Brandt and Meinerts

[2019] FCCA 3257

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRANDT & MEINERTS [2019] FCCA 3257

Catchwords:
FAMILY LAW – Parenting – four (4) children – each parent seeks primary care – confronting case involving mutual family violence, alcohol abuse, emotional harm to children – one child deceased as a result of near drowning event post-separation – family grieving – high conflict continues despite Family Consultant’s warnings about children’s welfare – risks associated with both parents – best interests decision.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CC, 60CC(2), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 60CC(3)(m), 61DA(1), 61DA(2), 65DAA, 68B

Cases cited:

Goode & Goode (2006) FLC 93-286
M & M (1988) FLC 91-979

Applicant: MR BRANDT

Respondent: MS MEINERTS

File Number: NCC 333 of 2016

Judgment of: Judge Betts

Hearing date: 10 December 2018

Date of Last Submission: 6 June 2019

Delivered at: Newcastle

Delivered on: 21 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Graham & later self-represented

Solicitors for the Applicant: Lindeman Lawyers & later self-represented

Counsel for the Respondent: N/A

Solicitors for the Respondent: Carolyn Kelly of Carolyn Kelly Legal

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

Counsel for the Independent Children’s Lawyer Mrs Kearney

ORDERS

1. That all previous parenting orders be discharged.

2. That the Mother have sole parental responsibility for the major long-term issues of the children V born … 2002, W born … 2005, X born … 2007 and Z born … 2014.

3. The Mother is to notify the Father in writing within fourteen (14) days of making any major long-term decisions for the children.

4. That the children live with the Mother.

5. That the child V spend time with the Father in accordance with her wishes.

6. That the children W, X and Z spend no time with the father unless agreed in writing between the parents.  For the purposes of this order, “writing” includes by email or text message.

7. In the event that the Father wishes to spend time with the children W, X and Z pursuant to order (6) he must first contact the Mother in writing to seek her agreement in writing.  As a condition of her agreeing, the Mother may require:

   (a)that the Father provide her with written evidence that he has successfully undertaken comprehensive grief counselling;

   (b)that the Father provide her with written evidence that he has successfully completed a course directed at improving his parenting skills;

   (c)that the Father undertake a urine drug screen to show that he is not using illicit drugs;

   and the Father is to be responsible for the costs of (a), (b) and (c) above.

8. The Father is to provide these orders and Reasons for judgment to any grief counsellor attended by him pursuant to Order (7)(a) herein, and these orders authorise such counsellor to discuss the Father’s progress with the Mother.

9. Pursuant to s 68B of the Family Law Act, for the personal protection of the children, each parent is restrained from:

   (a)denigrating the other parent, or members of the other parent’s  family, to or in the presence of the children;

   (b)allowing the children to remain in the presence or hearing of any other person who is denigrating the other parent, or who is denigrating members of the other parent’s family.

   (c)knowingly permitting the children to be exposed to “family violence” as defined in section 4AB of the Family Law Act, a copy of which section is attached to this order;

   (d)while the children are in that parent’s care - consuming alcohol at such a level that the parent would not be legally able to drive a motor vehicle;

   (e)while the children are in that parent’s care - possessing, consuming or being in any way affected by illicit substances.

10. Pursuant to s 68B of the Family Law Act, for the personal protection of the children, the Mother is restrained from allowing any of the children to come into contact with Mr A, and in the event any of the children should come into contact with him she will remove the children from his presence immediately.

11. Pursuant to s 68B of the Family Law Act, for the personal protection of the children, the Father is restrained from removing or attempting to remove the children from the care of any school, extra-curricular activity provider or from the care of any other person or organisation with whom the Mother has placed the children, unless the Mother has provided her written consent to such removal. The Mother is at liberty to provide a copy of this order to any such person or body.

12. This order authorises each of the children’s schools to provide the Father (at his expense) with all information and documents (including photograph order forms) ordinarily provided by the school/s to parents.  The Mother is to ensure that each of the children’s schools is provided with a copy of this order.

13. This order authorises each of the children’s treating General Practitioners to provide the Father (at his expense) with any medical information relating to the children.  The Mother is to ensure that each of the children’s General Practitioners is provided with a copy of this order.

14. In the event of any medical emergency concerning the children, each parent is to notify the other in writing as soon as possible.

15. The Registrar is directed, within fourteen (14) days, to forward a copy of these orders and Reasons for judgment to the Secretary, Department of Communities and Justice (NSW).

16. Each party bear their own costs of and incidental to the proceedings.

17. All extant applications are dismissed.

18. The matter is removed from the Active Pending Cases List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 333 of 2016

MR BRANDT

Applicant

And

MS MEINERTS

Respondent

REASONS FOR JUDGMENT

Overview:

1. These are confronting parenting proceedings.

2. They arise out of the failed relationship between the applicant father Mr Brandt (“the Father”) and the respondent mother Ms Meinerts (“the Mother”).  Both parents live and work in the City B region.  The Mother and the children are aboriginal.

3. The parents were in a volatile, on/off relationship which commenced in 1999 and, mercifully, came to an end in November 2014. 

4. There are five (5) children of the relationship:

   a)V) born … 2002, who is 17 years and 2 months old (“V”);

   b)W born … 2005, who is 14 years and 9 months old (“W”);

   c)X born … 2006, who is 12 years and 10 months of age (“X”);

   d)Y who was born … 2012 but who passed away in particularly tragic circumstances on … 2015 as will shortly be explained (“Y”); and

   e)Z born … 2014, who is 5 years and 3 months of age (“Z”). 

5. The Mother has always been the primary carer of the children.

6. The parents’ relationship was toxic, being characterised throughout by family violence.  Both parents were perpetrators (sometimes at a high level) although the Father’s violence was of a more coercive and controlling type.  The parents’ violence was often fuelled by their mutual alcohol abuse. 

7. It is common ground that the children were exposed to the family violence.  It impacted all of them, particularly the eldest child, V who suffered the greatest exposure to it.

8. Post-separation the Father stayed single.  The Mother re-partnered with Mr A.

9. On … 2015 tragedy struck the family.  While in the Mother’s care, Y experienced a near drowning accident in a swimming pool, in the course of which she suffered devastating and irretrievable brain damage.  She succumbed to her injuries some eight (8) days later in hospital following her life support machines being turned off.

10. This catastrophic - and avoidable - loss of life is something which everyone in this family has had to live with.  The Mother has sought refuge in alcohol.  In the Father’s case, he has gone on to develop an intense and unremitting degree of anger and resentment at the Mother whom he squarely blames for Y’s death.  The Father also feels aggrieved at the court system, because at the time of Y’s death he had been expressing concerns about the children being at risk of neglect in the Mother’s care and had been in the process of arranging family dispute resolution.

11. The three (3) oldest children have been grievously affected by Y’s death.  V has particularly suffered.  As the eldest child present that day, she blamed herself for her little sister’s drowning. 

12. The Mother and Mr A subsequently had a child, M, who was born on … 2016.  While M has been a much-loved sibling to the children, sadly Mr A’s relationship with the Mother was also characterised by serious family violence.

13. Post-separation, the children once again found themselves having to live within a violent and dysfunctional household.

14. This litigation has itself been an enormous stressor to the children.  Despite a stern warning from the Family Consultant in the Limited Issues Report[1] that the parents needed to resolve their dispute for the children’s sake, they have been either unable or unwilling to do so. 

    [1] Exhibit “ICL-4”

15. The Father in fact began denigrating the Mother during the children’s visits with him.  The denigration was in most vile and inappropriate language.  His actions were hateful of the Mother and only caused more harm to the children.

16. To borrow the words of the Family Consultant, these are children who have suffered many “adverse childhood events”. 

17. In early 2018, these emotionally damaged children, having found themselves in a complete “no win” situation between their warring and dysfunctional parents, became highly resistant to visiting the Father.  Their relationship with him broke down and has never recovered.

18. By the time the matter came on for trial in the October 2018 sittings at Town C, the children had not been spending any meaningful time with the Father for the better part of a year.

19. The trial itself was a difficult one and ended up having to be re-opened as will be explained later.

20. In the end, this case permits of no good outcome.  Both parents have caused the children enormous harm. The court simply has had to make the orders that are least damaging to the children going forward. 

21. For the record, unless otherwise stated in these Reasons, any statements of fact made by me should be taken as findings.  To keep things in context, I propose to proceed in a generally chronological fashion. 

Relationship and co-parenting history up to separation:

1. The parents commenced their relationship when they were both seventeen (17) or eighteen (18) years old. 

2. The Mother soon found that the Father was quite manipulative and at times controlling.  She had to provide him with meals at an exact time of day, and cooked in a certain way, or he would verbally abuse her and put her down.  On occasion he would do so in an intimidating and frightening way, saying such things as “Fucking hell I’ll do it!” and “I’ll just cook it myself next time!” or the disparaging “You have no idea”. 

