Christy & Young
[2022] FedCFamC1F 446
•22 June 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Christy & Young [2022] FedCFamC1F 446
File number(s): PAC 5254 of 2019 Judgment of: HANNAM J Date of judgment: 22 June 2022 Catchwords: FAMILY LAW – CHILDREN – Variation of interim parenting orders – Where final hearing was completed in November 2021 – Where judgment is currently reserved – Where an application to reopen proceedings was made by the father – Where a central issue at final hearing was the risk of harm posed by a man the mother was “dating” – Where the mother deposed to no longer being in a romantic relationship with this man – Where the mother was untruthful to the Court – Where the father deposes to the children reporting that the mother is continuing to see this man and that they have been exposed to and subjected to family violence perpetrated by him – Where it is not disputed that the mother is now pregnant– Where the father contends there is an unacceptable risk of harm in the mother’s home due to family violence – Where an oral application was made to vary the interim parenting arrangements – Where the Court is satisfied that if the mother remains in a relationship with this man there is an unacceptable risk of harm in her household if the children remain living with her – Where orders are made for the children to live with the father and spend limited time with the mother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D Cases cited: Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 134 Date of hearing: 20 June 2022 Place: Parramatta Solicitor for the Applicant: Bainbridge Legal Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 5254 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHRISTY
Applicant
AND: MS YOUNG
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
20 JUNE 2022
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the children are hereby suspended.
UNTIL 4PM ON 15 JULY 2022, THE COURT ORDERS THAT:
2.The father have sole parental responsibility for the children.
3.The children are to live with the father from after school today.
4.Commencing from Sunday 3 July the children are to spend time with the mother between 10am and 4pm each alternate Sunday with changeover for such time to occur at the McDonald’s Family Restaurant in Suburb D at the commencement and conclusion of time.
5.Only the father and such other members of his household who the father considers appropriate are permitted to collect the children from school.
6.Leave is granted to the ICL to provide these orders to school.
7.The mother is to provide all details of current prescriptions and medications for the children and the name of the children’s treating general practitioner to the father’s solicitor prior to leaving Court today.
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 Christy & Young has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
Introduction
On 20 June 2022 I made orders for a change in the interim arrangements for the parties’ two little boys, aged five and seven (“the children”). I indicated that I would publish my Reasons in due course. These are those Reasons.
Parenting proceedings between the parties (“the mother” and “the father”) relating to the children were heard over five days in September and November 2021 and judgment is reserved. On 20 June 2022, the proceedings were reopened for reasons given at the time and a further day for hearing and submissions in relation to the new evidence was fixed for 15 July 2022.
The issue at the heart of the reopened proceedings relates to a matter which the father contends gives rise to a serious risk of harm to the children in their current situation living with the mother. Given the seriousness and urgency of that issue, leave was given to the father through his legal representative to make an oral application for variation in the current interim arrangements for the children. The orders made, as sought by the father pending the final day of hearing on 15 July 2022, were supported by the Independent Children’s lawyer (“ICL”) and were opposed by the mother.
Background
The mother who is 32 and the father who is 30 began a relationship in late 2013 and commenced living together a short time later. They had two sons during the course of their short-lived relationship who were about two and a half and less than twelve months old respectively when the parties separated in 2017.
The parties initially reached agreement about a parenting arrangement for the children in which the children lived with the mother and spent quite regular time with the father including overnights. From time to time the mother did not make the children available to the father for reasons that she considered justified.
By May 2019 each of the parties had re-partnered and each party had concerns about the other parties’ new partner.
Shortly after the father married in mid-May 2019, the mother again began withholding the children from him, citing various safety concerns said to be posed by his wife. In particular, the mother alleges that in April 2019 the older child had made complaints to her about being sexually abused by the father’s wife.
Even though the allegations of sexual abuse were investigated by a joint police, health and Department of Communities and Justice team and not found to be substantiated, the mother continued to maintain that the father’s wife had sexually abused both children and posed an unacceptable risk of harm to them on this basis.
There was a ten-month period from May 2019 in which the children spent no time with the father.
In October 2019 the father commenced parenting proceedings in the Federal Circuit Court as it was then known. Due to the allegation of sexual abuse, the proceedings were transferred to this Court and formed part of the Magellan Protocol, a fast-track case management program dealing with allegations of serious physical or sexual abuse.
In February 2020 the parties came to an agreement which was formalised in orders made with their consent for the children to spend time with the father supervised by a supervision service. This time commenced in March 2020.
When seen by a Family Consultant in August 2020 for the purposes of a Family Report, the mother maintained the position that the father’s wife posed an unacceptable risk of harm to the children arising from sexual abuse. The father was mainly concerned about an alleged risk posed by the mother arising from her actions, which he contended amounted to undermining the children’s relationship with him and promoting a false narrative about dangers posed by himself and his wife.
At the time the family were assessed by the Family Consultant the mother had separated from her former partner but the father believed that she may be in a new relationship with a person known to the father at that time only by his first name. This person who came to be known as Mr C, ultimately assumed great significance in the proceedings (and is particularly important for the purposes of this application) but at the time little was known about him and the father had no significant concerns regarding the impact of any relationship the mother may have with him upon the children.
In October 2020 the interim orders in place for the children were varied following hearing. At that hearing in July 2020, the mother had proposed orders that the children’s supervised time with the father be reduced to four hours once a month and maintained her allegations that the children were at risk of harm in the father’s care on the basis that his wife had sexually abused either or both of them. The father denied that the children were unsafe on any basis in his care. For Reasons set out in my judgment[1] I was satisfied that it was in the children’s best interests for orders to be made as proposed by the ICL, increasing the children’s time with the father pending final hearing to eight hours each alternate weekend supervised by the paternal grandparents (though this supervision was imposed only in order to militate against the mother making further allegations).
[1] Christy & Young [2020] FamCA 911.
The children’s time with the father has proceeded under this arrangement since that date up until the present application.
Although it was not known by the father at the time, it later came to light that from at least November 2020, Mr C, (who had previously been in a relationship with the mother some years before) had rekindled a friendship with members of the extended maternal family. Mr C was from November 2020 spending time with the extended maternal family including undertaking work at the maternal grandparents’ home (being the same property in which the mother resided in separate premises) and interacting with the children.
