BRACE & LANTOS

[2018] FCCA 867

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRACE & LANTOS [2018] FCCA 867

Catchwords:
FAMILY LAW– Parenting – interim orders – best interests of children – significant family violence and criminal behaviour of mother’s partner – change in residence – abuse and neglect – best interest of children.

Legislation:

Family Law Act 1975 (Cth), Part VII

Cases cited:
Goode & Goode [2006] FamCA 1346
M & M (2000) FLC 93-006
Marvel & Marvel (No 2)[2010] FamCAFC 101
Salah & Salah [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13

Applicant: MS BRACE

Respondent: MR LANTOS

File Number: NCC 1388 of 2010

Judgment of: Judge Middleton

Hearing date: 22 March 2018

Date of Last Submission: 22 March 2018

Delivered at: Newcastle

Delivered on: 22 March 2018

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: N/A

Counsel for the Respondent: N/A

Solicitors for the Respondent: N/A

Counsel for the Independent Children’s Lawyer: N/A

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Newcastle Family Law

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. That the children [X] born 2005 and [Y] born 2006 (“the children”) live with the father.

2. The Father have sole parental responsibility for the children.

3. That within forty-eight (48) hours, the father make arrangements for himself, Ms R (the father’s wife), the children to obtain a referral for family therapy with (‘Service’) by making telephone contact with the service on or attending the office branch at Suburb A, NSW, and subsequently completing all documentation required for himself, Ms R, and the children to meet with a child psychologist for the purposes of addressing the children’s transitioning into the father’s primary care.

4. That the father must ensure that each child attends upon the child psychologist allotted by (‘Service’) within twenty-one (21) days, and at each subsequent appointment as may be directed by the allotted child psychologist.

5. That within fourteen (14) days, the father must obtain a referral from [Y]’s treating General Practitioner for [Y]’s attendance upon a paediatrician engaged to under a paediatric review of [Y], and must ensure [Y]’s attendance with the paediatrician within a four (4) month period.

6. That the father has liberty to provide a copy of the Family Report prepared by Dr T dated 12 February 2018 to the children’s treating psychologist, the children’s treating General Practitioner, the children’s treating Paediatricians.

7. That the children not spend time with or communicate with Mr B born 1980.

8. That the Independent Children’s Lawyer have liberty to provide the Family Report prepared by Dr T dated 12 February 2018 to Family and Community Services (NSW).

9. The mother and father shall when requested by the ICL submit to hair follicle testing, and provide such hair follicle samples as directed by The Drug Detection Agency for the purposes of analysis of drug use in relation to non-prescription drugs including but not limited to methyl amphetamine, opiates, amphetamine type substances, cannabinoids as follows:

   (a) that each party is hereby restrained from taking any steps to interfere with the provision of hair follicle samples, or to interfere with the test results.

   (b) that each party shall do things necessary and sign all necessary authority and documents to authorise the Drug Detection Agency to provide the test results to the ICL and the mother forthwith upon those results becoming available.

   (c) that each party shall be responsible for meeting the costs of their own hair follicle testing.

10. If either the mother of father is unable or unwilling to submit to a hair follicle test then that party must submit to random urinalysis tests (including under supervision and chain of custody) as follows:

    (a)the mother and father must submit to such a request to undergo supervised urine analysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine within 48 hours of the father receiving the request from the ICL.

    (b)the testing shall be in respect of methyl amphetamine, opiates, amphetamines type substances, and cannabinoids.

    (c)testing shall occur randomly but not more than one occasion in a 28 day period and upon 48 hours’ notice at such times as the ICL may request the party and for the purpose of this Order.

    (d)the party shall be solely responsible for the cost of obtaining the supervised urinalysis testing.

    (e)the party tested must provide a copy of the urinalysis test results to the ICL and the other parties as soon as reasonable practicable when they are available.

11. Pursuant to section 68B of the Family Law Act the Mother is restrained by way of injunction from permitting Mr B born 1980 from communicating with the children or attending the children’s school or any other place they may reside from time to time and by way of enforcement of this Order she is obliged to contact the Independent Children’s Lawyer in the event she becomes aware that the children have communicated with Mr B.

12. On 15 May 2018 at a time to be advised, the parties and the children are to attend a child inclusive conference with a family consultant pursuant to section 11F(1) of the Family Law Act 1975.

