Andrews and Lampton
[2014] FamCA 425
•20 June 2014
FAMILY COURT OF AUSTRALIA
| ANDREWS & LAMPTON | [2014] FamCA 425 |
| FAMILY LAW – CHILDREN – Family violence – Where issue as to whether the mother presents as an unacceptable risk of physical and emotional harm to the children or whether if the children were in her unsupervised care, they were at an unacceptable risk of being subjected to abuse, neglect or family violence – Where mother does not assert the father was an unacceptable risk of harm to the children –Where court noted the standard of care in civil proceedings as provided for by section 140 is on the balance of probabilities – Where court does not accept that the mother was a witness whose evidence was reliable or likely to be truthful – Where disclosures of mother’s violence made by the children – Where court satisfied the mother has on more than one occasion been violent to the oldest child – Where court satisfied the mother has regularly used excessive physical discipline upon the children – Where court satisfied the children have witnessed the mother being associated with drugs – Where court is satisfied the children have not been properly cared for on occasions by the mother – Where mother denies events – Where court concerned such denial will result in the mother not seeking assistance to curb her behaviour or to provide her with insight into its effect on the children and consequently there being the likelihood of a repeat of such behaviour – Where court noted the mother uses a technique of blaming others – Where court satisfied the mother presents an unacceptable risk of both physical and emotional harm to the children. FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the children – Family violence – Where mother and father engaged in incidents of domestic violence during relationship – Where mother found to be an unacceptable risk of physical and emotional harm to the children – Where mother has used excessive physical discipline towards the children – Where father conceded he engaged in domestic violence in the past – Where it does not appear there is any domestic violence in father’s present relationship – Where children do not report any fear of him or his violence – Where children expressed different wishes – Where eldest child does not wish to have anything to do with the mother but leaves open the possibility in the future – Where second child expresses some ambivalence in relation to seeing the mother – Where third and fourth child have not expressed any real views – Where children have now been separated from the mother for approximately two years and appear stable and well-adjusted in their present environment living with the father – Where it is likely that separation from their father would adversely emotionally impact upon them and have potential educational consequences – Where there was a family violence order in place soon to expire which the father and children were aggrieved and the mother was the respondent – Where the court ordered all four children to live with the father. FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – Where presumption rebutted – Where court satisfied the mother poses an unacceptable risk of physical and emotional harm to the children – Where court noted that to require the parties to make a genuine effort to come to a joint conclusion about issues involving the children would only promote further conflict which cannot be in the children’s best interests. FAMILY LAW – CHILDREN – With whom a child spends time – Where court found time to be spent with the mother to be supervised at a contact centre – Where mother poses a risk of physical and emotional harm to the children – Where no alternate supervisor could be identified – Where in the best interest of the second child who is 12 years old to be given the option of spending supervised time with the mother rather than being required to spend such time – Where third and fourth children commence spending unsupervised time with the mother once they turn the age of 15. FAMILY LAW – INJUNCTION – Personal protection – Where threats to harm the father were made by the mother from time to time – Where mother associated with an outlaw motorcycle gang – Where court noted paranoia of father may not be entirely beyond understanding in the circumstances – Where court satisfied there was a sufficient factual basis for making orders restraining the mother under s114. |
Evidence Act (Cth) s 140
| Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 61DA, 65DAA, 65DAC, 114 K v K (1997) 22 FamLR 592 |
| APPLICANT: | Ms Andrews |
| RESPONDENT: | Mr Lampton |
THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lehmann |
| FILE NUMBER: | CSC | 496 | of | 2011 |
| DATE DELIVERED: | 20 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 28 and 29 May 2014 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: COUNSEL FOR THE INDEPENDENT | In person Mr Trevino |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWER: | Lehmann Featherstone |
Orders
All previous parenting orders be discharged.
The father have sole parental responsibility for the children D born … 1997, Y born … 2001, N born … 2004 and J born … 2008.
The children live with the father.
The child D spend time with his mother at all times that he may agree to and as arranged between himself and the mother.
The child Y spend supervised time with his mother at the C Contact Centre at times determined by Y until he reaches the age of 15, from which time he shall spend unsupervised time with his mother as arranged between himself and the mother.
The children N and J spend time with the mother supervised at the C Contact Centre at such times as may be made available by that centre every second weekend, until they reach the age of 15, from which time they are to spend unsupervised time with their mother as arranged between each child and the mother.
The mother have Skype communication and/or telephone communication with the children at such times as may be reasonably requested by them, but in default of such requests then the mother be at liberty to initiate telephone communication every Wednesday between 6:30pm and 7:00pm every week when the children do not spend time with the mother at the C Contact Centre.
The mother and father shall keep each other informed of their postal address and telephone contact number and advise the other parent of any change to same within 7 days of the change.
The parties communicate with each other concerning issues relating to the children through the use of sms texting, telephone and/or mail communication.
Pursuant to s 114 of the Family Law Act 1975 (Cth), the mother, MS ANDREWS born (… 1976) be restrained from:
(a)harassing, molesting or stalking the father, Mr Lampton and/or the children D, Y, N and J;
(b)causing or threatening to cause bodily harm to the father and/or the children;
(c)entering or remaining on any premises at which the father and/or the children live or reside;
(d)entering or approaching any workplace at which the father works or is employed;
(e)entering or approaching any school at which the children attend;
(f)encouraging third parties to harass, stalk, threaten or assault the father and/or the children;
(g)encouraging third parties to enter or remain on any premises at which the father and/or the children live or reside;
(h)encouraging third parties to enter or approach any premises at which the father works or is employed;
(i)encouraging third parties to enter or approach any school at which the children attend.
The Independent Children's Lawyer provide copies of all four Family Reports prepared in the matter to the Department of Child Safety as well as the final Orders and the Reasons for Judgment.
The Independent Children's Lawyer is forthwith discharged with the thanks of the Court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
That otherwise all extant Applications be dismissed and the matter be removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrews & Lampton 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 |
FILE NUMBER: CSC 496 of 2011
| Ms Andrews |
Applicant
And
| Mr Lampton |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings involved competing proposals for final parenting orders in relation to four children: D (born in 1997 and presently 16 years of age); Y (born in 2001 and presently 12 years of age); N (born in 2004 and presently 9 years of age) and J (born in 2008 and presently 5 years of age). Pursuant to interim orders of Benjamin J made 14 March 2012, the present arrangements for those children are firstly, that D may spend such time with the mother as may be arranged between himself and the mother, and secondly, that the other children spend supervised time with the mother at the C Contact Centre.
THE PARTIES’ PROPOSALS
At the commencement of the hearing before me, the mother outlined the orders which she was seeking. As regarded D, she sought orders that he should live with the father, and communicate with her in person and via telephone when he may choose to do so. As regards Y, she sought an order that he live with the father, but spend every second weekend with her from 6:00pm Friday until 6:00pm Sunday, such time to be unsupervised. A different regime was sought in relation to N and J. She sought orders that both of those children live with her and spend alternate weekends with the father from 6:00pm Friday until 6:00pm Sunday.
As regards the three children Y, N and J, she sought that each of them spend some part of the school holiday breaks with the non-resident parent, and also sought orders in relation to special days.
In relation to all children, she sought an order that she and the father “share full parental responsibility in the decision making of all children.”
The father’s position was that he and his partner, Ms E, should have equal shared parental responsibility in relation to all four children, who should live with him.
In relation to the time that the children spent with the mother, he sought orders that D spend such time with the mother as he may wish, but that the other three children should spend time with the mother, supervised either at the C Contact Centre, or by an agreed supervisor. That regime would prevail until each child turned 14, at which time the child would spend unsupervised time with the mother as may be agreed to by the child, the father and the mother. He also sought that there be telephone contact between the mother and the children every alternate Saturday.
