Becket and Peel - [2010] FMCAfam 1424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BECKET & PEEL

[2010] FMCAfam 1424

FAMILY LAW – Interim application concerning two children aged 11 & 8 – where the children have lived with the mother since separation seven years ago – where the children have spent little time with the father since April 2010 after the mother made a unilateral decision that this should not occur – where the mother has filed a Notice of Child Abuse alleging that the father has abused the children – where the mother has re-partnered on two occasions since separation with violent men – where the expert’s report prepared in the matter recommends that the children be immediately removed from the mother and placed with the father – whether a change of residence should be ordered on an interim basis.

Family Law Act 1975, ss.60CC, 65DAA

Goode & Goode (2007) 36 Fam LR 422

Applicant:

MR BECKET

Respondent:

MS PEEL

File Number:

NCC 2190 of 2008

Judgment of:

Terry FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Newcastle

Delivered on:

8 December 2010

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Guyder

Solicitors for the Applicant:

Braye Cragg

Solicitor Advocate for the Respondent:

Ms Chapple

Solicitors for the Respondent:

Harris Wheeler

Solicitor Advocate for the Independent Children’s Lawyer:

Ms Matheson

Solicitor for the for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS – 6 DECEMBER 2010

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Orders made in the Federal Magistrates Court at Newcastle 22 March 2010 are suspended.
Until further order the children, X born … 1999 and Y born … 2002 live with the father.
The children spend supervised time with the mother at the A Contact Centre at Suburb L on one day each fortnight for a minimum of two (2) hours and to facilitate such time:
(a)Each party must:
(i)Contact the A Contact Centre at Suburb L within seven (7) days to arrange an appointment for assessment for suitability for supervised time.
(ii)Attend the assessment.
(iii)Comply with any appointment made by the A Contact Centre at Suburb L for supervised time.
(iv)Comply with all reasonable rules of the A Contact Centre at Suburb L.
(v)Comply with all reasonable requests or directions of the staff of the A Contact Centre at Suburb L.
(vi)In the event that A Contact Centre at Suburb L offers supervised time at times and frequency different to what is specified in these orders then the time shall occur at the times that are offered by the Contact Centre.
(vii)If A Contact Centre at Suburb L following its intake procedure is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
(b)If the parties are accepted by the A Contact Centre at Suburb L intake procedure then the mother is to spend time with the children each alternate Saturday at times nominated by the A Contact Centre at Suburb L and such time is to be implemented by the father delivering the children to the Contact Centre at the start of the time and collecting the children from the same place at the end of time spent.
(c)The parties shall each pay the fees nominated by the A Contact Centre at Suburb L for the provision of its service.
In the event that the A Contact Centre at Suburb L is not available until after 24 December 2010, the parties will do all acts and all things necessary to arrange for the mother's time in Order 3 herein to be supervised by Ms B until A Contact Centre is available.
The father is restrained from allowing the children to attend upon any counselling services other than at the Child Dispute Services of the Family Court.
The mother is restrained from spending time with and contacting the children, or attempting to spend time and contact the children, outside of Court Ordered time.
Both parties are restrained from doing any of the following:
(a)Using physical punishment to discipline the children and from allowing any third party to do so;
(b)Making critical or derogatory remarks about the other party in the presence or hearing of the child and from allowing any third party to do so;
(c)Discussing these court proceedings with the children and in the presence or hearing of the children and from allowing any third party to do so;
(d)Exposing the children to domestic violence.
The mother is permitted to write letters to the children no more than once a fortnight, to be facilitated by the mother forwarding the letter to the Independent Children's Lawyer for appropriateness and the Independent Children's Lawyer forwarding the appropriate letters to the solicitor for the father to provide to the father.
At the conclusion of these proceedings, the Manager of Child Dispute Services will arrange for a family consultant to explain the nature and effect of these orders to the children.
The father is at liberty to contact the Manager of Child Dispute Services to obtain the assistance of a family consultant in relation to assistance with compliance with these orders
The mother will vacate the Family Court precinct as soon as the proceedings are concluded on 6 December 2010.
The mother will provide the children’s clothing, personal belongings and medications to her solicitor by 12.00 pm on 7 December 2010 to be collected by the father’s solicitor and provided to the father or his nominee by close of business 7 December 2010.
The father shall ensure that X continues to take his Ritalin medication at 8.00 am, 11.00 am and 4.00 pm each day until such time as the father is advised by a paediatrician that the medication should be varied as to dosage or ceased.
The father be at liberty to make a decision about whether the children’s enrolment at their current school continue or whether the children are enrolled at a different school.