3. The Father first assaulted the Mother very early on in the relationship, having become angry at her for talking to someone she went to high school with.  On this occasion he held her against the wall with his forearm across her chest/throat area and head-butted her.  As with most of their family violence over the years, no complaint was made to Police.[2] 

   [2] Mother’s affidavit filed 04/09/18, para 26

4. As a parent, the Father was unsupportive and largely uninvolved.

5. After V was born the Mother was providing for practically all of her care.  The Father provided only nominal assistance.  He prioritised his social life instead, in the course of which he also developed a gambling problem. 

6. One of their separations occurred after the Father accidentally struck V while trying to hit the Mother.  After this particular event the Mother lived with friends for a number of months.[3]

   [3] Mother’s affidavit filed 04/09/18, para 36

7. It was probably during this separation when, on the night of 24 January 2004, the Father saw the Mother out on the town.  He harassed her both at a hotel and a nightclub.  He later went to her home unit and, on this occasion, he called her a “fucking rat” and a “shit mum” before pushing her in the chest region, causing her to fall backwards.  Both parties were affected by alcohol.

8. Police were called and the Father was arrested and taken away.  The Father was later convicted of that assault. [4]

   [4] Exhibit “ICL-2”, pp. 22 & 23

9. V was eighteen (18) month old at the time.

10. The parties reconciled and the Mother fell pregnant again with W.  The Father was no more supportive than before.  He remained uninvolved with V, at the same time accusing the Mother of carrying someone else’s child.  He was verbally and mentally abusive towards the Mother throughout the pregnancy.[5]

    [5] Mother’s affidavit filed 04/09/18, para 39

11. By the time the Mother fell pregnant with X, the parties were living at the City D.  The Father remained unsupportive and at times abusive towards the Mother – mainly verbally but sometimes physically.   The Father moved in with friends while the Mother was pregnant.  The Mother had to drive herself to hospital during her pregnancy complications, and again on the day she went into labour.  On that particular occasion the Father travelled in the front passenger seat being too intoxicated and hung over to drive.  This precipitated another separation.[6]

    [6] Mother’s affidavit filed 04/09/18, paras 45 - 53

12. The Mother then moved in with the maternal grandparents at City E and did not hear from the Father for the next five (5) months.  The Mother and children then moved briefly to City B and then to Town N where they lived for the next three (3) years – during which time the Father did not see the children on any regular basis.[7]

    [7] Mother’s affidavit filed 04/09/18, paras 54 – 57.  The Father’s admitted non-involvement in the older children’s lives is set out in paragraph 17 of the Limited Issue Family Report, exhibit “ICL-4”

13. The parents reconciled again sometime around 2009 / 2010 and ended up living in City B.

14. I should record here that in many ways the parents’ relationship was in fact a “merry-go-round” of separations, reconciliations and pregnancies.[8]  Both parents abused alcohol on occasions, and both used cannabis - although the Mother ceased using cannabis some years into the relationship whereas the Father continued throughout.

    [8] Mother’s affidavit filed 04/09/18, para 37

15. With a relationship so volatile, the parents were in no position to give the children the stable, predictable and loving home that they deserved.

16. On 15 November 2012, when Y was about eight (8) months old, the parents again had a violent altercation at home while the children were present. 

17. On that occasion the parents were both drinking and they got into an argument, involving some pushing and shoving.  The Father then grabbed the Mother and held her down on the ground with his knee on her chest and placed both hands around her neck.  The Mother kicked him to try and get him off her and was yelling for him to get off and saying she was going to ring the Police. 

18. Once the Father got off her, the Mother walked up to him and slapped him in the face.  The Father punched her with a closed fist to the left eye and side of her face, causing her to fall back on the lounge.  She got up and went to the bathroom to look at her face, before returning to the lounge room and saying to the Father “Look at my face, I’m calling the cops, look what you’ve done.  You are so clever hitting me places where people don’t see the bruises”. 

19. Police attended a short time later and the Father was arrested and a twelve (12) month Apprehended Violence Order (“AVO”) taken out against him for the Mother’s protection.[9]  However, the related assault charge was dropped as the parents had again reconciled.

    [9] Exhibit “ICL-2”, p. 20

20. V witnessed this event.  Fortunately the other children were asleep.[10]

    [10] Exhibit “ICL-2”, p. 55

21. I reject the Father’s version of that event insofar as it omits to mention that he punched the Mother in the face. [11]  On the Father’s version of events, the Mother’s facial injuries as observed by Police cannot be explained.

    [11] Father’s affidavit filed 11/10/18, paras 11 & 12

22. In the witness box the Father did admit that, on occasions during the relationship, he had held the Mother down during their arguments as a way of restraining her aggression towards him. 

23. The Father also admitted that some of his comments to the Mother had inflamed the situation, for example telling her to “calm down you schizo” could provoke a physical reaction from her including biting him, with the Father then having to “pin her to the ground and sit on her”.[12]

    [12] Exhibit “ICL-4”, para 20

24. To be clear, the Mother was by no means an entirely innocent “victim” of family violence.  On the evidence before me, she appears to have suffered from compromised mental health at times during her adult life and she clearly self-medicated with alcohol on occasions.  She could behave in a physically aggressive way.  I accept that on occasions the Mother was the instigator of the family violence in that she physically lashed out at the Father – including hitting and sometimes biting him.  On other occasions she was at the very least an active participant in their mutual violent exchanges.  She is likely to have been more physically violent to the Father on 15 November 2012 than she herself admitted in her own affidavit.

25. I accept the Father’s evidence that sometime around 2012 or 2013 the Mother assaulted him while he was asleep in bed, leaving him bleeding from the nose and mouth and with various facial cuts.[13]

    [13] Father’s affidavit filed 11/10/19, paras 13 & 14

26. The children were impacted by the family violence between the parents and their experience was that both participated.  V, W and X were all able to recount instances of violence when they spoke to the Family Consultant for the Limited Issue Family Report:[14]

    [14] Exhibit “ICL-4”

    56.The children reported being exposed to significant family violence where they witnessed the parents hitting and punching each other; yelling, screaming and swearing at each other.  The children reported that the Mother’s and Father’s anger towards each other was mutual and that the intensity of the anger was about the same.

    57.The children reported being frightened when the parents started arguing.  X said when the parents started yelling and swearing at each other he would hide under his bed, but on the occasions when ‘things got out of hand’ he would go into his sister’s bedroom and hide with them.

    58.The children said that there were times when the parents could be nice to each other but for the most part they were angry and argued all the time.

    59.One of the children reported that ‘often’ huge fights would take place over insignificant issues…

    60.The children were asked if they noticed that the Mother and Father consumed alcohol before they began to argue.  The children said that the Mother and Father both consumed alcohol, but ‘it wasn’t only when they were drunk that they argued’.

27. During the relationship, Police took out a number of AVOs to protect the Mother from the Father.  There was never an AVO taken out to protect the Father.  He explained this in the witness box by saying that the “system is unfair”.

Post-separation / leadup to these proceedings:

1. At separation, the Mother moved into her own rental property with the children.  She continued in the primary care role as she had always done.

2. The Father was concerned about the Mother’s mental health in early 2015.  She told the Father she had been prescribed anti-depressants.  She may also have told him that she had been diagnosed with bipolar disorder around that time, but I am unable to make a positive finding and there is no evidence that she was so diagnosed.[15] 

   [15] Father’s affidavit filed 11/10/18, para 17

1. The Father was concerned about the Mother’s alcohol use, particularly in combination with anti-depressants.[16]  The Mother was involved in a motor vehicle accident in … 2015 and the Father’s evidence is that the Mother later admitted to him that she was drink driving at the time – with Z in the car.  At trial the Mother denied it and the court does not have the benefit of any subpoenaed or independent records.  She was not charged by Police.  Notwithstanding, I am inclined to accept that the Mother did make such an admission to the Father and that she was likely drink driving.

   [16] Father’s affidavit filed 11/10/18, para 19

2. I also accept the Father’s evidence that around July 2015 the Mother offered him some of her anti-depressants which she described as “happy pills”.  He declined.[17] 

   [17] Father’s affidavit filed 11/10/18, para 21

3. At that time it is true that the Mother was struggling with her mental health and with alcohol abuse. But she also had to look after the children on her own.  For all of the Father’s criticisms of her, he was not necessarily in any better position to look after the children himself.  He had never shown the necessary commitment to that task and, moreover, he was himself continuing to abuse alcohol at that time as well as continuing to use cannabis.

4. In July 2015 the Mother left town for a few days to attend a sporting event, leaving the children with the Father.  Upon her return, the Father held the children over, accusing her of being drunk and taking drugs.  Both allegations were unfounded; the Mother spoke to Police and undertook a drug test which was clear. 

5. The Mother was later able to collect W, X, Z and Y – but V remained with the Father for about the next six (6) weeks. 

6. I accept the Mother’s evidence that upon their return W and/or X disclosed to her that, while they were with the Father, he had:

   (a)shown X photographs of women’s breasts taken on the Father’s mobile phone;

   (b)put all of the children into a room, thrown a heap of lollies and chocolate on the bed and shut the door;

   (c)been angry at Z because she was crying all the time and at one stage he threw her up onto the bed by one arm.

7. The children also said that Z had had a lollipop in her mouth “the whole time”.

8. As for V’s six (6) week stay with the Father, she later told the Mother that she did not attend school regularly, didn’t have to do chores or homework and as a general statement “got what she wanted”. 

