Baines and Keen and Ors
[2015] FamCA 720
•31 August 2015
FAMILY COURT OF AUSTRALIA
| BAINES & KEEN AND ORS | [2015] FamCA 720 |
| FAMILY LAW – PRACTICE & PROCEDURE – Where the Applicant Father initially sought parenting orders between himself and the Respondent Mother in relation to their four children – Where the Department of Family and Community Services intervened and removed the children from the care of the mother, and then from the care of the father, and placed them with the Third Respondent Maternal Grandparents – Where the Paternal Grandmother was joined as the Second Respondent – Where the Minister has had parental responsibility for all children since September 2013 FAMILY LAW – CHILDREN – Best Interests – Where the children have meaningful relationships with both parents – Where the children have been exposed to psychological harm from being exposed to family violence during the course of the parties’ relationship and post-separation – Children’s views – Where there is no lack of commitment to the children in either parent – Where the children are presently in a safe and protected environment in the care of the maternal grandparents, supervised by the Department – Where the mother and maternal grandparents live an eight hour drive from the father –Where the mother’s parenting capacity has been restored – Where the father’s capacity to meet the children’s emotional needs is limited by his own lack of insight into the impact of his behaviour on others – Where there are current Apprehended Violence Orders in place against the father – Where Orders made for the transition by the children to reside with the mother over the next 12 months – Where children to spend supervised time with the father, on a graduating basis, for 18 months – Thereafter the children to spend unsupervised time with the father on not less than one occasion per month – Mother restrained from consuming alcohol at any time – Father restrained from approaching the children, mother or maternal grandparents other than in accordance with the Orders FAMILY LAW – CHILDREN – Where the Secretary is to have parental responsibility for a further three years, solely for the first 12 months, and thereafter shared with the mother and maternal grandparents – Where after the expiration of that three year period, the mother is to have sole parental responsibility for the children |
Family Law Act 1975 (Cth), ss 60CC, 64B
| APPLICANT: | Mr Baines |
| FIRST RESPONDENT: | Ms Keen |
| SECOND RESPONDENT: THIRD RESPONDENTS: | Mr B Baines Ms C Keen and Mr D Keen |
| INTERVENER: | Secretary, Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Flintoff Lawyers |
| FILE NUMBER: | (P)NCC | 89 | of | 2013 |
| DATE DELIVERED: | 31 August 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 13-17 July 2015 |
REPRESENTATION
| APPLICANT: | In Person |
| SOLICITOR FOR THE FIRST RESPONDENT: | Krstina Wooi |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Mooney |
| SOLICITOR FOR THE SECOND RESPONDENT: | Boyd Olsen Lawyers |
| THIRD RESPONDENTS: | In person |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitors Office |
COUNSEL FOR THE INTERVENER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Flintoff Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Graham |
Orders:
That all prior Orders relating to the children E (born … 2004), F (born … 2006), G and H (both born … 2008) (collectively known as “the children”) are discharged.
Parental Responsibility
The Minister of the Department of Family and Community Services (“the Minister”) exercise sole parental responsibility for the children for a period of 12 months.
At the expiration of Order 2 hereof, the Minister, the mother and the maternal grandparents shall exercise equal shared parental responsibility for the children for a period of two (2) years.
At the expiration of Order 3 hereof, the mother exercise sole parental responsibility for the children until each child reaches the age of 18 years.
Residence
For a period of three (3) years, the children shall live as directed by the Secretary, Department of Family and Community Services (“the Intervener”) or his delegate, noting that the children presently live with the maternal grandparents and that a transition into the care of the mother is anticipated over the following 12 month period.
From the commencement of sole parental responsibility being exercised by the mother, the children shall, if they do not already do so by then, live with the mother.
Time and communication with the father
For a period of 18 months, the children shall spend time with the father as follows:
(a)Not less than once per month on two consecutive non-school days, for a period of up to four hours per visit, such time to be supervised by the Intervener or his delegate, and to occur within a 40 kilometre radius of the children’s home in Queensland;
(b)The children’s time with the father may occur with the sibling group being divided, at the Intervener’s discretion;
(c)The time in Order 7(a) shall not occur at the same time as the children’s time with the paternal grandmother as per consent Orders dated 13 July 2015;
(d)The mother or the maternal grandmother shall ensure the children are transported to the venue nominated by the Intervener at the commencement of the time and transported from the venue at the conclusion of the time.
At the expiration of Order 7 hereof, the children shall spend time with the father as follows:
(a)Not less than once per month as follows:
i.In the event that the father chooses to spend time with the children in groups of two children at a time, on two consecutive non-school days from 9.00 am to 4.00 pm; OR
ii.If the father chooses to see the children together as a group, from 9.00 am to 4.00 pm on one day only.
(b)Such time is to be unsupervised and to take place within a 40 kilometre radius of the children’s home in Queensland, with changeovers to take place at I House, J Town, or as otherwise agreed between the parties.
(c)The mother or her nominee shall ensure the children are transported to, and collected from, I House at the commencement and conclusion of each period of time.
The mother, father and maternal grandparents shall do all acts and things required by the contact centre for use of the contact service.
In relation to Orders 7 and 8 hereof, the father shall make all necessary arrangements to travel to the contact centre and bear the cost associated with utilising the contact centre to enable him to spend time with the children.
In relation to Orders 7 and 8 hereof the mother is to inform the contact centre as soon as practicable of the details of any school holiday or extra-curricular activities that a child or children will be attending to allow for the contact centre to arrange for the father to spend time with the children on alternate occasions.
Telephone
Unless otherwise agreed between the father, mother and maternal grandparents, the children shall have telephone communication with the father on one occasion per week, for a period of up to one hour, to enable each child to speak, if he or she wishes, on Tuesdays at 6.30 pm Queensland time, with the call to be initiated by the father on a telephone number advised by the mother or maternal grandparents.
As each child reaches the age of 11 years, the maternal grandparents or mother shall permit and facilitate that child to receive one additional telephone call per week from the father at any convenient time.
Injunctions and restraints
The mother is restrained by injunction from consuming alcohol at any time.
The mother, father and the maternal grandfather are restrained by injunction from:
(a)Abusing, insulting or denigrating any of the parties or children or a member of their family or household to or in the presence or hearing of the children, or permitting to allow the children to remain in the presence or hearing of another person denigrating the other;
(b)Discussing any allegation made or evidence given in Family Law proceedings to or in the presence of the children, or permitting another person to do so;
(c)From physically disciplining or striking the children, or permitting another person to do so; and
(d)Questioning the children about events in the household of any other party.
Unless otherwise agreed, the father is hereby restrained by injunction from entering or approaching:
(a)Within 200 meters:
i.The residence of the children;
ii.Any educational institution attended by the children;
iii.Any venue where the children are participating in extra-curricular activities;
(b)Contacting the maternal grandparents by any means other than in accordance with these Orders;
(c)Contacting the children or any of them by any means other than in accordance with these Orders; and
(d)Relocating to live within 40 kilometres of where the children live in Queensland.
The father is restrained from questioning the children about the mother and maternal grandparents and further from seeking to draw out from the children information about events in the home where the children are living.
The father is restrained from making critical and/or rude and/or insulting remarks to the children about the mother, the maternal grandparents and members of the extended maternal family and shall remove the children from the presence of third parties who do so.
The father is restrained by injunction from spending unsupervised time with the children and the mother and maternal grandparents are restrained by injunction from permitting the father to spend time with the children except as specified in these Orders.
The paternal grandfather is restrained from making critical and/or rude and/or insulting remarks to the children about the father and members of the extended paternal family and shall remove the children from the presence of third parties who do so.
The father is restrained from filming the children during changeovers for the purpose of the children spending time with him.
Until she assumes sole parental responsibility pursuant to these Orders, the mother shall:
(a)Permit the Intervener or his delegate to conduct random home visits to her residence or any residence where the children live or spend time;
(b)Ensure at all times that the Intervener or his delegate may enter the premises at which the children live or spend time;
(c)Ensure that the Intervener or his delegate may meet with the children at the request of the Intervener or his delegate;
(d)Accept all reasonable directions of the Intervener or his delegate in relation to their care of the children and provide truthful information to the Intervener’s delegate in relation to the children’s care;
(e)Participate in a risk assessment conducted by the Intervener’s delegate and comply with any case plans developed by the Intervener or his delegate;
(f)Organise and cause the children to attend all medical appointments recommended by the Intervener or his delegate;
(g)Accept and facilitate all reasonable referrals made by the Intervener or his delegate for the children;
(h)Will engage with support services recommended by the Intervener or his delegate and
(i)
Attend Carbohydrate Deficient Transferrin (“CDT”) analysis within
24 hours of a request made by the Intervener or his delegate.
