Curtis and Percy and Anor

[2019] FamCA 23

FAMILY COURT OF AUSTRALIA

CURTIS & PERCY AND ANOR [2019] FamCA 23

FAMILY LAW – CHILDREN – Best interests – With whom the children live – Where the Department of Family and Community Services (NSW) intervened in the proceedings - Where the children are currently in foster care – Where the children have two older siblings in the care of the Department of Family and Community Services (NSW) – Where the father seeks sole parental responsibility and that the children live with him –Where the mother seeks sole parental responsibility and that the children live with her – Where the mother and father have criminal convictions of a violent nature – Where Apprehended Violence Orders have been made against the father for the protection of child safety officers and others – Where each of the parents present an unacceptable risk of harm to the children and neither of them have the capacity to provide adequate parenting for them – Where the Secretary for the Department of Family and Community Services (NSW) will have sole parental responsibility for the children until they attain the age of 18 years – Where the children will spend no time and have no communication with either parent.

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Faulkner and McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
SCVG & KLD (2014) FLC 93-582
Valentine & Lacerra (2013) FLC 93-539

APPLICANT: Mr Curtis

RESPONDENT: Ms Percy

INTERVENOR: The Secretary, Department of Family & Community Services (NSW)

INDEPENDENT CHILDREN’S LAWYER: Mr Wilkin

FILE NUMBER: LEC 199 of 2008

DATE DELIVERED: 23 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 - 20 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: G J Donaghy & Company Solicitors

COUNSEL FOR THE RESPONDENT: Dr McConaghy

SOLICITOR FOR THE RESPONDENT: Aboriginal & Torres Strait Islander Legal Service

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office (NSW)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Theobald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The Secretary for the Department of Family and Community Services (NSW) (“the Department”) have sole parental responsibility for the children C born … 2013 and D born … 2015 (“the boys”) until they attain the age of eighteen years.

2. The boys live with the foster carers with whom the children F born … 2006 and E born … 2011 live if reasonably practicable or with such other foster carers as determined by the Department and if possible in reasonable proximity to F and E so that they may spend time together.

3. The boys not live with the father, Mr Curtis.

4. The boys not live with the mother, Ms Percy.

5. The father spend no time with the boys.

6. The mother spend no time with the boys.

7. The father be restrained and an injunction hereby issues restraining him from communicating with or approaching the boys or their foster carers either directly or indirectly and from communicating with or approaching or contacting any school attended by the boys from time to time.

8. The mother be restrained and an injunction hereby issues restraining her from communicating with or approaching the boys or their foster carers either directly or indirectly and from communicating with or approaching or contacting any school attended by the boys from time to time.

9. The Department provide a copy of this Order to the boys’ foster carers and the school attended by the boys.

10. The independent children’s lawyer be discharged.   

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtis & Percy and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 199 of 2008

Mr Curtis

Applicant

And

Ms Percy

Respondent

And

The Secretary, Department of Family & Community Services (NSW)

Intervener

REASONS FOR JUDGMENT

1. Mr Curtis and Ms Percy have four children, F aged 12, E aged seven, C aged five and D aged three. F and E have been in foster care since 2011 where they will remain until aged 18 pursuant to an Order made by the Children’s Court (NSW) in August 2012. The current proceedings concern where C and D (“the boys”) live. The boys have been in foster care since 8 February 2018.

2. The Secretary, Department of Family & Community Services (NSW) (“the Department”) intervened in these proceedings in October 2016. The Department has parental responsibility for the boys pursuant to interim orders made by this Court on 16 March 2018.

3. The father contends that he has been the victim of malicious fabrication by the mother, police, child safety officers and others in authority and maintains that he has done nothing to warrant any of his children being placed into foster care.

4. For the reasons which follow I reject the father’s contention and I find that it is in the boys’ best interests for the Department to have sole parental responsibility for them until they attain the age of 18 years and for them to live with persons other than either parent.

issues

1. In determining what parenting order is proper,[1] consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[2]

   [1]Family Law Act 1975 (Cth) s 65D.

   [2] Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.

2. When this matter was set down for trial, the following issues were identified with the assistance of the parties as being relevant to the determination of what parenting order is proper in these proceedings. During the trial, the parties contended that the following issues remained relevant and although neither evidence nor submissions were directed to some of them, I will nevertheless address each one:

   a)Does the father pose an unacceptable risk of harm to the children by reason of violence, sexual abuse, mental illness, drug abuse or his general capacity to provide for the children or his capacity to comply with requirements for supervision and/or assistance with his parenting?

   b)Does the mother pose an unacceptable risk of harm to the children by reason of violence, mental illness, drug abuse or her general capacity to provide for the children or her capacity to comply with requirements for supervision and/or assistance with her parenting?

   c)What were the circumstances surrounding the removal of the older siblings F and E from the parents?

   d)Does the father have the capacity to facilitate the children’s relationship with the mother?

   e)Does the mother have the capacity to maintain a relationship with the children?

   f)Should the mother’s family have a relationship with the children?

   g)Does the paternal grandmother, Ms Curtis have the capacity to provide appropriate supervision and protection for the children?

   h)What role would the Department have in providing assistance to the children in the future if they lived with either parent and would the parents accept involvement from the Department in the future?

   i)Does the maternal grandmother, Ms Q Percy have the capacity to provide appropriate supervision and protection for the children?

proposals of each party

1. The father proposes that he have sole parental responsibility and that the boys live with him. The boys were living with him at the time of their removal by the Department on 8 February 2018 and he has spent limited supervised time with them since then. The father proposes that the mother spend supervised time with the boys at a contact centre in R Town.  

2. The mother proposes that she have sole parental responsibility and that the boys live with her immediately or failing that, that they gradually return to her. C has not lived with his mother since May 2016 and D has not lived with her since 2 September 2016. The mother has spent limited supervised time with the boys since then. The mother does not specify what time, if any, the boys should spend with the father but rather leaves that decision to the Court.  

3. The Department proposes that the Secretary for the Department of Family and Community Services (NSW) have sole parental responsibility for the boys until they attain the age of 18 years and that the boys live with foster carers, preferably the same foster carers as F and E. The foster carers (for F and E) have indicated their consent to that course. The Department proposes that the boys spend time with each party for ‘identity purposes’ four times per year with such time to be supervised.

4. The independent children’s lawyer supports the Department’s proposal for parental responsibility and living arrangements and for the father’s time with the boys to occur on four occasions each year but only after a moratorium of twelve months. The independent children’s lawyer recommends the continuation of the mother’s current supervised time with the boys i.e. one and a half hours in each three week period.  

background

1. Before turning to consider the issues I note by way of background that the father is 43 and unemployed. He has been in receipt of a disability support pension since 2006. He lives on a property owned by his mother at S Town in Northern New South Wales.  

