Daeger & Daeger (No 2)
[2023] FedCFamC1F 19
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daeger & Daeger (No 2) [2023] FedCFamC1F 19
File number(s): WOC 484 of 2019 Judgment of: ALTOBELLI J Date of judgment: 25 January 2023 Catchwords: FAMILY LAW – PARENTING – Interim – Where the children lived with the mother until she was incarcerated – Where the children were retained by the second and third respondents whilst judgment was reserved on their application for time – Two additional recovery applications filed and heard – Where the option of least risk is considered – Unreliability of evidence – Best interests of the children – Court exercised discretion to review subpoena material – Orders provide for the children to be split across households – Concerns about the legal representation. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 91B Cases cited: Daeger & Daeger [2020] FCCA 2500
Daeger & Daeger [2019] FCCA 3929
Goode & Goode (2006) FLC 93-286; [2006] FamCA1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 113 Date of last submission/s: 19 January 2023 Date of hearing: 28 November 2022, 19 January 2023 Place: Sydney Solicitor for the Applicant: Caldwell Martin Cox The First Respondent: Litigant in person Solicitor for the Second and Third Respondents: Shiels Lawyers Solicitor for the Fourth Respondent: Caldwell Martin Cox Solicitor for the Independent Children's Lawyer: Phillip A Willkins & Associates ORDERS
WOC 484 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAEGER
Applicant
AND: MR DAEGER
First Respondent
MR I
Second Respondent
MR J
Third Respondent
MS W
Fourth Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
25 JANUARY 2023
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.All previous orders that are inconsistent with the orders made today are suspended.
2.The Fourth Respondent have sole parental responsibility limited to making decisions about school and education for the child, X born 2007 (“X”).
3.X shall live with the Fourth Respondent.
4.The Second and Third Respondents have parental responsibility limited to making decisions about school and education for the child, Y born 2010 (“Y”).
5.Y shall live with the Second and Third Respondents.
6.The children, X and Y (“the children”) shall spend time with the Applicant, upon her release from incarceration, supervised by the Fourth Respondent or another agreed adult.
7.The children shall spend time with the First Respondent supervised by the Second and Third Respondents or another agreed adult.
8.From this weekend beginning 27 January 2023 and each alternate weekend thereafter, from after school on Friday (or 5pm if it is not a school day) to before school on Monday (or 9am if it is not a school day), the children shall spend time with each other and the Second and Third Respondents.
9.From next weekend beginning 3 February 2023 and each alternate weekend thereafter, from after school on Friday (or 5pm if it is not a school day) to before school on Monday (or 9am if it is not a school day), the children shall spend time with each other and the Fourth Respondent.
10.For the purposes of Order 8 and 9 hereof, changeover shall occur at school, or if school is not in session at McDonald’s at RR Town.
11.In the event that X is working on any days that he is spending with the Second and Third Respondents in accordance with Order 8 hereof, the Second and Third Respondents are to take him to work.
12.The Second, Third and Fourth Respondents and any other agreed adult are to sign written undertakings to the Court in a form submitted by the Independent Children’s Lawyer in relation to their obligations as supervisors, and in relation to non-denigration and non-discussion with or in the presence of the children.
Urinalysis Testing
13.The Applicant, First, Second, Third and Fourth Respondents undertake supervised urinalysis drug testing (“the testing”):
(a)with such testing to occur at a pathology centre or other place approved by the Independent Children’s Lawyer and in accordance with the Australian/New Zealand Standard applicable to the procedure for the collection, detection and quantitation of drugs of abuse in urine;
(b)The Applicant, First, Second, Third and Fourth Respondents bear the cost of their own testing;
(c)the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur (but not more than once monthly); and
(d)the results of the testing, on each occasion, be forwarded, as soon as possible, to the Independent Children’s Lawyer and the other parties’ solicitors.
Department of Communities and Justice
14.Pursuant to s 91B of the Family Law Act 1975 the Department of Communities and Justice is invited to intervene in these proceedings and with respect to same:
(a)Leave is granted to Departmental Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been grant to the parties, their legal representatives and/or the Independent Children’s Lawyer;
(b)The Department is requested to advise, in writing and within 14 days, whether they intend to intervene in these proceedings and in the event the Department indicates a desire to intervene orders shall, upon such intention being advised to the Court, be made in chambers:
(i)Formally granting such leave and joining the Department as a party;
(ii)Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material; and
15.The Independent Children’s Lawyer is granted leave to provide the Department of Communities and Justice with a copy of these reasons for judgment.