Leave is granted to the Intervener to provide a copy of the Family Reports prepared by Mr K incorrectly dated 6 February 2013 (6 February 2014 being the correct date), 23 August 2014, 4 May 2015 and the transcript of his oral report of 16 July 2015, to any service engaged to assist the children, mother, father and maternal grandparents, or for the Intervener’s exercise of his state welfare powers.
In the event that an Initiating Application is filed in relation to any of the children the subject of this Order, a sealed copy is to be served on the Intervener.
That the Intervener be permitted to provide the Court’s Reasons for Judgment in its original form to any statutory authority, including Ombudsman and Police Services in all the states and territories in Australia, in response to any complaints or applications made by the father to those bodies.
That for 12 months the Intervener shall provide to the father copies of school reports for the children, applications for school photographs and any other report or document relating to the health and welfare of the children or any of them.
From the commencement of the mother and maternal grandparents sharing parental responsibility for the children, the mother and/or the maternal grandmother shall provide copies of documents relating to the health, welfare and education of the children to the father at his nominated address.
From the time the mother begins to exercise sole parental responsibility, the mother shall authorise the school which the children attend to provide to the father, at his expense, copies of:
(a)All reports and documents relating to the academic progress and welfare of the children at school;
(b)Notices of specialist medical appointments and other therapeutic services for each of the children;
(c)Copies of any reports generated in relation to such appointments; and
(d)Applications for school photographs for each of the children.
The mother and maternal grandparents shall advise each other of any change of contact address and telephone number.
The father may provide cards, gifts and letters to the children:
(a)For 12 months directed to the Intervener;
(b)Thereafter, directed to the maternal grandparents for forwarding on to the children, or one of them.
In the event of any serious accident or medical emergency, the Intervener, for a period of 12 months and thereafter the mother or maternal grandparents, shall advise the father as soon as practicable.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baines & Keen & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 89 of 2013
| Mr Baines |
Applicant
And
| Ms Keen |
First Respondent
And
| Mr B Baines |
Second Respondent
And
| Ms C Keen and Mr D Keen |
Third Respondents
And
| Secretary, Department of Family & Community Services |
Intervener
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are contested applications for parenting orders in respect of four children: E aged almost 11; F aged nine; and twins, G and H, who have just turned seven years of age.
There is a complex history for these children, who are presently living with the maternal grandparents and for whom the Minister of the Department of Family and Community Services (“the Intervener”) has had parental responsibility since September 2013.
The parties are as follows:
a)The father is the applicant. He lives on the North Coast of New South Wales. He represented himself in these proceedings.
b)The mother is the first respondent. She lives in the Sunshine Coast area of Queensland, in close proximity to the maternal grandparents and the children.
c)The paternal grandmother is the second respondent. She lives on the North Coast of New South Wales, in reasonable proximity to the father.
d)The maternal grandparents, aged in their early sixties, are the third respondents. They live on the Sunshine Coast area of Queensland, in proximity to the mother. The four children are living with them. The maternal grandparents represented themselves in the proceedings.
Brief History of Relevant Events
The parties began living together on the Northern Beaches of Sydney in May 2003.
The parties’ first child was born in 2004.
By 2006, if not earlier, the mother was drinking to the point of intoxication on a regular basis.
In 2006, the parties’ second child was born.
On 20 November 2007 Community Services first received a Risk of Harm Report in relation to the two children.
In 2008 the two youngest children, twin girls, were born. There were then four children under four years of age.
On 7 October 2008 an Apprehended Violence Order was taken out against the father for the protection of the mother, after an incident where the mother says the father shook her and threw her against a wall during an argument. The evidence of the father is that, whilst not conceding any allegation of violence, he did not contest that application nor subsequent applications for protective orders over the following years.
In 2009 the mother attended L House Residential Rehabilitation Program to address her dependence on alcohol. She relapsed shortly after leaving. Community Services applied for an Apprehended Violence Order for the protection of the children from the mother, but the police did not support this application because of the domestic violence allegations made by the mother against the father.
On 1 April 2009 the family relocated from the Northern Beaches of Sydney to the North Coast of New South Wales, close by to where the paternal grandmother lived and continues to live. In that same year, the maternal grandparents moved from the Northern Beaches area of Sydney to their present location in south east Queensland.
In September 2009 the father called the police, raising the mother’s intoxication and alleging assaults on him by the mother. The mother was arrested and charged with common assault, but neither the charge nor proposed Apprehended Violence Order was pursued.
In July 2010 the mother left the house with the children but returned a few days later.
On 19 July 2010 an Apprehended Violence Order was made for the protection of the mother from the father for a period of 12 months.
On 19 April 2012 an Apprehended Violence Order was made, protecting the mother and children from the father.
It is likely that the parties either separated and reconciled, or were never fully separated, despite the Apprehended Violence Orders.
In June 2012 the parties separated on a final basis. The father was arrested for a breach of the April 2012 Apprehended Violence Order and from June 2012 to July 2013 the children lived with the mother. After the father was arrested he was granted bail the next day, but had no contact with the mother or the children.
On 16 August 2012 Community Services advised the father that a decision had been made that required his time with the children to be supervised by Interrelate.
On 8 October 2012 the father pleaded guilty to the breach of the Apprehended Violence Order and was placed on a bond (s 10) for 12 months.
On 10 October 2012 the Apprehended Violence Order was varied, preventing the father from contacting the mother. Shortly after, the mother was diagnosed with clinical depression and was placed on medication.
On 19 November 2012 the father filed an Initiating Application in the Local Court seeking parenting orders.
In December 2012 the father filed an Amended Application and the mother filed a Response.
Interim Orders were made in the Local Court, that the children live with the mother, that the father have telephone contact with the children three times a week and spend time with them once per fortnight, for two hours, supervised at Interrelate. The matter was also transferred to the Federal Magistrates Court (as the Federal Circuit Court was then known) in Newcastle.
An order was made in the Federal Circuit Court for a Children and Parents Issue Assessment to be prepared. The aspect of the application in relation to financial proceedings was struck out for want of prosecution in April 2013.
On 19 April 2013 the father moved back into the family home at least in part to help the mother with the care of the children. There was an Apprehended Violence Order still in place.
On 27 May 2013 the parties and children were seen by a Family Consultant.
Subsequently, consent Orders were prepared and made on a final basis on
25 June 2013. Those Orders provided for the mother to have sole parental responsibility and for the children to live with her. The mother was ordered to complete a parenting course, attend upon a psychologist, attend Alcoholics Anonymous fortnightly and attend upon a drug and alcohol counsellor fortnightly.
The father was likewise compelled to complete a parenting course, a men’s domestic violence change behaviour program, attend upon a psychologist fortnightly and attend upon an advisor at Interlink.
Until compliance by the father with that Order, he was to spend time with the children once per fortnight for two hours at Interrelate. Thereafter, upon receipt of confirmation of completion of the course, the father was to have unsupervised time, graduating to each alternate weekend from Friday to Sunday, half school holidays and special occasions. The changeover was to take place at the mother’s residence. By then then the Apprehended Violence Order had expired.
On the same day, Community Services became aware that the mother had engaged in an alcoholic binge over the previous five days and she was soon after admitted to hospital.
On 2 July 2013 the father retained the children after they spent time with him in accordance with the final Orders. Community Services recovered them later that day.
On 26 July 2013 police attended the mother’s home and found she was intoxicated. They placed the children in the care of a next door neighbour. The following day, the father again retained the children after a visit in accordance with the final Orders.
On 29 July 2013 the father filed an Initiating Application in the Local Court for fresh parenting orders.
On 30 July 2013 Orders were made in the Local Court suspending the consent Orders made five weeks previously. The Orders directed the father and children to live in the home of the paternal grandmother and to advise the Department of Family and Community Services (“the Department”) if there was any change of residential arrangements. There were directions about where the children were to attend school and pre-school, in the area of the home of the paternal grandmother.
In August 2013 the mother moved to live on the Sunshine Coast with her parents. The mother was profoundly shocked by removal of the children. She took urgent steps to achieve and maintain sobriety.
The matter was again transferred to the Federal Circuit Court in Newcastle.
