ADDICOTT & DILLOW

[2015] FamCA 706

FAMILY COURT OF AUSTRALIA

ADDICOTT & DILLOW [2015] FamCA 706

FAMILY LAW – CHILDREN – BEST INTERESTS – FAMILY VIOLENCE– SPEND TIME – SUPERVISION – Application by the mother that the children live with her and spend no time with the father – Where it was found that the father’s propensity to violence and inability to exercise self-control rendered him a danger to the children – Where there was also extensive evidence before the Court about problems with the mother’s parenting – Where the mother, unlike the father, had shown a commitment to improving her parenting capacities through a sustained engagement with the Department of Family and Community Services and other social services – Orders made that the children continue living with the mother under the supervision of the Department – Orders made that the children spend no time with the father.

FAMILY LAW – CHILDREN – BEST INTERESTS – FAMILY VIOLENCE– PARENTAL RESPONSIBILITY – Where the presumption of equal shared parental responsibility was rebutted due to family violence – Where the mother and the Department sought an order that the mother have sole parental responsibility – Where the Independent Children’s Lawyer sought an order that parental responsibility be jointly exercised by the mother and the Department due to issues with the mother’s parenting capacities – Consideration of the powers and obligations of the Department pursuant to state legislation in order to determine whether orders for supervision would protect the children in the mother’s care without the necessity for parental responsibility orders to be made in favour of the Department – Orders made that the mother have sole parental responsibility and that her parenting be subject to supervision by the Department.

Family Law Act 1975 (Cth) ss 4, 60CC, 69ZK
Family Law Regulations 1984 (Cth) subreg 12B(2), sch 5
Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 27, 30, 34, 38A, 43, 45, 71, 76, 173

APPLICANT: Ms Addicott

RESPONDENT: Mr Dillow

INDEPENDENT CHILDREN’S LAWYER:	KD Holmes
INTERVENOR	Department of Family & Community Services

FILE NUMBER: SYC 4105 of 2013

DATE DELIVERED: 27 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3, 4, 5 and 6 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Neville

SOLICITOR FOR THE APPLICANT: G & D Lawyers

COUNSEL FOR THE RESPONDENT: Mr Milanovic

SOLICITOR FOR THE RESPONDENT: Bilias & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	KD Holmes
COUNSEL FOR THE INTERVENOR	Mr Guterres
SOLICITOR FOR THE INTERVENOR	Crown Solicitors Office

Orders

IT IS ORDERED

1. That the mother have sole parental responsibility for the children B (“B”) born … 2010 and C (“C”) born … 2012 (“the children”).

2. That the children live with their mother.

3. That the children shall spend no time with their father.

4. That the father is restrained from entering or remaining in the place where the children may reside and any school that the children may attend including but not limited to the D Child Care Centre at E Street, Suburb F in the State of New South Wales.

5. That for a period of twelve months from the date of these Orders the parenting of the children shall be subjected to the supervision of the Secretary, Department of Family and Community Services (“the Secretary”) or his delegate.

6. That for the purposes of supervision in Order 5 the mother shall:

   a)     Allow a delegate of the Secretary to conduct home visits at the home in which the children reside;

   b)     Facilitate any request by a delegate of the Secretary to present the children for interview or assessment;

   c)     Authorise the provision of a report to the Secretary from any service that has been recommended or arranged by the Secretary or his delegate; and

   d)     Otherwise comply with all reasonable directions of a delegate of the Secretary in relation to the care of the children.

7. That the mother shall attend, participate and actively engage in any parenting education and / or counselling that might be reasonably recommended from time to time by the Secretary or his delegate.

8. That the mother ensure that B attends any counselling that might be recommended by the Secretary or his delegate.

9. That the mother do all things required to ensure that the children are not exposed to family violence.

10. That the mother be restrained from using physical discipline on the children.

11. That at the conclusion of 12 months from the date of these Orders the Secretary or his delegate shall review the need for supervision pursuant to Orders 5 and 6 and, in the event the Secretary or his delegate considers it necessary, the Secretary’s supervision of the mother’s parenting may be extended for a further period of 12 months.

12. That for a period of two years from the date of these Orders the mother and the father are restrained from removing the children from the Commonwealth of Australia and the children’s names be placed on the Airport Watch List.

13. That until further order the father, Mr Dillow born … 1986 and the mother Ms Addicott born … 1985 his/her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children B (female) born … 2010 and C (male) born … 2012 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

14. That until further order, the names of the said children B and C be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

15. That sealed copies of these orders be served upon the Australian Federal Police.

16.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Addicott & Dillow 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 SYDNEY

FILE NUMBER: SYC 4105  of 2013

Ms Addicott

Applicant

And

Mr Dillow

Respondent

And

Department of Family and Community Services
Intervenor

REASONS FOR JUDGMENT

1.B born in 2010 (“B”) and C born in 2012 (“C”) live with their mother Ms Addicott (“the mother”). They have had no contact with Mr Dillow (“the father”) since a recovery order issued on 19 July 2013 after the father had removed B from the care of the mother.

2.Mr Dillow is referred to as the father in these reasons, although, as will be explained, he now does not accept that he is the father of C.

3.On 8 May 2014 Orders were made by consent to the effect that the Minister for Family and Community Services (“DFCS”) and the mother share parental responsibility for the children and that the children live as directed by the Secretary of DFCS.

THE PROCEEDINGS

4.The matter first came before the Court when the mother filed an application for a Recovery Order, asserting that the father had removed B from her care. The mother sought orders that the children live with her.

5.In response the father sought orders that the mother and the father have equal shared parental responsibility for the children and that the children spend time with him.

6.The Director General of DFCS intervened in the proceedings.

7.The Court was assisted by an Independent Children’s Lawyer (“ICL”) and by a single expert witness, Dr G, a child and family psychiatrist in private practice, who prepared a report and was cross-examined.

8.By the time the matter came to hearing the significant dispute for determination was in relation to the time which the father would spend with the children. The father, in his minute of orders filed for the purpose of the hearing, sought orders that he have supervised time with the children initially for two hours per fortnight for a period of three months; then for four hours per fortnight for a further period of three months; then for eight hours per fortnight for a further period of six months. Thereafter the father sought unsupervised time with the children from 4.00 pm Friday until 6.00 pm Sunday each fortnight.

9.Only in the course of the father’s cross-examination did it become apparent that the father did not accept that he was C’s father and that he did not seek any orders in relation to C unless it could be demonstrated to him that he was, in fact, C’s father. Thereafter the father confined his application for time to B and did not seek to spend any time with C.

10.The father’s application to spend time with the children was opposed by the mother, DFCS and the ICL who all relied upon the father’s history of violence.

11.It was the case of the mother, DFCS and the ICL that the father’s violence was so extreme that the Court would not be required to consider the factors set out in s 60CC(3) of the Family Law Act1975 (Cth) (“the Act”) because the need to protect the children from physical and psychological harm arising from violence on the part of the father was overwhelming, and could not be met by any supervision of the children’s time with the father.

12.In relation to the issue of parental responsibility the father sought an order that the parents have joint parental responsibility. The mother sought an order that she have sole parental responsibility. DFCS sought an order that the mother have sole parental responsibility and that DFCS supervise the children for a period of 12 months. The ICL sought an order that the mother and DFCS have equal shared parental responsibility for the children.

13.DFCS sought an order that the mother cause C to be immunised. The mother opposed that order.

BACKGROUND

14.The family first came to the attention of DFCS on 10 September 2010, when a Risk of Harm report was received, prior to B’s birth.

15.Since B was born DFCS have provided an extraordinary level of support to the mother. In addition to support from DFCS, the mother has been supported by intensive case work with the H Society and, at the time of the hearing, with CC Care. The focus of all the assistance which has been rendered to the mother has been to keep the children in her care.

16.The parents were not living together when B was born in 2010. There had already been a number of incidents between them which had attracted the attention of police.

17.On 23 October 2010, in circumstances which will be described in detail later in these reasons, the father was arrested following a high speed pursuit by police. He was charged, convicted and imprisoned until 23 October 2011.

18.The mother arranged for B to be taken to visit the father in gaol on two occasions.

19.After the father was released from gaol the relationship between the mother and the father resumed.

20.On 18 December 2011 they underwent an religious ceremony although neither of them suggests that the form of the ceremony constituted a marriage for the purpose of the law of Australia.

21.At the time of the hearing it was anticipated that the mother would continue to work with the H Society in relation to her own parenting skills and capacities, that CC Care would work with the mother providing practical support and that DFCS would provide monitoring services, conducting home visits and assisting with referrals to other services and supports for the mother.

22.It was the case of the mother, DFCS and the ICL that it was only the intervention of those services which had allowed the children to remain in the care of the mother. There was extensive evidence before the Court about the problems with the mother’s parenting.