Other
16.Leave is granted to the parties to apply to relist the proceedings on short notice to deal with anything that may jeopardise the hearing dates, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
17.The matter is listed for mention on 13 February 2023 at 9am.
18.The Fourth Respondent is restrained by injunction from taking the children to any correctional facility.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daeger & Daeger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the further interim orders that the Court has made in relation to two children, X who is 15 years old (“X”) and his brother Y who is 12 years old (“Y”), soon to turn 13 (“the children”). Since early 2019, the children have lived with their mother (“the mother”) but as at the date of these reasons, X was living with his older sister Ms W (“Ms W”), and Y with his older brothers Mr J (“Mr J”) and Mr I (“Mr I”). The mother is incarcerated but will soon be released, and their father (“the father”) lives separately to them and, contrary to the terms of an order of this Court, spends time and communicates with them.
Notwithstanding the complexity of this matter, an urgent decision was required so that the children could return to school to commence term one, 2023. This is a case that will be determined by reference to where there is the least risk for the children.
BACKGROUND
The mother is the applicant in this case. She was born in 1980 and is presently 42 years old. She normally resides in the Region N area of New South Wales but is currently incarcerated following a conviction on criminal charges that will be discussed below. She is expected to be released on parole.
The father is the respondent in this case. He was born in 1968 and is presently 54 years old. He claims to live in a town outside Sydney, possibly with his sister, but the Court is sceptical about his evidence in this regard. It is possible that he lives in the former family home on a property in a rural area of Sydney. He claims to be unemployed. The father, like the mother, has an extensive criminal record, including for firearms and violence offences.
The second and third respondents, Mr J and Mr I, purportedly live in the former family home (“the family home”) together with their younger brother Y. Contrary to the terms of an existing order of this Court, the father spends time and communicates with Y, possibly at the family home, and probably at other places. The father claims that this takes place in the presence of Mr J and Mr I, but such are the pervasive concerns that the Court has about the evidence given by all of the parties in this case, it may be possible that this is not the case. Mr J was born in 2000 and is presently 22 years old. He owns his own business called “BB Pty Ltd” and describes his occupation as a tradesperson. Mr I was born in 1999 and is presently 23 years old and is employed by Mr J.
The fourth respondent in this case is Ms W, the older sister of Y and X. She was born in 2001, and is 21 years old. She currently lives, with her partner, in the mother’s home at Region N, together with X, and describes her occupation as working with animals.
Both X and Y have been diagnosed with attention deficit hyperactivity disorder (“ADHD”) and autism spectrum disorder (“ASD”) but the parties differ in their views regarding the severity and impact of both diagnoses on the children. There is a dispute between the parties as to whether the children are medication compliant and have access to all of the services available to them through the National Disability Insurance Scheme. They currently attend School L in Region N. X is in year 10 and Y in year eight. The children, but especially Y, have experienced behavioural issues at school. It has been difficult for those responsible for the care of the children, to ensure that they are consistently taken to school on time, or at all.
This matter has a long litigation history as is described in the procedural history set out below. As will be observed below, the behaviour of the parties in this matter is characterised by lack of regard or sensitivity to the needs of the children, or compliance with orders made by the Court. This family has divided into two tribes, the maternal and paternal tribe. Ms W is aligned with the mother, and Mr J and Mr I are aligned with the father. Orders for supervised contact between the children and the father have been made, but effectively sabotaged by the parties. The matter has been set down for final hearing and despite the reality that this is what this case needs more than anything else, the parties themselves managed to sabotage that final hearing. It is now listed for final hearing for five days before her Honour Justice Curran commencing on 22 May 2023. The final issues are both parenting and property.
This case is replete with allegations and denials of family violence perpetrated by each parent on the other and on the children, as well as mental health issues and drug and alcohol abuse. The police and the Department of Communities and Justice (“DCJ”) have had extensive involvement with the family. During the comparatively few occasions that the children have been able to spend time with Mr J and Mr I and/or the father, changeovers have been fraught with difficulty. The truth is elusive in this case so far, and a final hearing is needed so that the evidence may be robustly tested.