13. The parties are advised that if a person who is ordered to attend an appointment with Family Consultant Dr T under section 11F fails to comply with:

    a)The Order made by the Court; or

    b)Any instruction the consultant gives to the person; the consultant must report the failure to the Court.

14. (On receiving the report, the Court may make any further Orders it considers appropriate.

15. The Court may make Orders under section 11F(2) :

    a)On its own initiative; or

    b)On the application of:

    i.   A party to the proceedings; or

    ii.   A lawyer independently representing a child’s interests under an order made under section 68L.

16. The Father is to attend the Medical Centre no later than 9.00am tomorrow for the purpose of obtaining information regarding medication for both children.

17. This Order is sufficient authority for the Father to be provided with that information from the doctors without the consent of the Mother.

18. By no later than 8.30pm tonight the Mother is to deliver the children’s medication to the Paternal Grandmother’s home.

19. The Father is to take possession of the children’s medication and comply with the prescriptions this evening and until further consultation with the children’s doctors.

20. The matter is adjourned to 9.30am on 28 May 2018 at Newcastle for directions hearing.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 1388 of 2010

MS BRACE

Applicant

And

MR LANTOS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. This matter concerns parenting arrangements for two children, [X] born 2005 and [Y] born 2006. They are currently aged 12 and 11.  [Y] has been diagnosed with ADHD. 

2. The parents, Mr Lantos and Ms Brace, were in a relationship between 1998 and 2007.  That relationship ended in circumstances where there was an act of family violence.  It is conceded by the father that he, regrettably, as he has told the family consultant, was the perpetrator of that family violence. 

3. The children have lived with their mother post separation.  The separation occurred in 2007, when the children were aged two and one respectively.  It has been 10 years since separation. 

4. The children have spent time with their father consistently throughout that time, and the mother has, throughout that time, had a number of relationships, culminating in a relationship with her current husband Mr B. 

5. In May 2017, the mother unilaterally moved to Queensland.  The father had filed his initiating application in 2016 in an attempt to prevent that from occurring.  Whilst the children were in Queensland, the father spent no time with them. 

6. In June 2017, I ordered the return of the children with their mother and in July 2017 the mother returned. 

7. Since that time the children have lived with their mother, and spent regular weekend time including half-holiday time with their father until approximately January of this year, when that time stopped, until very recently. 

Material relied upon and orders sought

The father

1. The orders sought by the father today can be found in his Application in a Case filed on 29 May 2017. 

2. In short, he seeks an order that the children live with him and that he have sole parental responsibility. 

3. The other orders sought by him are no longer necessary because the children and the mother have been located and recovered to the area. 

4. The documents he relies upon are his:

   (a)Affidavit of 20 August 2017;

   (b)Affidavit of 29 May 2017,

   (c)Affidavit of 20 December 2016;

   (d)Notice of risk of 20 December 2016; and

   (e)Initiating Application filed 20 December 2016. 

The mother

1. The mother seeks orders as outlined in her response. In summary, she seeks:

   (a)an order for equal shared parental responsibility;

   (b)that the children live with her; and

   (c)that the children spend time with their father for one weekend each month.

2. In submissions today, the mother informed the court that she no longer wishes to move to Queensland and that she is no longer seeking that order.  She would, rather, seek an order that the children spend time with their father each alternate weekend and half the school holidays. 

3. The mother seeks an order today, and she made it very clear, emphasising it often in her submissions, that she wants the children to attend counselling as well. 

4. The mother also seeks an order, it would seem, based on her submissions, that her partner, Mr B, be gradually reintroduced so as that the children are able to spend time with him.  I will say more about that in due course. 

5. The mother otherwise relies upon her:

   (a)Affidavit of 23 June 2017;

   (b)Affidavit of 15 March 2018; and

   (c)Notice of Risk filed 23 June 2017.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer relies upon four exhibits, his Minute of Orders sought, wherein he seeks an order that the children live with the father and that the father make arrangements for the children to attend counselling with a psychologist, and further machinery orders, including that both the mother and father undertake either hair follicle testing for illicit substances or, in the event they are either unable or unwilling to submit to a hair follicle test, chain-of-custody urinalysis.

