Yates & Woodford (No. 2)

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FAMILY COURT OF AUSTRALIA

Yates & Woodford (No. 2) [2021] FamCA 535

File number(s): MLC 4475 of 2017
Judgment of: JOHNS J
Date of judgment: 23 July 2021
Catchwords: FAMILY LAW – CHILDREN – parental responsibility – with whom children live – with whom children spend time – best interests of the children – family violence – children’s views – where the parents agree the maternal grandmother should have sole parental responsibility – where the parents have neglected the children – where the parents have exposed the children to family violence – where the parents have failed to avail themselves of the opportunity to communicate with the children – where the children have no desire for contact with the parents – where the mother seeks supervised contact with the children on four occasions per year.  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65C, 65DAA, 68B, 68L, 69ZW, 91B
Cases cited:

Bennett & Bennett (2001) FLC 93-088

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Mulvany & Lane (2009) FLC 93-404 [76]-[77]

Oberlin & Infeld [2021] FamCAFC 66

Number of paragraphs: 218
Date of last submission/s: 23 April 2021
Date of hearing: 19 – 23 April 2021
Place: Melbourne
Counsel for the Applicant: Mr Kanarev
Solicitor for the Applicant: Purcell & Purcell
Counsel for the First Respondent: Mr Allen
Solicitor for the First Respondent: Knight Family Lawyers
Counsel for the Second Respondent: Ms Teicher
Solicitor for the Second Respondent: Vernon Da Gama & Associates
Counsel for the Independent Children's Lawyer: Ms Glaister
Solicitor for the Independent Children's Lawyer: Macgregor Solicitors

ORDERS

MLC 4475 of 2017
BETWEEN:

MS YATES
Applicant
AND:

MS WOODFORD
First Respondent

MR CALDER
Second Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:

1.That the application of the first respondent to spend time with the children D born … 2008, E born … 2010 and F born … 2014 be dismissed.

2.That the parenting orders dated 29 April 2021 remain in full force and effect.

3.That all extant applications be otherwise dismissed.

4.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court…

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Details
Case
[2021] FamCA 535
Decision Date

CaseChat Overview and Summary

The case of *Yates & Woodford (No. 2)* involved an application before Johns J in the Family Court of Australia concerning parenting arrangements for three children, D, E, and F. The dispute arose from a history of family violence, neglect, and substance misuse by the parents, leading to the children living with the applicant, Ms. Yates. The first respondent, Ms. Woodford (the mother), sought supervised contact with the children, while the second respondent, Mr. Calder (the father), did not seek any orders for time with the children.

The primary legal issues before the court were whether it was in the children's best interests to have a meaningful relationship with both parents, and the need to protect the children from physical or psychological harm, abuse, neglect, or family violence. The court was required to consider the children's views, the parents' past conduct and capacity to care for the children, and the potential disruption to the children's current stable living arrangements.

Johns J reasoned that the children had been exposed to significant family violence and neglect in the care of their parents. The court accepted evidence that the children strongly opposed spending time with their parents and had not had meaningful contact for some time. The mother had previously failed to avail herself of opportunities for supervised contact and communication, and the father had conceded that no orders for him to spend time with the children were appropriate. The court found that the applicant, Ms. Yates, had demonstrated unwavering dedication and provided appropriate supports for the children, who had made significant progress in her care.

Consequently, the court dismissed the first respondent's application for supervised time with the children. The existing parenting orders, which granted the applicant sole parental responsibility and confirmed the children living with her, were maintained. The court also made orders by consent allowing the mother and father to forward letters, cards, and gifts to the children on a limited basis annually, providing an avenue for future connection should the children choose.

Orders

Orders of the court

MLC 4475 of 2017

BETWEEN:

MS YATES

Applicant

AND:

MS WOODFORD

First Respondent

MR CALDER

Second Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:

1. That the application of the first respondent to spend time with the children D born … 2008, E born … 2010 and F born … 2014 be dismissed.

