervised time with the mother at a contact centre.
The father’s affidavit revealed that he had retained the child E in his care notwithstanding orders made on 16 March 2016.
The father’s application in a case was listed before Hannam J on 12 April 2016 and adjourned to 26 April 2016. It was noted that the father was not currently making the three older children available to the mother as the father was of the view that the children were at an unacceptable risk of harm in the mother’s care. It was further noted that the ICL was of the view that in the event that the child E was not returned to the mother that child would be exposed to risk of harm in the father’s household. It was ordered by the Court that the children’s time with the mother recommence during the current school holiday period.
The mother on 16 May 2016 filed a response to the father’s application in a case that in substance sought that the orders made on 16 March 2016 continue pending further order and that both the mother and father provide an undertaking to the Court not to physically discipline the children whilst they are in their care.
The interim hearing was heard on 18 May 2016 and on that day judgment was reserved to a date to be fixed.
The Issues
The issues for determination were:
a)Whether there should be any change to the mother’s time with the three older children by reason of circumstances since 16 March 2016;
b)Whether there should be any change to the allocation of parental responsibility by reason of circumstances since 16 March 2016; and
c)What parenting arrangements should be put in place as to E.
Interim Parenting
In Marvel & Marvel (No. 2)[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence as follows:
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).
…
122. 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.
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 George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 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 Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was 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 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 s 60CC 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) FLC 93-582.
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.
…
52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of 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).
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 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)]; and
c)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)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 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. If an order for equal shared parental responsibility is made by consent the court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].
Best Interests of the Children
The Primary Considerations: s 60CC(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 & 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 & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.
Section 60CC(2)(b) – need to protect
This consideration arises from the father’s allegations as to the mother’s conduct in relation to the children. Objective evidence is indicative of the father’s assertions being made manipulatively for his own purpose, reflecting the family consultant’s concerns that he places his own needs over that of the children.
It is important that arrangements put in place reflect the concern expressed by the family consultant. That can be addressed by the father’s time with the children being specifically defined and with the mother and father if appropriate being able to agree as to other time or occasions that the children will spend with the father.
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
iii)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; and
m)Any other fact or circumstance that the court thinks is relevant.
The Father’s Case
The father relied on his affidavits filed on 11 March 2016, 8 April 2016 and 17 May 2016.
The interim arrangements in relation to the three older children were resolved by the parties by consent on 16 March 2016. Prior to those orders the older children had spent little time with the mother since they were withdrawn by the father about August 2015.
The father in his later affidavit evidence expressed concerns as to circumstances in relation to those children that have transpired since those orders.
The three older children spent time with the mother on the weekend of 1 April 2016 and were returned to the father at about 5.00 pm on 3 April 2016. The father and his mother on 2 April 2016 in the afternoon took the child C to a child’s birthday party where there was a group of other children.
On the evening of 3 April 2016 the father says that the child B said to him “mummy was angry and yelling very loudly”. The child had used similar words to the father on the evening of 20 March 2016.
On the evening of Monday 4 April 2016 the father observed some bruising on the child’s right forearm. The father asserts that the child said “mummy hurt me” with the child demonstrating by grabbing his arm.
The father informed the child’s school teacher as to the bruising and for some reason also informed the preschool attended by the child D. The father on 6 April 2016 forwarded an email to the caseworker at the Department of Family and Community Services as to the child’s disclosure and on the same day took all the children to see a Dr Y. The father asserts that the child C made a consistent disclosure to the doctor in relation to the bruising on his arm and said “because mummy angry and yelling very loudly”. It was suggested by the doctor that the mother might be able to attend some parenting classes in relation to her management of the older children.
The father expresses further concern that there has been some deterioration in the behaviour of the child B since time with the mother resumed. The child soiled his pants at school on 21 March 2016 and wet his pants at school on 4 April 2016. He further asserts that the two older boys have injured each other whilst fighting in the mother’s care.
The father expresses concern that the mother is not capable of caring for the older children over an extended period and in his affidavit sworn on 8 April 2016 indicated his intention not to make the older children available to the mother for the approaching school holiday period. Yet he makes no complaint in relation to the child D.