The Independent Children’s Lawyer broadly supported the position of the father, however sought orders that the father have sole parental responsibility for the children, who should live with him. As regards D, the orders the Independent Children’s Lawyer sought were that he should spend time with the mother as he may see fit. As regards Y, the Independent Children’s Lawyer sought orders that he spend supervised time with the mother at the C Contact Centre at times determined by him until he reaches the age of 15, at which time he would be able to spend unsupervised time with the mother as arranged between himself and the mother.
As regards the two younger children, the Independent Children’s Lawyer sought orders that they spend fortnightly supervised time with the mother at the C Contact Centre until they reach the age of 15, at which time they would be able to, should they so wish, spend unsupervised time with the mother.
The Independent Children's Lawyer also proposed that there be orders in relation to Skype and telephone communication between the mother and the children. Finally the Independent Children's Lawyer sought an extensive array of restraints upon the mother, designed to stop her from harassing, stalking, threatening or otherwise approaching or intimidating the father, his partner or the children.
BACKGROUND FACTS
The father was born in 1968, and is currently 46 years of age. The mother was born in 1976 and is currently 37 years of age.
The parties met in Sydney in 1996 and commenced a relationship. It appears from an early stage that the relationship was marred by extensive domestic violence. It was a matter of substantial controversy between the parties as to who instigated that violence: the mother asserted that she never instigated it, but rather the father did, whereas the father contended the contrary. However each appeared to concede that they were active protagonists in the violence which ensued, irrespective of who initiated it.
The relationship was also punctuated by periods of separation.
There were a number of domestic violence orders made against the father during the course of the relationship. There was also, whilst the parties were living in New South Wales, involvement of the Department of Child Services with the family.
The father alleges that the mother was in the habit of regularly meeting other men, and was, whilst they were living in New South Wales, involved in a “party lifestyle.” Seemingly in an effort to improve the family situation, the parties moved to Town A in the Hunter Valley, but that did not appear to substantially change the dynamics. Family violence appears to have continued, and the father alleges that the mother continued to have affairs with other men, including bringing them to their home, where the children witnessed her having sexual relations.
On 28 September 2008 (ie not long after J’s birth) the parties moved to Cairns in a further attempt to improve the situation for their family. It did not work, and they finally separated on 15 October 2009. During the time they were living together in Cairns however, the mother accepts that she assaulted D, albeit whether she did so once or twice or more times, is a matter of some controversy.
In May 2010 the father commenced a relationship with his present partner, Ms E. She was born in 1965, and is currently 49 years of age. Also after separation, the mother commenced a relationship with her present partner, Mr M.
Initially after separation all four children remained living with the mother, however soon after D went to live with the father, and on 1 July 2011 the father, without the mother’s consent, took the other three children into his care.
On 18 August 2011, the mother commenced the proceedings which are presently before me. On 13 September 2011, Federal Magistrate Willis (as her Honour then was) made interim orders that D, Y and N live with the father, and that J live week about with the parties. Those orders were varied on 14 March 2012 by Benjamin J, who ordered that all four children live with the father, and the younger three children spend supervised time with the mother. Although apparently it took some time to commence, since those orders the mother has seen the three youngest children at the C Contact Centre, although on occasions Y has chosen not to attend. D does not appear to have had any contact with his mother whatsoever.
On 31 May 2012 a Protection Order was made in the father’s favour against the mother, which order continued at the time of trial before me, albeit was due to expire on 30 May 2014.
In the proceedings before me both parties gave evidence along with their partners Ms E and Mr M. There was also evidence led from a Ms G, an officer of the Queensland Department of Communities, Child Safety and Disability Services, who had engaged with the parties during the time after they moved to Cairns. Finally, there was evidence from Mr H, a Clinical and Forensic Psychologist, who had prepared two Family Reports and two updates to those reports.
THE ISSUES
The central issue in the proceedings before me was whether or not the mother presents an unacceptable risk of physical and emotional harm to the children, or whether, if the children were in her unsupervised care, they would be at an unacceptable risk of being subjected to abuse, neglect or family violence.
There were two subsidiary issues of significance: firstly, the extent to which the children would benefit from having a meaningful relationship with the mother, in the event that they did not live with her. In this regard, and perhaps somewhat surprisingly, the mother submitted that in the event that she were found to be an unacceptable risk, she did not wish the current supervised contact at the C Contact Centre to continue, but wanted all contact to cease. Perhaps that position changed during the course of her submissions, because she seemed to embrace a suggestion made by Mr H that there be Skype contact between her and the children. The second subsidiary issue was what were the children’s wishes in relation to their living arrangements, and what weight should be given to such wishes as I may find have been expressed by them.
However critical to the determination of each of these three issues is the credibility of the parties, particularly the mother. After I have considered the legal principles relevant to this case, I shall therefore turn to considering the credibility issue before addressing the relevant factual and legal issues which will determine the orders that I make.
REVELANT LEGAL PRINCIPLES
The statutory regime
A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
The standard of satisfaction required
S 140 of the Evidence Act (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Plainly a physical assault on a child is, at least prima facie, a criminal act. However conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent is not, of itself and without more, necessarily fraudulent or criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegations made by the father are of real gravity.
Further, the consequences attaching to findings of the kind sought by the Independent Children's Lawyer and the father could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a father could seek to use it to found an argument that the mother’s time with the child should either be supervised for some period of time, or even permanently. Whilst on one view such a consequence may not be as grave as the consequences that flow from, for instance, the proof of criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk of either physical or emotional harm to one or more of the children could be highly significant and have a very grave aspect to it.
Therefore consistent with s 140(2), in taking into account the gravity of the father’s allegations against the mother, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1]
CREDIBILITY
[1] See K v R (1997) 22 FamLR 592 and Re W (Sex Abuse – Standard of Proof) [2004] FamCA 768 at [15].
The father
The Independent Children's Lawyer did not challenge the father’s credibility. The mother challenged his credibility insofar as she asserted that:
·He was the initiator of all domestic violence between them, and his denials of that were false;
·His version of events of an occasion when she, and perhaps Mr M, attended the father’s and Ms E’s premises, was untrue;
·His perceptions of her involvement in other matters were distorted: for instance his assertion that she was involved in an incident in which Ms E’s son’s car window was smashed in, and his further assertion that the mother, Mr M and their associates were deliberately seeking to intimidate the father, were incorrect.
It will therefore be appreciated that the attack on the father’s credibility was not wholesale in nature, but rather somewhat more specifically tailored. Therefore I will consider his credibility in the context of the specific factual issues.
The mother
The mother’s credit was impugned both generally and specifically in relation to important issues. Both the father and the Independent Children's Lawyer essentially argued that her evidence should be rejected. They pointed particularly to two particular, and one general, aspects of her evidence which they said demonstrated her untruthfulness. The first related to her accounts of her conceded assault upon D.
In her affidavit filed 18 August 2011, the mother deposed at paras 43 and 44 in the following terms:
43. In about January 2010 there was an incident at home with [D] when I just “lost it”. [D] was giving me a hard time and abusing me. He started saying things like “you slept with five men when I was only two.” He was repeating things that I believe the father had told him.
44. On that particular day I belted [D] quite severely. I have no doubt that I emotionally harmed [D] and I have regretted that incident ever since. From that point on [D] treated me even worse.
That affidavit was prepared at a time when the mother was represented by a solicitor.
The mother later prepared an affidavit which was filed on 27 February 2012. She was not legally represented at that time. Part of that affidavit responded to the Independent Children's Lawyer’s instructions to the Family Report writer, Mr H. Those instructions relevantly provided “the mother says that in January 2010 she “lost it” and beat the child [D].” At para 7 of her affidavit of 27 February 2012, the mother said as follows:
I never claimed that “I lost it”. [D] had been hitting his brother [Y]. [D] and I had a confrontation over this. [D] pushed me and I pushed him back, then [D] hit me and I hit him back.