2. That the parenting orders dated 29 April 2021 remain in full force and effect.

3. That all extant applications be otherwise dismissed.

4. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

On 8 December 2020 I made an order dismissing all extant parenting applications with respect to B and C. As a result, the proceedings before me relate only to the parenting arrangements for D, E and F (“the children”). With the finalisation of applications relating to B and C, Mr Eade was removed as second respondent to these proceedings.BACKGROUND This matter has a long and protracted procedural history. Proceedings were commenced in the Family Court of Australia on 10 May 2017, approximately one month after B, C and D commenced living with the applicant in Victoria. In her Initiating Application, the applicant sought final parenting orders with respect to all five children. The applicant filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence on 10 May 2017 with her Initiating Application. That Notice contained numerous allegations, including that the father perpetrated family violence against the mother and the children, that the mother and the father had used illicit substances in the presence of the children and that the care and welfare of the children had been neglected. The matter first came before Macmillan J on 11 May 2017. That day ex-parte orders were made which provided that until further order, B, C and D live with the applicant, the first and second respondents be restrained from attending upon the applicant’s home or approaching she and the children and appointing an independent children’s lawyer. On 23 May 2017 the matter came before Senior Registrar Fitzgibbon. The father did not appear at the hearing. Orders were made providing as follows:-IT IS ORDERED UNTIL FURTHER ORDER(1)That the children … spend time and communicate with the respondent mother as follows:(a)each Saturday from 10:00am until 5:30pm, commencing 27 May 2017; and(b)from 10:00am on Saturday, 10 June until 5:30pm on Sunday, 11 June 2017; and(c)at other times as agreed between the parties and Independent Children’s Lawyer (“ICL”), in writing, and prior to the date/s. (2)That changeovers occur with the maternal grandmother bringing the children to a place agreed, or failing agreement a public place and the mother returning the children to a place agreed, or failing agreement to a public place. IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER(3)That the respondent mother do all such things necessary to ensure that the children E and F are brought to the State of Victoria on or by 9 June 2017 and the said children to remain in the State of Victoria until further order of this Court. IT IS FURTHER ORDERED UNTIL FURTHER ORDER(4)That for the purpose of order 1 herein, order 2 made 11 May 2017 (a true copy of all orders made that day attached) only insofar as it applies to the first named respondent Ms Woodford, be suspended until further order or the adjourned date of hearing for the purpose of giving effect to the provision in these orders to enable any changeover and/or time being spent and return of the children. … The Senior Registrar also ordered the preparation of a s 11F assessment and requested a s 69ZW report from the Queensland Department of Communities, Child Safety and Disability Services. An ICL was appointed pursuant to s 68L(2) to represent E and F, as the previous appointment related only to the three eldest children.

Evidence

Evidence Before The Court

Given that position, I need not consider whether it would be in the children’s best interests and reasonably practicable for them to spend equal time or substantial and significant time with each party (s. 65DAA of the Act). THE EVIDENCE Findings are made on the balance of probabilities, having regard to the evidence. In applying that standard, the Court must consider the nature and subject matter of the case and the gravity of the matters alleged (Evidence Act 1995 (Cth), s 140). In what follows, statements of fact constitute findings of fact. I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the parties when giving evidence in Court. In making my findings I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings. The Applicant The applicant was an impressive witness, making concessions where appropriate. Throughout her evidence, the applicant was child-focussed and insightful as to the children’s differing needs. At times, the applicant appeared exhausted by the Court processes; she gave evidence as to the impact of the ongoing proceedings on her and the children. She described the numerous actions taken by the mother and the father against her, including complaints made to Worksafe in relation to the business in which she works, reports to DHHS and applications for intervention orders. Notwithstanding the burden those proceedings placed upon her, it was evident that her commitment and dedication to the care and protection of the children was unwavering. The applicant had a detailed understanding of the needs of each of the children and has been proactive in ensuring that they had appropriate supports when placed in her care. For example, both E and F had speech delays when they were initially placed in her care. The applicant has had E assessed and he has been diagnosed with an auditory processing disorder for which he is receiving treatment. Assessment has confirmed that neither E nor F have intellectual disabilities. However at the time they were placed in the applicant’s care, their functioning was well behind that of their peers. The applicant confirmed that the children have made significant progress with their schooling and are progressing well, at a standard appropriate to their ages.The Mother The applicant’s case was opened on the basis that there should be no change to the children’s current living arrangements. It was submitted that the children’s lives when living with the mother and the father in Queensland were chaotic and dysfunctional, with regular attendances by police and child protection to their home as a result of the inability of the mother and the father to appropriately care for the children. Although the mother denied the applicant’s allegations in her trial affidavit, during the course of cross-examination, the mother conceded that when in her care, the children were exposed to:-·Physical and verbal altercations between the parents;·The parents using foul language towards each other;·Police attendances at the parties’ home on numerous occasions;·The father smashing a window, causing glass to shower over the bed whilst the children and the mother were on it;·The mother and the father smoking marijuana in the home;·The mother smoking marijuana with the child B;·The father physically abusing B by throwing him backwards into a wall;·The mother obtaining intervention orders against the father for her protection and that of the children;·On occasions, the mother calling the police to the home to remove the father as a result of the father’s violence towards her and the children. The mother also acknowledged that notwithstanding the father’s violence towards her and the children, she had allowed the father to return to the home.