2. The Independent Children’s Lawyer outlined in his submissions that he would also seek an order today for a further Child Inclusive Conference, potentially with Dr T, in approximately mid-May, so as to ascertain whether the children should recommence spending time with their mother.

3. The Independent Children’s Lawyer otherwise relies upon:

   (a)Exhibit 2: criminal conviction record of Mr B;

   (b)Exhibit 3: COPS entries relating to family violence and the like, as outlined; and

   (c)Exhibit 4: Family and Community Services documents. 

   (d)The Family Report dated 12 February 2018, authored by Dr T. 

4. The Independent Children’s Lawyer pointed out that the DoFaCS subpoena material consists of three volumes, and he is relying on part of one of those volumes today. 

The law

1. As these proceedings concern parenting arrangements for the two children, Part VII of the Family Law Act is in play.

2. Guided by the principles and objects as set out in section 60B of the Act, I must make orders that are in the best interests of the children.[1] It is their best interests that is my paramount concern, in accordance with section 60CA of the Act.[2]

   [1] Family Law Act 1975 (Cth), s 60B.

   [2] Family Law Act 1975 (Cth), s 60CA.

3. In determining what is in the best interests of the children, I must have regard to section 60CC.[3]  As the parents themselves seek orders for parental responsibility and as this matter is an interim hearing and the Act provides that equal shared parental responsibility or the presumption contained within section 65DAA(1) applies, unless I am otherwise satisfied it is inappropriate to do, I must consider section 61DA.  If I were to make an order for equal shared parental responsibility, then the provisions of section 65DAA are triggered. 

   [3] Family Law Act 1975 (Cth), s 60CC.

4. This is an interim hearing. In those circumstances, the Full Court in Goode & Goode[4] at paragraph 82 set out a pathway to follow when determining these matters. 

   [4] [2006] FamCA 1346 [82].

5. That pathway includes identifying the parties' competing proposals and identifying the issues in dispute in the interim hearing.  There is much in dispute.  That is not unusual.  Almost all of the known facts in this case, but for the fact that there are two children and that the mother has a partner, the father has a partner and that there has been some domestic violence, is in dispute. 

6. It is not in dispute that the relationship ended in circumstances of family violence, and it is not in dispute that there has been family violence in the mother's home. 

7. What is clearly in dispute is whether the children are at risk of further family violence or exposure thereto in the mother's home or the father's home;  whether Mr B poses an unacceptable risk to the children; and whether both parties are using illicit drugs. 

8. In Marvel & Marvel (No 2)[5], again, the Full Court said this: 

   “As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.”

   [5] [2010] FamCAFC 101 [120].

9. It is apt to point out what the Full Court said in SS & AH[6], where they said at paragraph 88:

   [6] [2010] FamCAFC 13 [88].

   “In our view, findings made at an interim hearing should be couched with great circumspection.”

10. They continued at paragraph 100 as follows:

    “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

11. That case was in 2010. In 2016, in a case called Salah & Salah[7], the Full Court, considering an appeal, noted that the trial judge was faced with the challenge of dealing with facts in issue, including serious allegations made, similar to this case.

    [7] [2016] FamCAFC 100.

12. The Full Court said:

    “His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH).”

13. Their Honours in that case confirmed that the right approach was as set out in SS & AH.[8]

    [8] [2010] FamCAFC 13.

14. What that means, in my view, is that I must carefully consider the evidence that either supports or does not support the allegations in this case. 

The evidence

1. The mother, in her material, indicates that, in short compass, Mr B is addressing his issues and he no longer poses an unacceptable risk to the children. 

2. The mother, in her evidence, gives reasons for why the children have not attended school. In submissions today, she indicated that one of the reasons was because of a medical condition, although there is no evidence of that before me, and another reason was that she has been able to ascertain that the children both missed school and, as I understand her submission, behaved badly at school only after visiting their father when they became disrupted. 

3. The mother says in her evidence that she does not take drugs and that Mr B is addressing his issues in relation to drugs and no longer takes them. 

4. The father says in his evidence that he has serious concerns about the welfare of the children in the mother's home.  He has conceded his part in committing an act of family violence back in approximately 2007, and he showed contrition when discussing that matter with the Family Consultant. 

5. The father’s evidence is that he is firmly of the view that Mr B spends time with the children, despite there being a restraint in place, and lives from time to time in the mother's home.