There are two previous interim parenting judgments in this matter. The first one is reported as Daeger & Daeger [2019] FCCA 3929 and the second as Daeger & Daeger [2020] FCCA 2500.
EVIDENCE
In support of their case, the father, Mr J and Mr I rely on the following documents:
(a)The father’s case outline filed 9 November 2022;
(b)The father’s affidavit filed 9 November 2022;
(c)Mr J’s affidavit filed 9 November 2022;
(d)Mr J and Mr I’s case outline filed 18 January 2023;
(e)Application in a Proceeding filed on 16 January 2023;
(f)Mr J’s affidavit filed 18 January 2023;
(g)Affidavit of Ms E filed 18 January 2023;
(h)Documents tendered and marked as exhibits R1–R3 on 19 January 2023.
In support of her case, the mother relies on the following documents:
(a)Case outline filed 18 January 2023;
(b)Application in a Proceeding filed 16 January 2023;
(c)Ms W’s affidavit filed 16 January 2023.
In support of her case, Ms W relies on the following documents:
(a)Case outline filed 10 November 2022;
(b)Minute of Order filed 4 November 2022;
(c)Her affidavit filed 4 November 2022;
(d)The mother’s affidavit filed 24 August 2022.
In support of his case, the Independent Children’s Lawyer relies on the following documents:
(a)Child Impact Report dated 16 September 2022;
(b)Document tendered and marked as exhibit ICL1 on 19 January 2023.
The Court relies on the following additional material as follows:
(a)Subpoenaed material produced by CC Health Service tendered and marked as exhibit C1;
(b)Subpoenaed material produced by DD Organisation tendered and marked as exhibit C2;
(c)Subpoenaed material produced by Ms EE Psychologist tendered and marked as exhibit C3;
(d)Subpoenaed material produced by NSW Police tendered and marked as exhibit C4;
(e)Subpoenaed material produced by FF Hospital tendered and marked as exhibit C5.
PROCEDURAL HISTORY
The mother commenced these proceedings on 6 May 2019 (where she proposed sole parental responsibility, the children live with her and spend no time with the father) when the father retrieved the children from school and retained them in his care.
On 9 May 2019, interim orders were made by Judge Monahan that provided for the children to live with the mother, spend supervised time with the father (after the parents complete intake at C Family Centre) and for an Independent Children’s Lawyer to be appointed. Injunctions were also made to restrain the father from approaching the mother and the children and intimidating, harassing or verbally abusing the mother.
On 6 June 2019, the father filed a response where he proposed he hold sole parental responsibility, the children live with him and spend time with the mother on alternate weekends from Friday to Monday.
On 17 July 2019, further interim orders were made for the children to live with the mother and for the children’s time with the father to progress over a period of months supervised by the maternal aunt, Ms A.
On 11 September 2020, an application for the maternal aunts, Ms A and Ms D, to be joined to the proceedings was dismissed.
On 22 September 2021, an application for the Independent Children’s Lawyer to be discharged was dismissed. Further, an application to join Mr J and Mr I to the proceedings was dismissed. An Application for Review was later filed by the father on 22 March 2022 but these orders were maintained.
On 18 May 2022, the matter was set down for final hearing on 23 January 2023 with an estimated hearing time of seven days.
On 16 August 2022, orders were made in chambers requesting that the DCJ intervene in the proceedings in circumstances where the Court was advised that the mother had been sentenced to imprisonment, her appeal had been unsuccessful and she had been taken into custody.
On 25 August 2022, Mr I and Mr J were joined as parties to the proceedings, Ms W was directed to file material, and the final hearing on 23 January 2023 was vacated. Interim orders were also made for the children to spend time with Mr J and Mr I on each Saturday from 10.30am to 5pm and each Wednesday from after school to 7pm until the next Court event. Mr J and Mr I were restrained from bringing the children into contact with other family members, including the father.
On 21 September 2022, the contact arrangements were varied such that the children spend time with Mr I and Mr J each Sunday from 8am to 7pm and each Wednesday from after school to 7pm.