2. The mother is 34 and has been in receipt of a disability support pension for most of her life. Apart from a recent cleaning job, the mother has never been in the workforce. She lives in a rented property with her mother at LL Town in South East Queensland.

3. When the mother was about 16 she commenced a relationship with the father who was 24. She would catch the train to his place on weekends and return to school on the Monday. The mother did not complete Year 10. The father contends the relationship did not commence until 2003 although how that could have occurred is unclear given that the father was incarcerated for a period from April 2002 until July 2004.

4. The parent’s first child, F, was born in 2006 when the mother was 21. The parents were not together at the time of F’s birth. The mother says that she left the father when she was six months pregnant because of his violence. The father denies this and says the mother left when she was six months pregnant informing him that she was not going to share the ‘baby bonus’[3] with him or spend it on F. He says the mother then moved between T Town, U Town and V Town in New South Wales and that he obtained a recovery order for F in May 2010 after the mother failed to comply with court orders.

   [3] At that time the Commonwealth Government provided a payment to parents for having a child.

5. It is unclear when the parents resumed cohabitation after F’s birth (the mother says it was in 2009 and the father says it was after May 2010) and for how long, but the parents’ second child, E, was born in 2011. It seems the parents had a number of further separations although they were living together when F and E were removed from them by the Department on 28 October 2011.

6. F and E have lived for the last four and a half years with the same foster carers and it is envisaged that they will remain in their care. They live at an undisclosed place in New South Wales. Prior to their current placement they were removed from other placements due to concerns about alleged risks to their safety from the father.   

7. Notwithstanding the removal of F and E, the mother was again pregnant by mid 2012 and the parent’s third child, C was born in 2013. A further child, D was born in 2015.

8. The parents last lived together on 16 March 2016. On that date there was a violent altercation between the parents with each parent accusing the other of being the aggressor.

9. The reasons for the parents’ many prior separations primarily related to competing allegations of violence. Police regularly attended at their home in response to complaints.

10. After the parent’s separation on 16 March 2016, C and D remained with the mother and she and the boys lived in a refuge until 5 May 2016. During this period neither of the boys saw the father.

11. On or about 5 May 2016 C was held over by the father and Ms Curtis (the paternal grandmother) after a contact visit.

12. As a result, C did not see the mother or his brother, D, until 2 September 2016 and D did not see the father or C until 2 September 2016.

13. An Order was made by the Federal Circuit Court on 2 September 2016 that D live with the father. As a consequence of this Order the Department intervened in the proceedings. I note that the father failed to mention in his supporting material in those proceedings[4] that he had an extensive criminal history involving offences of violence or that he had been imprisoned for malicious wounding causing grievous bodily harm or that he was the respondent to Apprehended Violence Orders where the protected persons were child safety officers and previous partners or that his two older children were in foster care or that he had been charged with indecent assault of his daughter and the charges dismissed.

    [4] The affidavits were relied upon in these proceedings – see exhibit 4.

14. The mother did not see C and D from 2 September 2016 until 28 February 2018. There were delays initially in registering with the contact centre where the mother’s time was to be supervised and there was also a waiting list at the centre. When a time was finally arranged on 30 June 2017 the mother was sick but would not have been able to attend anyway because she did not have sufficient money to pay for the costs of supervision at the contact centre. The visit was cancelled. The mother contends that the contact centre is to blame for failing to re-schedule any further contact visits until February 2018. The mother also blames the father for being uncooperative in arranging other visits. The mother was legally represented throughout the relevant period.

15. C first came to the attention of the Department prior to his birth in 2013 when a risk of significant harm report was received raising concerns about the risk of the baby’s exposure to domestic violence between the mother and father. Reports in relation to D were first received in October 2014, also prior to his birth.

16. During 2015 the Department received three further risk of significant harm reports relating to psychological harm and exposure to domestic violence between the mother and father. When the Department attempted to investigate these concerns the father and mother refused to co-operate.

17. Between February and June 2016 the Department received six risk of significant harm reports and eight non-significant risk of harm reports raising concerns in relation to exposure to domestic violence, risk of sexual abuse, risk of psychological harm and risk of physical abuse.

18. As already stated the parties were separated from March 2016 and the boys did not see the father until on or about 5 May 2016 when C was held over by the father.

19. The father maintains that many of the complaints to the Department were made maliciously by the mother.

20. On 13 July 2016 C was assessed by a paediatrician, Dr W. C had been in the father’s care for over two months by this time. Dr W informed Ms X (a caseworker with the Department) that “it was a very unpleasant consultation … [the father] was impossible to engage … he has limited insight into his behaviour and why the therapy team won’t work with him”.  Ms X’s record of her conversation with Dr W includes the following:

    [Dr W] said that her view is that [C] does not need a parent as he doesn’t reference to his father or grandmother. She said that [the father] told her that [C] amuses himself all day. She said that she believes that [the father] feeds him, but that otherwise [C] is left to his own devices. She said that she saw [C] shut down and go into his own world particularly when [the father] raised his voice. She said that when she tried to assess him, he looked at her blankly and just shut down. She said that he spent most of the time just putting blocks into a bucket.

    [Dr W] advised that when she assessed [C’s] speech 12 months ago, he was at an 18 months old level. She said that the speech assessment was exactly the same today. She commented that children don’t progress developmentally while they are frightened. She said she heard him say 20 words, of which 10 were not understandable.

    She said that at this time, health are declining therapy on the basis of [the father’s] behaviours. She mentioned Shaping Outcomes to [the father], and immediately he asked if this was through FACS. She explained the Shaping Outcomes program, in that it can work in the home or at childcare, etc. but [the father] is still refusing to have this service involved.

21. The reference in the above record to “health are declining therapy” is a reference to both the Y Town and Z Town Community Health centres who refused to provide therapy for C, other than in the early childhood setting “due to [the father’s] previous history of aggressive behaviour” at those centres.

22. When Ms X attended the father’s home in the company of another caseworker and two police officers in late July 2016 the father refused entry but permitted her to look through the windows of his home which she noted appeared clean and tidy as did the area outside the home. The father accused the Department of removing his older children without any reason. The father was heard to be yelling on the telephone (apparently to his solicitor) that police and ‘DOCs’ had arrived in flak jackets with guns around his children. Indeed the father alleged during his oral evidence before me that police pointed guns at him on 22 occasions when they attended at his property and also pointed guns and Tasers at the children. The father contends that his allegations are corroborated by documents in the Department’s file. No documents to that effect were tendered by the father and I reject his allegations that police pointed guns or Tasers at him or his children but I accept (as it is corroborated) that police attended with child safety officers when they attended the father’s home. It will become apparent later in this judgment why such precautions were taken.

