FAMILY COURT OF AUSTRALIA

GAREY & TATHAM and ors	[2015] FamCA 156	

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – where the Department of Family and Community Services intervened shortly after proceedings were commenced – where the children’s parents ceased participating in the proceedings and have ceased seeking contact with them – where the maternal great aunt and her partner have been the children’s foster carers for the past 12 months – where the children’s attachment to the foster carers needs support and protection –  where the parents have limited capacity to meet the children’s needs and the mental health of each has adversely affected their ability to care for the children – where the intervention of the Department has brought strong, positive benefit to the lives of the children – parental responsibility for both children to be allocated to the Minister – children to live as directed – children to spend supervised time with the parents six times per year 	

Family Law Act 1975 (Cth), ss 60CC	

APPLICANT:	Ms Garey	

FIRST RESPONDENT:

SECOND RESPONDENT: 

INDEPENDENT CHILDREN’S LAWYER:	Mr Tatham

Ms B Garey

Flintoff Lawyers
	
INTERVENER: 	Secretary, Department of Family and Community Services 	

FILE NUMBER:	NCC	492		of	2013	

DATE DELIVERED:	12 March 2015	

PLACE DELIVERED:	Newcastle 	

PLACE HEARD:	Newcastle	

JUDGMENT OF:	Cleary J	

HEARING DATE:	15 December 2014	

REPRESENTATION

APPLICANT:	No appearance	

first RESPONDENT:	No appearance	

second RESPONDENT:	No appearance	
		
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	
Mr Rugendyke	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	

Flintoff Lawyers 	

COUNSEL FOR THE INTERVENER:	

SOLICITOR FOR THE INTERVENER:	
Mr Katerris

Crown Solicitor’s Office 	

Orders
(1)	That parental responsibility for the children C (“C”), born … 2001 and D “(D”) born … 2009, be allocated to the Minister for Family and Community Services until the children each attain the age of eighteen years.
(2)	That C and D live as directed by the Secretary (formerly Director-General), Department of Family and Community Services (“the Secretary”) or his delegate.
(3)	That D spend time with the father, Mr Tatham, six times per year, for a period of two hours on each occasion, at times and places nominated by the Secretary or his delegate, and that such time be supervised by the Secretary or his delegate.
(4)	That the time which D is to spend with the father pursuant to Order 3 above and with her mother pursuant to Order 6, be subject to her wishes and feelings once she attains the age of twelve years.
(5)	That, subject to his wishes and feelings, C spend time with the father, six times per year, for a period of two hours on each occasion, at times and places nominated by the Secretary or his delegate, and that such time be supervised by the Secretary or his delegate.
(6)	That C and D spend time with the mother, Ms Garey, six times per year, for a period of two hours on each occasion, at times and places nominated by the Secretary or his delegate, and that such time be supervised by the Secretary or his delegate.
(7)	That the mother and father are required to advise the Secretary or his delegate of their current residential address and telephone number at all times.

IT IS NOTED that publication of this judgment under the pseudonym Garey & Tatham & Ors 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 NEWCASTLE	