The father expresses concerns as to the mother’s transitory housing arrangements since August 2015. It appears this culminated in the father on 26 February 2016 retaining the child E in his care. The mother has now obtained subsidised housing through an agency of the NSW Department of Housing. The mother’s new housing is a three-bedroom home with two bathrooms where she has secure accommodation until at least March 2017.
The mother moved into her new premises at Suburb HH on about 4 March 2016 and on 5 March 2016 after having time with all the children by arrangement with the father she did not return the child E to the father. The father caused the police to attend at the mother’s new home on 12 March 2016, he asserting that the child E was in danger. The police had no issue with the mother’s arrangements.
The child E has been enrolled at the S preschool where she was attending five days a fortnight. On 9 March 2016 the father was informed that the child was not at preschool. The child did not attend as a consequence of the mother’s fear that the child would again be retained by the father.
The father has some concerns that the child E may be in the autism spectrum. These concerns are not held by the mother. He made arrangements for the child to attend for assessment on 22 March 2016. He expresses some concerns about the mother’s ability to engage in that assessment and diagnostic arrangement.
The father expresses concerns that the child E has spent little time with the older children for some months. Although this concern stems significantly from his unilateral withdrawal of the mother’s time with the older children and his limitation of the mother’s time with the older children such that between August 2015 and March 2016 they spent no overnight time with the mother.
The father resides with his mother on whom he is significantly dependent, particularly as he does not have a driver’s licence and has been disqualified from driving for a significant period until 2020. The father has recently served a period of home detention for driving offences and was subject to Probation and Parole supervision. He has been classified as a “Habitual Offender”. It is to be expected that any further offences will see him in custody.
The father notwithstanding has been significantly engaged in the health circumstances of the three older children and it is common ground that pending further order these children will remain residing primarily with him.
The father proposes that should the child E live with him that she will attend the U Primary School that is attended by the child C and caters for children with mild to moderate intellectual disabilities.
In what appears to be a concession to the father’s concerns as to her ability to cope for an extended period with the three older children the mother now seeks that they have time with her each Sunday on a day only basis. The father asserts that on the children returning from the limited weekend time they have had with the mother more recently that they have exhibited erratic behaviour and were hostile and aggressive towards each other until they settled over the next 24 hours or so.
The father proposes that the mother spend time with the older children at his home until such time as supervised care through the children’s contact centre at Suburb N becomes available. The father also opposes that the mother should be required to undertake educational courses on parenting and child behaviour management particularly as they relate to children in the autism spectrum. It is in the father’s contemplation that once the mother has demonstrated an appropriate capacity to effectively manage the children’s behaviour that the children’s time with her would be extended.
The Mother’s Case
At hearing the mother made an appropriate concession that in relation to the older children she would only seek to have them with her on a day only basis would happen each Sunday. That arrangement would facilitate the child E spending time with her older brothers on each alternate Sunday, on the other weekend from Friday evening until Sunday morning and with the child D each Monday in accordance with orders made on 16 March 2016. E would also spend time with her brothers during school holiday periods.
The mother relied upon her affidavits filed on 16 March 2016 and 16 May 2016.
The mother deposes as to her housing difficulties and it is clear that her circumstances saw her struggle with the care of the older children (Exh N). Her housing issue has now been resolved by the provision of subsidised housing through an agency of the NSW Department of Housing that would see her have settled accommodation in the foreseeable future. The mother’s housing appears to be clean and comfortably furnished (Exh H).
The mother is prepared to engage in an appropriate assessment of the child E for autism and/or intellectual delay. She complains that the father did not inform her of the assessment he had arranged for the child. The mother complains that notwithstanding the father’s protestations as to his involvement in the health circumstances of the older children that she has been informed by the children’s doctor that the father has not attended appointments for some time.
The mother says that notwithstanding the father’s limitation of her time with the older children she has seen them on at least two to three occasions each week.
The mother has been the primary carer for the child E since her birth and asserts that the child is primarily attached to her.
The mother strenuously denies causing any injury to the child C or any of the children. She specifically denies causing any bruising to the child’s right forearm as alleged by the father. The mother recalls the children B and C fighting with each other about the mother’s phone when they were with her for the weekend. She did not observe any injury to the child.