23. On 28 July 2016 a family risk assessment relating to C was undertaken by Ms X who concluded that while C was safe with the father the family risk level was identified as high.

24. After D was placed in the care of the father in September 2016 pursuant to the court Order referred to above, the Department intervened in the family law proceedings between the father and mother.

25. Attempts by the Department to assess the children at the father’s home were unsuccessful as the father refused access. Observations of the children were made at the paternal grandmother’s home in October 2016. The father was belligerent and aggressive in the presence of Ms X and another case worker but they remained because the paternal grandmother said she would keep the father calm. The children appeared clean and tidy.

26. Another risk assessment was undertaken by the Department on 19 October 2017 (after the father had been charged with serious offences relating to his neighbours, the details of which are set out later in this judgment, and was incarcerated for a period from May to July 2017) and the risk to the children was again assessed to be high.

1. On 8 February 2018 Ms X and another caseworker attended C’s pre-school and spoke to him in the presence of his teacher. The attendance at the school occurred as a result of two complaints received about physical abuse of C by the father. The father accuses the mother of making these false accusations. The mother denies being the source of the complaints.

2. During interview by Ms X, C stated on a number of occasions that the father “hits my head lots of times.” Ms X took photographs of what she says appeared to be a bruise and the photographs in evidence depict what appears to be some light bruising and a red mark on the lid of C’s right eye and a light bruise on the bridge of his nose. C was examined by a paediatrician, Dr N, but he was unable to conclude whether or not the injuries were accidental or non-accidental. During his examination of C, C said to Dr N (in Ms X’s presence) - “I have a sore head because [the father] hits me a lot”.

3. The boys were removed from the father’s care on 8 February 2018.  The father maintains that the boys were removed without justification, just like his older children. He is particularly incensed by the suggestion that he may have caused the injury to C’s eye, observed on 8 February 2018. In support of his denial of causing the injury he points to a record of injury produced from C’s pre-school dated 1 February 2018 (a week prior to the interview by Ms X) which records that C was walking backwards and tripped over a toy and bumped his eye. The record states that C suffered “bruising to corner of left eye” and a mark is made on a depiction of a person (in the record) to indicate the injury to the left eye.

4. It is suggested by the father that the injury observed by Ms X is consistent with the injury described by the pre-school as occurring on 1 February 2018. This suggestion was rejected by her as the injury she observed was to the right eye. No evidence was called from the pre-school and C did not see a doctor as a consequence of the incident on 1 February 2018.

5. As to the father’s general care of the boys, he relies upon four letters from Ms Ms UU, the authorised supervisor at the S Town Community Pre-School. The first letter is dated 11 May 2016 and states that C will be enrolled at the pre-school from 18 May 2016 and the support that will be offered to him. The second letter is undated but said to be from 10 August 2016. The letter raises no concerns about C. The third letter is dated 3 November 2016 and states that “we as Educators have seen a vast improvement in all areas of C’s development” and that he is a “happy caring little boy” who is “always happy to give Dad a hug goodbye of a morning and is always happy to see him at home time”. She describes C as “keen and eager to learn and engage in activities” and that he “has come so far in his language from when he first started”. Lastly is a letter dated 12 February 2018 stating that “both boys appear happy and come with a healthy morning tea and lunch as well as a water bottle”.

6. The father also relies upon evidence from a general medical practitioner, Dr O contained in two letters dated 6 March 2018 and 12 July 2018 respectively. Dr O also gave oral evidence. Dr O last saw the boys in formal consultation on 6 September 2017 (C) and 3 November 2017 (D). On occasion the boys also attended at his clinic when the father or Ms Curtis had appointments. He did not see the boys at all in February 2018. His last appointment with the father prior to February 2018 was 14 November 2017 and his last appointment with Ms Curtis prior to February 2018 was 15 December 2017. He raised no issues of concern about the boys. I note that the boys were in the sole care of Ms Curtis from May to July 2017 and that the boys remained living with her and the father until November 2017.  

7. The paternal grandmother, Ms Curtis, played a significant role in the boys’ lives until February 2018. As noted, the boys lived with her for many months in 2017, initially when the father was incarcerated, and then also when he was released on bail on condition that he live with her.

8. Ms Curtis was able to act as a go-between, between the Department and the father. She facilitated the Department checking on the boys at pre-school and at her home on occasion. On 9 August 2016 however the father refused to co-operate with the Department in visiting C other than at his solicitor’s office. Ms Curtis attended medical appointments with the children and liaised with the pre-school and professionals providing assistance to the boys. She organised many of their activities. Ms Curtis also purchased a home for the father.

9. Ms Curtis is 71 and is a carer for a man she has lived with for thirty years although she denies that he is her partner. She says that he suffers short term memory loss. Ms Curtis trained as a professional but has not worked in that capacity for thirty years. She undertakes some work in customer service. She demonstrates a fierce loyalty to her son, the father in these proceedings, taking his side on every issue and rejecting any need for his children to be in foster care.

10. Ms Curtis’ interactions with the boys during supervised time in 2018 appeared to be generally loving and appropriate.

11. The mother commenced seeing the boys after they were taken into foster care in February 2018. Since then the mother has spent supervised time with the boys on the following dates for which there are supervisor’s notes in evidence: 28 February 2018 (one hour) and 25 May 2018 (visit was scheduled to be for an hour and a half but the mother was 20 minutes late and left 25 minutes early because of car troubles) and 6 July 2018 (one hour and mother arrived five minutes early). The mother was spending weekly time with the boys during the period 28 February 2018 to 16 April 2018. After that date the visits were reduced to once every three weeks for one and a half hours due to the long distances the children had to travel (approximately two hours each way) and the mother had cancelled the previous two visits. There is no evidence of any further cancelled visits after they were reduced to every three weeks.      

12. The father spent supervised time with the boys on 13 April 2018 (one hour), and the father and paternal grandmother spent time with the boys on 4 May 2018 (one hour), 25 May 2018 (one hour), 15 June 2018 (one hour) and 6 July 2018 (one hour). There was a delay in arranging time between the father and children after 8 February 2018 (when they were taken into foster care) because the foster care service, K Group, were not willing to supervise contact due to safety concerns for their workers and appropriate locations were not able to be located until 13 April 2018. K Group arranged for an external service to supervise the contact visits.  

13. The father’s time with the boys occurs in the presence of two supervisors and a security guard in accordance with a safety plan and contact protocol developed by K Group.

