BETROS & BETROS
[2016] FamCA 225
•6 April 2016
FAMILY COURT OF AUSTRALIA
| BETROS & BETROS | [2016] FamCA 225 |
| FAMILY LAW – CHILDREN – Previous final parenting orders – Significant change in the children’s circumstances – With whom a child lives – With whom a child spends time – Parental responsibility – Best interests of the children – Where not satisfied that the mother has neglected the children’s medical needs as alleged by the father – Where no findings of an unacceptable risk of physical abuse by the mother – Where the father has perpetrated family violence – Where the children are psychologically harmed from being subjected to abuse by the father – Benefit of a meaningful relationship with each parent – Need to protect the children from harm – Nature of the children’s relationships – Effect of a change in circumstances – Parental capacity – Whether it would be preferable to make orders least likely to lead to further proceedings and review of supervision requirement – Mother to hold sole parental responsibility for the children. |
| Evidence Act 1995 (Cth) s 140 |
| G & C [2006] FamCA 994 |
| APPLICANT: | Mr Betros |
| RESPONDENT: | Ms Betros |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Naidovski |
| FILE NUMBER: | PAC | 3685 | of | 2011 |
| DATE DELIVERED: | 6 April 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 25, 26, 27, 28 August and 2 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Conte-Mills |
| SOLICITOR FOR THE APPLICANT: | Phillip A Wilkins & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Services NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shearman |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All previous orders with respect to B born … 2005, C born … 2006 and D born … 2008 (“the children”) are hereby discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with their mother.
The children shall spend supervised time with their father every second month at the E Contact Service (“the service”) with such days and times as scheduled by the service and for this purpose:
(a) Within 14 days of the date of these Orders each parent shall do all acts and things and sign all documents necessary to make application for supervised time with the service, or such other supervised contact service as may be recommended to them by the Independent Children’s Lawyer.
(b) The father shall be solely responsible for the cost of the children’s supervised time with him.
(c) The parents shall follow the directions and instructions of the service.
The father may communicate with the children by forwarding to them letters and gifts on three occasions per year as follows:
(a) On each of the children’s birthdays each year;
(b) At religious feast day; and
(c) At religious holy day.
For the purpose of Order 5 the mother shall do all acts and things to ensure that the children receive such letters and gifts from their father, provided that the letters contain no denigration of the mother or other member of her family.
The mother shall do all acts and things necessary to continue to consult with Dr F and to facilitate this order the mother shall:
(a) Attend at such frequency and for such duration as directed by Dr F;
(b) Do all acts and things necessary to encourage and arrange for her partner Mr G to attend appointments with Dr F at such frequency and for such duration as directed by Dr F;
(c) Make the children and each of them available for consultations with Dr F;
(d) Be responsible for the costs of the therapy.
The mother shall do all acts and things necessary to arrange for the children to participate in the ANCHOR Program and to facilitate this Order the mother shall:
(a) Within fourteen (14) days of the date of these Orders contact the Anchor Program to arrange an initial consultation;
(b) Attend upon appointments as advised by the ANCHOR program;
(c) Ensure the children’s attendance at appointments as required by the ANCHOR Program;
(d) Follow the reasonable directions of ANCHOR Program staff.
The mother is granted leave to provide to the children’s therapist and any other service that the children are engaged in with a copy of the Family Report dated 23 December 2014 and Addendum to the Family Report dated 29 September 2015.
The father is restrained from:
(a) Discussing with the children, or in their presence, any issues regarding the mother;
(b) Discussing with the children, or in their presence, any matters involving these Court proceedings;
(c) Discussing with the children, or in their presence, the children’s wishes in relation to whom they wish to live.
The father is restrained from approaching the children, including at their school, other than in accordance with these Orders.
The mother shall forthwith give written authorities to the children’s schools authorising the children’s schools to provide the father copies of school reports, school notices and school photographs.
The father is at liberty to make a fresh application to consider the lifting of the supervision requirement of his time with the children upon:
(a) Undertaking regular and consistent therapy with a child and family therapist for a period of no less than 24 months;
(b) Obtaining a report from his treating child and family therapist as to his progress in:
(i)Gaining insight into his coercive behaviour;
(ii)Gaining insight into the effects on the children of:
A. Emotional manipulation;
B. Intrusive parenting; and
C. Emotional abuse.
(iii)Acceptance of the children’s living arrangements in the care of the mother and her partner.
The father is granted leave to provide to his therapist and any other service he engages in with a copy of the Family Report dated 23 December 2014 and Addendum to the Family Report dated 29 September 2015.
All outstanding applications and cross-applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Betros & Betros 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 PARRAMATTA |
FILE NUMBER: PAC 3685 of 2011
| Mr Betros |
Applicant
And
| Ms Betros |
Respondent
REASONS FOR JUDGMENT
Introduction
Following their seven year marriage, the parents of three children have been unable to agree about long term parenting arrangements.
Final parenting orders were made in February 2013 in the Federal Magistrates Court, as it was then known, with the consent of the parties. Almost immediately after the orders were made the arrangements became problematic and in December 2013, the father commenced these proceedings seeking to revisit those orders.
The children’s behaviour, in particular the behaviour of B, who is 10, has significantly deteriorated, especially in at least the past 12 months. Further a family consultant who assessed the family in December 2014 was of the opinion that the conflict between the parties is at such a level that the parent with whom the children are to live should have sole parental responsibility and that the other parent should spend supervised time with the children no more than six times per year. In these circumstances I am satisfied that there is a sufficiently significant change in the children’s circumstances that it is in the best interests of the children to reconsider the parenting arrangements.
It is the father’s proposal that the children’s residence be changed and that they live with him and he have sole parental responsibility for them. He initially proposed that the children spend limited supervised time with their mother gradually increasing after six months to alternate weekends and for half of the school holidays and for special days. His final proposal did not include any period of supervision.
The mother proposes orders in terms of the family consultant’s recommendations and her proposal is supported by the Independent Children’s Lawyer (ICL).
I am to determine which of the proposed parenting arrangements best meet the best interests of the children.
Background
The father who is 41 was born and grew up in Country H, where he lived until the age of 13 when he came to Australia. The mother, who is 35, was born and raised in Australia.
The parents married in 2004 and have three children. The first, a son B was born in 2005 and a second son C was born in 2006. The third child, a daughter, D, was born in 2008.
The parenting arrangements during the marriage were traditional in the sense that the father was employed full time and the mother had responsibility for the day to day care of the children.
The parents separated on 31 March 2011 and the children remained living with the mother.
The father commenced the first parenting proceedings in August 2011. In October 2011 interim orders were made by consent which provided for the children to live with the mother and spend time with the father each alternate weekend and one additional weeknight per fortnight.
The parents divorced in July 2012.
In the first proceedings the father alleged that the mother had failed to attend to the children’s medical needs and was abusive towards them. The mother alleged that the father was controlling and violent towards her throughout the marriage and that he continued to abuse and control her after the marriage by making exaggerated and false complaints about her care of the children.
In May 2012, a family consultant interviewed the family for the purposes of a Family Report. In that assessment the father reported that his concerns about the mother were that she neglected the children’s medical needs and was physically abusive towards the children and the mother expressed her concerns about the father’s controlling and emotionally abusive behaviour.
In the first assessment, the family consultant identified that the children needed counselling to repair and strengthen their relationships with their mother. B and C began attending counselling apparently in accordance with this recommendation in early 2013.
On 5 February 2013, the first day of the previous proceedings, the parents agreed to final orders which were made with their consent. These orders provided for the parents to equally share parental responsibility for the children, for the children to live with the mother and spend defined time with the father including four nights per fortnight and half of the school holidays. Pursuant to these orders the children live with the father from Thursdays to Mondays in alternating weeks and spend half of the school holidays with him.
Following these final parenting orders the parents’ concerns about one another have essentially continued in the same vein. The father continues to allege that the mother neglects the children’s medical needs and abuses them and the mother alleges that the father has continued to emotionally abuse and control her and the children.
The father’s allegations of medical neglect and that the mother is violent towards the children, verbally abuses and threatens them recommenced within a couple of months of the previous orders having been made in February 2013. The mother denies these allegations and this issue is dealt with later in these Reasons.
The mother contends that the father’s denigration of her which damages her relationship with the children and is associated with B’s behavioural problems also continued after the previous court orders. The mother also contends that the father continues to attempt to control her. These allegations are denied by the father and are dealt with later in these Reasons.
On 23 December 2013, the father filed an Initiating Application seeking that the final orders made on 5 February 2013 be suspended and that the children live with him and spend time with the mother as the Court deemed fit.
B and C stopped attending counselling in around December 2013. Since that time they have been more unsettled and distressed, and B’s behaviour deteriorated when in the mother’s care.
In March 2014 the mother sought the father’s consent to the children participating in the Anchor post separation program, but the father did not consent as he felt that it was not necessary.
In early 2014, the mother met her current partner, Mr G. At about the same time, the father commenced his relationship with his current partner Ms I.
B continued to display aggressive and at times violent and abusive behaviour towards the mother and the younger siblings and in the classroom at school from late 2013 and throughout the first half of 2014.
In August 2014 the mother was so concerned about B’s behaviour that she sought the opinion of Dr J, a paediatrician who had been engaged with B for about three years and who was the nominated Paediatrician for the children under the February 2013 orders. Dr J informed the father by letter dated 15 August 2014 that he was concerned about B’s behaviour and B needed ongoing counselling.
