FAMILY COURT OF AUSTRALIA

Hutton & Andreia	[2015] FamCA 329	

FAMILY LAW – CHILDREN – Unacceptable risk of harm – Court’s refusal to make orders consented to by the parties in a parenting matter – That agreed orders are not in the best interests of the child	

Family Law Act 1975 (Cth)	

APPLICANT:	Ms Hutton	

RESPONDENT:	Mr Andreia	

Independent children’s lawyer:	Mr Ng	

FILE NUMBER:	PAC	5045		of	2012	

DATE DELIVERED:	5 May 2015	

PLACE DELIVERED:	Parramatta	

PLACE HEARD:	Parramatta	

JUDGMENT OF:	Hannam J	

HEARING DATE:	4 and 5 May 2015	

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Peter Jurd Lawyer	

COUNSEL FOR THE FIRST RESPONDENT:	Mr Shaw	

SOLICiTOR FOR THE FIRST RESPONDENT:	Maurice Marshan Lawyer	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Cook	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Ng of Adams & Partners Lawyers	

Orders
(1)	Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings on an urgent basis.
(2)	These Orders and my Reasons for Judgment be provided to the Secretary of the Department of Family and Community Services on an urgent basis. 
(3)	In the event that the Director-General intervenes, he/she is to file and serve a Notice of Intervention by no later than 7 May 2015. 
(4)	Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record. 
(5)	The matter is adjourned to Friday 8 May 2015 at 10.00am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Andreia & Hutton 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 5045  of 2012