On 11 September 2013 the Department was joined as Intervener and interim Orders were made by consent as follows:
a) All previous parenting orders were discharged;
b) Parental responsibility to be exercised by the Minister;
c) Children to live as directed by the Intervener;
d) Children to spend time with the mother as directed by the Intervener;
e) Both parties restrained from being under the influence of drugs;
f) Both parties restrained from physically disciplining the children;
g) Father restrained from filming the children during changeovers;
h) Mother to continue to engage with recommended support services;
i) A Family Report was ordered; and
j) Notations were made reflecting the arrangements put in place for the children to see the mother each alternate weekend for seven hours on both the Saturday and Sunday of that weekend, with changeovers in the local area for the children near the home of the paternal grandmother.
The proceedings were adjourned to March 2014, on a date after the anticipated release of the Family Report.
In October 2013 the father and the children moved to live independently of the paternal grandmother in M Town. They continued to see the mother and the paternal grandmother.
On 3 February 2014 the father filed an Amended Initiating Application seeking sole parental responsibility, residence and time between the children and the mother on the fourth weekend of each month. The father also sought orders by way of pre-condition about the mother enrolling and completing counselling for alcohol abuse and abstinence from alcohol and any other illicit substances.
On 3 February 2014 the father filed a Notice of Child Abuse alleging risk to the children resulting from the mother’s history of alcohol abuse, with its adverse impact on the care of the children.
On the same day, the mother filed a Response seeking the return of the children to her care and sole parental responsibility.
On 6 February 2014 the children were observed by the Family Consultant with the parents and the paternal grandmother, noting that G refused to be interviewed. The Family Report (“the First Family Report”) was released soon after, on 18 February 2014, with recommendations as follows:
a)The Department have parental responsibility for two further years from the date of the Family Report;
b)The children live with the father in the M Town area, unless the Department deem it fit to change the children’s placement;
c)While the mother resides in Queensland, she should spend as much time with the children as possible, being not less than half of each school holiday period as well as a weekend every three or four weeks in their local area, with more time if she relocated back to proximity to the father’s home.
On 17 March 2014 the matter was back before the Federal Circuit Court. The parties were directed to attend a Child Inclusive Conference for a Limited Issues Report. The maternal grandparents’ suitability to care for the children was to be assessed and the matter was adjourned.
On 3 April 2014 those Orders were vacated and an updating Family Report (“the Second Family Report”) was ordered, with particular reference to the suitability of the maternal grandparents to care for the children.
On 19 August 2014 further interviews between the children and the parents by the Family Consultant took place.
On that same day, the maternal grandfather filed a Response seeking orders for residence for the children with the maternal grandparents in Queensland, sole parental responsibility and for telephone contact between the children and the father as well as face to face contact between them every third weekend in the children’s local area.
On 28 August 2014 the Second Family Report was released. The recommendations of that report were as follows:[1]
a) The children live in the care of the maternal grandparents in Queensland, whilst the New South Wales Department negotiated transfer of parental responsibility to the Queensland Department of Child Safety, (“Queensland Department”) for a period of not less than 12 months;
b) In the event the Queensland Department was satisfied with the mother’s sobriety, that the children be discharged from State care and placed in the care of the mother;
c) The mother not live with the maternal grandparents during the time the children were living with them;
d) The children spend time with the mother, including one overnight per week;
e) The children spend time with the father for eight or nine days each school holiday period, during term holidays, and half of the Christmas holiday period; further one weekend each mid school term; and
f) The mother provide the Queensland Department with progress reports as to drug testing and her ongoing sobriety
[1] Second Family Report dated 26/08/2014, para 62 and following
On 22 September 2014 Orders were made in the Federal Circuit Court that the maternal grandparents be joined as parties, that an Independent Children’s Lawyer be appointed, and the matter be transferred to the Family Court. The prospect of mediation between all parties was raised for November 2014, although this ultimately did not take place.
In October 2014 the Department removed the children into the care of the maternal grandparents in Queensland on very short notice to them. This move was made without reference to the Federal Circuit Court or to this Court. No notice was given to the father. He reacted with the anger and frustration which continued to be evident during the course of these proceedings.
The children themselves reacted explosively to the change displaying behaviour which challenged the maternal grandparents to the limit of their ability to cope. Their difficulties were aggravated by the persistent confronting communication by the father.
On 13 November 2014 the matter came before me. On that day the paternal grandmother foreshadowed an application to be joined as a party. She too had been shocked and distressed by the removal interstate of the children. An Order was made that there be no further change of residence for the children, without notice to the parties and the Court, other than in an emergency, and an updating Family Report (“The third Family Report”) was ordered.
On 17 December 2014 the paternal grandmother became a party to the proceedings and defined Orders were made for the children to spend time with her.
On the issue of time for the children with the father, an ex tempore judgment was delivered on 18 December 2014, providing for the children to spend time with the father, pending final hearing, for two nominated periods and thereafter each third weekend, with changeovers at a contact centre. A restraint on the father’s questioning of the children and his approaching the maternal grandparents in person, at their home or at the children’s school, and in derogating any family member in the presence of the children was also ordered.
On 19 December 2014 an Apprehended Violence Order was made for the protection of an officer of the Department from the father for a period of 12 months.
On 23 February 2015 an Apprehended Violence Order was made in a Local Court for two years for the protection of the mother from the father.
On 27 February 2015 the father took the children to the office of the Queensland Department and police to have the orders explained to the children.
On April 2015 the Department suspended the children’s time with the father, without reference to the Court.
On 10 April 2015 the matter was set down for final hearing for five days and the Court noted interview dates for the parties and the children with the Family Consultant.
On 27 April 2015 all parties, other than the father, attended upon the Family Consultant for interview.
On that same day, the Intervener filed an Application in a Case seeking the suspension of Orders for time between the children and the father, to be replaced by an order that the children spend time with the father as directed by the Intervener.
The Intervener suspended all visits between the children and the father after the father’s failure to attend interviews. Informing that decision was information received that the father had been admitted to the mental health unit of a local hospital. The father had posted material suggestive of suicidal intention on social media.
On 12 May 2015 the Third Family Report was released. Recommendations were as follows:
a) The Minister to retain parental responsibility;
b) The children to move to live with the mother;
c) Time for the children with each set of grandparents; and
d) Time for the father to be suspended subject to a mental health assessment.
Also on that day evidence was tendered by the father from two Mental Health Units where he had recently been voluntarily admitted.[2]
[2] Exhibits 4 and 5
Arrangements were made for the children and the father to be observed by the Family Consultant on the second day of hearing, with oral reporting back to the Court (the “Fourth Family Report”).
On 19 June 2015 Orders were made discharging the Orders for time between the children and the father. Fresh Orders for supervised time in a contact centre and other procedural orders were made.
On 13 July 2015, the first day of hearing, consent Orders were made for time between the children and the paternal grandmother, who was thereafter excused from attendance.
Applications
Father
The Application of the father was for the children to continue to live with the maternal grandparents and for a sharing of parental responsibility[3] between himself and the maternal grandparents, for defined time, and communication with the father, and a proposal for review in 12 months.
[3] Identified by the word ‘custody’ in the father’s application
On behalf of the Intervener, the father was questioned by Counsel about his application and I conclude that the clear preference of the father was for the children to live with him. However his application, based on advice and pragmatism, was for the children to continue to live with the maternal grandparents. The real issue for the father was how much time he could spend with the children and whether or not that time was supervised.
Mother
The application of the mother was for the Intervener to continue to have sole parental responsibility for a period of 12 months from the date of final orders, but that the children live with her and spend time with the maternal grandparents and the paternal grandmother as agreed between all parties, and with the father as stipulated by the Intervener. Thereafter the mother sought sole parental responsibility, for agreed arrangements with the grandparents, and for limited time between the children and the father, four times a year, for not less than two hours on each occasion, supervised at a contact centre in Queensland.
Maternal Grandparents
The application of the maternal grandparents was for the Intervener to have sole parental responsibility for the children for a period of 12 months from the date of final orders, with the children to continue to live with them for not less than six months, together with the mother. They proposed a suspension of all time and communication between the children and the father, until a “full mental health assessment is done by a relevant authority”.[4] I infer that the proposal was that after the period of six months, the children would live with the mother.
[4] Final Orders Sought by the maternal grandparents filed 12/06/2015
The Intervener
The application of the Intervener was that the Minister exercise parental responsibility for 12 months from the date of final orders. Thereafter, that the mother and the maternal grandparents exercise equal shared parental responsibility for a period of three years. Thereafter, the mother exercise sole parental responsibility for the children. The proposal for time between the children and the father was for one occasion per month, as directed by the Intervener, and after the expiry of 12 months, on one occasion per month for three hours in a contact centre.