Although Mr C did some work at the maternal household from around November 2020, he was not living in the area and continued to reside in the ACT.
From at least the time the mother was assessed by the Family Consultant in August 2021 her position in the proceedings was that she proposed moving to the ACT.
The hearing
The final hearing commenced on 21 September 2021 and proceeded via video link due to restrictions related with the Covid-19 pandemic. Although the mother’s trial affidavit was completely silent in relation to Mr C, it was the father’s contention at the commencement of the final hearing that she may be in a relationship with Mr C and the children had some regular contact with him, so the question of Mr C being available for cross-examination was a live issue.
During cross-examination of the mother it became apparent that Mr C had a history of offending including as a perpetrator of family violence. Orders were then made for a subpoena to issue to NSW police on short notice to obtain documents relating to Mr C’s criminal history and for court records in relation to his criminal proceedings to be obtained. Prior to adjourning the proceedings on the third day of the hearing it was also confirmed on behalf of the mother that Mr C would be available for cross-examination in the proceedings.
On the following day although Mr C was available for cross-examination this did not proceed as the mother’s solicitor was unable to facilitate Mr C giving evidence via video link from her offices. The proceedings were then adjourned part-heard to 18 November 2021 on which day it was proposed that Mr C and the Family Consultant were to give evidence remotely.
Prior to the resumption of the proceedings on 18 November 2021, each of the parties filed further affidavits in relation to the mother’s relationship with Mr C. The mother deposed that she had not been in a romantic relationship with Mr C since 1 October 2021 while the father deposed that contrary to the mother’s evidence he had seen the mother and Mr C together in person on three separate occasions after this date.
At the beginning of the resumed hearing on 18 November 2021, there was brief further cross-examination of the mother and cross-examination of Mr C then followed. Of particular significance, Mr C gave inconsistent evidence to that of the mother in relation to their recent communication with one another. Following Mr C’s evidence, the mother was cross-examined further and confirmed that she had misled the Court about her relationship with Mr C and communication with him when giving evidence earlier that day. It also became known that Mr C had given false evidence about another matter.
On 19 November 2021 at the completion of evidence, final oral submissions were made on behalf of each of the parties before judgment was reserved.
Evidence and findings concerning Mr C at the final hearing
The mother’s position in relation to her relationship with Mr C and the risk, if any, that he poses to the children changed in the course of the proceedings. Her trial affidavit is silent in relation to Mr C and she did not rely on any affidavit sworn by him in the proceedings. Although the question of this relationship was first raised by the father in the interviews with the family consultant for the Family Report, at that stage the father did not know Mr C’s full name or anything further about the current state of the relationship. In summary, when the hearing commenced Mr C was not a proposed witness but further information came to light about him and the role he may play in the mother’s household in the course of the proceedings.
Just prior to being cross-examined the mother sought to rely on a further affidavit in which she deposed to having been in a relationship with Mr C for a couple of months. During cross-examination various concerning matters about Mr C especially in relation to his history of family violence and interactions with the children came to light. When the final hearing resumed part-heard in November 2021 the mother deposed to no longer being in a relationship with Mr C and it was her case that the presence of Mr C in her life, however described, did not give rise to an unacceptable risk of harm to the children in her care.
When final submissions were made on her behalf the mother agreed to the restraint contained in the ICL’s proposed orders that the children not be brought into contact with Mr C. The mother’s counsel accepted on her behalf that Mr C did pose an unacceptable risk of harm to the children. The father contended and the ICL agreed, that the Court should find that Mr C does pose an unacceptable risk of harm to the children arising from exposure to family violence should the children continue to live with the mother. Such a finding if made grounds the ICL’s proposal, adopted by the father including in particular an order that the children move to live with the father.
For the foregoing reasons it is necessary to make findings about the nature of the mother’s relationship with Mr C and whether that relationship gives rise to an unacceptable risk of harm to the children arising from exposure to family violence if the children were to live with her, both for the purposes of the final judgment and this application.
The evidence concerning Mr C
When assessed by the family consultant the father reported that during his relationship with the mother, Mr C was an acquaintance of the mother and that the father was lead to believe Mr C “was not a nice person”. At the time of the assessment, the father reported that he did not have much knowledge of Mr C and had no specific concerns regarding the impact of this relationship on the children.
Just prior to being cross-examined in the proceedings, the mother sought leave to rely upon a further affidavit sworn on the same day, 22 September 2021. In that affidavit the mother deposed to “currently dating” Mr C, who she said resides in a unit with his sister in a named suburb of Sydney. She also deposed to having met Mr C in around 2009, that she was in a relationship with him for approximately two years and that they had lost contact with each other from 2013. According to the mother’s affidavit, Mr C attended at the maternal grandfather’s property (where the mother also lives with the children in separate premises) to undertake work for her parents in around November 2020 and they began communicating with each other once again from then and “started dating” in July 2021, a couple of months prior to the commencement of the final hearing.
The mother further deposes that the children met Mr C when he attended her parent’s home in November 2020 and was introduced to him by his first name as “the tradesperson”. She also says that Mr C has “come over approximately 10 nights since July 2021 for a personal intimate visit”. The children have been put to bed during this time and Mr C has left before they have woken up. The mother adds in her affidavit that she and Mr C are not in a committed relationship and have not discussed living together permanently.
When cross-examined about the nature of her relationship with Mr C as at September 2021, the mother confirmed that this relationship had become intimate in July 2021. She also confirmed that it was then an exclusive relationship and that she hoped that it might continue to evolve if things go well noting that it is still very early days. She also confirmed that although Mr C had only stayed overnight on 10 nights he also came over for family barbeques and was still assisting her father with work.
Under cross-examination, the mother said that Mr C spends time with her and the children together and confirmed that they, together with the children, had gone on a particular outing put to her. The mother also confirmed that Mr C had only recently moved to Sydney and that he previously lived in the ACT where she was at some point seeking to relocate. The mother denied that she proposed relocating at the time as she considered moving in with Mr C or that she intended to move to be closer to him.
Under cross-examination the mother confirmed that Mr C had three children from a previous relationship who did not live with him.