6. Indeed, it is the mother's case that she is hopeful that Mr B will return to her home, and that the family including herself, the children and Mr B will all reunite and live happily under the one roof. 

7. In those circumstances, I must be cautious, because I am satisfied, on the objective evidence, namely Exhibits 2 and 3, that Mr B has a significant criminal history involving acts of violence, destruction of property, theft, being armed with weapons, breaching apprehended violence orders, a serious motor vehicle offence causing death, driving under the influence and drug offences.

8. Those offences date back to 2000 and continue until the last recorded date, 23 November 2017, where Mr B was fined for driving a vehicle whilst drugs were present in his blood. 

9. I am also satisfied, having perused Exhibit 3, that there has been serious acts of family violence committed by Mr B towards the mother, when they have lived together. 

10. Those findings are supported by the evidence of Dr T, who, in her report, has provided a very thorough outline of the subpoena material that she was able to inspect. 

11. It should be made clear that Dr T is not a more important witness or her evidence is no more important than either the mother or the father.  Her evidence is, though, of course, independent.  She is placed in a position by order of me to prepare a report, having assessed all of the material she has available to her, and, based upon her extensive experience, to provide some insight as to what dangers, if any, appear in either home, and some recommendations as to what the court might consider doing in those circumstances. 

12. Dr T sets out in her report that there has been a significant history with the Department of Family and Community Services whilst the children have been living with their mother.  That is clear from Exhibit 4.

13. She further points out there have been multiple family violence orders between the mother and her partner, Mr B.  The DoFaCS records inspected by Dr T reveal that the mother has a history of suicidal ideation and involvement with the Town 1 Mental Health Team. 

14. Of particular importance to Dr T, and I consider it important also, is the fact that the mother admits to overmedicating the child [Y]. Dr T is of the view that of itself amounts to physical abuse of that child and this is something that has been conceded. 

15. Dr T was told by both the mother and the father that, in January of 2018, the mother attempted to place the children in the care of the father whilst she went to Queensland for a short time, suffering from what she described as a breakdown. 

1. That did not occur, because as I understand it from Dr T's report, the father required a document to be signed in relation to parental responsibility.  The mother did not agree, and so the children did not go to live with the father during that time. They instead went to Queensland for a short time and then returned. 

2. Dr T points out that in the father's home there is inappropriate discipline of the children.  The father conceded that, on one occasion, he refused to feed [Y] after a dispute arose around dinner time, and that he ultimately gave up because [Y] refused to eat for some considerable period of time.

3. He appropriately, in my view, made concessions when discussing that discipline situation with Dr T, and I accept that he was appropriately contrite and agreed that he would take on board what Dr T said. 

4. As I said earlier, the father admits to one incident of family violence between he and the mother many years ago, in 2007, and Dr T reports that her inspection of his criminal record reveals no other incidents of family violence. 

5. It is particularly important to note that the father's partner was interviewed by Dr T.  Mr B was not available.  The mother suggested that he would be more than willing to answer questions of Dr T.  She provided the mother with her details.  Mr B, at the time of writing the report, on 12 February 2018, had not taken the opportunity to discuss matters with Dr T. 

6. Upon reading the report of Dr T, it is apparent from her inspection of the subpoena material that she believes the mother has a history of repeated domestic violence relationships - at least three involving apprehended violence orders - and that there is a theme throughout the material where the mother denies family violence, even though it has been proved. 

7. Dr T points out that the mother has signed at least two safety plans stating that she would not physically discipline the children, and has then done so and has been referred to the Hunter Child Protection and Family Counselling Service for substantiated physical abuse. 

8. I must have regard to section 60CC of the Act, and in doing so, I must also have regard to section 60CG. That section provides:

   “(1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

   (a)  is consistent with any family violence order; and

(b)  does not expose a person to an unacceptable risk of family violence.”

1. A “person” in that section obviously includes a child. 

Section 60CC

1. The primary consideration in section 60CC(2)(a) is the benefit to the child of having a meaningful relationship with both of the child's parents. These children have a relationship with both of their parents. They have lived with their mother all of their lives, including the 10 years post separation, and have spent considerable time with their father all of their lives, including the 10 years post separation.