Paternal Grandmother
The application of the paternal grandmother was addressed by Orders made with the consent of all parties, at the commencement of the first day of hearing. Those Orders provide for regular, short periods of time, with certain restraints on the conduct of all parties around the time between the children and the paternal grandmother.
The issues
The issues arising for determination are as follows:
a)The length of time for which the Intervener should retain parental responsibility for the children and whether or not that should be sole parental responsibility;
b)The length of time for which the children should continue to live with the maternal grandparents;
c)When the children should transfer into the care of one of the parents;
d)What time and communication could be reasonably practicable, given that there is an 8-9 hour drive between the homes of the mother and maternal grandparents on the one hand, and the father and the paternal grandmother on the other;
e)The impact and significance of family violence on the children, with particular reference to Apprehended Violence Orders, both past and present;
f)The issue of the mother’s past addiction to alcohol and the significance of steps taken by her to address that problem; and
g)The necessity for, and value of, a mental health assessment of the father, with particular reference to his recent voluntary admission to hospital, which caused him to miss the interviews for the Third Family Report.
These issues are in addition to the relevant considerations under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The Evidence
The documents relied upon by the parties is as follows:
Father
a)Father’s affidavit filed 16/06/2015;
b)Notice of Child Abuse filed 03/02/2014;
Mother
c)Mother’s affidavit filed 23/06/2015;
The Maternal Grandparents
d)Maternal Grandmother’s affidavit filed 18/06/2015;
e)Maternal Grandmother’s affidavit filed 19/08/2014;
f)Maternal Grandfather’s affidavit filed 19/08/2014;
The Paternal Grandmother
g)Paternal Grandmother’s affidavit filed 19/06/2015;
The Intervener
h)Affidavit of Ms N filed 25/06/2015;
i)Affidavit of Ms O filed 25/06/2015;
j)Affidavit of Ms P filed 25/06/2015;
Reports
k)Fourth Family Report (oral report) given in Court on 16/07/15;
l)Third Family Report dated 04/05/2015;
m)Second Family Report dated 26/08/2014; and
n)First Family Report dated 14/02/2014 (incorrectly dated 2013).
Oral Evidence
The Father
The father represented himself in these proceedings. He is a tall, solidly built man aged 47 years.
The father was in the Defence forces as a young man. He asserts himself through his bearing demeanour and the volume and tone of his voice. Throughout the course of the hearing, and at times during prior interlocutory events, the father revealed loud, overbearing aspects of his personality. I concluded that he is skilled at using his physical size and commanding demeanour to bring people into line in accordance with his wishes. I also conclude that he understands that people find him intimidating and behaves in that way to achieve that effect.
The father conceded two things, that he disciplined the children using that type of approach, together with physical force such as hand squeezing and rough handling, and that the children were upset by it. However the evidence does not suggest that the children are generally frightened of the father.
The positive side of his personality and conduct is his strong commitment to the children and a genuine desire both to raise them, to protect them, and to promote their best interests through education and discipline. His physicality translates for the children into engagement in swimming, surfing, football, and other sports and outdoor activities.
Attitude to the Department
The father expressed his frustration and disappointment with the decision making of the Department during the period of almost two years since the Minister has had parental responsibility for the children. In particular, he is aggrieved by the removal of the children from his care into the care of the maternal grandparents in October 2014, without notice to him, and from his perspective, without cause.
One of the criticisms raised by the Intervener of the father is his angry focus on the Department and in particular on the officers involved with the children. That angry focus was on display. The father does have some insight into the effect of his behaviour and attitudes. He knows he can frighten people.
The father considers that the Department was willing to assist the mother but not him during the respective periods when the children were in their sole care. He described dealing with the relevant office as “like dealing with a brick wall”. The father would at times make repeated phone calls or send emails in quick succession with a view to being given urgent attention. Unsurprisingly Departmental officers drew a line and would not be moved to give priority to the father based on his demands
Ultimately, in December 2014, an Apprehended Violence Order was made for the protection of the casework manager from the father.
The father was an open witness, sometimes to his own disadvantage. In particular, he referred to his engagement with third parties, “people with an interest in his case”, and his intention to enlist the assistance of media organisations to attempt to expose what he regards as misconduct by the Department.
Where the father lacks insight is the impact on the children of his “war” with the Department. The children are in the care of the Department and have contact with caseworkers.
The father acknowledged during final submissions that what I interpret to be his methods of protesting against the Department, such as admitting himself to two Mental Health Units, missing Family Report interviews and posting apparently despairing messages on social media, might have “caused the red flags to go up”. He was referring to the decision by the Department to cease facilitating time for the children with him because of uncertainty about his mental health and their safety in his care. The children were thus directly adversely affected. They love the father and he loves them, but he gave priority to “making a point”.
In addition to his belief in the rightness of his cause, there is an evident level of pleasure for the father in maintaining his stance against the Department, which is consistent with the advice and recommendations of the Family Consultant about the benefit to the father of undertaking therapy to learn more effective behaviour strategies.
Attitude to mother
The father made positive concessions about the mother. He agreed that he had told the police that when the mother was not drinking, she was a good mother and he agreed, “yes I’d stand by that today”. He trusted the mother to make decisions and agreed that she had been fully engaged in the lives of the children, when she was not adversely affected by alcohol.
He also conceded that he had purchased alcohol and drunk it with the mother, knowing that she had an addictive problem, in order to “play the game … she had to fall over for something to happen”. I infer that the father meant that this practice was the best method of attracting attention and help for the family.
I can accept that the father considered that he was not offered sufficient assistance in managing the mother’s drinking and that he was not believed about the extent of the problem, but his outcome driven solution was to actively encourage the mother to drink when the family was still intact.
I am not convinced that the sole motivation of the father was to seek help for the family when he bought alcohol for the mother. It was probably also a means of keeping her in the relationship with him. To the extent that he was attempting to attract help, his approach appears to have overlooked the extremely adverse impact on the children of encouraging the mother’s abuse of alcohol.
Prior Orders
Final parenting Orders were made with the consent of the parties on 25 June 2013. The father asserts that those Orders were made by the parents wishing to get the courts and other authorities “off their back”. It is inconsistent with the evidence of the father that he was trying to extract assistance from government agencies. It is more likely that the pattern of separation and reconciliation had recommenced with the father’s return to the home two months prior.
Three days after the Orders were made the mother was admitted to hospital, due to an overdose of alcohol. Another application was made to a court for parenting orders and shortly the children came to live with the father.
The following period of 16 months with the father was one where the children appear to have done well at school and were generally well cared for.
However the father had difficulty coping with four children as a single parent. He had previously been an engaged and loving father but in full time employment. The mother cared for the children most of the time, and did so well, when she was not suffering acute consequences of dependence on alcohol.
The mother had moved away to Queensland to address her problems. The father struggled and wanted more help and input from the Department than he got. He became both demanding and dissatisfied.
The behaviour and emotional stability of the children was adversely affected by the mother’s absence, by the father’s methods of parenting, and by his confronting approach to the Department.
This is reflected in the observations and recommendations of the Family Consultant. In February 2014 the Family Consultant recommended that the best course was the children to remain living with the father. Six months later the firm recommendation was that the children leave the father’s care and go to live with the maternal grandparents in Queensland.
The father has some basis for discontent about the sudden removal of the children from his care in October 2014, but he clearly understood that his increasingly dramatic attempts to obtain more help would provoke a response from the Department. For instance, his statement that he would have to “dump the children at DOCS”. He miscalculated what the response would be.
The Mother
The mother is aged 41 and has undergone considerable change since the parties’ separation in June 2012.
Her position before the Court was supportive of the continuing involvement of the Department. She was hopeful about having the children come to live with her as soon as reasonably possible, but supportive of the maternal grandmother’s view that a gradual transition commencing with regular sleepovers would be the appropriate way to go about that transition.
When the parties first separated the children lived with the mother for a little over a year. Consent Orders were made confirming that arrangement however, when the mother was taken to hospital for treatment for the consequences of abuse of alcohol, the children then moved into the father’s care, where they remained for about 16 months.
The mother made a decision to address her dependence on alcohol which must have been a difficult one. She moved to Queensland without the children and focused on achieving sobriety, which she has done. She has also engaged in programmes of education about the impact of domestic violence on children.