23.Dr G in his report, dated 5 November 2014, referred to significant dysfunctional elements in the mother’s relationship with the children. Dr G stated:

At this point, the most effective intervention is a combination of improved care at home with consistent and appropriate emotional responsiveness and availability, and appropriate care in other settings, in this instance day care. At the present time the H Society is putting significant resources into [the mother’s] parenting, which in my view is appropriate. I would note however that I think [the mother] has limited insight into the disparity between her parenting abilities and that required by the children.

24.Dr G expressed the view that both children have a rather disorganised attachment to their mother which was particularly evident in the case of C and, in B’s case, may also be quite profound. Dr G observed that the mother seemed to have made some progress with attunement and parenting but clearly had a very long way to go. In the view of Dr G, the mother will need to continue working with the H Society or a similar organisation for some years. He estimated five years.

25.Dr G expressed the view that both of the children have shared a range of behaviours that are not just characteristics of profound neglect, but are also indicative of the neglect having gone on for a great deal of time.

26.Dr G said that it was likely that the mother had never had “good enough” parenting skills.

27.Dr G, in his report, concluded:

In my view at this point, the best option for the children would be if they live with their mother in the shadow of the Department of Family and Community Services and that she continue to accept professional advice and support directed towards improving her parenting skills. She seems to have made slow but positive progress in this regard but she has a long way to go. Indeed in my view it would probably assist her to maintain her energy and motivation if the option of respite care by a suitably qualified family were available to take the children on some weekends and for part of school holidays. I am concerned that the father does (not) have the capacity to have an overall positive influence on the children’s welfare.

28.In his oral evidence Dr G remained concerned about the mother’s ability to effectively parent the children, even with the supports which are currently in place for her and for them. The recommendation ultimately made by Dr G was that the children remain in the care of the mother in the shadow of DFCS and with their continuing assistance and support.

29.Dr G was asked whether or not it could be inferred from that recommendation that placement with a parent was always to be preferred to out of home care. His evidence was very clear that, if there had been an option of stable effective foster care in which the children were sure to be kept together, his recommendation may have been different.

30.The father did not seek orders that the children live with him. In fact the father sought no orders at all in relation to C. Therefore the only available options for the children are that they live with their mother, with the support of DFCS, or they live in out of home care.

31.It is against that factual background that the issues, primarily of the father’s time with the children, are to be approached.

THE FATHER’S HISTORY

32.The father denied that he was a violent person. He said that he had not engaged in violent behaviour after the children were born. The father denied each and every allegation by the mother that he had been violent towards her. The father also denied having abused alcohol or illegal substances.

33.In order to determine whether or not the father posed a risk to the children by virtue of either mental instability or a propensity to violence, it was necessary to investigate his history.

34.The father himself was not a reliable reporter. It is not possible to determine whether the lack of reliability was intentional or had some other basis. It is not necessary here to set out every instance of the father’s evidence being unreliable but it is sufficient to illustrate the deficiencies in his affidavit material and the more glaring deficiencies in his reporting and in his oral evidence.

35.The father relied on an affidavit sworn on 29 January 2015. He did not, in this affidavit, disclose that he did not believe that he was C’s father. The father did not disclose that, at the time he swore the affidavit, he had been in a relationship with a new partner, Ms U, or that on 30 December 2014, only four weeks before he swore his affidavit, Ms U had given birth to his child, a daughter named A. The father did not disclose that on 31 December 2014, A was assumed into the care of DFCS, following allegations that the father had been violent towards Ms U, and placed in foster care. He did not disclose that at the date of the hearing he had never seen A. The father did not disclose that Ms U had been convicted of aggravated kidnapping and served a year of imprisonment.

36.The father, when interviewed by Dr G in November 2014, told Dr G about the occasion upon which he began to have doubts that he was the father of C, but  he did not tell Dr G that he now had those doubts.

37.The father was asked by Dr G about his relationship history and told Dr G that one of his girlfriends had taken out an interim Apprehended Violence Order (“AVO”) but that he did not think a final AVO had resulted. The father said that he had had an argument with his girlfriend and she was yelling at him. The father told Dr G that he could not recall whether there had been assault charges laid. This was, to say the least, a gross understatement as will be apparent once the father’s criminal history has been examined. The father also told Dr G that he could not recall whether he had ever been charged with assault in relation to anybody else apart from the mother which is another gross understatement.

38.Although, in his affidavit, the father deposed to having been charged and convicted with an offence relating to the mother, at the Family Court of Australia in March 2014, the father, in his affidavit also deposed that he had lodged an appeal to the District Court and that the matter had yet to be heard and determined. It was only in cross-examination that the father revealed that the District Court had heard the appeal and upheld the conviction.

39.The father in his affidavit deposed to ongoing treatment with a psychologist. In cross-examination it was established that the psychologist was Dr I who died in 2014.

40.Dr G reported that the father was vague about his prior involvements with the police. Dr G’s observations accorded with the father’s oral evidence in the course of which, on a number of occasions, when he was asked questions about the identity of the victim of various offences. He either could not remember, or was not prepared to disclose, the identity of the victim.

41.The father told the ICL in cross-examination that he did not have a problem with violence. That statement, taken alone, renders the father’s evidence about his history and behaviour unreliable.

42.It is likely that the accounts of the father’s criminal behaviour, anti-social behaviour and mental health issues contained in the records produced by the police, corrective services and various hospitals are more reliable then the father’s accounts. Similarly it is likely that the mother’s accounts of interactions between them, where there is no independent or extrinsic evidence, are more likely to be accurate than those of the father.

43.The following summary of the father’s interactions with the police, the criminal justice system and the hospital system is not complete. Numerous interactions with the police involving strangers to these proceedings are not recounted.

44.The specific allegations of violence made by the mother will be dealt with separately.

45.The father first came to the attention of police in 1999, when he was 12 and a half years old. Police attended his home following a report by the father’s adoptive parents. On 6 March 2002 an AVO was made against the father for the protection of his parents. On 26 March 2002 the father was found guilty of contravention of the AVO and placed on a bond.

46.On 7 November 2002, the father was arrested and charged with assaulting his father. At the time of that arrest the father was on bail in relation to other offences and there was an AVO on foot for the protection of his father.

47.On 26 January 2003, the father was again arrested for assaulting his father and following that arrest he was convicted of breach of a good behaviour bond, common assault and contravention of the AVO.

48.On 4 August 2003, the father was arrested for breaching bail conditions requiring him not to contact his parents and bail was refused.

49.On 22 January 2004, the father became agitated during a counselling session involving his parents. He stated that he intended to kill himself and walked out onto P Street in front of ongoing traffic. The records produced by K Hospital (“KH”) note that the father “did this several times, narrowly missing vehicles.” On that day, the father, when spoken to by police, was verbally aggressive. The father’s mother stated that the father had attempted to do the same thing only a week before. At that time the father was in the care of L Care and residing at a L Care house in Suburb M. The father was taken by the police to KH for assessment and scheduled under the Mental Health Act 2007 (NSW) (“Mental Health Act”).

50.On 22 June 2004, records produced by the police indicate that they were called to a hotel in the city. The father was observed to be drinking Bourbon and Cola and appeared to be intoxicated. The police decided to transport the father to his home (L Care in Suburb M) after realising that he was a juvenile. The father was placed in the rear of the police vehicle. He was aggressive and made verbal threats to the police. He tried to set fire to the vehicle using a cigarette lighter. He made physical threats to the police and punched and head butted the vehicle. The father is reported to have been in a violent rage threatening police. Later, on the same night, the police were called to N Hospital at 10.00 pm where the father was reported to be behaving aggressively. He was described as being intoxicated.

51.On 30 March 2005, the father was charged with stalking / intimidating with intent to cause fear. The records indicate that the victim was the father’s mother. He was convicted of that offence on 7 July 2005 and a warrant was issued on that day.

52.On 9 July 2005 the father was scheduled, after a report to police, at O Hospital. The record indicates that the father held a knife to his throat yelling “I’ve got no family, I’ve got nothing.”

53.On 29 September 2005 the father was sentenced to community service for the offence of stalk / intimidate which had occurred on 30 March 2005.

54.On 9 December 2005 police were called to the father’s home. He lived, then and now, in the granny flat attached to his parents’ residence. Records produced by the police indicate that the father had threatened a tradesman. The father was seen to be in possession of a 27 cm long knife and walked towards the tradesman with the knife in his hand. The tradesman climbed a ladder onto the roof of the property and called the police. The father was charged with common assault and having custody of an offensive implement.

55.On 10 May 2006 an AVO was made for the protection of the father’s then girlfriend, Ms J.

56.On 28 May 2006 the father telephoned Ms J’s father and threatened to kill him.

57.On 27 July 2006 an incident took place between the father and Ms J as a result of which the father was charged with breaching the AVO and common assault.