2. I must consider the benefit of them continuing that relationship with both of their parents in the context of the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I say that because section 60CC(2A) provides, in applying those two considerations, I am to give greater weight to the consideration with regards to the need to protect the children.

3. As I say, the mother says there's no risk in her home.  The father says there is, and the Independent Children’s Lawyer submits that I should, in effect, err on the side of caution and be satisfied that it is safest to deal with the assertion of unacceptable risk now, by removing the children from the mother's care, rather than leave them there and not act upon that controversial assertion. 

4. The main piece of independent evidence is contained within Dr T's report.  From paragraph 211 of her report, she sets out what she considers to be child maltreatment.  She says it refers to any non-accidental behaviour by parents, caregivers or other adults or older adolescents that is outside the norms of conduct and entails a substantial risk of causing physical or psychological harm to a child or young person.  She goes on that maltreatment is commonly divided into five subtypes - physical abuse, psychological harm, neglect, sexual abuse and exposure to family violence. 

Family violence

1. In relation to family violence, it is well recognised that exposure to family violence is a real risk to children.  In M & M[9], Mullane J said this:

   “The father's abusive behaviour presents a multifaceted danger for the children.  There is a risk of violence to them personally and injury.  There is a risk that violence poses when it involves living with fear, insecurity and vigilance.  There is the danger of ongoing fear that the father will emotionally or physically abuse the mother they love.  There is the danger that E will learn from the  father's abusive  behaviour that abuse is part of life for females and become even more accepting of such behaviour.  There is a danger that both children will come to believe from the father's abuse of the mother, that women are lesser beings.”

   [9] (2000) FLC 93-006 [94].

2. Those comments are very apt.  I have read numerous reports and affidavits and objective independent evidence that satisfies me that not only are those risks prevalent when family violence is in the home of children, but the risk continues, in that those children will be seen to act out in social situations, including school and the community. 

3. Those children will go on to have an inability to form real relationships with their peers and subsequently, in older adolescents, with life partners.  Those children will suffer from a dysfunction such that they will never be able to form relationships that are meaningful with either life partners or their own children moving forward. 

4. These are the risks that are very prevalent in this case, and I say that for this reason.  Turning back to the report of Dr T, as she points out, the mother has had numerous reports made to FaCS regarding concerns over physical discipline of the subject children, and she has signed at least two safety plans with FaCS stating that she would not physically discipline the children, and then physically disciplined the children, requiring a referral to the Region A Child Protection and Family Counselling Service for what was substantiated physical abuse. 

5. As stated in the child-inclusive conference, [X], one of the children, reported no pain from significant injuries, and in Dr T's opinion, that is an indicator of children who have experienced physical abuse. 

6. Ms R told the Family Consultant that [Y] has cowered and run away from her if he thinks he will be disciplined.  In Dr T's opinion, this strongly suggests that these children have been physically abused by the mother or her partner in the past, and thus are at significant risk of future physical abuse if they were to reside with the mother. 

7. Dr T goes on to report that the mother confirmed that she increased the current dose of night-time medication for [Y] and, in her view, it is a significant concern and a further form of physical abuse. 

8. Paragraph 214 of the report echoes the risks that I have just been speaking about.  Both children display a recorded history of aggression to their peers, resulting in frequent suspensions from school, which, in the opinion of Dr T, may be indicative of children who have been physically abused or exposed to family violence. 

9. As these children have lived with the mother since separation, and in circumstances where it is clear that Mr B has committed acts of violence and has a violent history, and it is clear that the father has had no reported acts of violence or domestic violence in his home, the violence and aggression expressed by these children suggests significant concern about the parenting of the mother. 

Psychological harm 

1. At interview, the mother, according to Dr T, gave a negative view of the father, and it is clear, in Dr T's view, that she would not be promoting or encouraging a relationship between the father and the children.

2. Dr T’s inspection of the DoFaCS records suggests that the mother has a history of informing the children about the danger of the father with respect to violence but minimises her current violent partner. 

3. In submissions today, the mother once again accused the father of being violent, but minimised the risk of Mr B, informing me that he is addressing his issues and she is confident that he no longer poses a risk.  It is a repeated pattern, even today. 

Neglect of the children 

1. The mother admitted to a history of cannabis use, but denies any drug use?

2. The orders that I make today will involve both parents undertaking drug urinalysis as requested by the Independent Children’s Lawyer, and that issue will be determined at a subsequent time.