ORDERS – 8 DECEMBER 2010

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Until further Order the father have sole parental responsibility for the children X born … 1999 and Y born … 2002.

THE COURT FURTHER ORDERS THAT:

Ms C is requested to provide an updated report to take account of the change in the children’s residence on an interim basis with such report to be released by 29 April 2011.
The matter is listed for mention at 9.30 am on 9 May 2011 following the release of the Expert’s Report.
Each party file and serve any amended application and response and any affidavits on which they intend to rely at the hearing by 4.00 pm on 13 May 2011.
Unless eligible for a fee waiver or exemption, the applicant is to pay to the Family Law Courts at Newcastle the setting down for hearing fee of $444 by 13 May 2011.
The applicant is also required to pay not less than four (4) working days prior to the hearing date the daily hearing fee of $444 for each additional hearing day after the first day of hearing.
Each party file and serve an Outline of Case document by 4.00 pm on 19 May 2011 setting out:
(a)a precise minute of order sought;
(b)a list of documents to be read in their case;
(c)a chronology;
(d)a list of issues for determination; and
(e)a brief summary of argument.
The matter is listed for final hearing on 23, 24 and 25 May 2011 at 10.00 am.
All solicitors have liberty to issue more than 5 subpoenas.

IT IS NOTED that publication of this judgment under the pseudonym Becket & Peel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 2190 of 2008

MR BECKET

Applicant

And

MS PEEL

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
At 5.10pm on Monday 6 December 2010, I made interim orders that X, 11, and Y, eight, who had, up to that point been living with their mother since their parents separated in 2003, live with the father. These are my reasons for making those orders.