Mr Trevino, who appeared as counsel for the Independent Children's Lawyer, cross-examined the mother about the accuracy of that paragraph in the 27 February 2012 affidavit, initially without reminding her as to the contents of the 18 August 2011 affidavit. She confirmed her denial that she had never “beaten” D, and denied again that she had ever described her behaviour as having “lost it”. More tellingly however, she asserted that there was one and only one occasion when she had assaulted D, and confirmed that the precursor to that was that D had been hitting his brother. Particularly she confirmed at that point in her evidence that D had been the instigator of the violence, and she had only hit back. She denied that she did so with a closed fist, and said that to the extent that she had “hit” him it was really a slap. She confirmed that this event was definitely in 2009 and not 2010, and was able to be adamant about that because it occurred within a week of an alleged episode of domestic violence between her and the father in October 2009.
She was then confronted with the August 2011 affidavit, and particularly her version of events in that affidavit. Her response was to maintain her denial that there had been more than one occasion on which she had been violent to D, and to, in effect, try and blend the two versions into one. She was however unable to explain the inconsistency between her adamant assertion that the violence with D occurred within a week after domestic violence which could be pinpointed to October 2009 on the one hand, with her reference to January 2010 in her 18 August 2011 affidavit (which of course was prepared far closer to the event in question) on the other. Ultimately she conceded that she did indeed “lose it” in her assault on D, but then sought to largely justify that on the basis that D had been giving her a hard time and abusing her.
She also attempted to resile from the August 2011 description of her assault as having “belted [D] quite severely.” She denied that she used her full force. She denied that she used any implement or a closed fist. Ultimately she sought to have me accept to that the phrase “belted [D] quite severely” really meant “slapped him repeatedly but not with full force.”
On the basis of the inconsistency Mr Trevino urged that I should find that the mother’s denial that there was more than one occasion when she was violent with D was untruthful, as plainly she was in her affidavits describing two separate events, albeit that perhaps she had forgotten about her August 2011 affidavit when she was compiling her February 2012 affidavit, and particularly had forgotten the incident which she had described in the earlier affidavit. I accept that submission, and find her denial to be untrue.
The second aspect of the mother’s evidence which Mr Trevino particularly relied upon in relation to credit, was the mother’s denial of any responsibility for some marijuana and smoking implements found in premises of which she was the lessee. On 13 September 2011, police executed a search warrant upon the premises, being I Street, at Suburb F in Cairns. The relevant police report[2] provides:
The female offender had located in the top shelf in the kitchen a white ceramic bowl containing a blue pipe and loose cannabis. Located in a cupboard beside the kitchen sink was a bong consisting of a plastic bottle with metal hose and cone piece attached. Located in the offender’s bedroom in the top shelf of her wardrobe was a little black purse containing a small clip seal bag of cannabis.
[2]Tender bundle C document 18.
It is not in dispute that the “female offender” referred to in that report is the mother. Further, it is not in dispute that she was in fact present at the premises at the time of the execution of the warrant.
The report continues a little later:
On the 14th / 09 / 2011 the suspect [ANDREWS] attended the Cairns Police Station and participated in an EROI. The offender was subsequently offered and accepted Drug Diversion for the matter.
It is not in dispute that in fact the mother engaged in drug diversion, however the mother says that she was forced to undertake that program, rather than acknowledging her guilt and being offered and accepting to undertake the program. Further, she says that the drugs were never hers, but were owned by a woman who was informally sub-letting the premises from her, and who was living there on her own. She said that she had moved out of the premises sometime beforehand, and had taken pity upon the person who subsequently sub-let it, as she was otherwise without anywhere to live. She described this woman (apparently Ms K) as not a friend, but an acquaintance only. She said that the police told her that because she was the lessee of the premises, and notwithstanding the fact that Ms K was subleasing them, that she was criminally responsible for the possession of the drugs, and forced her into diversion.
Mr Trevino referred me to s 379 of the Police Powers and Responsibilities Act 2000 (Qld), which section permits police to place offenders on a Drug Diversion Assessment Program. S 379(1)(e) is one of the pre-conditions for a person being able to be offered drug diversion, namely that “during an electronic recorded interview, the person admits having committed the offence.” S 379(2) makes it mandatory for a police officer, in relation to an adult who satisfies the requirements of subsection (1), to “offer the person the opportunity to attend a Drug Diversion Assessment Program.” However subsection (6) makes it plain that such attendance can only be “if the person agrees”.
Therefore, although the record of interview with the mother was not in evidence before me, the Independent Children's Lawyer asks me to infer that because of the statutory requirements of s 379, she must have admitted to the possession of the drugs and utensils, and moreover, must have agreed, rather than being compelled, to complete the Drug Diversion Assessment Program. I accept those submissions.
Finally Mr Trevino relied upon the mother’s seeming persistent refusal to accept any responsibility for matters generally during the course of her oral evidence. Save for the admission of one assault on D – which she sought to, in substance, argue was provoked by D’s misbehaviour towards her – it is indeed correct to say that the mother did not accept that she was responsible for any of the problems associated with the home when the parties were residing together, or the clear difficulties which have attended the children after separation (which I will detail later). Her constant refrain was to blame others, and particularly the father, for such matters. On many occasions, even though it was not directly responsive to the question asked of her, she went out of her way to reiterate her asserted failings of the father.
In a sense, she was asserting that she was wholly blameless in any aspect of the relationship, and that she really presented as a model parent. Mr Trevino said that she was attempting to paint herself in a far better light, and the father in a far worse one, than the facts warranted.
I accept that submission. Moreover, from my observations of her in the witness box, she presented as generally defensive, on occasions belligerent, and on other occasions seeming unwilling to accept or make any concession when confronted with contrary versions of events.
The clearest example of this was her steadfast denial of the numerous disclosures made about her by the children. Whilst I shall detail them later in these reasons, the most chilling examples are D’s and Y’s frequent disclosures about a long history of violence perpetrated by the mother against them both, the other children, and the father. She blandly denied the truth of any such matters, and was only able to explain the disclosures on the basis that the boys had been coached by the father. She similarly sought to explain the children’s disclosures of her drug and alcohol abuse, her meeting other men for sex and engaging in sexual relations with them in sight of the children, their allegations that she would frequently not be awake and able to care for them during the day, but rather required the older children to take care of the younger children, and their allegations that she failed during the times that the children were in her care to properly provide for them, on the basis that they were coached lies. She steadfastly and wholly denied that there was any truth to any of these matters. As shall be later seen, I accept the disclosures of the children over the mother’s denials.
All of these factors combine to persuade me that I should exercise great caution in acting upon any of the mother’s evidence unless it is independently corroborated by contemporaneous documents, or otherwise reliable evidence. In general, I do not accept that the mother is a witness whose evidence is reliable or likely to be truthful.
DOES THE SECTION 61DA(1) PRESUMPTION APPLY, OR IS IT REBUTTED?
Here both parties allege considerable domestic violence during the course of the relationship, and the mother admits perpetrating violence upon the child D. It therefore follows that there are reasonable grounds to believe that a parent of the children has engaged in abuse of a child or family violence, such that the presumption of equal shared parental responsibility does not apply.
CONSIDERATION OF SECTION 60CC FACTORS
S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
There was evidence given by Mr H as to the general benefits of children having meaningful relationship with their parents. Moreover, here the mother presents as the only realistic gateway to the children having good relationships with members of her extended family.
However it is plain that whilst in a general sense, it would be no doubt in all four children’s best interests if they had a meaningful relationship with both their mother and father, D specifically does not wish to have that relationship at this point in time, albeit he is prepared to leave the door open to it, and Y has some ambivalence about the relationship, given his recollections of the mother during the times that he was living with her.