14. It seems that F first met the boys in April 2016 when the mother recommenced seeing F having not spent time with her since 2014. The mother spent very limited time with F and E in the period after their removal in October 2011 until 2013. The mother and father spent time with E on occasion up to 18 December 2015 when visits ceased because they refused to sign a conditions of contact agreement.

15. The four children have spent regular time together since 8 February 2018 and it is the proposal of the Department that C and D will live together with the same foster carers who have provided consistent care for F and E since June 2014. The four children have been informed of this plan. Observations of the boys in June 2018 indicated that they were happy and progressing well.    

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]

   [5]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons; and

   c)The allocation of parental responsibility for a child.

3. The ‘person/s’ referred to in s 64B may include a parent of the child or a person other than a parent (s 64B(2)).

4. The current dispute involves a party who is not a parent i.e. the Secretary for the Department of Family and Community Services (NSW). Section 65C of the Act enables a person other than a parent to apply for a parenting order if that person is concerned with the care, welfare or development of the child and I am satisfied that the Secretary of the Department is such a person.[6] Any parenting order made in favour of the Department will be administered pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW).[7]

   [6] Faulkner and McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630.

   [7] Ibid.

5. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, children’s rights to be cared for by both parents when it is safe for that to occur.

6. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

7. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

8. As one of the parties to this dispute is not a parent, not all sections of Part VII (where reference is made to ‘parent/s’) apply.

9. In considering what parenting order is proper there is no statutory preference afforded to a parent.[8] As held by the Full Court in Yamada & Cain:[9]

   The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

   [8]Valentine & Lacerra (2013) FLC 93-539.

   [9] [2013] FamCAFC 64 [27].

10. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

11. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[10] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[11] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”[12]

    [10] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

    [11] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

    [12] ‘Unacceptable risk – A return to basics’ by the Hon. John Fogarty AM quoted with approval in Johnson & Page (2007) FLC 93-344, [68], [71].

12. The Court is not required to make findings of fact on every factual dispute raised by the parties.[13] The paramount issue for the Court is to determine what order is in the best interests of the subject children in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[14]

    [13]Baghti & Baghti [2015] FamCAFC 71.

    [14]M & M (1988) 166 CLR 69.

13. One of the ‘additional considerations’ referred to in s 60CC of the Act is a general power to consider ‘any other fact or circumstance that the court thinks is relevant’ (s 60CC(3)(m)) and it is important to note that one or more of the ‘additional considerations’ may outweigh a primary consideration. [15]

    [15]Aldridge & Keaton (2009) FLC 93-421 [74].

14. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

15. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

16. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

17. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

18. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

19. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[16]

    [16]Banks & Banks (2015) FLC 93-637.

20. There were a number of transcripts tendered, during this hearing, of proceedings in other courts and I note that s 69ZX(3)(b) relevantly permits this Court, in child-related proceedings, to receive into evidence the transcript of evidence in any other proceedings in another court and to draw any conclusions of fact from that transcript that it thinks proper and to adopt any recommendation, finding, decision or judgment of any court. 

21. I turn now to consider the issues identified above.

Does the father pose an unacceptable risk of harm to the children by reason of violence, sexual abuse, mental illness, drug abuse or his general capacity to provide for the children or his capacity to comply with requirements for supervision and/or assistance with his parenting?

Violence

1. The father has an extensive criminal record dating back to 1992. Many of the convictions relate to offences involving violence. The father appealed against sentence and/or conviction a number of times and his appeals were dismissed. Between 1992 and 2017 the father was convicted of (1992) stealing, assault (domestic violence – 2 counts), (1996) assault (2 counts), breach of apprehended domestic violence order, (1999) contravention of apprehended domestic violence order (“ADVO”), (2000) contravention of ADVO (2 counts), common assault, destruction or damage to property, (2001) contravening ADVO, (2002) malicious wounding with intent to commit grievous bodily harm, (2012) common assault,  contravention of ADVO, stalking and intimidation with intent to cause fear, (2016) resisting or hindering police officer in execution of duty, intimidating police, (2017) stalking and intimidation with intent to cause fear and harm.

2. One of the most serious offences involved a conviction for malicious wounding with intent to commit grievous bodily harm in 2002 for which the father was sentenced to four years imprisonment.

3. The father sought to minimise the circumstances of this incident during the hearing before me, repeatedly stating that he had only hit the victim with a “tomato stake”. He maintained that his actions were in defence of his then girlfriend who was being or was about to be raped.

4. The circumstances of the offence are set out in a judgment of a State Appeal court. The father’s appeal against conviction was dismissed and his appeal against sentence was not pursued. The incident leading to the charges against the father occurred in December 2000. The complainant was employed at a local business and the father had also worked at the business for a short time prior to the incident. The judgment notes that it “is common ground that the [father] approached the complainant outside the [business] and struck him about the head with a large piece of wood causing injuries including a fractured skull.” The complainant had been in a relationship with Ms BB prior to the incident and she had obtained an AVO against him relating to his persistent attempts to resume their relationship. Ms BB had commenced a relationship with the father shortly after breaking up with the complainant. In early December 2000 Ms BB alleged that the complainant had breached the AVO by telephoning her and being abusive and threatening. The police were informed. In mid December 2000 Ms BB alleged that she had been at the business premises when the complainant had ‘wolf whistled’ at her. She left the business and contacted police. Later that day she informed the father what had occurred and the father went to the business and threatened to “kill the bastard”. There were several witnesses to the threat. The complainant approached Ms BB who began to strike him. She denied that he had done anything at the time to warrant the attack by her. (Ms BB later pleaded guilty to assaulting the complainant). The father then approached and struck the complainant three times with the large piece of wood. The complainant was rendered unconscious. Ms BB alleged that after the incident the father told her to lie and say that the complainant had attempted to rape her. She said that the father threatened her if she did not do so. After her separation from the father she obtained an AVO against him for the protection of herself, her son and her parents.

5. It reflects poorly on the father that he continues to minimise this violent attack. The charge for which the father was convicted was malicious wounding with intent to commit grievous bodily harm. In his attempt to minimise the seriousness of this assault the father and the paternal grandmother kept repeating that he was convicted of an offence of ‘using excessive force in defence of another.’

6. The father’s dealings with child safety officers from the Department are a cause for significant concern. In March 2012 an Apprehended Violence Order (AVO) was granted for the protection of a child safety officer, Mr CC. After the granting of the AVO and while still in the court room the father breached the AVO by communicating with Mr CC. After the father and mother left the court house the father and mother (and a third unidentified female) followed Mr CC and another child safety officer, Ms AA back to their place of employment (the parents were initially in a car and the child safety officers were on foot). The father later assaulted Ms AA while she was in the local supermarket. On 28 March 2012 Ms AA applied for an AVO against the father and a final AVO was made in October 2012.  In October 2012 the father was convicted of three offences relating to his conduct in March 2012. He was sentenced to nine months imprisonment suspended upon entry into a s 12 bond[17] pursuant to the Crimes (Sentencing and Procedure) Act 1999 (NSW). The father’s appeal against conviction was dismissed in 2013.