9. I accept that the children’s disclosures to the Mother were true, or substantially true.[18]  By choice, the Father had in fact had little parenting experience at that stage.  He was lacking in key parenting skills.

   [18] Mother’s affidavit, paras 110 - 115

10. As a result of the parental conflict in July 2015, the Police took out another AVO to protect the Mother from the Father. 

11. Not long after, the Mother re-partnered with Mr A. 

Y’s tragic death:

1. Against this background of simmering tension between the parents, the Mother and Mr A took the children on the fateful holiday to South-East Queensland in which Y lost her life.

2. To quote from the Coroner’s findings subsequently handed down on … 2016:[19]

   [19] Exhibit “F-3”.  The identities of the relevant persons have been included by me in square brackets

   “The children had gone down to the pool area ahead of the adults.  There were visible signs stating there must be adult supervision for children under 13.  The oldest child present was 13. [V]

   The children were in the pool area and Y was seen to be playing on the pool steps whilst the other children were swimming, playing in the pool.  CCTV footage shows her take a step too far before falling in the pool and not resurfacing.  She was immersed for a period of seven minutes before being recovered by an older sibling. [V]

   Resuscitation efforts were commenced immediately and emergency services contacted.  An ECG monitor showed a very slow heart rate and she was immediately transported to the F Hospital.

   CPR continued and spontaneous circulation returned, however there had been a significant downtime.  CT scans showed severe brain damage secondary to hypoxic insult.  She remained on life support, which was later withdrawn due to the poor prognosis.  She was provided with comfort measures and died on … 2015.

   Autopsy Examination

   An external autopsy examination and post-mortem CT scan confirmed the cause of death was hypoxic ischaemic encephalopathy as a consequence of a near drowning incident.

   Police Investigation

   …

   The outcome of the investigation identified that the child was inadequately supervised immediately preceding her near drowning in the hotel pool.  Police consider the lack of supervision was insufficient to establish criminal negligence on the part of any person.

   The investigation revealed that Y’s mother gave permission to the children to go to the swimming pool area.  She stayed in the apartment to put an infant [Z] to sleep and intended to be at the pool area in a minute.  However the near drowning incident occurred without the presence of any adults and Y was retrieved from the pool by the eldest child [V] who also attempted to resuscitate her.

   One of the other adults [Mr A] had returned to the apartment complex after being out.  He observed the children in the pool area and told them he was going to put some board shorts on and would be back down.  It was during this time that Y became distressed in the water.

   Conclusion

   Y, aged 3, suffered a drowning event at an apartment block swimming pool.  She had been allowed to go to the pool area with other children.  There were no adults supervising the children. 

   In all swimming pool deaths involving infants a lapse in supervision is a constant factor.”

These proceedings & their impact on the co-parenting arrangements:

1. With Y having only recently passed away and the family still in the early stages of grief, the Father filed his Initiating Application on 15 February 2016.  He sought orders that the children live with him and that they spend alternate weekends with the Mother – limited to daytime periods only.  He also sought a restraining order in relation to the Mother’s use of alcohol.

2. The Mother filed her Response on 11 April 2016, seeking orders for equal shared parental responsibility and that the Father spend alternate weekends and half holidays with the children, subject to him having appropriate accommodation.  She proposed mutual restraints in relation to the use of illicit substances and non-denigration, as well as various other detailed and machinery-type orders to facilitate co-parenting.

3. On 18 April 2016 the parties entered into interim consent orders whereby the Father would spend weekend time with the children during the daytime, with the Father to return the children if they became distressed. 

4. An ICL was later appointed and a Limited Issue Family Report was ordered, this being released on 18 July 2016.  This report became exhibit “ICL-4” at trial.

The Limited Issue Report:

1. The Limited Issue Family Report should have served as a “wake-up call” for the parents.  It made for disturbing reading. 

2. In relation to the nature of the parents’ relationship the Family Consultant considered it to be co-dependent, toxic, violent and abusive.[20]  The Family Consultant was concerned about the children’s exposure to family violence, and the impact on them of Y’s recent passing.  The Family Consultant was clearly very concerned about the welfare of the children at that time, particularly V. 

3. The Family Consultant observed that:

   13.Moreover, not only have the children suffered the loss of their sister, but they endured a lifetime of trauma in being exposed to family violence and alcohol abuse.  They have experienced the outfall of their parents’ toxic relationship and are continuing to be exposed to entrenched parental conflict, therefore, the sooner this matter is resolved the sooner the children will be able to return to some sense of normality…

   …

   78.Both parents need to begin to separate out their emotional states and feelings of animosity towards each other and focus on how they can support the children’s emotional and psychological well-being, in particular V whose mental health is at significant risk of escalating into a serious mental health disorder.

   79.If the parents fail to access appropriate support for the children regarding trauma and grief and loss, then the implications for their future mental health is such that it could manifest into serious mental health disorders.  If the parents are unable to find a way to relieve the pressure of these proceedings by reaching an appropriate agreement, then ongoing involvement in this court process will only serve to compound the children’s trauma.

4. The Family Consultant said that there was little to be gained by the family remaining in the court system as she considered that despite their deficits, each parent individually appeared to be a “good enough” parent.  She did not consider it to be in the children’s best interests to live with the Father, noting that the children had already had to cope with too much trauma, loss and change in their lives.  She thought that they needed stability, consistency and a sense of normality.  She recommended that they stay living with the Mother but spend substantial and significant time with the Father. [21]

   [20] Para 86

   [21] Paras 86 – 88, 92, 93

5. Critically, the Family Consultant warned against the parents placing loyalty demands on the children.  She said they needed to be kept free from violence and conflict. [22]  She offered this specific warning:

   90.Both parents should note that in order for meaningful relationships to be maintained they need to refrain from denigrating each other, to the children, and in front of the children.  If they fail to do so then there is a high possibility that given time the children will disengage from that parent and align themselves with the other parent.

   [22] Para 84

6. As will be seen, much of what the Family Consultant warned against happened anyway.  

7. Following release of that report, the parents certainly started out “making the right noises”.  They entered into interim consent orders on 2 August 2016 which contained a specific non-denigration injunction. 

8. On 3 November 2016, the parents entered into further interim consent orders restraining them from discussing the court proceedings with the children or using obscene language in their presence.

9. The Father’s time with the children pursuant to the orders remained problematic.  I accept the Mother’s evidence that after a short “honeymoon” period, the Father was using cannabis while the children were in his care; and going out while either leaving the children with friends or unattended (in which case the older children had to care for them). 

10. The Father would miss the children’s birthdays and birthday presents or otherwise forget to call them in accordance with the orders.  On occasions he was too intoxicated to collect or return the children and would ring the Mother to do so.

11. The Father on no occasion attended at the children’s schools, nor did he attend their sporting games.  This was despite the Mother’s invitations, and on occasion the children’s invitations.

12. In summary, the Father continued to be the same self-indulgent, somewhat neglectful parent that he had always been – while at the same time being highly critical of the Mother’s failings as a parent.  In this respect, I accept as an accurate and poignant statement this observation in the Mother’s trial affidavit:

    “101.In short, Mr Brandt will spend time with [the children] on his terms but run me down to them to cover his own inadequacies”.

13. The parents participated in an unsuccessful Litigation Intervention Conference in 2017. 

14. On 21 September 2017 the parents entered into consent orders whereby each was to attend a course of therapeutic counselling to address their conflict and the differences in their parenting styles.  However, such counselling as each of them may have had achieved nothing.

The Family Report:

1. On 13 November 2017 the same Family Consultant conducted interviews for a full Family Report.  By that stage a rather disturbing picture had emerged in relation to the Mother’s relationship with Mr A.

2. W reported at interview that the Mother and Mr A had had a fight over the last weekend and that Mr A had “left with M again”.  She told the Family Consultant that there was a previous occasion when Mr A had taken M from the Mother, when they were all up at City G and the Mother and Mr A had been drinking.  She could not remember what the argument was about but did recall that Mr A started to smash beer bottles everywhere before taking M in the car and driving back to City B, leaving them stranded at City G.  

3. W considered that by this stage the Mother and Mr A were arguing a lot whether or not they were drinking alcohol. 

4. She also reported another alarming incident whereby Mr A was apparently out in the street yelling “Help us, help us!” while hitting himself in the head.  Disturbingly, W did not in fact witness this incident but said that the Mother had told her about it.[23]  Why the Mother would have told W about this event is anyone’s guess - as it likely would have caused W some confusion if not distress if not emotional harm.  Certainly it impacted her enough that she told the Family Consultant about it.

   [23] Exhibit “ICL-5”, paras 82 - 84.

5. X also recalled the argument between the Mother and Mr A over the last weekend.  He was able to describe how he would get very nervous when he heard the violence between them and that he could hear it even more clearly than usual because he had a friend sleeping over and the two of them were in the lounge room.  Both were awoken by the yelling and swearing. 