The mother confirmed that she was aware there had been recent Apprehended Domestic Violence Order (“ADVO”) proceedings involving Mr C and his former partner. Records produced on subpoena by police also appeared to suggest that Mr C had been charged with assaulting this partner. At this point in the proceedings, I indicated that I considered it appropriate to request that the mother arrange for Mr C to attend for cross-examination. Further documents produced on subpoena related to Mr C’s criminal history and subsequently relevant records in relation to Mr C’s court attendance with respect to his criminal charge and the application for ADVO against him were obtained.
When further cross-examined about the allegation which grounded the ADVO against Mr C for the protection of his former partner, the mother confirmed that she was aware of it. When specifically asked whether she was aware that the allegation against Mr C was that he “punched his former partner twice in the face leaving a significant amount of bruising around her eye socket”, the mother answered “that is what was written down”. Under further cross-examination the mother said that Mr C’s background concerned her “to some degree” but added that “those offences that are on the criminal record, they also happened a very long time ago. He’s not that person”.
When it was arranged for Mr C to give evidence and the proceedings resumed on 18 November 2021, the mother then sought leave to rely on a further affidavit filed two days earlier in which she says that following the last hearing date she and Mr C ended their relationship on 1 October 2021. She deposed to not having seen Mr C since 1 October 2021 but said she and Mr C “still communicate and have been in contact a few times by telephone”.
Prior to cross-examination of Mr C on this day, the mother was made available again for cross-examination in relation to her most recent affidavit. Under cross-examination she confirmed that she and Mr C had agreed to end their relationship over the telephone on 1 October 2021 and that she had spoken to him on approximately four occasions since then. She denied currently communicating with Mr C by text message, email, or by any other means at the time. She also agreed that at about 3 o’clock on 1 October she returned some of Mr C’s tools that he had left at her house but did not mention any other personal contact with Mr C after this date.
It was also suggested to the mother that Mr C was at her home just before 6pm on 2 October 2021, which she denied. She also denied that she was in a car with Mr C on another particular occasion and at about 4pm on 9 November was in Mr C’s company in a nominated suburb.
When asked by the ICL why she and Mr C had separated, the mother said that it was basically her decision and that he just agreed with it. She also added that she did not really exactly know why Mr C “has been brought into this case so much”. When the issue of Mr C’s role in the proceedings and any concern that may be raised was further explored under cross-examination, the mother confirmed that she does not have any concerns about Mr C. She then confirmed that really the only reason she and Mr C had broken up was because there was a lot happening at this time which I took to be a reference to matters associated with these proceedings.
When asked about herself and Mr C getting back together again once the stress of the proceedings was over, the mother said she did not know but considered “there’s a possibility” of that occurring.
The father was not cross-examined about a further affidavit in which he deposed to having seen the mother and Mr C in each other’s company subsequent to 1 October 2021 when on the mother’s evidence they had separated. The father deposes in this affidavit that he arrived early at the mother’s home to return the children on 2 October 2021 and that the older child pointed out the window and said “there’s [Mr C’s first name]” and that he saw Mr C walk hastily into the maternal grandfather’s barn. The father also deposes to having seen the mother and Mr C drive past at around 1.30pm on 8 November 2021 at a named location and that the following day, 9 November 2021, he saw the mother and Mr C walking together in a nominated suburb at around 4pm.
When Mr C was called for the purposes of cross-examination, he confirmed that he attended the proceedings voluntarily following this request made by the Court. He deposed to he and the mother knowing one another for many years and to being in a relationship for about two years between 2010 and 2012. He also gave evidence that he and the mother started “seeing each other” again in July 2021.
Under cross-examination, Mr C was quite evasive in relation to the nature of his relationship with the mother, initially declining to answer “personal” questions. Although he initially denied that the relationship was “more than dating” when directed to answer a question he agreed that their relationship was intimate. He then denied being in a relationship with the mother from 2021, but agreed that the two of them were “just having sex and going out on occasions”. He then agreed that he did stay over at the mother’s house and attended family events with her and the children. He then seemed to agree that they were in a relationship but said “the actual sex and that” did not start until around or after July 2021. He agreed that between July and 22 September when the proceedings had last been before the Court he had slept over at the mother’s place on about 10 occasions.
Mr C agreed when asked whether he had a criminal history. When asked what his criminal record consisted of he said:
…It consists of an AVO from 2019, a drug possession charge from 2012, I think maybe, and driving offences in between. Mainly driving offences. I think there was a – maybe an assault charge from 2010 and there’s a few other things in there that I can’t quite remember.
He confirmed that in his mind most of his offending was “driving related”.
When asked about his record of assault charges, Mr C agreed that there was a charge which arose from an incident (in 2010) at a pub. He was also taken to the reference to an AVO in 2019 (which I understand to mean the ADVO) and agreed that this related to his previous partner. When asked whether the proceedings were actually significantly much more than just an AVO, Mr C agreed that “it was a domestic violence incident”. When it was suggested to him that in the incident in question he punched his former partner in the face, Mr C denied that this was the case. He did, however, agree that he was convicted of the charge of assaulting his former partner occasioning her actual bodily harm. When asked if he had entered a plea of guilty in relation to that charge, Mr C said that he did so “upon legal advice”. He then agreed that he had entered a plea of guilty “on the statement of facts” but when asked whether that statement of facts included him punching his former partner in the face a number of times with a closed fist, he conceded that was the case, but said that “it’s not exactly what happened”.
When asked whether he had advised the mother of his conviction for assaulting his former partner occasioning her actual bodily harm, Mr C said that he did not. When questioned why he had not informed her of this, he said “I didn’t think it was necessary to discuss my personal information”. He went on in answer to another question to say:
Well, it was a previous relationship, and I didn’t think that it had any – any right to be involved in what is currently going on. So I didn’t feel the need that she had to know about my personal relationship with my ex-partner. I didn’t – I thought that might have been disrespectful to my ex-partner.
Mr C confirmed that he did not see in his mind that a new partner had a right to know the fact that he had engaged in an act of violence towards a former partner. He later conceded that he may not have spoken to the mother about the ADVO made against him arising out of the same incident. He reiterated that there were certain things that he did not “like to discuss with people who don’t need to know”, adding that these matters are “very personal information to be discussing with other people”. Mr C also agreed that he did not tell the maternal grandparents about his criminal history and the ADVO.
