Brock & Canning
[2022] FedCFamC1F 395
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Brock & Canning [2022] FedCFamC1F 395
File number(s): NCC 2410 of 2020 Judgment of: CLEARY J Date of judgment: 27 May 2022 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – With whom the children shall live and spend time – Parental responsibility – Best interests – Where previous interim orders by consent provided for the children to live with the father and spend time with the mother – Where this arrangement broke down with the father alleged to have hit the youngest child with a belt and leading to his current Apprehended Violence Order – Where the children currently live with the mother and spend irregular time with the father – Where the eldest maternal half-brother was convicted on three charges of sexual misconduct relating to two of the subject children – Where the Court concludes that the mother accepts that her eldest son cannot be brought in contact with the subject children – Where the Court concludes that the mother has matured and understood the consequences of her own children, and has been better able to access services and implement recommendations – Where the mother has the assistance of her parents in a practical way – Ordered sole parental responsibility and residence to the mother – Ordered the children shall spend time with the father as agreed between the parties in writing – Ordered restraints on the mother from allowing the children to be brought into contact with their eldest maternal half-brother and her ex-partner. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 27 May 2022 Place: Newcastle Counsel for the Applicant: Ms Smith Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Not Applicable Solicitor for the Respondent: Not Applicable Counsel for the Independent Children's Lawyer: Mr Allen Solicitor for the Independent Children's Lawyer: The Office of Conrad Curry ORDERS
NCC 2410 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BROCK
Applicant
AND: MR CANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
1.BY CONSENT of the Applicant mother and the Independent Children’s Lawyer, I make orders in accordance with a document titled “Final Orders” (exhibit 4), being paragraphs 1 to 15 inclusive and the definitions noted therein:
DEFINITIONS
A. “Mother” means the Applicant, Ms Brock;
B. “Father” means the Respondent, Mr Canning;
C. “Parties” means the Mother and the Father together;
D. “the children” means the parties’ children:
(a)W born 2009 (“W”);
(b)X born 2011 (“X”);
(c)Y born 2013 (“Y”);
(d)Z born 2015 (“Z”)
FINAL ORDERS
1.That all previous orders are discharged.
2.The mother shall have sole parental responsibility for the children.
3.The children shall live with the mother.
4.The children shall spend time with the father as agreed between the parties in writing.
5.The mother and/or her agents shall be restrained by injunction from:
5.1Allowing the children or any of them to be brought into any form of contact with B born 2006; and
5.2Allowing the children or any of them to be brought into any form of contact with Mr C born 1993.
6.The mother shall ensure that each of the children are under the supervision of a responsible adult at any time that the children are in her care.
7.The mother must ensure that the children consume any medication prescribed by their GP or treating specialist when the children are in her care.
8.The mother shall engage herself and the children with psychologist, Ms D of F Services, or another suitably qualified psychologist with experience in sexual assault counselling for the specific purpose of sexual assault counselling in relation to past and future risks of sexual harm faced by the children, and thereafter the mother shall continue to engage herself and the children with the sexual assault counselling for as long as is recommended by the psychologist.
9.The mother shall ensure the attendance of the children at school on all days which pupils are required to attend school, except in circumstances where there is a reasonable excuse, and the mother shall notify the father of any changes to the children’s school enrolment within 7 days of such change.
10.Each of the parties shall be at liberty to obtain, at their own expense, information about the educational progress, care, welfare and development of the children, copies of their school reports and school photos.
11.The mother shall ensure that each of the children is referred for a paediatric assessment and/or review within 6 months from the date of these orders. However, such paediatric assessment shall not be required for any of the children who have had a paediatric assessment and/or review in the period from 27 May 2021 to the date of these orders.
12.Each of the parents shall, as soon as reasonably practicable, notify the other parent of any of the following:
12.1The attendance of NSW Ambulance, NSW Police or NSW Department of Communities and Justice in relation to any of the children; and
12.2The children, or any of them, requiring emergency treatment by a doctor, nurse or dentist or admission to hospital for surgery and/or assessment.
13.Each party shall keep the other party informed of any change to their residential address, mailing address, email address and phone number within 48 hours of any change.
14.The mother shall not introduce the children to any new partners until the following conditions are met:
(a)She has been dating her new partner for at least six (6) months;
(b)She has been provided with a current NSW Working With Children Check for her new partner;
(c)She has been provided with a National Police Criminal Records Check for her new partner.