   [17] S 12 bonds under the Crimes (Sentencing and Procedure) Act 1999 (NSW) have since been repealed.

1. The father has also been a respondent to a number of other AVOs including for the protection of former partners, the child F and his neighbours. In February 2018 a temporary protection order was made against the father for the protection of the mother. The application was withdrawn. There remains one AVO in force. It is in for the protection of the father’s neighbours (a woman and her two children) and is due to expire in late 2019.

2. Complaints about the father’s behaviour towards various professionals is a recurring theme in the evidence. A record produced by New South Wales police dated 17 November 2014[18] recounts the following incident:

   On the 29^th of October 2014, [K Group] advised [the father] and [the mother] in writing that they would not be allowed to have any contact whatsoever with their daughter [F]. Even in difficult circumstances, supervised visits can be arranged, however case workers reported [F] was so hysterical at the thought of seeing her father, it was determined that it was in her best interest that the no contact arrangement be enforced. INCIDENT: On Sunday the 16^th of November 2014, [K Group] [redacted in exhibit] received an abusive call from [the father] to his private work mobile phone. The call went to voicemail, and [the father] said “You gay cunt. You fucking pedo mother-”. There is no reason that [the father] should have that phone number. On Monday the 17^th of November 2014, a case worker was contacted by [the mother]. She was quickly put through to [redacted in exhibit], and they had a brief conversation. [the father] took hold of the phone, and began verbally abusing [redacted in exhibit]. In addition to swearing and name calling, [the father] said “You’re the reason I can’t see my daughter, I’m coming to your office to sort you out cunt”. [redacted in exhibit] terminated the call. Staff at [K Group] contacted Police who arrived a short time later. They outlined their concerns that [the father] will do whatever it takes to get to his daughter. He has assaulted caseworkers on supervised visits in the past, and has breached personal violence orders taken out as a result. As he still has access to his son [E], staff believe that he will try to follow the case workers when they take [E] to his new home. They have arranged for security to be present, but are not just concerned for their physical safety. Staff who have interacted with [the father] state he is highly intelligent and likely to attempt to garner the children’s whereabouts using the GIPA Act, or simply lying when calling different reporting agencies in the hopes (sic) that he will speak to someone who will inadvertently provide suppressed information. Police hold the same concerns and have created child at risk incidents outlining the above risks. Staff at [K Group] have established a lockdown procedure should [the father] arrive at their offices, and the [V Town] Supervisor has been notified. A statement was obtained from [redacted in exhibit] regarding the threatening phone calls, however he does not wish to pursue charges or personal violence orders. He advised his primary concern is for the children …  

   [18] Exhibit 4 volume 1 page 58 and 59.

3. Other serious offences were committed by the father in May 2015, namely, resisting or hindering a police officer in execution of duty and intimidating police, for which the father was dealt with on 23 August 2016. The relevant facts relating to these offences are:

   On Friday, … May 2015, the accused [the father] attended [V Town] Local Court as the respondent in an apprehended personal violence order hearing. OFFENCE 1: About 1.00pm, the hearing was adjourned for lunch.  Witness [redacted in exhibit tendered] stepped out of the witness box and began walking towards the exit.  The accused [the father] collected his documents and began walking rapidly and aggressively towards the exit, where witness [redacted in exhibit tendered] was located.  The victim, Senior Constable [DD] stepped behind the witness [redacted in exhibit tendered] in an attempt to protect her from the accused.  Using his shoulder, the accused pushed Senior Constable [DD] in the back, pushing him out of the court room exit.  The push caused Senior Constable [DD] to fall forward into witness [redacted in exhibit tendered] Senior Constable [DD] said to the accused, “Don’t fucking touch me.”  The accused replied, “Get out of my way.” Hearing this, witness Constable [redacted in exhibit] immediately turned and saw the accused pushing Senior Constable [DD] in the back with his shoulder.  Fearing escalation, Constable [redacted in exhibit] put her hand on the handle of the electronic control weapon and walked towards the accused and Senior Constable [DD] to assist.  Senior Constable [DD] turned and said, “You push me again and you’ll hit the fucking dock.”  The accused walked outside the court house and while on the footpath continued yelling out about the hearing.  OFFENCE 2 & 3: About 2.30pm, as Her Honour [Magistrate …] was delivering her judgement, the accused was standing at the bar table, approximately two (2) and a half metres from the victim, Sergeant [EE], who was seated.  The accused picked up a pen and leant over in the direction of Sergeant [EE].  He began pointing the pen at her and said, “When my kids get sexually assaulted, it’s on you.”  The demeanour of the accused caused Sergeant [EE] to slide her seat backwards a short distance, moving away from the accused.  Her Honour … commented on the accused’s behaviour whilst delivering her judgment saying, “He’s just threatened the prosecutor.”  Throughout the hearing, the accused continually stared at Sergeant [EE] in an aggressive manner.  During a short adjournment, outside the court house, the accused stood within two (2) metres of Sergeant [EE], staring down at her.  The incident was captured on the closed circuit television footage of the court room, and also the audio recordings of the court proceedings. …

4. Evidence relating to these charges is also contained in a statement from Senior Constable DD.[19] The charges were found to be proven and the father was required to enter into a s 10 bond under the Crimes (Sentencing and Procedure) Act 1999 (NSW). I reject the submission on behalf of the father (in the hearing before me) that the requirement to enter into a bond indicated that the offences were not very serious. This is another example in my view of the father minimising his aggressive and violent behaviour.

   [19] Exhibit 7.

5. More recently, in May 2017 the father was arrested and charged with the following offences:.

   (1)Pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that [the father] did stalk or intimidate intending to cause fear of physical or mental harm in that between 4.15 pm and 7.30 pm on … May 2017 at S Town [the father] did intimidate Ms FF with the intention of causing the said Ms FF to fear physical or mental harm.

   (2)Pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that [the father] did stalk or intimidate intending to cause fear of physical or mental harm in that between 4.15 pm and 7.30 pm on … May 2017 at S Town [the father] did intimidate Mr GG with the intention of causing the said Mr GG to fear physical or mental harm.

   (3)Pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that [the father] did stalk or intimidate intending to cause fear of physical or mental harm in that between 4.15 pm and 7.30 pm on … May 2017 at S Town [the father] did intimidate Ms HH with the intention of causing the said Ms HH to fear physical or mental harm.

