FAMILY COURT OF AUSTRALIA

tamer & Brown	[2012] FamCA 717	

FAMILY LAW – CHILDREN – Allegations of Violence – Allegations of drug and alcohol abuse – Order that father spend supervised time with the children – Order that father communicate with the children 	

Family Law Act 1975 (Cth) ss 60B, 60CC and 61DA	

APPLICANT:	Ms Tamer	

RESPONDENT:	Mr Brown	

Independent children’s lawyer:	Mr Newman	

FILE NUMBER:	CSC	222		of	2011	

DATE DELIVERED:	2 July 2012	

PLACE DELIVERED:	Cairns	

PLACE HEARD:	Cairns	

JUDGMENT OF:	Benjamin J	

HEARING DATE:	2 July 2012	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Sinclair	

SOLICITOR FOR THE APPLICANT:	Bottoms English Lawyers	

COUNSEL FOR THE RESPONDENT:	No appearance	

SOLICiTOR FOR THE RESPONDENT:		

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:	Mr Victorie	

SOLICiTOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:	Newman Family Law	

		

Orders
1.	L born August 2004 and S born January 2007 (“the children”) live with the mother.
2.	The mother have sole parental responsibility for the children.
3.	The father spend time with the children on a fortnightly basis at the C Contact Centre or such other supervisor agreed by the parties for a period of no longer than three (3) hours duration on each occasion.
4.	Neither party shall be under the influence of, or have any illicit drugs or drug paraphernalia at their residence or in their possession, during the period of time the children are with them or in their care.
5.	The mother shall forward to the father at the conclusion of each school term a copy of the children’s school reports.
6.	The mother shall forward to the father copies of any school photographs.
7.	Every three (3) months the mother shall advise the father in writing as to the children’s health, extra curricular activities and general development and welfare.
8.	The parties shall inform the other party, within three (3) days of any change of residential address, contact numbers including landline numbers and email adddress.
9.	The father have telephone communication with the children each Wednesday and Sunday night between 7.00pm and 7.30pm with the father to initiate the calls and the mother ensure the children are in a quite location undistracted by telephone, computer or other diversions to faciliate and ensure uniterrupted telephone conversations with the father.
10.	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.
IT IS DIRECTED
11.	A copy of the reasons for these orders be taken out and placed on the court file.
12.	A copy of the reasons for decision be forwarded to the Independent Children’s Lawyer.
13.	The Independent Children’s Lawyer shall forward to the Department of Child Safety a copy of the following documents:-
(a)	the reasons upon which these orders are based;
(b)	these orders;
(c)	the case outline of the Independent Children’s Lawyer of 21 June 2012;
(d)	the affidavit and annexed reports of Dr K filed 17 February 2012;
(e)	the family report of Ms W filed 31 January 2012; and
(f)	Exhibit “1” on the court file
	IT IS FURTHER ORDERED
14.	This matter be removed from the list of cases requiring determination.
IT IS FURTHER DIRECTED
15.	Exhibit “1” remain on the court file.
16.	The appointment of the Independent Children’s Lawyer continue for a period of three (3) months from the date of these orders.
	IT IS CERTIFIED
17.	Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tamer & Brown 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 CAIRNS	