6. X told the Family Consultant about other occasions where Mr A had left the home after fighting with the Mother.  He said he felt much safer when they were not in contact with each other. [24]

   [24] Exhibit “ICL-5”, paras 96 & 97

7. The oldest child V told the Family Consultant that she did not like Mr A or the way Mr A treated the Mother - but said she had not witnessed any physical violence between them at that stage and that they mainly argued at night, although sometimes it could be for a long time and sometimes for an entire weekend. 

8. The Mother told the Family Consultant that she had very recently separated from Mr A, her description being that they were just “taking a break” from the relationship.[25]

   [25] Exhibit “ICL-5”, para 32.

9. I observe here that at that point the Mother and Mr A had been considering a move to Suburb O to live together but none of the children were comfortable or happy about that possibility.  Nor was the Family Consultant.

10. The Family Consultant was concerned that the Mother lacked insight into the dynamics of family violence and its impact on the children and that she was not taking appropriate steps to protect them from Mr A by (for instance) applying for an AVO.  She was also concerned about the Mother’s mental health and alcohol and possible drug abuse.

11. The Family Consultant considered that the Mother’s violent home environment with Mr A had by then become the “central issue which needs to be addressed by way of either removing them from the mother’s care or preventing the children from coming into contact with Mr A.” [26]

    [26] Exhibit “ICL-5”, para 127

12. The Family Consultant pointedly observed:

    “124.The children have suffered so much grief and loss in their young lives and been exposed to unacceptable harm from their parents.  The parents are meant to be the ones protecting them from harm.  They are mention to nurture the children; that is their primary role as parents, but sadly the children’s experience of their parents and family has been the antithesis of that”.

13. One can almost sense the Family Consultant’s exasperation at what was happening – particularly given the content of the earlier Limited Issue Report.

14. The Family Consultant considered that the Father had the capacity to understand and effectively meet the needs of the children if he became primary carer.  But, with all due respect to the Family Consultant, such conclusion did not have a proper foundation in the evidence. 

15. There is no doubt that the Mother was downplaying Mr A’s violence.  When the Department of Families and Communities (NSW) conducted a safety assessment on the Mother’s household on 27 November 2017, the Mother disclosed behaviours from him consistent with coercive and controlling family violence.[27]

    [27] Exhibit “ICL-2”, pp. 96 – 100.  This included repetitive telephone calls, and his “possessiveness” of her

16. When the matter next came before the court on 8 December 2017, the matter was set down for a three (3) day trial in October 2018 and a specific injunction was put in place restraining the Mother from bringing the children of the proceedings into the presence of hearing of Mr A, other than during changeovers for M. [28]  The Mother was also ordered to undertake a CDT test in relation to potential alcohol abuse.

    [28] Order 17 of the orders of 8/12/17

The parents breach the orders / the co-parenting arrangements completely break down:

1. At the time the Family Report was released, the Father had been spending regular fortnightly time with the children. 

2. The Family Report’s contents and recommendations – including a possible change of residence - in my view unintentionally ramped up the tension between the parents.

3. For her part, I have no doubt that the Mother was feeling particularly defensive.  The Family Report questioned her parenting capacity at a basic level.  It flagged the real prospect of the children being removed from her home.

4. The subsequent actions of both parents in the leadup to trial were disappointing, to say the least. 

5. For the Mother’s part, she maintained an ongoing relationship of sorts with Mr A, actively facilitating his ongoing relationship with M.  But more significantly, she continued to expose the children of the relationship to Mr A in flagrant breach of the express injunction of 8 December 2017. 

6. She admitted that the children had spent time with Mr A in breach of the orders “simply because he and I have a child and it is impossible to ensure that the children do not spend time with him”.  She even admitted that Mr A had been spending one-on-one time with X while they were building a skate ramp together.[29]  In so doing, the Mother put the children at unacceptable risk of being exposed to further family violence.

   [29] Mother’s Affidavit paragraphs 195 to 198.

7. As for the Father, the Family Consultant’s assessment as to his capacity to manage the children was shown to have been wildly over-optimistic.

8. For reasons that would be explicable only to himself, the Father decided on a date in late 2017 to have all of the children sit down and watch a movie with him entitled “Once Were Warriors”.  According to the Mother “the movie features severe domestic violence, drugs, alcohol abuse, sex scenes, rape”.  During the movie the Father commented to the children “you think you guys have it bad, look at this family” and he also made comments such as “dad never hit your mum that bad, see” and the like. 

9. According to the Mother, whose evidence I accept on this issue, the children were extremely shaken after this experience.  Days later Z said to her, while just sitting in the car “that girl was hanging in the tree mum, and her mum can’t get her down and she was crying”.  In the movie, the daughter in question is raped by an adult and ends up committing suicide in a tree at the family home and her mother finds her.

10. At the time they watched this movie, V was fifteen (15), W thirteen (13), X ten (10) and Z only three (3). 

11. “Once Were Warriors” is a most graphic and confronting film.  The only logical explanation for the Father showing it to the children was that he was trying to minimise his own past family violence by pointing out how much worse family violence can potentially be.  At that time, one thing these children positively did not need in their lives was further exposure to scenes of harrowing family violence – especially in this gratuitous manner.  They had already lived through the real thing.  On any view the Father’s actions in showing the children this movie can only be seen as manipulative and emotionally abusive. 

1. Worse, on 29 December 2017 the Father engaged in an eleven (11) minute verbal spray about the Mother while he had the children in the car.  Little did the Father know it, but W was in fact recording what he was saying and she then gave this recording to the Mother afterwards.  The Mother had it transcribed and annexed the transcript to her trial affidavit.[30] 

   [30] Annexure “A” to Mother’s affidavit filed 04/09/18

2. This recording desecrated the Father’s credibility as a parent.  It showed him to be a high level emotional abuser of his own children.  During the conversation the Father makes references to numerous adult themes, denigrates the Mother in no uncertain terms, and – in extremely insensitive fashion - goes onto to refer to the Mother’s behaviour at Y’s funeral, complaining about her “pashing” Mr A and saying she was “off her fucking head”.   

3. He says at one point that he is:

   Sorry to tell yas all of this about your mum guys but, wow.  Just try to look at it from both sides of the story please, I know dad was a shit person and wasn’t around in life, but in time I’ll explain all of that to you guys…Dad was over in the mines, trying to make money, buy us a house trying to give us a life, working my ass off, missing out on Christmases missing out on birthdays missing out on you’s growing up and here’s mum, goin out on the piss fuckin hooking up with other blokes and shit while dad’s over there working his ass off.  But now I get in shit, oh you’re a shit cunt because you weren’t there…you didn’t give a fuck about us…Why do you think dad wasn’t around so much guys.  Dad didn’t like ya mum and what she did to dad, cheating on me all the time fuckin coming home drunk, bashing on me. You all think dad’s a fuckin woman basher or whatever, dad was protecting himself from an evil woman…You don’t hit people, dad was in love with ya mum and I was caught up in that cycle, dad was wrong, very wrong….

4. The Father talks about the previous AVOs on him, he talks about how both parents have behaved badly in the past and he emphasises that the Mother lets the children do whatever they want and that he now needs to show them some “tough love”.

5. A copy of the complete transcript of what the Father said will be annexure “A” to these Reasons. 

6. The Father may have seen this conversation as “tough love” – but in my view it was serious emotional abuse.  It was a continuation of his dysfunctional parenting style.  The children at the time ranged from three (3) to fifteen (15) years old.  (Fortunately for three (3) year old Z, much of the Father’s commentary seems to have gone over her head.  In her innocence she makes a number of child-like statements during the Father’s rant – he ignores those and simply keeps talking.) 

7. This was not the first time the Father denigrated the Mother, contrary to the interim orders.  He had been doing so for some time in the leadup to that day; the children had been complaining to the Mother about his behaviour. 

8. After this visit, the children were upset with the Father and W gave the Mother the recording.  In my view, the older children would have known or at least suspected that the Mother would be using that recording against the Father. 

9. Unsurprisingly, the children’s time – and relationship – with the Father broke down after this visit.  The children were in a loyalty bind between the two warring parents both of whom were in a number of ways failing to meet their proper emotional needs.  They may well have feared repercussions from the Father when they went back to him, given the recording.  I accept the Mother’s evidence that V and W had in fact expressed to her on occasions that they were fearful of the Father’s reactions.

10. The truth is that the children were in a “no win” situation as a result of the actions of both parents.  In the Limited Issue Family Report, the Family Consultant had predicted that if the parents continued to involve the children in the dispute, and continued to denigrate each other, that the children may gravitate towards the perceived victim parent, in this instance the Mother.

11. At the trial the Father complained that the recording was a “set-up” orchestrated by the Mother.  She denied it.  If she was responsible, then the set-up only succeeded because of the Father’s own past behavioural patterns.  In my view it is equally likely that W, having previously complained to the Mother about his denigrating behaviours, decided to “catch him out”.   To be clear, if the Mother put W up to it, then this was obviously inappropriate on her part and could only have had the effect of drawing her into adult issues.  But there probably weren’t any decent options open to the Mother at that stage to try to stop the Father’s denigrating behaviour.  The Father was causing the children emotional harm. 