FILE NUMBER: NCC492 of 2013

Ms Garey	
Applicant

And

Mr Tatham	
First Respondent

And

MS B GAREY
Second Respondent

AND 

Independent Children’s Lawyer

AND

Secretary, Department Of Family And Community Services
Intervener

REASONS FOR JUDGMENT
Introduction
1.	These proceedings relate to two children, C aged 14 and D aged five years 10 months (“the children”).  
2.	Both children live with the maternal great aunt and her partner.
3.	The parents of the children are the mother aged 36 and the father aged 41 (“the parents”).
Short History of Relevant Events
4.	The proceedings were commenced by the mother in March 2013 and responded to by the father in July 2013.  However by the time this matter came before me for final determination on 15 December 2014 both parents had ceased participating in the litigation.
5.	The Secretary, Department of Family and Community Services (“the Secretary”) intervened in the proceedings on 26 June 2013.
6.	On 16 August 2013 interim orders were made in this Court granting parental responsibility for the children to the Secretary and providing that the children live as directed.
7.	The matter was stood over for further hearing.
8.	The children had been separated.  C living with the mother and D living with the father.
9.	Attempts were immediately made by the father to remove D from day care on 16 August 2013, in order to avoid the consequences of the orders.  This attempt was unsuccessful.
10.	The mother however absconded with C. 
11.	A Recovery Order was issued and ultimately on 2 October 2013 the mother delivered C to Community Services and he was placed in departmental foster care.
12.	On 28 December 2013 C was placed in the care of the maternal great aunt and appears to have done very well in that placement.
13.	D joined him about six weeks later on 7 February 2014 and both children have remained in the care of the maternal great aunt and her partner.
14.	Fortunately for the children, this placement is expected to be a permanent one, at least until each child turns 18 years of age and thereafter by agreement.
The Evidence 
15.	In the absence of the parents, evidence was put before the Court by the Secretary as follows: 
 Ms E
16.	Ms E was a child protection case worker with responsibility for the two children.  Ms E has been responsible for managing the children’s transition to their current placement, for organising medical and psychological assessment and support, and for arranging and managing time between the children, each of the parents and other family members.  
17.	Ms E stated that she had not had requests from either parent for contact visits since 10 November 2014, however it is anticipated that the parents will seek contact from time to time.  There will also likely be regular contact between the two young children of the father and his now estranged partner.
The maternal great aunt
18.	The maternal great aunt’s evidence suggested that she is well able to manage the very different needs of the children and is attentive to what is going on in their emotional lives and at school.  She reported that C is compliant with completing homework in a way that he was not originally. He found work for himself in order to raise funds to buy Christmas presents for the family.  D experiences outbursts of frustration and anger which is hardly surprising.  The maternal great aunt gives her the opportunity to settle, collect herself and re-engage with activity in a way that seems entirely appropriate.  She has also arranged for the children to spend time with the mother’s adult daughter who the children “love very much” and other family members, such as cousins.
The maternal great aunt’s partner 
19.	The maternal great aunt’s partner provides a kind but firm male presence in the lives of the children, especially C whom he described as “pretty introverted”.  He allows the children to speak about anything they want to, but exerts no pressure in that regard.  Referring to C, he said “sometimes he breaks out about the past.”
Dr F
20.	Dr F produced a report for the benefit of the Court and gave further oral evidence.  Dr F is a consultant psychiatrist.  In her report, she concluded that:
•		the parenting capacity of the maternal great aunt and her partner together was favourable.	
•		that the children’s physical needs were met by stable, suitable accommodation;
•		the children were well fed and their medical needs attended to;
•		the children’s physical safety was met, although there was latitude for C about wearing a helmet when using his skateboard and pushbike;
•		the developmental needs of the children were being provided for.  Friendships at school were being encouraged and D’s night time fears and sleeping problems, patiently addressed;
•		the maternal great aunt and her partner were protective of the children and willing to supervise time between them and the parents thus meeting their emotional needs but also addressing their anxieties arising from past events.
21.	The report was a comprehensive one.  In her oral evidence Dr F referred to the very different emotional needs for each of children.  C was attached from a reasonable early association with the mother.  D has a disturbed attachment to the mother which was unlikely to improve.  That lack of secure attachment to the mother was of particular concern to Dr F.  She said that if the mother constantly missed contacts with the children, the number of visits per year should be cut down.  If she attended most of the visits but just missed a few then there should be six visits a year 
22.	I agree.  The risk for D in particular is that erratic visits are likely to do more harm than good.
23.	I am confident that the Secretary will adjust visits to meet the different needs of the children accordingly and accept Dr F’s evidence that D is more at risk than C in terms of having her emotional needs met.
24.	C had a better relationship with the mother in his younger years and has a clearer, more realistic idea of her.
25.	Overall, Dr F considered that six times per year for the children with each parent was sufficient. I accept her evidence that the attachment to the foster carers needs support and protection. Such that the focus of the household is not always on contact visits with the parents, to the exclusion of the ordinary activities of their household, their involvement in extra-curricular activities and the special times which will be most enjoyable for the children, such as Christmas and their own birthdays.
26.	In four years C will be a young adult and able to make his own decisions about the time to be spent with each of the parents.
27.	D, however, has 12 years before adulthood and will need to be carefully protected from further disruptions and disappointments in relation to the parents.
Primary Considerations 
28.	Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) sets out the considerations which a court must turn its mind to in considering the best interests of children.  In this case the need to keep the children physically and psychologically safe outweighs the significance of children having a meaningful relationship with both of the parents.
Additional Considerations 
29.	The additional considerations relevant to the orders proposed by the Secretary, supported by the Independent Children’s Lawyer, and not contested by the parents are as follows:
Section 60CC(3)(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
30.	At 14, C has maturity and a level of understanding which will require his views to be taken into account in relation to time spent with the mother and that is provided for in the orders proposed by the Secretary.
31.	D has a disturbed attachment to her mother and is still traumatised by past events relating to each of her parents and their history of exposing the children to violence and drug use.  
32.	D is not yet 6.  The most significant thing is to provide stability for her and to allow an attachment to develop and deepen between herself, her maternal great aunt and her partner.
Section 60CC(3)(d) – the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
33.	Although the children have been in their current placement for approximately 18 months, it has had a remarkable, positive and stabilising effect for both of them.
Section 60CC(3)(f) – the capacity of each of the child's parents; and 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
34.	The parents have a limited capacity to meet their children’s needs.
35.	The mental health of each of them has adversely affected their ability to care for the children.
36.	Dr F concluded that the mother has a personality disorder and may have post-traumatic stress disorder.
37.	Dr F concluded that the father has an anti-social personality disorder and raised, but did not come to a conclusion about, a diagnosis of schizophrenia.
38.	There is no evidence before me of either parent having sought to address mental illness and behavioural dysfunctions.
39.	Both parents have a history of drug and alcohol abuse and have been unwilling or unable to cease drug use.  That is the inference I draw from their failure to comply with directions for urinalysis.
40.	C attended many different schools and missed significant amounts of schooling.
41.	Whilst D was in his care, the father provided inconsistent attendance for her at day care/preschool.
42.	Dr F expressed the view that D appeared to have been stunted in her growth and will continue to need assistance with her psychological and emotional health.
Section 60CC(3)(j) – any family violence involving the child or a member of the child's family and section 60CC(3)(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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter
43.	The children have undoubtedly been exposed to very serious family violence between each of the parents and their respective partners. 
44.	They have been present to see and feel the consequences of threats by the father directed at the mother and his recent partner.  
45.	Dr F expressed the view that the mother’s history of violent relationships, of dysfunctional relationships with drug abusing men, is a predictor of the future. 
46.	There is a particular risk, in addition to physical safety, for D in being exposed to such relationships, namely that she would accept such relationships herself as a young adult.  
Conclusion 
47.	I am satisfied on the evidence before me that the intervention of the Secretary has brought strong, positive benefit to the lives of both children and that the warm and compassionate approach taken by the maternal great aunt and her partner to the care of the children will bring long lasting benefits into their lives.
48.	I make Orders as sought by the Secretary accordingly.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 12 August 2015.

Associate:

Date:  12 August 2015