58.On 17 November 2006 the father was sentenced to seven months imprisonment as a result of conviction for the assault described in paragraph 54. The notes produced by Justice Health state that, on admission, “Inmate stated he has tried to hang himself previously some 3 weeks previously.” On 18 November 2006 the notes produced by Justice Health in relation to the father state “Highly stressed. Irritable. Frustrated angry, v negative … Recent self-destructive thoughts … Previous hanging suicide attempt 2005/2006.” The record also notes “Six months ago tried to hang himself once. Wanted to die. “Sick of everything’”.

59.The father was released from custody in January 2007.

60.On 26 July 2007 an incident occurred between the father and Ms J, in respect of whom the AVO remained in force. As a result of that incident the father was charged with aggravated kidnapping, assault occasioning actual bodily harm, indecent assault and knowingly contravening an AVO. In the course of the trial a statement of agreed facts was prepared. The facts to which the father agreed were:

The offender, [the father], and [Ms J] had been in an on and off relationship since January 2001.

In 2006 their relationship broke up. On 28 August 2006 an Apprehended Violence Order was granted against the offender as a result of an assault he had committed upon her. The Order is due to expire on 27 August 2008.

On the evening of Thursday 26 July 2007 the offender, then aged 20 years, rang [Ms J] and extended an invitation to her to go to a club with him. She accepted. Despite the Apprehended Violence Order he had telephoned her on a number of occasions during the week prior.

Shortly after 10pm that evening she agreed to share a taxi with him. He instructed the taxi driver to take them to [the father’s address] where he resided in a granny flat behind his mother’s house at that address.

He told [Ms J] he needed to go there to collect something.

Shortly after arriving outside his home, she told him she was not going inside but would wait for him outside.

He then picked her up and began carrying her down his driveway. She protested and asked him to stop.

He put her down and then began pulling her down the side of his mother’s house to the granny flat. He then opened the door to the flat and pushed her inside.

(Illegible)

Shortly afterwards he tackled her onto his bed, sat on top of her and punched her a number of times to her face. The blows caused her pain and a gash between her eyebrows which bled.

She called out for him to stop and told him she was bleeding, however, he kept punching her. She attempted to protect herself by raising her arms in front of her face. As she was doing so he punched her to the right arm. He eventually stopped and got off her.

She had blood streaming down her face and onto her jacket. He tried to help her by taking her to the bathroom where she later undressed and showered to wash off the blood.

Whilst she was showering the offender left the flat. During his absence she telephoned a friend, [named], and told him that she had been assaulted.

She returned to the bathroom upon hearing the offender enter the flat and continued to shower.

When she had finished she could not find her clothes. The offender professed not to know where they were. She wrapped herself in a towel and began searching the flat for them.

As she was doing so he pushed her causing her towel to fall away leaving her naked. He then pushed her onto his bed and began fondling her around the vagina [illegible]. She pushed his hands away but he persisted. Eventually [illegible] to the kitchen. He returned carrying a knife and approached her.

The offender undressed and began masturbating. She asked him to put his clothes back on. She continued to look for her clothes. Eventually he retrieved her garments which were wet and soaked in soap suds from the laundry and returned them to her. She rinsed them out in fresh water and tried to dry them with the aid of a hairdryer, then dressed and tried to dry her clothes by standing next to a heater.

Later he pushed her on the bed, laid beside her naked and tried to cuddle her. He asked her to let him cuddle her as he felt so sad and began running his hands over her breasts and her buttocks on the outside of her clothing. She told him to stop but he persisted. Eventually he fell asleep.

About 5.30am that following morning he awoke and began fondling her on her breasts and [illegible] on the outside of her clothing. When she told him to stop he told her he only wanted a hug. She then hugged him.

Shortly afterward she called a taxi on her mobile telephone and was subsequently taken by taxi to her home.

Nature of injuries sustained and medical treatment.

Later that morning she attended [a medical centre] where she was examined by [a doctor] who found that she had sustained a deep laceration to her left eyebrow, bruising to her upper and lower eyelids, superficial lacerations to her right forehead, bruising to her left upper arm with [illegible], bruising to left forearm and that her two top front teeth were broken. [The doctor] [illegible] the laceration to her eyebrow with six (6) sutures. [Illegible] removed on 1 August 2007.

61.The father was taken before Suburb Q local court and bail was refused on 28 July 2007. The father’s solicitors arranged for Dr I, a psychologist, to prepare a medico legal report and that report, dated 12 August 2008, was tendered in the criminal trial. Dr I concluded that the father was suffering from anxiety and depression. Dr I reported that the father’s actions which lead to the offence revealed highly impaired judgment because there appeared to be little thought given to the consequences of his actions. Dr I recommended a course of treatment including cognitive behavioural therapy.

62.On 12 September 2008 the father was sentenced to a term of imprisonment of two years with a non-parole period of 12 months. As the term of imprisonment commenced on 26 October 2007, when the father was placed into custody, he was released from gaol on 26 October 2008.

63.The relationship between the father and the mother appears to have commenced after the father was released from gaol.

64.Between November 2008 and March 2010, the father saw Dr I regularly.

65.On 13 November 2009 an incident occurred involving the father and the mother which will be further discussed in these reasons. As a result of a further incident that occurred two days later, on the morning of 15 November 2009, the father was charged with assault on a taxi driver, breaking the mirror of a taxi, resisting arrest and contravening an AVO for the protection of the mother.

66.On 11 April 2010 the father presented to O Hospital complaining of a headache. The hospital notes indicate that the father refused to be co-operative in relation to giving a history, that he was inappropriate and rude to the medical officers involved, making statements such as “You’re not a doctor”, “You’re too young to be a doctor”, “Do you speak any other language” and “I don’t want to speak English anymore.”

67.The father declined physical examination and left without treatment.

68.On 15 May 2010 at around 11.00 pm the police were called to the home of the father’s parents by a neighbour. Police noted that in the lounge room of the home the television was smashed, a coffee table had been turned over and a buffet hutch in the lounge room had been pushed over. The father’s mother and grandmother were in the house. The police spoke to both women who said they did not wish to provide a statement but they were scared of the father and the way he had been acting during the day. The father was not charged but was removed by the police to Suburb R Police Station where he was served with an AVO.

69.On 29 July 2010, Dr I prepared a further medico legal report in relation to the charges arising out of the incident where the taxi driver was assaulted and the AVO against the mother was breached. Dr I states:

[The father] was remorseful over having offended and took full responsibility for the offending action. The remorse included offending, any harm caused to the victim and the distress he created for his family and [the mother]. [The father] was advised during the assessment that he needed to continue with treatment. His current plan would be extended to address any disorders clinically identified including anger management issues …

70.In his conclusion, Dr I stated:

The court may wish to consider S32 of the Mental Health (Forensic Provisions) Act 1990 No 10 which outlines a number of options in the case where the defendant appears to the court to be developmentally disabled, or suffering from mental illness, or suffering from a condition for which treatment which is available in a hospital but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health (forensic provisions) Act 1990. The clinical assessment confirmed the existence of depression and anxiety at the time surrounding the incident. Treatment needs to continue in order to address remaining symptoms of the disorders and also strengthen relapse prevention skills. Hence [the father] suffers from a mental condition and needs protracted treatment which is available from a mental health facility. [The father] is therefore considered to be suffering from a mental condition as per S32(1)(a)(iii) of the Act.

Completion of treatment and continuation of support by significant others should markedly reduce the probability that [the father] reoffends.

71.The mother alleges that about two weeks after B was born an incident occurred at her home which commenced when she was breastfeeding B. More will be said about this incident. The father does not dispute that he attended at the mother’s home.

72.On the evening of 23 October 2010 the father was involved in a high speed police chase. It was the father’s evidence that the chase started in Suburb S but was discontinued and later resumed in Suburb T. The father’s younger brother was a passenger in the car. Records produced by police indicate that at about 11.50 pm on 23 October 2010, police engaged in a pursuit in Suburb T. The father was driving at more than 125 km per hour in a 50 km per hour area. As the chase continued the father attempted a three point turn and, in executing the turn, drove his vehicle into the front rear side passenger door of a police vehicle injuring a police officer. The father then drove into the path of another police vehicle, colliding heavily with that vehicle. He then attempted to drive further from the collision and collided with two other vehicles before being removed forcibly from his vehicle. The father was arrested and charged and bail was refused.

73.On 21 April 2011 the father was convicted of a number of offences including resisting an officer in the execution of his duty; driving a vehicle in a manner that menaces with intent to menace; police pursuit; intimidating a police officer; failing or refusing to undergo breath analysis. He was sentenced to sixteen months imprisonment.

74.Dr I prepared a further report dated 12 June 2013. The report was prepared for the purpose of sentencing in relation to charges that the father had breached an AVO for the protection of the mother in October 2012. Dr I in the report stated:

[The father’s] actions which led to offending indicated markedly diminished capacity for judgment because there appeared to be little thought given to the consequences, the near certainty of arrest and the need to curb impulsivity. He did not appear to have considered the threat his actions posed to his access to his children with whom he was close.