The parties’ relationship was one adversely affected both by her own alcohol abuse and the angry, conflicted and violent home environment.
The mother lived with the maternal grandparents from her arrival in Queensland in August 2013 until October 2014, when she moved out as a condition of the children coming to live in the maternal grandparent’s home.
Of some concern is the mother’s current relationship with a man identified as “Mr Q”, which she described as “on hold” as a result of the Department having asked the mother to request a Criminal Record Check on him.
The mother has immersed herself in the Alcoholics Anonymous organisation, which is where she met that current partner. The mother was open and willing to make concessions about her own past conduct using alcohol if “things were hard or I was struggling or unhappy”. The mother herself has now become a drug and alcohol counsellor with Alcoholics Anonymous and enjoys that commitment.
The mother has also focused on ways of learning to deal with the children’s extremely challenging behaviours. They have all used profane and insulting language directed at her, “you’re a f…ing alcoholic c…, when will you be a proper mother, you’re an alcoholic”. Importantly, the mother has learnt not to take such conduct personally but to literally embrace the children and help them to step back.
The mother was thoughtful and considered in her responses, impressive in her willingness to make admissions against interest, and also in the extent to which she seemed to understand the need of each individual child to improve family relationships in his or her own way.
She acknowledged it would be a mistake to walk out of the court room and expect to uproot the children from one house to another. This is the most appropriate concession given that the children have been disrupted without notice three times in the last three years from their home and school.
The mother went through the experience of being cross-examined by the father, quietly answering “yes” to the question “did she feel threatened by the father” in that setting.
The mother gave a thoughtful answer to the questions from the father as to whether he was the cause of all the damage. She said this:
I don’t blame you that I drank. I would say that the damaging things that have happened in the last 10 years have been down to your behaviour and the domestic violence I lived through.
When asked why she had then stayed in the relationship, the mother said, and I accept:
You convinced me you were going to change, you wanted the “baby” [referring to the parties’ first child] and I came back.
The mother went on to say that she had throughout the relationship hoped that things would become different and better, the violence would become less and then gradually become worse.
The mother reached her own lowest point when Orders were made for the children to leave her care and live with the father in mid-2013, but she knew she needed help and has been actively seeking that help in the two years since with the assistance of a friend and then the on-going support and assistance of the maternal grandparents.
The mother willingly conceded that when the children were living with the father, “they had happy times in [M Town] but they missed me a great deal”. Likewise the mother volunteered that three out of four of the children had mentioned to her that they missed the father and wanted to spend more time with him.
The father pressed the mother about her failure to arrange the children to purchase cards and small gifts for him. The mother replied in a heartfelt way, “the best I can do is to let them know we both love them, we will always be their parents”. Further, she expressed the view that conversation was much more important than a card.
I infer that the mother was saying to the father that the children needed his undivided attention, to be listened to, and that this was much more important that symbolic gestures.
My overall impression of the mother is that she has always been committed to the children but resorted to abuse of alcohol to overcome emotional difficulties. She has become clear sighted and is working hard to focus on the children’s future whilst supporting interventions designed to repair the impact of the past.
The mother’s formal position on very limited time between the children and the father is understandable but does not reflect her willingly expressed knowledge of the children’s needs and wishes, especially the eldest child’s longing for more time with the father.
The Maternal Grandfather
The maternal grandfather is in his early sixties.
He had not anticipated taking on the full time care of his four grandchildren in 2014, although he did so willingly. He also initially could not comprehend the wild, destructive behaviour of the children and doubted his own ability to cope.
His relationship with the father is extremely poor and he relies on the maternal grandmother to have whatever dealings are necessary with the father whom he clearly finds intolerable. Unfortunately the maternal grandfather has made remarks about the father in front of the children which have not been helpful for them.
When the children were observed by the Family Consultant with the father on 16 July 2015, he noted that the children had said to the father, “you weren’t in the [defence forces] were you Dad? Poppy said you weren’t”.
The maternal grandfather went on to explain what he had said to the children about his knowledge of the father’s military service and that there had been a misunderstanding. However, it is clear the children could be under no misapprehension about the mutual hostility between the father and maternal grandfather.
The maternal grandfather has undertaken counselling and learned of the explanations for the children’s behaviour. They had come unwillingly to his household, had screamed obscenities, and tried to punch him. His initial reaction was to contain and punish them, but he has learned to listen to them affectionately and to reward good behaviour.
I consider it unlikely that the maternal grandfather will be able to contend with the father in future. When he was asked by the father during cross-examination whether he had rung the father to get his input on how to manage the children’s behaviour, the answer was instructive, “I want no contact with you, no you shout at me hysterically after 2 minutes” and later “I can’t deal with you, you are way too upsetting”.
I formed the impression that the maternal grandfather has been a positive influence in the lives of the children. He is a jeweller by occupation and some of the children have been interested to learn that trade and the tools associated with it.
He is a hard-working man with his own business and has maintained that commitment to the financial support of the family, despite emergency calls on his time related to the children.
The Maternal Grandmother
The maternal grandmother is in her early sixties.
She was a most impressive witness. She remained calm and thoughtful throughout the cross-examination, and was firm in her responses.
No doubt it was a shock to her that the mother came to her home in 2013 to live with them in circumstances where she had lost custody of the four children and was admitting to being an alcoholic. The second shock was the children coming to live in her home at very short notice.
The maternal grandmother rose seamlessly to the challenge. She describes herself as cooperating together with the mother well and working around the children’s needs to help and support them.
She was challenged in cross-examination by the father as to why he had not received photographs, school documents and other information about the children. The maternal grandmother calmly told him that she had not communicated with him because of his own reactions.
The maternal grandmother, together with the maternal grandfather, received 24 hours of notice that the children were coming to live with them. The maternal grandmother was engaged in a course which she stopped. She travelled to New South Wales and picked them up from school. She has been dealing with their reactions and behaviour ever since.
The maternal grandmother described the children, at Christmas 2013, as fighting, throwing rocks at each other, being threatening, and picking up knives in a threatening way.
Although the Queensland Department have been in constant contact with them by telephone, it has been up to the maternal grandparents, and to some extent the mother, to manage the children’s needs.
The maternal grandmother described an incident in April 2015. One of the children had apparently touched a button on a telephone which rang the father’s number. The maternal grandparents had been unaware of it. The maternal grandmother received a telephone call from the paternal grandmother to say that the father had been upset that he had been contacted by telephone and no message left. Subsequently the maternal grandmother received a telephone call from the local Police to say that the father was very upset about the telephone call. She then received a telephone call from J Town Police with the same message.
The maternal grandmother reached a point where she could not accommodate the father’s reactions to matters which were of least significance in her very full household.
When the father admitted himself into R Hospital and posted certain pictures and statements on social media, the maternal grandmother assumed he had had a mental breakdown and was appropriately concerned for the children. For that reason, she supported the Department in restricting contact between the children and the father fearing that they could be at risk.
Although the maternal grandmother has skills and abilities which enable her to communicate calmly with the father, she has long since gone past the point of where she could tolerate unrestricted contact by him.
An order has been made in the past restraining the father from making contact other than in accordance with orders, and for the sake of stability of the children, that order must continue.
I have no doubt that the maternal grandmother is able, and will continue to, support and assist the mother in every way she can and will continued to be actively engaged in the lives of the children to their great benefit.
Family Consultant
The Family Consultant prepared four Reports, the last one of which was an oral report given during the course of the hearing, just prior to his cross-examination. The interviews for first two Family Reports were undertaken when the children were living with the father. For the second two Family Reports, the children were living with the maternal grandparents.
The fourth interview was ordered by the Court in response to the father having chosen not to attend for the interviews for the Third Family Report. Instead the father chose to admit himself to the mental health unit of a hospital and publicise that fact on social media. In my view the father, by taking this course of action, was protesting about the children having been removed from his care after recommendations were made in the Second Family Report for that to happen.
The Family Consultant referred to the observation of the father with the children on 14 July 2015 as a chaotic scene, although the children were calm and ordered in their behaviour before and after the observation. It was the opinion of the Family Consultant that the children use the method of “who has the loudest voice”. The person who is most disruptive gets the most attention. His opinion was that the children had no conflict resolution skills at all and that they needed to unlearn such behaviours.
The Family Consultant was clear in his view that there was a risk of psychological harm to the children as a result of family dynamics:
It will take a long time for all the parties to realise that conflict between them will cause psychological and emotional harm to the children.