12. The Father suggested in the witness box that on this particular day he had become very angry shortly prior to the recording - because V was saying that she was going to use some of the “Go Fund Me” monies that the family had raised after Y’s death to fund her attendance at a concert.  The Father wanted the money used in a more positive way for the children and he saw a concert as squandering the money and being contrary to the purpose for which people had made the donations.  I accept his evidence about that, but it is by no means a complete explanation – much less an excuse - for his behaviour.  Nor does it explain his earlier denigration in the leadup to this day.

13. Like the Mother, the Father was breaching the interim orders and failing to protect the children.

The trial before me in October 2018:

1. At the trial the Father was represented by Mr Graham of counsel, the Mother was represented by her solicitor Ms Kelly and the Independent Children’s Lawyer was represented by Mrs Kearney of counsel.

2. Although the Father’s relationship with the children had broken down in early 2018, his formal position at commencement of the trial was that the children should be living with him and spending time with the Mother alternate weekends and half school holidays.[31]

   [31] Father’s Case Outline, exhibit “F-1”

3. The Mother’s formal position was that the Father spend time with the children as agreed but failing agreement for a minimum of four (4) hours each third Sunday. This was subject to the Father providing a clear urinalysis result and a report from his treating mental health practitioner confirming that he was mentally stable and complying with any prescribed medication regime. [32]

   [32] Mother’s Case Outline, exhibit “M-1”.

4. Each parent sought sole parental responsibility.

5. The Father’s trial affidavit[33] was rather light on details, particularly as to how he proposed to manage the children’s adjustment if they lived with him.

   [33] Filed 11/10/18

6. The Mother’s trial affidavit[34] was much more extensive but in parts demonstrated a glaring lack of insight.  In particular, it greatly downplayed the family violence and relationship problems between she and Mr A.  She deposed they were having therapy with a relationship therapist, and that she had learnt various strategies to manage domestic violence through H Cottage, having completed a “…” program from which she claimed to now recognise the physical, emotional, psychological and financial abuse she had suffered.  Notably she related her therapy back to her relationship with the Father.  Regrettably, Mr A did not get a mention in that context.  In Mother wanted the court to discharge the injunction restraining Mr A from being in the company of the children. She effectively “whitewashed” Mr A, saying that she and he “are learning how to communicate and resolve issues that arise without argument.  He is very respectful of my relationship with my children and understanding of their needs and emotions”.  [35]

   [34] Filed 04/09/18

   [35] See particularly paras 195 – 197, 207

7. The Mother had Mr A swear an affidavit in her case, but at trial he was interstate and she sought leave for him to give evidence by telephone – which was refused.  In the circumstances his affidavit was not relied upon.

8. In fact it emerged that there had been further family violence from Mr A towards the Mother in the leadup to the trial.  They had had a recent altercation at the RSL at City B – once again involving alcohol.  Mr A had thrown ice on the Mother and left the premises.

9. The trial itself had an unfortunate run, in that the Town C that week was – as usual - particularly heavily listed.  In the result, the trial did not finish in the three (3) days allocated (Tuesday to Thursday).  Ordinarily the court could have sat on at Town C on the Friday to finish the trial – but the court house was unavailable that Friday. [36]

   [36] By arrangement, the Commonwealth has the free use of the State court house at Town C to conduct FCC sittings.  However, on that particular Friday the State required the use of the court house.

10. In the circumstances the trial was adjourned over to Newcastle to resume on the Friday afternoon – noting that all parties (including the court) would be travelling that day from City B to Newcastle. 

11. The trial resumed in Newcastle on the Friday afternoon and ran quite late.  Ultimately the proceedings had to be adjourned to 10 December 2018 at Newcastle for closing submissions.

12. Things proceeded anything but smoothly thereafter.

13. In late November the Husband’s solicitors withdrew, so that he was then self-represented.

14. When the matter came on in Court on 10 December 2018, the ICL’s counsel and the Father were present in person.  The Mother and her solicitor appeared by telephone.  There were technical problems with the courtroom audio system.  Another courtroom had to be utilised.  This involved a brief delay. 

15. The Father was visibly agitated throughout the court attendance.  One of his frustrations was he was there in person whereas the Mother and her solicitor were appearing by telephone.  He behaved in a harassing manner towards the ICL’s counsel, repeatedly interjecting and interrupting submissions.  At one stage he labelled the court process a “joke” and on repeated occasions referred to myself as “mate”.  Having given the Father significant latitude I finally warned him that if continued to behave in this manner then I would have to exclude him from the courtroom. 

16. I adjourned briefly and upon resumption the Father regrettably continued his aggressive behaviour and was excluded.

17. Having regard to the Father’s behaviour in court, the ICL indicated that she had changed her position.  Originally she was submitting that the Father have some limited time with the children – but now the ICL’s position was that the court should make a “no time” order. 

18. The Mother half-heartedly pressed her original orders for the Father to spend limited time with the children, but was comfortable to acquiesce in ICL’s the “no time” order. 

19. The Court reserved judgment.  But having further reflected on the matter, and noting that the Mother and the ICL had changed their formal positions in the Father’s absence, the court decided that out of an abundance of caution the Father should be provided with a copy of the transcript of the hearing of 10 December 2018 and given an opportunity to provide written submissions.  On 21 February 2019 orders were made in chambers allowing the Father twenty-eight (28) days to file written submissions and a copy of the transcript was provided to him.

Trial is re-opened:

1. In the meantime, there was another unfortunate development.  The court was informed that on 2 March 2019 the Mother and Mr A had become embroiled in a serious violent altercation involving ambulance and Police. 

2. In light of this development, orders were made on 13 March 2019 for the trial to be re-opened.  The parties were given leave to issue further subpoenas and to file updated affidavits. 

3. The Mother’s affidavit was filed on 1 April 2019 and it graphically exposed her lack of insight in breaching the restraint about Mr A.  The Mother’s evidence was that in the four (4) weeks prior to the incident on Saturday, 2 March 2019, Mr A had been behaving inappropriately towards her, calling her a “fat slut” and saying he wanted a DNA test for M. 

4. Mr A had come around to her house and smashed the left side mirror of her car when it was parked in the driveway.  He had said to her that he wished she would walk in front of a bus and die.  He had said he would drive his car right through the front of her house.

5. The Mother apparently put up with this behaviour, thinking she could control things as she was trying to hang in “for M’s sake”.  She admitted that her self-esteem was so low that she doesn’t act quickly enough to terminate an abusive relationship.

6. To be clear, the above incidents of family violence disclosed by the Mother all post-dated the court reserving judgment.  But for the events of 2 March 2019 to which I will now turn, it is highly unlikely that the court would ever have been made aware of those violent events.

7. Turning then to … 2019, this was Mr A’s birthday and the Mother attended a birthday party at his home with Z and M.  She was drinking with Mr A and intending to stay overnight.  As the other guests were leaving, they got into an argument.  She challenged him about how much he had been drinking. 

8. Mr A grabbed and crushed her drink can, which hit the Mother’s teeth and spilt all over her.  She ran out the front door and got into the car but Mr A ran down and smashed the right side mirror.  The Mother didn’t have her phone, wallet or bag but she wanted to get Z and M out of there.  She got out of the car and ran up the stairs but Mr A came out the front door and kicked her hard in the chest so that she fell from the top of the stairs all the way down to the bottom, hitting her head. 

9. She remembers laying there and feeling “wobbly” when she got back up.  Mr A blocked her from going back up the stairs and started screaming at her “Someone help me and my kids!” while looking at her in a terrifying, almost smiling way.  She was telling him she wanted to go but he was holding her head down towards the stairs at which point – as she had done before with the Father – the Mother bit Mr A.  He let go and tried to push her down the stairs and she hit him in the arm with her car key and he then let go. 

10. She could hear Z crying and the next moment Mr A punched her in the body and back.  She went to his room, started packing her things and was on her knees he then “closed fist” punched her in the face - following which her ears were ringing and she says everything went black.  Her nose was bleeding and Z was crying. 

11. Mr A was screaming at Z “I’m sorry bub.  Sorry Z but she’s a slut!” 

12. The Mother grabbed Z and took her to the lounge.  M was asleep.  Mr A grabbed the Mother’s shirt and ripped it off her and then the violence stopped.  There was blood everywhere and the Mother left. 

13. Police and ambulance were called and both were observed to be intoxicated.  The Mother was found to have a broken nose and suffering from concussion.  Her concussion, combined with alcohol use, probably explains why her version of events in the affidavit is a little disjointed.

14. Mr A also had injuries, bleeding from the arm, hand and face.  I add that on his version to Police, the Mother was in fact the aggressor.  He said he was trying to push her out the door after she was behaving in a “psychotic” fashion towards him, and that she was resisting him by holding onto the door frame and bit his fingers.  He says when he pushed her, she then fell down the stairs.  He adamantly denied punching or kicking the Mother at any time – but his version offers no real explanation for how the Mother broke her nose.

15. Police considered – and I accept – that the Mother would have driven away with the children intoxicated if she had been able to do so.  Apparently the only reason she was unable to because the car key was broken.

16. Police found that each of them had injuries consistent with their respective version of events.  Mutual AVOs were taken out against both she and Mr A.