75.In his conclusions, Dr I stated:

[The father] stated that he could not remember the incident. He was surprised that he behaved as described in the facts sheet. His statement is consistent with the fact that memory impairment is a symptom of depression.

Again Dr I urged the Court to deal with the matter pursuant to the Mental Health (Forensic Provisions)Act 1990 (NSW).

76.On 7 July 2013 the father presented at KH complaining of anxiety. The record notes that the father reported that he had had panic attacks for years but the episodes had been increasing recently.

77.On 10 December 2013 the father was taken by police to O Hospital after they had been called to the father’s home. The records state, under the heading “Alerts/Risks”, “massive issues with women”; “Risk to others – has been in possession of a machete before”. The father was noted to be agitated, paranoid and to refer to himself as a terrorist. In a letter to the father’s general practitioner dated 13 December 2013, suggesting a mental health review, O Hospital advised that there was evidence that the father was suffering a “likely conduct disorder and antisocial personality traits”.

78.On 14 March 2014 police were called to the father’s home but the father did not let them into the home. The police then went to the front of the house and spoke to the father’s parents who gave them a key and gave police permission to enter the granny flat at the back of the premises. They entered using the key. The police report that they saw needles, empty drug packets, pieces of foil and other drug paraphernalia. On that occasion the father verbally abused the police.

79.On 18 March 2014, the mother was in the safety room at the Family Court of Australia in the course of the proceedings. The mother’s lawyer and the father’s lawyer were in discussions. The father approached the door of the safety room and tapped on the glass window to attract the attention of the mother. The father said to the mother “You’re fucked” and drew his finger across his neck in what was interpreted to be a throat cutting movement. The father’s lawyer shouted at the father.

80.The father was charged with contravening an AVO and stalking / intimidating with the intent to cause fear of physical harm. He was convicted of those offences on 18 December 2014. His appeal against the conviction was unsuccessful. On 12 May 2015 the District Court confirmed the sentence.

81.On 10 May 2014 the police were called by Ms U’s mother who alleged that Ms U was being held against her will at the home of the father. Police attended. The police record notes that Ms U appeared to be affected by drugs and that the father and Ms U had been arguing about their living arrangements. The father and Ms U provided the police with conflicting versions of the event and Ms U declined to provide a statement.

82.On 17 May 2014 the father contacted paramedics claiming that his mother was threatening self-harm. Police and ambulance officers attended and spoke to both the father and his mother. The father was insistent that his mother needed to be taken for a mental health assessment and claimed that she was a danger to herself. Police spoke to the father’s mother and no further action was taken.

83.On 21 May 2014 the father’s mother called police seeking advice about how she could have the father move away from the home.

84.On 22 May 2014 the father presented at Suburb V hospital after having been punched with an injury to his lower lip. The ambulance officers reported that the father appeared to be intoxicated. The father was assessed by the mental health team and scheduled under the Mental Health Act. The records note that on arrival the father continued to be verbally aggressive and abusive. There was a provisional diagnosis of anti-social personality disorder.

85.Dr G summarised the father’s admission on 22 May 2014 as follows:

He was admitted as an involuntary patient to the psychiatric ward where he continued to be verbally aggressive, abusive and obstructive. He was administered sedative medications and placed in seclusion, after which he apparently settled. The following day he appeared much calmer although annoyed about being in hospital. He remained hostile and guarded as well as evasive and he was blaming everyone else. A provisional diagnosis of Anti Social Personality Disorder was made, and he was discharged. Concern was expressed over the current situation with his mother and his abusive behaviour towards her which appeared to be long standing.

86.On 22 May 2014, the police were called by a security guard of a block of units. The father claimed that he had been “bashed by bikies” and had dry blood on his face. The police formed the opinion that the father was well affected by intoxicating liquor and they drove the father home. An altercation then ensued between the father and his mother.

87.The police were called to further altercations at the father’s home involving the father and his mother on 24 June 2014, 9 August 2014, 13 August 2014 and 7 October 2014.

88.On 16 October 2014 police were called to the father’s home because of an altercation between the father and Ms U whom the police noted was pregnant.

89.On 17 October 2014 the police were called again to the father’s home after an altercation between the father and his parents.

90.On 21 October 2014 the police were called to KH when the father failed to leave the hospital after having been asked by staff to do so. Ms U was a patient at the hospital in the maternity ward.

91.On 23 October 2014 the police were called by a third party who was concerned by an altercation between the father and Ms U. An ambulance was called and Ms U was taken to hospital as she was in labour.

92.On 30 October 2014 another incident occurred between the father and Ms U when police were called to the home of Ms U’s mother. When the police arrived Ms U was again in labour and was conveyed to the Suburb V hospital.

93.The police later spoke to Ms U who told them that she had attended at the father’s home at about 9.00 am and they had entered into an argument. Ms U attempted to leave the premises and the father pulled her away from the door and pushed her to the ground. Ms U suffered a graze to her right ankle and her right elbow. She then asked the father to take her home and he refused. The father pushed Ms U onto the bed and sat on top of her, grabbing her arms and holding her down on the bed. Ms U said she was frightened, due to the fact that he was sitting on her stomach, which made her fear for her unborn child, and was yelling at him to get off her. The father refused to get off Ms U and she attempted to push him off her. The father picked up a pair of scissors and put the blade of the scissors to Ms U’s neck, resulting in a minor laceration about 2 cm long on the left side of her neck under the jawline. The father was yelling at Ms U “Shut-up, shut your mouth. Fix your tongue”. Ms U stated that she was so scared but she did not want to show fear.

94.The father then said that he would take Ms U home. They got in the car and headed in a westerly direction. Ms U asked the father where they were going and he told her that he was taking her to her new home. She was sitting in the front passenger seat and attempted to open the door. The father stopped the car and hit Ms U with a closed fist to the right side of her head. He then drove Ms U to her mother’s home. Ms U’s mother heard the father yelling at Ms U in the carpark of her unit. Ms U entered her mother’s unit and began crying and whispered to her mother “Mum he’s been hitting me all day”. Ms U’s mother asked the father to leave and he refused and swore and made threats to both Ms U and her mother. Eventually Ms U’s mother pushed the father out the door.

95.Ms U’s mother telephoned the ambulance and, as she was waiting for the ambulance, the father was circling the premises jumping at windows and continuously swearing and threatening the occupants. The father was arrested.

96.On 2 November 2014 the police were called to an altercation between the father and Ms U at the father’s home.

97.On 6 January 2015 the police were called to an altercation between the father and his mother at the home. The father’s mother told the police that they were unable to hold a normal conversation without it escalating it into an argument.

98.On 10 January 2015, the police were called to an altercation between the father and his mother. The father’s mother told police that she had not been assaulted but that they had argued.

99.The records produced by the police indicate numerous further attendances at the home of the father and his parents.

100.On 16 March 2015 the father presented at O Hospital. The father said that he had been assaulted by a group of people earlier in the day. The father was noted to be very vague and unable to record anything else about the assault. The father remembered going into a shop afterwards to call the police who, according to the father, came but did nothing. The record notes “In triage he wrote his symptoms on a piece of paper, was not cooperative and fell off a chair and was lying on the floor. Denies alcohol / drug use”. The records note that the behaviour of the father was bizarre and the history he gave inconsistent. The father was noted to have been uncooperative at triage. He was monitored overnight and discharged the following morning.

101.On 18 March 2015 the father was found lying on the stairs of a railway station and again taken to O Hospital. Nursing notes indicate that the father was vague and unable to follow instructions. He was discharged the following day.

102.The father discharged himself from hospital on 19 March 2015 against the advice of doctors. The hospital notes indicate some concerns that the father was taking nutritional supplements which he bought over the internet without medical advice.

103.Later, on 19 March 2015, the father presented again at O Hospital complaining that he had been bitten by a cat five days ago. The notes indicate that the father demanded attention and was noted as being “belligerent, escalating behaviour, paranoid, irrational”.

THE FATHER’S MOTHER AND MS U

104.The father, in cross-examination, denied that he had been violent towards his mother. He said they had a good relationship and that his mother would be involved in the care of B if orders were made as he asked.

105.Although the father had indicated, during the directions hearings and in documents in the preparation of his case, that his mother would be a witness in the proceedings, no affidavit was filed by her.

106.The father gave evidence that his mother had recently spoken to his solicitor.

107.He advanced no reason for his mother’s failure to swear an affidavit.

108.In the absence of evidence from the father’s mother as to their relationship, I accept the evidence of the police and of health professionals that the paternal grandmother is frightened of the father.

109.Ms U did not give evidence in the proceedings.

110.She attended at Court on each day of the hearing and sat in the back of the Court. She was clearly available to give evidence in the father’s case.