The interim applications filed by Mr J and Mr I were heard on 28 November 2022, where judgment was reserved.
Whilst judgment was still reserved, the Court was advised on 5 January 2023 from the mother’s legal representative that Y had been retained by Mr J and Mr I after Christmas Day.
On 16 January 2023, Ms W filed a recovery application for Y and Mr J and Mr I filed a recovery application for X. The hearing in relation to these applications took place on 19 January 2023 and judgment was reserved.
APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, 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 for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests:
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
COMPETING PROPOSALS
Interim Hearing on 28 November 2022
Prior to the interim hearing listed on 28 November 2022, the parties each provided the Court with a proposed Minute of Order.
The father proposed the children live with Mr I and Mr J and spend time with Ms W each alternate weekend from after school on Friday to before school on Monday. He further proposed the children spend time with him for a period of two hours each Sunday supervised by Mr I and Mr J, with that time to be gradually increased to any amount of time in the presence of Mr I and Mr J. He sought restraints that Ms H not be present at changeover and that Ms W be restrained from allowing the children to travel in an unlicensed vehicle, be home alone and visit any correctional facility.
Mr J and Mr I proposed the children spend time with them each weekend from after school on Friday to before school on Monday and each Wednesday afternoon. They proposed the children spend time with the father in the same manner that the father proposed.
Ms W proposed that until the mother is released from custody, the children live with her and she have sole parental responsibility. Ms W further proposed the children spend time with the mother via audio visual link (once or twice per week) and in person at the GG Correctional Centre HH Town (up to once per fortnight), spend no time with the father and, spend time with Mr J and Mr I each alternate Sunday from 8am until 6pm and Wednesday afternoons with further time in the school holidays.
The Independent Children’s Lawyer proposed that whilst the mother is in custody, the children live with Ms W and spend time with Mr J and Mr I in line with the orders made by this Court on 21 September 2022 (each Sunday from 8am to 7pm and each Wednesday afternoon). He also proposed that Ms W be permitted to take the children on one occasion during the school holidays for an in-person visit with the mother at the correctional facility.
Interim Hearing on 19 January 2023
During the interim hearing on 19 January 2023, the father, Mr J and Mr I sought orders pursuant to their Application in a Proceeding filed 17 January 2023. They sought a recovery order in relation to X and that the children live with Mr J and Mr I and spend time with the father at any time requested by them.
Ms W sought orders enclosed in her Application in a Proceeding filed on 16 January 2023. She sought a recovery order in relation to Y, the children live with her and spend no time with the father, Mr J and Mr I.
RELEVANT FINDINGS FROM THE MATERIAL BEFORE THE COURT
A Family Report was prepared in this matter and is dated 7 June 2021 (“Family Report”). The recommendations at paragraphs 126 to 131 were as follows:
Unless there is evidentiary material to suggest otherwise, it is recommended that,
126. Consideration be given for [Ms Daeger] to have sole parental responsibility.
127. The children live with [Ms Daeger] and spend no time with [Mr Daeger].
128.There is a protection Order stipulating [Mr Daeger] does not go within 500 metres of [Ms Daeger], her home, the children and the children’s schools.
129.[Ms Daeger] engage with a service that can provide case management support to the family to support [Ms Daeger’s] parenting to meet the children’s needs.
130.[Ms Daeger] engage with a service to support her general emotional wellbeing such as a counsellor or psychologist, if she feels her mental health is compromised.
131.That [Mr Daeger] seek professional support for his mental health and engage in recommendations made by the treating psychologist or psychiatrist.
The family consultant adopted a conservative risk focused approach but acknowledged, for example at paragraph 112, that it was possible that both parents had perpetrated violence towards each other and their children throughout their relationship. As it turns out, the Court believes that this is the most likely scenario.
There is a Child Impact Report dated 16 September 2022 (“Child Impact Report”). This is the most recent independent and expert evidence relating to the children. At the time of the interview, the children had been living with Ms W, and her partner Ms JJ (“Ms JJ”), in the family home since mid-2022 when the mother was incarcerated. The children were spending time with Mr J and Mr I, but not with the father. The family consultant noted that the children had been living with the mother since the date of separation in January 2019, except for a period of time mid-2019. The mother had been sentenced in mid-2022 with a non-parole period, which is to end early 2023.