15.Within three months of these orders the mother shall arrange speech pathology assessments for Y born 2013 and Z born 2015 and thereafter she shall follow any recommendations made by the speech pathologist in relation to speech pathology for the children.
THE COURT FURTHER ORDERS THAT:
2.A Senior Judicial Registrar of this Court shall provide a copy of these orders and reasons to the Department of Communities and Justice NSW.
3.The Independent Children’s Lawyer shall meet with all of the children, which may include an electronic meeting, to explain the orders to them and answer any relevant questions which they, or any one of them, may have.
4.The Independent Children’s Lawyer shall provide a copy of the orders to the principal of each of the schools which the children attend.
THE COURT NOTES THAT:
(A)The mother is willing to provide a copy of relevant AVOs relating to the father’s outcome and to W’s outcome in the Children’s Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brock & Canning has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CLEARYJ:
INTRODUCTION
This is an application by Ms Brock, the mother of the four subject children, W 12, X 11, Y, eight, and Z, six. The mother has two more children, B, who is nearly 16, who lives with his father in Adelaide, and K, aged seven months, the child of a recent relationship now ended. The mother is aged 33.
The application is undefended by the father of the children, Mr Canning, aged 49 years. The father has adult children and grandchildren from a prior relationship. His partner also has adult children.
On 9 March 2002, the father filed a Notice of Discontinuance.
The Court relisted the matter on 16 March 2002, and the father was present on that day. He advised the Court that he would not be proceeding with any application in respect of the children. Ultimately, the matter was set down for this undefended hearing on 27 May 2022. The Magellan Report and the Family Report in these proceedings had both recommended that the children live with the father.
By the date of the undefended hearing, the mother and the Independent Children’s Lawyer had come to a set of orders by consent. The proposed orders were appropriate and in the best interests of the children, subject to further information about the maternal grandparents.
The mother has very recently moved to regional New South Wales to live first with and then close to her parents. Evidence was given by the mother and the Court Child Expert on material relating to historical sexual assaults and physical assaults on the mother as an adolescent between 2001 and 2004.
The Court was satisfied that although there were references in the material produced by the Department of Communities and Justice to abusive conduct by the maternal grandfather and an unsubstantiated allegation of sexual assault, the maternal grandparents do not represent a material risk to the children.
It was apparent that although corporal punishment may have been a feature of the mother’s upbringing, she gave evidence that she was inclined to be defiant and to feel misunderstood. Her evidence strongly suggests that she has come to understand that although her parents may not have gone about it in a way that she would do herself now, she understands that they were doing their best to keep her safe.
SHORT HISTORY
The parties began their relationship in mid-2008 and began living together 12 months later in June 2009.
The mother’s child, B, then aged two, was part of the household. The four subject children were born over the following six and a half years.
The relationship was emotionally volatile and experienced by the mother as abusive and damaging. It seems likely that when intoxicated, the father unleashed aggression and cruelty on the mother. It is of some significance that the mother did not report to police violent attacks she suffered because, “I didn’t realise what he was doing was domestic violence.” The Court infers that her own experience of childhood and adult life meant that she accepted as not unusual, physical attacks and cruel verbal slurs.
In mid-July 2018, B, then aged almost 12, sexually assaulted his sister, Y, who was then almost five years of age. The parties called the police, who alerted Department of Communities and Justice. As a result, B moved out of the household to live with his own father in City G.
Soon after B left, W disclosed that B had, earlier in that year, also sexually assaulted him. Both children, Y and W, were referred to sexual assault services for education on protective behaviours. The mother was assisted, too, in how to support the children at home and reinforce that learning.
In September 2018, the parties separated. The children remained with the mother. There was irregular contact at first between the children and the father over the following 18 months.
The father moved in with his current partner, Ms E, about 12 months after separation in late 2019. Thereafter, the father had care of the children more often.
In February 2020, Y told her mother that W, then aged ten and a half, had sexually assaulted her. She was six years of age. Y had, by then, been assaulted both by B and now by W. W had been assaulted by B.
To her credit, the mother reported the matter to Department of Communities and Justice.
To the credit of both parents, an agreement was reached where the three younger children would be kept separate from W in each household for about three weeks. Thereafter, the mother resumed care of all four children.
As a confounding complication, the COVID-19 pandemic meant the children were home-schooled. The father agreed to have the children through the week and that they be with the mother at weekends when he was working. The father came to the view though that the children should come to live with him permanently.
In July 2020, the mother initiated these proceedings.
Thereafter, from August 2020, various interim orders were made.