111.If she disputed the accounts of the violent behaviour towards her which were contained in the records produced by the police, she could have given evidence of her version of the incidents. She did not.

112.Accordingly I accept the evidence in the records produced by the police of the violence perpetrated by the father towards Ms U.

ALLEGATIONS BY THE MOTHER OF VIOLENCE TOWARDS HER BY THE FATHER

113.Not all of the allegations made by the mother are examined in these reasons but it is necessary to have regard to the most serious incidents.

114.The mother deposed that in October 2009 she met the father for coffee at Suburb W and then went with him to his home. Once at the father’s home, the mother and father argued. She asked him to take her home and he refused saying that she was not going anywhere. The mother deposed that the father pushed her head into a wall and punched her in the stomach. The mother stayed with the father for four days until the father’s mother said to him “Let her go home” and he walked the mother to the train.

115.The father denied the incident occurred.

116.The father’s mother, who was, according to the mother, at home during the relevant period, was not called by the father to give evidence.

117.The mother’s account of the incident has striking similarities to the incident involving Ms J on 27 July 2006 and the incident involving Ms U on 30 October 2014.

118.I accept that the incident in October 2009 occurred as the mother alleged.

119.On 13 November 2009 the mother and the father spent the day together. She gave evidence that she drank too much. She deposed that the father also drank too much. They booked into a hotel in the Rocks area of Sydney. The mother deposed that the father became upset when she wanted to go home and pushed her onto the bed. He hit her on the side of her head above her ear with his fist. She cried. He apologised. The COPS record in relation to this event, created on 15 November 2009, is consistent with the mother’s account and states that on 13 November 2009 the father had hit the mother with a fist on the right side of her head, causing her to have immediate pain and be dazed for some time.

120.The father denied that any violence occurred.

121.The mother deposed that later in the evening, the mother and the father went to a night club in Kings Cross. The father deposed that they were both intoxicated. She said that they left the club at about 5.30am on 14 November 2009. The father, carrying the mother’s handbag, left before the mother.

122.The mother deposed that she left the club and saw the father, his hand bleeding, in an altercation with a taxi driver. The mirror of the taxi was smashed. The statement of the taxi driver was annexed to the father’s affidavit but the most relevant page was missing. The driver saw the father kick the mirror. The driver’s hand was bleeding. The driver in his statement said that the only person attacking him was the father.

123.The father, in his affidavit, deposed “I had an incident with a taxi driver which I accepted responsibility”.

124.The police were called. The driver refused to let the father go until the police arrived. The mother, according to the driver’s statement, “started slapping her boyfriend and telling him to settle down. The [mother] said to me, “That’s how we behave when we go out. We always have problems”.”

125.The driver left the scene. The father was later apprehended and an ambulance was called due to the father’s intoxication and injuries. He was convicted of assault and destroying/damaging property.

126.I note that the COPS records and the witness statement of the taxi driver in the criminal proceedings state that the incident occurred on the morning of 15 November 2009, rather than on 14 November 2009 as deposed to by the mother. The records produced by police do not include their record of the mother’s complaints about the father on that night but an AVO was taken out for the protection of the mother.

127.The AVO was served on the father by police. Within an hour of being served with the AVO, the father was arrested for breach, he having gone to the mother’s home. Police record that, outside the mother’s home, the father resisted arrest. He was handcuffed. The father was charged, and subsequently convicted, with breaching the AVO.

128.Thus, while I cannot make a conclusive finding that the father assaulted the mother on the night of 13 November 2009, it is clear that the police had sufficient concerns about the incident to grant an AVO and, more relevantly, that the father breached the AVO and was convicted of that breach.

129.On 16 July 2010, there was another incident between the mother and the father. In breach of the AVO, the father went, uninvited, to the mother’s house. The mother deposed that the father moved towards her and that she “threw my hands out at him and the fork that was in my hand hit him in the eye”.

130.Records produced by KH show that on 16 July 2010 the father presented to emergency with multiple small penetrating wounds to his lower eye lid. The records state that the father was accompanied by his girlfriend (presumably the mother). Neither was able to explain how the wound had been incurred.

131.The father agrees that he went to the mother’s house. He gives no explanation for his disregard of the AVO. He deposed that he did not tell the hospital staff how the wounds were caused because he did not want to get the mother into trouble. The notes produced by KH record that the father was a poor historian; he gave multiple stories then stated that he couldn’t recall what happened; he didn’t easily follow directions and that his speech was slow and disjointed. The notes record that the mother told hospital staff that the father’s speech was normal.

132.The mother caused the wounds with a fork.

133.The father was charged and convicted with breaching the AVO.

134.The mother deposed that about two weeks after B was born there was a further incident at her home. The mother deposed that the father let himself into her home while she was breastfeeding B. She asked him to leave. He started hitting himself in the face then grabbed her around the throat. The father went into the kitchen and found a knife. He held the knife in front of the mother and said “I’ll fucking kill you”. He then held the knife to his own throat and threatened to kill himself. The mother tried to call the police. The father grabbed her phone and threw it on the floor and then left. The mother called the police.

135.The father denies that the incident occurred as alleged by the mother although he does not deny having been at the mother’s house on that day.

136.Records produced by police show that on the evening of 15 October 2010 the police attended at the mother’s home and obtained a signed statement from her. The COPS record noted that, as a result, the father was wanted for breaching the current AVO. The COPS record noted serious concern that the father has no intention to abide by the conditions of the AVO.

137.The account given by the mother to police is recorded in the documents produced. The mother told police that the father had hit himself about the head and threatened to kill himself and that he had wrapped his hands around her neck and attempted to choke her. She did not tell police that the father had threatened her with a knife. It is unlikely that she would have failed to mention a threat to kill with a knife had it occurred. The father arrived at the mother’s home at about 10.30 am on 15 October 2010 and did not finally leave until after 7.00 pm.

138.The father’s threatening to kill the mother, threatening to kill himself, attempting to choke the mother, are all actions of the father which have been reported by other witnesses to have occurred to that witness or in the presence of hospital staff. The father behaved in that way both before and after this incident.

139.The mother left her home and stayed with B in a refuge until she was told by police that the father had been arrested and imprisoned. That action is consistent with her having been assaulted and afraid of the father.

140.I accept the mother’s evidence that he assaulted her as she described to the police. I do not accept that he threatened her with a knife.

141.The father was charged with offences against the mother including contravening the AVO and assault but no evidence was offered in relation to offences against the mother, including the breach of the AVO, when the matter came before the Court. The father was convicted and imprisoned in relation to offences arising out of the police pursuit.

142.The police pursuit, which is referred to at paragraph 72 of these reasons, took place later on the same evening.

143.After the father was released from gaol, the parents started to spend time together.

144.C was born in 2012. After C’s birth, the parents lived together.

145.The mother was well aware that DFCS had serious concerns about her spending time with the father, having regard to the history of violence. She was aware that DFCS might, at any time, remove the children from her care if they determined that the children were at risk because of the father’s involvement in their lives. It was not in the mother’s interest to fabricate allegations that the father was violent towards her.

146.A meeting took place on 10 October 2012 at which DFCS workers, the mother and the father were present. The concerns of DFCS in relation to the father’s presence in the home were made clear to the mother. Such were those concerns that a Safety Plan was prepared, noting the danger as domestic violence and physical and psychological harm to the children. The Safety Plan required the mother to notify the police if there was violence and to “follow through” with an AVO. Both parents signed the Safety Plan after DFCS suggested that, if the father did not sign, then they would arrange for the mother and the children to be taken to a refuge.

147.An altercation occurred between the parents the very next day. The mother deposed that they argued over taking out the rubbish. She was breastfeeding C. They argued. The mother told the father she intended to call DFCS. The father grabbed the phone from her. The phone was attached to its charger. The mother deposed that the charger was pulled from the plug and hit C in the head and that C started to bleed.

148.The father denies that the incident took place.

149.The mother was interviewed by DFCS on the same day. The mother told DFCS that the phone was on charge, the father snatched the phone out of her hand and “it flinged back. I think it hit him. I started to cry”. The mother does not mention to DFCS that C was bleeding. It is unlikely that such a significant matter would have been inadvertently omitted. The mother reported that the father said “You idiot. If you call the police [DFCS] will take my baby” There was then a struggle over the phone and, in the course of the struggle, the father’s face was scratched by the mother. The mother regained the phone and called the police.

150.I accept that the incident occurred as reported to DFCS by the mother. I do not accept that C was bleeding as a result.

151.DFCS arranged for the mother and the children to move to a refuge for two weeks.

152.A further AVO was taken out for the protection of the mother.

153.In about July 2013 the contact between the parents resumed. The father spent time with the children and the mother in a park. DFCS cautioned the mother. The oral evidence established that the parents lived together either in the mother’s house or the father’s house with the children.