6. The father was refused bail because it was assessed there was an unacceptable risk of the father:

   (1)Endangering the safety of victims, individuals or the community;

   (2)Committing a serious offence; and

   (3)Interfering with witnesses or evidence.

7. In July 2017 the State Court granted the father bail on the following conditions:

   (1)To be of good behaviour;

   (2)To report to the local police station once daily between 8am and 5pm on Monday, Wednesday, Friday, Saturday and Sunday;

   (3)To live at [the home of the paternal grandmother] and not leave the home unless it is to attend the local court or to attend upon his lawyers or to attend a medical conference with his mother;

   (4)Not to go within 20 kilometres of the victims’ property;

   (5)Not to have any contact (except through his lawyers) with any witness or potential witness;

   (6)To present himself at the front door of his mother’s home at the direction of any police officer to enable them to confirm the curfew;

   (7)To present to court in late July 2017;

   (8)Not to drink alcohol or enter any premises where alcohol is sold;

   (9)Not to take any illegal or prescription drugs except for a drug lawfully prescribed for the father;

   (10)To undertake non-invasive testing at the direction of any police officer to confirm compliance with the drug/alcohol abstention condition.

8. In late 2017 the father pleaded guilty to the three offences involving his neighbours, for which he had been charged earlier in 2017. A statement of facts was handed up during the hearing and adopted by the magistrate. During the current proceedings the father strongly objected a number of times to the FF’s’ being referred to as his neighbours, insisting that they were “squatters”. Despite his guilty plea the father continues to deny the allegations and contends that the only reason he pleaded guilty was to get out of gaol and look after the boys.

9. The statement of facts about the 2017 offences and the victims includes the following:

   The victims in this matter [Ms FF] and her two children [Mr GG] and [Ms HH] have been living at … [S Town] for six years. [The father] has been living at … [S Town] for three years.

   …

   On … May 2017 at 4.15pm the threats from the accused [the father] dramatically increased when the accused threatened to burn the victims’ house down. Threatened to shoot the victims with a 12 gauge shot gun, again rape the 15 year old victim [Ms HH] … and threatened to get an axe and rearrange the victims’ faces. The accused also threw two unknown missiles on the victim tin roof.

   Police attended the accused property three times each time with front gate was locked with a heavy chain and the accused didn’t talk with police, even though the accused sighted police. Police also noticed that 10 large dogs were at the front gate, four of these dogs were very vicious and would have attacked police if they entered the property.

   …

   While police were taking statements from the victims … the accused called police and verbally threatened police that his dogs would attack police. Again the accused called police and threatened them, if they ever come to his property his dogs would tear police apart.

   Police are taking the threats very seriously and have grave concerns for the victims’ safety …

   On the second time police attended the victims’ house the accused yelled out the cops are not going to save you. While police attended the victim [Ms HH] … broke down from the threat from the accused that he was going to rape her and burn the house down.

   …

   … The accused person said, “They are living on an illegal dwelling. They are squatting on that property. Why don’t you investigate that?”

   … The accused person denied any wrong doing citing, “They are living on an illegal dwelling. They have damaged my fence. If you take their word I’ll have your job for wrongful arrest. My solicitor will have your job.”

10. As part of his antecedents and plea in mitigation in those proceedings the father’s then counsel submitted that not only had the father “traumatised his neighbours” but he had been an absolute burden on his mother, with whom he had to live under the bail conditions. He also submitted that the father had been struck by a car when a child and has an “underlying problem with his health”. There is certainly nothing in the submissions made on the father’s behalf at that hearing that cavil with the statement of facts adopted by the sentencing magistrate. It was submitted on the father’s behalf at that hearing that he was supposed to take medication and once he takes it “he’s as good as gold”. The father’s counsel then conceded that the father had to enter into an AVO and that there would be stringent conditions attached. At the time of the conviction the father was already on a bond to be of good behaviour in relation to the offences of intimidation of and hindering a police officer in the execution of his duty. The plea of guilty was taken into account in the sentencing on the basis that it indicated some degree of remorse.

11. There was not a shred of remorse evident during the proceedings before me. Indeed the father denied the allegations.

12. At the conclusion of the sentencing hearing in late 2017, the father was re-sentenced on the convictions for which he had breached his s10 bond although no additional penalty was imposed. The father was required to enter into a bond to be of good behaviour for 18 months. In addition, an AVO was made against the father to protect the neighbours. The AVO remains in place until November 2019. 

13. In the hearing before me the father repeatedly denied having vicious dogs at his property. He repeatedly stated that he only had a “[small dog]” and a couple of puppies. This is at odds with the evidence from police records set out above which refer to an inability to enter the property because of “savage” dogs. Even the paternal grandmother conceded that the father had “working dogs” on his property. This is one of many examples where the father has been untruthful.

14. The mother contends that she was subjected to years of physical abuse by the father. While I do not find it necessary to make specific findings in relation to all of her allegations, I find that the father was untruthful when he denied being physically violent to the mother on any occasion. There is ample evidence to find that the father was violent to the mother on occasion including the father’s own admission to a child safety officer on 19 October 2011 that he pulled the mother out of the house by her hair during a heated argument. In addition, F told a child safety officer that she had seen the father dragging the mother by the hair and smacking her in the head. The evidence from the child safety officers was accepted as reliable by the magistrates who determined the temporary and final care and protection application made in favour of F and E in 2011 and 2012 and I adopt those findings.

15. I have no doubt that F was repeatedly exposed to violence between her parents. The content of a care plan produced by the Department for the care and protection proceedings involving F and E makes for sobering reading. It is recorded that not only would F escape to a neighbouring property during fights between her parents but that she would also “take herself outside and into the chook pen and ‘tell the chooks stories’”. The report continues:

    During a home visit to the farm prior to the children’s removal, the caseworker observed [F] scanning her environment to locate [the father] when he was raising his voice at caseworkers, [F] also raised her voice and kept talking about her chooks. [F’s] conditioning to the extreme violence between her parents is disturbing and it is well documented, even the most resilient of children can be overwhelmed with irresolvable conflict when faced with disorganised attachment to their caregiver who is both a source of comfort and the source of harm.

16. The father was untruthful when he denied calling the mother and the boys “retards”. I am fortified in that finding because of the demeaning and derogatory way he referred to the mother during his interview with Dr B on 11 April 2018 when he said of the mother: “She’s not a piece of piss on any of the other women I ever lived with” and she is “mentally retarded” and that the mother was frequently locked up in the “nut house” and the mother is “not the full quid”.