The background to the current proceedings

The father and mother separated in January 2003 after a relationship of at least four and possibly up to nine years. X and Y are their only children. They would have been about three and about 10 months old respectively when the parents separated.
After separation X and Y lived with the mother.
Prior to separation the mother had begun visiting Mr D in prison. Mr D was serving a lengthy term of imprisonment for manslaughter. When he was released, later in 2003, the mother and Mr D began living together.
In … 2003 the mother gave birth to a child M. Mr D is named as the father on M’s birth certificate, although it appears that M’s father is actually a man by the name of Mr E.
The father also re-partnered at some point after separation, and from his new relationship he has a daughter, N, born in 2006.
The father spent regular time with X and Y after separation and some years passed in which the arrangement for the children was that they lived with the mother and spent time with the father.
In February 2008 the mother separated from Mr D.
In August 2008, the father filed an application for parenting orders. At some point during the court proceedings it emerged that during the mother’s relationship with Mr D, X and Y had been exposed to serious family violence, sexual activity between the mother and Mr D and criminal activity. The extent to which the father was aware of this prior to filing his application for parenting orders is something I cannot currently determine.
The mother filed a response to the father’s application, and the competing applications for parenting orders proceeded through the court system.
In about … 2008 the mother commenced a relationship with Mr F. Mr F is a person of considerable concern. He is 31 years old and has something like 83 criminal convictions dating back to 1996, when he was 15. He has repeat convictions for driving while disqualified, stealing, negligent or reckless driving, possessing implements for breaking into cars or houses and damaging and destroying property. He was convicted in 1997 of breaching an apprehended violence order, and he has a number of convictions for assault. He has been sentenced to terms of imprisonment on a number of occasions.
COPS records reveal that the police were called to the mother’s home in … 2009 after a prolonged incident in which Mr F verbally abused the mother and eventually punched her in the face, pushed her over and punched a wall and doors. An apprehended violence order was taken out against Mr F on behalf of the mother after that incident. The COPS records reveal that the mother indicated to police that there had been other incidents of violence which she had not reported.
It would appear that the mother and Mr F separated after this incident in … 2009.
The COPS records reveal that in … 2009 the mother called the police to her home to inform them that Mr F had arrived there with some stolen property. Mr F fled before the police arrived, but the mother rang the police again within the next few days complaining that Mr F had been contacting her. He was arrested and charged with goods in custody and breaching the apprehended violence order.
Mr F’s record of convictions shows that he was convicted of a number of offences and sentenced to eight months imprisonment with four months to serve. On … 2010 he was convicted of further offences which included resist police and possess implements to enter or drive a conveyance. On the latter charge he was sentenced to nine months backdated to … 2009, to be released after six months under supervision, and his release date is given as … 2010.
Meanwhile, in the background, the parenting applications were proceedings through the court system. A family report was prepared and released to the parties and on 22 March 2010 the mother and father entered into final consent orders. The orders provided for the children to live with the mother and spend time with the father from Wednesday to Monday in one week and Wednesday to Friday in the other week. In other words, they gave the father very extensive time with the children.
Importantly for the proceedings currently before me, an order was made that the mother be restrained from bringing the children into the presence of Mr F or from taking the children to visit him in gaol.
From 22 March 2010 until 27 April 2010 the father spent time with the children in accordance with the orders. From 27 April 2010 onwards the mother prevented him from spending time with them.
There was correspondence between solicitors about this breach of the orders but this did not result in any change to the situation.
On 17 May 2010 the police served the father with an application for an apprehended violence order on behalf of the children. In the application it was alleged that the father had hit X on the back and had heated a fork and pressed it into X’s finger. It was also alleged that his wife had pulled the boys’ hair and propelled them forward so they landed on the ground and had locked them in their rooms.
On 28 June 2010 the father filed a fresh parenting application seeking an order that the children live with him. In his supporting affidavit, he said that he feared for the emotional wellbeing of the children if they remained in the care of the mother.
In one of the affidavits he filed in support of this application the father that he had spoken to X’s teacher and during the interview she had said as follows:
During a class activity, X approached me with a picture that ‘his father’ had drawn. When I asked about his father, X said his step-father, Mr F, who is engaged to mum and lives with us.
On 30 July 2010, the application for the apprehended violence order against the father was dismissed, apparently because the mother failed to attend court on the required date.