Mr C’s criminal history, which was tendered as an exhibit revealed numerous criminal convictions from 2008 and 2019 including for damaging property, assault, numerous driving offences including drink driving, possessing a prohibited drug, having goods in custody reasonably suspected of being stolen and a number of counts of driving while disqualified. That record also records the conviction for assaulting his former partner and mother of his children in January 2019 for which he received an 18 month Community Corrections Order which expired in December 2020.
When further cross-examined in relation to the 2019 assault on his former partner, Mr C agreed that his three children were in the house at the time of the assault and that one of them was in the same room when it occurred. The ADVO made against Mr C for the protection of his former partner only expired in June 2021. He said that he had not seen his children since this incident in 2019.
When cross-examined later about the current state of their relationship, Mr C said that he and the mother were “friends at the moment” and later said “we’re not intimate at the moment”. When asked about the change in the relationship, he said that the mother called him on 1 October 2021 and “told me that she could no longer see me...that we could no longer be, you know, dating” and that he accepted this. He later clarified that he had “no idea” as to whether the mother had called the relationship off permanently or why she had done so. He said that the relationship is something he would like to pursue once the court case finished if the mother wanted that to occur. When asked whether it was possible or not for the two of them to have a relationship in the future, he said that he was “hoping” for that.
Mr C confirmed under cross-examination that he and the mother “still had chats” between 1 October and the date on which he gave evidence and that they had spoken “through messages and that”. When asked whether that communication was still quite regular and whether it occurred by text message or phone calls, Mr C said “it’s both” and that he had probably spoken to the mother about four times since she called it off.
Mr C agreed that he had seen the mother face to face on 1 October when she returned his tools that he had left at her house and that he had also spoken to the mother on the phone of 14 November 2021 (four days before the hearing). Mr C was unable to explain why he had specific memory of the dates in question. Mr C denied meeting the mother in afternoon of 8 November and denied driving her mother’s car on that occasion.
Mr C was cross-examined about the location from which he was giving evidence via video link and nominated his sister’s unit, being an address at which he said he currently lived. He then described the premises and the specific room from which he was giving evidence being “my room” which he then referred to as “the spare bedroom”. It was then put to Mr C that contrary to his evidence he was not at those premises to which he agreed saying, “no, I’m not. I’m at my friend’s place”. When asked the address of his friend’s place, Mr C answered “I would rather not state that”. It was then put to Mr C that he was at another particular nominated address to which he agreed. He further agreed that he was at that nominated premises at 5pm the previous night and that the mother was also there at that time.
Immediately after these answers were given in conclusion of Mr C’s evidence, the mother was recalled by her counsel. The mother was taken to earlier evidence she had given on the same day to the effect that she did not communicate with Mr C by text message. When asked whether that evidence was not truthful, the mother answered “not entirely” and then agreed that she had continued to communicate from time to time with Mr C by text message. The mother was then reminded of her evidence about the occasions on which she had communicated with Mr C since the date on which she said they had separated. She agreed that Mr C had given correct evidence when he said that she was present at the address from which he was giving evidence on the previous day, and said that she had seen Mr C on that day for about two hours. The mother agreed that she did not give evidence about meeting with Mr C for about two hours the previous day when she was asked about her relationship with Mr C.
It was the mother’s evidence that the purpose for her visit to Mr C the previous day was to deliver her brother’s laptop computer to Mr C so that he could give evidence via video link in the proceedings. She agreed under cross-examination that it did not take her the two hours that she was with Mr C the previous day to deliver the laptop.
Under further cross-examination when asked about why she had chosen not to inform the Court that she had seen Mr C the previous day, the mother said that she did not know and that “it was a stupid mistake” .
Under further cross-examination by the ICL, the mother agreed that she knew Mr C was giving evidence from the place at which she had visited him the previous day rather than from his sister’s home. She agreed that this meant that she knew from the start of Mr C’s evidence that he was also lying to the Court.
The Family Consultant’s evidence concerning the risk posed by Mr C
When she was cross-examined the family consultant was informed that it had come to light in the mother’s oral evidence and Mr C’s evidence that the person the father referred to when assessed (as being an old acquaintance with whom the father believed the mother was in a relationship) is indeed Mr C. The family consultant was also informed of the evidence of Mr C and the mother to the effect that from around July 2021 they had rekindled their previous relationship, that both agreed the relationship was sexual in nature and that Mr C had stayed at the mother’s home over at least a period of a couple of months on about 10 occasions with the children in the home.
The family consultant was also informed of the other relevant evidence in relation to Mr C including that in 2019 he had committed a serious assault on his former partner when his three children were in the home and one of the children was present in the room during the assault. She was informed of the effect of Mr C’s evidence in relation to his offending and Mr C’s view that such matters were nobody’s business and that he did not bring either the offence or the existence of an ADVO to the mother’s attention out of respect for his former partner.
The family consultant was also appraised of the mother’s clear and repeated evidence that she sees no concerns herself about Mr C and could not really understand why the Court was concerned to a significant extent about him. The family consultant was also informed about the evidence that although the mother and Mr C were not currently in a relationship, they certainly hold out the possibility, or in the case of Mr C the hope that the relationship will be re-established.
The family consultant confirmed that all of those facts give rise in her view to another domain of risk in the mother’s care. She said the following in relation to that risk:
…So I guess what we know about family violence is that it often occurs as part of a pattern. So if someone has a history of family violence offending, the – the chances of that occurring again are certainly increased and so the children being exposed to a relationship where there is a high risk of family violence is a concern for a number of reasons. It is a concern that there has not been any serious discussion or consideration of that risk by the mother, whether because she wasn’t aware of the risk or – in which case, I would be concerned that [Mr C] hadn’t raised it with her which, once again, suggests that he hasn’t taken full responsibility for past behaviours and is at risk of repeating it. Or if that has been – if the mother has been made aware of that but has not considered that a concern, then that would worry me that she may not recognise if that pattern was occurring and that the children might be exposed to that. In terms of the impact of the children being exposed to family violence, there are the direct impacts – the trauma of being exposed to a situation where they potentially see their mother placed at risk of harm, where they might be fearful that she will be seriously hurt or even killed or might be removed from them is very concerning. So the violence that occurred in front of children previously would fit that category. But there’s also a wider dynamic that tends to go along with relationships that do become physically violent in that there is often also a strong pattern of coercion and aggression that occurs around that, and that allows the physical violence to – to ultimately happen. And sometimes, even if children aren’t exposed to incidents of physical violence, the fearfulness and anxiety caused by the coercive behaviours translates to a fearfulness and anxiety for the children and can cause serious disruptions to their mental health, can cause serious disruptions to their relationships with their parents. And so if – if there was a likelihood that there were to be residing in a house where such a relationship was at risk of occurring, I would be very worried about their safety.
