Clay and Jennings & Ors
[2016] FamCA 204
•4 April 2016
FAMILY COURT OF AUSTRALIA
| CLAY & JENNINGS AND ORS | [2016] FamCA 204 |
| FAMILY LAW – CHILDREN – Where the first respondent is the mother of the two subject children – Where the applicant is the biological father of the eldest child – Where the second respondent is the biological father of the youngest child – Where the applicant initially sought orders in relation to only the eldest child – Where the second respondent was subsequently joined as a party to the proceedings and the youngest child was made a subject of the proceedings – Where the NSW Department of Family and Community Services intervened in the proceedings and was allocated parental responsibility for both children on an interim basis FAMILY LAW – CHILDREN – Best Interests – Where the eldest child did and does derive benefit from his meaningful relationship with the mother, though much less benefit than he should ideally derive – Where there is no relationship of any sort between the eldest child and the applicant and the eldest child believes the second respondent is his father – Where the eldest child is closely attached to the second respondent – Where the youngest child has meaningful relationships with the mother and second respondent, from which she derives benefit – Where the eldest child is in need of protection from psychological harm by his exposure to the applicant’s commission of family violence upon the mother – Where the re-introduction of the applicant into the lives of the mother and eldest child would probably overwhelm the mother’s capacity to cope – Where the risk the second respondent poses to the children through their subjection to sexual or physical abuse is relatively low – Where a pivotal issue was the mother’s parenting capacity, particularly in relation to the eldest child – Where it was improbable the mother had the ability to improve her parenting capacity through intensive therapy – Where the Department and Independent Children’s Lawyer proposed the removal of both children from the mother’s care – Where the single expert’s opinion that only the eldest child should be removed from the mother’s care is accepted as correct – Where there is no appreciable risk of harm for the youngest child in the mother’s care – Youngest child to remain living with the mother – Where if the present situation remains unchanged the mother poses a fairly strong risk of psychological harm to the eldest child –– Eldest child to live with a carer delegated by the Department – Eldest child to spend time with the mother and the youngest child for six weekends each year, after an initial embargo period – Where occasional written communication between the mother and eldest child is permitted – Where otherwise the mother, applicant and second respondent are restrained from approaching the eldest child FAMILY LAW – CHILDREN – Parental Responsibility – Minister to have parental responsibility for the eldest child – Where it is in the best interests of the youngest child for the mother and second respondent to have equal shared parental responsibility for her |
| Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 164 Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 67ZC, 68B, 91B, 114, 121 |
| A & A (1998) 22 Fam LR 756 Birch & Gough & Minister for Health Family & Children’s Services NT [1998] FamCA 1945 D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443 Fenton & Barrett & Ors [2009] FamCA 569 H & K [2001] FamCA 687 H & R [2006] FamCA 878 Hennessy & Rhys [2007] FamCA 160 Marriage of Sedgley (1995) 19 Fam LR 363 Re Andrew (1996) 20 Fam LR 538 Schmidt & Schott & Ors [2008] FamCA 447 V & V [2001] FamCA 78 |
| APPLICANT: | Mr Clay |
| 1ST RESPONDENT: | Ms Jennings |
| 2NDRESPONDENT: | Mr Trevor |
| INTERVENOR: | Secretary of the NSW Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi |
| FILE NUMBER: | NCC | 376 | of | 2014 |
| DATE DELIVERED: | 4 April 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 14, 15, 16, 17 & 18 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carty |
| SOLICITOR FOR THE APPLICANT: | Catalyst Family Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Sundstrom |
| SOLICITOR FOR THE 1ST RESPONDENT: | Derham Houston Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Gorton |
| SOLICITOR FOR THE 2ND RESPONDENT: | Craney Family Solicitors |
| COUNSEL FOR THE INTERVENOR: | Mr Hunt |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi |
Orders
All former orders relating to the following children (“the children”) are discharged:
(a)B, born … 2011 (“B”); and
(b)C, born … 2014 (“C”).
Orders for B
The Minister for Family and Community Services NSW shall have parental responsibility for B.
B shall live with the person/s directed by the Minister (or his delegate).
Unless agreed otherwise, commencing in and from August 2016, the Minister (or his delegate) and the first respondent shall take all reasonable steps to ensure that B spends time with the first respondent and C on the first full weekend of each alternate month, from 9.30 am on Saturday until 4.30 pm on Sunday.
For the purpose of implementing Order 4 hereof, the Minister (or his delegate) shall deliver B to the first respondent at the commencement of the visit and collect B from the first respondent at the conclusion of the visit.
The Minister (or his delegate) and the first respondent shall take all reasonable steps to ensure that B is able to communicate with the first respondent in the following manner:
(a)By the first respondent being able to send letters, cards, and/or gifts to B via the Minister (or his delegate) on or about dates proximate to B’s birthday, Mother’s Day, and Christmas Day, and
(b)By the Minister (or his delegate) sending to the first respondent any letters, cards, photographs, or other written communication B wants conveyed to the mother and/or C on or about the same dates.
Other than with the consent of the Minister (or his delegate), the applicant, first respondent, and second respondent are each restrained from attending at or within 200 metres of:
(a) B’s residence;
(b) B’s school; or
(c) Any venue at which B participates in an extra-curricular activity.
The Minister (or his delegate) shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the applicant’s paternity of B and that a fresh birth certificate issues for him disclosing the applicant’s paternity.
The Minister (or his delegate) shall notify the applicant and first respondent of any medical emergency suffered by B warranting medical treatment by a third party and shall authorise any treating health professionals to communicate with the applicant and first respondent about his condition and treatment.
Orders for C
The first respondent and second respondent shall have equal shared parental responsibility for C.
C shall live with the first respondent.
Orders for both children
The applicant, first respondent, and second respondent are each restrained from:
(a)denigrating any other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any other party; and
(b)causing or permitting the infliction of corporal punishment upon the children.
Leave is granted to the first respondent and the Minister (or his delegate) to furnish to any therapist engaged to provide therapy to the first respondent, B, or C:
(a)A copy of the single expert report of Dr D, dated 2 August 2015; and
(b)A copy of these reasons.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clay & Jennings & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 376 of 2014
| Mr Clay |
Applicant
And
| Ms Jennings |
First Respondent
And
| Mr Trevor |
Second Respondent
And
| Secretary, NSW Department of Family and Community Services |
Intervener
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parenting orders that should be made in respect of two young children, now respectively aged 4 years and 11 months and 1 year and 6 months. All aspects of their care were in dispute.
The first respondent (“the mother”) is the mother of both children.
The applicant is the biological father of only the eldest child.
The second respondent (“the respondent”) is the biological father of only the youngest child.
While the litigation was pending before the Federal Circuit Court, as a result of concerns raised about all parents, the Secretary of the NSW Department of Family and Community Services (“the Department”) joined the proceedings as a party after accepting an invitation to do so pursuant to s 91B of the
Family Law Act 1975(Cth) (“the Act”).
An Independent Children’s Lawyer was also appointed to act in the children’s interests.
History
The applicant and the mother began a tumultuous relationship in 2007, which ended sometime in late 2010 while the mother was pregnant with the eldest child.
Not long afterwards, the mother met and formed a relationship with the respondent. Their relationship was in existence when the mother gave birth to the eldest child in 2011. The youngest child was born in 2014. The relationship between the mother and respondent still subsists and they wish to maintain a family unit with the two children.
These proceedings were commenced by the applicant in February 2014, some 12 months after his release from prison, for the purpose of securing orders which would permit the eldest child to spend time with him. The mother was, and has remained, highly resistant to the applicant’s proposal.
The proceedings, as between the applicant and mother in respect of only the eldest child, were listed for trial before the Federal Circuit Court in March 2015. The trial was aborted and the proceedings were adjourned when the Court was informed that documents which had been produced on subpoena revealed the respondent’s past conviction and sentence for the sexual assault of a child. At that time, the respondent was not a party to the proceedings and the youngest child was not a subject of the proceedings.
Since the respondent was then living with the mother and both children, the Department was consequently invited to intervene and interim orders were made restraining the mother from allowing the eldest child to remain in the presence of the respondent. The respondent therefore vacated their household.