He was supportive of time between the children and the father being overseen by a qualified supervisor for a period of time, at least six months, and considered that the children would be overjoyed by the end of the litigation.
The Family Consultant’s evidence focused on the need for the father to enter a therapeutic relationship. His opinion was that there was nothing from which to draw a conclusion that the father had a mental health illness however, he could have some sort of personality disorder.
The Family Consultant strongly recommended in his oral report, and directly to the father during cross examination, that the father needed to reflect on his own reactions and escalations and consider dialectical behaviour therapy. He was asked whether in his view the father was likely to undertake such therapy and his response was, “I think if deep in his heart he wants a constructive relationship [with the children] I believe so, he will”.
If he was wrong about that, the Family Consultant was certainly concerned about limited prospects for relationships between the children and the father becoming more positive. His recommendation was that contact should take place, supervised, on a monthly basis, with a qualified supervisor.
The Family Consultant also raised for special consideration the situation of the oldest child, and the only boy, who is apparently craving more time with the father and time alone with the father, rather than in chaos of the group of four.
His recommendation in that regard was that the children be seen by the father in two groups; the two older ones together and the twins separately. He expressed the view that this would be far more enjoyable both for the children and the father.
It is of some concern that the Family Consultant outlined that he had received an excessive number of texts and telephone numbers from the father and that prior to the interviews in April 2015, he had received a series of texts in a 24 hour period with the father accusing him “of trying to ruin his relationship with the children”. Ultimately, the father, through his brother, sent a message to the Family Consultant about attendance at the interviews, “he won’t be there”.
The Family Consultant expressed the view that the father can be quite verbally aggressive and intimidating. Indeed he has displayed those tendencies in Court at times.
This behaviour was part of what informed the recommendation for behavioural therapy for the father, given the view of the Family Consultant that the father needed to change and learn to negotiate systems and resolve conflicts. The primary deficit identified was that the father “does not reflect on how his behaviour impacts on others”.
An example of this is the father choosing not to attend the interviews, sending a late message that he would not be there, then appearing at Court complaining that there needed to be a further interview and observation of him with the children because he had been unable to attend as a result of being in hospital. In fact, he had chosen to admit himself to hospital and had done so knowing he would miss the interviews.
If he gave any consideration to the disruptive impact on the children of having to miss school and travel to New South Wales in order for a further observation to take place, it was not reflected in his conduct of the proceedings.
In relation to the proposed therapy, the Family Consultant spelt out exactly what would be required directly to the father in response to questions asked by him in cross-examination. Specifically, entry into a therapeutic relationship as a matter of priority with a commitment by the father for one to two years with that therapist. As part of the process the therapist would deal with emotional regulation of the father, his responses to other adults, and his responses to the children with dialogue between that therapist and the therapist seeing the four children by way of case conference organised by the Department, or in any other effective method organised by the relevant therapist.
The Family Consultant explained to the father that his own poor self-regulation meant that he was unable to have rational discussions with people, but rather there were explosive episodes from which he then withdrew, feeling defeated.
The children have been exposed to psychological harm from being exposed to family violence during the course of the parties’ relationship. They have also been exposed to psychological harm between February 2012 and October 2014.
Ms N - Family Worker and Parenting Facilitator
Ms N delivered parenting programmes and family case management for the father and the children when they lived with him. She also provided some parenting instruction to the mother in May 2014 by arrangement with the Department. She provided assistance directly and through recommendations of programmes such as Triple P Parenting and Anger Management.
Ms N noted that the father would appear unannounced and without appointments at her office, both with and without the children.
There appears to have been a tension between Ms N’s role in assisting the father to improve his parenting skills and the father’s expectation that Ms N would provide assistance for him in managing the children’s behaviour.
Ms N’s observation was that the father had periods where he was able to cope well with the children and periods when he struggled to manage their behaviour. He found it difficult to deal with the emotional needs of the children and their rivalry with each other. This is consistent with the observations of the Family Consultant.
She also observed his inappropriate and unregulated comments about the mother, sometimes in the hearing distance of the children. On one occasion denouncing the mother as a bad mother because she had provided the children with lollies.
In his cross-examination of her, the father’s questions revealed the extent of his difficulties. He proposed that:
[F’s] behaviour was really, really, bad, using a knife, kicking and screaming but [H] had had to be physically laid down in the kitchen by [Ms N] to enable her to calm down, that [E] had run out the door and ignored directions.
There was this exchange:
Q: Do you believe I learned and applied techniques?
A:We went over and over parenting techniques, many times, many times.
I conclude that Ms N provided a considerable amount of information to the father and at times, hands on assistance, but I infer that during the time she was involved with the family, Ms N considered that the father continued to have difficulty managing the behaviour of the children effectively.
Ms O - Child Protection Caseworker
For two years from April 2012 to April 2014, Ms O had the casework responsibility for the four children. Accordingly, she saw them in the care of both parents; in the exclusive care of the mother, and in the exclusive care of the father. She noted that in the six year period between November 2007 and September 2013 Community Services received more than 80 Risk of Harm Reports in relation to the children.
The Department was continuously involved with the family from the time the twins were born and provided what was described as a “high level of financial assistance”, including paying for the mother to attend rehabilitation and paying child care fees for the children.
The Department had a difficult conflict. The mother having relapsed into alcohol abuse after rehabilitation but continuing as primary carer; the father being the subject of Apprehended Violence Orders in 2008 and 2010 and in April/May 2012 for the protection of the mother. There was also a protective order considered for the children from the mother.
The tension between domestic violence on the one hand and neglect of the children through the mother’s alcohol abuse on the other influenced the Department’s decision making throughout those years.
Ms O agreed that the children appeared to have been well cared for by the father in the period from July 2013 until April 2014 when she ceased involvement as the family’s caseworker. The father used his cross-examination to highlight his often repeated view that the Department had provided more assistance to the mother when the children were in her care, than they did to him when the children were in his care.
It is apparent that the Department considered the father to have been a perpetrator of domestic violence over many years and were uneasy about the safety of the children in his care given his ongoing critical attitude towards the mother. It is also apparent that the Department had under consideration at all times the prospect of removing the children from the father’s care if there were ongoing Risk of Harm Reports.
Ms O freely conceded that the children appeared to settle and do well at school.
Ms P - Child Protection Caseworker
Ms P has been the caseworker for the family from 7 April 2014 and continuing. She took over the casework from Ms O.
During the course of his cross examination of Ms P, the father learned that the children had been removed from his care, at least to some extent, on the basis of his own reports, “your increasing emotional escalation tipped it over”. However there is no doubt that the Second Family Report recommending that the children live with the maternal grandparents in Queensland was taken into account as well as the children’s own statements that they were missing the mother and wanting to be with her.
Ms P agreed that there had been no reports of trouble at the contact centre in Queensland, I House, but rejected the proposition that the Department should have no concerns about the father’s behaviour.
Ms P identified the telephone calls to the office by the father saying he did not want to return the children were a matter for concern. The father, by his own questions, conceded that he had rung her on a number of occasions because “he didn’t know what he couldn’t do”.
The father cross-examined Ms P extensively and it is apparent that he was then, and still remains, highly critical of the Department’s decision making and of their perceived failure to support him after the children were removed. Ms P explained that the primary role of the Department is to care for children and to support the parents in that context.
The father asked Ms P whether she was frightened of him. She conceded some concerns. He asked whether his emotion was the issue and Ms P agreed that it was and in relation to telephone messages and emails, that his emotional volatility was a concern for the Department. That concern materialised in a protective order for the manager of the S Town office, which is still in place.
The father put a series of propositions to Ms P and Ms T, the casework manager, that they:
Had failed him and the children; had left him out in the cold; had been vindictive towards him and had always helped the mother but had left him alone.
His resentment was on display and there was no indication of insight into the impact he must have had on Departmental officers for a state protective order to be sought and granted.
Ms P also agreed that the children had settled well at school and that the reports about them were good.
Ms U - Contact Supervisor V Group
Ms U was an articulate and impressive witness. She expressed her willingness to continue supervising if that was required of the service she works for.
She agreed that she offered the observation that the father had been frustrated by the children not listening to him and arguing with each other.
She gave an insightful answer to the father’s question as to whether the children had been happy with him during supervised visits:
They were excited but I don’t know about happy. The children were stressed, unhappy, demanding, [E] was really wanting your time.