The father introduced the children to his partner in about September 2014.
In or around September 2014, the mother began engaging with a caseworker from Brighter Futures on the recommendation of the Department of Family and Community Services (“Community Services” or “the Department”). Although counselling with the children was also envisaged as part of the Brighter Futures program the father refused to give his consent for Brighter Futures to engage with the children. B continued to display violent and aggressive behaviour in his mother’s household.
The mother introduced the children to her partner, Mr G in early October 2014. Mr G has three children from a previous relationship who live with their mother and spend time with him every Sunday and other times by agreement.
On 24 October 2014, the mother and Mr G participated in a religious commitment ceremony.
On 29 October 2014, the parents, the father’s partner and the children attended interviews and observation sessions with the family consultant for the preparation of an updated Family Report. The mother’s partner Mr G was not assessed by the family consultant as the mother did not advise the family consultant of his involvement with the children.
In November 2014 a support worker from Brighter Futures who was assisting the mother in her home observed a serious incident of aggressive behaviour by B. At the end of November 2014 B began damaging property at the mother’s home and was also on occasions refusing to attend school.
The Family Report dated 23 December 2014 was released in January 2015. One of the recommendations in the report was that all of the children and parents engage in counselling.
After release of the family report the ICL attempted to facilitate counselling for the children. The father initially did not give his consent to counselling as he was concerned about the children being “over exposed to counselling services”.
On 11 June 2015 orders were made by consent for the family to engage with family therapy with Dr F. The children had their first appointments with Dr F a few days later.
At times since separation there have been disputes between the parties in relation to child support. The father sought a review of the Child Support Registrar’s decision not to change his child support assessment. When his application for review was unsuccessful the father brought an application before the Social Security Appeals Tribunal. On 9 March 2015 the Tribunal confirmed the Department’s decision. As at 28 July 2015, the father had a child support debt of $27,836.
On 17 July 2015 there was an incident between the mother’s partner and the father in the course of a changeover in which the father alleges that the mother was in breach of the orders. A few days later Community Services received reports that the mother was using excessive discipline on B and visited B and the mother at her home. The mother entered into a Safety Plan with Community Services in relation to physical discipline.
The mother’s partner, Mr G, started living with the mother and the children in August 2015, two weeks before the hearing. The mother was approximately eight months pregnant with Mr G’s child at the time.
The hearing commenced on 25 August 2015. In the course of the hearing it became apparent that an assessment of the relationship and interaction between Mr G and the children would assist the Court and the matter was adjourned for that purpose.
In 2015, the mother gave birth to a son, K, a child of her partner Mr G.
On 17 September 2015, the family consultant conducted interviews and observation of the mother, Mr G and the children and an Addendum Magellan Family Report was prepared on 25 September 2015.
On 2 October 2015, the hearing was resumed. On that date further evidence was given and judgment was reserved.
The matters in dispute
Has the mother neglected the children’s medical needs?
The father has alleged from the date of separation that the mother is neglectful of the children’s medical needs. It is apparent from the first family report of June 2012 that the allegations of neglect that the father raises in these proceedings are of a similar type to those which he alleged after separation and prior to the consent orders in February 2013. Throughout these proceedings he contended that the mother’s neglect of the children’s medical needs combined with her propensity for violence towards the children are such that she is incapable of providing adequately for the children. The mother denies that she has failed to provide medical care to the children when it is required or that they have been harmed in any way through neglect.
In the father’s affidavit, allegations about the mother’s lack of care for the children in respect of medical conditions commence almost immediately after the February 2013 parenting orders were made. From April to August 2013 he sets out numerous complaints of regular ongoing medical neglect. It suffices to say that throughout this period that he has some complaint about the mother’s care on every occasion that the children came into his care. The father’s affidavit continues in a similar vein between December 2013 and March 2014 and then a little less regularly throughout the balance of 2014 and early 2015. Similar complaints continue throughout 2015.
All of the father’s complaints rely upon reports made by the children themselves about their state of health or his own observations. The father does not adduce any evidence from a medical practitioner that supports his contention that on any occasion one of the children should have been presented for medical treatment while in the care of the mother and that the mother failed to do so.
In some of the instances, the mother simply says that the medical condition complained of did not exist. For example, in April 2013 the father alleges that D suffered from a nosebleed following surgery and the mother denies that this occurred. In May 2013, the father says that D had a blood clot in her eye when she came into his care which the mother denies. The father says the children told him about the nosebleed following D’s surgery and the complaint about the blood clot appears to be based on the father’s observation.
In other instances the mother accepts that the children may make complaints to their father about their health which the father seems to accept as true. She is concerned that the children have become unnecessarily preoccupied with their own health and exaggerate minor complaints. In her affidavit the mother sets out an example as early as March 2013 where C cut his toe on a visit to the pool and appeared upset. She says that they had the following conversation:
He said: “How will I explain this to dad?”
I said: “It’s okay!”
He said: “You know he’s going to ask me about it, it was an accident but he will make me say something else”
Examples of complaints for minor ailments set out in the father’s affidavit include C complaining of a sore ear in June 2014, the father’s observation in September 2014 that C had very dry skin following swimming, allegations that D had wax in her ears in December 2014, that C complained in June 2015 that his neck was sore, and that C was coughing and sounded unwell in July 2015.
Many of the complaints by the father relate to the mother’s entries in the communication book which passed between the parents. The father regards many of these entries as insufficient and in other cases complains that the mother does not use the communication book at all in circumstances where he contends she should do so.
It is the mother’s case that many of the complaints made by the father relate to such small concerns about the children’s health that they do not warrant entries in the communication book. She says that the father exaggerates the significance of very minor ailments suffered by the children and uses his concern to ground complaints against her.
An examination of extracts from the communication book concerning the children’s health and annexed to the father’s affidavit indicates that the mother did use the book to communicate with the father about the children’s health and that both parents also used the book to engage in debate with one another about the mother’s treatment of medical issues and the use of the book itself. For example on 14 August 2014 the mother wrote:
[B] had gastro last night. Better now. Just keep giving a carbs diet.
The father then wrote in the book:
[B] attended school in these condition and not taking to see doctor ??? I took [B] to see doctor. Doctor requested stool sample. It will be ready to collect results in 3 days. I hope you take him to see doctor after resaults are ready to see what bug he has. (sic)
Although the father does not annex many examples of the alleged inadequate entries in the communication book to his affidavit he refers to a number of minor matters to ground this complaint. For example in an entry in the communication book on 19 April 2015 the mother had written “[C] hurt finger in door”. The father made the following complaint in his affidavit. “…[the mother] had only put a band aid on to stop the nail coming off. This was left out of the communication book”.
The majority of the father’s complaints about the mother’s failure to seek medical attention for the children are in my view, of a minor nature. In many instances the father is critical of the mother not seeking medical attention but he does not say in his affidavit that he sought medical attention himself when he became aware of the particular complaint. For example on 27 June 2013 the father says that when he collected the children from school he observed B and D to be ill, on 27 March 2014 when he picked up the children D and C were ill, on 29 January 2015 when he collected the children B complained of stomach pains and C complained about pain in his ear and that he could not hear properly. I infer from the fact that the father did not take the children to the doctor himself in these instances that he did not regard the complaints as sufficiently serious to warrant medical attention. Nonetheless he uses these examples to complain about the mother’s lack of care.
In other instances when the father says that he observed one of the children to be unwell or that they made a complaint about their health, he took the child to his general practitioner for a “check-up” or on one occasion presented one of the children to the hospital. However he does not produce any evidence from a medical practitioner on these occasions which is critical of the mother’s care or express the opinion that the “delay” in receiving medical attention was harmful to the child.
The father denied under cross-examination that he regularly took the children to a doctor or hospital and initially denied that on many occasions was sent away without the children being treated. The father subsequently agreed that on occasions the doctor did not treat the child but reassured him. Further, the father’s own evidence is that he does at times take the children to a doctor regularly over a given period. For example on 13 June, 6 July and 18 July 2013 he took one or more of the children to the doctor, which was every occasion the children were in his care in this period. The balance of the father’s affidavit also refers to fairly regular attendances with the children at a general practitioner since separation.
The father tendered very few medical records in relation to the occasions he presented the children for medical treatment in the relevant period (that is after the February 2013 Orders). The ICL tendered other records that relate to particular presentations by the parents. In my view, an examination of these records indicates that the father has exaggerated his account of the issue of concern and the records are more consistent with the mother’s account of the event in question. For example, the father complains that on 11 April 2013 when he collected the children he observed B’s ankle to be swollen and blue and says that the mother did not “treat the injury or inform me of what had happened”. The general tenor of his evidence concerning this incident was that the injury was so serious that the mother was attempting to conceal it from him. According to the mother B hurt his ankle on a piece of playground equipment and she took him to a doctor who inspected the ankle and told her that B would be fine to go school. An x-ray and ultrasound report taken the day after the incident describes a 2.5 x 0.9cm area which the doctor records “probably represents a Haematoma”. The mother says that she informed the father of the incident by text message. In the communication book on 17 April 2013 the father made a number of entries concerning the children’s health including the following:
doctor checked [B] swollen and bruised left leg and the doctor told me it was HAEMATOMA. And it will take months for the internal bleeding to go down in the swollen part. And who TOLD incident or (indecipherable) brought [B] to doctor’s on 7/4/13 and you have not informed me of SUCH INCIDENT ??? (emphasis in original)
In my view the mother’s actions were appropriate in dealing with a small bruise on the child’s ankle. The father’s description of internal bleeding which would take months to resolve (for which there is no corroborative medical evidence) and his view concerning the relative seriousness of the injury in my view is an exaggerated response to a minor injury.