Sexual abuse

1. In 2013 the father was charged with indecently assaulting his daughter, F, between 1 March 2011 and 31 October 2011 (when F was five). After a trial in the local court at G Town, during which the child was required to review her taped interviews with police and be cross-examined (the child was eight at the time of the trial), the charge against the father was dismissed in September 2014.

2. The fact that the criminal charges were dismissed does not mean that the charges and evidence relating to them are irrelevant in these proceedings. This is because the standard of proof in a criminal case is ‘beyond reasonable doubt’ whereas in these proceedings the standard of proof is ‘on the balance of probabilities’. However, it is not the primary task of this hearing to determine the father’s guilt or innocence. As the High Court held in M & M[20] the primary task of a parenting hearing is to determine what parenting order is in the best interests of the children who are the subject of the proceedings. F is not a child who is the subject of these proceedings.  

   [20] Supra.

3. In any event, no positive finding that the father sexually abused F is sought by the mother, the independent children’s lawyer or the Department. It is nevertheless submitted that the allegations cannot be rejected as groundless and will inform the broader determination of whether or not the father poses an unacceptable risk to the boys.

4. The father contends that I should make a positive finding that he did not sexually abuse the child. He contends that the child has been coached by various people but in particular Ms MM, F’s counsellor, to make false allegations against him.

5. The allegations against the father first arose as a result of mandatory reporting by the deputy principal of F’s school in early 2012. A parent at the school reported that her son had told her that F said to him in early 2012:

   Daddy gets into bed with [me] and makes [me] touch his penis

6. In the context of the father’s belief that Ms MM coached F to make the allegations against him, I note that she did not commence her counselling with F until June 2012 i.e. well after the initial complaint.

7. F was subjected to four formal interviews (three with police and one by child safety officers) and months of counselling. The charges against the father were dealt with as summary offences in the local court in April 2014. F gave evidence and was cross-examined over two days. The magistrate found her to be a compelling witness but because she could not be satisfied beyond reasonable doubt that the father had committed the offences, the charges were dismissed. The magistrate nevertheless made this observation:

   If this was a balance of probabilities case I would have no hesitation in finding the offences proved …

8. Although the criminal charges were dismissed, an AVO was made against the father for the protection of F.

9. I am not asked in these proceedings to make a positive finding of abuse nor is it necessary for me to do so. However, I find myself unable to reject the allegations as groundless. There is substantial evidence that, on one view, supports the allegations. On the other hand, there are many inconsistencies in the evidence and the influence of direct questioning of F cannot be ruled out.

10. The evidence informs the broader enquiry of whether there is an unacceptable risk of harm from the father.

Mental illness

1. The father was assessed by Dr B, psychiatrist, on 11 April 2018. Dr B is a very experienced psychiatrist with over thirty years in practice. Prior to the trial the father sought to have Dr B replaced by another expert because it was argued Dr B would be unable to assess him without bias, given the information provided to him by the independent children’s lawyer. The father’s application was dismissed. I am comfortably satisfied that Dr B undertook his role in a professional manner and that his observations and opinions are untainted.

1. The name of the caseworker for the boys was provided by Ms X on a confidential basis and placed in an envelope not to be opened without order of a judge. Her name was not disclosed because of her alleged fear of the father.

2. The current placement for the boys has been the subject of significant criticism by the father. He points to the content of a report prepared by Ms X after a home visit on 5 June 2018 in which she noted:

   The house presented as generally unclean, with observed mouse/rat faeces on wall railings, obvious dirt and stains on the flooring, and stained bed bases.

3. There is also an unfenced dam on the property however, Ms X opined that the house was not unsafe and her concerns about cleanliness and the dam were satisfactorily addressed by the carer. In any event, it is proposed that the boys move from their current placement.

4. The father also alleges that the boy’s current carer was bashing the children in the face and said that he had photographs showing the “real bad bruises” and “extensive bruising” indicating that the children had been punched in the face. The photographs[25] depict no such thing. There is no bruising evident in the photographs tendered. Nor is there any corroboration for the father’s allegations in the supervisor’s reports or the caseworker’s evidence. I have no hesitation in rejecting the father’s allegation as groundless. His allegations also reflect poorly on his credibility generally.

   [25] Exhibit 9.

5. The boys were seen by a paediatrician on 29 May 2018 who noted chromosomal abnormality in the children and some cognitive and speech delay and recommended formal psychometric testing at some point. The paediatrician noted the children’s “excellent weight gain” since being in foster care. He recommended that an issue with C’s eyes be followed up with an ophthalmologist.

6. The boys attend pre-school two days each week and are provided with assistance from a speech pathologist and an occupational therapist. The boys have also commenced counselling with Ms MM, the same counsellor who has provided assistance to F and E in the past. The father is highly critical of Ms MM (who gave her evidence via videolink in such a way as to protect her from being identified by the father) whom he accuses of coaching F to make false allegations of sexual abuse against him.

7. Any order made in favour of the Department will be administered in accordance with the Children and Young Persons (Care and Protection) Act 1998 (NSW), subject to any application that might in future be made for adoption. As explained by Ms X, the monitoring that will take place will include monthly visits by the caseworker to the foster carer’s residence, trimonthly reports and annual assessment of the carers.

8. A transition from the boys’ current placement to the same foster carers of F and E will involve further change, not only to their residence but also to their pre-school. Their current carer has expressed a desire to remain in contact with the boys.

Conclusion as to what parenting order is proper

1. For the reasons already provided I do not intend to accede to the order sought by the father that he have sole parental responsibility for the boys and that they live with him and I do not intend to accede to the order sought by the mother that she have sole parental responsibility for the boys and that they live with her.

2. In those circumstances it is appropriate to make an order that the Secretary for the Department of Family and Community Services (NSW) have sole parental responsibility for the boys which includes the responsibility to make suitable living arrangements for them. The proposals and plans identified by the Department appear to be entirely proper.  It is regrettable that this is likely to mean a change in their current living arrangements but the benefits to them in being united with their older siblings outweigh the detriments in my view.

3. The Department proposes that the parents spend time with the boys for ‘identity purposes’ on four occasions each year with the time to be supervised. The independent children’s lawyer proposes that the boys spend time with the mother for one and a half hours every three weeks and that the father’s time be suspended for twelve months.

4. I must say I struggle to see the benefit for the children in spending such time with either parent. The children currently live about two hours from R Town where the supervised contact occurs and there was no suggestion that a change in their foster arrangements (to live with the same foster carers as F and E) will mean they will be any closer.

5. During the father’s supervised time he has disregarded the conditions of contact[26] which occurs in the presence of two supervisors and a security guard. For example on 13 April 2018 upon seeing the boys for the first time since 8 February 2018 (when they were removed from his care by the Department) the following record was made by the supervisor:

   [26] Which are set out and signed by the father at page 114 of exhibit 4 volume 2.