3. However, Mr B, on any view of the evidence, the concessions made by the mother, and his criminal history, has a long-term drug dependency.  He has a long-term use of ice and cannabis.  He may be addressing that.  There is no evidence before me that he has addressed it.  There is no evidence before me that he is in the process of addressing it. 

4. In those circumstances, I must give greater weight to the uncontroversial facts.  His police record is one of those facts. 

5. Another issue that is relevant in terms of these children is the fact that the children have attended multiple schools, and there is a high level of absenteeism at all of those schools. 

6. The mother, in her submissions today, stated that it was because of health reasons, although no proof was offered, and furthermore, she suggested that she was able to ascertain that the children are absent school because they are disrupted and unsettled upon returning from their father's home.  There is no evidence before me as to that. 

7. Dr T is of the view that the absenteeism is suggestive that the mother may have perpetrated educational neglect on the subject children.  I cannot and will not make a finding of that today, but it is another concern. 

8. In terms of family violence, Dr T at paragraph 221 says this:

   “Since separation, the mother has had at least three partners, against all of whom she has required apprehended violence orders in order to protect herself (and the subject children) from the risk of family violence. With her current partner, Mr B, there are multiple AVOs with at least one breach of AVO. There are multiple police interventions where no charges have been laid. Most concerning is the mother continuing to express the belief that there is no family violence between herself and Mr B, despite the strong documentation supporting this.”

9. Dr T says significant concern is raised about the mother's ability to protect the children in her current ongoing family violence situation, given her willingness to change AVOs and contradict bail conditions in order to continue the relationship with Mr B. 

10. She goes on that the mother continues to exhort Mr B is not a risk to the subject children, but there is no evidence to support this statement.

11. The mother's presentation today and her submissions today confirm those concerns of Dr T.  I am of the view that Mr B poses a real risk to these children, and I am of that view based upon the uncontroversial facts that Mr B has a significant history of drug use and violence and there is a significant history of family violence in the mother's home. 

12. Dr T says the mother's current living situation makes her vulnerable to ongoing family violence with Mr B.  I agree, and I do so, noting that the mother's own evidence is that she wants Mr B to live with her and the children moving forward, in circumstances where she knows that he has been violent to her in the past and has breached apprehended violence orders. 

13. Dr T is of the view that there is no doubt that these children have been exposed to family violence initially when the parties separated.  But following this, they have been exposed to family violence between the mother and the maternal grandmother, when the mother was living with the maternal grandmother, then two short-term relationships between the mother and her partners, and for a number of years between the mother and Mr B. 

14. It is clear that the mother wants the children to have a relationship with Mr B.  He speaks to them on the phone.  The mother confirmed that today. 

15. Dr T points out that these children have always lived with their mother since separation and they are fiercely loyal and protective of her.  She is of the view that, whilst living with the mother, they have been exposed to family violence, physical abuse, psychological harm and educational neglect. 

16. Doing the best that I can and relying upon the material that I have referred to previously, I am inclined to support the thrust of Dr T's concerns. 

17. I am significantly concerned that these children have been exposed to family violence, physical abuse and psychological harm in the mother's care, and I am persuaded that something needs to be done in order to protect them from that moving forward. 

18. The children have both said they want to live with their mother.  They have both said that they want to have a relationship with Mr B.  [X] said he would run away if I placed him with his father, and [Y] said he wants to live with his mother because his father starves him and he says he would be better off with his mother. 

19. Those comments have to be read in light of the fact that they have always lived with their mother, who they are fiercely loyal and protective of, in circumstances where they have been exposed to family violence in the mother's home. 

20. There is the ongoing fear that the father, and in this case, Mr B, will emotionally or physically abuse the mother they love.  That exposure has been part of the reason why the children are so fiercely loyal to their mother.  As two little men growing up, they have had to witness their mother abused repeatedly, and as two little men, they have decided that they must protect her by being loyal to her. 

21. I must weigh whether it is best for the children to remain living with their mother, in circumstances where there is no doubt that a move to their father will cause them some disquiet and potentially some short-term difficulty, as against the risk of continuing to allow the children to live with their mother in the circumstances that I have set out. 

