Christiansen and Hawk and Ors
[2018] FCCA 3037
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHRISTIANSEN & HAWK & ORS | [2018] FCCA 3037 |
| Catchwords: FAMILY LAW – Parenting – risk of harm – significant family and domestic violence – children to live with maternal grandparents – no time with mother or father. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA, 65DAC |
| Cases cited: Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MS CHRISTIANSEN |
| First Respondent: | MS HAWK |
| Second Respondent: | MR JARVIS |
| Third Respondent: | MR SMITH |
| File Number: | PAC 4680 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 5, 6 and 7 February 2018 |
| Date of Last Submission: | 7 February 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahony |
| Counsel for the First Respondent: | Mr Blank |
| Solicitors for the First Respondent: | Voros Lawyers |
Appearing for the First Respondent: | No appearance |
| Appearing for the Second Respondent: Appearing for the Independent Children's Lawyer: | No appearance Ms Morton |
| Solicitors for the Independent Children's Lawyer: | Morton Family Lawyers |
ORDERS
The maternal grandmother, Ms Christiansen, born 1970 shall have sole parental responsibility for the children [X] born 2010 and [Y] born 2016.
The children shall live with the maternal grandmother.
The children shall spend no time with the First Respondent, Second Respondent and/or the Third Respondent.
Pursuant to section 68B of the Family Law Act 1975, Ms Hawk and Mr Smith shall be restrained from:
(a)Entering upon or approaching within 100 metres of the maternal grandmother’s place of residence;
(b)Entering upon or approaching within 100 metres of the maternal grandmother’s place of work;
(c)Entering any school where the children attend including the maternal grandmother’s children;
(d)Assaulting, intimidating, stalking, molesting, harassing, threatening, or otherwise interfering with the maternal grandmother or the children; and/or
(e)Contacting the maternal grandmother through any electronic means including social media.
Remove all outstanding issues from the list of cases awaiting finalisation
IT IS NOTED that publication of this judgment under the pseudonym Christiansen & Hawk & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4680 of 2016
| MS CHRISTIANSEN |
Applicant
And
| MS HAWK |
First Respondent
| MR JARVIS |
Second Respondent
| MR SMITH |
Third Respondent
REASONS FOR JUDGMENT
Introduction
[X] born 2010 and [Y] born 2016 are half brother and sister. Since shortly after [Y]’s birth, they have been living with the Applicant who is their maternal grandmother.
The Applicant brings proceedings seeking orders on a final basis for the children to live with her, that she have sole parental responsibility for the children, that the children spend no time with any of the Respondents and that there be restraints in place in respect of the First and Third Respondents.
The First Respondent, who is the children’s mother, seeks orders for the children to live with her and that she have sole parental responsibility for the children and that the children spend time with the Applicant as agreed in writing. She seeks orders in the alternative for supervised time with the children and for the children to live with the Applicant.
The children’s fathers, while parties to the proceedings, have not sought any orders with respect to the children.
The Family Tree
The Children
[X] is the daughter of the First and Second Respondents, and the maternal granddaughter of the Applicant. She was five months shy of her 8th birthday at the time of final hearing. She had been living with the maternal grandmother since September 2016. She has not spent any meaningful time with the mother since she came to be in the care of the maternal grandmother. [X] has no relationship to speak of with her father.
[X] lives with the maternal grandmother, the maternal step-grandfather, her mother’s half-siblings and her little half-brother. She attends primary school and is on all accounts doing reasonably well.
[Y] is the son of the First and Third Respondents, and the grandson of the Applicant. He is referred to as [Y] by the mother. He has lived almost the entirety of his young life in the home of the maternal grandmother. [Y] has no relationship to speak of with his mother or father. He was removed from his mother’s care at one day old.
At the time the children came to be in the Applicant’s care, they had been living in Western Australia, and upon coming into her care the children’s residence was relocated to New South Wales.
The Applicant - Maternal Grandmother – Ms Christiansen
The Applicant is the First Respondent’s mother. She was born on 1970. At the time of final hearing, the Applicant was known by the name of Ms Christiansen, however she has since legally changed her name to “Ms Christiansen”.
The Applicant lives with Mr D and they have three children[1] together. The Applicant and her family live in Suburb A, a suburb of Sydney in New South Wales.
[1] These are the First Respondent’s half-siblings. Mr D is not the First Respondent’s father.
Mr D is not a witness in the Applicant’s case, albeit annexed to the Applicant’s trial affidavit was an affidavit prepared by him and he was present during the entirety of the proceedings. Until the final hearing the Applicant was self-represented, however, at final hearing she was represented by Counsel.