   … [The father] stated that he had missed them [the boys] and that he hadn’t been allowed to see them and that he didn’t give them away. [The father] was prompted by supervisor to cease making comments about how he didn’t give the boys away and that they were taken from him. [The father] stared at supervisor, turned body towards her and began stating forcefully “well it’s the truth isn’t it, what they are doing is a breach of court orders”. Supervisor simply prompted [the father] to focus on the boys. During this encounter, [the father’s] body language and tone of voice was quite intense and intimidating towards supervisor.

   And on 4 May 2018 the following was observed by the supervisor:

   Whilst [D] was sitting next to [the father], he appeared to notice a smalls (sic) scratch on his eye and bruise on his nose, [the father] made a comment to [the paternal grandmother] about how each time he sees the boys they always have scratches on their face. [Ms P] did not respond …

   …

   [The father] then began inspecting [D’s] blisters and he calmly stated to [the paternal grandmother], “they say I don’t look after ‘em (sic)”. [The paternal grandmother] responded “it’s from their shoes.”

   …

   [C] spoke about one of his monster trucks with [the father] and [the father] responded “all of your toys are at home”, when [C] responded “why”, [the father] responded “so you can play with them one day.”

   [The father] then said to [C], “see I told you [the paternal grandmother] would come to visit, she wasn’t allowed in last time but she came this time to see you.”

   …

   [The father’s] conversation with the children appears somewhat repetitive e.g. “the dogs miss you, the animals miss you, you’re (sic) toys are at home”. This then prompts questions (demonstrated in today’s contact) whereby [C] will ask [the father] when he will be able to go to his house.

6. Upon departure on 4 May 2018 the father told the security guard that he would be attending court and getting the children back.

7. On a number of occasions during supervised time, the father told D that he was fat and encouraged C to call D fat.

8. During the observations of time between the father and the boys it is noted that C regularly becomes “dysregulated … whereby he is unable to regulate his excitement/arousal levels, particularly when the play becomes more physical”.

9. The security guard present for the supervised visit between the boys and the father on 6 July 2018 reported that the father was hostile to him and to the staff at the contact centre but that the paternal grandmother was able to calm the father down.

10. I share Mr H’s concern about how the father will react to an adverse decision by this Court. The father indicated during the trial and to Mr H an “unwavering determination” to have the boys returned to him and a “one hundred percent investment” in that outcome. I accept Mr H’s opinion that if the father’s “mental health breaks, his thought process is unlikely to be rational”. Having regard to Dr B’s assessment of the father there is a very high risk of the father reacting violently. The boys and others may well be at risk in those circumstances.

11. I also have a very real concern that the father would try to locate the boys. F and E were removed from initial placements because of the Department’s concerns about the father locating the children and his ability to manipulate someone into disclosing their address was considered a significant risk and I share that concern.

12. Ultimately I can see no positive benefit in the children spending occasional supervised time with the father four times per year. I am not persuaded that anything is likely to change after the moratorium of twelve months suggested by the independent children’s lawyer.

13. As already noted, the father has no ability to regulate his behaviour and would be unlikely to contain himself in front of the boys if he took issue with something.

14. In this regard I note F’s experience of being exposed to the father yelling at case workers prior to scheduled contact visits which caused F to hide under a desk and describe her father as a “really angry man”.

15. The father’s behaviour during the recent supervised contact visits with the boys gives me no confidence the father has any insight into the impact on the boys of his continued hostility and accusations. The father made outrageous claims of abuse against the boys’ current foster carer which I have rejected as groundless. If he were to spend time with the boys he is likely to undermine their care arrangements.

16. The more difficult issue is whether or not the mother should spend time with the boys. The independent children’s lawyer’s proposal of visits every three weeks will likely involve the children in significant travel and disruption. I am not persuaded such disruption would be beneficial to the boys in the circumstances of this case. They have intellectual deficiencies themselves and their foster carers will have their hands full in providing full time care for them. If, as planned, the four children reside with the same foster carers, the burden of three weekly visits cannot be justified.

17. The children seeing the mother even four times a year for ‘identity purposes’ presents problems in my view.  I struggle to see any benefit for the boys.

18. The occasions that the mother has spent time with the boys since February 2018 seem to have been reasonably positive experiences for them and there have been no concerns about the mother’s behaviour during the supervised visits although I note the observation by the supervisor on 25 May 2018 that:

    It is consistently observed that [the mother] struggles to sustain her engagement with the boys for the duration of the contact.

19. However, I remain particularly troubled by two aspects concerning the mother. Firstly, the likelihood of the mother not maintaining contact with the boys given her intermittent and irregular contact with her four children over the years. Secondly, and more importantly, the possibility of her resuming a relationship with the father. If the father were to agree, I have little doubt the mother would return to him given her statements to Dr B and her Facebook post. Even if she did not return to a relationship with him I am concerned that she may disclose information to him about when and where she was going to see the boys and this creates a very real risk that the father may attend and follow the foster carers or find out where the children attend school.

20. I have come to the conclusion that any benefits to the boys in maintaining even the limited connection with the mother as proposed by the Department is outweighed by the likely detriment of disruption, travel and risk of harm if the father were to find out where and when the visits were to occur. 

21. Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order. Accordingly, I propose to make orders restraining the father from communicating with or approaching the children or seeking to locate them. Unfortunately I remain pessimistic about the father’s ability or willingness to comply with such an order. One reason for making it is to alert any persons who might be contacted by or on behalf of the father that no information should be provided.

22. While I intend to impose the same restrictions on the mother I do not consider that such an order overcomes the risk (discussed above) of the mother unwittingly providing information to the father.

conclusion

1. I have determined that it is in the best interests of the boys for the Secretary for the Department of Family and Community Services (NSW) to have sole parental responsibility for the children until they attain 18 years (subject to any future order for adoption). I note it is the intention of the Department to place the boys with their older siblings. I support and encourage that decision. By all accounts F and E are doing very well with the carers whom they have lived with since mid-2014.

2. Each of the parents present an unacceptable risk of harm to the boys and neither of them have the capacity to provide adequate parenting for them. 

3. The father, in particular, is a violent, angry man who has shown no ability to regulate his behaviour. His demeanour has been observed by a number of judicial officers dating back to 2010 and sadly the father has not taken the opportunity to reflect on his behaviour. He maintains an unhealthy focus on his theories of conspiracy involving police, child protection authorities and independent children’s lawyers. 

4. In making decisions regarding the boys in future, I would encourage the Department to place significant weight on the views of their foster carers.

I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 January 2019.

Associate: 

Date:  23 January 2019