FILE NUMBER: CSC 222 of 2011

Ms Tamer 	
Applicant

And

Mr Brown	
Respondent

REASONS FOR JUDGMENT
1.	These are proceedings by Ms Tamer (“the mother”) in relation to the parenting arrangements for L, born in August 2004, who is now seven, almost eight, and S, who was born in January 2007, who is now five.  The respondent to the proceedings is Mr Brown (“the father”).  The mother supports the orders sought by the Independent Children’s Lawyer, namely the following:-
(1)	That the children live with her;
(2)	The mother have sole parental responsibility for the children;
(3)	The father spend time with the children on a fortnightly basis at the C Contact Centre, or such other supervisor as agreed by the parties, for no longer than three hours during each occasion;
(4)	That neither party be under the influence or have any illegal or illicit drugs in their residence or possession during periods of time that the children are in their care;
(5)	That the mother shall forward to the father, at the conclusion of each school term, a copy of the children’s school reports and photographs and keep the father informed as to the children’s health, extra curricular interests and activities and general development and welfare;
(6)	That the parties shall inform the other party within three days of any new residential address, contact telephone numbers including mobile numbers and land lines, and email addresses and;
(7)	The father have telephone communication with the children as set out in the case outline document.
2.	The father has, from time to time, been engaged in these proceedings but did not attend a joint Child Dispute Conference with Ms M on 9 August, did not appear before Willis FM on 19 September 2011, and before me on 8 May 2012.
3.	I note that the order of 8 May made by me was sent to the father shortly after that order was made and that the father did not appear today, despite being called on two occasions, once shortly before 9.00 am in accordance with the order made on 8 May and, secondly, at about just before 11 o’clock on the same day.  I am satisfied on balance, and in the absence of any further material, that the father has knowledge of these proceedings and has, in recent times, not engaged in these proceedings.
4.	In terms of the background, I set out the chronology prepared by the Independent Children’s Lawyer in paragraph 3 of his case outline filed 21 June 2012:-  
CHRONOLOGY
	Date	Event	
[...1979]	Mother [Ms Tamer] born.	
[…1983]	Father [Mr Brown] born	
20.01.00 – 16.02.11	Court Outcome Report for [the mother] outlining charges and conviction history from Jan 2000 to Feb 2011 for break & enters, Wilful destruction, Possessing dangerous drugs, supplying dangerous drugs	
[…] 02.01	[P] (child of the Father to an earlier relationship) born	
12.09.01 – 07.10.10	Court Outcome Report for [the father] outlining charges and conviction history from Jan 2000 to Feb 2011 for possessing dangerous drugs and failing to appear	
2002	Parties commence relationship in [Town Y]. 	
18.11.2002	[P] the subject of a Department of Child Safety investigation intervention	
20.05.03	[P] removed from his biological Mother’s care (Ms R)	
Aug 03 – Dec 06	[P] lives with the Applicant Mother and Respondent Father	
[…] 08.04	[L] born 	
Late 2004	[P] commences spending time with the father overnight, remains living with the parties until January 2007. 	
2006	Mother alleges that father is diagnosed as skitzophrenic. 	
20.01.06	Police attended – mother smacked child, indigenous persons tried to remove child from mother.  Child has no physical injuries visible.	
27.03.06	Report of child screaming – informant heard sound of slap – this behaviour been ongoing for months.  Police attended. Parents spoken to about disciplining children – matter referred to [Town P] JAB.  Memos regarding meeting discussions of ABU, and SCAN from 29.03.06 to 19.02.07	
08.05.06	Dept of Child Safety notified - child heard screaming. Mother advised child ([P]) had tantrum while being punished for lying, Mother tried to feed child Curry powder for discipline, child refused, mother slapped child across face, slight bruise above child’s right eye.  10 day response required to assess risk of harm to children and whether intervention required.	
[…] 01.07	[S] born	
04.11.08	Police attended [Town P] State Primary School.  Child disclosed step mother – [Ms Tamer]– hit him with belt for telling lies.  Large bruise on outside of upper right thigh.  [Ms Tamer] admitted using belt as nothing else working and child being destructive.  	
12.11.08	[P] has bruise on upper right thigh – states caused by mother ([Ms Tamer]) smacked him with a belt because he told a lie.	
06.05.09	Heated argument between [the mother] and [the father] which intensified with [the father] taking hold of [the mother]’s throat, punching her about the ears and ripping her shirt.  Witness intervened and separated.  Children situated in lounge room in earshot of argument.  	
11.06.09	DV incident – [the father] and [the mother].  [The father] hitting [the mother] around the head several times then refusing to leave the home.  Sister [Ms A Brown] pulled [the father] off [the mother].  [The father] denies punching [the mother] stating he was defending himself from [the mother] after being struck first.	
28.08.09 and 03.09.09	28.08.09 Adults – [The mother] [the father], [Ms A Brown] and [Mr J].  Altercation when [Mr J] became aggressive towards [Ms A Brown].  [The father] intervened and removed [Mr J] out of the yard.  Alcohol present and parties appeared intoxicated.  [Mr J] exhibited aggressiveness in front of children.  Five children present – no visible injury or harm to children although distressed and crying when police arrived.	