Within the next few months, the Department intervened in the proceedings, the respondent was joined as a party, and the youngest child was also made a subject of the proceedings.
Further interim orders were made in June 2015, providing for the Department to have parental responsibility for the children and for the children to live and spend time with the parents in the manner determined by the Department. In the exercise of such parental responsibility, the Department determined that the children should continue to live with the mother. The Department allowed the youngest child to spend supervised time with the respondent, but decided against allowing the eldest child to spend time with the applicant.
The Federal Circuit Court procured a Family Report in December 2014 but, once the trial was vacated in March 2015 and the proceedings changed complexion, a single expert psychologist was appointed. The single expert report was released in August 2015 and the proceedings were then transferred to this Court. Procedural orders were made in November 2015 and the matter proceeded to trial in March 2016.
Proposals
Each party abandoned the orders they formerly proposed in the proceedings and instead pressed for orders contained in Minutes of Orders they tendered during final submissions.
The mother proposed that she have sole parental responsibility for both children, that both children live with her, and that the children spend no time with the applicant.[1] She proposed no orders in respect of the respondent, since she expected he would resume residence with her and the children so they could reform their family unit.
[1] Exhibit M1
The mother proposed an alternate fall-back position, in the knowledge her preferred position was under challenge. It entailed the Department having parental responsibility for both children for 12 months, during which time the children would live with her under the Department’s supervision, after which time parental responsibility for them would revert to her.
The respondent harboured the same desire as the mother to reform their family unit, but he sought slightly different orders. He wanted the interim injunction restricting his interaction with the eldest child lifted and another order made expressly providing for both children to spend time with him (preferably unsupervised, but otherwise supervised) pursuant to agreement between him and the mother.[2]
[2] Exhibit R2
The Department ultimately proposed alternative orders, depending upon whether the Court found the children to be at unacceptable risk of harm in the mother’s care (as the Department contended),[3] or not.[4]
[3] Exhibit D5
[4] Exhibit D6
Preferably, the Department wanted parental responsibility for both children, enabling removal of the children from the mother and their placement in foster care. The Department proposed that the children would be permitted some supervised interaction with the mother, applicant, and respondent, but only at its discretion. The Department also sought various injunctions against the other parties.[5]
[5] Exhibit D5
Alternatively, the Department sought different orders in respect of the youngest child, but not for the eldest child. The Department proposed having sole parental responsibility for the youngest child for two years, after which parental responsibility for her would revert to the mother. It was apparently intended the youngest child would live with the mother during that interim period, under the Department’s supervision, and that her interaction with the respondent would be at the Department’s discretion.[6]
[6] Exhibit D6
The Independent Children’s Lawyer supported the Department’s proposals in all respects.
The applicant also supported the Department’s proposals in all respects, though he tendered a separate minute.[7] The applicant only expected the eldest child to spend supervised time with him at the Department’s discretion but, even though he started these proceedings to secure orders compelling the mother to allow the eldest child to spend time with him, he eventually proposed no orders at all for the eldest child to see or communicate with him if he remained living with the mother. The applicant confirmed that was not an oversight.
[7] Exhibit A3
Evidence
The applicant relied upon his affidavit filed on 12 February 2016 and, with the consent of the other parties and Independent Children’s Lawyer, the affidavit of his mother (Ms Clay) filed on 4 March 2015.
The mother relied upon her affidavit filed on 23 February 2016. She was granted leave to rely upon the evidence of her adult daughter (Ms E),[8] but did not do so.
[8] Order 7(b) made on 27 November 2015
The respondent relied upon his affidavit filed on 22 February 2016. He was granted leave to rely upon the evidence of his mother (Ms F),[9] but did not do so, despite her interview by the single expert.[10]
[9] Order 8(b) made on 27 November 2015
[10] Single expert report, paras 4.3, 12
Leave was initially granted to the Department to rely upon only one affidavit of its casework manager,[11] but with the consent of the other parties and the Independent Children’s Lawyer, the Department relied upon:
(a)The two affidavits of its caseworker, Ms G, filed on 16 February 2016 and 10 March 2016; and
(b)A redacted copy of the affidavit of Ms H, filed on 18 February 2016, which was tendered as an exhibit because it differed in content from the affidavit in its filed form.[12]
[11] Order 9 made on 27 November 2015
[12] Exhibit D1
The Independent Children’s Lawyer and all parties also relied upon:
(a)The Family Report dated 22 November 2014; and
(b)The single expert report of Dr D, psychologist, dated 2 August 2015.
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Best interests – primary considerations
Section 60CC(2)(a)
Section 60CC(2)(a) of the Act requires consideration of the nature of a child’s relationships with both “parents” and the benefit the child does or could derive from those relationships.
In the case of the eldest child, his parents are the applicant and mother. As for the youngest child, her parents are the respondent and the mother. The nature of the children’s relationships with their parents is best assessed individually.
The mother
The eldest child was observed by the Family Consultant to be happy and comfortable in the mother’s presence.[13] The single expert also observed the eldest child’s interaction with the mother to be loving and caring and she regarded their psychological attachment to be “secure”.[14] Against that evidentiary background, it was inferentially accepted that the eldest child enjoys a meaningful relationship with the mother, but the question of whether he actually derives benefit from that relationship remained divisive.
[13] Family Report, para 66
[14] Single expert report, paras 9.2, 17.1(h)
Following the Department being granted parental responsibility for the children on an interim basis in June 2015, the mother was referred for consultation with Ms H, a senior counsellor and social worker in the employ of the Child Protection Counselling Service within the NSW Department of Health. She conferred with the mother on several occasions between September and November 2015.[15] The stated purpose of the Department’s referral of the mother to Ms H was for:[16]
…counselling [to] be provided [to the mother] to enhance [the mother’s] attachment with [the eldest child]
[15] Exhibit D1
[16] Exhibit D1, page 10
Those consultations with the mother engendered some concern on the part of Ms H, which she communicated to the Department.[17] She then generated a report that addressed different criteria from the terms of the referral to her. The report she prepared had the expressed purpose of:[18]
…assess[ing] the mother’s…willingness and capacity to engage in counselling to address the identified ‘risk of significant harm’ concerns in relation to the subject children.
[17] First affidavit of Ms G, para 65
[18] Exhibit D1, page 10
Ms H ultimately concluded in her report: first, the eldest child was at risk of harm through exposure to the applicant;[19] secondly, both children were at risk of harm through exposure to the respondent;[20] and thirdly, the eldest child was at risk of “emotional and psychological harm” as a result of his “poor attachment” to the mother.[21] The first two of those asserted risks presented by the applicant and respondent are ripe for consideration under s 60CC(2)(b) of the Act but only the latter of those three asserted risks is relevant to
s 60CC(2)(a) of the Act.
[19] Exhibit D1, page 18
[20] Exhibit D1, page 18
[21] Exhibit D1, page 19
Analysis of Ms H’s opinion about the nature of the attachment between the eldest child and the mother largely focussed on the mother’s perceived lack of parenting capacity, which feature of the evidence is addressed separately under s 60CC(3) of the Act. For present purposes, it is sufficient to record that
Ms H concluded the eldest child derived little benefit from his meaningful relationship with the mother, which was the reason why the Department advocated for orders removing him from her residential care. The Department worried the same defect would soon infect the youngest child’s attachment to the mother, which was why the Department also advocated for orders removing her from the mother’s residential care.
There was some commonality, but also some contrast, between the opinions of Ms H, the single expert, and the Family Consultant about the benefits of the eldest child’s relationship with the mother.
The Family Consultant did not express any view about the benefit derived by the eldest child from his relationship with the mother, but implicitly accepted he did because, in November 2014 when she was last involved, there was no challenge to the notion the eldest child should remain resident with the mother.