The father refers to another occasion on 20 December 2013 when he says he observed a burn and graze on C’s arm and the same injuries on B. He says that when he asked the children what had happened B reported to him that an uncle had put petrol on a barbecue when they were standing next to it [while in the mother’s care]. The father annexes photographs to his affidavit and says that he took C to the medical centre as C had a “high fever from infection”. The father does not mention in his affidavit that the children also reported grazes from a scooter or bike accident and implies that the grazes in the photographs related to the burns. The mother says when the children went to their father’s house on 20 December 2013 B had a graze on his right elbow and C had a graze on his left arm as a result of playing together on their scooters. She says that on around 30 December 2013 at a family barbeque some ash from the barbeque splashed onto each of the boy’s arms even though she told them to stand back from the barbeque. The mother said she inspected the burns and found that they were each smaller than a twenty cent piece. She said she had them wash their arms under cold water for fifteen minutes, that they did not become worse or infected and that she did not take them to the doctor because she did not think it was necessary.
The corresponding record from the medical practitioner says this of B’s presentation: “he has burned his right elbow….small burn… Looks well”. The record for C’s presentation on the same day indicates that C reported a fire burn and a fall from a bicycle, resulting in a cut on his arm. The record does not refer to “infection” or a “high fever”. The father also fails to mention in his affidavit that he raised this incident with the police and Community Services, alleging maltreatment by the mother. The father’s description and reaction to this incident including raising it with other agencies and describing a “high fever from infection” in his affidavit, in my view, also exaggerates the seriousness of this incident.
A number of the other instances of alleged medical neglect are on the mother’s case simply a difference of opinion among medical experts upon whom the parents rely.
For example, the father made arrangements for B to have a tonsillectomy in September 2014, and the mother sought an opinion from Dr J, the child’s paediatrician. Dr J questioned the necessity for the procedure and wrote a letter to the Nursing Unit Manager, Pre Assessment Unit at the Hospital which is annexed to the father’s affidavit.
Dr J wrote:
I don’t get a history of recurrent tonsillitis or snoring for the past one and half years from his mother. Could someone please check if he really needs a tonsillectomy before his tonsils get removed.
The father describes Dr J’s correspondence as “inappropriate interference” by the doctor. The mother ultimately agreed for B to have his tonsils removed and said under cross-examination that she had not opposed the operation but wanted more information about it.
A Magellan Report from Community Services setting out a summary of the children’s child protection history indicates that 35 notifications were made in relation to the children from April 2011 until February 2014 of which six were regarded as “risk of significant harm” reports. Of these, five did not proceed to secondary assessment and only one of them in June 2011 was investigated by the Department. These reports related to two issues, being physical abuse and failure to provide medical treatment. As a result of secondary assessment of the single incident investigated by the Department in June 2011 no further action was taken by the Department.
Findings in relation to this issue do not involve much consideration of competing versions of events. Both parents agree that the children make regular complaints about their health to each of the parents, especially the father. B and C reported matters associated with their health and the mother’s conduct in seeking treatment to the family consultant. For example B told the family consultant that “mum didn’t want me to do the [operation], dad did and now I am all better” and told the family consultant he believes the mother wanted him to be sick because she hated him. C reported that his mother “makes dad do everything” and when asked what he meant he said whenever he or his siblings are sick, [his father] takes them to the doctor. It is also beyond dispute that the father records in the communication book that passes between the parents his concerns and observations about the children’s health. In my view, in many of those entries the father is more focussed on directing or telling the mother what to do or complaining about her rather than simply providing information. The father also regularly takes the children to health professionals and on occasions has involved police in carrying out welfare checks when he has had concerns about the children’s health. He also regularly complained to the Department about the mother’s medical neglect.
There is no evidence that the mother’s failure to seek medical attention where it is in the father’s view required, has on any occasion caused any harm to the children. Sometimes, the medical opinions of doctors the parents have consulted have differed and on occasions the mother has yielded and consented to the procedure or treatment the father has sought, which has on her view resulted in the children being over treated.
Having regard to the foregoing I am not satisfied that the mother has failed to obtain medical treatment when it was required or that any decision she made with respect to medical care has resulted in any of the children being harmed.
For the foregoing reasons I am satisfied that the father has on occasions presented the children to health professionals when it was not warranted and has at times exaggerated the circumstances surrounding these presentations in his affidavit.
The family consultant considered the possibility that the father is genuinely concerned about the children’s wellbeing in the mother’s care and is attempting to act protectively of the children. She raises as alternative hypothesis that “he may be deliberately making allegations against Ms Betros and causing the children themselves to question their safety and security with her”. The family consultant opines that if this is the case his conduct “amounts to emotional manipulation, intrusive parenting and emotional abuse.”[1] I will return to this hypothesis when considering other factual findings later in these Reasons.
[1] The family consultant cites Children Who Resist Post Separation Parental Conflict: Fidler A, Bala N Saini M American Psychology – Law Society Series (2013)
Has the mother physically abused the children?
The father’s allegations that the mother uses excessive physical discipline and is otherwise violent towards the children are similar to his contentions about medical neglect, in that they rely almost entirely on complaints said to have been made by the children. They are also essentially a continuation of similar allegations made in the first proceedings which recommenced soon after the consent orders were made in February 2013.
In his affidavit the father sets out 21 instances dating from the February 2013 parenting orders when he says the children have complained to him about physical abuse said to have been perpetrated by the mother. These complaints, according to the father have been made at a rate of about one to three times per month from April 2013 which is roughly equivalent to the occasions upon which the children were spending time with him. Some of the complaints are extremely serious such as that the mother hit the children with a stick on many occasions, including one occasion on which the stick broke, that she scratched B causing deep infected marks on his hand and that on two occasions she bashed B’s head against a wall. The father also alleges that the children have complained to him of ongoing verbal abuse, threats and denigration of the father by the mother from August 2013 until the date of the hearing.
When first assessed by the family consultant in June 2012 while the children made complaints about their mother’s conduct they did not allege at that stage that she was physically abusive. For example when B was interviewed for this assessment when he was six and half, he described his mother’s family as “dangerous”. C who was five and a half described his mother as “angry a lot”. In the second assessment in December 2014 the children’s allegations about their mother were much more serious and included complaints of physical abuse by her. B told the family consultant that the mother was “mean” because she locked him in his bedroom, that she “lies a lot to everybody” and had hit him with a stick, causing the stick to break. He also reported that the mother hits him when he has been naughty but does not hit the other two children. When C was interviewed he complained that his mother was mean and smacked him and locked him on the balcony. C also told the family consultant that everyone in his mum’s family “hit the kids”. D told the family consultant that when she or her brothers misbehave the mother usually sends them to their room and “cancels something”. She also said that the mother did not smack her but sometimes smacked B and C, but explained that this was “a long time ago” and she did not smack them anymore.
Under cross-examination the father agreed that he had reported some of his concerns about the mother’s conduct to police. For example in December 2013 he reported concerns about the mother’s physical chastisement of the children to police and three days later complained that the children had been burnt at a barbeque at the mother’s home. The father also agreed he made complaints to Community Services on many occasions that the children were at risk due to the mother’s physical maltreatment. It can be inferred that most of the large number of notifications made to the Department about physical abuse originated from the father as many of the complaints relate to information that would appear to be known only to him. An examination of the notifications indicates that some of the complaints concern extremely trivial matters. For example, in September 2013 the father reported to the Department that the mother had forced the children to eat burnt chicken.
Documents produced by the Department show a very long history of reports of physical abuse said to have been perpetrated by the mother. According to the Magellan Report the Department received a complaint in June 2011 about an injury to C’s eye in which the reporter also alleged that the mother at that time hit B with her shoes and belt on a weekly basis. The Department carried out an assessment but concluded that there were “no concerns of neglect or physical abuse for [B]”. In August 2011, the Department received a complaint that the mother had hit B all over his body with her hand and a belt. The Department did not carry out any further assessment in relation to this complaint.
Although these complaints pre-dated the first Family Report the father did not make any complaint that the mother physically abused any of the children to the family consultant in May 2012 nor did the children make complaints of such abuse.
The Magellan Report indicates that further risk of serious harm reports were made from July 2013. However, the first of these reports after this time were non-specific in relation to physical abuse with the reporter indicating that the mother “beats” and “smacks” the children but being unable to clarify what was meant or provide any further information. The Magellan Report refers to a complaint received on 21 December 2013 that C and B had been burnt at a family barbeque. The report also stated that B had received a bump on the head as a result of the mother throwing a deodorant bottle at him and had been allegedly hit in the head with a frying pan (on an unspecified occasion) but no further action was taken by the Department.
The father also told the family consultant that “the children” had been hit with a stick and a frying pan by the mother, but he had not seen any marks or injuries associated with these assaults and did not identify when the assaults were said to have been committed. In his affidavit the father provides no details of an incident in which the mother hit any of the children with a frying pan after the February 2013 orders.