19.05.10	Police executed search warrant – found 77 rounds ammunition under house.  Offender – [the father] states given to him by unknown to hold.  [The father] placed in brown paper bag under house to conceal.	
02.06.10	Notification that [the mother] abusing child [P], smoking marijuana in front of children, making child [P] stay up all night and look after siblings while she goes out.  Child [P] with [Ms R] (biological mother).  Child presents malnourished and underweight and referred to [Dr E] to determine abuse.  	
11.11.10	Father removes the Children from Mother’s residence following Department of Child Safety notification with allegations of drugs in the Mother’s house, glass on the floor, blood splatters and poor care for the children.	
25.11.10	Report to Dept of Child Safety that on 11 November residence was attended.  Residence full of broken glass. Glass in front door broken and remnants on the floor.  Broken glass window in lounge room.  Blood observed up the walls and ceiling and odour of urine in the house.  Notifier aware that mother punched child ([L]) in the back with closed fist, also smacked boy around his back.  Notifier aware person dealing heavy drugs came to door asking when they were to get drugs and talking about getting needles.  Daughter whinging for food, Mother telling her to shut up but provided daughter with macaroni and cheese.  All adults drinking.  Concerns about physical discipline witnessed.  	
25.11.10	[The father] has removed children from [the mother].  [The mother] unaware of children’s location and they did not attend school as scheduled.  Concerns for children’s safety given [the father]’s mental health.  Police contact with [the father]’s former foster mother – she has not heard from them since Friday – stated [the father] removed children as house was a pigsty with broken glass – stated [the father] may be in Townsville with children – she has no concerns for their safety.  [The mother]’s Solicitor advised of information.  	
25.11.10	Discussion with [the mother]’s Solicitor – Jennifer Hartley (Bovey Solicitors).  Solicitor phoned wanting to know situation.  Advised department’s response – Solicitor will inform client	
25.11.10	Contact from Innisfail Probation and Parole.  [Ms D] from Probation and Parole called to ensure aware that [the father] had taken children, did not have any child protection concerns, police involved also had no concerns, [The father] meeting his parole conditions, aware [the father] living in [Town Y] maybe at a camping ground.	
26.11.10	[The father] attended [Town Y] Police Station stating he had attended [Town P] to see his children and found the house they were living in was a mess. [The father] stated there was blood on the floor and dishes had not been done for a week. Children were sleeping on couches not in beds. 	
30.11.10	Notifier advised – [the] father took children from mother, S taken to hospital last Tuesday dehydrated, Mother took S from hospital, children and father staying with grandmother, grandmother minding children while father working, grandmother left children with minder to go shopping – came home and mother had been to her house and taken children – six people in car unsafe.	
14.12.10	Police attend [Property A] and conduct welfare check on subject children. Police observed both victim children who appeared happy and healthy. Both children interacted positively with the Police. Both children however appeared to have poor communication skills. Overall condition of dwelling was cluttered and untidy. No blood was found on the floors and kitchen in particular was very clean. Appropriate bedding clothing and toys were observed by Police. 	
15.12.10	Outcome of Welfare check by Police.  Police attended, children and home in untidy but not unhygienic condition.  Mother advised served with eviction notice and will be moving to her mother’s residence in [Town U].	
23 /24.12.10	Mother moves to resides with her Mother in C.	
12.2010	Mother stops allowing Father to have contact with the children. 	
2010	Father seeing children once a fortnight, parties living in Town P. 	
13.01.11	Father removed children from Mother’s care in November 2010, Mother took children back in December 2010, Father has not seen or heard from children since.  Father contacted police who advised that as no Family Court orders in place this is not a legal issue.  Father advised to contact Child Safety and pursue Family Court in relation to matter.  	
21.05.11	Police attended [a local] Park in [Town P] and located child. [P] appeared to be healthy and reasonably well kept. Child stated he did not attend High School as he was expelled and was now working on a fruit farm picking fruit. 	
26.05.11	While intoxicated [the mother] and [Mr G] had verbal argument about [Mr G] cheating on [the mother], which escalated to physical.  [Mr G] pushing [the mother] to ground several times.  Witness intervened, advised [Mr G] police called, [Mr G] decamped on foot.  Police attended, [the mother] taken to hospital by QAS, [The mother]’s step father present and advised of occurrence as outlined above.   Police patrol – [Mr G] unable to be located – avoiding police as currently flagged for return to prison warrant.  Police attended [C] Base Hospital – [the mother] not forthcoming and not wanting to assist, gave conflicting version of events indicating witness had ill feelings towards [Mr G] and was prejudiced against him.  Children in another room but within earshot of altercation.  	
27.06.11	Orders made granting the Mother sole parental responsibility for the children to live with her. Father not to remove the children from the Mother’s care.	
09.08.11	Father did not attend joint Child Dispute Conference with [Ms M]. 	
19.09.11	Father fails to appear before Federal Magistrate Willis	
05.12.11	Father and Mother appear before Federal Magistrate Willis	
08.05.12	Father fails to appear before Justice Benjamin	