The Child Impact Report stated that the children’s developmental priorities are for them to have a safe and stable home environment, remain engaged in education, have safe relationships with family members and have stable support services including access to familiar health professionals. If the children have experienced or been exposed to family violence, there is the likelihood of profound impact on their social, emotional, cognitive and educational development. It may also have a negative effect on their ability to share openly their views about spending time with the family. The children have experienced significant changes in their family composition since their parents separated. Remaining in the family home provides them with a sense of stability and security, especially while the mother is incarcerated. The children are both very much aware of the litigation and burdened by it. The key considerations and pathways for decision making at paragraphs 42 to 52 are reproduced in the first schedule to these reasons for judgment. Events which have occurred since the Child Impact Report suggests that some of these recommendations have become redundant.
The limitations of both the Family Report and the Child Impact Report must be acknowledged. Much has happened since both documents were produced. The Family Report, prepared before the mother’s conviction and incarceration, may not have properly considered the impact on the children of the unreliability of the mother’s evidence. The Family Report may not have fully appreciated the antisocial aspects of the behaviour of the mother and Ms W, as will be discussed below. Some of the fears of the children that are identified in the reports seem inconsistent with what evidence there is about their interaction with the father, Mr J and Mr I. There is a cloud of doubt over the veracity of all of the evidence given by all of the parties in this case with the exception of the older brothers of X and Y, Mr J and Mr I. In addition, there is material before the Court by way of subpoena of business records produced by various bodies. This will be discussed below where relevant.
Meaningful relationship
Doing the best the Court can from the evidence, much of which is highly contested, the children seem to have a meaningful relationship with both the mother and the father, Mr J, Mr I and Ms W, and each other. They are the focus of the litigation between the adults in their lives whose relationships with each other vary from toxic, to strained, to warm.
Risk of harm
The maternal case against the father is that he has perpetrated violence against her and the children, and this is the greatest risk of harm to them, both in a physical and psychological sense. The paternal case against the mother and Ms W is based not just on violence perpetrated by them on the children, but also on neglect.
The maternal case is best summarised in the Family Report in which recommendations were made for the father not to spend time with the children, principally because of the violence allegedly perpetrated by him towards the mother and the children. The Court observes that there is a consistency in the history of family violence that is given by both the mother and Ms W over an extended period of time and even before the commencement of this litigation. In the mother’s first affidavit filed in the proceedings on 6 May 2019 she gives an account of a serious incident that took place at the family home, where the police were called. The mother contends that as she was so terrified of the father, she would not give evidence against him, so he was not convicted.
The paternal case raises concerns about the welfare of the children in the care of both the mother and Ms W.
The medical records pertaining to Ms W suggest long-term mental health issues. In context, however, the inference from the medical records is that the genesis of these mental health conditions is the family history of domestic violence perpetrated by the father. It is concerning that Ms W has not persisted in engaging with those supporting her with her medical and mental health. It appears her last assessment was in early 2022. After that the records indicate she had an incident with prescription drugs and was hospitalised. Moreover, the records indicate sporadic attendance at appointments with those seeking to assist her with her mental health.
The 2022 school attendance records for both Y and X are problematic. There are many unexplained partial absences suggesting, at the very least, an inability to get to school on time. Y has experienced behavioural problems at school in 2022 resulting, at one stage, in what may have been a suspension of normal schooling, with a gradual resumption in a controlled and supported environment. X was reported as having insufficient food at school, and of sleeping at school. These problems must have been known to both the mother before she was incarcerated and Ms W after the children came into her care, but no disclosure is provided in their affidavits in that time period. The Court accepts that this must have been a tumultuous time for the maternal family as the mother was facing criminal proceedings and was ultimately convicted and incarcerated. Even so, these events demonstrate how reduced parental capacity may have an adverse impact on the children. The Court notes that it is only by examining the mother’s 2021 affidavits that she acknowledges the difficulties getting the children to school because of their ASD and ADHD.