Records of the Department indicate that in September 2014 B attended school with scratch marks and disclosed that his mother had scratched him during an argument. B also reported that his mother hit him with her hand or a stick on his arms, legs and body and had once slapped him across the face and also hit the other children. B’s complaints were reported to the Department which referred the mother to the Brighter Futures program. According to Brighter Futures records the mother agreed that she had restrained B from hurting his siblings in the course of the incident that he had complained about. The mother was also open in the proceedings about having restrained B from hurting his siblings. It is recorded that the mother also reported to the Brighter Futures case worker that B sometimes bangs his head on the wall and threatens the mother that he will hit her or himself with a stick. She described the stick as a thick dowel which she has placed in windows as a security measure.
Although the initial reason for the engagement with Brighter Futures arose from a notification suggesting that the mother may have used excessive physical discipline, there is no evidence from Department records to indicate that the mother used inappropriate or excessive discipline with respect to the children or was violent towards them on any occasion. The records are consistent with the mother’s evidence that the main focus of concern was B’s violent behaviour particularly in the home and towards his mother and siblings and B’s allegations.
The Department’s more recent involvement with the family resulted from a notification in July 2015, also as a result of B’s complaints that his mother had assaulted him. On this occasion the Joint Investigation and Response Team (“JIRT”) (a joint police and Community Services team responsible for investigations of allegations of serious abuse of children) rejected the referral for investigation by the Department. Although the mother also denied this allegation, she again co-operated with a home visit and assessment about the complaint and agreed to sign a safety plan with respect to steps that could be taken by her to reduce the danger of resorting to excessive discipline or physical force in relation to her children. When cross-examined about the safety plan the mother said that she did not agree that Community Services had identified that there was a danger that she would use excessive discipline or excessive force. The mother also said she felt she was required to sign the safety plan.
The mother denies all allegations of physical abuse or excessive physical punishment. She denies the specific allegations that she has struck the children with objects including sticks and that she bashed B’s head against a wall and that she has on any occasion verbally abused the children. The mother agrees in her affidavit that in the past she has “occasionally disciplined [the] children by smacking them on their bottom or on their hand with [her] hand.” However, she denies that this is her usual discipline regime and says that she has completed two parenting courses to assist her in developing good parenting skills. The mother also denies that members of her family have hurt the children except on one occasion her father smacked B on the leg when B kicked his cousin in his school boots and swore at his grandfather in about the middle of 2011. The mother also denies swearing about the father or denigrating him.
Discussion and findings – allegations of physical abuse allegedly perpetrated by the mother
The father alleges that the mother has engaged in serious physical abuse of the children which is denied by her. In M v M[2] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[2] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[3] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[3] [2007] FamCA 1235 at [72].
The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[4] and will be applied when resolving the issue of physical abuse and later psychological abuse in this matter.
[4] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[5], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[5] (2005) FLC 93–235.
The first question therefore, is whether I am satisfied that the allegations that the mother has physically abused the children are proven, on the balance of probabilities, taking into account the matters set out in s 140(2) of the Evidence Act 1995 (Cth).
The first matter to be noted is that the allegations of physical abuse are based entirely upon the children’s complaints. There is no doubt that at least since the February 2013 orders were made, B and C in particular have been complaining vociferously and regularly about the mother’s conduct and in particular that she has physically abused them. Complaints by the children have also grounded notifications made by the school to the Department which has resulted in intervention by that Department on two occasions. The children also readily complained to the family consultant about the mother’s conduct and in the second assessment B and C alleged physical abuse.
However, there is no medical evidence of any injuries suffered by the children as a result of any alleged assaults. In my view, injuries would be expected in the cases of more serious abuse such as repeatedly striking a child with a stick and causing it to break or bashing a child’s head into the wall or hitting him with a frying pan.
The father, who does not hesitate to seek medical attention for even minor complaints, does not say that on any occasion he sought medical attention for injuries said to have been caused by the mother’s physical assaults. He does however annex photographs to his affidavit which are said to depict injuries occasioned by the children in particular assaults. I infer from the fact that he has chosen to annex these particular photographs that he regards them as indicative of serious injuries. According to the father, the first two photographs (Annexure W to his trial affidavit), depict “deep and infected” scratches to one of B’s hands. In my view one photograph depicts a very minor and superficial scratch to a finger and the other shows an indistinct small lesion to a wrist. There is no apparent indication of an infected injury or any other evidence such as a doctor’s report to corroborate the father’s description. The third photograph (Annexure U) is said by the father to depict a graze to B’s forehead occasioned in July 2015 when B allegedly told the father that his mother grabbed his head and scratched him with her nails and bashed his head against a wall. In my view this photograph also depicts a superficial skin lesion. There is no medical evidence in relation to either of these alleged injuries or evidence that the father even presented the children to doctors on these occasions.
It is in my view simply unbelievable that if the mother had bashed B’s head against a wall in August 2013 as he reported, or constantly hit B and D with a stick in about September 2013 or hit B with a stick causing it to break in July 2014, that there would be no discernible injuries. It also seems inconsistent with the father’s readiness to present the children to medical practitioners, that when he felt a small bump on B’s head as a result of having been hit on the head with a deodorant bottle that he would not have presented the child to a doctor. It is also curious that this is the only incident where the father says he observed an injury on any of the children inflicted by the mother’s assaults, and the mother does not deny that this incident occurred, but says was an accident.
In my view, the father’s readiness to accept the truth of the children’s complaints about serious assaults even if they were made, in the absence of an injury does not reflect well upon his credit. The father does not appear to consider that the children may make such complaints to him for other reasons, even though the family consultant expresses an opinion in this regard in her report of December 2014. In that report she says
The reports of [B] being “bashed” and hit with a frying pan were unusual, as reported by [Mr Betros], no physical marks were noted. It is possible that the children complain to [Mr Betros] of being hit by [Ms Betros] to obtain a certain response from him, that is, they may be having an emotional need met by [Mr Betros] by making such complaints to him.
In determining whether the father’s allegations are proved, it is also of significance in my view that some of the more serious allegations are vague and lacking detail. While the father gives details of occasions on which he says the children complained of specific assaults in the period after the February 2013 orders, there are other serious allegations which are only made in a very generalised way. For example the father does not identify in his affidavit any of the circumstances surrounding the complaint by one of the children that the mother struck him with a frying pan.
I infer from the fact that the father did not raise this incident or any other allegation that the mother assaulted the children in the first family consultant’s assessment in December 2012 that the father alleges that the mother only began assaulting the children after this time. This is consistent with the children’s first interviews which although containing other complaints about the mother’s conduct do not contain allegations of physical assaults. In my view, it is a strange proposition that the mother was prepared to compromise and agree to orders that provided for the father to spend more time with the children than recommended by a family consultant and a short time later for the first time commenced physically assaulting her children. It also is curious that even though the father must be alleging that the serious assault in which the mother struck a child with a frying pan occurred after the first parenting proceedings, he does not specify when he contends one of the children made this complaint or even identify in his affidavit which of the children made this complaint.
In assessing the father’s complaints about the mother’s physical assaults, I also attach some weight to the fact that many notifications were made to Community Services but the Department took no further action and did not investigate the vast majority of the complaints even at a preliminary level. The only action taken by the Department was to refer the mother to the Brighter Futures program. There is no evidence in the records of Brighter Futures relied upon in the proceedings to suggest that agency was concerned about the mother’s actions in relation to the children. The tenor of the records is that the mother welcomed the assistance of Brighter Futures in her management of the children’s behaviour. This is consistent with the mother’s affidavit evidence that she readily accepted support from a range of agencies to assist her in her management of the children.
I accept the mother’s evidence concerning her discipline of the children for the following reasons. First, she was prepared to make concessions against interest such as, that on occasions she did yell at the children and in the past she had hit them with her hand on their bottom or hand. The mother does not deny that on occasions she has also restrained B, particularly when he is violent and threatening towards his siblings. I accept the mother’s emphatic denial that she hit any of the children with a stick. She conceded that she did have sticks at her home which she uses to put in the windows for security as the home has been broken into in the past. It seems inconceivable that if she had struck a child with a stick and in particular with such force that the stick broke that a mark would not be left. It is of significance that the only injury said to have been observed by the father resulting from the mother’s abuse relates to a matter which she concedes, but was on her version an accident.
I am of the view that the children’s complaints are not reliable evidence of the matters complained about. Their readiness to complain to the family consultant about matters of which they would have no personal knowledge such as their mother’s failure to provide appropriate medical attention when required is a cause for concern. I also have regard to the family consultant’s opinion concerning a possible explanation for the children’s readiness to complain to their father about their mother. The family consultant opines that the children may do this to obtain a certain response from him to meet an emotional need.
Having regard to the foregoing I am not satisfied on the balance of probabilities that the mother has physically abused the children as alleged by the father. However, having regard to the mother’s concession that she has hit the children in the past and has restrained B on occasion, in my view, there is some risk that the mother may use excessive physical discipline especially in the management of B.
In assessing the magnitude of this risk, I have regard to a number of matters. First, the mother recognises the problems inherent in physical discipline. She has availed herself of a range of services including parenting programs and gave evidence about the assistance she has gained in the management of the children. I also take into account the positive assessment of the mother’s management and discipline of the children observed by the Brighter Futures staff and recorded in their records. The mother also gave evidence which was not challenged, that it is some time since she has used any physical discipline on the children, which is also consistent with D’s statements to the family consultant. I also accept the mother’s emphatic denials of ever having used any implements for the purposes of discipline. Taking these matters into consideration I do not find that the magnitude of the risk that the mother may use excessive physical discipline or physically abuse the children is unacceptable.