17. Importantly the Mother deposed in her affidavit filed 1 April 2019:

    29.    I realise I have made another serious mistake and I am happy to abide by an order that I not spend any time with Mr A and that the children are not in his presence.  At the moment M could only spend time with him at a contact centre so we will not have to come into contact at all around time with M.  I have contacted Interrelate and they have placed our case on a waiting list.

18. Interestingly, the Mother’s affidavit also shed some light on why the Father had apparently ceased his former solicitor’s services.  According to Facebook messaging of the Father annexed to the Mother’s Affidavit - under the name of “J” - the Father had said:

    I found out recently that my lawyers for 3 years from East Coast Law were friends with Ms Meinerts’ brother-in-law Mr K and when I asked them that they said they cannot work for me anymore.  Mr K [sic] ruined my chances of getting custody of my children so I know a lot about him and his offshore bank account when he sold Australia out to the bad government so for him to mess with me and my children is not ok specially after losing a daughter, and so much more about that family and their ways it’s disturbing”.

19. That message has a bizarre flavour and is suggestive of some sort of conspiracy against the father. 

20. As for the Father’s affidavit in reply filed 15 April 2019, this was more in the nature of a submission.  It sought to explain the Father’s past behaviours and pointed to the various defects in the Mother’s parenting.  It reiterated that the children could only be safe in the Father’s care.

21. Interestingly, each parent’s affidavit deposed to the children visiting with the Father by agreement in November 2018.  That visit was somewhat disastrous in that only Z stayed with the Father – going on a bushwalk with him.  The other children left early and went back to the Mother.  (It seems that the Father and his then legal representatives parted company within a few weeks of that visit.)

22. When the matter came back before the Court on 9 May 2019, all parties agreed that there would be no further cross-examination.  A further timetable was put in place for written submissions by the parties.

23. Each of the ICL’s and the Mother’s final written submissions were filed, albeit a few days late.  I will grant them leave to rely upon those submissions, noting that they were only filed late by a matter of days and that, in the intervening months since then, the Father has not filed any further submissions in response.  He certainly has had ample opportunity to do so. 

Material relied upon in arriving at a decision:

1. The court has had regard to the documents relied upon by the parties.

2. The Father’s material comprised:

   (a)his Initiating Application filed 15 February 2016;

   (b)his trial affidavit filed 11 October 2018;

   (c)Case Outline which was marked as exhibit “F-1”;

   (d)a Drug Test result dated 14/06/18 which was marked as exhibit “F-2”;

   (e)Coroner’s Findings relating to Y which were marked as exhibit “F-3”;

   (f)his affidavit filed 15 April 2019 which was marked as exhibit “F-4”.

3. The Mother’s material comprised:

   (a)her Response filed 11 April 2016;

   (b)her trial affidavit filed 4 September 2018;

   (c)Affidavit of Ms L filed 28 September 2018;

   (d)Case Outline which was marked as exhibit “M-1”;

   (e)letter from Interrelate which was marked as exhibit “M-2”;

   (f)subpoenaed COPS record from NSW Police dated 08/07/16 which was marked as exhibit “M-3”;

   (g)her affidavit filed 1 April 2019 which was marked as exhibit “M-4”;

   (h)with leave, her final written submissions (including proposed orders) filed on 6 June 2019 which were marked as exhibit “M-5”.  To the extent that those submissions reference recent alleged “rants” by the Father towards the ICL, these appear to be in the nature of fresh evidence rather than submissions.  I will nonetheless take their content into account given that the Mother’s solicitor is an officer of the court and thus obliged to be frank with the court in relation to the content of such communications.  Moreover, the Father has declined to respond to those submissions – despite having had ample opportunity to file something in response. 

   Those messages convey the Father’s ongoing anger towards the “system”; he describes the ICL as an “evil woman” and asserts that the Mother is mentally ill and that he will not stop trying to rescue the children from her care.  The messages underscore the concerns expressed by the Family Consultant about the Father at trial.

1. The ICL’s material comprised:

   (a)Case Outline which was marked as exhibit “ICL-1”;

   (b)Tender bundle of subpoenaed documents which was marked as exhibit “ICL-2”;

   (c)Schedule of drug tests which was marked as exhibit “ICL-3”;

   (d)Limited Issue Family Report dated 07/07/16 which was marked as exhibit “ICL-4”;

   (e)Family Report dated 23/11/17 which was marked as exhibit “ICL-5”;

   (f)Draft order which was marked as exhibit “ICL-6”;

   (g)with leave, final written submissions (including proposed orders) filed 27 May 2019 – which were marked as exhibit “ICL-7”. 

Parenting proceedings – relevant law:

1. These proceedings are conducted pursuant to the provisions of Part VII of the Family Law Act (“the Act”).

2. The objects and principles underlying Part VII of the Act are set out in s 60B.

3. The court’s obligation is to make orders which are in the best interests of the children: s.60CA of the Act.

4. In arriving at a best interests determination, the court is obliged to have regard to the mandatory considerations prescribed in s 60CC of the Act. Section 60CC(2) sets out the “primary” considerations and s 60CC(3) sets out the “additional” considerations.

5. “Parental responsibility” is defined in s 61B of the Act. Section 61DA(1) of the Act provides that when a court is making a parenting order it is to apply a presumption that an order for equal shared parental responsibility would be in the children’s best interests. But s 61DA(2) provides that the presumption does not apply if the court considers that there are reasonable grounds to believe that a parent has engaged in family violence. (In that event the issue of parental responsibility is at large, to be determined by application of the best interests considerations in s 60CC.)

6. As the Full Court made clear in Goode & Goode (2006) FLC 93-286, the making of an order for equal shared parental responsibility engages the specific legislative pathway set out in s 65DAA of the Act.

7. I am also mindful of the High Court’s decision in M & M (1988) FLC 91-979, namely that the court cannot make parenting orders which expose the children to an “unacceptable risk” of harm. In that context I note the statutory definitions of “abuse” and “family violence” found in s 4 and s 4AB of the Act respectively.

Best interests:

1. I have already made numerous findings which engage the various considerations in s 60CC. I will therefore endeavour not to be unduly repetitive in what follows.

PRIMARY CONSIDERATIONS:

Section 60CC(2)(a):

1. The children will benefit from continuing their meaningful relationship with the Mother as their primary carer.  But some safeguards are necessary for the children’s protection.

2. The children would potentially benefit from having a meaningful relationship with the Father but only if he is able to present in a much more mature, balanced and emotionally supportive fashion towards them.  If he cannot do so then, regrettably, I agree with the Family Consultant that it is difficult to see any net benefit to the children in having a relationship with the Father at this time.

Section 60CC(2)(b):

1. The Mother’s parenting poses multi-faceted risks to the children.  These risks relate to her mental health (anxiety and depression), her alcohol abuse and her exposure of the children to family violence. 

2. Her mental health was certainly a substantial concern to the Family Consultant at the time of the Family Report.[37]  The optimistic assessment of the Mother’s mental health by her psychologist in April 2016[38] must be considered with some caution.

   [37] Exhibit “ICL-5”, para 139

   [38] Exhibit “ICL-2” p. 13

3. That said, the Mother is aware that she needs to monitor and manage her mental health and she does take steps to do so.  No doubt her mental health would be better managed if she is not in a violent relationship.

4. The Father conceded in the Limited Issues Report that in his view the Mother was an “awesome” mother when not on alcohol or drugs.[39]

   [39] Exhibit “ICL-4”, para 16

5. The Father has raised concerns about the Mother’s use of illicit drugs in these proceedings - but she has provided clean drug screens between April 2016 and December 2017 and I do not see drugs as a major issue for her. 

6. Alcohol use is however a serious issue for the Mother, given her history of past alcohol abuse.  It is probably related to her mental health issues.  Her CDT result on 11 December 2017 was consistent with alcohol abuse at that time.  She explained the reading on the basis that it was the anniversary of Y’s death.  However, her follow-up CDT testing in March and April 2018 was not consistent with probable alcohol abuse.

7. Alcohol use and abuse has nonetheless been a real problem for the Mother throughout her adult life.  She must maintain vigilance around her alcohol use.  One only has to note her recent alcohol-fuelled violent altercation with Mr A on 2 March 2019.  Had she been able to, she would in fact have fled the scene by drink driving with the children as passengers.

8. My other major concern about the Mother’s parenting relates to her potential future exposure of the children to further family violence, whether as a victim or as a perpetrator.  She is now out of her relationship with Mr A and she has at least undertaken some steps to try to learn more about the dynamic of family violence.  To borrow the vernacular, it is “better late than never” but it remains to be seen whether the Mother has gained full insight into her difficulties with family violence.

9. Y’s death was certainly unintended and in some ways extraordinarily unlucky.  But it was nonetheless avoidable with a basic level of adult supervision.  Hindsight is of course a wonderful thing but it is impossible to see how leaving a three (3) year old in a swimming pool with the other children could ever have been said to be safe.  In my view, it was neglectful behaviour – albeit over only a brief timeframe – but the consequences of that neglect are of the most tragic kind and have had to be borne by everyone in the family. 

10. Overall, the Mother’s parenting poses a level of risk that causes me some disquiet but I am not satisfied that the level of risk is unacceptable per se – particularly in the context of the protective orders I propose to make.  I also have regard to her long-term commitment to the children.