The family consultant said that this additional information and her opinion about this added risk strengthened her recommendation that the children would be better off living in the father’s household if that risk was found to be a concern to the Court. She said the matters would also cause her to suggest that some protections be put in place to ensure that the children were not exposed to family violence if they were to spend time with the mother.
The family consultant added that the question of whether an injunction against the mother bringing the children into contact with Mr C would be sufficient to protect the children would depend upon the mother’s willingness to acknowledge that there was a difficulty or potential problem and cooperate with that.
When cross-examined about her opinion in relation to the risk posed by Mr C, the family consultant agreed that it is positive that no evidence was adduced that during a two year relationship between Mr C and the mother between 2010 and 2012 that the relationship “involve[d] violence”. The family consultant did not consider that the absence of evidence concerning violence between the mother and Mr C when their relationship was rekindled in 2021 was similarly positive when she said the following:
[The mother’s counsel]: And the relationship having been rekindled in – I think it was July this year. There’s no evidence of any violence of abusive behaviour from [Mr C] towards [the mother]. Do you understand that? And those things are positive so far as [Mr C’s]s matters concerning any family violence exhibited towards [the mother]; correct?
[The family consultant]: It would be unusual for violence or overt violence to occur at the commencement of a relationship, so I would say if it was a short relationship, certainly recently, it doesn’t necessarily signify much.
When further questioned about whether a restraint on the children coming into contact Mr C would be an alternative to the children moving to live with the father to mitigate the risk posed by Mr C, the family consultant reiterated that such a restraint would be an alternative if the Court was unsatisfied (this appears to be a typographical error) that such a restraint would be respected. The family consultant then asked the following:
[The mother’s counsel]: Well, boys are old enough to tell their father if it doesn’t happen, aren’t they? (sic)
[The family consultant]: I would say probably no. They’re of an age where there’s still significant room for – well, I would say any child who’s under the care of a parent is significantly open to influence and coercion, but particularly their very young age, so I wouldn’t say that they would necessarily tell their father if that occurred.
Having given this answer, the family consultant also agreed to a question put by myself that an expectation in the father that the children would report to him any such contact between the mother and Mr C would raise the risk of interrogation of the children whenever they returned to him, which brings with it the potential to further embroil the children in the dispute. The family consultant also agreed that such a restraint is not only an alternative to a change in the children’s residence but should also be made even if the children are spending significant time with the mother if the Court makes a finding about the existence of a risk posed by Mr C.
Findings concerns the risk posed by Mr C
Having heard all of the evidence including cross-examination prior to reserving my decision, I am easily satisfied that should the mother resume her relationship with Mr C this circumstance would give rise to an unacceptable risk that the children may be harmed by exposure to family violence for the following reasons.
The mother’s trial affidavit was silent in relation to Mr C notwithstanding that the possibility of her being in a relationship with him had been raised by the father when assessed by the family consultant. When the mother did depose to the existence and then the termination of that relationship the timing of each of her affidavits raises some concerns about whether she was giving an accurate and complete account. Moreover and of particular significance, she was on her own admission untruthful when giving oral evidence about her communication with Mr C and occasions on which she had met with him after she deposes that the relationship had ended.
I also attach weight to the unchallenged evidence of the family consultant in relation to the increased risk posed by a person who has previously committed acts of family violence.
I further consider it particularly weighty that the mother’s lack of insight into the risks of harm posed by Mr C as a perpetrator of family violence was demonstrated in her persistent lack of concern about this matter.
Mr C has also in my view failed to take responsibility for his family violence. Under cross‑examination he first omitted to mention his conviction for assaulting his former partner when asked about his criminal record. When he was asked about his plea of guilty to the offence he replied that he had only done this “on legal advice” and did not agree that the Statement of Facts upon which he was sentenced revealed the true circumstances of his offending. He also continued to maintain in these proceedings that his conduct was a personal matter, which he did not feel necessary or appropriate to bring to the attention of the mother, maternal grandparents or this Court.
In a general sense, neither the mother nor Mr C could understand why this Court would have particular concern about Mr C and his conduct in intimate relationships in these proceedings.
Mr C’s engagement in family violence is not in my view a historical matter in the past as both the mother and Mr C seem to insist. It is to be remembered in this regard that the ADVO made against Mr C for the protection of his former partner was still extant at around the time the mother’s relationship with Mr C recommenced in mid-2021 and as a result of his offending he has not resumed his relationship with his children.
In all of the foregoing circumstances, and particularly attaching weight to the family consultant’s evidence, I am satisfied that there is a risk of harm arising from exposure to family violence posed by Mr C to the children should the relationship between the mother and Mr C be rekindled. Further, in my view the magnitude of this risk would be raised to an unacceptable level if the children were to live with the mother for so long as she was in a relationship with Mr C.
The relationship between the orders sought and the evidence
In the circumstances of this case, the mother, who was represented at the final hearing by an experienced and able counsel, must have been acutely aware that the question of her ongoing relationship with Mr C and Mr C’s ongoing involvement with the children was a central issue in the dispute.
At the completion of the evidence and in the course of submissions about each party’s final proposal there could be no doubt that the issue of Mr C and his ongoing involvement with the children (together with contentions about the mother’s alleged undermining of the children’s relationship with the father) formed the basis of the orders sought by the ICL and adopted by the father.