On 10 August 2010 the mother filed a response to the parenting application. She proposed that the children spend supervised time only with the father. She also filed a Notice of Child Abuse and Family Violence in which she referred to the incidents which were the subject of the apprehended violence order. She alleged that the children were scared of the father.
The mother said in her affidavit that Mr F had been released from gaol but she denied that he was living with her and she said that he did not have any contact with the children.
The mother said that she had arranged for X to have counselling with Mr G and that the children were also seeing a clinical psychologist called Mr H.
An Independent Children’s Lawyer was appointed and in due course, given the history of the matter, an order was made for the preparation of a Chapter 15 expert’s report by Ms C. Ms C is a senior clinical psychologist with 35 years experience in the child protection area.
Ms C’s report was completed on 26 November 2010. In the conclusion to her report she said as follows:
In my opinion, this matter should return to Court urgently such is the risk posed to the boys.
Ms C detailed her concerns and then made the following recommendation:
If the Court accepts the validity of this formulation, then on an interim basis the boys should be immediately removed from the mother. They should be placed with the father. The mother should have supervised contact only and no telephone contact. M, their brother, should attend those visits. Their school should be changed to avoid contact with the mother, and all counselling with the children should be stopped.
Ms C’s report is very thorough. She interviewed the children, the father and his partner and the mother, and she observed the children with all of the parties. She also reviewed an extensive amount of subpoenaed material including New South Wales COPS records, records from Mr H, a report by Mr G and the children’s school records and their first semester school reports.
Ms C set out in some detail alarming information provided by X about what had been happening in his mother’s household over the years.
X told Ms C that when the mother and father were still together the mother and her friend Ms O would go up to see Mr D at Town P gaol and that his parents would fight over that issue. X gave the following information about Mr D:
He was there for murdering a person. Do you know Q Street, Town R? Mr D and Mr J threw this man out of the window. He was wrapped up in a bag but he was still alive. He was trying to punch Mr D. Mr D kicked him in the balls… sorry, I mean ‘testicles’ (smiles). So they threw him in K Creek.
Ms C then said as follows:
X was asked about the mother’s partner after Mr D. He replied, ‘His name is Mr F and he is nice. He makes us breakfast and dinner. He got me a bull mastiff for Christmas.’ When asked, X said Mr F had two children but his ex-partner wouldn’t let him see them. He then added, ‘Did mum tell you she’s pregnant? Don’t write that down or I’ll get into trouble. I don’t want dad to know about it.’ When asked how long Mr F had been living with them, X thought for a while and replied, ‘I’m not sure. I haven’t been counting but not all this year.’ X then said, ‘I’m happy with Mr F but dad doesn’t want him around. He won’t let mum go with some people but he can do what he wants.’[1]
[1] Ms C’s report paragraph 50
Ms C reported that X said that he loved Mr F with all his heart.
X also made some comments about his relationship with his mother which caused Ms C concern. Ms C asked him if he was worried about his mother and he replied.
All the time. I don’t like her being at home by herself. Anything could happen. Someone could try to hurt her. I think about this at school. Sometimes I have to come home sick because I don’t like being away from mum. I asked mum if I could have home schooling, but she said no.’ As we were ending, X said, ‘Can I tell you I just want to be with my mum.’[2]
[2] Ms C’s report paragraph 54
Ms C concluded her interview with X and commenced an interview with Y. After about 20 minutes X burst into Ms C’s room sobbing hysterically, and said as follows:
I want to tell you something. Please, please, don’t tell the Court about Mr F. Cross it out. It wasn’t Mr F. It was Mr E. If my dad knows, he’ll get me. This is the worst day of my life. It wasn’t Mr F. It was Mr E.
Ms C did her best to reassure X and continued her interview with Y.
Y also made some alarming revelations about what the life had been like with their mother when Mr D lived with them. Ms C said that Y told her that:
When they lived with Mr D, they had to sleep in a room with penny wires and booby traps. He didn’t know the purpose of these.[3]
[3] Ms C’s report page 57
Y told Ms C that he worried heaps about people hurting his mother. When asked if anyone had done this to her, he said:
Mr D pushed a chair on X and M. I got up and smashed a glass bottle on his shoulder. He threw me on the lounge then we ran to the car and that was the last time we saw him.[4]
[4] Ms C’s report page 58
Ms C asked Y if Mr F lived with the family and he replied:
I haven’t seen him, no, never.
Y told Ms C that his mum had told him to tell Ms C that the boys had not seen Mr F ever in 2010.
Y, like X, said he worried about his mother getting hurt when he was at school and said that sometimes when they were at school she had to stay inside and close the shed because the neighbours were so nasty to her.
Ms C’s evaluation is contained at paragraphs 78 onwards of her report. She assessed the father as being a reasonably well-functioning and personable man with an emotionally mature and well-functioning partner. It was her view that the indications were that he led a stable lifestyle. Her concern about the father was in respect of his failure to ensure the safety and wellbeing of his children while they had been in the mother’s household with her violent partners over many years.