Ms Hutton 	
Applicant

And

Mr Andreia 	
Respondent

REASONS FOR JUDGMENT
1.	I am of the view that the orders agreed to by the parties in settlement of the matter are not in the best interests of the child.
2.	The reason that I am of that view is that there were some significant issues that were raised in relation to the care of B when the matter first came to Court and, in particular, the proceedings were commenced by way of a Recovery Order.  Those issues were said to relate to the mother’s “inability to provide proper care for [the child]” and what appeared to be the mother’s “diminished parenting capacity” and those two expressions both come from the father’s affidavit and yet no evidence in relation to those concerns have been put before the Court.
3.	There were also sufficient concerns that an interim Apprehended Domestic Violence Order (“ADVO”) was made against the mother for the protection of the father and the child.  Although the police records in relation to that incident have been tendered there is nothing in the affidavits of either party that refers to that incident except in the mother’s case she says the child was exposed to a violent incident between the parents where the child is described as “distressed and crying”.  The mother’s explanation under cross-examination in relation to the circumstances in which the ADVO was made was that “everyone had ganged up against” her.  It also came to light that the mother had been charged with what she described with “something” at around the same time.  The criminal history of the mother reveals that she was charged and convicted of assault but that was also not explored.
4.	There were also concerns, in fact, the mother asserts that she was suffering from post-natal depression and there may have been concerns about the impact and relationship between her depression and her capacity to care for the child.  However, it became clear that no doctor had ever diagnosed her of that but although she maintained that she was depressed there was no medical evidence in relation to that.  That was also a matter of concern in the Family Report.
5.	There was also the issue of the child remaining with the father at the paternal grandparents’ home following separation.  There is no evidence from the father whatsoever about the actual care arrangements for the child at that time or at any time subsequently including the present.  There are statements in the paternal grandmother’s affidavit that she “necessarily plays a substantial role in the child’s life” and “had been a major care-giver for her since she was five months old”.  I note that the paternal grandmother has now withdrawn from seeking any orders.
6.	The family members were interviewed in November 2013 and a number of risk factors and matters of concern were raised by the Family Consultant.  Those risk factors include:
•	That the child presented as self-reliant and her behaviour on separation and reunion with the parties appeared atypical for a child of her age and the Family Consultant felt that this may be indicative of difficulties in her relationships with significant carers and ability to form significant relationships.
•	It was said that the mother appeared to have a limited capacity to consistently engage with the child in a sensitive and responsive manner which raised concerns about the mother’s ability to meet the child’s needs and prioritise those above her own.
•	Concerns were raised regarding the abilities of both of the grandmothers (who were parties to the proceedings at the time) and their ability to allow the mother and the father to care for the child.  The Family Consultant was of the opinion that the dynamics observed during observation (if they were indicative of the global family dynamics the behaviours of the grandmothers) may be undermining the mother and father in the parenting of the child and the child’s relationships with her parents and also there were significant concerns about both grandmothers’ abilities to prioritise the child’s needs above their own.
7.	It very well may be said and, indeed, there has been some emphasis put today in the submissions made that it is the parents who have agreed to this arrangement about the care of the child and it is the parents who will, in fact, be caring for the child.  However, one of the difficulties was the Family Consultant said that if the Court determined that the father had allowed his mother to care for the child in lieu of him concerns would be raised regarding his understanding of the child’s needs and his ability to meet them.  This is a matter where the only evidence before the Court was the unchallenged evidence from the mother of the importance of the relationship and the actual caring which is carried out by the paternal grandmother and the very limited involvement with the father.  As I say that was not challenged by the father under cross-examination, and in the father’s own case a complete absence of evidence about any role that he plays in the child’s life and, indeed, the evidence appears to be that the paternal grandmother is in fact the carer.
8.	In those circumstances, if in fact the paternal grandmother is the one to be, has been and continues to care for the child under this arrangement there were concerns raised by the Family Consultant about the paternal grandmother’s perception of the role of herself and the mother combined with the negative view of the mother which raised concerns about her willingness and ability to encourage and support the child having a meaningful relationship with the mother.  I also indicated that it raises concerns about the father’s understanding of the child’s needs and ability to meet them.
9.	The mother’s relationship with Mr C and any risk of harm that he may pose to the child was described as “a central issue”.  The Family Consultant was particularly concerned about the suggestion that Mr C’s name is on the Sex Offenders Register and, if so, the circumstances relating to it and the allegation that Mr C had perpetrated family violence.
10.	If family violence were established, then the mother’s denying or minimising it would raise concerns regarding her ability to protect the child from future harm and Mr C denying the allegations may also indicate a lack of motivation to change in order to protect the child.
11.	In the event that the mother may be found to have allowed the child to have contact with Mr C contrary to a restraining order, this would also raise significant concerns about the mother’s ability to protect the child.
12.	These are matters about which I have particular concern that the agreement has been reached between the parties and with the Independent Children’s Lawyer when the Court has not been given the information about Mr C, particularly, as the limited information that is available is that Mr C has been convicted of aggravated sexual assault in company for which he was sentenced to a term of imprisonment of four and half years with a non-parole period of two years.
13.	I cannot see how without a full exploration of the dangerousness that is posed by Mr C that the parties could possibly reach agreement that there is not an unacceptable risk of harm posed by him.  It may very well be that if he gives evidence in relation to a sex offender program he has completed, if there had been a report from a psychologist or a parole officer when he was admitted to parole about the issues of dangerousness that the Court may have been comforted and indeed the parties themselves may have been comforted.  I have to say I find it quite extraordinary that this matter has been resolved or attempted to be resolved in the way that it has without that issue having been explored and that is one of the central reasons that I will be inviting the Department to intervene in the proceedings on an urgent basis.
14.	Another concern that was raised in the Family Report was the mother’s mental health and her psychological well-being around the time of separation and it was recommended that information be obtained from all treating practitioners regarding the mother’s current and previous psychological functioning and also the interventions and compliance.  There had also been concerns raised regarding the paternal grandmother’s mental health and recommendations were made in relation to that.
15.	The orders that have been presented today are not orders that were contemplated and considered when the evidence was being given.  The arrangement contemplated is that the parents have equal shared parental responsibility for the child, that initially the child live with her father and spend time with her mother on an increasing regime, but that by the time the child commences school which is approximately three years’ time that the child be living with her mother from after school Friday up until the commencement of school on Tuesday and for half of the school holidays.  In other words, that there be a changeover every three or four days for the child.  There is a specific provision that the child not be allowed to be left in the sole care of Mr C.
16.	In circumstances where one of the other critical issues, (which I omitted to mention), but was a central issue of concern by the Family Consultant that this child has had too many carers and that she have for the sake of her own stability and attachment relations and to avoid future psychological problems a single consistent and attuned main caregiver, I cannot see how the Court could possibly find that that sort of arrangement be in the child’s best interests.  I do express surprise that this is not only proposed by the parents when it is contrary to that evidence and when the Family Consultant’s evidence has not been tested, but also that it is supported by the Independent Children’s Lawyer when there is uncontradicted evidence that one of the main concerns for this little girl is that she have a single carer and that is another reason why I am inviting the Department to intervene.
17.	As far as Mr C is concerned, if it is the case that Mr C does represent an unacceptable risk of harm to the child, it is simply impracticable and illogical to make an order that for 13 to 15 years of a child’s life in circumstances where the mother is in a defacto relationship with Mr C and they share another child that there could simply be an order made and that it would be expected to be complied with that the child not be left in the sole care of Mr C.  This is particularly so where there is uncontradicted evidence that the father has had concerns that the mother has contravened that order and the mother was not challenged about that evidence.  Perhaps she was challenged in a limited way but the father said, for example, that the child had been calling him Jake which is a matter that gave him great concern and especially since the child is not meant to be having any time with Mr C let alone that she would refer to a father figure as that name.
18.	The issue of whether Mr C does represent an unacceptable risk of harm with the child is a matter which must be resolved by a Court or someone independent to the parties because it seems that they have had shifting positions and I have to say I am disappointed that the Independent Children’s Lawyer has not put the material before the Court so that that assessment can be made.
19.	I raise the issue of the remarks on sentencing, this is a serious criminal offence that Mr C has been convicted of.  He gives an explanation in his affidavit which certainly does not seem consistent with that and he has not even been cross-examined.
20.	For all of these reasons I am of the view that the best interests of this child will not be met by making these orders and it is of grave concern to me that by withdrawing from the proceedings, the parties have stated that it is their intention to make similar arrangements under a parenting plan and that the Independent Children’s Lawyer has not expressed any view for alternate orders.
21.	In those circumstances, it appears that the only way that these issues will be properly explored (and they may end up being explored in the manner in which the parties are hoping) I really cannot say because the evidence is not before me.  In fact, the only evidence before me is to the contrary, but the only way that it seems that the best interests of this child would properly be examined is by a Court and in light of the Independent Children’s Lawyer not seeking any other orders when the parties have said that they are withdrawing and for the purposes of having similar orders made under a parenting plan, I have no alternative but to invite the Department of Family and Community Services to join in these proceedings on an urgent basis.
22.	I direct that these remarks that I have made in relation to my reasons for rejecting the orders be provided to the Department of Family and Community Services on an urgent basis and that the matter be adjourned to Friday, 8 May 2015 when we have the Family Consultant arranged to attend and it is a matter for the parties what they wish to do about the discontinuance.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 May 2015.

Associate:  

Date:  7 May 2015