At the completion of the evidence, the ICL formulated a proposed Minute of Order (“the ICL’s final proposal”) containing orders which if made would see the father have sole parental responsibility for the children provided that he consult with the mother about decisions to be made in exercise of that sole parental responsibility. Pursuant to the ICL’s final proposal, the children are to live with the father and spend no time with the mother for a period of one month following the making of the orders. The children’s time with the mother is then proposed to occur each week for a block period of four hours and increase to reach an end-point after a further two months of six hours each alternate Sunday and for a block period of six hours at Christmas time alternating between Christmas Eve and Christmas Day. There is no provision in this proposal for the children to spend overnight time or holiday time with their mother. The ICL also seeks that the Court restrain the mother by injunction from bringing the children or either of them into contact with Mr C.
After ICL’s final proposal was marked as an exhibit, I engaged in oral interchange with the ICL’s counsel in which I expressed some surprise at the extreme nature of the orders proposed. The ICL then conceded through counsel that orders, which provide for a much more meaningful involvement of the mother in the children’s lives may be considered proper and in the children’s best interests having regard to the evidence.
Almost immediately after the ICL’s final proposal was made known to the Court, the father through his lawyer adopted this proposal in its entirety.
At the commencement of final submissions made on her behalf, the mother adopted some of the ICL’s proposed orders including in particular, that she be restrained from bringing the children or either of them into contact with Mr C. In her final proposal, the mother sought orders that the parents equally share parental responsibility for the children, that the children remain living with her and that they spend time with the father each alternate weekend for four nights (from Friday afternoon until Tuesday morning), for half of the school holidays and on special days. Of significance, the mother was no longer seeking an order that the children’s time with the father occur in the absence of his wife or that he be restrained from allowing communication or contact between the children and his wife.
It had been the mother’s contention from the commencement of the proceedings in 2019 and up until final submissions made on her behalf that there was a need to protect the children from harm from being subjected to sexual abuse in the father’s household. It had been her case that it was the father’s wife who posed the risk of such abuse and from whom the children required protection. In the course of final submissions, it became apparent that the mother no longer contends that such a risk is present in these proceedings and the orders proposed by her provide for fulsome overnight time between the children and their father including overnights and holiday time in his household.
The mother’s understanding of the final proposal of the ICL adopted by the father can also be gleaned from submissions made on her behalf at the end of the hearing. In particular, it became clear in the course of the proceedings that the greater risk of harm to the children was present in the mother’s household rather than with the father. A particular concern arose about the need to protect the children from harm arising from exposure to family violence if the mother were to continue her relationship with Mr C.
The mother’s case, which became apparent in the course of submissions is that if the Court does find that Mr C poses such a risk of harm to the children the restraint upon her from bringing the children into contact with him to which she has agreed will be sufficient to protect them.
It was central to the submissions of the ICL and the father that the Court could have no confidence that the mother would abide by such a restraint if made, particularly given the dishonesty of both herself and Mr C in these proceedings. The father continued to contend that the risk posed in the mother’s care in this regard is so great that the children’s time with her is required to be limited and not include overnights in addition to the protection that will be afforded by the proposed restraint on the children’s contact with Mr C.
Although the ICL accepted in the course of submissions that other arrangements such as the children having more significant time with the mother may equally be consistent with the children’s best interests, the father continued to promote the orders originally framed by the ICL. In particular, he pressed for orders that the children’s time with the mother remain limited to a maximum of a six hour block period each alternate weekend. It is central to the position of the father in particular that orders for such limited time with the mother are necessary in circumstances where the Court could not be satisfied that the mother was no longer in a relationship with Mr C or if that relationship were to be rekindled, that she had insight into the risks posed by Mr C and was genuinely committed to complying with the restraint on permitting the children to come into contact with Mr C.
In other words a critical issue from the perspective of both the father and ICL is whether the mother was still in a relationship with Mr C at the completion of the evidence and /or whether the mother and Mr C were likely to rekindle that relationship as soon as the proceedings were complete or any other time in the future.
The additional evidence - reopening of the proceedings
In light of the parties’ proposals and their contentions in support of those proposals as explained, it can be seen that the question of the mother’s ongoing relationship with Mr C and Mr C’s ongoing contact with the children is one of the most salient issues in these proceedings.
The father’s recent affidavit relating to this issue
According to the father’s affidavit sworn 15 June, in mid-January 2022, two months after judgment was reserved, there was an occasion of concern when the children were spending time with him. On this occasion, when he was getting the children ready to return to the mother he deposes that the older child became anxious and repeatedly asked not to take him back and tried to hide under his bed. When the father questioned this child about this matter the child became increasingly upset and started to cry. The child then told the father that Mr C “has tantrums” and when asked by the father what this meant, the child said words to the following effect:
He has tantrums and mummy has to drive him back to another house. I always have fights with him because he said mean things about you and [the father’s wife] and he got so angry he threw his work boot at me and mummy had to yell at him to stop. I was kicking him and I was so angry
According to the father’s affidavit, the older child reported that the mother and Mr C are “always fighting” and that Mr C “broke mummy’s bedroom door”. The younger child then came into the room and told the father “every time mummy and [Mr C] fight we have to hop into the car and drive [Mr C] to another house far away”.
The father deposes that when he asked the children if they wanted him to talk to the mother to make sure that everything would be ok, both children immediately protested. The older child started to cry and said “no no no, I will get into so much trouble” and the younger child said “[Mr C] isn’t there anymore now”.
According to the father’s affidavit, the paternal grandmother conducted the changeover on that occasion into the mother’s care and told the father that she had asked the mother about the older child’s allegations. He deposes that the paternal grandmother said the mother denied them and said that Mr C “has not been back after that argument with [the older child]”.
The father deposes that on another occasion, in April 2022 the older child asked the father to “beg mummy so that we can have a sleepover”, telling him that “I don’t want to go back to mummy’s because we have to go to our room and listen to [Mr C] and mummy fight” and that “they always fight because he lives there”.
The father also deposes to another occasion in around April 2022 when he returned the children to the mother’s home at the maternal grandparent’s property and Mr C was sitting on a chair at the premises. He further deposes that on 8 June 2022 at a nominated time and place he saw the mother driving a car with Mr C in the passenger seat.
Another matter that the father refers to in his affidavit is the younger child’s reports to him that the mother “is having a baby”. This child told the father that “it’s mummy and [Mr C]’s baby but it’s not being born until after my birthday in three months”.