There was an incident where the father brought the children together and raised the possibility of terminating the visit. Ms U remembered the incident and described it in this way:
You were upset and angry, yelling at the children. One of the children said to you “stop crying, if you don’t stop I walk away”.
The father then became very emotional and expressed the opinion that there was not much point in being a father. Again, insightfully Ms U said to the father from the witness box, “your own emotional state was getting away from you and you couldn’t bring it down as you’d hoped.”
She then went on to comment that the decision to move on and take the children to the markets had been an appropriate and effective one, “you get so stressed, that’s a stumbling block for you. Other than that I’ve seen positive interactions”.
Again this evidence was consistent with the observations of the Family Consultant, Departmental workers and the father himself.
The Law
The objects of the Act in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order, that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents and, as a priority, the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence
The children do enjoy meaningful relationships with both of their parents. The mother was their primary carer until mid-2013 and is assessed to have provided them with nurturing care, although not consistently. The father was actively engaged in their life whilst working full time to support the family.
The children have been exposed to psychological harm through a degree of neglect and from exposure to family violence.
Since the birth of the two youngest children there have been several protective orders put in place for the mother from the father, despite which there were years of intermittent reconciliation between the parents with deterioration into violent arguments and explosive criticism by the father of the mother.
The need to protect the children from physical or psychological harm has priority over the benefit of meaningful relationships.
The children are presently in a safe and protected environment in the care of the maternal grandparents, under the supervision of the Department. Their relationship with the mother has been restored and strengthened.
Additional Considerations
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
There are four children: a boy aged almost 11 years; a girl aged nine; and the two younger twin girls both aged seven.
First Family Report
The children had the first opportunity to express their views to the Family Consultant in February 2014. At that time they had been living with the father exclusively for six or seven months.
E recalled his parents shouting at each other and believed that the mother provided a little bit more of the care because the father was working. He had strong recollections of the mother being intoxicated and asleep on the couch with the father coming to cook the evening meal.
E was content living with the father and felt he had an affectionate relationship with both parents. He strongly wished to see more of the mother at that time.
F had a clear memory of her parents fighting and yelling at each other when they were together and that she had felt scared. She recalled the mother passing out on the couch and the father putting the children to bed. She said that the father looked after the children well but “he shouts at us, it’s bad.” She also referred to the father holding her tight, squeezing her hand and on occasions pulling her into her bedroom.
She expressed a clear view about missing the mother and wanting to see her more often. She preferred her methods of disciplining. She longed for her parents to get on “really, really well”. F, like her brother and sisters, was missing aspects of the mother’s regular care.
H remembered her parents fighting all the time when they lived together and had a specific memory of the father throwing a telephone against the wall. She remembered the father’s abusive language directed to the mother. She too commented on the father shouting at them, “I don’t like it”.[5]
[5] First Family Report, par 53
Likewise H was missing the mother and enjoyed spending what time she could with her.
G became extremely distressed when the mother left the observation room and did not express any views.
Second Family Report
For the Second Family Report the children were interviewed in August 2014. The children had by then been living with the father for about one year.
E was clear to tell the Family Consultant that he missed the mother a lot. He was clear about having enjoyed spending time both with the mother and maternal grandparents in Queensland.
E was feeling aggrieved about one occasion of excessive physical discipline by his uncle with no intervention by the father. He commented on the father’s tendency to grab the children hard and sometimes hurting the girls, in E’s view. He was equally upset by the denigrating statements the father made about the mother, calling her “an alcoholic” and rhetorically asking the children “how do we know she hasn’t been drinking”. E commented that the mother did not make critical statements about the father to him.
F reported that she missed the mother, enjoyed her time in Queensland and felt safe there. She reported that she sometimes felt frightened when the father yelled at her and grabbed her on the arm. F wanted to go to live with the mother. She also reacted very positively to the maternal grandmother being present for the interviews.
The two younger children did not express any views.
Third Family Report
For the third report the children were interviewed in April 2015. They had by then been living with the maternal grandparents for six months.
The father did not attend for this set of interviews for reasons set out elsewhere in this judgment.
The four children were observed by the Family Consultant with the mother, maternal grandparents and paternal grandmother, but views were not sought.
The three girls were observed to be very attached to the mother, who appeared to be nurturing and responsive to their needs, but to have clear boundaries when their behaviour became unruly.
Fourth Family Report
On the fourth occasion when the children were observed with the father in July 2015, they had by then been living with the maternal grandparents for about nine months.
They all greeted the father affectionately.
Although no views were expressed, observations were made. G demonstrated a great deal of affection towards the father. F held herself aloof from her siblings and the father. H was observed to be aggressive and challenging with the father and her brother and sisters.
E is reported to have:
Just wanted the singular attention of the father and the conclusion I drew from that was that he would benefit greatly from spending one on one time with his father in the future.
E was noted to be very challenging on that day.
The Family Consultant referred to a level of immaturity in E that he had not observed before. This appeared to relate to the intensity with which E wanted the undivided attention of the father.
I conclude that the children all suffered emotionally from missing the mother between July 2013 and October 2014 and that it was a shock to be transferred from the father’s care to the care of the maternal grandparents, but that they have all appreciated being able to spend increasing amounts of time with the mother as they had been used to doing prior to 2013.
It is apparent that the children have individual reactions to the father; E craves his attention and time, as does G; F and H have put up some emotional barriers.
The view expressed by all children that they were able to remember the parents fighting, and wished it would stop, is still a significant matter for all of the children. Although they are no longer exposed to their parents’ conflict, they are conscious of the father’s hostility towards the maternal family and particularly the maternal grandfather.
It would be appropriate to give substantial weight to E’s wish to spend some exclusive time with the father, however, the father is opposed to the separation of the siblings and prefers to keep them as a group.
However, given E’s situation it would be appropriate for there to be the possibility of some time, if not alone, with his next sibling F, to improve the quality of the time that is spent.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
It is apparent that the relationship between the children and the mother has been restored and improved as a result of her efforts to achieve and maintain sobriety.
The relationship with the father is still very much alive but the children are so competitive with each other for his time that time spent is chaotic and frustrating. The significant matter is that they love the father and want to maintain their relationship with him.
The children have important, loving relationships with both of the maternal grandparents and with the paternal grandmother.
The maternal grandmother appears to have the most effective skills in helping the children to unlearn their rowdy, competitive behaviours and to learn conflict resolution skills. She has rules and set boundaries that have helped the children to settle and relate to each other in a better way.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
On 11 September 2013 the Department assumed parental responsibility for all four children. Since that time, decisions have been made by Departmental officers.
Both of the parents, and particularly the father, would have liked to have participated in that decision making process. It is apparent that the father did not know that the Department was intending to remove the children from his care and place them back into the full time care of the mother when it was safe to do so. The decision was taken to remove them earlier, before the mother was ready, for reasons relating to the ability of the father to cope as a sole parent.
Prior to the Department assuming parental responsibility, each of the parents were participating and making some decisions about the children.
The mother was unable to make a decision to end the relationship which was destructive for her and opted out, to some extent, of decision making through abuse of alcohol.
The father made decisions to maintain his relationship with the mother despite having separated and even more significantly, despite the existence of apprehended violence orders restraining him from being in contact with her. The father chose to return to the house to care for the children and the mother felt powerless to assert her authority in the matter.
Each of the parents has always wanted to spend as much time with the children and to communicate with as often as it was possible to do.
There is no lack of commitment to the children in either parent.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The father was in full time employment and supported the children prior to separation of the parents in 2012 and thereafter.
Currently, the burden of accommodation and provision for the children falls on the maternal grandparents, with some support from the Department.
The mother’s intention when she is in a position to do it is to re-enter the workforce and if possible, obtain private rental accommodation for herself and the children.
When the mother assumes parental responsibility and perhaps before, the father may resume financial contribution to their needs which will be a significant benefit.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The proposal agreed to by all parties, other than the father, is that the children will gradually make the transition from living with the maternal grandparents to living with the mother. That will take place over the coming 6-12 months.
The children have been sensitised to change of residence by first living with the mother for 12 months in circumstances where she was not always fit to provide care as a single parent; then living with the father where he was not able to manage their behaviour as a single parent; then moving to live with the maternal grandparents which made them resentful and anxious, at least initially.
The transition of residence will need to be very carefully managed and be subject to the mother’s maintenance of her current satisfactory state of health and abstinence from alcohol.
It is for that reason that it is most important for the Department to remain in the sole parental role for the next twelve months of transition and that time between the children and the father is supervised until the transition is complete and they have really settled into the care of the mother.