On the other hand, the two younger children do not appear to have as marked recollection of the mother’s violence and neglect as the elder two, and hence both express a far greater warmth towards her and a stronger desire to spend time with her. Providing that their experience of the mother does not change, there is every reason to think that they would strongly benefit from having a meaningful relationship with her.
S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Overview
This was the most substantial matter in dispute between the parties. Both the father and the Independent Children's Lawyer assert that the mother presents an unacceptable risk of both physical and emotional harm to all four children, and an unacceptable risk of neglect, such that she should only spend supervised time with them until such time as the children are able to properly defend themselves against any such harm.
On the other hand the mother does not make any assertion of unacceptable risk against the father, as is plain from the orders which she seeks, which would see, albeit differing in relation to the several children, them either spending unsupervised time with the father, or living with him.
That is not to say that the mother does not assert that the father has a terrible history of domestic violence, which in large part is conceded by the father. However it does not appear to be in dispute that in his present relationship, there has been no domestic violence, nor do the children report any fear of him or his violence. Therefore the only real question is whether the mother presents such a level of unacceptable risk to the children that her time should be supervised.
The law
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
S 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. S 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
Is the mother an unacceptable risk?
On 30 November 2011, the Family Report writer, Mr H, interviewed the three eldest children. In his Family Report, Mr H recorded verbatim disclosures from the children. D is reported as having said:
·“[The mother] has ruined my life, and my childhood”
·“She is violent, and has been violent towards me many times; and in fact, everyone.”
·“She has put knives to my throat, and she has bashed me with her fists; and also with kicking. She has choked me and has thrown lots of things at me.”
·“In the end, I have pushed her off me; but I have not done anything to provoke her. But now I know because how big I am; I think she would know that I would definitely fight back. And I put up with this, from between when I was five to twelve years of age.”
·“Also, I have seen her be violent with my dad; and so many times that I couldn’t tell you; but certainly more than 50. I have seen her punch him and throw things at him and hit him in the face and private areas; and also attacking him with a knife.”
·“She is a very angry sort of person and she is unstable. And maybe, there is even a mental thing going on. I have always tried to stay out of her way; but in the end she would still come after me.”
·“I would tell dad that she was seeing (other) men; and having them over to the house when he was at work; for sex and also to get drugs. And I told my teachers and even Child Protection what was going on. So in the end, she would pay me back for talking out about things. And she would even threaten all the kids about it. So in the end it got too much and I went to live to dad. I have been there for about two years now and that’s where I want to stay.”
·“I definitely don’t want to see her today. And the fact is, I want her out of my life. She definitely can’t handle kids and I don’t want anything to do with that sort of person.”
·“I do really think that my father is the stable person and my mother has a long history of problems. I really don’t understand why its such a problem for the Court to decide; because its obvious what the choice is.”
·“My mother is incapable of holding down a job and the truth is, that trying to get the kids to live with her more is about money but the fact is she can’t handle kids.”
I am mindful that these assertions have not been able to be challenged in any direct way by the mother, and that the allegations made by D are grave. The only possible explanation offered by the mother for these alarming disclosures is that D has been coached by the father.
In his interview with Y, verbatim reports are recorded by Mr H in the Family Report as follows:
·“I see mum every second weekend and its not good.”
·“The last time she belted me; and got [Mr M] to hold me, so he could put soap in my mouth. And then she locked me outside for a long time, and that’s where I got lots of mozzie bites.”
·“When she gets angry, and that’s a lot of times, and sometimes she gets me to look after the younger kids.”
·“But its better at dads because we go to bed properly, and they don’t leave us alone (pause) and we get good food.”
·“One time at mum’s, I wanted to hang myself because everything was wrong… I used to see her sometimes having sex with other men; and even when she was with my dad (pause) because she used to leave the door open.”
·“And one time, she said that she was going to get us kids to drink all the medicine and then we would all go to sleep forever.”
·“And sometimes mum smokes cones; but not when [Mr M] was around much.”
·“This stuff must not be told to mum or she will belt the hell out of us.”
As regards that last quote, Mr H records that it was given “in a determined manner”.
Again I accept that Y’s disclosures have not been able to be directly challenged by the mother, and that the assertions he makes are grave.
N made no disclosures in his interview with Mr H, and J was not interviewed.
The three oldest children were again interviewed by Mr H on 30 August 2012 for an Updated Family Report. In that interview, D made no further disclosures save that he said “the kids seem happy and they are going well. And the arrangements for everybody are much better now.” On the other hand Y did make disclosures in the context of being ambivalent about meeting his mother later that day. He said “the no part of the maybe is because she might be really mad with me because of what I have said to you.” “And also, she might be furious; because she has done that in the past; and even hit me.”
N did not appear to make any direct disclosure, save that during part of the interview in which he was given “three wishes” one of his wishes was that “mum would be nice and couldn’t throw a chair at my leg” which could be construed as him asserting that she had done a thing such as that in the past. He also said “mostly I am happy and I am only sad if I remember sometimes … like getting burnt from mum’s cigarette when it fell on my arm, but I quickly put it out with water.”
J made no disclosures.
The three oldest children were again interviewed by Mr H on 3 July 2013 when D is recorded verbatim as having said “I still think she has problems; plus for me, she needs to apologise for a lot of things.” In response to an inquiry as to what warranted an apology, D said “I was exposed to drugs, including syringes and bongs, and we also had naked men around in the house. And I was taken to houses where people were using drugs. So for me, I would still be concerned about my young brothers if they were seeing her unsupervised. I believe she still is capable of going back to the old sort of stuff.”
Y described that “I am seeing mum at the contact centre and that feels safer than going to her home.” As to that he explained “I didn’t like it; the way she was having parties and loud music and it was hard to sleep. It was not a good lifestyle and there were a lot of drugs. And I missed a lot of school. And also, I had to look after [N] and [J] a lot while mum slept. And because she had been partying all night and smoking cones, and drinking Jim Beam and stuff.”
Y described that he still didn’t want to see his mother on occasions, because “I sometimes remember how she used to flog me with belts; and then sometimes punched me, and kicked me. And she used to sleep with other men when dad wasn’t home, and she would say that they were just friends. She used to cheat on my dad a lot, and even when he was doing everything too. He used to do all the cooking and mopping and cleaning and get our clothes ready (pause) I guess I still am a bit angry with her.”
Interestingly, and in my opinion tellingly, albeit not a direct disclosure in relation to his mother, he described his current life as follows:
“My life is good with [Ms E] and dad; and I don’t ever miss school. And I get fed great meals with vegetables (pause) so life is good now.”
During the course of submissions I raised the perhaps somewhat unusual aspect of that evidence, namely that a child was expressing pleasure with vegetables. That is however not really the point – rather to my mind that is tellingly inconsistent with the child having been coached to say such a thing. I think it is a clear and spontaneous comparison by the child of what he perceived to be inadequate food at his mother’s, and adequate meals at his father’s.
N made no disclosures, but is recorded as having said in relation to whether he would like to see his mother at her home “no, I don’t want to do that because [Mr M] is there (pause) and he is kind of weird and mean.”
J was interviewed but made no disclosures.
Mr H is not the only person to whom the children have made disclosures. They have also made them to Child Protection Authorities.
Amongst the material before me was an affidavit from Ms G. In her affidavit filed 10 February 2012 she listed a large number of notifications in relation to the children, in which, on occasion, alleged disclosures by the children were recited. Inevitably such second hand or third hand material deserves little weight. However on 1 February 2012 she and others interviewed both Y and N. They did so at their school, without any apparent forewarning. At para 19 of her affidavit she said in relation to Y’s disclosures:
… The following information was obtained:
(a)In relation to how it is at [the mother’s] home, [Y] stated that it was not good, that he hated it there, and that there were no positive things and that [the mother] tells him that he does not have time to go to school as he has to care for his younger siblings.