The father, she says, did not contact her in relation to the bruising. The mother denies the father’s allegations that she yells of the children.
The ICL
More recent requests for urinalysis testing of both the mother and father have not resulted in any adverse results although there was some suspicion as to some dilution of the father’s specimen (Exh G and H).
The ICL supports the continuation of the orders made on 16 March 2016 with modification in that :
a)The three older children’s time with the mother pending further order the each Sunday from 10.00 am to 5.00 pm;
b)That within seven days the mother do all things necessary to enrol in the “Tuning into Kids” course at Suburb G Family Centre and the ASPECT Early Intervention Service Building Blocks – Early Play Home Program with the mother to follow all recommendations and referrals including the length of time engaged with these programs and provide to all parties any certificates of achievements obtained; and
c)That without admission, the mother and father shall be restrained from physically disciplining any of the children.
The mother conceded that pending further order she would be agreeable to spending time with the three older children in accordance with the ICL’s proposal. The mother further agreed that she enrol in and participate in the courses proposed by the ICL.
Both the mother and father were agreeable to the order restraining physical discipline in relation to the children.
Discussion
Consideration is required as to the benefit for the children of having a meaningful relationship with both of their parents. That consideration is prospective and requires the Court to endeavour to fashion orders that would, as best as can be done in the circumstances, promote the children’s relationships with both parents. There is no dispute that the mother has been the primary carer of the youngest child E. The mother’s circumstances following separation have been to a great extent problematic and understandably have provided to the father some concerns as to the welfare of his young daughter. However the mother is now in settled circumstances in relation to accommodation into the foreseeable future. The continuation of the child’s relationship with the mother is important to the child’s ongoing development. There is no doubt that by reason of the historical care circumstances for E there is a strong inference that her primary attachment is to the mother. The child is barely two years of age and is in a significantly sensitive developmental age. The unsavoury and unsatisfactory aspects of the relationship between the mother and father have significantly diminished in the period since final separation. It is important to facilitate orders that would see the child having regular time with the father so that her secondary attachment to the father can appropriately develop and develop in the context of ongoing time with her older siblings. The ICL expresses concern as to the risk posed to this little girl should she move to primarily reside with the father. There is no doubt that the three boys in his primary care present significant and ongoing difficulties in terms of their management on a daily basis. Both parents provide evidence as to the robust nature of the physical interaction particular the between the two older boys. This causes the ICL to express concern as to E’s long-term presence in the father’s household should she reside there.
This consideration is indicative of the child remaining in the mother’s primary care and that orders for the child’s time with the father made on 16 March 2016 continuing.
The need to protect the children is given greater weight between the two primary considerations referred to above. The history of the personal relationship between the father and mother is littered with issues of domestic violence, drug use, abuse, financial manipulation and criminality. Fortunately by reason of the period of separation there is no risk of the children being exposed to issues that arise from the parties’ interpersonal relationship. Recent urinalysis testing is indicative that perhaps both the mother and father have ceased to use of illicit drugs. It is the father’s contention that subsequent to orders in March 2016 agreed to by him that provided for the older children to have substantial and significant time with the mother, circumstances have arisen that demonstrate that perhaps at present she is not able to cope with that time. He seeks to render that time available to the mother initially under his supervision and then otherwise in an institutional circumstance. To address this concern the mother has to her credit conceded that until she becomes more apprised and skilful in relation to her parenting skills relevant to the particular issues presented by the three older children she would seek only to have day contact. This arrangement would be much less disruptive to these older children who by reason of their health circumstances require certainty and predictability in their arrangements. Otherwise the father has demonstrated that the children living with him and he attending as best he can to their health issues in a meaningful way should be continued.
As to the child E the father expresses no significant concerns as to risk other than the mother’s now resolved residential circumstances. The inference must be that having obtained appropriate accommodation the mother is much more able to address the demands of the full-time care of this young child who regardless has been in her primary care since birth. On the other hand there are concerns expressed by the mother’s and the ICL should the child reside primarily in the father’s household as referred to above.