By the time of the single expert’s involvement, in July 2015, the mother’s parenting capacity was firming as a contentious issue in the proceedings. It was the subject of separate investigation and evaluation by the Department. The single expert observed loving interaction between the eldest child and the mother and considered them to have a secure psychological attachment, though she did not conduct a “comprehensive parenting assessment”.[22]
[22] Single expert report, para 17.1(f)
By November 2015, Ms H concluded the eldest child’s attachment to the mother was “damaged”, which if true, meant the eldest child did not derive the benefit he desirably should from that filial relationship. She was pessimistic the situation could be improved and frankly concluded:[23]
…[the mother] presented as hostile and closed.
…[the mother] is unable and unwilling to address the child protection concerns through engaging with this service.
[23] Exhibit D1, pages 17, 21
By the time the single expert was cross-examined at trial, she had read
Ms H’s report and it became obvious her own opinions about the mother and the eldest child were influenced by Ms H’s opinions. The single expert said she regarded the eldest child’s attachment to the mother to be “poor”, which was the phraseology adopted by Ms H in her report[24] and was an opinion not easily reconciled with her initial opinion of a secure psychological attachment between them.
[24] Exhibit D1, page 19
The dispute over the eldest child’s aberrant behaviour and the mother’s competence to control it eventually seemed to distil to a difference of perception about cause and effect. On the one hand, the Department, Independent Children’s Lawyer, and applicant considered the eldest child’s aberrant behaviour was caused by his “damaged” attachment to the mother, which was attributable to her impaired parenting capacity. On the other hand, the mother and respondent considered the eldest child’s aberrant behaviour caused the mother’s exasperation and inability to cope with him.
There was some support in the evidence for both theories but the preponderance of evidence supported the position advocated by the Department, Independent Children’s Lawyer, and applicant, which had the broad support of the single expert and Ms H. The single expert described it being “like a chicken and egg situation”, where the eldest child’s behavioural problems were not entirely caused by the mother’s poor parenting, but were exacerbated by it, and he could not improve without more sophisticated parenting skills than the mother has been able to provide. She described them having fallen into an “escalation trap” where their reactions to one another’s behaviour compounded the problem.
On balance, the evidence favoured a conclusion that the eldest child did and does derive benefit from his meaningful relationship with the mother, but it is much less benefit than he should ideally derive. Accordingly, the imperative of his continued residence with the mother waned as an influential consideration.
As for the youngest child, the single expert described her interaction with the mother as loving and caring.[25] She reported the youngest child was positively attached to the mother,[26] though she inconsistently said in cross-examination she did not assess the attachment between the youngest child and the mother. Significantly, the Department caseworkers regarded the youngest child as having a “positive attachment” to the mother.[27] Ms H did not disagree with that assessment. In fact, she expressly abstained from commenting. She saw the youngest child in the mother’s company and reported she appeared to be a “happy toddler exploring her surroundings with confidence and curiosity”, though she recommended separate assessment of the youngest child because her report concentrated upon the eldest child.[28]
[25] Single expert report, para 9.2
[26] Single expert report, para 14.1
[27] First affidavit of Ms G, pages 40, 106
[28] Exhibit D1, page 20
In final submissions, the Department drew attention to some off-hand remarks made by the respondent in December 2014 questioning the attachment between the mother and youngest child,[29] but the respondent’s inexpert psychological opinions carry no weight. Consequently, for the purposes of the proceedings, it was really an uncontroversial fact the youngest child has a meaningful relationship with the mother from which she derives benefit. That consideration powerfully militated in favour of retention of her residence with the mother.
[29] Exhibit D3, page 36
The evidence therefore generated a curious dichotomy in the quality of the children’s respective attachments to the mother. Ms H and the single expert were cross-examined about how, simultaneously, the eldest child could have a “damaged” attachment, and the youngest child a “positive” attachment, to the mother. If the supposed explanation for the “damaged” attachment was the mother’s underlying impaired parenting capacity, she brought the same parenting skills to bear upon her care of both children, yet her alleged impairment did not impinge upon the attachment the youngest child was able to develop with her.
In her report, Ms H attributed the “damaged” attachment to:[30] the violence the mother suffered at the hands of the applicant, her pregnancy with the eldest child being unwanted, and the eldest child’s male gender.
[30] Exhibit D1, page 19
In cross-examination, Ms H attributed the “damaged” attachment to: the mother’s adverse violent experiences with the applicant during her pregnancy, the eldest child’s male gender, and the eldest child’s aberrant behaviour.
The single expert explained in cross-examination how the eldest child was the product of her regretted relationship with the applicant and he repeatedly reminds her of the applicant, through both his appearance and his unruly behaviour. For example, the mother told Ms H the eldest child inherited his behavioural problems from the applicant and “hates women just like his father”,[31] which comments the single expert found concerning. The mother also admitted that people do not like telling her the eldest child looks like the applicant,[32] presumably because she reacts badly to the observation. The mother also admitted she has had “flash backs” to her assaults by the applicant when the eldest child hits her.[33] The single expert said the eldest child reminds the mother of what she experienced at the hands of the applicant, which distresses her. As a consequence, the child does not feel “secure and supported” by the mother, inferentially because he feels repelled by her when she associates him with the applicant. Ms H similarly said the eldest child needed to feel “safe and liked”.
[31] Exhibit D1, page 17
[32] Exhibit D3, page 30
[33] Exhibit D3, page 30
The broadly similar explanations offered by Ms H and the single expert for the eldest child’s “damaged” or “poor” attachment to the mother withstand logical scrutiny and imbued their evidence with probative force. During cross-examination, the mother actually conceded her own perception that she has a better relationship with the youngest child than with the eldest child, though she believes she pays equal attention to both.
The applicant
The applicant only ever saw the eldest child once in his life. That occurred when the child was only about three months of age in July 2011.[34] For that reason, the Family Consultant decided against introducing them in an observation session over three years later in November 2014.[35] The same decision was taken out of the single expert’s hands because, when she consulted with the family members in July 2015, the applicant was in gaol.[36]
[34] Family Report, paras 6, 46, 66
[35] Family Report, para 66
[36] Single expert report, para 4.4
There is no relationship of any sort between the eldest child and the applicant. The applicant conceded he was a complete stranger to the eldest child, who believes the respondent is his father.[37]. Consequently, the question that arises under s 60CC(2)(a) of the Act in respect of the eldest child is whether steps should now be taken to allow him to develop a meaningful relationship with the applicant so as to enable his derivation of benefit from that biological connection. The answer to that question is influenced by other considerations, including: if the eldest child remains living with the mother, how the strong quasi-filial relationship that already exists between the eldest child and the respondent would then be affected and how the introduction of the applicant into the eldest child’s life would affect the mother; the applicant’s parenting competence; how the re-introduction would be achieved if the eldest child was in foster care; and the importance of the eldest child knowing his biological origins, either now or when he later acquires the maturity to understand. Those other considerations are addressed under s 60CC(3) of the Act.
[37] Family Report, para 64; Single expert report, paras 13.11, 17.1(a)
The respondent
The nature and importance of the eldest child’s relationship with the respondent is not a primary consideration under s 60CC(2)(a) because the respondent is not his parent, but it is still an important consideration and is addressed under s 60CC(3)(b)(ii) of the Act.
The youngest child was not the subject of any comment by the Family Consultant when she conducted observations in November 2014 because the youngest child was not then involved in the litigation. Nor did the single expert observe the youngest child in the company of the respondent in July 2015,[38] no doubt because the interim orders made by the Federal Circuit Court in March and June 2015 restricted the youngest child’s association with the respondent. As a result, the nature of the youngest child’s relationship with the respondent was not the subject of any direct expert evidence.
[38] Single expert report, para 14.1
However, the Department’s caseworkers observed and reported to the single expert that the youngest child had a “close relationship” with the respondent and that their “attachment” is positive.[39] It was not suggested the youngest child’s relationship with the respondent was anything other than important and valuable to her and that she derives benefit from the relationship. The relationship between them should therefore be promoted, unless it would thereby expose the youngest child to the risk of some form of harm, which is a consideration under s 60CC(2)(b) of the Act.
[39] Single expert report, para 15.3; First Affidavit of Ms G, pages 16, 19, 22, 40, 42
Section 60CC(2)(b)
A vast amount of evidence was adduced by the parties to address various risks of harm they contended threatened the safety of the children. The evaluative task is easier if the alleged risks are considered separately.