22. I am given some great assistance by Dr T in that regard, where she says this at paragraph 227: 

    “These children are both on the cusp of adolescence and it is the opinion of the Family Consultant that there is only a small window of potential change for these two subject children. If they continue to reside with the mother, even in the short-term, they will continue to be exposed to ongoing abuse but they will continue to identify with the mother and reject the father. The lack of the relationship with the father will force them to become more involved with the lifestyle of the mother and her partner, thus increasing their risk for violence, involvement with police, mental health issues and drug use.”

23. There is a danger that both children will come to believe from the father’s, Mr B's, abuse of the mother that women are “lesser beings”. Those words ring true.

24. In terms of what would happen if the children live with the father, Dr T quite rightly considers that and says:

    “If the subject children live with the father in the short-term, this will enable them to forge a stronger relationship with the father and experience a lifestyle without violence, without drugs and attend school on a regular basis.”

25. Her view is it is anticipated that the children would become frustrated initially at living with their father, but would ultimately comply. 

26. She was concerned, as am I, that if I do not act on this controversial assertion now and I wait until a final hearing, noting that I cannot give this family a final hearing until next year, the children would not remain in the home of the father if I ultimately made that decision 12 months down the line and would run away to their mother. 

27. If that were to happen, two very young children would place themselves at considerable risk in the community whilst they run the streets looking for their mother. I need to be protective. The Family Consultant has a strong view that a change in residence is required now. 

28. At paragraph 229 of the report, Dr T quite rightly points out that it is likely in the short term that the children's behaviour will escalate for a short period of time, but it is thought that they would then settle and enjoy living with their father. 

29. She goes on that the father and his wife will need significant assistance with managing the behaviours of these two "damaged" children, and they were accepting of this requirement at interview. 

30. The Independent Children’s Lawyer no doubt has those words ringing in his ears when he seeks an order for the father to make arrangements for he and Ms R (his partner) and the children to all engage in family therapy with Mr J, a well-known and well-recognised professional in this area.  That is an appropriate order to make if I were to order that the children live with their father. 

31. At paragraph 235 of the Family Consultant's report, she opines:

32. “…the mother does not have the capacity to offer these children a secure, stable and reparative environment.”

33. What she means by that is, and I accept that it is the case, the home environment of the mother is insecure in circumstances where Mr B either comes and goes or stays away.  It is not a secure environment.  The mother yearns to be with her husband.  That is appropriate, but she cannot because of an order of court, and so her environment is insecure in that regard.  The environment is unstable for the children in that regard. 

34. The mother has a yearning elsewhere, wants to form part of a family with her husband, and that causes some concern, some instability in the mother's emotional state, no doubt, and in the family home as a result. Due to her views in relation to Mr B and her consistent underplaying of the serious issues involved in a relationship with this man, she cannot offer a reparative environment; an environment that might repair the situation for the children.  I am satisfied that that is an appropriate opinion based upon the material presently before me. 

35. Ultimately, the Family Consultant is of the strong view that, if the children continue to live with the mother, they will suffer by virtue of their continued subjection to the mother's neglect of their physical, psychological and, in Dr T's view, educational needs and it is her view that the physical, psychological and educational needs of the children would be best met in the home of the father. 

36. In terms of the educational needs of the children, I have not made a finding in relation to educational neglect and time will tell, but I am otherwise satisfied that their physical and psychological needs would be best met in the home of the father. 

Other relevant factors

Section 60CC(3)(a)

1. The children, as I said, have expressed a view.  I have already commented on that view and why it cannot be given considerable weight or much weight at all.  These young children have been exposed to significant family violence and abuse in their mother's home and they are protective of her, and that is consistent with all of the empirical data around family violence and exposure to it. 

Section 60CC(3)(b)

1. These children, no doubt, have a strong attachment to their mother, and there will be some disquiet for them and some disruption for them as a result of the orders that I have made. 

2. However, I am satisfied that they have a strong relationship with the father and the father's partner.  I am satisfied, based upon the evidence regarding what the children told Dr T around the children in the father's home, that they have a workable relationship with those children, and in those circumstances, I am satisfied that the orders that I make will be in the best interests of the children. 