5.	That chronology raises the concerns of the Court in relation to these children, having regard to the significant involvement of both parents in one form or another with the criminal justice system and in terms of child protection and some serious issues in relation to; in particular, the mother’s discipline of the father’s other child, P.
6.	The mother relies upon her affidavit filed 20 April 2011, which provides an outline, at some levels, in terms with that set out in the Independent Children’s Lawyer’s case outline (the latter of which is supported by Exhibit ICL1 in the detailed material provided in that regard) but gives a somewhat innocuous and sugar-coated approach in relation to the care of the subject children and the mother’s relationship with P.  When one goes to the Exhibit, it appears and it is clear that there is far more to this than is described in the mother’s affidavit.  However, in recent times, the mother seems to have managed her life in a better way.  The report of Dr K, which is part of the material from the Independent Children’s Lawyer and was filed on 17 February 2012, contains an assessment of the mother and assessment of the father and a conclusion.
7.	On page 8 of his report Dr K concludes:-
I have now seen these two people and prepared reports about both of them and can summarise the situation as follows:  
The mother of the two children has clearly had a significant period of drug abuse over the years but impresses well at this stage, has the support of her mother and others and I do not have any serious concerns about her ability to satisfactorily look after the children at this stage.
8.	Having regard to that evidence and the reliance of that by the Independent Children’s Lawyer, whilst I am not sanguine in the circumstance in which these children find themselves, it is certainly better than where they were in the past.  Dr K goes on to say:-
There have been concerns in the past but I do not think they continue to be a problem.  In addition, I would have to say that she seems reasonably amenable to the idea of the father having contact with the children but appropriately thinks supervision would be appropriate.
9.	He goes on to say:-
Having seen the father, I would say he is very intellectually limited, suffers from schizophrenic illness, has been drug abusing significantly until fairly recently and requires continuing long-term psychiatric treatment and surveillance and I would see him as being simply incapable of being an effective parent at this juncture and probably into the foreseeable future - at least insofar as looking after the two young children in a responsible and appropriate manner and without supervision.  
I would add that he is a pleasant fellow and I can well understand the children would have attachment to him and he to them and I think he should be encouraged to have his supervised contact - other than with the mother.  
Of course the contact would have to be contingent upon him continuing to have treatment, continuing to avoid drugs and minimising his alcohol content.
10.	Having regard to all of the evidence, I am satisfied that this approach suggested by Dr K makes a significant amount of sense.  A family report was prepared by Ms W and filed on 31 January 2012.  Also, there had been a memorandum prepared by the Family Consultant Ms M in September 2011.  In that latter report, much of the material upon which the Independent Children’s Lawyer relied was suggested and it was also, of course, suggested by her that an Independent Children’s Lawyer ought to be involved.  That, again, was a wise and sensible approach as it has put before me all of the material to which I have alluded to earlier in these reasons.
11.	In terms of Ms W, she asked the Court to have regard to the children’s bond to the parents and the father’s mental health.  Ms W noted that the bonds between the parents and the children appeared to be strong and secure and the children are securely attached to both parents.  She also looked at the parents’ ability to moderate their behaviour and diminish their use of drugs.  She observed that the parents had reasonably good parenting skills, provided, in some circumstances, in the terms of the father, it seems, that it be limited in time and supervised.  She recommended in January of this year that the children live with the mother and the father have fortnightly supervised time.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
12.	The provisions in the Family Law Act 1975 (Cth) (“the Family Law Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm.  These objects are contained in s 60B(1) of the Act, which provides:-
(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). 
13.	When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration.  In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
14.	There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.   
15.	If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable. 
16.	I have had regard to the principles set out in ss 60B, 60CC, 61DA, 61D(2)A and the other relevant sections. 
17.	I have also have regard to the new amendments in regard to violence and I have had regard to the allegations of violence, the facts asserted by the mother and contained in the material and I have put in place orders which will, in my view, provide protection for the children in relation to violence and be treated in accordance with the new amendments in a serious and significant regard.
18.	It is clear that both of these children have a meaningful relationship with both their parents and that it should continue.  However, having regard to the father’s difficulties which Dr K has outlined and I have referred to earlier and the father’s ability, from time to time, or his actions, from time to time, to act without thinking of the consequences, the time the children spend with him, at least at the present time, needs to be supervised to enable the relationship to continue and enable it to continue in a safe way.