In the October 2020 school holidays, Y, by then aged seven, disclosed more sexual assaults on her by B. B was by then aged 14. The mother removed B from the household. He had been visiting for the holidays.
This has been a matter of great concern to the Court.
The fact that the mother was willing to allow B to be together with the subject children at all, and, even if that were acceptable in the circumstances, that he, inferentially, was inadequately supervised. Y's JIRT interview revealed three separate occasions of sexual abuse by B. The mother[1] expressed her surprise that such a thing could have happened, given her belief that she was supervising. The mother may have been, at this stage, somewhat naïve about B’s conduct.
[1] Family Report dated 12 July 2021, para 55.
On 28 October 2020, the father collected the three elder subject children and kept them with him.
On 25 November 2020, interim orders were made by consent for the children to live with the father and spend alternate weekends with the mother.
In December 2020, or perhaps much earlier in that year, the mother began a relationship, which ended badly for her, with Mr C. The relationship ended when the mother became aware of his criminal record and his inclusion on the Child Offenders Register. The relationship ended before the mother realised that she was pregnant with the child of that relationship, K.
On 19 February 2020, comprehensive orders were made in the Federal Circuit Court (now known as Division 2 of the Federal Circuit and Family Court of Australia) which were directed to the safety, protection and medical assessment of all of the children. The proceedings were then transferred to the Family Court of Australia (now known as Division 1 of this Court).
In February 2021, the mother ended her relationship with Mr C.
In March 2021, B was convicted in the Children’s Court on three charges of sexual misconduct. He was by then fifteen and a half years.
The mother has had telephone contact with B and, as she said, finds it painful that she is unable to see him. But her evidence is, and I accept, that she now herself accepts that he cannot be brought in contact with the subject children. Even after he turns 18 in 2024, this young person has sexually assaulted two of his siblings. All of the children, including K, who is not a subject child, must be considered to be at risk in his company.
On 24 March 2021, these proceedings were allocated into the Magellan Protocol.
On 21 April 2021, a Magellan Report was released, recommending that the children remain in the care of their father. There was no risk to them identified in his household. The mother, at that time, participated in a Triple P parenting program.
In mid-May 2021, Y fell off a ladder in the backyard of the mother’s home. Without criticism of her, the mother did not take the child to a doctor or to hospital, it seems, because the child appeared not to have suffered any injury. On her return to the father, he took her to hospital, and tension between the parents rose.
In May 2021 and, again, in June of that year, W told his mother that his father had punched him and thrown him up against a glass door and “punched into him”.
On 12 July 2021, the Family Report was released, which recommended the children remain with the father.
Shortly after, in September, the mother began attending regular counselling sessions through H Services, which are, the records she has provided suggest, ongoing. These counselling sessions may afford the mother the opportunity to further understand the vulnerability of children and how to minimise risk.
On 4 October 2021, the children returned to live with the mother. First, W and Y were handed back to the mother by the father. W disclosed that his father had been “very angry with him and had hit him with a belt”. The mother saw both bruising and puncture wounds on W’s body. The mother took both children to hospital. Police were called. And, Y stated that the father had also hit her with a belt. The father was arrested and charged. The Court was advised today that, on 24 May 2022, the father was found not guilty, but an existing Apprehended Violence Order was extended for two years.
Subsequently, on 8 October 2021, the two younger boys, X and Z, came back into the mother’s care.
In that same month, the mother’s youngest child, K, was born.
Unfortunately, W became extremely aggressive at times and was destructive of household goods in the mother’s home.
In December 2021, he came before the Children’s Court and was put on a five-month good behaviour bond. The mother gives evidence that there have been some ongoing outbursts from W, who has had a fair bit of misfortune and hardship in his life to date. His court case, the Court is advised, has not yet concluded.
In March 2022, the father discontinued, partly, on the grounds that he was, by then, homeless; partly, because of him having been arrested and charged; and also because, it seems, he was simply unable to contemplate continuing to attempt to care for the children alone.
The Court concludes that the mother loves the children, wants to care for them and, as she has matured and understood the consequences of her own childhood, has been better able to access services and implement recommendations. She also has the assistance of her parents in a practical way. In addition they have guaranteed a lease for the property where she is now living in close proximity to them.
The orders proposed by the parties[2] in those circumstances are, in the view of the Court, in the best interests of the children, together with the additional orders enunciated.
[2] Exhibit 4.
Orders are made accordingly.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 27 May 2022
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