The father deposes that subsequently, on 2 June 2022, he saw the mother and she was noticeably pregnant, a matter which he also observed two days later at changeover.
On 11 May 2022, the father instructed his lawyer to write to the mother’s lawyer seeking clarification in relation to the mother’s relationship with Mr C and details regarding the birth of the baby. The ICL was copied into the correspondence and on the same date sought an urgent response to the email from the mother’s lawyer. After eight days when there was no response to the father’s letter, the father’s solicitors wrote again to the mother’s lawyer on 19 May 2022 requesting the same information.
On 25 May 2022, the ICL wrote to the mother’s lawyer again seeking her response and indicated that unless the response is forthcoming she would invite the father to consider his position in relation to whether the matter required further judicial attention. Later the same day, the mother’s solicitor advised she was in the process of obtaining the mother’s instructions.
The following day, 26 May, the mother’s solicitor filed a Notice of Ceasing to Act. The father’s lawyer then wrote to the mother directly seeking an urgent response to the matters raised in the emails of 11 and 19 May 2022, and putting the mother on notice that if no response was received by close of business the following day the father’s lawyer would be seeking the father’s instructions to file an Application in a Proceeding.
The mother did not respond to any of the correspondence sent to her solicitor or to her directly and had not taken further actions or filed any document herself until the application to reopen the proceedings was listed before me on 20 June 2022.
Although the mother who was representing herself initially opposed the reopening of the proceedings, ultimately she consented to the proceedings reopening on the basis that she wished to cross-examine the father in relation to his affidavit concerning the new evidence and also wished to file an affidavit from herself and Mr C in the reopened proceedings. As indicated, she opposed the father’s oral application for a variation of interim orders.
The application
The orders made by the Court as sought by the father are that pending completion of the further hearing on 15 July 2022 the father have sole parental responsibility for the children, that the children live with him and that commencing from Sunday 3 July 2022 the children spend time with the mother between 10am and 4pm each alternate Sunday. Further orders were made in relation to the father collecting the children from school, for changeover and for the mother to provide certain information in relation to the children’s health to the father’s lawyer. He also sought the restraint on the mother from bringing the children into contact with Mr C.
As indicated, the mother opposed the application to vary the interim orders and sought for the current interim arrangements to continue, whereby the children live with her and spend time with the father for eight hours each alternate Sunday supervised by the paternal grandparents. In the event that the Court were to make orders for the children to live with the father, the mother sought that the children spend time with her in her words “as much as possible”. In her proposal (if the Court were to order that the children move to live with the father) she specified that the children’s time with her occur after school until 7pm each Monday and Thursday and each Sunday from 10am to 7pm and that she may communicate with the children by phone on Tuesdays and Fridays. Of significance, the mother agreed on a final basis to an order restraining her from bringing the children or either of them into contact with Mr C and accordingly this order was made with her consent.
The Objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The Court is to make such parenting orders that are considered proper (s 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of a child as the paramount consideration.
In determining that the interim orders proposed by the father and supported by the ICL were proper having regard to the best interests of the children as the paramount consideration, I had regard to the following matters under s 60CC of the Act.
The primary considerations – s 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The interim orders sought by the father provide for the children’s meaningful relationships with both parents to be fostered and respond to the need to protect the children from harm arising from being subjected to and exposed to family violence, being the only domain of harm of the type in envisaged under this consideration in these proceedings.
So far as the children’s meaningful relationships with both parents are concerned, although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[2] The orders made which provide for the children to spend six hours of time with the mother each alternate weekend amount to an arrangement that will foster the children’s meaningful relationships with her.
[2] McCall & Clark (2009) FLC 93-405; Mazorski & Albright [2007] FamCA 520 at [26].
Throughout the entire proceedings, the mother had pursued a case that the father and/or his wife posed a risk of harm to the children. However, in final submissions made on her behalf it was indicated that she did not seek a finding that there was any unacceptable risk of harm in the father’s household and she proposed orders that would see the children spend substantial and significant time with the father and share parental responsibility for the children with him.
It was the father’s case throughout most of the proceedings and was certainly made very clear by the close of the evidence, that he considered that Mr C posed an unacceptable risk of harm to the children should the mother continue to be in a relationship or rekindle her relationship with him, arising from the children’s exposure to family violence, a matter with which the ICL agreed. The father’s concerns which prompted this application for a variation in interim arrangements escalated on the basis of the additional evidence contained in his recent affidavit. That evidence is to the effect that the children have in recent months been exposed to aggressive and abusive behaviour from Mr C directed to the mother which had caused the children to become fearful and anxious and in the case of the older child, he had also been subjected to family violence at the hands of Mr C.
This application is for a variation of interim orders and ordinarily a court is unable at an interim stage to make any findings but nonetheless must assess the likelihood of contentions with respect to risk. However, in these proceedings I am able to make findings in relation to the evidence in the final proceedings as it has been fully tested and final submissions have been made in regard to it. In this respect, for the reasons given and set out in paragraphs [68]-[75] I am satisfied that should the mother resume her relationship with Mr C and the children remain living with her they will be placed at an unacceptable risk of harm arising from their exposure to or being subjected to family violence.
When the evidence was completed in November 2021, it was submitted on behalf of the father that the Court could not be satisfied that the mother’s relationship with Mr C had ended. In particular, he relied upon mother’s untruthfulness to the Court in relation to her contact with Mr C after the date on which she says the relationship ended. Further, the father also relied on his unchallenged evidence that he had seen the mother and Mr C in each other’s company on three occasions after the date upon which they were said to have separated. The father now also relies upon the evidence in his recent affidavit to the effect that the children have reported upon Mr C’s presence in the mother’s house, the mother’s pregnancy and information reported by the children that Mr C is the father of that child. The father also deposes in his recent affidavit to having seen the mother and Mr C in each other’s company and that Mr C was seen at the maternal grandparent’s home on another occasion in recent months.
While the mother appears to suggest that she will challenge the father’s evidence in relation to these matters under cross-examination and through a further affidavit, it is to be noted that despite having indicated that she would challenge evidence of a similar type given at the final hearing the father was not cross-examined about this evidence.
I understand that the mother who was also evidently pregnant at the court event on 20 June does not propose challenging that this is the case or that Mr C is the father of her unborn child.