Risk of exposure to family violence
Despite the applicant’s disinclination to accept responsibility for it, there can be little doubt he behaved brutally towards the mother over the duration of their relationship. The whole of their relationship was a continual cycle of violent confrontation and temporary reconciliation, against which background the mother felt a generalised sense of victimisation and vulnerability.
The mother told the Family Consultant the applicant harassed her incessantly. She said he telephoned her up to 70 times in one night, stalked her, broke into her house several times, smashed her telephone if she tried to call police, scattered her underwear across the front lawn, physically assaulted her, forced her to have sex with him, and threatened to burn her house down while she and her older children were inside.[40] She was not challenged about the truth of those allegations, so I accept them as truthful.
[40] Family Report, paras 49, 57-59
It was uncontroversial the applicant was the subject of several apprehended violence orders (“AVO”) for the protection of the mother. The applicant said to the Family Consultant that the mother may have been frightened if he “threw a chair or punched a wall”,[41] which admission offered an insight into the violence that pervaded their relationship. Several incidents, though, were the subject of more specific evidence and none was the subject of contest.
[41] Family Report, para 55
In August 2008, the parties argued and the applicant refused to leave the mother’s home. The police were summoned to eject the applicant and an AVO was subsequently made against him for a period of two years.[42]
[42] Mother’s affidavit, paras 21-22; Family Report, para 60
In March 2009, the applicant attended the mother’s home, abused her, and damaged her property. The applicant was charged with, and convicted of, destruction of her property and contravention of the AVO, for which he was ordered to perform community service work and given a suspended prison sentence of nine months.[43]
[43] Family Report, para 60; Exhibit R1, page 5
In September 2009, the applicant physically assaulted and verbally abused the mother in her home while still subject to the AVO. The mother sustained injuries for which she was treated in hospital. The applicant was arrested, charged, and remanded in custody with bail refused for several months.[44] In January 2010 he was convicted of breaching the AVO, but no further penalty was imposed upon him,[45] presumably because of the time he had already spent in custody on remand.
[44] Mother’s affidavit, paras 23-24; Family Report, paras 27, 60
[45] Exhibit R1 (pages 5-6)
In July 2010, the applicant secretly entered the mother’s home while she was asleep. The police were called and he was again charged with breach of the AVO, for which he was convicted and sentenced by way of fine and imposition of a good behaviour bond.[46]
[46] Family Report, para 61; Exhibit R1, page 6
In November 2010, the applicant attended the mother’s home and a fight ensued during which the applicant assaulted her by strangling her and punching her head. He also knelt on, and held a knife to, her pregnant stomach. The mother was admitted to hospital for treatment over several days, as it was thought her pregnancy may have been compromised.[47] The applicant gave a different version of the event,[48] but it was common ground he was charged with numerous offences for which he was convicted and sentenced. Following his successful appeal against the severity of the original sentences, he was imprisoned for about 12 months between February 2012 and February 2013.[49]
[47] Mother’s affidavit, paras 32-52; Family Report, paras 62-63
[48] Applicant’s affidavit, paras 32-37
[49] Exhibit R1, pages 6-7; Applicant’s affidavit, paras 53, 56
The applicant’s violent conduct was not just directed towards the mother. He has multiple other convictions for resisting police arrest, intimidating police, assault, destruction of property, use of offensive language, contravention of AVOs concerning other victims, and stalking.[50] As recently as June 2015, the applicant was convicted and sentenced to imprisonment for assaults committed upon his most recent domestic partner.[51] He was not released on parole until the weekend before the trial commenced in March 2016.[52]
[50] Exhibit R1
[51] Exhibit R1, pages 9-10; Mother’s affidavit, para 92
[52] Applicant’s affidavit, para 1
The applicant told the Family Consultant the altercation in November 2010 was the only incident between them in which he physically assaulted the mother, but he still only acted in self-defence.[53] He could not have acted in self-defence, for otherwise he would not have been guilty of assaulting the mother. He was minimising his responsibility, just as he minimised his responsibility for assaulting his most recent partner by his mundane account of that incident and his denial of guilt, despite his eventual guilty plea.[54] He seemed not to appreciate the illogicality of admitting guilt for criminal conduct in one court and then denying guilt for the same incident in another court. The single expert also found that he minimised his culpability and described him as a dissimulator.[55] The Family Consultant thought the applicant lacked insight and empathy for the mother, which impaired his parenting capacity.[56]
[53] Family Report, paras 5, 24, 26, 28
[54] Applicant’s affidavit, paras 83-90
[55] Single expert report, para 8.28
[56] Family Report, paras 70-71
The mother’s violent experiences with the applicant are indelibly etched in her memory and now permanently affect her attitude towards him. She is scared of him and worried for the eldest child’s safety if he spends time with the applicant. Her worry has caused her weight loss, physical illness, and to shake at the prospect of his presence.[57] The applicant said in cross-examination the mother had no reasonable basis to be scared of him, but his denial of the obvious was either disingenuous or incredibly guileless. She has very good reason to be fearful of him. Even if she did not, I accept her fear is genuine. She elected to seek an exemption from having to claim child support payments from the applicant for the eldest child, despite her need for financial assistance; such was her desire to eliminate him from their lives. She refuses to disclose her address and contact details to the applicant and his mother.[58]
[57] Mother’s affidavit, paras 56, 73, 79-82, 85-87, 118-119; Family Report, para 47
[58] Family Report, para 11
Any order in respect of the child that would increase the chance of the mother and applicant meeting face-to-face would expose the mother to an unacceptable risk of family violence committed upon her by the applicant (s 60CG(1)(b)). If the eldest child was to remain living with the mother, any order that
re-introduced the applicant to their lives could not be tolerated by the mother. She told the Family Consultant she could not handle “the chaos and constant fear” of that eventuality, which the Family Consultant seemed to accept as truthful.[59] That confession was wholly consistent with the mother’s presentation in evidence. The re-introduction of the applicant into the lives of the mother and eldest child would probably overwhelm the mother’s capacity to cope and cause the disintegration of the children’s residence with the mother. The need for tranquillity in her household would strongly militate in favour of an order precluding the eldest child from spending time with the applicant in any event (Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; A & A (1998) 22 Fam LR 756 at 768-769; V & V [2001] FamCA 78 at [54]; H & K [2001] FamCA 687 at [36]-[38];
H & R[2006] FamCA 878 at [44]-[53]).
[59] Family Report, para 74
The eldest child is in need of protection from psychological harm that he would suffer from being exposed to the applicant’s perpetration of family violence upon the mother (s 60CC(2)(b)), which finding the applicant admitted during final submissions. The risk of such harm could be attenuated by ensuring that any time spent by the child with the applicant is professionally supervised and the child could be presented to and collected from the applicant without the mother’s direct involvement, but that would still not abate the mother’s dread.
If the eldest child instead lives in foster care, the risk of harm posed to him by the applicant still exists, albeit in a different form. The eldest child would not then be at risk of exposure to family violence committed between his parents, but during any unsupervised visits with the applicant he would be exposed to the applicant’s hostility towards others.
For completeness, there was no evidence that either child is or was exposed to family violence committed between the mother and the respondent.[60] The mother consistently asserted the absence of any violence between them to the Family Consultant,[61] the single expert,[62] and in evidence,[63] about which she was not challenged.
[60] First affidavit of Ms G, pages 19, 42, 45, 103
[61] Family Report, para 7
[62] Single expert report, para 9.13
[63] Mother’s affidavit, paras 59, 128-129
Risk of subjection to sexual abuse
In early 2005, the respondent was convicted of and sentenced to imprisonment for the sexual assault of his step-daughter in 2004, who was nine years old at the time. It was a heinous offence. In the early hours of the morning, while he was the only adult in the house, he summoned the child from her bed, undressed her, and penetrated her vagina with his penis. The assault was so forceful that the child’s vaginal wall ruptured and she needed emergency surgical care.[64] Indisputably, he deserved condign punishment.