Has the father perpetrated family violence as alleged by the mother?
The mother alleges that the father has engaged in physical violence and coercive and controlling behaviour towards her throughout the relationship and following separation. In particular she alleges that during their marriage the father harmed himself in response to matters related to the mother’s conduct that displeased him, controlled the mother’s finances, scrutinised the mother’s mobile phone statements, forbade the mother from talking to people including her closest friends, controlled her contact with her family, installed an alarm system in their home so that he could monitor her movements and damaged and destroyed her personal property. The mother deposes to a number of separations and threats the father made in an effort to have her return. She also alleges that from around 2009, the father became physically violent and on occasions when angry hit B hard with his hand or a belt and undermined her by telling the children that they did not have to obey her.
Although the proceedings are mainly concerned with circumstances following the February 2013 Orders and the parties were not cross-examined concerning events and incidents prior to this date, it appears that the father does not dispute that during the marriage he engaged in some of the behaviour which the mother alleges was controlling and coercive. For example, when interviewed by a family consultant in June 2012 for the purposes of a family report in the first proceedings, the father told the family consultant that he did not like the mother’s family and he “stopped her from seeing her family”, as he didn’t approve of the way “her family did things and the way they act”. The family consultant records that the father “reported that he believed [the mother’s family] might “influence” [the mother] and the children, so he would not permit her to have contact with her family unless he was present. The father advised that the family consultant on that occasion that his “biggest issue” with the mother was that he could not trust her and gave the example of the mother telling him that she was going to visit her parent’s home and that he later drove by and saw that her car was not there. The first family report also records that the father described instances of where he would “limit [the mother] seeing her friends” because the mother did not seek to include him in her activities. The father also confirmed to the family consultant that he managed the household budget and finances which included asking the mother to show him any receipts for any purchases so that he could budget accordingly.
On the basis of the father’s admissions to the family consultant in the first assessment, which are consistent with the mother’s allegations, I am satisfied on the balance of the probabilities that the father did engage in behaviour that coerced and controlled the mother prior to separation, which falls within the definition of family violence under the Family Law Act 1975 (Cth) (“the Act”).
The mother alleges ongoing controlling and coercive conduct by the father after separation, and in particular after the February 2013 Orders. She also sets out in her affidavit examples of his behaviour that she contends coerces and controls the children.
The mother alleges that the father has encouraged the children to insult and denigrate her from when they were very young. She says in her affidavit that in the first few months after separation, both of her sons, and especially B (who was five at the time) would challenge her and be “emotionally difficult” towards her, after spending time with the father. She sets out in her affidavit some concerning conversations that she had with the children from which she informed the impression that the father had encouraged the children to take on the role of informers for him. For example, in April 2011 very soon after the parents separated she says B said to her. “[Father] took me to someone and I had to tell them that you do not look after me and they could write everything I said, down”. At around the same time the mother says that C said “I am sick of [Father] making us say bad things about you. [Father] asks too many questions”. On an occasion in September 2011, the mother says that both boys told her that their father wanted them to steal her phone and in November 2011 on an occasion when she delivered the children to their father’s home B hugged her and whispered “mum, are you proud of me? I hugged you in front of dad”.
The mother sets out many examples of the father making complaints alleging maltreatment by her to various agencies including doctors, hospital staff, preschool staff, Community Services and police and that the children reported in some instances that they were required to say certain things by their father about this maltreatment. When the children were assessed by a family consultant in June 2012 for the purposes of a family report, the mother reported her concerns along similar lines. When interviewed on this occasion B presented an overwhelmingly positive view of his father and the father’s household and described the mother’s family as “dangerous” and said he knew this because “dad said they are”. C described that his father’s family were all “happy” and that his mother’s family are “not happy” he also told the family consultant that his mother and her family “all lie”. He said he knew this because his father had told him and his father “is right” and “doesn’t lie”.
In her June 2012 report, the family consultant expressed the following view:
the children appear to have witnessed ongoing conflict between their parents. It also appears that they have witnessed family violence in terms of coercive and controlling behaviour towards the mother and this has had a substantial impact upon their psychological and emotional wellbeing. [B] and [C] appear to be emotionally influenced by [the father]’s negative view of [the mother] and they have openly demonstrated a lack of trust in her.
Although it is not entirely clear when the children’s counselling with L Counselling began, a notation to the orders made in February 2013 indicates that B and C were to receive counselling which was intended to be for a three to six month period.
According to the mother, despite the counselling the children continued to make comments which suggested that the father was continuing to encourage the children to act as informers on his behalf and in this manner coerce and control the children and through them attempt to maintain control over her. She says for example that in May 2013 B said to C “if you have a sleep over at your auntie’s house, I am going to tell dad”. In about July 2013 after the mother says she showed pictures of her graduation to the children B said “who are your friends? Do you sit next to boys in class? You shouldn’t be seeing them. You shouldn’t even be leaving the house. What are you spending your money on?” In August 2013, she says B said to her “dad said you was seen driving past his street and it was caught on camera” and on the same night C refused to eat his dinner and said “I’m going to tell my teachers that you are force feeding me”. On 11 December 2013 when the children returned from spending time with their father the mother says that B said “I hate you mum. And [C] says the same thing when he is at dad’s house”. She says that C whispered to her “I don’t mean it, mum. I only say it to make dad proud”.
The mother deposes that after B and C stopped counselling in mid December 2013 the children became more distressed and unsettled especially when they returned from time with their father. She says C and B often refused to do things she asked and pushed her away when she hugged them. The mother also reports in 2014 for the first time that D made similar negative remarks. For example on 9 January 2014 she says D said to her “you taught me to lie, mum” and when the mother asked her what she meant D said “I don’t know, but dad said”.
The mother also reports that B began to “bully and control his sister much more” after counselling ceased. For example on 13 March 2014 she says that B pushed D and yelled at her because she had sat on his bed. She says that B said “she is a girl. Girls can’t touch my things. I hate girls”. B’s difficulties with girls apparently also extended to the classroom and the mother says that in her observation B’s “problems with girls” are always worse following weekends with his father.
In June 2014, the mother says there was an incident when the children returned from spending time with their father and B was behaving in a bullying manner toward his brother and sister. The mother says when she told him to stop fighting B scratched her on the arm and said “dad says you hate us. You are a liar. I am going to prove you’re a liar”. The mother says that B became particularly argumentative and defiant towards her and on an occasion in June 2014 repeatedly called her a “dog”.
The mother refers to similar concerns in relation to C. For example, she relates a conversation in around June 2014 in which C told her that he was “going to tell the government on [her]” though he was unable to explain what “the government” was.
The father’s evidence in relation to this issue is that he cannot recall ever saying anything negative about the mother and her family to the children and denies that he ever told the children that their mother tells lies. He also says that he has never sought to undermine the mother’s relationship with the children and claims that he will not engage with the children in negative comments about their mother.
The issue of the deterioration in B’s behaviour is dealt with later in this Judgment. It suffices at this stage to say that B became very aggressive and violent in the mother’s household particularly in his interactions with his mother and siblings and that this significantly deteriorated from around mid-2014. In August 2014, the mother sought the advice of Dr J, B’s paediatrician who recommended counselling but the father did not consent to that occurring.
After Brighter Futures began engaging with the mother following a referral from Community Services, case workers in the mother’s home observed B’s aggressive and coercive behaviour towards his mother and siblings on a number of occasions. For example, on 5 November 2014 the case worker records that B was “yelling at his mother to lock him in the room” and “was pushing and pulling on the mother’s arm then hit his mother”. The mother refers to an incident on around 24 November 2014 when B had a major tantrum and asked her things like “what do you do all day? Where do you go?” The Brighter Futures case worker observed B’s behaviour on 10 December 2014 and described him as “yelling and putting demands on his mother”, constantly over a 40 minute period and turning the television or lights off when he didn’t get what he wanted. B also told the case worker to “get out of his house and not to talk to him”.
At the assessment for the second Family Report the mother informed the family consultant of the same matters of concern as those set out in her affidavit. In particular she was concerned about the deterioration in the children’s behaviour after the consent orders were made, especially B’s threatening and questioning behaviour and physical assaults upon her and the other children.
When assessed by the family consultant in December 2014, B continued to provide very polarised views of each of his parent’s households. He described his father as a “very kind man” and “very honest” and said he enjoyed spending time with his father. He described his mother as “mean” and said “she lies a lot to everybody”. B told the family consultant that he thought his mother hated him and said that she called his father and D offensive names. He told the family consultant that his mother had previously taken him to see Dr J who told him dad is a “dumb idiot” and that he did not like Dr J because he was “mean and makes fun of my dad”. C told the family consultant that he enjoyed spending time with the father on weekends and lived with the mother the rest of the time. The family consultant said that C “began talking in a monologue” in which he said that his mother was mean and smacked him and locked him on the balcony and in the course of the monologue said that his mother’s family “all hit the kids”. C told the family consultant that his father had reminded him and his siblings “of all the bad things to say to [the family consultant] cause he wants us to tell the truth”, and also reported that B “always hurts me and my sister” and scratches and punches them.
The family consultant was of the view that D appeared to be less obviously affected by the parental conflict which she opined may be a product of D’s age and developmental stage.