(b)In relation to parental substance misuse, [Y] stated that he is aware that [the mother] uses marijuana daily and that she smokes out of a bong. [Y] described the bong as a plastic bottle that has been melted with a hole in the side to put a hose in to it. It has water in it.
(c)[Y] also described a large oval tray full of marijuana that [the mother] uses to measure and wrap her marijuana into foil to sell. [Y] and his siblings have witnessed [the mother] selling marijuana to three aboriginal males aged between 32 and 23.
(d)[Y] reported that [the mother] has been sending abusive text messages to [the father] about the children and making threats towards his safety. [The mother] makes comments that [the father] has ruined her life and that she will ruin his by having him bashed up or kill him by members of the [L] Motor Cycle Gang.
(e)[Y] reported that he and his siblings have witnessed the mother engaged in domestic and family violence with all of her partners including their father, Mr [Lampton] and the mother’s current partner, Mr [M]. [Y] has stated that he has witnessed the mother hit one of her ex-partners over the head with a hammer.
(f)On the last occasion that [Y] and [N] attended the mother’s home for a visit, [Y] witnessed Mr [M] shake [J] when [J] was crying. [Y] witnessed [J] crying and Mr [M] pick him up and shake him very hard back and forth three times. While he was doing this Mr [M] said “what do you want child.” The mother came down the stairs as this was happening and verbally abused Mr [M] for his actions. The mother and Mr [M] then went to bed.
(g)..
(h)[The mother] has said to [Y] and his siblings on multiple occasions that if any of the children tell anyone that she will “get medicine and make the children drink it and make them sleep forever.”…
(i)On the last occasion that [the mother] made this comment to [Y], [Y] said no and [the mother] hit with a leather belt.
(j)[Y] reported that [the mother] uses either a white leather or brown leather belt to hit the children on their lower backs. [The mother] does this regularly and it often leaves marks and hurts. [The mother] loops the belt over and holds the two ends together when she hits the children. [Y] stated that [D] left [the mother’s] house because [the mother] punched him and threw rocks at him.
(k)[Y] indicated that Mr [M] drinks alcohol “a bit” and that recently (since Christmas) Mr [M] locked [Y’s] arms behind his back while [the mother] forced soap into [Y’s] mouth. This occurred when Mr [M] had been drinking alcohol. When [the mother] finished with the soap, she “slammed” [Y] into the side of the shed. This incident occurred because she and [Y] had an argument in the car and [Y] got out wanting to return to [the father’s] home. [Y] stated that both [J] and [N] were present and witnessed this incident.
(l)[Y] has witnessed [the mother] use a belt to hit [N] and describing on occasion when [N] told [the mother] to “fuck off” and then he ran into the bathroom and locked the door. [The mother] used a knife to unlock the door and then used a belt to hit [N] on the lower back and on the backs of his upper legs.
(m)During the last occasion, two weeks ago, that he and [N] went to [the mother’s] home, [Y] observed six firearms in Mr [M’s] possession. [Y] described these as two rifles, two glocks, one revolver and one magnum. [Y] stated that Mr [M] kept these on a shelf in the garage and that on this day he put them into a bag and put them into the boot of another man’s car.
(n)[Y] expressed concerns during the interview that if [the mother] were to see what he had disclosed to Child Safety Officers that she would belt him. [Y] also expressed concern for [J] in [the mother’s] care as he is so little.
(o)I note that while [Y] was discussing the situation within [the mother’s] household, [Y] presented fearful at times with his eyes darting around the room, tears welling in his eyes, looking down and he requested that [the mother] not be told about the information he was providing.
(p)…
In relation to N, at para 18 of her affidavit she said as follows:
..The following summarised information was provided by [N]:
(a)[The mother] gives them treats and cookies but when she hits them, the children get taken in the police car. [The mother] has told [N] that if she hits the children the police will take the children away from her and give them to their father, Mr [Lampton]. [N] stated that if he is hit he just gets into the police car.
(b)[N] explained that the last time [the mother] hit him was when [the mother] and [the father] were fighting and [the father] and [D] moved out because of this.
(c)…
(d)[The mother] is angry at [the father] and this makes [N] cry. He said that there was an incident when knives were falling everywhere and forks and spoons and that [the mother] had a big sharp knife…
(e)…
(f)[N] stated that [Mr M] is nice and sometimes drunk, that he goes to the clubhouse and drinks beers. [N] stated that on one occasion, [Mr M] was drunk and he held [Y] and [N] with his hands around their throats and lifted them off the ground. [N] demonstrated the action and showed an open hand grabbing around his neck at the front and pulling his head up. [N] said that [Mr M] was trying to hit them so he kicked at [Mr M’s] legs.
I note that [N] presented as cheerful and talkative during the interview.
There are aspects of N’s disclosures which I have not recited above which are plainly improbable: for instance, that he and Y tied up Mr M to a chair and put sticky tape over his mouth. There is also reference to police attending his house on Friday “as there was a fire and explosion and a policeman died.” Plainly what N says has an element of fantasy or imagination to it, and is unreliable. I do not place any weight upon his disclosures to Ms G, but on the other hand I do place weight upon Y’s disclosures. I am particularly mindful that this was not an opportunity when the father could have had any forewarning of the Department’s imminent interviewing of the children, such as to be able to coach them, or brush up on their previous coaching.
The Departmental officers interviewed both the mother and the father, and also obtained a copy of Mr H’s Family Report. In broad terms the father supported the children’s concerns, and the mother denied any wrongdoing whatsoever. However at para 17 and following Ms G identified:
·That in her view, Y, N and J have been emotionally abused by exposure to domestic violence, excessive physical discipline and requiring Y to assume a parenting role in respect of his younger siblings, amongst other things;
·That J, N and Y have been emotionally harmed;
·That Y, N and J have been physically abused including by being hit with a belt and Mr M shaking J;
·That the children were at that time at an unacceptable risk of harm if they were in the mother’s care based upon the history of domestic violence, substance abuse, inability to identify the emotional needs of the children, threats to them, misuse of alcohol and drugs while the children were in their care and an inability to manage anger and refrain from employing excessive physical discipline and be an emotionally available and stable parent.
Of course, the opinion of Ms G does not bind me, but I do give it some weight, given that she is the person who has conducted the investigation for the relevant government agency.
The allegations which the children make of physical and emotional abuse and neglect are largely devoid of the sort of detail that would be needed in order to found criminal conviction. They are expressed in a level of generality which one would ordinarily expect from children of their ages. That absence of precision and specificity makes it impossible for me to conclude, on the balance of probabilities, that a particular event occurred on a particular day or in a particular manner.
However that said, I am satisfied that the mother has been, on more than one occasion, violent to D, and has regularly used excessive physical discipline upon the children. I am further satisfied that the children have witnessed her use of marijuana, and I reject her denials of this. I am further satisfied that on occasions, the children have not been properly cared for, and that Y particularly has been used as a carer for the younger children in her stead.
Those findings are serious enough in themselves. However what is particularly concerning in relation to the mother is that her complete denial of any such events, save for one assault on D, necessarily means it is unlikely that she will seek assistance to curb her behaviours, or to assist her to gain insight into the effect of such behaviours upon the children, with the consequence therefore that she is therefore likely to repeat them.
Moreover, I am conscious that the mother uses a technique of blaming others to excuse adverse circumstances surrounding her: she does not naturally appear to accept responsibility.
I am satisfied to the requisite standard that the mother presents an unacceptable risk of both physical and emotional harm to the children. I am not satisfied however that she presently presents an unacceptable risk of neglect to the children, although I accept that there is a risk. I say that it is not presently unacceptable because in large part, her new relationship with Mr M appears to have had some stabilising effect upon her, and there is evidence that she has presented good meals for the children on occasions when she has visited them at the contact centre.