154.On 8 July 2013 the parents went through another religious ceremony. The mother deposed that she did not want to proceed with the ceremony but the father argued with her and grabbed her throat. The father denies that allegation. There are numerous reports of the father grabbing female partners by the throat. I accept that he did so on this occasion. The mother may have changed her mind before the ceremony but she drove the father to the residence of the religious elder in her car for the purpose of their participating in the ceremony. This was at a time when there was an AVO in place for her protection against the father.

155.There is no record of the mother having complained to either the police or DFCS about the incident on 8 July 2013.

156.On 12 July 2013 the mother introduced the father to the staff at the day care centre where B attended.

157.On the evening of 16 July 2013 the father deposed that the mother and the children were at his house. At about 9.00 pm the mother put B to bed. After a time, B woke, crying. The mother went in to her, swearing loudly and appearing angry. The father followed and saw the mother grab B around the arms and violently lift her out of the cot onto the floor. The mother yelled at B who was still crying and then slapped B on the left side of her head and then on her lower back.

158.The father intervened. The mother said to the father “What do you expect. She has to go to sleep. I can’t handle this crying any more”.

159.The next morning the father dressed B and gave her breakfast before the mother woke. The father told the mother that he would take B to preschool and leave the mother to look after C.

160.The father took B to preschool and returned home. The father deposed that he and the mother agreed that he would collect B from preschool that afternoon.

161.The affidavit of the mother gives a less detailed picture of these events. In an affidavit sworn 23 October 2014, the mother deposed:

On 17 July 2013 my mother called me to let me know that [the father] had picked up [B] from preschool. I tried to call [the father] about 20 times. The calls were rejected, that is they started to ring but then stopped after different times. [The father] did not reply to my text messages. I made application for recovery order on 19 July 2013. The children were delivered back to me.

I did not ask [the father] or give him permission to pick [B] up from daycare.

162.In cross-examination about the time leading up to this event, the mother was extremely evasive. She repeatedly answered “Possibly” to suggestions that she and the father had been living together in the days leading up to the event. She strongly denied the father’s allegations that she shouted at B, handled her roughly or hit her. She denied that the father had taken B to preschool on the morning of 17 July 2013. When confronted with the “sign in” sheet she denied that the signature was the father’s and said, variously, that it was her signature or that of her mother.

163.There can be no dispute that it was the father who took B to preschool on the morning of 17 July 2013. This is confirmed by the director of the preschool.

164.There are numerous complaints in the files produced by DFCS of the mother shouting at B, hitting B and handling her roughly.

165.On 7 June 2013 DFCS received a report from a support worker expressing concerns about the mother’s care of the children. The mother asked the worker to leave the house when the concerns were raised with her.

166.On 25 June 2013, the mother told DFCS workers that she had been finding things “too much” with both the children at home and that she wanted her mother to take them for a few days to give her a break. The mother was impatient with B and in front of DFCS workers, told B to “shut up”. The mother was abrupt with B and yelled at her, causing B to cry. DFCS workers told the mother that her behaviour was the worst they had witnessed and determined to find additional days in child care for B and a place for C. They also discussed respite care for the children. The mother told DFCS workers that she smacked B on the arm or leg sometimes and DFCS workers explained to the mother the law in relation to physical punishment and the importance of not smacking B in anger.

167.The father’s evidence of the mother’s treatment of B on the evening of 16 July 2013 is consistent with the observations made by DFCS workers on the earlier visit.

168.The mother herself conceded to Dr G that she had hit B on an occasion when she could not cope and that she had “snapped and slapped” B.

169.Both children were removed from the mother’s care and placed with the maternal grandmother for a period in 2014 because of concerns, inter alia, by medical professionals, about bruising and non-accidental injuries to the children caused by the mother.

170.I accept that the mother behaved towards B as the father alleged on 16 July 2013.

171.After the father collected B from preschool on 17 July 2013, he took her to the DFCS offices at O and demanded to see a case worker. He told staff that the mother had been hitting B. The father was shown to an interview room where he left his possessions. The father was told that the manager would see him. He reacted by telling the case worker that she was standing too close and that she was intimidating him. The case worker stepped away and the father said he was going to take out an AVO against the case worker. The father also stated that the case worker was detaining him against his will and had unlawfully kept his possessions.

172.The father left the DFCS office with B and went to the police station to complain about being harassed by DFCS staff. The father made angry statements about the mother and her care of B. He became irrational and argumentative and stated that he did not want to make any report. He accused police of harassing him and being prejudiced against him in relation to his religious beliefs. The father’s mother came to collect him and he took B home with him.

173.A welfare check was conducted by the police who reported that the father’s home was neat and tidy and that B was asleep.

174.B was returned to the care of the mother pursuant to a recovery order and has not spent time with the father since that event. 

175.On 18 March 2014 the father threatened the mother at the Family Court and was charged and convicted as is set out in paragraphs 79 and 80 of these reasons.

176.The sentence in relation to those offences required the father to continue to attend “Life on Track” program conducted by Mission Australia and accept all reasonable direction for as long as the operators of the program considered necessary, including attendance at anger management programs and drug and alcohol rehabilitation programs.

177.There is no evidence that the father has made any attempt to comply with that recommendation.

CAN THE CHILDREN BE PROTECTED FROM THE RISKS CAUSED BY THE FATHER’S BEHAVIOUR BY SUPERVISION?

178.Dr G, in his report, stated:

If [the father] were a person of good personal and parenting capabilities, then I might advise that spending time with him would not only provide the children with an opportunity to spend emotionally rewarding time with their other biological parent, but that one could rely on this being a fairly stable arrangement. However the materials available to me concerning [the father] do not suggest that this is the case. Rather they seem to indicate that he is also an emotionally unstable, very emotionally needy and impulsive person. As I have indicated elsewhere it seems likely that he has had relatively little to do with the children throughout their lives, particularly [C]. Moreover he seems to have no respect for his own adoptive mother, who seems to be terrified of him, indicating that the parent-child relationship is not one upon which he can draw for parenting guidance. There is little or no guarantee that if he embarked on spending time with the children that he would be consistent about attending or that he would provide an appropriate parenting environment. I would also be concerned that the children may return from visits reporting alarming things to their mother which would destabilise things at her home. Finally, [the father] being on the periphery of the mother’s life may also cause her to feel quite insecure and worried that, for instance he may visit the children at her home in breach of orders or that he may retain the children.

In other words, it is not my view that [the father] has been able to demonstrate good parenting skills, there is good reason to think that in fact his parenting skills are quite poor and would stray into the domain of emotional, verbal and physical abuse, and there is also a significant possibility that he may exert a disruptive effect on the fragile parenting environment in the mother’s home such that her already quite poor parenting deteriorates again.
….

Overall I formed the view that [the father] suffers from Antisocial Personality Disorder and that he is reasonably adept at denying the nature and extent of his behaviour, as he did for my assessment, and also at giving a plausible account of anxiety and depression, which he may experience fleetingly but in my view no way approaches the central diagnosis of his mental state.

179.In August 2013 the ICL attempted to put in place a regime of supervised time for the father with the children using X Care as the supervisor.

180.An appointment was made for the father to undertake an intake assessment at X Care. On 4 November 2013, the father arrived an hour late. The notes produced by X Care under subpoena record:

I (Caseworker [Ms Y]) went out and greeted him, I introduced myself and we shook hands. [The father] was looking at his phone, he glanced up to shake my hand, and then continued to look and type on his phone. He pointed at the forms, and said he didn’t complete them, I said we would help him with it. I asked him if he was ready to start the assessment, [the father] continued to look at his phone; he said he needed a few minutes; he was abrupt and dismissive when talking to me. I said the appointment was at 2pm, and that we had waited one hour. [The father] said he had called to inform us that he was running late. [The father] remained still, he continued to look at his phone while talking to me, he said he was doing something on his phone, he said he needed a few more minutes. I asked him how long he needed, he continued to look at his phone, and he said 2 minutes.

I went back after a few minutes, and asked if he was ready. [The father] stood up and followed me.

[The father] presented as resistant, he didn’t appear to want to be at the service, he didn’t maintain eye contact with me, he continued to type on his phone while I spoke to him.