The family consultant felt that one of the central issues in the case is whether the father is attempting to alienate the children from the mother. The father had reported to the family consultant that he has difficulty getting the children to return to their mother “which he appeared to equate with them wanting to live with him” and which he believed resulted from the mother’s alleged maltreatment. She further said the following,
If the court finds that [Ms Betros] is not physically abusing the children and is not neglectful in meeting their medical needs, then it appears likely that [Mr Betros] is attempting to interfere with the children’s relationship with [Ms Betros] and undermining it, which may lead to alienation of the children from [Ms Betros].
As discussed earlier in these Reasons, when considering the allegations of medical neglect and physical abuse, the family consultant considered the possibility that the father is genuinely concerned about the children’s wellbeing in the mother’s care and is attempting to act protectively of them. She said that alternatively he may be deliberately making allegations against the mother and causing the children to question their safety and security, which would amount to emotional manipulation and abuse. She noted that “this may be done both directly and indirectly and can include subtle messages, such as not approving of something she has done or has not done and communicating this to the children”.
As also noted earlier in these Reasons, the family consultant assessed the mother’s partner in the course of the hearing in September 2015. At this (third) assessment the mother reported that when B returns from spending time with his father he asks what they did without him and looks through her laundry to see what clothes she has worn while he has been away. She said that B has warned her and Mr G before, not to go out without him or he will find out.
I am satisfied that the father has engaged in a behaviour towards the children which coerces and controls them in an attempt to interfere with the children’s relationship with their mother and which is beginning effectively to alienate them from her. The children’s alignment with their father appears to indicate the effectiveness of the father’s control over them. I am satisfied that the father makes allegations against the mother in the children’s presence and in my view this causes the children to question their safety and security as postulated by the family consultant. I am also satisfied that the children are aligning with the father as they fear his reaction if they have a positive relationship with the mother as also suggested by the family consultant. Some of B’s behaviour has the hallmarks of coercion and control itself, such as questioning the mother about who she associates with and rifling through her hand bag and laundry to locate an offending item and informing the mother that he will report her conduct to his father. He is also bullying and aggressive towards his younger siblings. This suggests that B may be modelling behaviour that he has witnessed in the father.
Even if I am unable to find that the father has deliberately engaged in a process of alienation or destroying the children’s relationship with their mother, I am satisfied that he is behaving in this manner at least at a subtle and indirect level. I am also satisfied that he has instructed the children to report to him on their mother’s activities, which is in my view coercive and controlling behaviour towards the children. Encouraging and instructing the children to report on their mother’s behaviour is in my view also an attempt to control the mother through the children. In behaving in a coercive and controlling manner towards the children the father’s conduct falls within the definition of family violence.[6]
[6] Family Law Act 1975 (Cth) s 4AB.
Are the children being psychologically harmed from being subjected to abuse?
The mother’s contentions concerning family violence are very much associated with her contentions concerning the psychological abuse of the children. It is her position that the children are being abused by the father within the meaning of s 4 of the Act as his conduct is “causing them to suffer serious psychological harm” or that there is an unacceptable risk that this is occurring. As discussed earlier, it is the mother’s case that the father’s denigration of her and of her conduct, in the presence of the children and his behaviour that coerces and controls them amounts to a practical “alienation” of the children from her and that they are suffering serious psychological harm. The father denies any abuse of the children by him and believes that the behavioural difficulties displayed by the children reflect the inadequacies in the mother’s parenting capacity.
The question for me to determine on the balance of probabilities is whether there is an unacceptable risk that the father is causing the children to suffer serious psychological harm.
The pattern of B’s deteriorating relationship following the February 2013 Orders, particularly when he ceased counselling in mid-December 2013 has been referred to when considering the issue of the father’s coercive conduct.
As indicated, the mother became particularly concerned about B from around mid-2014 and sought the opinion of Dr J, B’s paediatrician.
Dr J expressed the following view in a letter to the father on 15 August 2014.
I am concerned about [B’s] behaviour. He had counselling in the past through L Counselling and while the counselling was happening his behaviour around his mother was much better.
Now that he is not having counselling anymore his behaviour has become much worse.
When [B] is around you he is frightened of you so his behaviour improves. He is not frightened of his mother so he is not respecting her and because he is not learning to respect his mother he is not learning to respect himself.
He has problems with anger and he is bullying his younger brother and sister.
…
I am very concerned with [B’s] future if he continues like this. I think [B] is in a lot of pain inside and deep down he is very insecure.
…
I am of such a strong opinion that [B] needs ongoing counselling that if you refuse to allow this in Court then I will come to the Court and give my opinion.
I would be happy to talk to you about this if you want. (emphasis in original)
In his affidavit the father says that all three children behave well when they are in his care. He says that the children have been “over exposed to counselling services”. In another part of his affidavit dealing with the children’s health, the father refers to Dr J as having “inappropriately interfered” with B. He said that the letter he received from Dr J recommending that B attend counselling came about at the mother’s request as he had previously advised that he did not agree to counselling suggested by her. He says that when he received Dr J’s letter he attended the school to see the school counsellor who advised there were no problems with the children. The father refused to agree to the children receiving counselling as recommended by Dr J.
Community Services records indicate that on 12 September 2014 B attended school with scratch marks on his arms and hands and disclosed that on 9 September his mother scratched him during an argument. He reported that his mother swears at him and hits him a lot when she is angry. The notification made to Community Services (which appears to have been made by the school) indicates that the notifier said B looked “really sad about the incident”.
On 15 September 2014 the mother says that B returned from his father’s home in a very aggressive mood and that he hit C, spat at her and scratched her arm. The mother says that at bed time B was very distressed and could not sleep and that the following occurred.
[B] said, “Dad said you don’t love me and that you hope that we are dead”.
[The Mother] said, “Don’t listen to Dad, Dad shouldn’t say things like that”.
Then suddenly [B] looked at me and said “I’m gonna tell Dad you bashed me and we are going to the hospital”.
On 19 September the mother wrote in the communication book “[B] needs counselling, his bullying his siblings is getting out of hand, they always come back in distress”. The father wrote in response:
[B] is fine when he is in my care, no signs of bulling he is well behaved kid arround me & my family. I believe he is distressed off yo [Ms Betros] alway refuse to go back to you I, don’t understand y?? Is it because you are not coping or your treetment twords [B] & [C] & [D].???? (sic)
Community Services records indicated that as a result of the notification made by the school (as a result of B’s complaints) the mother was referred to the Brighter Futures program. The records indicate that the mother readily engaged with Brighter Futures and that a case worker from that agency began working with the family including conducting home visits in October 2014. The records also indicate that the Brighter Futures case worker left a number of telephone messages with the father requesting him to make contact with her.
On 5 November 2014 the case worker from Brighter Futures recorded the following during a home visit.
The children had just arrived home from school, the eldest child was in the kitchen, he was yelling at his mother to lock him in the room and the child was pushing and pulling on the mother’s arm then he hit his mother. The younger male child was curled up in a ball sitting on the far end corner of the lounge, he was crying. The female child was sitting on the lounge playing with her Ipad.
The records also indicate that the father made contact with the Brighter Futures case worker on 7 November 2014. It is recorded that:
the father stated the he does not appreciate the CW [caseworker] talking to his children and that he would be contacting his lawyer about the matter. The father stated that the children had told him that a lady was at their home talking with them. The father stated that he did not give permission for me to be talking to his children. The father wanted details of the case workers senior manager of Brighter Futures not the direct line manager. The father requested that the CW not make contact with him again. The father stated that the children are fine, they do not need anything and neither does he. The father was informed that the case worker will more than likely go and visit the children again in the coming week. The father was offered the option to have a home visit at his place but he declined. (sic)
The family consultant was unshaken in her evidence concerning the psychological harm to the children in the event that the Court made findings concerning the father’s conduct and did not find the father’s allegations with respect to the mother proven. She also remained unshaken as to her recommendation that the children spend time with their father, six times per year and under supervision if such findings were made. It was only after this evidence was given that the mother changed her position.
The orders proposed by the ICL includes provision for the father to address those aspects of his behaviour which are relevant to his engagement in family violence and emotional abuse of the children and leave open the possibility of supervision being reconsidered when these matters have been addressed. In my view this proposal appropriately addresses the need to protect the children from harm and allows support for a more meaningful relationship between him and the children in the future.
Additional considerations
Views expressed by the children
B and C have each expressed the view on each of the three occasions they have been assessed by a family consultant that they would prefer to live with their father. However, their reasons for this preference has changed over time. B first expressed this view when he was six and half. At that time he said he would like to live with his father “because he is buying us a puppy” and “all my stuff is there” and also said that he “would like Mum to live there too.” When he was next interviewed at the age of nine he had very strong positive views about his father and negative views of his mother. When interviewed by the family consultant for a third time in September 2015 in the course of the proceedings, B was still positive about his father and generally more negative about his mother, though his criticisms of her had softened somewhat and he used the past tense with reference to her hitting him.
B also expressed his views with respect to his parenting arrangement to the family therapist, Dr F. The therapist provided a report on the sessions she had had with the family over a four month period leading up to and during the hearing. In those sessions B reported on ongoing conflict with his mother and repeatedly told the therapist how much he wanted to live with his father. B also told Dr F that he does not like his stepfather.