[64] Exhibit D4
Those facts are liable to induce revulsion towards the respondent, but these proceedings need to be determined with calm detachment rather than instinctive resentment. Any impulsive urge to simply label the respondent a paedophile, assume he is incapable of rehabilitation, and make orders permanently eliminating him from the children’s lives should be resisted. The respondent was punished for the offence and our criminal justice system is founded on rehabilitation being a prime objective of punishment. Without any belief in the capacity of prisoners to rehabilitate, public confidence in the criminal justice system would disintegrate.
The evidence adduced in these proceedings needs to be considered on its merits and, just as the facts of the respondent’s crime were incontrovertible, so were the facts of his commendable rehabilitation over the last 12 years. Thorough investigation undertaken by the Department revealed that:
(a)While in prison, the respondent participated in all the sex offender therapy offered and he received positive reviews from the counsellor who provided the therapy to him.[65]
(b)Since his release from prison in 2008, the respondent has not attracted any other attention from the police.[66]
(c)Upon his release from prison, the respondent complied with all reporting requirements and properly disclosed to police all of his relationships with children.[67]
(d)There is no evidence to suggest the respondent engaged in the grooming of any children for sexual abuse since his release from prison.[68]
(e)The mother’s older daughters, who lived with the mother and respondent from 2011 for several years, all reported when they were asked directly that they were not groomed or exposed to sexually improper conduct by the respondent.[69] None of those older children now live with the mother so there was no obvious motivation for them to protect the respondent.
(f)There is no evidence either of the children have been sexually abused by the respondent. They have made no disclosures of sexual harm and do not exhibit any sexualised play.[70]
(g)In the opinion of the Department, the respondent expressed his genuine remorse for the offence, demonstrated “good insight” into his past conduct and its affect upon his victim, and did not attempt to minimise his behaviour.[71]
(h)The respondent is willing to follow the Department’s directions about his submission to any further therapy deemed necessary.[72]
[65] First affidavit of Ms G, page 17, 41
[66] First affidavit of Ms G, page 17
[67] First affidavit of Ms G, page 41
[68] First affidavit of Ms G, page 17
[69] First affidavit of Ms G, pages 17, 45
[70] First affidavit of Ms G, pages 45, 103
[71] First affidavit of Ms G, pages 17-18, 41; Single expert report, para 7.2
[72] First affidavit of Ms G, page 20
In short, the respondent could do nothing more to demonstrate his successful rehabilitation. The Department readily acknowledges the bind in which the respondent is caught: because of the nature of his offence, people doubt his denial of recidivism. But he cannot disprove the existence of any risk at all of his re-offence; he can only continue to prove diminution of the risk by the passage of further time without re-offence.[73]
[73] First affidavit of Ms G, pages 18, 21
In June 2015, when the Department first assessed the risk of the children sustaining harm through sexual abuse by the respondent, the conclusion was only that the children “may” be at risk and the risk was rated at “moderate”.[74] It was not until Ms H furnished her report in December 2015 that the Department altered its attitude and asserted the risk posed by the respondent was more pronounced than it first thought. It was clear the change of attitude was entirely dependent upon Ms H’s advice because nothing had changed since the earlier assessment in June 2015. The respondent had been excluded from the family home by the interim orders made in March 2015, he was not seeing the eldest child at all, and was only seeing the youngest child under supervision.
[74] First affidavit of Ms G, pages 38, 41
The opinion of Ms H on that issue was, however, starkly different from the opinion of the single expert. The single expert’s opinion, at least on that particular issue, was more persuasive than Ms H’s opinion for several good reasons. First, Ms H never met the respondent, so in reaching her conclusions about him she was entirely reliant upon the contents of documents provided to her and the content of her discussions with the mother. Secondly, the qualitative assessment of any risk of harm posed to the children by the respondent was not part of the Department’s remit to Ms H, so she was venturing uninvited into that area of inquiry. Thirdly, she was not ostensibly called as an expert witness by the Department,[75] so any opinion she offered should defer to the expert opinion evidence of the single expert who was engaged by the parties expressly for that purpose. Fourthly, the single expert logically, forcefully, and convincingly defended her opinion on that topic in cross-examination. Fifthly, Ms H asserted in cross-examination that the “complex trauma” suffered by the eldest child was, in part, his actual or possible exposure to sexual grooming by the respondent, which assumption was flatly contradictory to the information given to her by the Department and therefore undermined the reliability of her evidence in respect of that issue.
[75] Exhibit D1, paragraph 13
The single expert independently formed the view that the respondent expressed “extreme remorse” for his behaviour, did not minimise his responsibility, and had deep concern for the harm he caused his victim.[76] She administered psychological tests to him and, in reliance upon the results, opined he was a “low risk” of re-offending, either in a general sense or more specifically by the sexual abuse of a minor.[77] She went so far as to conclude:[78]
…I do not consider that the children are at risk of sexual…harm if they live with or spend unsupervised time with [the mother] and [the respondent].
[76] Single expert report, para 11.13
[77] Single expert report, paras 11.24-11.35
[78] Single expert report, para 17.1(b)
I am not prepared to reach such an absolute conclusion. Nor, it transpired, was the single expert. She clarified in cross-examination she was not contending the absence of any risk at all. Rather, she considered the risk of harm he posed to the children to be low.
The respondent’s criminal conviction for such a heinous sexual abuse of a child necessarily means the risk of harm he poses to children could never be confidently eradicated, but sufficient time has passed and sufficient proof of his rehabilitation was adduced to permit a rational conclusion that the level of risk he poses to the children is relatively low. There is no need to eliminate the respondent from their lives for their protection. Nor is there any need to ensure that their interaction with the respondent is supervised, which conclusion the single expert expressly supported.[79]
[79] Single expert report, para 17.1(o)
Risk of subjection to physical abuse
The evidence proved the mother previously smacked the eldest child as a form of discipline, but she denied the discipline was excessive and she has since reverted to use of other disciplinary strategies. She was not contradicted. Staff at the eldest child’s day-care centre confirmed he had never been seen with injuries.[80] There is no evidence the youngest child was smacked by either the mother or respondent. They employ other disciplinary strategies with her.[81]
[80] First affidavit of Ms G, pages 46, 102
[81] First affidavit of Ms G, pages 17, 42
It was not ultimately contended that the children were in need of protection from harm caused by subjection to physical abuse by the mother.
However, in final submissions, the applicant contended that at least the eldest child was at risk of harm through:
…the possibility of the respondent psychologically decompensating and acting out in a violent manner [sic].
I reject the submission, which was founded upon flimsy evidence about the respondent’s state of anxiety over the perceived hardships in his life.
The respondent ruined his life by the sexual assault he committed in 2004, which is to say nothing of the harm he visited upon his victim, members of her family, and members of his own family. It was a mistake he cannot erase from history. He knows he must always live with his regret, shame, and stigma. Understandably, he is troubled by it and has occasionally made past oblique references to suicide. The fact he has not suicided, despite the passage of some 12 years since the offence and now regards himself as being in a committed relationship with the mother, suggests he is quite stable.
The respondent was exasperated during an interview with the Department caseworker in February 2016 and left the room in a manner that exhibited his exasperation – perhaps even anger – but that is hardly good reason to conclude he is a danger to the children. For the past year he has been forbidden from living with the mother, eliminated from the eldest child’s life, restricted from involvement in the youngest child’s life, and his mistakes, foibles, and characteristics have been picked over in intricate detail by caseworkers, lawyers, and other experts. He, like the mother, is relatively unsophisticated and so it is little wonder he is fed up. As the Independent Children’s Lawyer submitted, intermittent episodes of anger are not the same thing as intermittent incidents of violence. Anger itself is not antithetical to competent parenting, for otherwise almost every parent would be disqualified from parenthood.
Risk of serious psychological abuse
Since amendments to the Act in June 2012, “abuse” in relation to a child has been defined to include conduct that causes the child to suffer “serious psychological harm” (s 4(1)), which has implications for the application of
s 60CC(2)(b) of the Act.