The First Respondent lived with the Applicant and Mr D during her childhood, although there were significant periods of time when she lived with her own grandmother, the Applicant’s mother. The First Respondent makes allegations that she was subjected to physical and verbal abuse as a child, not only at the hands of the Applicant but particularly at the hands of Mr D.
The Applicant is of (nationality omitted) decent. She says that she has “high ranking authority” in the (nationality omitted) community and culture.
The First Respondent – Mother – Ms Hawk
The First Respondent was born on 1991. She is the mother of three children: [X] and [Y], the subject children of these proceedings, and [A] who was born on 2017. [A] is [Y]’s brother and [X]’s half-brother.
The First Respondent presently lives in Town 1 with the Second Respondent and [A].
It also appears that living in that home are the Second Respondent’s other children, his mother and his sister. These matters were not particularly clear on the First Respondent’s Evidence.
The Second Respondent - Father to [X] – Mr Jarvis
The Second Respondent is [X]’s father. He has not participated in these proceedings and little is known about him.
At the time of [X] being placed into the Applicant’s care, the Second Respondent was serving a gaol sentence. He co-operated with the Western Australia Department of Child Protection and Family Support and agreed to his daughter being placed in the Applicant’s care in September 2016.
The Second Respondent has subsequently provided the Applicant a letter dated 12 December 2016 which purports to “give full parenting right (sic)” to the Applicant on the basis that “I just what (sic) the best life for my child”.
The Third Respondent – Father to [Y] – Mr Smith
The Third Respondent was born 1989. He is the father of [Y] and [A]. He is an Aboriginal man.
The Third Respondent filed an Affidavit which was relied on by the First Respondent in the proceedings, however he did not participate in any other way, nor did he make himself available for cross examination.
That short affidavit briefly speaks to his troubled upbringing and his drug and alcohol use, as well as affirming three incidents of family violence perpetrated by him towards the First Respondent during their relationship.
Relevant Legal Principles
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[2]
[2] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[2] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[3] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[4] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[5] Consideration does not mean discussion.[6]
[3] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[4] [2009] FamCAFC 92
[5] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[6] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
High Court held in MRR v GR[7] that s 65DAA(1) “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s 65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”.
[7] (2010) 240 CLR 461 at 467 [15].
Parents vs Non-Parents
Parents are not the subject of any preferential treatment nor are they in any special position of advantage pursuant to the Act with respect to parenting orders.
The Act does however distinguish between parents and non-parents in various, sometimes very important, ways. In Donnell & Dovey[8] the Full Court held:
[8] [2010] FamCAFC 15
[76] The distinction between parent and non-parent first appears in the opening provisions of Part VII, namely ss 60B(1) and (2), which set out the objects of the legislation and the principles underlying those objects…
…
[79] The next important, indeed overarching, provision, is s 60CA which provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
[80] It will be noted that there is no reference in this provision to any distinction between parents and non-parents. The child’s best interests remain the paramount consideration regardless of the biological (or other) connection of the child to the parties to the proceedings.
…
[82] It will be seen that s 64B(2) makes clear that parenting orders, including orders for “parental responsibility”, may be made in favour of non-parents as well as parents. The point is reinforced by s 64C, which provides that “a parenting order in relation to a child may be made in favour of a parent of the child or some other person”. Section 65C goes on to provide that a parenting order may be applied for by a parent, a grandparent, the child him/herself, and “any other person concerned with the care, welfare or development of the child”.
[83] The expression “parental responsibility” is defined by s 61B to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Hence an order can be made for a non-parent to have parental responsibility or to share that responsibility with another person who may or may not be a parent. However, s 61C makes clear that in the absence of an order of the court or parenting plan, only the “parents” of a child have “parental responsibility”.
…
[87] … the legislation makes important distinctions between parents and non-parents. Ultimately, however, orders can be made in favour of either parents or non-parents and, in determining what those orders should be, the best interests of the child remain the paramount consideration.
…
[94] … s 60CC, which on its face maintains clear distinctions between a “parent” and a non-parent.
[95] … the first of the “primary considerations” places a particular emphasis on the benefit to a child of having a meaningful relationship with both parents[9].
[97] … in a case involving a non-parent (who may have played and seeks to play a significant role in a child’s life), it would seem essential to address that person’s willingness and ability to facilitate the relationship between the child and the child’s parent(s).
…
[99] …. To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant”.
…
[101] … there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”…. However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.
[102] … We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.
[103] On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.
[104] This is why the legislature has included a “catch-all” provision, s 60CC(3)(m), which ensures the court can take into account every factor that may assist in reaching the right destination. It is important to keep in mind, however, that s 60CC(3)(m) is contained within the set of factors deemed to be “additional considerations”. Therefore, any matter not captured by s 60CC(2) cannot be a “primary consideration”, regardless of how important it may be in determining the outcome.