Ms C’s opinion about the mother was that she was an emotionally unstable woman who seemed to have an obsession with choosing criminal and violent partners who had been incarcerated, and Ms C observed that the father seemed to be one of the few partners not fitted into this mould. Ms C commented that the mother was undefended about such choices and even denied being fazed by a relationship with a brutal murderer and unfazed that her sons had such exposure to him.
Ms C noted that the mother had suffered violence at the hands of Mr D and Mr F and that the children had been exposed to this. She was extremely concerned about the revelations of the children which suggested that the mother may be living with Mr F.
Ms C was also concerned about what appeared to her to be a very enmeshed relationship between the mother and X.
It was Ms C’s view that the mother had in the past subjected and was currently subjecting the children to severe emotional abuse. It was her view that the mother had placed considerable pressure on the children to reject contact with their father, and that the children, and especially X, were terrified of displeasing her and so complied with her directives.
Ms C itemised at paragraphs 81 and 82 of her report the ways in which she felt the mother had been a very poor role model for the boys. She expressed the view that the mother had some borderline personality traits and she set out in some detail why she had come to that conclusion.
Ms C set out at paragraph 83 aspects of the mother’s parenting which she considered represented severe deficits in parenting.
At paragraph 84 Ms C elaborated on her opinion about X. Ms C said that she was extremely concerned about his emotional state, the difficulties he was having at school and his enmeshment with his mother and she said as follows:
X is very parentified. He has been prematurely exposed to a very unsavoury adult world. He has become a confidante to his mother about her personal worries and has not been protected from these adult issues. He is so enmeshed with and concerned about his mother’s welfare that he sometimes has to leave school to check on her. This may explain his high number of unexplained school absences, about which the mother seems quite unfazed.[5]
[5] Ms C’s report paragraph 85
She expressed the view that X’s relationship with his mother was a highly destructive one for his development and future mental health.
Ms C discussed Y at pages 87 and 88 of the report. She mentioned the fact that he also talked of his fear of witnessing violence perpetrated on his mother and commented that it was her opinion that the best treatment for Y was his removal from the current abusive environment.
The report was at first released only to the Independent Children’s Lawyer, pending the next mention of the matter on 6 December 2010. The mother was requested to bring the children to court on 6 December 2010 and leave them at Child Dispute Services while she attended court.
On 6 December Ms C’s report was released to the parties and the matter stood down. After the father and his solicitor read the report the father’s solicitor made an oral application for an interim order that the children live with the father. I stood the matter over to the afternoon for an interim hearing. It was my view that the information provided by Ms C was so concerning that the application needed to be determined by an immediate interim hearing.
The mother’s solicitor took part ably in the interim hearing. Ms C was made available for cross-examination about her report and was cross-examined at some length by the mother’s solicitor, and was also cross-examined by the father’s solicitor and the Independent Children’s Lawyer. Each solicitor then made submissions.