The need to protect the children from this unacceptable risk is a very real one.
In his first Family Report, Mr H concluded:
220. In the Writer’s opinion, it appears unlikely that the mother has the motivation or capacity for honesty, or reasonable insight regarding the impacts of her history of abuse; and moreover, demonstrates clear limitations concerning her own parenting motivations and capacities.
…
224. The Writer strongly recommends that the mother attend upon an experienced mental health practitioner (Clinical Psychologist or Sessional Psychiatrist) to assist with the following therapeutic regime; as well as direct her involvement and supplemental, personal development courses as considered helpful; and be prepared to report outcomes to the Independent Children's Lawyer.
225. Specifically, in the writers opinion, [the mother]:
·Experiences a range of maturational, practical, attitudinal and thinking difficulties in understanding and separating her own needs as distinct from those of her children.
·Continues to experience challenges with both intra-personal and inter-personal skills that collectively limit her availability and nurturant capacities in respect of relationships generally; but more pointedly in respect of her children.
·Requires psycho-educational assistance to effectively improve her sense of identity; including associated roles and responsibilities.
223. (sic) Further potential therapeutic targets might also include; though not necessarily limited to the following:
·Improved insight (understanding and acknowledgement) regarding degrees of personal responsibility for past difficulties in life; but particularly, co-parenting difficulties and impasses to date.
·Improved understanding of childhood and adolescent development, with particular focus on a parent’s impact on a child’s personal, social and gender identity.
·Improved understanding of appropriate behavioural boundaries; and specific up-skilling with effective communication and negotiation skills in respect of interactions with her children.
·Improved personal emotional processing skills; particularly in respect of pro-socially processing frustration and/or anger; and minimally including self-monitoring and self-intervention techniques to avoid historical lapses to abusive, antisocial and self-defeating behaviours.
One would have thought, given such highly prescriptive recommendations by the Family Report writer, that the mother would have done something along the suggested lines, however it is plain that she has not. Had she done so, then the assessment of the risk which she posed may have been different, depending upon the success of any such assistance. However her failure to even embark upon any such course speaks loudly of her complete denial and lack of insight.
S 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
Here the children have expressed differing wishes. D has made it plain that he does not wish to have anything to do with the mother at present, but leaves open the possibility of doing so in the future. He is presently 16 years of age; I give his wishes great weight. Y on the other hand expresses some ambivalence in relation to seeing his mother, and on occasions has opted not to see her at the contact centre. Moreover, I am troubled about his fear that his disclosures to relevant authorities and Mr H would see him excessively physically disciplined by the mother. Perhaps that informs his wishes to maintain the status quo of seeing his mother at the contact centre. Of course Y is only 12 years of age, but nonetheless I have considerable regard to his views.
N and J are 9 years and 5 years of age respectfully. They have not expressed any real view as to the circumstances in which they would continue to see their mother, save that they wish to do so. I give some considerable weight to their wish to continue to see their mother, but otherwise do not give their views much regard.
S 60CC(3)(b): The nature of the relationship of the child with:
(i)each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
All children report an excellent relationship with their father and his partner. Particularly, the father appears to be able to properly provide for their physical and emotional needs, albeit he frankly conceded that he was dependent largely upon his partner for many things, because of her superior communication and organisational skills. However plainly he is a major figure in all of the four boys’ lives.
As regards the mother and Mr M, the youngest two children appear to have a good relationship with both of them, albeit I am mindful that there seems to be some reserve, at least in relation to N, as regards Mr M. As I have already described, Y’s relationship with his mother is more ambivalent: that is no doubt because he was older than the two younger children during times of great turmoil in her household.
D’s relationship with his mother is largely non-existent, or to the extent that it is in existence, poisoned by her violence in the past towards him.
S 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child
The father
The father does not escape some criticism in relation to this criterion. It appears as though during occasions when he and the mother were cohabiting, perhaps because of his working hours, he did not involve himself in the children’s lives to the extent that he ought have. However that has plainly changed when the children came into his sole care. In so saying, I also accept his concession that for many matters – for instance dealing with doctors and schools – he leaves it to Ms E to attend to the details, however in his evidence, I was impressed by his knowledge of the children’s relevant medical needs, and the names of the medical practitioners whom they have consulted. Plainly he has an interest and involvement in these matters.
Whilst he is not beyond criticism for his past lack of involvement, I find that he has in recent years taken every opportunity to be involved in all aspects of the children’s lives.
The mother
When the children were living with her, it is plain that the mother was the major decision maker in relation to them (to the extent that decisions were made by either parent) and she wishes to remain involved in their lives. Since the children have not been residing with her, she has, albeit not unfailingly, sought to spend time with those children who wish to spend time with her, at the contact centre, and to communicate with them.
S 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
This is not a major issue in this case. To the extent that it is relevant, there have been allegations which have some evidentiary support, that the mother neglected the children when they were in her care, and since they have been out her care, she has not made any contribution to the costs associated with them.
During the course of the relationship, the father appeared to be the sole bread winner of the home, and to that extent has provided for the children. After separation, he has paid child support for the children when they were in the mother’s care. There was an issue between the parties as to whether he paid all of the child support due from time to time, and whether he misrepresented his likely income to the Child Support Agency on one occasion, in consequence of which his child support payments were reduced to an unrealistic level. As to the former matter, the father said that he made cash payments to the mother’s bank account from time to time (which appears clear from the bank statements, and in which regard I reject the mother’s evidence that the relevant payments describes as “cash – CSA” are in fact payments by the Child Support Agency rather than the father) and that from time to time he made cash payments into bank accounts of friends nominated from time to time by the mother. I accept that evidence.
As to the assertion that the father sought to represent to the Child Support Agency a lower income than prevailed, it does indeed appear as though in about February 2008 he estimated that his income for the forthcoming eight months would be $11,999.00, although how that was arrived at is unclear. In cross-examination the father explained that he was unemployed at the relevant time, which appeared not to be accepted by the mother. This is not a matter which I can resolve on the evidence before me: however even if the mother is correct in her assertion, it does little to dent the clear fact that the father has been the principal provider of the children’s physical needs for all of their lives.
S 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The children have now been separated from their mother for about two years. They appear stable and well-adjusted in their present environment. The father and the Independent Children's Lawyer urged for that separation to continue; the material does not suggest that continued separation will have any effect upon the children beyond that which it has already had.
On the other hand the mother seeks that the two youngest children should come and live with her. Therefore not only does seek that those two younger children be separated from their father, but also from their two older siblings. Both children are, as I say, apparently well-adjusted and thriving in their father’s care. It is likely that separation from their father would adversely emotionally impact upon them, with potential educational consequences.
Also of serious concern is the proposal of the mother to separate the youngest two children from their older siblings. Whilst I accept that Y and N appear to have some conflict, and that conflict expresses itself physically from time to time, I reject the mother’s suggestion that the best way to deal with that is to split the two younger children away from their older siblings. In my view, it is likely that one of the matters which has contributed to the success of all children in the father’s care, is that they are a complete sibship. In so saying, I am mindful that the mother has a younger child to her present partner, but it is not suggested that the younger two children have ever lived with him, or that to remain separated from him would have any adverse consequences for them.
This consideration tells strongly against the mother’s proposal.
S 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This is not applicable in this case.
S 60CC(3)(f): The capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
This is a major consideration in this case, but substantially overlaps with the assessment of the risk of harm of each parent to the children. In large part the reasons why the mother represents an unacceptable risk of physical and emotional harm to the children is because of her lack of insight into the children’s needs, and her refusal to take steps to obtain insight into their needs in that regard. I accept Mr H’s opinion at paras 225 and 223 (second occurring) of the first Family Report.