[9] Emphasis in original
The Court’s Discretion
As this Court has recently stated[10], parenting cases are always difficult. Decisions in respect of children’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework.
[10] Blythe & Blythe [2018] FCCA 66 at [20]
In this context, it is apposite to be reminded of what the High Court[11] has said in respect of the Court’s discretion in this regard:
parenting cases which “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”.
The evidence in [parenting] cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.[12]
[11]CDJ v VAJ (1998) FLC 92 - 828 at [151]; [152] per McHugh, Gummow and Callinan JJ.
[12] Cited with approval in Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 at [11]
Furthermore, the High Court[13] has relatively recently stated, being a reminder of the discretionary nature of parenting decisions, that[14]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[13] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]
[14] These were obiter comments in the context of an appeal with considerations different to the present case
It is with these principles in mind that the Court has made its findings in respect of where the children are to live.
While the primary considerations do not apply as between the Applicant and the Respondents, the important issue of risk of harm to the children looms large in these proceedings.
The issue is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[15] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[16]
[15] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]
[16] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]
In relation to the issue of unacceptable risk of harm, Her Honour Justice Ryan stated:[17]
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.[18]
[17] Richards & Brown [2011] FamCA 662 at [32]
[18] Referring to Johnson & Page (2007) FamCA 1235
Certainly, in these proceedings both the Applicant and the Independent Children’s Lawyer submit to the Court that the children would be at an unacceptable risk of harm if they were to spend any time with their mother or their respective fathers.
Interaction between Child Welfare Laws and Family Law Act
Section 69ZK is in the following terms:
(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a) the order is expressed to come into effect when the child ceases to be under that care; or
(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2) Nothing in this Act, and no decree under this Act, affects:
(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or;
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
(3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.
The children the subject of these proceedings were at one point in time under the care of a person under a child welfare law. However, at the time of hearing the children were in the Applicant’s care pursuant to an informal care arrangement as is explained later in these reasons.
The Court is satisfied, having regard to the facts as found, that the Court has power to make orders in these proceedings.
Documents Relied Upon
The Applicant relied on the following documents at final hearing:
a)Amended Initiating Application filed 10 August 2017;
b)Affidavit of Ms J filed 15 May 2017; and
c)Affidavit of Ms J filed 16 January 2018.
The First Respondent relied on the following documents at final hearing:
a)Response filed 19 June 2017;
b)Affidavit of Ms Hawk affirmed filed 19 June 2017;
c)Affidavit of Mr Smith affirmed 12 June 2017 and filed 19 June 2017;
d)Affidavit of Mr R affirmed 9 June2017 and filed 19 June 2017; and
e)Affidavit of Ms H affirmed and filed 19 June 2017.
A number of documents became Exhibits in the proceedings being:
a)Exhibit 1 – ‘Strengthening your Relationship with Your Kids’ Certificate of Attendance of Ms Hawk dated 28 November 2018;
b)Exhibit 2 – Documents produced under subpoena by WA Department of Communities, Child Safety and Disability Services;
c)Exhibit 3 – Index and Tender Bundle by Independent Children’s Lawyer; and
d)Exhibit 4 – Index and Tender Bundle by Applicant
Relevant Factual Findings
The Applicant was born on 1970. She gave birth to the First Respondent on 1991, when she was 20 years old. At the time of final hearing the Applicant was 47 years old and the First Respondent was 26 years old.
The Applicant and Mr D have been together for 22 years. They have three children together, and until at least her mid-teens, the First Respondent lived with the Applicant and Mr D. The First Respondent did not know during her childhood and into her adulthood who her biological father was.
In 2009, the First and Second Respondents started living together in Town 1. At the time the First Respondent was 17 years old. The First and Second Respondents lived in Melbourne, Adelaide and Perth.
When she was 19 years old, the First Respondent gave birth to her first child, [X], born on 2010. At the time, the First Respondent was still in a relationship with the Second Respondent. That relationship was very violent. The child [X] was exposed to that violence:
a)On or about 24 September 2013, when [X] was three years old, she was picked up by her parents from daycare. During the drive home her parents were arguing in front of the child. Upon arriving home, [X]’s parents continued to argue.
Whilst the child was sitting on the couch in the family room area, the First Respondent picked up a glass nail polish bottle and threw it at the Second Respondent hitting him in the head, cutting his forehead.
An ambulance was called to treat the head wound sustained by [X]’s father in the attack. The First Respondent made admissions to the police in respect of the incident.[19]
b)On 28 July 2014, the First Respondent was subjected to a horrific attack by the Second Respondent. An argument started between the First and Second Respondent at about 11.30am that morning in their master bedroom.