The interim hearing

The father’s solicitor pressed for an order to be made on an interim basis for a change of residence.
The father’s solicitor submitted that the children were at risk of emotional harm and exposure to family violence in the mother’s household and that it was in their best interests that they be immediately removed as recommended by Ms C.
The Independent Children’s Lawyer supported the children living with the father on an interim basis.
The mother sought dismissal of the father’s application and proposed that the current arrangement for the children continue until a full hearing could be conducted and Ms C’s evidence could be properly tested and weighed and balanced with the other evidence available in the case.
The mother’s solicitor submitted that it not be in children’s best interests for them to be removed prematurely from the mother. They had lived with her since separation and it was a serious matter to remove them in circumstances where Ms C’s evidence had not been properly tested and the issue of whether the mother was in fact living with Mr F was in dispute.
It would not be in the children’s best interest to prematurely remove them from their mother with the possibility that after a full hearing the Court decided that this had been the wrong decision and the children had to go back to the mother.
The mother’s solicitor conceded that the mother was pregnant to Mr F and that the baby was due in March 2011, putting the date of conception at about mid-2010. The mother’s solicitor indicated however that the mother denied that she was living with Mr F.
The mother’s solicitor was highly critical of Ms C’s report. She submitted that Ms C’s description of the mother’s physical appearance in the report suggested that Ms C was biased against the mother and that therefore the Court should be wary of placing too much weight on Ms C’s evidence at an interim stage.
The mother’s solicitor also pointed out that the mother had filed a Notice of Child Abuse alleging that the father had physically abused the children. She submitted that the allegations of abuse had not been resolved and that the court should not consider placing the children in the care of parent who might well have physically abused them.
Another issue raised by the mother’s solicitor, which she said militated against an order being made for a change of the children’s residence, were that the children had expressed a view that they did not want to live with their father and that they feared him. She also submitted that there was good reason to believe that X’s difficulties at school had been due to ADHD rather than difficulties in his relationship with his mother, and pointed out that according to the school X’s school performance had considerably improved in the last month since he had been taking Ritalin.
The interim application by the father was made orally and fairly suddenly, but it was determined no differently than any other interim application. The problems facing the court in determining a matter at an interim stage were no different in this case to the problems confronting the court in determining most interim applications.
In Goode & Goode[6], the Full Court said as follows:
[6] Goode & Goode (2007) 36 Fam LR 422
In making interim decisions, the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the children. However, the legislative pathway must be followed. In an interim case, that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe that there has been abuse of the child or family violence or, in an interim matter, that the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order for equal time;
(h)if equal time is not found to be in the child’s best interests, considering making an order for substantial or significant time; and
(i)if neither equal time nor substantial or significant time is considered to be in the child’s best interests, making such orders in the discretion of the Court that are in the best interests of the children.
I have previously identified the competing proposals of the parties.
There were numerous issues in dispute, but the significant ones at this stage were:
i)whether Mr F is in fact living with the mother,;
ii)the nature of the relationship of X and Y with each of their parents;
iii)whether the difficulties X has been experiencing at school are due to a dysfunctional relationship with the mother and a dysfunctional home life or due to X having ADHD.
The matters not in dispute or which were not reasonably open to question were as follows:
i)the children have lived with their mother since separation.
ii)the mother re-partnered with Mr D after separation from the father, and Mr D was a seriously violent, antisocial and frightening man.
iii)the mother formed a relationship with Mr F in … 2008. Mr F has a lengthy criminal record, has assaulted the mother and has served time in gaol since he commenced a relationship with the mother.
iv)Orders were made by consent on 23 March 2010 which provided for the children to spend significant periods of time with their father.
v)one of the orders made by consent was that the mother not allow the children to have any contact with Mr F;
vi)the mother is pregnant with Mr F’s child and given the expected date of birth of the child conception must have occurred in … 2010.[7]
vii)the children have made revelations to Ms C suggesting that Mr F is living with the mother.
viii)X has had having serious difficulties at school throughout 2010 except perhaps for the last month, when he has been taking Ritalin.
[7] Correspondence between solicitors was tendered during the interim hearing which confirmed that the