Decision

Reasons for decision

There are no other relevant facts or circumstances.CONCLUSION I have made orders that the applicant have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children. I am satisfied that such an order is appropriate having regard to my findings with respect to the children’s exposure to family violence and neglect in the care of the mother and father. Further, I am satisfied that that order is necessary, given my findings as to the high level of conflict between the applicant and the mother and the father. It is also common ground between the parties that the children should continue to live with the applicant. Given my earlier findings as to the need to protect the children from harm, the children’s views and the capacity of the applicant to care for the children, in contrast to my findings as to the capacities of the mother and father, I am satisfied that such an order is appropriate and in the children’s best interests. The father does not seek any orders that he spend time with the children. Given my findings in relation to his conduct, coupled with the evidence of Ms M as to the children’s views, the father’s attitude and lack of capacity to care for the children, I am satisfied that there should be no order for him to spend time with the children. The mother seeks an order that she be permitted to spend time with the children on four occasions per year, such time to be supervised at a contact centre. That application is opposed by both the applicant and the ICL. Having regard to Ms M’s evidence as to the potential disruption to the children were I to make such order, I am not persuaded that it is in their best interests for them to spend time with the mother. That view is bolstered given the mother’s history of failing to engage with the children. As noted earlier, previous orders have provided for her to spend supervised time with the children. The mother has not spent time with the children in accordance with those orders. Further, the mother has not provided cards, letters or gifts to the children for some years, nor has she communicated with them by telephone. Given that history, I am not persuaded that there is any benefit to the children in making further orders for supervised time. Ms M was clear that were supervised time to be ordered, it would need to be tightly monitored to ensure the mother did not undermine the applicant’s role in the children’s lives; she confirmed that such time would be superficial and limited. Having regard to the risk such time poses to the stability the children now have in the applicant’s care, I am not satisfied that the orders sought by the mother in relation to her time with the children are in their best interests. I have made orders by consent permitting the mother and the father to forward to the children letters, cards and gifts on up to four occasions annually. Provided that the mother and the father comply with that order, it will provide them with an opportunity to maintain a connection with the children. The evidence of Ms M indicates that in maintaining a connection in that manner, it will be open for the children to engage with their parents in the future, should they choose to do so.SHOULD THERE BE ORDERS RESTRAINING FURTHER PARENTING APPLICATIONS?

Ratio Decidendi

Legal Principle Established

Ms M’s assessments and reports were detailed and thorough. She was a forthright witness who provided thoughtful and frank responses to the matters put to her during cross-examination. I found Ms M’s evidence to be helpful, concise and cogent. Ms M’s evidence, which I accept in its totality, was of great assistance to the Court. SECTION 60CC CONSIDERATIONPrimary Considerations: Section 60CC(2)(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-119. … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ... …122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.(Original emphasis) At issue is whether there is any benefit to the children in attempting to frame orders so as to maintain a meaningful relationship with the mother and the father in circumstances where the evidence of the mother, the father and Ms M is that the children have been exposed to significant family violence and neglect in their care. Further, Ms M reports that the children strongly oppose spending any time with their parents. Previously when orders have been made for the parents to have supervised time with the children, to have the opportunity of communicating with them by telephone and to send them cards and gifts, the parents have failed to avail themselves of those opportunities. Given the father has conceded that there should be no orders for him to spend time with the children, it is implicit that he recognises that there is no benefit to them in maintaining a relationship with him. The issue for determination is what benefit, if any, there is to the children in making orders as sought by the mother. (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;