On the basis of the foregoing new evidence, I consider that real questions do arise as to whether the mother had separated from Mr C on 1 October 2021 as she previously contended. While not making a positive finding at this stage I also consider it likely that I will find that this relationship either continued or was rekindled after 1 October 2021. As is clear from these Reasons as a whole, I consider this a weighty matter in relation to the need to protect the children from physical and psychological harm from being subjected to or exposed to family violence.
Additional considerations
The children’s views about their future parenting arrangements have not been sought since judgment has been reserved. In any event, even if they were expressed such views would carry little if any weight having regard to the children’s age and the most significant issue in these proceedings being the need to protect the children from harm.
It can be taken from the orders proposed by the mother when judgment was reserved that she accepts the children have a close and beneficial relationship with the father and have had the opportunity for more developed relationships with other members of the father’s household through interim orders in place over the previous 20 months. There is also no doubt that given the pattern of care for these children throughout their lives that their primary attachment relationships are with their mother.
The most salient of the additional considerations and upon which the mother made particular submissions is the likely effect of changes in the children’s circumstances including the likely effect on the children of separation from her under the father’s proposal.
There is no doubt that the change effected by the orders as proposed by the father is significant for these children who have lived primarily with their mother since parental separation when they were very young. They have also had limited time with their father in recent years.
The family consultant, whose evidence was tested in the proceedings opined that the father’s relationship with children was warm and supportive and she had an expectation that he would be able to support the children with any distress arising from a sudden change to their residence. The general tenor of the family consultant’s evidence was that it would be probably detrimental for the children to be separated from the mother for a long period of time though she added that a period of some weeks or a month “might assist in containing the initial distress that could be problematic for them if they spend time with her immediately”. The father in this application did not press for any period in which the children should spend no time with the mother, though the ICL submitted that there should be a short period before that time commenced to assist the children in settling into their new arrangements.
Under cross-examination when further information was provided to the family consultant about the presence of Mr C in the mother’s life and the matters related to his family violence, the family consultant opined that the added risk posed by Mr C would strengthen her recommendation that the children would be “better off” living with the father. In her opinion the risks posed by Mr C also necessitated that protections be put in place to ensure the children were not exposed to family violence if they were to spend time with the mother.
When considering the likely impact upon of the children of such a change in their living arrangements and the father’s capacity in this regard the family consultant agreed to suggestions by the mother’s counsel that the children would experience grief and emotional stress from such a change. The family consultant reiterated, however, that in her opinion the father would be well placed to support the children provided he engages in a parenting course to assist him in identifying and supporting the children with their emotional needs. She also opined that the children would benefit from counselling to help them understand the changes and support them while they developed a new routine and adjusted to a new environment.
The mother also made a submission related, as I understand it, to the capacity of the father to provide for the children’s needs including in particular special medical needs and their need for a routine and structure in their life. It was suggested by the mother that these matters arose from both children’s diagnoses of Attention Deficit Hyperactivity Disorder (“ADHD”).
In my view, this was a curious submission as at final hearing there was virtually no evidence in relation to that matter. The only evidence in this regard came to light in cross-examination of the mother for the first time, being that the older child had been diagnosed with ADHD in September 2020. The family consultant said under cross-examination that she thought that issue was being examined at the time she assessed the family but could not recall whether this child had received a definitive diagnosis. Having been informed that this diagnosis had been confirmed, the family consultant said that this matter probably would not affect her recommendations. The family consultant also questioned the extent to which this child’s behaviour (which she noted as giving rise to some concerns at the time) was related to a diagnosis of ADHD and whether some of this behaviour was related to other stressors that were also present.
Further, in relation to the mother’s submissions about the father’s capacity to care for the children, it is also to be remembered that the orders proposed by the mother at the end of the final hearing in November 2021 include that the children spend substantial and significant time including block periods of half of the school holidays with the father. The mother cannot in this application to be taken to contend that the father does not have the capacity to be the primary carer for the children.
In my view, another salient matter in this application relates to the poor attitude to the responsibilities of parenthood demonstrated by the mother in relation to the new evidence concerning the question of her relationship with Mr C and his ongoing contact with the children.
In this regard, I consider it to the father’s credit that he did not withhold the children at the end of his time with them on the occasions that the children raised concerning matters about Mr C or when he had seen the mother and Mr C together. He also gave the mother ample opportunity to respond to the legitimate matters of concern by writing to her on a number of occasions through her lawyer and later with the mother directly. The mother provided no explanation even in the course of representing herself in the hearing (and it is difficult to imagine any reasonable explanation) for her failure to respond to the father’s enquiries about the significant issues he raised which also ought to have been brought to the attention of the Court.
The ICL in particular submitted that this Court should attach weight to the mother having been on notice about the father’s concerns for some time and her conscious decision not to address those matters and avoid engaging with him. I accept the submission that the mother’s conduct in this regard raises questions about her veracity in relation to the ongoing relationship with Mr C and his conduct and about her continual efforts to protect Mr C and to prioritise her relationship with him over the children.
I accept the submission of the ICL that the more expansive time with the children sought by the mother if they were to move live with the father could be destabilising and upsetting for the children. This is particularly so, when there was significant evidence given in the proceedings about the negative view of the father and his family members in the mother’s household and the detrimental impact this had had upon the children and their relationships with the father.
Conclusion
As explained, in making the interim orders I had regard to each of the parties’ submissions at the completion of the evidence, the matters about which I am able to make findings and my assessment of risk in relation to those matters which have yet to be tested. I am satisfied that if the mother is an ongoing relationship with Mr C, for all of the reasons given, this raises an unacceptable risk of harm for the children should they remain living with the her. I consider that there is a real possibility that the mother was in such a relationship when the judgment was reserved in November 2021 and if the father’s new evidence is accepted I will be satisfied as to that matter. The additional evidence if accepted also raises a greater magnitude of risk for the children for it includes an allegation that the older child has been subjected to family violence by Mr C as well as being exposed to it.
I am not satisfied that the time the mother proposes for the children to spend with her if they move to live with the father is proper or in their best interests. Having regard to all of the foregoing, I was satisfied that it was in the best interests of the children for orders to be made as sought by the father and supported by the ICL.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 22 June 2022
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