C was only five and a half when interviewed first by the family consultant. At that time he expressed a preference to live at his father’s house and said that he feels “sad” at his mother’s house. When interviewed for a second time when he was eight, C did not express a view about where he wished to live but was positive about his father’s household and negative concerning his mother. He told the family consultant that he loved both his parents. It is also reported that he said he “liked dad more than Mum” but then paused and added “just a tiny bit more”. When interviewed for a third time in September 2015 C was very negative about his mother and living in her household and said that he thought she hated him. Dr F also described C as having “a strong alignment with his father, and although not as vehement as B sees his mother as a harsh parent who favours his sister over himself and his brother”. She said C considers his father as the parent who will do anything for him and his siblings.
D was only three when first assessed by a family consultant and her views were not sought. In the second assessment by the family consultant when she was almost six D said that it would be best for her to live the same amount of time with each parent because this was “more fair”. When interviewed on the third occasion after the mother’s fourth baby K was born D was positive about the mother’s household, including in her comments about the mother’s partner. She also used the past tense when referring to the mother’s partner shouting at and smacking her brothers.
Although the children’s views have been consistently and strongly stated, I do not attach any weight to them, given the children’s ages and emotional immaturity. I am also of the view for the reasons given that the children’s views have been influenced by the father. Each of the children refer to negative things told to them by their father about their mother and in the second interview with the family consultant, C said that the father had reminded him and his siblings “of all the bad things to say to the family consultant” and told him to tell the family consultant “all the things we don’t like”.
I also accept the family consultant’s evidence that the nature of the father’s influence may be indirect and subtle “such as not approving of something that [the mother] has done and communicating this to the children”. For example, the children reported to the family consultant matters of which they would not have independent knowledge which are consistent with the father’s allegations such as the mother’s failure to meet their medical needs. The father’s partner’s evidence was also to the effect that she believed the children’s experience in their mother’s home was overwhelmingly negative. I am of the view that given her relationship to the father this evidence is likely to be accurate and reliable and gives a valuable insight into the negative view about the mother and her household which prevails in the father’s household.
Nature of the children’s relationship with each parent and other significant persons
In her first report, the family consultant said that the father was warm and affectionate with all of the children. There is also no doubt that the father plays an important role in the children’s lives and I accept the family consultant’s oral evidence that the children hold the father in high esteem and love being with him. Another particular feature of the children’s relationship with their father is that they appear to have an emotional need for a response from him when they make complaints about their mother’s conduct to him.
I also accept the family consultant’s opinion that C loves both of his parents, but that this is causing psychological conflict for him and he is carrying a burden of divided loyalty between his parents.
In the view of the family consultant and Dr F, D seems least obviously affected by the parental conflict. She appears to have a warm relationship with each of her parents.
For the reasons given, I am of the view that the children are showing signs of alienation from their mother. Although she has been the primary care giver for the children throughout their life, in the first assessment by a family consultant the children are described as appearing to have an ambivalent relationship with her, in that they treat her warmly but there is evidence of negative attitudes towards her. This continued as a theme in the second report and in oral evidence in the proceedings.
B’s relationship with his mother is particularly complex. He expresses very negative views about her and has been observed by a number of people other than the mother and members of her household (such as the Brighter Futures caseworker and Dr F) as being abusive and aggressive towards her. The family consultant considered that this conduct may be a product of B’s deteriorating relationship with his mother. However, when observed by the family consultant in December 2014 B invited his mother to play with him, and appeared to relish her physical interaction with him. The family consultant observed that he became somewhat frustrated when her attention moved to the other children. In the final report prepared in September 2015, the family consultant said that although B reports that he feels negatively towards his mother, his observed behaviour did not reflect this. This indicated to the family consultant that B seems to continue to experience psychological conflict.
The father’s partner, Ms I, was not interviewed by the family consultant in October 2014, but she was observed with the father in her interactions with the children. Ms I joined in the games that the children were playing and appears to have acted appropriately during the short observation. The children were each positive about Ms I, with B reporting that she was “very kind” and D stating that she was “nice”. It is clear from Ms I’s evidence that she has spent time with the children on a number of occasions and has participated in outings with them. Although I am unable to make any findings about the nature of her relationship with the children, in my view it is of concern that she is extremely aligned with the father’s position that the mother is abusive and neglectful and is of the view that there was nothing positive about the children’s relationship with their mother.
In my view it is curious in the least, that the mother did not make her partner Mr G available to be assessed by the family consultant in October 2014 and suggested that the relationship was new. Accordingly, the family consultant formed the view that it was unlikely that the children would have a significant relationship with Mr G at this stage. Having regard to the fact that the mother and Mr G had participated in a commitment ceremony a few days prior to the assessment, and that the mother became pregnant with Mr G’s child only a short time later, I am of the view that the mother was minimising that the role of her partner in the children’s lives. This does not reflect well on her given the nature of the orders she was seeking even at that stage, and by inference her expectation that her partner would be playing a significant role in the children’s lives in the future.
In the course of the proceedings, the hearing was adjourned to enable an assessment to be made of Mr G’s relationship with the children and to consider matters of concern about him raised by the father. By the time that assessment was carried out in September 2015, Mr G was living with the mother and their child K had been born.
When the family consultant further evaluated the family, B and C reported generally negatively on their mother’s partner. They were critical of him in general terms, but did not have any specific safety concerns, except to say that he had shouted at them. However, during the observation sessions all of the children appeared relaxed and comfortable with Mr G and B was observed to seek out Mr G’s attention as he had done with his mother. Once again, although B reported negative feelings towards Mr G this was not consistent with his observed behaviour.
Participation in long-term decision making, spending time with and communicating with the children
Under the various interim orders that have been in place with respect to the children since separation, parental responsibility has always been allocated to the parents jointly. Unfortunately the parents have been completely unable to cooperatively make decisions together and joint parental responsibility has been used by each of them against the other, which has not been in the best interests of the children. For example, the father was able to prevent B from receiving counselling for a lengthy period of time by withholding his consent for that to occur when counselling was undoubtedly in the child’s best interests.
Both of the parents have been persistently committed to spending time with and communicating with the children.
Maintenance of the children
The mother has not received any financial assistance from the father since separation other than through child support, and it appears that for some period of time the father has not paid child support in accordance with his assessment. The father has a child support debt of $27,000 and has consistently taken action over the years in an effort to have his child support reduced. At the time of the final hearing the father was paying child support at the assessed rate.
Likely effect of a change in the children’s circumstances as a result of the orders
In my view, this is one of the most important considerations in this matter and findings concerning it are particularly weighty in my determination of the competing parenting applications. Each of the proposed parenting orders will result in a significant change in the current circumstances for the children.
In the event that orders are made as the father seeks, there will be a significant reduction in the time that the children will spend with their mother, with whom they currently live. Little is known of the children’s relationship with Ms I, the father’s partner, who appears to have limited understanding of the difficulties for the children of exposure to a particularly acrimonious dispute between their parents. For the reasons given, I have found that the children are significantly aligned with their father. Even if his influence upon the children has been indirect and subtle, his continual allegations against the mother which appear to have caused the children to question their safety and security with her is emotionally manipulative and abusive and is a form of intrusive parenting. As the father both denies that he engages in this behaviour and shows no insight about the impact it has upon the children, in my view it is likely to continue and the children’s relationship with their mother will deteriorate even further if the children are to live primarily with their father.
It is also likely in my view, given the history of this matter, that if the orders are made as proposed by the father, the children will continue to complain about their treatment in the mother’s household. The father will likely continue to present the children to medical practitioners when it is not warranted in an effort to prove that the mother continues to be neglectful. Almost immediately after the last proceedings were settled by final orders the father recommenced making allegations about the mother’s physical abuse and medical neglect of the children. In these proceedings the father originally sought orders that the mother’s time with the children be supervised for a period of time, but at the end of the proceedings compromised his position on this issue. In my view, there is a real likelihood that these allegations will commence again soon after these proceedings are resolved and once again the children will be involved in a high level of conflict between their parents.
I have particular concern about an escalation in B’s antisocial, violent and controlling behaviour towards his mother and siblings if he continues to be exposed to the high level of conflict between his parents and his father’s controlling and coercive behaviour, especially if he does not continue to receive therapeutic assistance. In my view, the father was disingenuous when he claimed that he was unaware of the serious deterioration in B’s behaviour and the child’s need for counselling. This is especially so after receiving the letter from Dr J in August 2014 which recommended counselling in such strong terms, and the requests by the Brighter Futures counsellors to engage with the children, which he refused. Although the father subsequently agreed to Dr F providing therapy to the children, on the previous occasion when he agreed for the children to receive counselling around the time of the final orders, that counselling only continued for a short time thereafter. In these proceedings not only does the father not propose for B or any of the children to receive counselling but his proposal specifically restrains the mother from permitting the children to receive counselling (except with a school counsellor) without his consent.
C was assessed by the family consultant as carrying a burden of divided loyalties between his parents, which she said would have negative psychological consequences for him. In the absence of the father showing any insight into his role in causing these divided loyalties and the psychological impact upon the child, I am of the view that the negative psychological impact upon C if he were to live primarily with his father would increase.
Although D is the least affected by the parental dispute to date, if she were to primarily live with the father as he proposes, in my view, it is likely that she will also start to reject her mother as her brothers have done or at least experience the burden of divided loyalties.