The Department and Independent Children’s Lawyer both contended the mother’s conduct towards the eldest child caused him serious psychological harm and her conduct therefore constituted “abuse”, worthy of consideration as a primary factor under s 60CC(2)(b) of the Act. The applicant submitted the mother’s conduct amounted to “neglect” of the eldest child’s psychological needs and was therefore a primary consideration under s 60CC(2)(b) of the Act for a different reason.
In present circumstances it is unnecessary to engage in debate about how to precisely define the causal link between the mother’s conduct and the eldest child’s behaviour. That is because the issue emerged as pivotal in the proceedings, regardless of whether it is considered under ss 60CC(2) or 60CC(3) of the Act. As already indicated, the issue centres upon the mother’s parenting capacity and so it is convenient to deal with it under s 60CC(3).
Best interests – additional considerations
As earlier mentioned, the eldest child regards the respondent as his father. It was the unchallenged perception of both the mother and the respondent that the eldest child’s behaviour deteriorated as a result of his confusion about why the respondent, whom he calls “Dad”, departed their household in about March 2015 and did not return. The child was angry and upset as a consequence.[82]
[82] First affidavit of Ms G, pages 20, 46; Single expert report, para 9.16
When the Department referred the mother to Ms H in September 2015,[83] the referral expressly mentioned that the mother and eldest child were having difficulty coping with the respondent residing away from them in compliance with the interim orders.[84] The Department informed Ms H the eldest child harboured a sense of rejection because he knew the youngest child was able to spend time with the respondent, even though he was not.[85]
[83] First affidavit of Ms G, para 58
[84] Exhibit D1, page 10
[85] Exhibit D1, page 16
In October 2015, Department caseworkers met with the eldest child at his day-care centre and engaged him in conversation about his family.[86] The records of the discussion disclose the eldest child told the caseworkers “One day daddy at home then daddy wasn’t there [sic]”.[87] He was then shown “bear cards” depicting cartoon caricatures of bears expressing different emotions, from which he was invited to pick cards representing his perception of the important figures in his life.[88] For the respondent, he drew a card with happy, open features and told the caseworkers his selection of that card was because “I love him [the respondent]”.[89] The eldest child picked cards for himself and the mother that manifested love and happiness.[90] The eldest child is undoubtedly closely attached to the respondent and is happy and content living in a common household with him and the mother. On the basis of such evidence, the single expert concluded the eldest child had established a “strong attachment” to the respondent.[91]
[86] First affidavit of Ms G, para 64
[87] First affidavit of Ms G, page 68
[88] First affidavit of Ms G, page 70
[89] First affidavit of Ms G, pages 71, 78
[90] First affidavit of Ms G, pages 71, 75, 77
[91] Single expert report, para 16.2
The respondent’s mother is also an important nurturing figure in the children’s lives. The single expert regarded her to be a staunch and willing supporter of the mother and respondent in their joint care of the children.[92]
[92] Single expert report, paras 17.1(f), 17.1(h)
There was no dispute at all about the competence of both the mother and respondent to meet all of the children’s physical and intellectual needs.[93] The dispute centred on the mother’s capacity to provide for the children’s more complex emotional needs.
[93] First affidavit of Ms G, page 18; Exhibit D1, page 16
There was very little evidence to suggest the mother cannot satisfactorily provide for the youngest child’s emotional needs. In fact, Ms H noted there was no convincing evidence of any “behavioural, developmental or emotional concerns” related to the youngest child.[94] There was some brief evidence about the youngest child recently and occasionally replicating the eldest child’s misbehaviour, which the Department implied was the harbinger of increasing damage to the attachment between the youngest child and the mother, but that theory is rejected because it had no firm evidentiary basis. The single expert said such instances of misbehaviour by the youngest child are most probably only instances of her modelling the eldest child’s bad behaviour.
[94] Exhibit D1, page 12
The evidence only demonstrated that the mother could not provide adequately for the eldest child’s emotional needs. However, unlike the youngest child, the eldest child has an underlying condition that pre-disposes him to misbehaviour. It was an accepted fact that management of his behaviour would present a difficult challenge to any parent.
Ms H noted the eldest child’s behaviour and emotional presentation were determined to be “challenging and problematic” when he was only 12 months of age. He misbehaves at home and at pre-school and his misbehaviour resulted in his exclusion from two day-care placements.[95] The mother reported the eldest child chased her with a broom, threw chairs at her, hit her, spat at her, and swore at her.[96] Ms H confirmed the eldest child is aggressive at
pre-school with both teachers and peers by, for example, telling them he will kill them and throwing objects.[97]
[95] Exhibit D1, page 16; First affidavit of Ms G, page 101
[96] Exhibit D3, page 43
[97] Exhibit D1, page 19
In April 2015, the eldest child was diagnosed by a paediatrician as suffering from “Oppositional Defiance Disorder” and “ADHD traits”.[98] The paediatrician reported the eldest child “responded very well to direct attention” and his tantrums had a “strong attention seeking component”,[99] which observations dovetail with the report of the eldest child’s pre-school teacher to Ms H that he “craves[s] attention”.[100]
[98] First affidavit of Ms G, pages 24-25
[99] First affidavit of Ms G, page 25
[100] Exhibit D1, page 19
Unfortunately, the mother finds it difficult to remain upbeat and positive with the eldest child. She is ordinarily critical of and negative towards him, as reported by the respondent[101] and by the pre-school teacher to Ms H.[102] The mother admitted a paediatrician she had previously consulted informed her “it was her parenting that causes [the eldest child] to behave the way he does”.[103] The respondent also told her she needed to improve her parenting style,[104] from which it is evident that his presence in the home and his close relationship with the eldest child was not sufficient to resolve the problem.
[101] Exhibit D3, page 36
[102] Exhibit D1, page 19
[103] Exhibit D3, page 42
[104] Exhibit D3, page 26
Despite such knowledge, the mother could not correct her negativity towards the eldest child, even when under the observation of Brighter Futures staff.[105] Pre-school staff reported seeing the mother treat the eldest child roughly and hearing her regularly say in his presence “I hate him” and call him names like “little cunt”.[106] If the mother’s behaviour towards the child is so uncontained even in public, it would be incredible if it was any better in private. The single expert unsurprisingly said such comments made by the mother to the child, or in his presence, would be “quite harmful” to his sense of self-worth.
[105] Exhibit D3, pages 10, 11, 12, 28
[106] Exhibit D1, page 17; First affidavit of Ms G, pages 101-102
The Department mobilised its services in a laudable attempt to improve the mother’s parenting capacity with the eldest child, but there has been no material improvement over the past 12 months. Staff at the Brighter Futures program, to whom the mother was referred by the Department, found the mother reluctant to engage.[107] She told the Brighter Futures staff she thought the eldest child misbehaved deliberately to test her[108] and the parenting strategies they taught her have not been successfully implemented. By November 2015, Ms H found the mother “unable and unwilling” to accept further education about the predicament.[109]
[107] Exhibit D3, page 72
[108] Exhibit D3, page 49
[109] Exhibit D1, page 21
However, such a conclusion is not entirely consistent with the evidence. The mother has been “willing” to accept the intervention and directions of the Department, doing almost all that was asked of her, but she has proven “unable” to appreciate the problem for what it is and to improve her parenting performance. The mother was compliant with the Department’s directions,[110] albeit perhaps reluctantly, but her parenting capacity remains deficient.[111]
[110] Single expert report, paras 7.2, 7.4, 7.7
[111] Single expert report, paras 13.8, 17.1(m)
The enforced absence of the respondent from the mother’s home over the past year has hindered her ability to cope[112] but, as Ms H explained, that is not the complete answer for her inability to cope with the eldest child.[113] She had trouble coping before the respondent was forced from her household. Similarly, this litigation and financial pressure have compounded her stress and impaired her ability to cope,[114] but that is not the complete answer either because those stressors have only existed more recently and her inability to cope with the eldest child extends back much further.