The only criticism that can be made of the father, on the other hand, is that he defers to Ms E in relation to things such as liaising with schools and doctors; however this falls far short of demonstrating a lack of capacity to provide for the children’s emotional and intellectual needs. Plainly he has that capacity, and utilises it to the maximum extent he can.
S 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
To the extent that this consideration is relevant, it has been sufficiently addressed in the foregoing discussion.
S0CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This is not relevant in this case.
S 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I have already compared and contrasted the mother and father by reference to their attitudes to the children, and the responsibilities of parenthood, in considering the risk to harm which each presents to the children. It is unnecessary to further discuss this matter.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family
Family violence has been, sadly, a major feature of these children’s lives, however there is no suggestion that they have experienced it directly in their father’s home since they have come into his sole care. The only extant way that they may have witnessed family violence since then is during a visit – or more precisely an attempted visit – to their home, by the mother and her present partner, during which threats of violence were made, and rocks were thrown at the home. To the extent that the mother says that did not occur, and Mr M denies even attending the home, I reject that evidence.
There does not seem to have been, in any of the material, any suggestion that the father has been violent towards the children. On the other hand both D and Y, and to a lesser extent N, have made allegations of violence towards them by the mother. As I have said, whilst I am not able to make any specific findings in relation to individual events, it seems plain that there has been violence meted out towards the children by way of excessive physical discipline. It is this which has caused D to presently wholly reject his mother, and founds Y’s ambivalence towards her.
It is a major feature, but has already been substantially and sufficiently discussed in the sections when the consideration of risk was undertaken.
S 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There have been many family violence orders between the parties in these proceedings, the most recent one of which expired the day after the conclusion of the trial before me. That was an order in which the father and children were the aggrieved, and the mother the respondent. The mother sought to persuade me that, somehow or other, the final order had been made without proper notice or service upon her, but I reject such an assertion. It is simply another illustration of the mother seeking to use denial as a means of defence.
The circumstances behind that order were the attendance at the father’s home of the mother and Mr M, on which occasion threats of violence were made to the father. In evidence before me Mr M said that he was a current member of the L Motor Cycle Club, and appears – at least in the past – to have had a regular association with other members of that club. Threats of harm to the father from the mother therefore probably carry greater weight than they might have from other members of the community. That said however, there is little by way of relevant inference that can be drawn from that order, and I place little weight upon it.
S 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The mother’s proposal was described by me in the course of her submissions as being “an experiment”. It involves the potential dislocation of the younger children’s lives, and unsupervised time being spent by the mother with Y. There is a very real prospect that the mother would revert to her violent ways in interacting with the children, which would likely precipitate either involvement of the Department (and likely litigation in this court in consequence) or litigation in this Court as the first step.
S 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
I cannot identify any other fact or circumstance relevant to determining the children’s best interest in this case.
PARENTAL RESPONSIBILITY
The father seeks that both he and Ms E have parental responsibility (presumably equal shared parental responsibility) in respect of all four children. The Independent Children's Lawyer seeks that the father have sole parental responsibility for all four children. The mother does not seek orders in relation to parental responsibility for D, but otherwise seeks orders for there to be equal shared parental responsibility for the other three children.
It is convenient to consider the mother’s proposal first. S65DAC applies if, under a parenting order, two or more persons are to share parental responsibility for a child in relation to a decision about a major long-term issue in relation to the child. The section requires the decision to be made jointly, and to require each of the persons subject to the order, not only to consult the other in relation to the decision to be made, but also to make a genuine effort to come to a joint decision about that issue.
The history of communication between the parties is abysmal. There is no reasonable basis to even suspect that they could make a genuine effort to come to a joint decision about any issue involving any of the children. To require them to do so – or more precisely attempt to do so – would only promote further conflict, which cannot be in the children’s best interests. Such an order would not be in the children’s best interests.
The basis why the father seeks to have joint parental responsibility with Ms E was not explained in the evidence, nor is it immediately apparent. True it is that Ms E plays an important role in the children’s lives, and no doubt deals directly with their schools, medical providers and the like, but it is difficult to see why it would be in the children’s best interests that she be given a positive legal role in determining matters effecting their long-term issues. Moreover there remains the prospect that she and the father may at some stage separate, whether temporarily or permanently. In that event, and notwithstanding the fact that the children are likely to have some residual fondness for her, it is difficult to see why she should continue to have a role – and an obligation – in relation to them.
I conclude that it would be in the children’s best interests for the father to have sole parental responsibility for them. I say that because:
·The mother has the identified issues listed by Mr H at paras 225 and 223 (sic) of his Family Report;
·There is no reason to think that these issues, or the potential seriousness of them has abated, and moreover there no reason to suggest that the mother has greater insight into them than she did when Mr H first interviewed her;
·The father has a demonstrated history – albeit considerably with the assistance of Ms E – of making appropriate decisions for the children.
There will therefore be an order that the father have sole parental responsibility.
WITH WHOM SHOULD THE CHILDREN LIVE
No party contends that D and Y should live other than with the father. Therefore the only issue is with whom N and J should live. The father says that they should live with him. He is supported by the Independent Children's Lawyer in that respect. The mother says they should live with her.
This issue is largely determined by my finding that the mother presents an unacceptable risk of harm to all children. The effect of the mother’s behaviour when the children were living with her is most pronounced in relation to her complete rejection by D, and Y’s ambivalence in relation to her. Therefore the risk of actual harm to the children should they live with her is by no means a fanciful one. In the case of D and Y it has eventuated.
The following matters also buttress that conclusion:
·N and J have been thriving in the father’s care, whereas plainly they were not thriving in the mother’s care. Particularly I have regard to N’s extensive running away habits when he was living with the mother, which whilst not wholly abated, are substantially reduced;
·The good health regime which the father has in relation to all children, but particularly N who has special needs.
Mr H was blunt in his recommendations as to with whom the children should live, as early as 20 December 2011, and his adamant views have not abated thereafter. At para 222 of his first Family Report he said:
Consequently and specifically, the Writer strongly recommends that the children be placed into the father’s care; and notwithstanding his likely support for unsupervised “contact arrangements on the weekends”; the Writer specifically recommends that future contact arrangements for the mother ought be supervised and reportable (to the Independent Children's Lawyer); and at her expense.
As regards the care arrangements, I accept Mr H’s view and place weight upon it. In any event, even without Mr H’s opinion, I would have reached the same conclusion.
There will be an order that all children live with the father.
WHAT TIME SHOULD THE CHILDREN SPEND WITH THE MOTHER
The mother has, since the orders of Willis FM, only been seeing the younger three children on a supervised basis at the C Contact Centre. She expressed some dissatisfaction with that, in that it limited the range of matters which she could do with the boys. I also suspect that she was not appreciative of the strict supervision of her. Therefore, and somewhat surprisingly, in the event that I found that she was an unacceptable risk of harm, her position was that in fact she should spend no time with any of the children, whether supervised or otherwise. I had the distinct impression that when so articulating her position, she was attempting not so much to achieve that outcome, but to dissuade me from making a finding that she was an unacceptable risk, because patently having nothing to do with their mother would potentially be disadvantageous to at least the younger two boys. In a sense, she was attempting to bargain with me.
I also had the impression – although she did not articulate it – that during the course of her submissions to me, her position somewhat abated, perhaps in light of Mr H’s evidence that a continuation of the relationship between her and the younger three children would be in their best interests. Nonetheless I remain somewhat sceptical as to whether she will avail herself of any supervised time at the contact centre.
In the course of her evidence, I explored with her whether other supervisors could be identified. There appeared to be no real prospect of any suitable alternative to the C Contact Centre being agreed upon. Certainly there is no material upon which I could conclude that such a person existed.