During the argument, the First Respondent tried to leave the bedroom but the Second Respondent pulled her back and onto the bed. He then held her in a headlock and kneed her to the head. It was only upon the Second Respondent’s mother intervening that the assault stopped. [X] was at home during the incident but she was in another room.
Later that night, in fact in the early hours of the following morning, the Second Respondent returned home. Both the First Respondent and [X] were sleeping.
The Second Respondent came into the master bedroom and woke the First Respondent up. While they were talking, the Second Respondent picked up the metal bar of a nearby vacuum cleaner, swung it and hit the First Respondent on her arms and hands as she tried to defend herself. She fell into the wall breaking the plaster. While she was on the ground, crouched against the wall, the Second Respondent continued swinging the metal bar at her, striking her over her body. He said “I’m going to smash your head in.” while hitting her. When she tried to run out of the room, the Second Respondent punched her in the face with is right fist, causing her nose to bleed and temporarily dazing her.
In an act of self-defence, the First Respondent picked up a vase and threw it at the Second Respondent. She then tried to tackle him, but he overpowered her and started to punch her with both fists around her head. The First Respondent managed to roll to her stomach and tried to protect herself by assuming a foetal position. She was punched in the back of the neck and kicked. She ultimately escaped and ran to a neighbour’s house.
Shortly afterwards, the Second Respondent smashed up the First Respondent’s car which was parked outside of their residence. Not only did he smash the windscreen, and all of the other windows, he also slashed one of her tyres.
[X] was at home during this prolonged and violent attack on her mother. She was reported to have been screaming from the bedroom having witnessed the incident.
The police were called and the Second Respondent was arrested. He ultimately made full admissions to the police.
[19] She was charged with Aggravated Assault Occasioning Bodily Harm
The First and Second Respondent separated in mid-2014, after the Second Respondent was incarcerated.
It is the Applicant’s evidence that the First Respondent was charged after being caught stealing whilst [X] was with her.
The First Respondent and the Third Respondent, Mr Smith commenced a relationship in mid-late 2015 in Western Australia.
The evidence before the Court paints a picture of an extremely violent relationship between the First and Third Respondents. The First Respondent was cross-examined at length in respect of these matters, and her evidence was ever shifting and inconsistent. She minimised the episodes of violence, at times denied them completely and many of her answers were “no comment”. She gave evidence that she was not a victim of family violence because she can “fight back” despite admissions for example that the Third Respondent had at least on one occasion punched her in the face with a closed fist. She also gave evidence that when she did seek assistance with being moved to a refuge it “was part of the process to get into housing”.
March 2016 Incident, as described in Exhibit 3:
a)In mid-March 2016, the First Respondent attended the Medical Centre. She was emotional and visibly upset. She had injuries including bruising and cuts which she said were caused by her current partner, the Third Respondent.
b)The First Respondent presented with multiple bruising to her skull and body and neck pain. She said the injuries were as a result of being hit with a fist or torch and being kicked. She was observed to have had two 1.5cm mildly raised haematomas on her skull, a large bruise on her right deltoid and multiple bruises on her right arm.
c)The First Respondent told the nurse that she was four months pregnant, that her partner would not allow her to go to medical appointments (she had only had one scan), that she was scared of him and wanted to go to a refuge with her daughter. During the consultation, the First Respondent received a call from the Third Respondent, who shortly thereafter came to the surgery. He was pacing the halls and smacking the walls.
d)While being seen to by the general practitioner (“GP”), the First Respondent admitted to heavy use of marijuana, and requested Valium to be prescribed to her to help her deal with her anxiety. She received a further call from the Third Respondent during the consultation with the GP. Upon being told by the GP that it was not safe to prescribe Valium given the marijuana use and the First Respondent’s pregnancy, the First Respondent started “verbally abusing the GP and eventually screaming at her and stormed out of the medical centre where her partner was waiting.”
During cross-examination, the First Respondent denied telling the staff at the medical centre that she had been assaulted by the Third Respondent, but rather that she had a fight with her family, her in-laws. She said there was pushing and shoving.
On balance, the Court accepts the version of events contained in Exhibit 3 rather than the version given by the First Respondent in cross-examination. The Court finds that this is one of the instances when the First Respondent tried to minimise the family violence she was subjected to at the hands of the Third Respondent.
On 16 June 2016, the Third Respondent again assaulted the First Respondent mother. She was seven months pregnant at the time. The Third Respondent hit her on the back of the head with a pole and bit her on the arm.