The practical difficulty and expense of a child spending time with and communicating with a parent
The maternal family live in South East Queensland. The father lives on the North Coast of New South Wales. There is an eight hour trip involved between the relevant households.
It is clearly too far for the children to travel to spend time with the father and the father appears to accept that. That is not to say that he does not want holiday time with them. He does.
Providing the father continues to be willing to travel to Queensland, time can be spent in the general vicinity of the children’s home.
The father indicated no present intention to move closer to where the children live and Orders have been made on that basis.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The capacity of the mother to meet the needs of the children has been restored through her own efforts. She is available to meet the children’s needs, to support them in their education, to understand their behavioural problems, and the way forward for addressing them. Her methods of discipline are calm, boundary setting and she is able to listen in an engaged and affectionate way.
The maternal grandparents also have those skills, although there was a period of adjustment and learning for the maternal grandfather when the children first came into his household.
The father’s capacity to meet the children’s emotional needs is limited by his own lack of insight into the impact of his behaviour on others.
The father has an aggressive, confronting style of dealing with people. He demands attention for himself or for his children and will not step back. He appears to regard this conduct as a strength that he is “going in to bat” for himself or the children and will refuse to be deterred. The expert evidence suggests that this approach leads to the father constantly feeling disappointed, frustrated and let down by others.
His own distress also overwhelms him at times. He becomes tearful when the children compete for his attention and affection, leading to rapid escalation into chaos with resultant yelling by the father and reproach of the children by him for their behaviour.
I accept the evidence of the Family Consultant that the father needs to address his behaviour with an expert therapist who can help him to understand his impact on others and to reduce his focus on perceived slights and obstruction.
The children love him and E in particular longs for his company and attention, but his capacity to meet their needs growing up is limited by his own behaviour and personality.
A very clear way forward was recommended by the Family Consultant and it will be a matter for the father to consider whether that is the course he takes.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The children are a group of siblings, very close together in age.
They are capable of doing well at school.
They have been emotionally damaged by their parents’ relationship, by the disruption to their lives in terms of where they live and where they go to school.
They have been hurt by the father’s criticism of the mother in the past, and increasingly embarrassed by the father’s inability to contain himself emotionally and to manage them.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The children came into the world in quick succession.
The mother suffered from post-natal depression after the birth of the two youngest children. The evidence suggests she was overwhelmed by the task of caring for four children under four, which is hardly surprising.
The father met his responsibility by providing financially, however he supported the mother in her drinking, even encouraged excessive drinking. The reason for doing so, for at least to some extent, was that he wished to call attention to the fact that the family was falling apart and the children not receiving best care through the mother’s excessive drinking.
It was a poor judgment call which contributed to severe ill health for the mother and neglect and disruption for the children.
Any family violence involving the child or a member of the child’s family and 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
There have been several family violence orders, most of them for the protection of the mother from the father.
The father disclosed Apprehended Violence Orders were made for two previous partners prior to his meeting the mother.
The father’s view is that he has tried to help three partners, including the mother, which has only “got him into trouble”. This is another aspect of the father’s identified lack of insight into himself.
There is also significantly a protective order for the case manager of the Departmental office which deals with this family, protecting the manager from the father. This is as a result of his persistent, overwhelming demands for attention and priority and a threatening manner of insisting on having his needs met.
The current protective order for the mother from the father expires in February 2017.
It is crucial that the stability of the mother not be disturbed to any extent whilst the transition process for the children is underway.
There is no suggestion that the father has breached this order however, he has on his own admission breached such orders in the past. The evidence suggests that he returned to the family home to care for the children when the mother was unable to do so, which ameliorates the significance of his non-compliance with the order, however, it does suggest that the father’s makes his own decisions about compliance with orders based on his own judgment.
For that reason it is important for supervision of his time with the children to continue until both current Apprehended Violence Orders have expired.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
Orders will be made to provide arrangements until each child turns 18 years. However there is at least some possibility that the father will engage with therapy in the way that was recommended by the Family Consultant and will achieve a level of insight about his behaviour and the management of the children which could arise to a more expansive regime of time between the children and the father in future.
For the reasons set out, Orders have not been made predicated on the assumption that the father will do so, or that if he did he would inevitably complete such therapy and benefit from it.
Accordingly, a further application by the father to reflect such a change of circumstances would be required unless all the relevant parties could agree.
Any other fact or circumstance that the court thinks is relevant
The attitude of the father to the Department is presently a hostile and bitterly resentful one. It is appropriate for an Order to be made for the release of these Orders and Reasons for Judgment to a suitably qualified therapist for the father in the event that he engages in therapy.
Conclusion
The father did not pursue his application for the children to return to live with him. He was willing for the children to continue living with the maternal grandparents, expressing strong confidence in the capacity of the maternal grandmother to care for the children really well.
The father was less confident about a premature transfer of residence to the mother. He expressed realistic concern about her ability to manage the four children and not to relapse into dependence on alcohol for at least for 2-3 years.
All other parties were united in support of the children moving to live with the mother within six to 12 months. There were minor variations of position on how long the Intervener should continue to have sole parental responsibility.
There were more significant differences on how much time and communication the children should have with the father, with particular reference to ongoing supervision of that time.
The Independent Children’s Lawyer proposed orders for a therapeutic intervention for the father (after an assessment of his mental health/personality and suitability for referral to an identified therapeutic program). Thereafter more time and unsupervised time could follow at the discretion of the Department based on therapeutic reports. The recommendation was squarely based on the evidence of the Family Consultant, which I accept, that the father would benefit immensely from such an intervention with possible improvement over time in his capacity to understand and meet the needs of the children.
However the father himself did not reach the point of embracing the recommendation. He said “I take on board what [the Family Consultant] said … happy to take on the course”. I could not conclude from such general statements that the father understood the level of commitment required or that he intended to be assessed and engage with the type of ongoing challenging dialectical behaviour therapy identified by the Family Consultant, with a view to changing not only his behaviour but his own self.
That is his right and those are decisions for him to make.
To make coercive orders would be ineffective and risky. The father might be assessed as unsuitable; could attend but not engage; merely pay lip service to something imposed not chosen; could attend, engage but not benefit.
During submissions the father made reflective admissions about himself such as “I appreciate damage I’ve done to the mother … the mother made a poor choice in meeting me” and referred to himself as “a bull in a china shop who brushed people up the wrong way.”
However he was mostly focused on the failings of the Department, “I have an extreme hatred for them”, and his perception that he had been harshly treated by Departmental officers, that his pleas for help had been ignored, and his care of the children underrated.
It will be a matter for the father what he decides to do, if anything, in relation to therapeutic intervention. My obligation is to make orders based on the evidence before me not on the possibility of change.
Orders
The Orders provide for the Secretary to have parental responsibility for a further three years; solely for the first 12 months, thereafter shared with the mother and maternal grandparents. This is one year less than the period proposed by the Intervener and two years more than the mother would like.
Assistance from the Intervener is essential for supporting the children during transition into the mother’s care and stabilising their position thereafter. Three years in total should be long enough to achieve that goal; any longer would be a discouragement.
The Orders acknowledge the transition for the children to living with the mother over the next 6-12 months.
An Order is made for the mother to abstain from alcohol based on the evidence that she has already made and maintained that decision, and on the profoundly adverse consequences for the children if sobriety was not maintained.
Orders are made for the children to spend monthly time with the father supervised at first, progressing to two whole days unsupervised on a monthly basis. Provision has been made for two days if the children are seen in groups of two. If the father maintains his present opposition to that course the Orders provide for one day per month as a group, due to the evidence of chaos and frustration for the children in that situation. Two days like that would be helpful to them.
The extent to which the children have been damaged by disruption to their lives combined with the father’s inability to calmly manage them for longer periods militates against weekends and holidays at this time.
This could lead to a further application by the father in the event that his circumstances change positively though therapeutic intervention.
Eighteen months of monthly supervised time will allow the children to see the father whilst maintaining stability through the proposed change of living arrangements. At the end of that period, protective orders will have expired.
There are Orders restraining conduct in order to prevent the children from being exposed to criticism of members of their family, misinformation and intrusive questioning about events in their household.
There are Orders for provision of the Reasons of Judgment and certain reports to third parties for the benefit and protection of the children.
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I certify that the preceding three hundred and four (304) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 31 August 2015.
Associate:
Date: 31 August 2015
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Injunction
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Consent
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Procedural Fairness
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Judicial Review
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Standing
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