The children’s best interests

In determining appropriate parenting orders for X and Y, I am required to treat their best interests as the paramount consideration. Ss. 60CC(2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine the children children’s best interests.
The primary considerations in s.60CC(2) is as follows:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The situation for these two children at present is that they have effectively been cut off, or largely been cut off, from having a relationship with their father since April 2010. They have spent little time with him since then. It is abundantly clear that the mother has a negative attitude toward the father, and if the children remain living with the mother there is a considerable risk that they might not have a meaningful relationship with the father in the future.
The father’s attitude to the mother, however, is more relaxed, and there is a greater likelihood of the boys being able to have a meaningful relationship with both parents if they live with the father than if they remain with the mother.
I must consider the need to protect the children from physical or psychological harm as a result of being exposed to or subjected to abuse, neglect or family violence.
On any view of the facts Mr F is an undesirable man who has been physically violent to the children’s mother, who has convictions for assaults on other people, who has a very lengthy criminal history. There is an unacceptable risk that the children will be exposed to family violence if they live in a home with the mother and Mr F.
I cannot make any findings at this interim stage that Mr F is living with the mother, but there are certainly indications that this may be the case. There is X’s revelation to his school teacher which the father recorded in his affidavit; there is X’s revelation to Ms C which he was mortified about the consequences of; there are some things that Y said which suggest that Mr F may be in the home; and there is the fact that the mother is pregnant to Mr F, something she did not reveal willingly to Ms C.
In my view there is an unacceptable risk that if the children remain in the mother’s care they might be brought into the company of Mr F, to whom the mother is pregnant, and if they are exposed to Mr F in the company of the mother, there is certainly an unacceptable risk that they are going to be exposed to family violence.
The mother made allegations that the father had physically abused X by pushing him and putting a hot fork onto his finger. These are very serious allegations of physical abuse. I cannot make a determination in these proceedings about the truth or otherwise of these allegations.
Ms C confirmed during cross-examination that the children did not display any fear of the father, and although her evidence has not been rigorously tested, she has spent 35 years working in the area of child protection. She is an expert witness in these proceedings and has a degree of objectivity, and I place some weight on her observations of the relationship between the children and the father and their lack of fear of him. It is relevant that the children’s behaviour with the father is not consistent with a finding that he has abused them in the recent past in the way that the mother suggested.
I must take into account the additional considerations in s.60CC(3). The first of those is the views of the children, and of course it is the mother’s case that the boys want nothing to do with the father, and the father concedes that the boys have said that to him.
Ms C’s observation of the children with the father however suggests that no weight can be placed on any views the children may have expressed to the mother. Ms C’s observations of the children with their father did not suggest that they had a strong opposition to having a relationship with him.
Ms C observed that Y warmed to the father very quickly, began to stroke his arm and smile at him and became very chatty. Y in the end also interacted well with his half sister N.
Ms C reported that X was withdrawn throughout the session but looked troubled rather than fearful. He did not initiate much conversation with his father or the father’s partner, but he responded politely to their inquiries. At times, he managed a brief smile for his father.
Ms C observed that
When it was time to go, Mr Becket went to hug X. He said no very weakly but moulded into his father’s arms. Y procrastinated about leaving and spontaneously gave his father, S and N warm hugs.
As to the nature of the relationship between the children and each of their parents and any other significant adults Ms C acknowledged that the children had a relationship with their mother, but particularly in relation to X she was concerned about the nature of that relationship, and she was concerned that X was enmeshed with his mother and did not in fact have a healthy relationship with her.
In relation to Y, Ms C did not make the same level of negative comment. She said that:
Y has been much less targeted by his mother as her confidante and does not seem to have been so intensely enmeshed with her problems as has X.
As to the children’s relationship with their father, they have spent very little time with him since April 2010. Ms C observed signs of warmth between Y and the father and signs of X responding to his father after spending some time in his company, but beyond that I certainly cannot make any findings about the nature of the relationship between the father and the children.
I hasten to add here and to reinforce here that Ms C’s evidence has not been fully tested but it is the only objective evidence I have about that relationship at the present time.
I have to take into account the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the boys and the other parent. The evidence suggests that the mother does not have the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father.
My finding in that regard does not rely on Ms C’s report. It relies on the mother’s actions from April 2010 onward in effectively preventing the boys spending any time with the father.
The father would appear to have a reasonable willingness and ability to facilitate and encourage a close and continuing relationship between the boys and the mother. He has if anything been too accommodating about this in the past.
At an interim hearing it is very difficult for me to predict the likely effect of any change in the children’s circumstances. A move from the primary care of the mother to the primary care of the father will be a significant change for the children. If it protects them from an unhealthy emotional enmeshment with their mother, from being cast into the role of the mother’s protector from violent partners and from exposure to family violence, criminal activity and sexual activity in the home, then it will be a positive change for the children.
If, of course, there is some truth in the mother’s allegations about the father having abused X then the change may not be a beneficial change. It might remove them from exposure to serious family violence in the mother’s care, but it might mean that for the children it is out of the frying pan, into the fire.
It is also very difficult for me to predict the extent to which the children will miss their mother and grieve for their mother if they are removed from her primary care and commence living with the father. .
Ms C was unable to say definitively how the children would be affected by such a change. She said in some cases children who were moved from a dysfunctional and violent home were relieved at the change of residence, but there can be no doubt that even if the children are on one level relieved at a change of residence, and even if they benefit from a move which restricts their exposure to any family violence, they might still grieve for their mother and face some emotional hurdles as a result of a change of residence.
I have to consider the capacity of each parent to provide for the needs of the children. I am satisfied that each parent can provide the children with food and clothing. However the children have had some difficulty with school attendance, X in particular, in the mother’s care.
There is an issue of the capacity of each parent to provide for the children’s emotional needs. It was certainly Ms C’s view that the mother’s capacity in this regard was severely limited. I cannot make findings about that though when I have not heard all of the evidence.
In relation to the father, if he in fact he abused X as suggested and if he and his wife dealt harshly with Y and X by locking them in their rooms, then there is reason to be concerned about the father’s capacity to meet the children’s emotional needs.
I have to consider the attitude of each parent to the responsibilities of parenthood.
There can be no doubt that the mother has failed to protect the children from exposure to her abusive partners and exposure to family violence over a period of many years. It defies belief that the children would not have been adversely affected by living year in and year out in that environment. In failing to protect her children from this the mother has displayed an extremely poor attitude to the responsibilities of parenthood.