In cross-examination, the First Respondent said that she was assaulted by the Third Respondent, that they had an argument at the front of the house. She denied telling the authorities that the Third Respondent had hit her on the head with a pole. Her evidence was to the effect that “I had a go at him and he had a go at me… I threw a pole at him and he grabbed it and threw it back at me.” Even on the First Respondent’s version in cross examination, the events of 16 June 2016 placed her and her unborn child at significant risk.
On or about 4 July 2016, the First Respondent entered into a safety plan with Western Australia Child Protection and Family Services (“CPFS”). That plan describes the concerns of the CPFS as follows:
a)CPFS are worried that the Third Respondent has physically assaulted the First Respondent by hitting her with a metal pole to the head multiple times and has bitten her on the arm while she is pregnant. If nothing changes, the unborn baby may suffer harm in-utero and even die. The CPFS are worried that [X] may also suffer physical harm or even die if she is present during the violent incidents and gets caught up in the violence.
b)CPFS are worried about the Third Respondent’s drug use. The First Respondent admitted to the Third Respondent using methamphetamines but said that he “listens to her more after he uses methamphetamines” and agrees “he is not pleasant when he is coming down”.
The safety plan provided for the First Respondent to take [X] and go to a safe house if she sees any warning signs in the Third Respondent, and that if she cannot leave and the Third Respondent becomes aggressive she is to contact the police or Crisis Care.
Over the course of the following few weeks, CPFS contacted the First Respondent on a number of occasions, and conducted home visits. During these communications the First Respondent’s attitude to the safety plan changed, and she became resistant to the idea of obtaining safe accommodation for herself and [X].
On 11 August 2016, CPFS conducted an unannounced visit to the home of the First Respondent. The reason for the home visit was because the First Respondent had stopped returning phone calls, text messages and had failed to attend meetings which had been arranged.
On 12 August 2016, CPFS wrote to the First and Third Respondents indicating that the assessment undertaken found that:
“There are reasonable grounds to conclude that [X] and … unborn baby are likely to be significantly harmed through emotional harm due to their exposure to Family and Domestic Violence.”
CPFS consequently advised the First Respondent that the Third Respondent was not to be left unsupervised with the mother and the baby at any time, and that it was not acceptable to CPFS for the First and Third Respondents, and the baby yet to be born, to be alone together “even in hospital”. CPFS had discussed these matters with the First Respondent who understood the requirements of CPFS and was agreeable. These discussions took place on or about 16 August 2016.
The child [Y] was born on 2016.
The Third Respondent came to visit the First Respondent at hospital following the birth of their child. Consequently, there was intervention by CPFS at the hospital following the birth of baby [Y]. In a discussion, the First Respondent initially denied any knowledge of the safety plan, but later acknowledged that she was aware of the plan but that she had not realised it would apply in hospital. She told the case worker that the Third Respondent had come to see his son, and she was not able to recognise any safety concerns for herself or the baby. The First Respondent “presented as angry at what she perceived was workers blaming her for Mr Smith not adhering to a safety plan.” In cross-examination, the First Respondent admitted she had not advised the Third Respondent of the safety plan made on 16 August 2016, and that is why he did not participate.
On 21 August 2016, CPFS assumed care of [Y]. CPFS met with the Third Respondent on 22 August 2016.
The Applicant received a phone call from her stepfather on or about 22 August 2016 whereby she learnt that CPFS had assumed care of the baby. She was given the details of the case worker from CPFS with whom she then engaged and communicated about the children.
The Western Australia CPFS filed an application in the Western Australia Children’s Court on 23 August 2016 with respect to [Y].
On 25 August 2016, the First Respondent agreed to a further safety plan. The plan provided that there was not be any contact with the Third Respondent or his family. The First Respondent was advised that if she breached this safety plan the baby would be placed in foster care. Upon signing the safety plan, the baby and First Respondent were released from hospital.
On 26 August 2016, the first mention of the care proceedings was before the Children’s Court. Neither parent attended. The proceedings were adjourned to 19 September 2016.
On 30 August 2016, CPFS assumed care of [X] as there was an assessment by the relevant authorities that there was an immediate and substantial risk to her wellbeing.
The Applicant received a telephone call from the relevant caseworker with CPFS on 31 August 2016 and was told that the children had been taken into foster care as the Third Respondent had been found by police in the safe house. The Applicant consequently emailed all of her details and particulars to the caseworker so that CPFS could commence relevant checks to assess whether she might be a suitable carer for the children.
The Applicant travelled to Western Australia on or about 5 September 2016, following the notification by CPFS that the children had been assumed into care.
A meeting occurred between the Applicant, all of the Respondents and CPFS on 8 September 2016 with regards to the children’s placement. It was agreed that the children would be placed with the Applicant. All parties indicated their agreement to this arrangement.