[112] Single expert report, paras 10.8, 15.1; Exhibit D3, pages 15-16
[113] Exhibit D1, pages 16, 19
[114] First affidavit of Ms G, pages 104-105; Second affidavit of Ms G, page 16
It is, however, important to record that the mother’s parenting capacity is not uniformly impaired. She finds it far easier to parent the youngest child because she has a different temperament. The Department sought to draw a parallel between the degree of tension that crept into the mother’s relationships with her three older daughters[115] and the increasing difficulty she will face parenting the youngest child, but that parallel was no more than idle speculation. The theory had no support from the single expert, Family Consultant, or Ms H.
[115] Exhibit D3, page 49
The inescapable conclusion is the eldest child’s behaviour has pushed the mother’s parenting capacity beyond its boundaries and she does not know how to rectify the problem even though she has received constant tuition for more than a year. In August 2015, the single expert said in her report the mother felt helpless trying to manage the eldest child’s misbehaviour[116] but, by the time of her cross-examination in March 2016, she was disappointed by the mother’s lack of progress. She said the mother was “not coping psychologically” with the task of parenting the eldest child and she had concerns about his welfare if he remained in her care. She said the mother is probably a “good mother” in “many ways”, but lacked the sophisticated parenting capacity to deal with a very troublesome child like the eldest child. If there was no change, the single expert considered the eldest child would remain “disordered”.
[116] Single expert report, para 13.6
The single expert considered more intensive personal therapy could be provided to the mother to help her understand how her parenting style causes the eldest child to feel “sad” and “rejected”, rather than him actually being a “bad child”, but the totality of her evidence revealed her to be “fairly pessimistic” about such therapy being useful. Her pessimism sprang from the acuteness of the problem and its existence for several years. In her view, it was a “severe problem” and it was a “big ask” for the mother to change because she still “doesn’t realise there is a problem that needs to be worked on”. The Department relied on that evidence to submit the mother has no capacity to improve her level of insight and parenting capacity, at least in respect of the eldest child.
The single expert said, if the situation remains unchanged, the mother poses a “fairly strong” risk of psychological harm to the eldest child. He would likely develop serious long-term emotional sequelae that would cause him to have “dysfunctional relationships” for the remainder of his life.
Confronted with the options of leaving both children in the care of the mother (the mother’s proposal) or removing both children from the mother’s care (the proposal of the Department and Independent Children’s Lawyer), the single expert prevaricated but settled on removal of both children from the mother as the best option of the two.
Then, confronted with the options of, on the one hand, removing both children from the mother and, on the other, removing only the eldest child and leaving the youngest child in the mother’s care, the single expert said it would be preferable to remove only the eldest child. She went on to say the eldest child could be better assisted by his individual placement with a more competent carer so more attention could be focussed entirely upon him.
Intuitively, separating two young siblings is not a course to be pursued without very good reason because the relationship between siblings is liable to be one of the most enduring relationships they will each ever experience. However, in the circumstances of this case, the single expert’s evidence is accepted as correct. She competently defended her opinions in cross-examination and the few challenges that were mounted against her evidence quickly dissolved.
Despite adoption of the single expert’s evidence generally, contrary to her more specific advice, the Department argued for both children to be removed from the mother’s care. It was contended the removal of the eldest child without the youngest child would increase the eldest child’s emotional disturbance because he would then perceive himself to be the problem. It is true the eldest child loves the youngest child and she has been a recent constant in his life, but the idea of removing the youngest child from the mother to soften the blow for the eldest child was akin to elevating the importance of his emotional security over hers. The youngest child is just as important as the eldest child. Her emotional stability would be seriously jeopardised by her removal from the mother’s care and there was no justification for it. The Department’s fall-back position for the youngest child to remain with, or be returned to the mother after two years, even though the eldest child would remain in foster care was tacit acknowledgment of the need for differential treatment of the children.
The mother argued the opposite side of the paradigm: that neither child should be removed from her care; but that submission was also repugnant to the evidence of the single expert. The mother contended that removal of the eldest child from her care would not immediately solve his problems. It was likely he would be emotionally disturbed in the short term by the virtual elimination of her and the youngest child from his life and his psychological recovery in an emotionally reparative environment would probably not be realised for a very long time. If he was left to live with her, she could plausibly improve her parenting capacity within the same time it would take for the eldest child to recover emotionally in foster care.
The flaw in the mother’s submission was the improbability of her ability to improve her parenting capacity through the intensive therapy envisaged as necessary. Taking the course of action for which she advocated would be based on only a hope – not a genuine expectation – that she could make the improvements that have so far eluded her. That would be too fragile an evidentiary basis upon which to act. Alternatively, the litigation could be deferred for another year or so to see what becomes of her participation in therapy, but that would keep the children, the parties, and the Department in suspension for another year merely to see whether the mother could then prove what she has already failed to prove over the past year. Absent extraordinary circumstances, litigation is a process that should lead to the impartial and timely decision of the legal dispute (even on an imperfect body of evidence), not a process by which litigants secure independent supervision of their lives by a court until they rid themselves of all their maladies.
The fall-back positions propounded by the parties for only the temporary removal of both children, or alternatively, only the youngest child, were futile. On the available evidence, either the mother was a sufficiently competent parent to retain either the youngest child or both children, or she was not. The evidence was unlikely to become any more or less persuasive with the passage of time.
Conclusions and orders
Parental responsibility
The presumption that a child’s parents should be vested with equal shared parental responsibility for the child is the recognised starting point for the conception of the suite of parenting orders that will govern the child’s future (s 61DA(1)).
For the eldest child, the presumption of equal shared parental responsibility does not apply because the evidence surely proved the applicant perpetrated family violence upon the mother (s 61DA(2)(b)).
The applicant abandoned his former proposal to share in the exercise of parental responsibility for the eldest child, so the allocation of parental responsibility for him was linked to the decision about his residence, which remained a contest between the mother and the Department (or more accurately, its delegated carer).
In respect of the youngest child, for reasons which were never articulated at any point, the mother sought sole parental responsibility for her[117] and the respondent agreed.[118] The Department (with the Independent Children’s Lawyer’s support) wanted exclusive parental responsibility for the youngest child but, in the alternative, was content to return sole parental responsibility for her to the mother after the elapse of two years.[119]
[117] Exhibit M1, Order 2
[118] Exhibit R2, Order 2
[119] Exhibit D5, Order 1(b); Exhibit D6, Orders 3-4
The respondent’s sexual abuse of his former step-daughter in 2004 renders the presumption of equal shared parental responsibility for the youngest child inapplicable (s 61DA(2)(a)), but the absence of the presumption does not preclude an order for equal shared parental responsibility being made if it would serve the youngest child’s best interests.
On the available evidence, the mother and respondent remain in a committed relationship and, although they are currently forced by interim orders to live apart, they both want to resume cohabitation immediately and re-establish their family unit with the youngest child (and also the eldest child). There was no family violence in their relationship, they are each competent to afford satisfactory care to the youngest child, they intend to share her care, and there was no reason to doubt their capacity for co-operation with one another. If the youngest child should remain resident with the mother, then the mother and respondent should have equal shared parental responsibility for her. Otherwise, parental responsibility for her should vest exclusively in the Department.
Residence
On balance, the eldest child should live with a carer delegated for that purpose by the Department and the Minister should have parental responsibility for him. The eldest child does not derive the benefit he should from his relationship with the mother. He needs to live in an emotionally reparative environment, where he feels cherished and secure, which the mother has been unable to provide, even with help in the household from the respondent. Nor has persistent coaching from the Department helped.
In cross-examination, the single expert said that if the eldest child was to be removed from the mother’s care then the earlier the better. The orders provide for an immediate change.
In all probability, the eldest child will be gravely distressed at the change in the short term, because the single expert opined that any uncertainty about, or change to, his living arrangements would likely exacerbate his disruptive behaviour.[120] However, the single expert recommended his removal from the mother’s care knowing that to be the likely consequence, since it would be for his greater good. The single expert did not reverse her earlier recommendation for him to remain with the mother without good reason.[121]
[120] Single expert report, para 17.1(i)
[121] Single expert report, para 17.1(n)
Once parental responsibility for a child is allocated to the Minister in all respects, or at least in respect of the child’s residence, then s 164 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) applies and dictates the Minister’s responsibility to make arrangements for the child’s residence (D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443 at [88], [213]-[215], [216(c)], [216(e)]). It is unnecessary for the Court to make any order about with whom the child should live because that is determined by the Minister as an incident of his exercise of parental responsibility for the child. Nonetheless, for the sake of certainty and because the Department sought it,[122] an order is made for the eldest child to live with the person directed by the Minister.