The father can also be criticised, however, for his failure to intervene to protect the children at a much earlier stage.
I have to consider the issue of family violence, and there is absolutely no doubt that these children have been exposed over the years to serious family violence in the mother’s household.
The mother alleged that in recent times the father had been violent to X. This is a disputed fact. I cannot make findings about it. I do, however, note that Ms C did not observe the children to be frightened of the father.
I also bear in mind that this is not a case where there is an allegation that the father has been routinely abusive of these children over a number of years. The allegation that the father had abused X and treated Y roughly sprang up after the consent orders were made in March 2010, and this causes me to be somewhat less concerned about the allegations than I might be if there were allegations that the father had been routinely abusive of the children over a period of years.
There are no relevant family violence orders.

Parental Responsibility

Because these are parenting proceedings, I have to make a finding about parental responsibility. These are interim proceedings. Serious allegations have been made about the children’s exposure to family violence in the mother’s household. In my view, it is not appropriate for me to apply the presumption of equal shared parental responsibility. How parental responsibility should be allocated will have to wait for a decision about where the children should live, and I will now consider that matter.

Conclusion

The strength of the mother’s case was as follows. The children have lived with her since separation seven years ago. They are saying they do not want to live with their father. The court cannot make a definite finding that Mr F is living with the mother. The children have alleged that the father has physically abused them, and the court is not in a position to determine whether there is truth in that allegation at this interim stage. Finally, although there have been some difficulties for X at school this year he has turned a corner in the last month, according to the letter from the school, since has been taking Ritalin.
The mother’s solicitor submitted that I could not place too much weight on Ms C’s report. It was possible that she was biased against the mother because of her appearance and further, Ms C was making recommendations based on some fairly limited interviews of about 45 minutes duration that she conducted with each of the parties.
The mother’s solicitor submitted that it would be quite destructive for the boys if I made a change to their residence now and then found after a full hearing that I had to change the residence back.
I do not accept those submissions.
Ms C’s report was very thorough. There was nothing unusual in her making a comment about the mother’s appearance, and she also made a comment about the father’s appearance. She went to considerable trouble to inspect subpoenaed documents. She has a vast amount of experience in child protection matters. Her report was internally consistent. She was subjected to some limited cross-examination of about 30 minutes by the mother’s solicitor, and I was impressed by the job, I might add, that the mother’s solicitor did on short notice in preparing for cross-examination of Ms C and conducting these interim proceedings. Ms C was unshaken in her recommendations.
It may be that at a final hearing Ms C’s conclusions about the nature of the children’s relationship with the mother, about whether the children have been being emotionally harmed in the care of the mother, might be subject to a successful challenge. What I think is important in this case, though, is that a good reason to remove the children from the care of the mother is not simply Ms C’s recommendation that the mother has emotionally abused these children.
A compelling reason to remove these children from the care of the mother is that she has, over a period of many, many years, failed to protect them from exposure to family violence in her household and there is a real possibility on the evidence that she has resumed a relationship with a man who has an extensive criminal record, who has convictions for offences of violence, who has a conviction for breaching an apprehended violence order, who has assaulted the mother and who may well assault the mother again in the future.
The information given to Ms C by X raises that real possibility, and the fact that the mother is pregnant to Mr F means that I cannot lightly disregard the real possibility that the mother has in fact recommenced living with him and has placed the children again in a situation, the situation that has occurred so often in the past, of them being required to live in a household with a violent man, a person who is likely to assault their mother.
So my reason for being unwilling to leave the boys in the situation of living with their mother is not simply because of Ms C’s opinion about the fact that the children are likely to be exposed to emotional harm if they remain there, but because there is an unacceptable risk that if the children remain living with the mother they will be exposed to the mother being in a relationship with Mr F and will be exposed to family violence.
I accept that if I change the children’s residence and it appears after a full hearing that that was the wrong decision to make that the children will be required to undergo yet another change in returning to the mother’s care. But the mother has already herself imposed a change on the children in April 2010 by unilaterally preventing them from spending any time with their father.
These children have had a very difficult life since the parents separated in 2003. The father is a person without criminal convictions and I am satisfied that he is likely to be able to provide the children with a reasonable level of care in the next few months prior to a hearing of the matter.
I acknowledge that the allegations by the mother that the father abused X in particular are unresolved, but the children showed no fear of the father in the observations by Ms C and there is no history of the father abusing the children. There is no evidence that he is a person with a propensity for violence in a wider sense, unlike Mr D and Mr F. And there is a real possibility that these allegations by the children about abuse have been fabricated.
I am not comforted by the fact that X, after all the years of abuse to which he has been exposed, is now behaving better at school because he is taking a drug.
Although I cannot finally make findings about the issue of emotional abuse, there is an unacceptable risk of harm to the children if they remain with the mother. I am not convinced there is an unacceptable risk of harm if they move to the care of the father, and I consider that it is in the children’s best interests that they live with the father pending a final hearing of this matter.
I intend to make orders in the terms proposed by the Independent Children’s Lawyer. This will see the mother spending some time with the children at a contact centre or supervised by a Ms B.
I acknowledge that there may be a period of time in which the children are unable to see their mother, if the supervision cannot easily be organised. In all the circumstances of this case, however, I am not persuaded that should prevent me making the orders proposed by the Independent Children’s Lawyer.
It follows from what I have said about where the children should live that it is appropriate for me to make an order that the father have sole parental responsibility for the children. It is not appropriate for me to make an order for equal shared parental responsibility.
After I orally delivered the above reasons, discussion took place about the matter being listed for final hearing. It is preferable that this take place sooner rather than later. The Independent Children’s Lawyer submitted that Ms C should be asked to prepare an updated family report prior to the hearing and this was not opposed by the other parties. Ms C is able to conduct interviews for that updated report in April 2011. Accordingly I intend have made orders for preparation of that report and orders listing the matter for a final hearing in May 2011.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Terry FM

Date: 22 December 2010

Mother was indeed pregnant to Mr F.