The police COPS records for mid-2021 record a disconcerting incident involving both the mother and Ms W which occurred at KK Town. Police seized items found in the mother’s motor vehicle. The mother denied any knowledge in relation to the items and suggested to police that they belonged to Ms W. Ms W denied any knowledge about this and refused to allow police to search her vehicle. The police apparently explained that they had the power to search her vehicle without her consent but when they tried to do so she physically resisted, was forcefully subdued and handcuffed. Her vehicle was searched and police found illicit substances. She denied ownership. Later that night the mother was transferred to a local hospital for a mental health assessment, where she remained as an inpatient for a number of days. Both Y and X were present at this incident. Ambulance records are before the Court relating to the mother’s mental health admission. The notes record the presence of a woman who was the mother, her daughter Ms W, and “family” thus suggesting the children were present. The notes record that the patient was unwilling to completely disclose the events of the night but referred to an argument with her daughter about a missing bankcard. There is reference to a telephone conversation with a cousin who reported that the mother was acting strange, her behaviours had been escalating, and paranoia was present. The mother is recorded as saying that both the police and the paramedics were “fake” including fake undercover police hiding behind bushes. She admitted that she used drugs that morning. She said that her daughter had been intentionally triggering her, and that she had a history of domestic violence. In the notes she is described as:
very agitated towards police and paramedics, flat response, soft/slow speech paranoid. Denies suicidal or self-harm ideation. Denies auditory or visual hallucinations. Patient [sic] non-compliant with observations, non compliant with personal information such as home address.
Records are produced by the mental health facility at which the mother was admitted in mid-2021. The records suggest that the mother’s family lawyer was aware of her admission because she rang her on the day of her admission 2021, and the next day, wrote to the hospital requesting that the mother be provided with her mental health plan. The hospital notes frequently refer to the mother’s hostile and abusive behaviour towards staff including spitting and swearing at staff who repeatedly asked her to calm down as they were trying to help, and racial comments and throwing a phone. At one point her response was recorded as “…. I would have got her on the ground and put my foot through her mouth”. When a hospital staff member admonished the mother for threatening staff and mentioned calling the police the mother is recorded as saying “I’m better off in jail than here, especially with my violent past”.
The medical certificate as to examination or observation of person dated mid-2021 provides as the basis for the scheduling, the mother’s expressed paranoid thoughts (“has seen a dead boyfriend alive”), and the mother having been suspected to have taken drugs and driving the car with two underage children.
The recent criminal history for the mother refers to the following. In mid-2020, the mother received a community corrections order following a number of convictions. A short time later, in 2022, she was convicted and sentenced to imprisonment with a non-parole period of some months. A severity appeal was lodged and came before Town B District Court in mid-2022. The mother was again sentenced to imprisonment with a non-parole period of some months but backdated two days to take into account time spent in custody.
From paragraphs 32 to 36 of the mother’s affidavit filed on 22 June 2021, she deposes to having been in a relationship with a man named Mr LL. She alleges that she found out he had been caught up with criminal activities after he died in late 2020. She further deposes:
34. There is still a question mark over the actions of the police on the day of his death and a coronial inquest is to be held. I am in contact with the homicide squad and have been told that they are “unsure of his involvement in the situation” given that he was only a passenger in the car.
35.Despite his criminal activities, he was good to me, was good to [Ms W] and was good to the boys when he was at our property…I know that they established a good rapport with him and we were all devastated when he was killed.
The Court finds this evidence troubling and expects that it will be a matter for further enquiry at the final hearing.
A forensic psychological report was prepared in relation to the mother on 11 July 2022 following interviews that occurred on 1 and 4 July 2022. These documents were produced to the Court as a result of a subpoena issued by the Independent Children’s Lawyer on 17 August 2022. The document makes clear that the report was to be used in the context of the criminal proceedings referred to in the preceding paragraph. The report was commissioned, on behalf of the mother, by the same firm of solicitors who represented her in the present proceedings, but a different solicitor. At paragraph 9, the mother’s thought content was observed to be paranoid. This followed a mid-2021 incident relating to a truck that she was driving having been tampered with and several people following her in a vehicle in events which she believed were orchestrated by the father. The mother is recorded as telling the psychologist that around the time of these events she had been diagnosed with a psychotic episode. She later explains that she spent time in hospital. She denied any other episode of psychosis. She also denied that she had ever been a drug user or was taking substances at the time of the psychotic episode.
