A mother and father who commenced proceedings in the family court seeking parenting orders have found themselves identified as both posing an unacceptable risk of harm to their children, and have been ordered to relinquish parental responsibility in favour of the Department of Family and Community Services, which was also ordered to decide where the children would live.
The interim proceedings in the Family Court before Justice Hannam concerned the couple’s four children aged 7 to 16. Originally, parenting orders had been made in the Federal Circuit Court in 2015, with the mother having been granted sole parental responsibility, and the children being ordered to live with her and spend time with the father. However, several years later, under disputed circumstances, all four kids went to live with their father. While two children eventually returned to the mother, two remained with the father, who then commenced proceedings to alter the parenting arrangements.
The parents now presented competing interim parenting applications. In the interim hearing, each parent accused the other of posing an unacceptable risk of harm to the kids—and the court ended up deciding that they were both right: both were an unacceptable risk of harm to the children. As a result, and at the request of the Independent Children’s Lawyer and the suggestion of the family consultant, the court invited the Department to intervene.
The Department however was initially “reluctant to accept parental responsibility for the children” but the order was made for the Minister to have parental responsibility on an interim basis and to decide where the children would reside. The court queried whether the initial reluctance of the Department to intervene was due to the fact that “presumably a caseworker or casework manager has formed a different view to the court in relation to the risk”. The judge expressed concern that this was perhaps a resource issue, with the Department’s well-known “competing priorities” for vulnerable children.
Judge Hannam also noted that the Department’s counsel had “placed weight on the practicalities of making arrangements for a 16 year old girl and a 12 year old boy when those arrangements are contrary to the wishes of those children”. Both the 12 and 16 year old children had expressed the clear view that they wished to live with their father. And yet, while practicability is an issue that courts do consider, in this case it was “outweighed by the need to protect all children from harm, including children who express strong wishes”. As such, their views “should not be given any weight”.
The court noted that it was unknown whether the Department would direct that the children live somewhere other than the care of either parent. But the court also expected that “the relevant decision-maker will attach weight to the assessment of a judge of a superior court that the children are at an unacceptable risk of harm if any or all of them were to continue living with either the mother or the father”.
If directed to live somewhere other than where they wished, “it is likely that such a direction will be met with expressed discontent by the two children currently living with their father and there is a real possibility that the children will also express resistance. However, this is a matter that I am confident the officers of the Department will manage given their expertise in dealing with children who are unhappy with decisions made about their living arrangements.”
Although the allegations about risks in both households could not be resolved on an interim basis, the court concluded that there was unacceptable risk of harm to the kids in both households and that both parents demonstrated a distinct lack of parental capacity.
There were documented incidents of serious violence on the part of the father, who had been issued with Apprehended Domestic Violence Orders, and at one point convicted and imprisoned for assaulting the mother.
After separation, the father had begun a relationship with his wife’s niece, who was aged 20 and who had an extensive history of violent offending herself. There were serious documented instances of violence by the father to the young partner, but the partner refused to involve police, telling them “I don’t want to tell you how it happened. If I needed your help I would have called you. Let’s drop it”.
Meanwhile the mother too began a new relationship, but towards the end of last year, the parties’ oldest daughter, aged 16, revealed that the mother’s new partner had sexually molested her. She then sought to live with the father while the mother’s relationship with her partner deteriorated over the next three months.
The courts are unable at the interim stage to make definitive findings regarding alleged sexual abuse. But the judge noted that in this case, the mother didn’t take any steps to have the complaint against her then-partner investigated or to take any steps to protect her other kids from the partner, which the judge described as “a grave failure” on her part.
Aside from the issues of family violence and sexual abuse, there were also neglect issues in both households (for example, inadequate food provision, lack of school attendance and overcrowding of five children into a two bedroom apartment). It was also alleged that there were drug and alcohol misuse issues.
The judge said, “It is difficult to imagine a clearer case for allocating parental responsibility to the [Department]”, adding, “In these circumstances the benefits of a meaningful relationship with both parents does not assume great significance.”
Do you need family law advice? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
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