We joined Coordinator [Ms Z] in the board room. [Ms Z] greeted him. [The father] sat down and said “I don’t want to do this”. [Ms Z] acknowledged this and said that was okay. He then pointed to the form and said something that was about confidentiality. I said to [the father] something to the effect of; we’re getting a lot of resistance from you. [The father] seemed to get angry at this, thereafter he presented as passive aggressive and confrontational. He asked to speak to the manager, he asked who I was. I said I was the caseworker, he said he wanted to speak to the manager. [Ms Z] said she was the coordinator, and that we worked together, I said it seemed he was resistant to using the service, I said he was one hour late for the intake, I said he hadn’t apologised, or acknowledged me when I spoke to him at arrival, I said he asked me to wait further until he finished with his phone. [The father] said he had called, and apologised for being late, he said he was responding to something important (on his phone; this matter was that his dog had run out of the gate of his home). Although [the father] remained calm, it was evident that he was angry, he glared at me with a stern expression, and was disrespectful when addressing me, he said “you have just accused me of something I didn’t do,” and “you have lied in front of your colleague” (referring to [Ms Z]). I said it was evident that he didn’t want to use the service; I said the service could only work with families that wanted to be here. [The father] continued to ask for the manger. [Ms Z] stood up and invited him to leave. We assured him that we would give him a complaints brochure.

181.On 5 November 2013 a letter was written to the father by X Care informing the father that the Sydney Children’s Contact Services would not accept him into the Service for supervised contact. The letter concluded

In these matters, where we do not accept a client into the service, we ask that any future communication is done through your solicitor. You do not need to contact the Sydney Children’s Contact Service or attend the AA Centre where the office is based. If you do contact us we will not accept the call and if you arrive at the AA Centre you will asked to leave by security. You were given details of the manager if you wished to make a complaint.

182.Despite being requested by X Care not to contact the service the father telephoned X Care on 29 November 2013. The father said that the letter which had been written to him was “100% incorrect” and he wanted it to be “clarified” and “retracted”. The note of the conversation produced by X Care records:

He said the reference to removal by security if he entered the building implied he was a threat, that he “did not threaten anyone” and this was “defamation”. [The father] said that he was very upset as this could be “tendered in court” and be misleading. He referred again to Privacy laws in relation to the paperwork and that he would need to know what he was signing. He felt the staff had made “unprofessional” comments in the letter and that the service was judging him on the basis of others which was misleading.

183.In relation to the possibility of supervised time with the children Dr G said:

The Court may order that the children spend time with their father. Provided this is done under safe circumstances, I think that the children would cope with this fairly well, particularly if it is of an appropriate duration. However I am concerned that such contact may destabilise the mother’s fragile equilibrium which would undermine her parenting and in turn have an adverse effect on the children.

184.Dr G in cross-examination was asked whether or not there were any circumstances in which a supervised arrangement could be put in place which would allow the children to spend time with their father. Dr G said that there was a risk that the father could “lash out” at the children and that he would not want to do that but does not have the capacity to stop himself if a situation occurred with the children that provoked him. Dr G doubted whether any sort of treatment would significantly affect the father’s impulsiveness and impatience. Dr G stated that the father’s behaviour is likely to abate “somewhat” as he gets older but the timeframe for that kind of natural abatement was longer than the childhood of these children.

185.Dr G characterised the father’s presentation as intense emotional instability and mood instability.

186.Dr G expressed concerns that, having regard to the father’s attitude towards people in authority, it would be extraordinarily difficult to supervise his time with the children. Dr G said that it would not be possible for a woman to supervise. Dr G said that there would be a risk that, if any limits were put on the father’s behaviour, he would have a temper tantrum that might involve verbal abuse, might involve physical abuse and might involve damage to property. Dr G also expressed the view that there was a risk, even if appropriate supervision could be put in place, that the father would not follow through with the supervision and would disengage from the contact. Dr G expressed the view that the likely pattern would be that the father would come for a few visits and then would just withdraw from the contact, either turning up late or not coming at all.

187.Dr G said that the only sort of supervision which might be appropriate to protect the children would be that which might be conducted by DFCS. He expressed the view that no contact centre would be appropriate. At DFCS, Dr G said, there could be a male case worker present and it would be necessary for there to be additional security staff present.

188.The risk to the children of being exposed to physical and emotional harm by virtue of the father’s behaviour, if they spend even strictly supervised time with him, is not the only risk inherent in their spending time with him.

189.In his oral evidence, Dr G expressed concern about the effect on the mother of the children spending even supervised time with the father. He said:

…what I’m thinking is that I think she’s quite a vulnerable person.  Her parenting really is at a fairly low level, and anything that rocks the boat is going to undermine her capacity to benefit from the parenting counselling, and also runs the risk of, you know, her getting upset, anxious and impatient with the children, which has already been a bit of an issue in the past.  So I think – and because she does worry about – well, my understanding was that she’s pretty paranoid about (the father).  “Paranoid” is probably the wrong word.  She’s extremely vigilant about the notion that (the father) might be scratching her car or hanging around outside the house or some sort – some sort of thing like that.  I mean, there have been reports of that sort.  And so anything that causes a degree of anxiety and insecurity in her, as I say, compromises her capacity to (a) look after the children, and (b) to benefit from the parenting advice that she’s going to need on an ongoing basis.  So that’s a very important consideration in my mind.

190.On behalf of the father, counsel submitted that supervised time was appropriate because the father had never been violent towards the children. I reject that submission. The father’s propensity to violence towards, particularly, women but also others including police officers and strangers, combined with his inability to exercise self-control, renders him a danger to the children.

191.It is not possible to put in place a regime of supervision that would, with sufficient certainty, ensure that the children were not exposed to violent behaviour on the part of the father.

192.Any contact between the father and the children would be detrimental to the mother’s marginal ability to adequately care for them.

193.It is not possible to put in place a regime of supervised time between the father and the children that would keep them safe and well cared for and not have an adverse effect on their ability to continue in the care of the mother.

194.That conclusion having been reached, it is not necessary to further consider the matters in s 60CC(3).

PROVIDING THE FATHER WITH INFORMATION ABOUT THE CHILDREN

195.The mother objects to the father’s being provided with school reports and the like, however redacted. She fears that the father would be able to use such information to locate her and to harass and intimidate her.  

196.Ultimately, no application was made for the provision of information about the children to the father and no order will be made.

IMMUNISATION FOR C

197.The minute of orders which was tendered by DFCS at the conclusion of the evidence, included an order that the mother do all things necessary to ensure that C is fully immunised. Although the cross-examination of the mother touched upon her reasons for failing to ensure that C was immunised there was no evidence before the Court such as to base the order which was sought by DFCS. Before such an order would be made it would be necessary for there to be evidence before the Court, in the mother’s case, supporting her decision not to have C immunised and, in the case of DFCS as to the benefits and / or detriments of immunisation for C. There was no such evidence before the Court and no such order will be made.

198.It would indeed be unfortunate that the mother’s decision not to have C immunised might have an impact upon his ability to participate in school and preschool events in the future. This is a matter than which may need to be revisited by the mother and DFCS if that should become apparent.

OVERSEAS TRAVEL

199.The mother seeks an order that she be permitted to remove the children from Australia. That order is opposed by DFCS. In her affidavit the mother deposed that she has family in Country BB and since she was young has travelled to Country BB every three years or so commencing when she was nine years old. The children’s great grandparents on both sides live in Country BB. The mother has not been back to Country BB since the children were born and she wishes to take the children back to visit her family and to introduce them to their great grandparents. The mother says that she would like to take a three month trip before B starts school.

200.Nothing in the evidence before me suggests that there is any reasonable likelihood that the mother would be in a position to fund a trip for herself and the children to Country BB. Nothing in the evidence before me suggests that the mother can adequately care for the children for a three month period without the support of DFCS, the H Society and CC Care which is currently in place for her.

201.I am not persuaded that it is appropriate to allow the mother to remove the children from the jurisdiction.

PARENTAL RESPONSIBILITY

202.In light of the findings outlined earlier in these reasons the presumption in favour of the parents exercising equal shared parental responsibility, pursuant to s 61DA of the Act, is rebutted due to family violence.

203.The father himself conceded in cross-examination that there was no possibility that he and the mother could communicate about any decisions that needed to be made for B and there may, in consequence, be things that need to be put in place for B’s welfare that could not be achieved.

204.The history of the father’s breaches of the AVO orders for the protection of the mother makes it inappropriate to vary the strict conditions that require him not to contact her. She fears that if the father is allowed to contact her on any basis, he would use that contact to harass her and to try to locate her and the children. That fear, having regard to past events, is reasonable.

205.It is not appropriate, given the history of the father’s violent conduct, anti-social behaviours and mental health issues, to make a parental responsibility order in his favour. This accords with the position of the mother, DFCS and the ICL.

206.The question left for determination is whether the mother should exercise sole parental responsibility for the children, as advocated by the mother and DFCS, or alternatively, whether, as advocated by the ICL, parental responsibility be jointly exercised by the mother and DFCS.

207.It is the contention of the ICL that an order allocating sole parental responsibility to the mother would not be in the children’s best interests given the real issues with the mother’s parenting capacity, traversed earlier in these reasons.