The mother reported that from 2012 she worked as a driver “sometimes on a full-time basis until approximately early 2022.” She was then employed as an assistant and continued to work in that capacity as at the date of interview. At paragraph 23 she refers to an attendance at a hospital in mid-2021. At paragraph 24 the mother represented that over the last 10 years she had been primarily employed and had not been supported by Social Security benefits. She told the psychologist that at the time of the offence she was in a relationship with a man who was a drug user and also involved in crime, but she was not aware of this. He died in late 2020. The Court observes that this is likely the same relationship disclosed by the mother in her affidavit filed 22 June 2021 referred to above.
The mother gave a history of family violence perpetrated by the father including emotional, psychological, physical, and sexual abuse as well as coercive control. She alleged that the father was also physically violent toward the children. At paragraph 30 the author of the report notes that the NSW Police Facts Sheet indicate both the mother and the father are “recidivist domestic violence reporters with numerous incidents of offences, charges and AVO applications dating back to 1999.” The mother said that in relation to any of her domestic violence offences, the context was self-defence.
At paragraph 46 the author of the report observes that the mother’s criminal history dates back to 2006. The observation is made that: “For each of her offences, [Ms Daeger] was observed to provide a detailed rationale in which she was portrayed herself as acting in self-defence or becoming unknowingly involved in an offence.”
At paragraph 48 the mother describes the events in relation to which she was facing charges and insisted that the father had was attacked and threatened her. The manipulation of the photographic evidence was not her fault and all she was guilty of was providing the wrong photo to the police. The Court observes that the mother’s minimisation of the seriousness of the charges against her, and externalisation of responsibility for the manipulation of the photographic evidence, is disconcerting from the perspective of the mother showing insight into the consequences of her actions on those around her including, indirectly, X and Y.
At paragraph 54 the author of the report discusses the results of the mother’s personality assessment inventory test observing that the mother:
… may be blindly uncritical of her own behaviour and insensitive to negative consequences associated with her behaviour, tending to minimise the negative impact that her behaviour has on others and herself. Given the high level of defensiveness, the clinical profile potentially reflects considerable distortion and minimisation of difficulties in several areas, and the results need to be reviewed with this in mind.
The criminal history for Ms W covering the period 2020–2021 refers to a conviction, resulting in a fine and a community correction order. The community correction order seems to have been breached, resulting in a mental health assessment and a direction to engage in treatment under supervision. The KK Town incident resulted in Ms W being convicted of an offence, for which a further community correction order was imposed. In mid-2021 she was convicted of a driving offence, was fined and disqualified for a period. In late 2021 she was charged with another driving offence.
The COPS records indicate that the partner of Ms W, Ms JJ, also came to the attention of police in relation to driving offences, drugs, and domestic violence.
It is convenient at this point to record that on 20 April 2021, both the mother and Ms W were interviewed for the purposes of the Family Report. The incidents referred to above occurred after the interviews, but before the report was released. At paragraph 30 the report records the assertion by each parent that they do not have issues with drug or alcohol use, but the allegation that the other has issues with illicit substances and problematic alcohol consumption. They likewise asserted that they do not have mental health issues, but the other has poor mental health. At paragraph 49 the mother asserts that she rarely consumes alcohol and does not use drugs. The mother was aware of the father’s allegations that she had a history of drug use and was involved in drug dealing but insisted that she was regularly drug tested for work and denied the allegations. The mother alleged that it was the father who had the drug and alcohol problem as he was a ‘long-term user’ of drugs and alcohol. At paragraph 50 the mother said that she had no diagnosis of mental illness and was not prescribed with any medication to support her mental health.
There are voluminous records from the DCJ relating to the children. The interpretation of this material must be undertaken with caution because of the likelihood of multiple reports by the paternal family. When the focus is just on 2022, and by way of summary only, the children have come to the attention of the DCJ who has assessed the primary issue as being neglect (risk of significant neglect) in the form of serious illness, developmental delay, inadequate supervision, inadequate basic care, food/nutrition, educational neglect, and physical abuse in the form of non-accidental injury and dangerous behaviour.