By reason of the children’s ages, the maturity and individual health issues there are no relevant views expressed by the children. If there were they would be given little weight in the circumstances of this matter
The children have significant relationships with both parents. The boys more so with the father by reason of his primary care of them mostly since final separation and E more so with the mother for the same reason. The mother’s relationship with the two older boys is overshadowed by her difficulties at present in dealing with the particular and individual issues presented by each of them but she has agreed to take steps to address those difficulties with a view to enhancing her relationship with the boys. The father enjoys a sound relationship with E who has and will spend appropriate time in his household.
The parties are at odds in relation to the extent to which they have been able to participate in major long-term decisions in relation to the children. The mother asserting to some extent that she has been locked out of relevant medical and therapeutic decisions made by the father in relation to the boys and the child E. The father for his part contends that the mother has not sought to remain engaged. The retention of equal shared parental responsibility by both parents in relation to all four children will ensure their capacity to remain engaged and seek without authority from the other relevant information relating to the children. This will be a matter more appropriately considered at final hearing.
The father has assumed the obligation for the primary maintenance of the three older children as they have remained primarily in his care. The mother has done so in relation to the child E.
As to the effect on the children of any change in their present circumstances the current proposals seek to limit the mother’s time with the older children that has only recently been reintroduced on an overnight weekend basis. As observed above the two older children’s circumstances are such that it is to be expected that they need regularity and predictability and the mother concedes that it may be more appropriate that she only have day only time with these children pending further order. It is not expected that such arrangement would have any adverse effect on the children. This issue becomes more starkly relevant in so far as the father’s proposal for the child E to move from the mother’s primary care to his primary care. It is to be expected that this would be a difficult transition for the child at her age moving from her primary carer and attachment figure to a household where she is but one of four and in circumstances where she may be at risk or threatened by the conduct or behaviour of the older children, as is the concern of the ICL. This consideration is clearly indicative of the present primary residence circumstances of the four children remaining as they are.
There is no issue as to the practical difficulty and expense of the children spending time with either of the parents.
The capacity of each of the children’s parents to provide for the needs of the children including their emotional and intellectual needs is the subject of much dispute between the mother and father. The retention of equal shared parental responsibility will facilitate both parents remaining engaged in the major long-term decisions in relation to the children’s lives pending trial. Yet at present the mother’s capacity to deal with the particular issues thrown up by the two older children’s health circumstances is at best problematic.
The mother and father have demonstrated in their relationship during cohabitation an inappropriate attitude to their children and to the responsibilities of parenthood. Their relationship was characterised by violence, drug use, illegal behaviour and personal conflict. Fortunately it appears that since separation circumstances have changed somewhat for the better. What transpires between now and final hearing will be a very relevant indicia of appropriate orders at that time.
Both parties make allegations of family violence or otherwise abhorrent behaviour one against the other. The conflicting evidence cannot be resolved in the context of this interim hearing save to note that the allegations have been made. There is no evidence of any family violence order relevantly applicable.
These are interim proceedings and as such it is not possible to consider making orders that would be least likely to lead to the institution of further proceedings. There is no other relevant fact or circumstances.
For the reasons discussed above the order for equal shared parental responsibility made by consent on 16 March 2016 in relation to all children will remain pending further order.
It is also clear that the best interests of the older children indicate a reduction in the mother’s time in terms as sought by the ICL and agreed to by the mother. The father’s concerns are appropriate but it is considered that a more sensible arrangement for day only time will be less disruptive to the two older children who require routine and predictability. This coupled with the mother’s willingness to engage in appropriate parenting courses should see a settling in the older children’s circumstances. It is otherwise clear that in the best interests of the child E she should remain in the mother’s primary care now that the mother has settled accommodation and her circumstances will not be unduly disrupted by the machinations of her older children.
There is no reason why the mother’s time with both E and D as a condition of the father’s time with E should not continue
For the sake of clarity fresh orders will be made in their entirety.
Orders will be made as set out at the forefront of these reasons.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 June 2016.
Associate:
Date: 2 June 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Duty of Care
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Negligence
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Causation
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Damages
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Appeal
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