D also appears to have the strongest attachment to her mother and her youngest sibling K. It is likely in my view, that she would find separation from her mother distressing. Despite B and C’s negative comments about their mother, their observed behaviour indicates an attachment to her and it is likely that they would experience separation from their mother as similarly distressing.
The orders proposed by the ICL with which the mother ultimately agreed at the conclusion of the hearing, would dramatically change the children’s lives and the nature of the relationship that they have shared with their father throughout their life. These orders were not proposed by the mother and she expressed considerable sadness on a number of occasions in the proceedings at the fact that the orders she ultimately agreed to would result in the children no longer sharing a meaningful relationship with their father. Given the involvement of the father in the children’s lives to date and the very strong views expressed by B and C in particular, it is likely that they will experience significant sadness and distress as a result of the separation from their father, if the orders proposed by the ICL were made.
I accept the conclusion of Dr F that “a decision to significantly reduce time with either parent may settle the children in the long term, however, in the short term, it will most likely necessitate a significant level of support for the parents and the children”. I am of the view that it is in the long term best interests of the children to live primarily with one parent and have very limited time with the other parent due to the very negative impact that the parental conflict has had upon the children and the way in which the children have become entangled in the dispute and significantly aligned with their father.
The support recommended by both Dr F and the family consultant for the children and parents is provided for in the orders proposed by the ICL. The ICL’s proposal is for the mother to do all things necessary to continue to consult with Dr F, to encourage and arrange for her partner to attend therapists, to continue to make the children available for therapy and to meet the costs of therapy. The proposed orders also will see the children participate in the ANCHOR program. The ICL’s orders, unlike those of the father, also provide for the father to receive therapy with a child and family therapist, with a view to gaining insight into his shortcomings and accepting the children’s living arrangements with their mother if he is to apply to the court to revisit the parenting arrangements. This provides for a window of opportunity for him to receive the assistance he needs to gain insight into his behaviour and its impact upon the children and to give them an opportunity to have an improved relationship with him in the future.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
There is no practical difficulty or expense in the children spending time with their mother under the orders proposed by the father.
There is some expense which the father will be required to bear, for him to spend time with the children under the ICL’s proposed orders but this would not be significant and is not an impediment to this parenting arrangement. There are also may be some expense for the father if he receives treatment from a family therapist as envisaged in the ICL’s orders, but this is also not a weighty factor in this matter.
Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs
Each of the parents in this matter originally contended that the other parent had limitations in his or her capacity to provide for the children’s needs.
The thrust of the father’s case, up until the final day, had been that the mother was incapable of meeting the children’s needs, especially with respect to their medical care. However, his final proposal did not include a condition that the mother’s initial time with the children be supervised as he had initially sought, and it was conceded that there was not an unacceptable risk that the children may be harmed as a result of the mother’s parenting incapacity.
The father did not resile however, from his allegation that there were significant shortcomings in the mother’s capacity to communicate with him appropriately following separation and in particular following the February 2013 orders under which the parents jointly shared parental responsibility. In my view, on occasions, the mother did behave in an inappropriate manner having regard to her shared parental responsibility with the father for the children. For example, on one occasion she removed the children early from school in a manner that caused some disruption to school staff and children and on other occasions she did not provide the father with information that would have assisted in making decisions for the children through the communication book. In some instances she said that she communicated with the father via text message, but there is no evidence of that having occurred. I am of the view that the mother does bear some responsibility for the inappropriate communication between the parents. This is one aspect of the parents’ lack of capacity to have any effective co-parenting relationship for the children following separation.
It was submitted on behalf of the father that the mother lacked capacity in her management of B’s deteriorating behaviour. I am not satisfied that this is the case and in my view, the mother has taken appropriate steps over a number of years to obtain intervention to assist her in that regard. These actions include seeking Dr J’s advice, engaging with agencies such as L Counselling and Brighter Futures and agreeing to orders for the children to receive therapy from Dr F since April 2015 and on an ongoing basis in the future. The fact that B does not display challenging behaviour in his father’s household does not necessarily in my view, lead to the conclusion that it relates to a shortcoming in the mother’s capacity. It is more likely that his behaviour is a feature of his damaged relationship with his mother. For the reasons given, I am of the view that the children’s behavioural problems are a result of the father interfering with and undermining the mother’s relationship with the children, rather than as a result of the mother’s physical abuse or neglect which I have found did not occur.
The father appears to have the capacity to meet the children’s physical, educational and day to day needs, though I am of the view that he tends to seek medical treatment when it is not warranted. However, there are significant concerns about the father’s capacity to meet the children’s emotional needs. My findings concerning his undermining of the children’s relationship with their mother, and deliberately making allegations against her, causing the children to question their safety and security with her have been dealt with under other considerations
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The children have been raised in a Middle Eastern culture which will continue in the future regardless of which the suite of parenting orders is made. They have been raised in a religious faith, which as I understand it is the faith tradition of both of the parents. Although the father contends that the children were raised in a stricter and more “extreme” version of the religion within the mother’s household, there is insufficient evidence, other than his mere assertion in this regard upon which to make any such findings.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
I have no doubt that each of the parents genuinely loves their children and believes that the orders they propose are in their best interests. They have however, shown a poor attitude to the responsibilities in parenthood, in particular in being unable to shield the children from the conflict associated with their parenting dispute which has been detrimental for the children.
I have not found that the mother was an irresponsible parent in failing to seek medical attention for her children.
The father’s refusal to allow B and the other children to participate in counselling when he was well aware of the serious behavioural difficulties being experienced in the mother’s household shows an irresponsible attitude to parenthood, as does the father’s failure to have paid the assessed amount of child support in the past and his accumulation of a significant debt. The parents have however, both been responsible in the sense that the children are clearly well cared for in a physical sense and have regularly attended school.
Family violence
For the reasons previously given, I am satisfied that the father perpetrated family violence against the mother during the relationship and his behaviour towards her and the children after separation also falls within the definition of family violence. In this matter the father’s conduct as the perpetrator of family violence is associated to a great extent with emotional abuse of the children and its associated psychological harm, from which there is a significant need for the children to be protected. For the reasons given when considering these matters under other considerations I am of the view that the orders proposed by the ICL are appropriate to ensure that the children are protected from harm associated with exposure to and the subject of family violence.
Whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings
The ICL’s proposed orders provide that the father spend supervised time with the children but that he be at liberty to make an application to consider the lifting of the supervision requirement upon undertaking regular and consistent therapy for a period of no less than 24 months and obtaining a report from the therapist as to his progress in relation areas of concern.
This proposal is likely to lead to further proceedings in circumstances where there is a long history of conflictual proceedings which have undoubtedly had a detrimental effect on the children. It is tempting to conclude that it is preferable to make an order least likely to lead to further proceedings. However, given the difficulties associated with long term supervised contact[11], an order allowing for some review of the situation in the future to facilitate the children enjoying unsupervised time with the father if he has addressed his harmful behaviour is, in my view, in the best interests of the children.
[11] See Moose & Moose [2008] FamCAFC 108; Seaver & Seaver [2015] FamCA 194.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[12] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. The effect of a parenting order that provides for shared parental responsibility pursuant to s 65DAC(2) is that decisions about major long-term issues are required to be made jointly and require the parents to consult one another in relation to such decisions and make a genuine effort to come to a joint decision about that issue.
[12](2006) FLC 93-286.
The ICL and mother propose that sole parental responsibility be given to the mother and the father proposes that sole parental responsibility be given to him.
Although the expression “sole parental responsibility” is not defined in the Act, having regard to the definition of parental responsibility in s 61B, an order providing that a parent have sole parental responsibility for the children must mean that the parent would have all the duties, powers, responsibilities and authority which by law parents have in relation to children and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the children.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
For the reasons previously given, I am satisfied that the children have been abused by the father as his conducted has caused them to suffer serious psychological harm. The father has also been the perpetrator of family violence and accordingly the presumption does not apply.
Having regard to the recommendations concerning sole parental responsibility made by the family consultant in the matter and on the basis of my findings concerning the father’s conduct (and the lack of findings concerning the mother’s unacceptable conduct) and having regard to the considerations discussed above I am of the view that it would not be in the children’s best interests for the parents to equally share parental responsibility for them. Having regard to my findings I am satisfied that it is in the children’s best interests for the mother to hold sole parental responsibility for them as proposed by the ICL.
Conclusion
In considering each of the matters relating to the children’s best interests as required by the Act I have attached particular weight to the primary consideration of the need to protect the children from harm which strongly favours the orders proposed by the ICL. Other weighty factors include the nature of the children’s relationship with each parent which currently demonstrates strong alignment of the children with their father and signs of rejection of their mother which is placing B and C in a position of psychological conflict, together with the likely effect on the children’s circumstances as a result of the orders. While I have found that the ICL’s proposed orders will likely result in some short term distress for the children associated with the separation from their father and which will necessitate significant support for the parents and their children, these orders are in the best interests of the children in the long term. The ICL’s orders also provide for that level of support which will be necessary to assist the children. The other weighty consideration in this matter is the capacity of the parents to provide for the children’s needs and in particular the findings of the father’s incapacity to meet the children’s emotional needs. Having regard to these matters in particular and the other considerations referred to, I am of the view that the suite of orders proposed by the ICL and supported by the mother are in the best interests of the children.
For these reasons I make the orders set out at the forefront of these Reasons for Judgment.
I certify that the preceding two hundred and twenty-one (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 6 April 2016.
Legal Associate:
Date: 6 April 2016
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