On 15 September 2016, the children were placed in the care of the Applicant pursuant to the “informal care arrangement”. The care proceedings were discontinued. The children travelled with the Applicant to New South Wales, and they have been living with the Applicant since that time.
Following the children being relocated to New South Wales with the Applicant, the First Respondent commenced sending lengthy text messages to her mother about the children (and other things). Those text messages are referred to in the Applicant’s affidavit. They are concerning. The earlier text messages are much more coherent than the later ones, which are long, rambling and difficult to understand.
The current proceedings were commenced by the Applicant on 4 October 2016. The first return date was 15 November 2016, when the Court made interim orders for the children to spend time with the mother.
The First Respondent moved to New South Wales in or about mid November 2017, and the Second Respondent shortly thereafter in or about December 2017.
An incident involving the First and Third Respondents to which the police were called, occurred on 25 January 2017. The records obtained under subpoena issued to New South Wales Police indicate that the First and Third Respondent were in the kitchen washing dishes and got into an argument. The Third Respondent reached into the cutlery tub, and fearing that he was trying to grab a knife the First Respondent grabbed for the utensil, causing her hand to be cut on a blade of a knife. The Third Respondent then punched the First Respondent to her chin with his fist. An ambulance was called and the First Respondent was taken to hospital. The police later arrested the Third Respondent. A provisional Apprehended Domestic Violence Order (“ADVO”) was applied for, granted and served on the Third Respondent.
When she was cross examined about the incident, the First Respondent admitted that there was an argument, that the Third Respondent had punched her in the face, but that he was “coming down – off ICE” at the time. At the time these two parties were living together in Sydney.
On 4 February 2017, a provisional ADVO was made for the protection of the Applicant and naming the First Respondent as the Defendant. The order was obtained after the Applicant received 13 emails, 59 text messages, 4 phone calls and 1 voice mail from the First Respondent all between 6.30pm and midnight on 2 February 2017.
On the morning of 16 February 2017, the First Respondent attended [X]’s school and sought to remove her from school. The police were called. The mother again attended [X]’s school that afternoon in an attempt to physically remove the child from Mr D, teachers and school staff were required to intervene.
Following the above incident, the First and Third Respondents attended the grandmother’s residence on 18 February 2017, again the police were called.
A final ADVO was made on 22 February 2017 naming each of the First and Third Respondents as Defendants and the Applicant as the protected person.
One day later on 23 February 2017, the First Respondent again attended [X]’s school in an attempt to gain access to the child.
On 2 March 2017, the Applicant met with [X]’s school and they entered into a safety plan to ensure the child can attend school safely.
On 7 March 2017 the First Respondent sustained a stab wound to the right side of her back which resulted in a punctured lung. She initially advised Ambulance officers that she had fallen down the stairs and landed on a knitting needle but later confirmed that this was a result of the Third Respondent stabbing her. In her cross examination the First Respondent said that a stranger had attacked her from behind.
During cross-examination, the First Respondent denied any knowledge of the Third Respondent being charged with stabbing her or of the police locating a pair of scissors in his car (which was the weapon with which the First Respondent was stabbed). The Third Respondent was ultimately charged with breaching the AVO. Indeed, he visited the First Respondent while she was in hospital as a result of the stab wound.
The First Respondent indicated to the Court during these proceedings that she considered the breach to be trivial and she denied knowledge that the Third Respondent had received a 12 month suspended sentence as a result of the breaches.
On 25 March 2017, the First and Third Respondents left New South Wales and at the time of final hearing they were residing together in Town 1, Queensland.
The Second Respondent was released from gaol in 2017 and resides in South Australia.
As noted earlier, the First and Third Respondents had another child, [A], in 2017. The Queensland Department of Communities, Child Safety and Disability Services is engaged and a child safety officer has been assigned with case management responsibilities for [A]. That department and the First and Third Respondents are working on an “Intervention with Parental Agreement” which the First Respondent signed so that [A] could remain in her care rather than being taken by the department into foster care.
At the time of hearing, the First Respondent was on bail for stealing offences in Town 1.
Allegations of Violence against the Applicant
The First Respondent says that as a child, her mother and Mr D would physically assault her and that she was neglected by them. She was left at home alone and unattended from the age of four to six and on other occasions would be left alone to sleep in the car while they were at a club.
The First Respondent says that from the age of approximately 12 she was responsible for cleaning the house and tending to maintenance issues inside and outside of the home. She says that failure to do as she was told would result in her being made to repeat the chore and was then physically assaulted “usually by Mr D with a kitchen implement, a slap to the head or across the face, or a boot to the part of my buttocks”.