[122] Exhibit D5, Order 2; Exhibit D6, Order 5
Conversely, on balance, the youngest child should live with the mother. Any concerns about her suffering future psychological harm as a consequence of living with the mother were the product of speculation rather than convincing inference. She has a meaningful relationship with the mother, to whom she is securely attached, from which she derives much benefit. She is not at any appreciable risk of harm in the mother’s care and so, unlike the eldest child, there was no warrant for her removal. The rupture of her residence with the mother would be grossly disturbing to her in the short, mid, and long term.
Nor did the evidence establish any unacceptable risk of harm to the youngest child through her unsupervised interaction with the respondent. Given the exhaustive examination of his past, there is no longer any justification for his exclusion from the mother’s home or for his restricted involvement in the youngest child’s life. The interim injunction against his contact with the eldest child is discharged as he wished,[123] but there is no need for any order regulating the youngest child’s interaction with him,[124] because there will be no impediment to him living with the mother and youngest child.
[123] Exhibit R2, Order 4
[124] Exhibit R2, Orders 5-6
Expenditure of time with mother, respondent, and applicant
Despite the exclusive allocation to the Minister of parental responsibility in all respects for the eldest child, there is no impediment to the Court making supplementary orders about with whom he spends time and communicates. Making orders of that limited kind has been a course adopted by the Court over many years (see Birch & Gough & Minister for Health Family & Children’s Services NT [1998] FamCA 1945; Hennessy & Rhys [2007] FamCA 160; Schmidt & Schott & Ors [2008] FamCA 447; Fenton & Barrett & Ors [2009] FamCA 569) and nothing said by the Full Court in Tran expressly disavowed the practice or power.
Whether or not the Court does proceed to make such supplementary orders confined to those issues is, of course, determined on the facts of the individual case. No such order was proposed by the mother in the event of the eldest child’s removal from her care, but that should not be taken to imply her disinterest in the eldest child. Conversely, the Department did propose orders about whether the eldest child should spend time with the mother and the youngest child, or only the youngest child,[125] though the alternate proposals seemed contradictory. Nonetheless, the Department’s proposals indicate its belief the eldest child should retain his connection with the mother and/or his sibling. It is as well to cure the uncertainty about how and when the eldest child should visit the mother and youngest child with a prescriptive order. In the absence of any such order the matter would be left entirely to the discretion of the Department, in circumstances where its beliefs about the mother’s parenting competence were not entirely vindicated by the findings in this litigation. Such unfettered discretion could be productive of dispute between the mother and Department.
[125] Exhibit D5, Order 3; Exhibit D6, Orders 8-9
An order is made requiring the Department and the mother, in the absence of any contrary agreement between them, to ensure the eldest child spends time with the mother and youngest child for six weekends each year. The order delays the eldest child’s re-introduction to them for four months to give him some respite and enable him to settle in with his delegated carer. The weekend visits are short enough and infrequent enough that it is unlikely any harm will come to him while staying with the mother, even with the respondent present. Those intermittent visits will enable him to retain some connection with the mother and his sibling, which he may later choose to rejuvenate when he is older, without compromising the sanctuary of his new home.
Another order is also made allowing the mother to communicate with the eldest child in writing at or around his birthday, Mother’s Day, and Christmas Day.
No order regulates the prospect of the eldest child’s future re-introduction to the applicant. The Minister is not precluded from facilitating some form of limited interaction between the eldest child and the applicant at some point in the future, but the Minister will presumably bear in mind the single expert’s warning that, at least in the immediate future, such interaction would not be in the eldest child’s best interests.[126] The eldest child’s psychological need for a father figure may have to be met by some other person.[127]
[126] Single expert report, paras 13.12, 15.2, 17.1(b), 17.1(c), 17.1(o)
[127] Single expert report, paras 15.4-15.9
So as to prevent the frustration of the orders about how the eldest child will or might spend time with the parties in future, an order is made restraining the mother, applicant, and respondent from attending at or near his residence, school, or other venue at which he participates in recreational activity. The Department’s proposals for such an order were sensible.[128]
[128] Exhibit D5, Order 7; Exhibit D6, Orders 14-15
Miscellaneous orders
Even though the eldest child will be moved by the Department to live in foster care, it is important for his sense of self-identity to know his biological origins. He knows his mother, but he mistakenly thinks the respondent is his father. The need to correct the misconception about his paternity was not controversial. The only controversy was over when and how the misconception would be rectified. The mother thought he should not be told until he was more mature, which she seemed to think would be around his adolescence. The single expert agreed. She intimated in her report it should be as the eldest child matures,[129] but in cross-examination she said it should be around the time of his adolescence. Ms H was unable to say when it would be best for the eldest child to be informed of his paternity. However, that decision will be made by the Department pursuant to the exercise of the Minister’s parental responsibility. No order is currently needed.
[129] Single expert report, para 16.4
Regardless of when the eldest child is informed of his paternity, his birth certificate should be amended to disclose the applicant as his biological father. An order is made for the Minister to attend to such rectification, just as the Department and applicant both desired.[130] The section of the eldest child’s current birth certificate reserved for the disclosure of the identity of his father remains blank. The mother wanted to keep it that way because she felt the applicant had forfeited his right to be recognised as the eldest child’s father, but that attitude was borne of revenge, not insight into the eldest child’s best interests.
[130] Exhibit D5, Order 9; Exhibit D6, Order 16; Exhibit A3, Order 8
Even though the eldest child will be removed into foster care, the mother and applicant will both still probably want to know of his health and safety. As his biological parents who fought hard to maintain or regain their positions in his life, they have a right to know. No harm could come to the eldest child by them receiving notification of any serious injury or illness he suffers, so an order requires the Department to keep them informed of any such developments.
The injunction restraining the parties from inflicting corporal punishment upon the children and from denigrating other parties in the children’s presence was either expressly sought by one or other of the parties or could not be the subject of rational objection.
The Department and the applicant each sought an order compelling the mother, applicant, and respondent to each attend for urinalysis testing within 24 hours of a request to do so by the Department.[131] No such order is made for three reasons. First, there was no evidence that either the mother or respondent has ever been intoxicated by either alcohol or illicit drugs whilst caring for the children. Secondly, the evidence only proved the applicant’s past insobriety through misuse of alcohol and any future inebriation should be obvious on his presentation to the Department’s delegate anyway. Thirdly, in all probability, the Court lacks power to make a final order in the unconditional terms proposed because it seems not to be a parenting order (s 64B), a child welfare order (s 67ZC), or a permissible injunction (ss 68B, 114).
[131] Exhibit D5, Order 8; Exhibit A3, Order 6
The Department and the applicant each sought an order permitting the provision of certain sensitive documents to various persons – nominated to be the State judiciary and any therapist engaged (presumably by any of them) to assist the mother, applicant, respondent, or the children.[132] No order is made in the terms proposed because, first, s 121(9)(a) of the Act contemplates the publication of the transcript in these proceedings, the orders made in these proceedings, and the reasons published for such orders to the State judiciary in any subsequent child welfare proceedings, and secondly, s 121(9)(f)(i) of the Act contemplates provision of forensic expert reports adduced in evidence in these proceedings to therapeutic experts engaged after the litigation. For abundant caution, an order is made allowing the Department and the mother to publish these reasons and the single expert report to any therapist engaged for the purpose of providing therapy to the mother or the children.
[132] Exhibit D5, Order 10; Exhibit A3, Order 7
The Department proposed that a series of notations be endorsed upon the sealed orders issued by the Court,[133] but no such notations are made. The Court’s orders and the reasons given for them say all that needs be said to quell the controversy.
[133] Exhibit D5, Notation A; Exhibit D6, Notations A-C
I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 4 April 2016.
Associate:
Date: 4 April 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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