I did float with parties the prospect that the father could be left with the option of agreeing to an alternative supervisor, should the mother be able to present an acceptable name to him. However this was opposed by the Independent Children's Lawyer, given the assertion that in the past the father had not been able to negotiate equally with the mother during the course of the relationship. In any event, the father did not appear to strongly support such an order, notwithstanding the fact that his Case Outline – plainly prepared with legal assistance – sought it.
Given my finding that the mother presents an unacceptable risk, obviously her time with the children must be supervised. Absent any live prospect of an alternative agreed supervisor to the C Contact Centre being identified, there does not seem any point in making an order permitting the mother to spend time with the children supervised by another supervisor. In any event, should such a supervisor be identified, it would arguably be within the father’s exercise of parental responsibility in relation to the children to permit the mother to spend time with the children supervised by that other person.
There will therefore be an order that any time that the mother spends with the children be at the C Contact Centre, and supervised by the staff of that facility.
There are two remaining issues. The first is whether Y should be able to choose for himself whether he spends time with the mother at the C Contact Centre or not, and secondly at what age the children should be able to commence to spend unsupervised time with the mother. I will deal with those issues in that order.
Y is 12 years of age. For some years now, he has been prepared to admit ambivalence to his relationship with his mother, and particularly spending time with her. He has expressed a desire that any time he spends with her be supervised, presumably because of his fear of retribution for his disclosures. He appears to have, on the whole, nonetheless chosen to spend time with his mother, although there have been occasions when he has chosen not to do so. I think there is some prospect that, if he is forced, fortnight in and fortnight out, to go and see his mother, that that will cause resistance in him, rather than if his his time with his mother was to be at his choosing.
Had Y a history of substantial non-visitation with his mother, the conclusion which I reached may have been different; however it appears as though the father has supported him spending time with the mother, or at least Y does not feel as though his father is resistant to it. I therefore determine that it is in Y’s best interests that he be given the option of spending supervised time with his mother, rather than being required to spend such time.
That then leaves only the issue of the age of the children when they should be able to determine for themselves whether they wish to spend unsupervised time with the mother.
The father proposed an age of choice of 14 for all children, with the children then spending unsupervised time with the mother after the age of 15. The Independent Children's Lawyer sought that the age be 15, with no intermediate stage of choice between 14 and 15.
As regards Y and N, there is no reason to suspect that, at about the age 14 or 15, they would not be sufficiently mature to be able to, firstly, choose for themselves whether they wished to spend unsupervised time with the mother, and secondly, to be sufficiently developed and mature to be able to protect themselves when spending any unsupervised time with her. However the situation in relation to J is not yet sufficiently clear. He appears to have some development issues, particularly as regards emotional maturity. However he is only 5 years of age. It is almost impossible to predict what the future will hold for him in about 9 or 10 years time. There is little material which would assist me.
Upon balance I think the orders proposed by the Independent Children's Lawyer are the better outcome in this case. They do not see responsibility pass to the child as to the circumstances in which they wish to spend time with their mother, but rather it is clearly cut and laid out for them. Moreover, the later age of 15 adds a further layer of protection to J in the event that he has some delayed development still evident at that time.
There will therefore be an order that the children commence spending unsupervised time with the mother once they turn the age of 15.
RESTRAINT ORDERS
Both the father and the Independent Children's Lawyer sought orders restraining the mother from, in substance, harassing, stalking, threatening or seeking to have others do such things, to the father, Ms E, and the children. In the course of the Independent Children's Lawyer’s counsel’s submissions, it was conceded that s 114 of the Family Law Act is not sufficiently broad to encompass orders being made with respect to Ms E.
There is a long history of violence between the parties. Moreover, since separation, the mother has partnered with a member of a so-called outlaw motor cycle gang. Although in his evidence Mr M denied having attended the father’s unit on an occasion when he and the mother attempted to obtain entry to the unit, that denial was not even supported by the mother, who conceded that Mr M was with her, but denied that there had been any banging of the door, or threats issued or rocks thrown. I reject both Mr M’s and the mother’s denials. I accept the evidence of the father and Ms E in relation to that incident. Particularly I accept the father’s evidence that the mother said words to the effect “If I need to get a gun I will get one and shoot you”.
Part of my reasoning for accepting this is that the mother uttered a similar threat within the hearing of the supervisors at the C Contact Centre. In their note of attendance (seemingly either on 6 September or 15 December 2012), the Relationships Australia notes record:
[The mother] arrived with the baby for today’s visit. On arrival [the mother] was informed about [J’s] operation and explained he was not to jump, climb or run etc. Before the supervisor was fully able explain, [the mother] very loudly and angrily yelled “I am sick of this. I will send the boys around”…
Logically this can only be a reference to male associates of hers, and was probably intended to refer to members of the L Motor Cycle Club.
The mother denied that she said this during the course of that attendance. I reject her denial and accept the evidence of the C Contact Centre, even though it is second hand in nature. Particularly I am influenced by the fact that the report contains the utterance within quotation marks, presumably intended to be an accurate recording of direct speech.
To similar effect is para 22 of Ms G’s affidavit, when she says that when she served the mother with a sealed copy of her application for a temporary assessment order, she said in relation to the father that “I am going to kill him.” Ms G was not challenged in relation to that evidence during her cross-examination by the mother.
I am also troubled by Y’s revelation during his interview with Ms G on 1 February 2012, of his observation of Mr M’s firearms. Ordinarily one might be able to dismiss that as childhood fantasy, however Y was 10 years old at the time, and appeared to be able to differentiate between different types of firearms, even referring to some as “glocks” and another as a “magnum”. I suppose that with modern electronic games, children may have greater familiarity with specific types of firearms than perhaps previous generations did, however the specific reference to them, where they were located, and the fact that they were put in a bag and put in the boot of another man’s car, is worrying.
Additionally, although Mr M in his affidavit denied having any criminal history, this in fact was untruthful. He does have a criminal history in the ACT, specifically being convicted of assault in 1995, and assault occasioning actual bodily harm in 1996. When challenged in relation to his patent untruth in his affidavit during cross-examination, he was visibly annoyed.
The father gave evidence of what he believes to be continued harassment of him by either Mr M or associates of his. He believed that a group of motor cyclists had followed him from a beach near Cairns to Town O on one occasion, and further gave evidence that he believes that Mr M or others drive past his unit on their motor cycles on occasions. When cross-examined by the mother, it became clear that there was no logical basis for him concluding that he was being followed by motor cyclists to Town O, and further he was unable to give any specificity as to occasions when Mr M or others had ridden past his house. I think that the mother was correct in suggesting that there was an air of paranoia to that evidence. However given the several threats to harm the father made by the mother from time to time, and her association with Mr M and more particularly his association with an outlaw motor cycle gang, such paranoia is not entirely beyond understanding.
In order to maximise the benefit to the children of their living with the father, their environment should be as free from violence as possible, and moreover, the father should feel as free from the risk of violence from the mother as orders can achieve. I am satisfied that there is a sufficient factual basis for making orders restraining the mother under s 114. The only slight question is whether they should be in terms as suggested by the father, or the Independent Children's Lawyer. In my view the Independent Children's Lawyer’s orders are better drafted and more likely to achieve their intended effect.
There will therefore be orders in terms sought by the Independent Children's Lawyer in this respect, save that the reference in para 9(d) to “premises” should be replaced by the word “workplace”. That is because the word “premises” is vague, and the father is presently employed at a business within a very large shopping centre. It should not be suggested that the mother is precluded from going to that shopping centre at all; she should simply be restrained from going into the business in which both the father, and for that matter Ms E, work.
CONCLUSION
For the foregoing reasons there will be orders in terms as sought by the Independent Children's Lawyer.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 June 2014.
Associate:
Date: 20 June 2014
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Family Law
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Injunction
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