The First Respondent asserts that she attended “maybe 18 schools from primary to high school” as a result of being moved around with family members and friends and that she was fearful of ever disclosing to others the issues that she was facing in her home due to the punishment that she would receive.
The First Respondent says that she lived “14 years as a parentless child as I was never considered as one of their children”.
The First Respondent asserts that the children are at risk in the care of the Applicant and Mr D due to the family violence that was perpetrated against her by her mother and Mr D when she was a child. Such violence, the First Respondent says, resulted in her being removed from their care by the New South Wales Department of Family and Community Services and placed in the care of her grandparents, Mr R and Ms J.
There is no evidence available in the records produced under subpoena by the Department which support that assertion. The records indicate that the First Respondent did come to the notice of the Department and that she went to live with her maternal grandmother, but not that she was placed there pursuant to any care arrangement.
It was put to the Applicant, during cross-examination that she and her partner Mr D, had been violent towards the First Respondent and that she had, as a child, been placed with the Applicant’s mother. The Applicant denied that she or Mr D had been violent, but she agreed that the First Respondent did live with the Applicant’s mother, and that such arrangements were not unusual in her culture.
Further, the First Respondent asserts that the children are at risk of harm in the care of the Applicant because the Applicant has physically assaulted the child [X] by pinching her. The First Respondent says she knows this is the case because the pinching occurred whilst she was on the phone to the child and she could hear the child screaming.
The First Respondent says that the Applicant has “lied and manipulated the legal system” to prevent the First Respondent from seeing or spending time with her children. She says that the Applicant and Mr D, have extensive criminal histories.
The First Respondent describes an incident in February 2014 where the mother and grandmother had a physical altercation at a child’s birthday party.
The First Respondent gives evidence of a number of occasions where the grandmother has used violence and abuse in business dealings, including with customers, her own mother who was working as a (occupation omitted) for a period of time and a former franchisee.
Relevant Considerations
Primary and Additional Considerations
In these proceedings, the primary considerations are given particularly hefty weight and take precedence over everything else. The need to protect two vulnerable children from being exposed to family violence looms larger than any other consideration.
There is a long history of family violence between the First Respondent and both of the children’s fathers. The First Respondent was the victim of very serious violence at the hands of both men, and she was the perpetrator of violence on at least one occasion against each of the fathers. The First Respondent has little to no insight as to what is acceptable behaviour and the impact of unacceptable behaviour on the children.
Both children have been exposed to unacceptable risks of harm by the Respondents at various times in the children’s lives. The exposure of the children to unacceptable risk of harm includes the violent episode between the First and Second Respondent in 2014 and the violent episodes between the First and Third Respondents in 2015 and 2016, all referred to earlier in these reasons.
The First Respondent has demonstrated an inability to comply with Court orders or to put the children’s safety ahead of her own interests. By way of example:
a)The First Respondent breached the safety plans which were entered into between herself and the CPFS which resulted in the children being removed from her care; and
b)The First Respondent had resumed a relationship with the Third Respondent in circumstances where there was a final no contact ADVO for her protection, and thereafter she had fallen pregnant to him resulting in the birth of her third child [A].
The Third Respondent has a long history of drug and alcohol abuse. The Third Respondent, according to the First Respondent was using the drug ICE while the two were together and living in Western Australia. Some of the episodes of violence between them, the First Respondent attributes to the Third Respondent coming off the drug.
The First Respondent admitted to using marijuana while pregnant with [Y] and later on using marijuana oil while pregnant with [A].
The First Respondent’s behaviour towards the Applicant after the children came to live with the Applicant is also appalling. Such behaviour includes the abusive text messages sent to the Applicant.
What is even more concerning though is the First Respondent attempting to see [X] at school in the face of the orders of this Court, and while proceedings were on foot which indicated the very serious nature of the risk it was alleged these children have been exposed to and continued to be exposed to at the hands of their mother and the Third Respondent.
The First Respondent has demonstrated to this Court that she is incapable of doing what is in the children’s best interest. She has failed to act protectively towards the children time and time again.
While the First Respondent raised many allegations against her own mother, none of these were seriously tested in cross-examination. In any event, before the informal care arrangement was entered into by the parents, the Applicant and CPFS, the Applicant had gone through an assessment process with CPFS where she was whetted as a suitable carer for the children. At the time, the First Respondent indicated that she was pleased for the children to be placed in the Applicant’s care and she was in agreement with that placement. Likewise for the Second and Third Respondents.
The children’s views in this matter are not the subject of any evidence. [Y] has been in the care of the Applicant since shortly after his birth. He has never lived with the First Respondent or the Third Respondent.