Section 60CC(3)(c) and (ca)

1. I am satisfied that both parents have attempted to be fully involved in every aspect of these children's lives.  It is unfortunate that, at times, the involvement of the father has been constrained due to circumstances of either distance or decisions made by the mother or, indeed, perhaps, by the children's own desires as a result of their dogged loyalty to their mother.  I am satisfied that they both want to be significantly involved in their children's lives.

Section 60CC(3)(d)

1. I have discussed the likely effect of any changes as a result of my order, and Dr T provided significant assistance in that regard. 

2. I am satisfied there will be some disruption for these children, but I am also satisfied quite clearly that that disruption, in the short term, is outweighed by the benefit in the long term of such a change. 

Section 60CC(3)(e)

1. Dr T and the Independent Children’s Lawyer, perhaps as a result of reading the report, are of the view that the mother should spend no time with the children for a period of time. 

2. That opinion by Dr T is based on years of experience and is based upon the theory that, when children move from their primary attachment in circumstances where they are so fiercely loyal and attached to their mother, they need some time to settle.  They need time to have some respite and to adjust. 

3. I am of the view that that is, indeed, in the best interests of these children.  They need to have an opportunity to, in real terms, work through the difficulty that they will have in the short term with their father and his wife, without the interruption of being involved with their mother for a short time. 

4. That decision of mine will no doubt cause the mother some considerable difficulty.  But, as I said from the outset, it is the best interests of the children that is my paramount concern, and I am satisfied that it is in their best interests that there be some short time where the children are given the opportunity to settle in the home of the father and Ms R, to settle into living with the three other children, and to embark upon some counselling so as that any issues that they have can be appropriately addressed. 

5. It is an order sought by the Independent Children’s Lawyer that a further Child-Inclusive Conference be conducted in May and potentially with Dr T.  I am of the view that that is a very child-focused order and one which I will adopt, because it will give me the opportunity to see how these children have settled, if they have settled, and it will give me the opportunity to consider once again the impact, if any, upon the children recommencing time with their mother. 

Section 60CC(3)(f)

1. I have discussed the capacity of each of the parents to provide for the needs of the children.  Both parents have some dysfunction.  It is clear that the father needs to address his disciplining methods.  Children should not go without food for considerable periods of time, if at all, and they should not be left outside.  There are other, more appropriate remedies available to parent children, and I understand these children have some potential real difficulties, noting that they have been suspended and/or expelled from schools on several occasions.  The order for the father and his partner to engage with Mr J will assist him in developing skills necessary to cope with these children.

2. I have spoken about capacity of the mother to provide for the emotional, intellectual and physical needs of these children.  At this stage I am satisfied that it is appropriate to act upon these serious allegations in order to protect the children, and I am satisfied that I have to do so because the mother lacks capacity to fully understand the impact of her life choices for these children.

Section 60CC(3)(j)

1. I have discussed family violence at length.  I make these interim orders knowing that it is made in circumstances where there will be ongoing support for the children and in circumstances where the matter will come back before me reasonably quickly and with the assistance of a further Child-Inclusive Conference. 

Parental responsibility

1. As I said earlier, section 61DA(3) of the Family Law Act provides as follows:

   (3)  “When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

2. The presumption referred to is that contained in section 61DA(1), which reads:

   (1)  “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.”

3. That is, it is only in circumstances where I consider it not appropriate for the presumption to be applied that it should not. 

4. What are the circumstances that make it inappropriate?  In this case, the parents have no real cooperative parenting arrangement in place.  There is a mutual distrust and there are mutual serious allegations passing between the two of them, but perhaps more than that, in circumstances where the children will change residence as a result of my orders and now live with their father and his wife, and in circumstances where there will be a period of time without seeing the mother, that time at this stage unknown in terms of length, it is appropriate, in those circumstances, for an order for sole parental responsibility to be with their father. 

5. They are, in real terms, the reasons that make it inappropriate for the presumption to apply, and so the presumption will not apply. 

6. Is it otherwise in the best interests of the children for an order for equal shared parental responsibility? For the same reasons, it is not, in my view, and I will make an order for sole parental responsibility on an interim basis with the father. 

7. Having made that order, the provisions of section 65DAA are not triggered, and I am otherwise to make orders that I consider appropriate in all of the circumstances that are in the best interests of the children.[10]

   [10] See Family Law Act 1975 (Cth) s 61D.

I certify that the preceding one-hundred-and-thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Middleton.

Date:  15 June 2018