11. As for the Father, his parenting also poses multi-faceted risks to the children.

12. He is a long-term perpetrator of family violence.  He has some insight into his violence but in my view still has a long way to go.  Unlike the Mother, he has not undertaken any specific family violence counselling.

13. Contrary to the Family Consultant’s observations, I consider that the Father is not willing to admit to the totality of his past violent behaviour, which on the Mother’s description constituted coercive and controlling violence, precipitated by excessive alcohol consumption and inability to regulate his anger. [40] 

    [40] Exhibit “ICL-5”, paras 53 and 54.

14. Like the Mother, the Father also has an alcohol abuse history - which he conceded to the Family Consultant.  His alcohol abuse has continued since separation and I accept the Mother’s evidence in relation to various instances where the Father was unable to drive, or was otherwise intoxicated, while the children were in his care.[41]

    [41] Mother’s affidavit filed 04/09/18, paras 155 & 172

15. The Father is clearly a long term user of cannabis.  At trial, he admitted that he smokes cannabis at night as it helps him sleep and thus makes him a better parent.  He said cannabis was now “legal” in Canada.

16. The Mother suggested that the Father may be using methamphetamine (“ice”) but he rejected that.  He described ice as a “ruthless cruel drug that destroys lives pretty quickly” and I was impressed by that answer.

17. In something of an “own goal” the Father – when confronted with the suggestion that he may have been using ice - decided to disprove this by voluntarily undertaking a urine drug test screen on 14 June 2018.[42]  His problem was that he had been smoking cannabis that very day. 

    [42] Exhibit “F-2”

18. The test result showed a cannabis reading that was “off the scale” – but no other drugs were present.

19. I note that the Father had falsely denied illicit drug use in the Family Report.[43]

    [43] Exhibit “ICL-5”, para 25

20. In the end, I do not consider that the father uses ice, but he clearly has a longstanding issue with cannabis and I am not satisfied that he will be able to maintain abstinence.  I also accept the Mother’s evidence that the Father exposed the children to cannabis at different times during the relationship.  Cannabis poses problems for the Father’s parenting in a number of ways – one obvious example is role modelling.

21. But to my mind, far and away the biggest problem for the Father’s parenting at this stage is his unregulated emotional state – and his consequent inability to provide the children with a safe emotional space when they are in his care.   He emotionally abuses them. 

22. His denigration of the Mother on 29 December 2017 was highly alarming to the Family Consultant.  She said that it showed a clear lack of insight on the Father’s part and that she did not know whether he could restrain himself from acting in such a manner again.  While she was reluctant to recommend a “no time” order for the Father, equally she said that a “no time” order did need to be considered if he was unable to manage his emotional state when he had the children.

23. In relation to the emotional risks associated with the Father’s parenting, I would repeat and gratefully adopt the following extracts from the final written submissions of the ICL: [44]

    38.The issues for the children living with or spending time with the Father go beyond his failure to acknowledge the family violence he exposed the children to during his relationship with the Mother.

    39.The Father holds a view that the Mother is knowingly responsible for the child Y’s death and he is unable to recognise or understand or forgive the Mother for her lack of supervision which resulted in Y’s ultimate death by drowning…

    47.The Father’s unrelenting focus on Y’s death in this matter and his inability to seek his own grief counselling are matters that are of significant concern to the ICL and militate against an order for the children to live with or spend time with the Father.

    48.Conversely the ICL can only conceive of a situation where the Father would be able to contain himself and filter his vehement dislike of the Mother if the Father undertakes extensive grief counselling.  Currently the Father presents as incapable of forgiving the Mother for the death of their daughter.

    49.The ICL is concerned that any time that any of the children spend with the Father would consist of further emotional and potential psychological harm by the Father continuing to denigrate the children’s Mother.

    [44] Exhibit “ICL-7”

24. The ICL proposes that the Father spend time with W, X and Z “as agreed” with the Mother - but only after he has had grief counselling and has completed a “Being a Dad” programme through Interrelate.  The ICL proposes those orders:

    in circumstances where it is not possible to mitigate against the Father’s continued impact on the children of his unresolved grief and his inability to filter his views of the Mother. [45]

    [45] Exhibit “ICL-7”, para 50

25. In my view, the Father’s parenting presently poses an unacceptable risk to the children at this time, which risk is difficult to ameliorate unless the Father commits to some significant therapy.  The prospects of that are not good, as I simply do not think that the Father has the capacity at this time to seek the necessary help.  The reality is that he sees himself as a victim of the Mother’s behaviours, and says that any counsellors he has seen also share that same view.  His affidavit filed 15 April 2019 corroborates that he very much sees the Mother’s parenting as the problem for the children. 

26. A contact arrangement in a supervised setting between the Father and the children would, in all likelihood, be rejected out of hand by the Father.  Moreover it would be of little benefit to the children in my view and would not be a viable long-term option. 

ADDITIONAL CONSIDERATIONS:

Section 60CC(3)(a):

1. In the Family Report interviews, the older children made clear that they wanted to live with the Mother at that time but did want to spend time with the Father. Regrettably however those arrangements have since broken down. 

2. For her part, V is old enough to make her own decisions about seeing the Father and the Mother and the ICL’s proposed orders acknowledge that.

Section 60CC(3)(b):

1. The Father’s relationship with V has been difficult for some time; it was breaking down as early as April 2016 as revealed in her discussions with her school counsellor.[46]

   [46] See Exhibit “ICL-2”, pp. 35, 37 & 38.

2. According to the Family Consultant, the Father in fact has the closest relationship with W and X.  But things have broken down since then; when the Father last saw them in November 2018 only Z chose to stay with him.

3. The Court is also mindful of M.  The children all love M and he has likely brought much-needed joy into their lives.  The Family Consultant was particularly concerned about the children being separated from M – which is inherent in the Father’s proposal.  This is something that she strongly said in the witness box should be avoided.

Section 60CC(3)(c):

1. The Mother has always been actively involved in all aspects of the children’s lives.  The Father has not. 

Section 60CC(3)(ca):

1. The Father pays modest child support to the Mother. 

Section 60CC(3)(d):

1. The children are well settled in the Mother’s care.  To place them into the Father’s care would be plainly against their best interests on the evidence.  Not only does his emotional state in particular pose an unacceptable risk to the children, but the Father has no real plan to manage the children’s transition into his care in any event.

2. Nor is it presently a viable option for the Father to spend defined time with the children until he has addressed his significant emotional issues.

Section 60CC(3)(e):

1. No practical difficulties or expenses arise in this case.  The parties live in fairly close proximity to each other.

Section 60CC(3)(f):

1. I have concerns about each parent’s capacity to properly parent the children. 

2. That said, the Mother has ensured that the children have had access to some counselling and support, particularly V in relation to grief and loss issues.  The Mother has also shown a solid capacity to provide for the children’s educational needs [47] as well as providing them with food and shelter.  The Mother has shown a basic capacity, and a commitment, to providing for the children’s day-to-day needs.

   [47] Affidavit of Ms L filed 28/09/18

3. As for the Father, he presently lives in a 3-bedroom townhouse in City B.  While he has two (2) spare bedrooms it is clear that he had not seriously contemplated what would be necessary in order to parent the children if they did move into his care as he seeks.  Having seen and heard him in the witness box, I am satisfied that he has not really thought through what would be involved.  He does not presently have the capacity to properly provide for the children’s needs.

Section 60CC(3)(g):

1. I have set out the sex and ages of each of the children.  V is at an age where she has gravitated towards the Mother and she particularly needs guidance and support at this difficult time in her life. 

Section 60CC(3)(h):

1. The Mother and the children are aboriginal.  The children have a right to enjoy their aboriginal culture which the Mother can foster but in truth aboriginality and cultural issues do not loom large in this case given the serious risk factors that have had to be considered.

Section 60CC(3)(i):

1. I have addressed the parental attitudes and there is little more to add. 

Section 60CC(3)(j) & (k):

1. The children have been exposed to substantial family violence. 

Section 60CC(3)(l):

1. The court intends to make orders which will extinguish the scope for future parental dispute as much as possible.  The proceedings need to end for the family’s sake.  The proceedings could have ended years ago had the parents been willing and able to address their respective parenting deficits and focus on putting the children first.

Section 60CC(3)(m):

1. There are no other particular facts or circumstance which arises in this case.

Conclusion and Orders:

1. Commencing with the issue of parental responsibility, s 61DA(2) is clearly engaged.

2. Frankly, it is impossible to see how an order for equal shared parental responsibility would be anything but a disaster here.  The only child-focused order is an order for sole parental responsibility to vest in the parent who has the children in their care.

3. The court considers that the only parent who can provide for the children’s care at this time is the Mother.  To the extent that her parenting poses risks to the children, my proposed orders will address those risks.  One such order will be that these Reasons and orders be provided to the Secretary, Department of Justice and Communities (NSW) so that they can maintain a “watching brief” over this family as necessary, or in the event of any future notifications about risks to the children in the Mother’s care.