19.	The children have been exposed to violence and have been exposed to psychological harm by the actions of both of their parents over the years.  The only way that can be adequately managed is to leave them in the primary care of the mother and allow her to have sole parental responsibility.  As I have said earlier, I am not entirely sanguine with this view because the mother has shown a capacity in the past to meet her own needs and not the needs of the children.  Unfortunately, this Court cannot impose a requirement upon child safety authorities and state government instrumentalities to manage and watch children.  Although, in this case, I intend to direct that the Independent Children’s Lawyer forward a copy of the material and a copy of Exhibit ICL1 to the State Child Protection Authorities so that they can at least be informed of the difficulties in this matter and if these children come to their notice in the future, then they (the State Child Protection Authorities) are at least well armed to deal with that.  I will also be directing that the Independent Children’s Lawyer forward a copy of these reasons, when published, at the same time.
20.	But the mother has, it appears, managed.  She has endeavoured to be a good mother all the way through but she struggles, it seems to me, with issues from her own upbringing, including her attachment to drugs and her focus sometimes on herself and not on the children, so any criticism I have of her has to be seen in that light.  She has clearly endeavoured to meet and address the issues raised by the experts in this case and whilst I am not without concern, I am satisfied, on balance, that she will put the best interests of the children ahead of her own, provided she has some support and assistance and to that end, her mother will provide some direction in that regard.
21.	The father needs more supervision and that will be dealt with by him spending supervised time with the children.
22.	I had considered whether I ought to make orders preventing the changing of the arrangements without the matter coming back to the Court.  However, it seems to me that this would put an unnecessary burden upon the parents and would put them in a conflictive situation into the future.  Although, that might be something I would continue to consider if the parties come back to court again in the future.
23.	The children clearly want a relationship with both parents and, to the mother’s credit, she has put aside some of the aspects of the past and is open to and, in fact, encouraging of a relationship between the father and the children, provided it is done in a safe way.  I am satisfied that the mother will facilitate a relationship between the father and the children.  The father will do so, although there are some issues in respect of his ability to do so in a continuing way.  The mother has been the primary carer of the children for most of their lives and the father has been engaged in their lives on a less time focused basis, but in a way that has enabled them to have a relationship with him.
24.	The orders are not likely to put in place any significant change and the only practical difficulty is finding time at the C Contact Centre.  However, the father has available for him, if that does not work, other options, including other forms of supervision.  The mother has shown a capacity to care for the children, including meeting their emotional and intellectual needs.  The father has acknowledged that sometimes that task is a little beyond him.
25.	The Independent Children’s Lawyer says and I accept:-
Both parents can be criticised historically, for their lack of responsibility towards their care of the children.  The mother, however, since the commencement of proceedings, has demonstrated an acceptance of the responsibilities of parenthood in her care of the children.
26.	I think that’s a fair assessment, having regard to the evidence, and I adopt that assessment.
27.	The children have been exposed to and have witnessed family violence, drug abuse and neglect and this has warranted the intervention of the relevant State Welfare Authorities.  I do not go into that in detail, although I have had regard to all aspects of it and that is one of the reasons that the Independent Children’s Lawyer recommended the course that I adopt and I have, in fact, adopted that course and, to the mother’s credit, she has done likewise.  I am told that there are no current domestic violence orders.
28.	These orders are in line with the recommendations of the experts and I intend to make those orders.  This is, again, an example where the Commonwealth and State jurisdictions end up in their own silos and can, although not necessarily in this case, mean that children are left exposed because of the private nature under the Family Law Act and the public nature in the care and protection legislation.  I note, with interest, that the Queensland Government announced over the weekend that it was undertaking an enquiry in relation to child protection in this State.  Perhaps they may look at the troubles that occur with this duopoly of the care of children and have regard to those children whose lives are damaged when they are caught between the two systems.
29.	There is violence, so therefore the question of equal shared parental responsibility does not apply.  In any event, I would not have ordered sole parental responsibility on the basis of the nature of the relationship to which I have alluded going through the section 60CC factors.  It clearly could not work and would not enable the proper parenting of these children.
30.	In terms of residing with the mother, I simply reiterate what I have said earlier and in terms of the father, I say the same in respect of time that he spends with them and how he communicates with them.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 July 2012.

Associate:	

Date:		2 July 2012