208.The ICL submitted that the Consent Orders of 8 May 2014, whereby it was agreed by the parties that DFCS and the mother would share parental responsibility reflect that, as at May 2014, the parties did not consider that it would be in the children’s best interests for the mother to exercise sole parental responsibility. The ICL referred to a series of incidents since the making of those Orders which, it was submitted, would raise serious doubts as to the appropriateness of the proposals now advanced by the mother and the DFCS, including:

a)B being locked in her room by the mother and hit on the head by the opening door, causing a bruise to her forehead;

b)B’s disclosure that the mother called her an animal;

c)A risk of harm report received by DFCS that the mother smacks the children, grabbed B by the arm and threw her into the room causing her to vomit, and that the home was unhygienic with animal faeces;

d)C being observed to have a scratch on his back that may have been caused by B; and

e)As recently as April of this year, C being observed to have a bruise on his upper leg (claimed by the mother to be nappy rash) and placing a pillow on the face of another child.

209.In these circumstances, it was submitted by the ICL, the Court could not be satisfied that the children will be adequately protected from harm if a sole parental responsibility order is made in the mother’s favour.

210.It is not in dispute that the mother has, in the past, made poor parenting decisions. Dr G opined that it is likely that the mother has never had “good enough” parenting skills. DFCS submitted, however, that unlike the father, the mother has shown a sustained commitment to improving her capacity to make better decisions for the children. She has engaged with the extensive support and assistance that has been provided to her by DFCS, the H Society and CC Care.

211.DFCS, in support of its position that the mother should exercise sole parental responsibility, also referred the Court to the array of powers afforded to it pursuant to state legislation should DFCS form the opinion, at any stage after the making of final orders in this Court, that the children are at risk of harm in the mother’s care.

212.DFCS pointed to the wide ambit of orders that it may seek from the Children’s Court should this be considered necessary at any point in the future. The powers of DFCS which are outlined below are not dependent upon this Court making a parental responsibility order in its favour and operate regardless of an order by this Court allocating sole parental responsibility to the mother.

213.In order to determine whether the Court’s concerns as to the safety and well-being of the children in the mother’s care may be alleviated through the making of supervisory orders as proposed by DFCS rather than an order for parental responsibility in its favour, I turn now to consider its powers under state legislation should it become apparent, at some later point, that the children are at risk of harm.

214.The paramountcy of state child welfare laws in this jurisdiction is reflected through s 69ZK of the Act, which, as outlined by Gummow, Hayne and Heydon JJ in Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor (2004) 219 CLR 365 at paragraph 109:

... is a limitation upon the exercise of jurisdiction otherwise exercised under the Family Law Act. It is designed to give some measure of insulation to the operation of the child welfare laws of the States and Territories …

215.Section 69ZK(2)(a) expressly reserves the jurisdiction of the state courts and the power of an authority acting under a child welfare law, such as the DFCS, to make an order or to take any other action, by which a child is placed under the care of a person under a child welfare law. I here set out this section in full:

FAMILY LAW ACT 1975 - SECT 69ZK

Child welfare laws not affected

(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

(a) the order is expressed to come into effect when the child ceases to be under that care; or

(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

(2) Nothing in this Act, and no decree under this Act, affects:

(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

(b) any such order made or action taken; or

(c) the operation of a child welfare law in relation to a child.

(3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.

216.A “child welfare law” is defined by s 4(1) of the Act as “a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.” Subregulation 12B(2), Schedule 5 of the Family Law Regulations 1984 (Cth) provides that the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“CYP Act”) is a prescribed law of a state for the purposes of s 4(1) of the Act.

217.The powers of DFCS pursuant to the CYP Act are extensive. In circumstances where the Director-General of DFCS (“the Director-General”) or a police officer is satisfied, on reasonable grounds, that the children are at an immediate risk of serious harm (and where the making of an Apprehended Violence Order would be an insufficient protection against that risk) they have the power to remove the children from a place of risk without a warrant (s 43 (1) of the CYP Act). Section 45 of the CYP Act provides that if a removal takes place, the Director-General must make a care application in the Children’s Court for an emergency care and protection order, an assessment order or any other care order no more than three working days after the removal.

218.Section 30 of the CYP Act provides that the Director-General, upon receipt of a risk of harm report, is to make such investigations and assessments as he considers necessary to determine whether a child is at risk of significant harm. Pursuant to s 34 of the CYP Act, if the Director-General forms the opinion, on reasonable grounds, that the children are in need of care and protection, he is to take whatever action is necessary to promote the safety, welfare and well-being of the children, including the exercise of emergency protection powers such as the power of removal outlined above or the seeking of orders from the Children’s Court.

219.The grounds for the making of a care order by the Children’s Court are set out in s 71 of the CYP Act and include that the children have been, or are likely to be, abused or ill-treated, that their basic physical, psychological or educational needs are not likely to be met by their parents, or another reason pleaded by the Director-General in a care application. The Children’s Court may also make a care order if the parents acknowledge that they have serious difficulties in caring for the children and, as a consequence, the children are in need of protection.

220.Section 173 of the CYP Act also enables the Director-General to require a child, where it is believed on reasonable grounds that he/she is in need of care and protection, to be presented to a medical practitioner to be medically examined.

221.The CYP Act also provides for less invasive interventions such as the development of a care plan through alternative dispute resolution which can be registered in the Children’s Court and form the basis of consent orders (s 38). Care plans may make provision for the allocation of paternal responsibility.

222.Additionally, the CYP Act makes provision for “parent responsibility contracts”. These contracts are made by agreement between the Director-General and one or more of the children’s primary care givers and are registered with the Children’s Court (s 38A). The contract may impose conditions on the parent/s including their attendance at counselling, parenting courses, or drug and alcohol treatment. A parent responsibility contract, however, cannot make provision for the allocation of parental responsibility or the placement of a child in out of home care.

223.Section 34 of the CYP Act specifies the actions that may be taken by the Director-General, regardless of the allocation of parental responsibility, in relation to a child in need of care and protection:

34 Taking of action by Director-General

(1) If the Director-General forms the opinion, on reasonable grounds, that a child or young person is in need of care and protection, the Director-General is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person.

(2) Without limiting subsection (1), the action that the Director-General might take in response to a report includes the following:

(a) providing, or arranging for the provision of, support services for the child or young person and his or her family,

(b) development, in consultation with the parents (jointly or separately), of a care plan to meet the needs of the child or young person and his or her family that:

(i) does not involve taking the matter before the Children’s Court, or

(ii) may be registered with the Children’s Court, or

(iii) is the basis for consent orders made by the Children’s Court,

(b1) development, in consultation with one or more primary care-givers for a child or young person, of a parent responsibility contract instead of taking a matter concerning the child’s or young person’s need for care and protection before the Children’s Court (except in the event of a breach of the contract),

(c) ensuring the protection of the child or young person by exercising the Director-General’s emergency protection powers as referred to in Part 1 of Chapter 5,

(d) seeking appropriate orders from the Children’s Court.

Note : In considering what action to take under this section, the Director-General is to have regard to the grounds under section 71 on which the Children’s Court may make a care order.

224.In light of the above, I am satisfied that it is not necessary for DFCS to exercise parental responsibility jointly with the mother in order to address the Court’s concerns about the mother’s parenting capacities into the future. I consider that the provision of supervision by DFCS of the children in the mother’s care will act as a sufficient safeguard for the children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence in the mother’s care. DFCS is statutorily obligated to “take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child” where it is concerned, on reasonable grounds, that the child is in need of care and protection (s 34 CYP Act).

225.DFCS has been extensively involved in monitoring and guiding the mother’s parenting of the children and the mother has been, and will continue to be, in regular contact with mandatory reporters through the supervision orders that will be made in these proceedings and through her involvement with case workers from the H Society and CC Care. Section 27 of the CYP Act provides that if a mandatory reporter has reasonable grounds, arising through the course of their work, to suspect that a child is at risk of significant harm, it is their duty to report this as soon as practicable to the Director-General. The obligations of the Director-General upon receiving a risk of harm report have been outlined above.

226.I reject the submission of counsel for DFCS that the Court lacks power to make the order sought by the ICL. DFCS is a party to the proceedings and submitted to the jurisdiction of the Court in the knowledge that the Court was not confined, in the orders it might make, to those to which DFCS agreed.

227.However, the ICL’s application was made at the end of the evidence and without prior notice to DFCS who was not given the opportunity to call evidence about any issues relating to available resources or any practical problems with its exercising parental responsibility. If such an order were to be considered, DFCS should have been afforded procedural fairness.

228.Taking all of the above into account, I will make orders in accordance with the proposal of DFCS. If, after the expiration of the period of supervision provided for in the orders, DFCS considers that continued monitoring is required, the Orders will provide that it may extend the supervision period, without the need to obtain Court authorisation, for a further 12 months. If the DFCS remains of the view that supervision is necessary at the conclusion of the extended period, the DFCS may apply to the Children’s Court for a further supervision order pursuant to s 76 of the CYP Act.

I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 27 August 2015.

Associate: 

Date:  27/8/2015