4. Sadly, whatever deficits the Mother has as a parent, I cannot see how the Father’s parenting would be the “cure”.

5. Section 65DAA of the Act is not engaged in the circumstances of this case. The risk factors in relation to the Father are so significant that the only appropriate order to make is that Father take appropriate steps to address his issues following which the Father may spend time with the children as agreed. V is old enough to make her own decision in any event and I am confident that if she wanted to see her Father that she would do so regardless of orders.

6. Regrettably, while the orders the court makes will provide a pathway for the Father to potentially reconnect with the children in the future, the court very much doubts the Father will do what he needs to in order to address his parenting deficits.

7. To be clear, if he does do so, then there is no reason why he could not have a relationship with the children.  But at this stage there is no reason to be prescriptive about his time.  It will have to be agreed with the Mother.

8. The other orders and injunctions made by the court are considered on the evidence to be properly protective, logical and child-focused.

9. The court makes the orders set out at the commencement of these reasons.

I certify that the preceding two hundred and twenty-nine (229) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date:  19 November 2019

Annexure “A”

Annexure “A”

I’m protecting you guys from the shit that went on with Mr A….because you know what’s going to happen kids, this is the honest truth, this is what’s going to happen with ya mum, she’s gonna get all where she hasn’t been drinking and stuff, asks the kids, has she stopped drinking and stuff? Waits for kids to respond.  V replies “yes”.

She’s gonna get off the piss and everything all life will be going rosey blah blah blah and she’ll be thinking life’s good, like how it use to happen all the time, the same cycle, life will be goin good and it’ll only take a couple times and she’ll be back on the drink and bang.  Z is in the background talking about the soap on the car, “hey it’s green.”

She’ll have another boyfriend she’ll be fucking fighting with him, mum needs to go…I don’t know if you kids know but ums childhood wasn’t very nice, V responds “yes we know.” Yes exactly, mum needs to go get that sorted out, get alcohol and domestic violence counselling not just once a week or whatever like full get it sorted in her head mum needs to change her attitude towards life like her attitude towards life is not of a normal person V and she’s giving it to you kids.  You kids with that attitude will not succeed in life.  You’s will be what mum and dad were or are.  Dad’s trying to rectify that now and Change and hopefully by the time I’m 40, yeah I am settled down and have a house and doin all the nice things and we can go on holidays and blah blah blah, Z talking in the back ground “colours, look colours!”

But at the moment all this court stuff is just costing dad way too much money.  You know what I mean? But I’m not gonna…I don’t believe what mums doin…Yeah ok she’s puttin a roof over you guys heads and showin yas fun times takin yas to the beaches, yeah that’s fine mums good at that, I love that about your mum but her attitude towards life and her lying and all the drinking, she is a girl that should not drink, alcohol does not do good things to mums head.

Waking up in the morning and having your mum still on the piss is not a normal mum guys, that is not…. That is not what normal mums are, that’s bad.

But we need to change that and that’s what dads trying to get mum to see, she can’t be like that anymore and her attitude she needs to stop lying she just needs to be happy in life, she’s a very angry person at life Bub.  You know what I mean?  And she’s had vr very good reasons for that darling, growing up and then look at her relationship with dad, that was shit, so you know what I mean, that’s made her sad, and look she’s gone with Mr A and now that’s shit, and that’s made her sad, she needs to get happy with herself and dad, dad feels by having that week away from you guys will give her time to concentrate on what she needs to do to be a happy mum, she’s an angry mum she might look all smiley and that too yas  and take you shopping and doin all that stuff but deep down darling she’s an angry mum, she’s an angry person.

Look at the people that she hanging around guys, Ms P, like Ms P rang docs on you.

V says something I can’t pick up. Well, she’s taking her, I saw she took her to Y’s friggin what’s a name thing, Ms Q oh look what the fuck is she doin hangin, she, Ms Q is going out with a 20 year old and she like 28 or what ever like, she’s snorts all the drugs under the sun and roots blokes in jail and like, and this is who your mums hanging around like what the fuck? They are not good people guys, they will sit there and tell ya mum how beautiful she is (Z in the back ground, “I’m beautiful”) and she’s doin the right things and this and that blah blah blah, mum will be like, oh yeah thanks, but really all they’re caring about is sittin there, because they’ve got no other friends, Ms P’s got no friends, Ms Q has got no friends, sow what do people do that are shit people that have got no friends, they get together and talk shit and become even more shit people. Z, “I’m getting friends”.

Ya fucking friends up north, fucking Town R, Ms S and that like what the fuck, she’s at your sisters funeral, having a speech and she drops a fucking pack of smokes out of her pocket when she’s talking about Y, like, off her fucking head, oh yeah and we did this and we did that as if it was a celebration, wasn’t a celebration and we weren’t celebrating anything, there was a lot of people there shattered, emotionally destroyed about that Ms S girl getting up and talking the way she did about V.  It was a fucking joke, and then your mum and Mr A, after letting the balloons go, kissin, like what the fuck was that, lashing off in front of everyone like, that’s not normal.  Do you think dad would be there going yeah I’ve just let balloons go for me like baby girls or life, oh here you give me a lash in-front of everyone.

People walked out of there disgusted at ya mother and they’re people that love ya mum.  Sorry to tell yas all of this about your mum guys but, WOW.  Just try to look at it from both sides of the story please, I know dad was a shit person and wasn’t around but in life, in time I’ll explain all of that to you guys, I won’t explain it now because you probably won’t understand it and what dad wasn’t around as much.  Dad was over in the employment, trying to make money, buy us a house trying to give us a life, working my ass off, missing out on Christmases missing out on birthdays missing out on you’s growing up and here’s mum goin out on the piss fuckin hook in up with other blokes and shit while dads over there workin his ass off.  But now I get in shit, oh you’re a shit cunt because you weren’t there for any of their birthdays or you weren’t there for Christmas, you didn’t give a fuck about us…No I did care about yas it was mum decided that she wanted to go hang out with the other boys while dad was over at work.  Why do you think dad fuckin wasn’t around so much guys.  Dad didn’t like ya mum and what she did to dad, cheating on me all the time fuckin coming home drunk, bashing on me, you all think dads a fuckin women basher or what ever, dad was protecting himself from an evil woman.

Z, “dad”

You don’t hit people dad was in love with ya mum and I was caught up in that cycle, dad was wrong, very wrong.

Z, “dad….hey dad” Yeah darling “M hit me on my head.” Yeah see, no he doesn’t do that.  Even like pretending for a baby it’s not nice…Z, “yeah that’s my little brother.”

I’m sorry that I’ve turned protective of you, if you guys don’t change your attitude towards life, I’m sorry that I’m being so hard and serious on yas but, you guys need to know it but you’s are old enough now to know who your mum is and who your dad is and stuff like that.  I’m sick of your mum talkin shit about your dad and everything.  Your mother has AVOs on your own family like guys are you serious.  That is not real, that is not real.  As much as I don[t like my brothers and sisters and family and shit like that, I still don’t’ take AVO’s out.  V “we don’t have AVOs” Oh well she was threatening to put them out on them.  She use to put AVOs out on dad so I couldn’t like hang around you’s and shit and talk heaps of shit, and then look what fucking happens, dad leaves the house.  You’s think your having the maddest time cause dad’s not there, ya mum let’s ya do what ever the fuck yas want, getting on the piss and havin people over there and shit like that, partying, goin up and down to Town R, you goin to stay up, there in the house with them people by yourself, like that’s not right, V “why?” Because there’s a teenage boys in that house and that’s not right.  Yeah fair enough if dad or mum was there stayin with ya, I don’t know them people, I don’t know them boys, your my daughter.  Mum doesn’t tell me what you’re doin.

Real real fuckin hard, not I want to go to Town R and I want to do this, you’ll get to an age Bub and your life will be fucked, righteo, just start sortin your shit out, fuckin now when you get home and start thinking about what you want to do in life and school and everything.  And take it serious.  Next time you come, next time dad’s go ya, you come with dad, I don’t wanna hear, oh I don’t want this I don’t want that, you’re comin with ya dad, fuckin sick of all, oh no no I don’t want to do this I don’t want to do that, all of yas, ya fuckin mother let you’s fucking want.  It’s not good for yas.  You won’t be good people when you get older.  Trust me.  That’s why I’m so hard on yas, not that dad doesn’t love ya or I’m a dick head, or a fuck with or what ever you think of me, dad’s tough on yas because I love yas and your going to be awesome people when yas get older and when you’re older and you go look back on it and go, oh that’s why dad was so hard on us, I’m not even, you’s don’t even get smacked, you’s don’t do anything, all dad is, all dad has raised his voice every now and then when I’m trying to stress my point to get it through to yas.  You seem to listen a little more when I’m swearing and yelling and all that but when I’m talking to ya you’re just like, ahhhhh yeah whatever.  Do you understand that? Does anyone understand that or no?

Section 4AB of the Family Law Act1975 (Cth)

1. For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

2. Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)an assault; or

   (b)a sexual assault or other sexually abusive behaviour; or

   (c)stalking; or

   (d)repeated derogatory taunts; or

   (e)intentionally damaging or destroying property; or

   (f)intentionally causing death or injury to an animal; or

   (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.