[X] has been living with the Applicant since September 2016. There is no evidence to suggest that she is doing anything but well. While she had been living with the First Respondent until she was about six years old, it appears that the living arrangements were not stable and that there were periods of time when she stayed with the Applicant. There is no evidence of the relationship between [X] and the Second Respondent, her father.
The Applicant has attempted to facilitate a relationship between the children and their parents, provided the children were safe. The First Respondent has not demonstrated any ability to spend time with the children pursuant to earlier interim orders made by this Court. The Court is satisfied that the Applicant has at all times made appropriate decisions with respect to the children placing their safety first and protecting them from harm.
The Third Respondent has not participated in the proceedings in any way. This is in circumstances where he and the First Respondent continued in a relationship and indeed, continue living together and have had another child together.
There is no evidence of any of the Respondents financially assisting the Applicant with the cost of raising the children.
It is the Court’s finding that there is likely to be a detrimental effect on both children if orders for the children to live with the First Respondent are made. [Y] has only ever known the Applicant and her family, and the children are now in established routines in their grandmother’s home. They have a loving extended family and there is no evidence to suggest that they have anything but appropriate relationships with members of that extended family.
The practical difficulty and expense of the children spending time with any of the Respondents is significant. The Respondents did not provide any proposal to the Court which would overcome those difficulties and associated expense. Furthermore, given the risks to the children of spending time with the Respondents, a long term supervision order is the only order which the Court would have considered. In the circumstances however, there is no evidence which would suggest that a long term supervision order is in any way practical or feasible.
The Court is not satisfied that the First Respondent has demonstrated any capacity to provide for the children’s needs, including emotional and intellectual needs. The evidence in respect of [X] in 2016, when CPFS contacted her school, indicated that her basic needs were not being met by her mother at the time. For example, while she was always in uniform, her uniform was often dirty and her face and hands were quite dirty. The child was always late to school, and the school was not sure if the child was provided with breakfast every day.
The First Respondent’s attitude to the responsibilities of parenthood, as demonstrated by her, is poor.
The First Respondent has not acted protectively towards her vulnerable children. She has placed herself and her children, including when the younger of the two children was in-utero, at unacceptable risk of harm by way of breaching the safety plan entered into with CPFS. She has continued in her failure to demonstrate an ability to ensure the safety of any of her children, not in the least by continuing her relationship with the Third Respondent. It is clear from the police material that the Third Respondent’s other children witnessed significant assaults on their mother perpetrated by the Third Respondent. There is evidence of the First and Third Respondents perpetrating violence on other people, including assaults with weapons.
Parental Responsibility
It was submitted by the Applicant that an order allocating her sole parental responsibility for the children is in the children’s best interests because of:
a)The history of family violence perpetrated by each of the Respondents and the risk this presents to the children;
b)The threats and abusive behaviour by the mother and Mr Smith towards the grandmother and her household; and
c)The instability of the mother and Mr Smith’s lifestyle and risk of drug use by each.
It was submitted by the Independent Children’s Lawyer that the presumption in favour of the parents is rebutted given their extensive criminal records and the high level of family violence. Further, the Independent Children’s Lawyer submits that there is no presumption in favour of the grandmother, however when considering all of the evidence, the children would be best served by an order for sole parental responsibility in favour of the grandmother.
While the presumption of equal shared parental responsibility does not apply as between parents and non-parents, the Court nonetheless finds that the presumption of equal shared parental responsibility as between the parents has been rebutted as there are reasonable grounds to believe that a parent has engaged in family violence.
The Court accepts that an order allocating parental responsibility for the children to the Applicant is in all of the circumstances an order which is in the children’s best interest. The Applicant is the person with whom the children will be living pursuant to these orders, and given the lack of ability by the parents to communicate in any meaningful way with the Applicant, an order which would require co-operation between the parents and the Applicant in the manner provided for by s65DAC(3) is not going to be effective.
Conclusion
Orders for children to spend no time with a parent are usually a port of last call for the Court. The Act is clear in terms of its objects and the underlying principles. It is clear that the children’s best interests are the paramount consideration.
The facts as found by the Court upon a final hearing of these matters lead the Court to a finding that it is in the children’s best interest to live with the Applicant and for there to be an order for no time with the First Respondent, or for that matter the Second and Third Respondents[20].
[20] While the orders sought by the Applicant named Mr D, he was not a party nor did he participate. As such, it is not appropriate for orders to be made in the terms sought by the Applicant. The effect of the order is that whilst the Applicant and Mr D remain living together, the children will also be living with him and their aunts and uncles.
It is also appropriate that injunctive relief of the type sought by the Applicant be granted, to ensure the children are protected from inappropriate behaviour as much as possible.
For all of the reasons set out above, orders as set out at the forefront of these reasons will be made.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 2 November 2018
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