In early 2023, Y was taken to see a local doctor by one of the adult members of the paternal family, probably the father. The doctor’s report indicates that Y presented with anxiety and depression with a history of physical and mental abuse by his biological mother and biological sister, commencing in mid-2022. Whether this history was given by Y, or the adult who accompanied him, is not clear. The doctor provided a mental health care plan and referred him to CC Health Service for specialist assistance. The narrative provided to the doctor conveniently fits with the narrative contained in the statement to the police given by Y. For reasons that will become apparent on reading this judgment, the Court must be very cautious both about placing weight on either the attendance on the doctor, or the police interview, or entirely ignoring these matters.
The more objective material about risk of harm to the children, contained in the business records referred to above, provides a dismal picture about the welfare of the children in the care of the father, the mother and Ms W. The Court expresses its surprise that the Independent Children’s Lawyer was not more concerned about some of this material and did not seek to draw the attention of the Court to it. The material about Ms W was highly relevant to the care arrangements for the children since the mother was incarcerated, but was not drawn to the Court’s attention by the Independent Children’s Lawyer. The psychologist report relating to the mother raises concerns about the level of her insight. One of the major imminent changes in the lives of the children is the return of the mother into their lives, but seemingly scant consideration has been given as to the impact of this on them, particularly in terms of the mother’s attitudes about the children’s relationship with the father, Mr J and Mr I. It must be obvious to the Independent Children’s Lawyer that evidence needs to be placed before the Court about what happened to the mother whilst she was incarcerated, particularly in terms of her behaviour, and any therapeutic intervention which was undertaken. If the mother’s attitude continues to be that which she expressed to her own psychologist, further concerns arise about the psychological well-being of the children in her care.
Views of the children
The views of X can be inferred from the decision that he made to return to live with Ms W, rather than stay with Mr J and Mr I. Despite the conditions that he suffers, he is of an age where the Court fears that he will make his own decision about where he lives. He has a part-time job which is seemingly important to him, close to where the mother lives.
The Court was deprived of the opportunity of having any evidence about the current views of Y because he declined to meet with the Independent Children’s Lawyer notwithstanding the earnest efforts of the Independent Children’s Lawyer to facilitate this.
In the paternal case, Y declined to meet with the Independent Children’s Lawyer because he believes, based on paragraph 23 of the affidavit of Ms E filed on 18 January 2023, his paternal aunt, that he does not trust the Independent Children’s Lawyer because he “works for [Ms Daeger] (the mother) who he believes, based on what he overheard his mother saying, had received “extra money to help him out for fuel””. This was a thinly veiled allegation of corruption which, apparently, no one sought to disabuse him of despite the inherent implausibility of the assertion. By neither questioning nor correcting Y’s belief, the adults around him are supporting it. Even if Y believed this, the adults in his life should have done everything to facilitate Y meeting with the Independent Children’s Lawyer. It did not suit their agenda.
Much will be said in these reasons about the weight that should be given to the views of Y. Indeed, an unsatisfactory aspect of this entire litigation is the selective ability of the adults in the lives of X and Y to either unequivocally accept or reject what the children say, depending on the agenda of the adults, and irrespective of plausibility. For example, the essence of the paternal case is that the Court should place great weight on the statement to police given by Y, but at paragraph 58 of the Family Report, the father says: “….they just repeat the stupid shit she is going to say. [Y] will talk shit and talk garbage”.
It is also highly likely that the children, who are caught in the crossfire of a toxic parental conflict, are saying things that they believe the person listening to them wants to hear.
Nature of relationships
Doing the best the Court can on the limited, contested evidence, both X and Y seem to have a good relationship with each other, and they have a good relationship with each of their siblings. Depending on whose allegations/denials of violence abuse and neglect are accepted, they may also have a good relationship with both the mother and the father. The relationship between the parents is toxic. Theirs is a hatred. There is no objective basis for believing this will abate. The adult children, Ms W, Mr J and Mr I (“the adult children”), are aligned with their parents, on gender lines. It is possible, however, that the adult children, whilst aligned with their parents, nonetheless have a workable relationship between them.
Opportunities
The toxic nature of the relationship between the parents has meant they have each, at times, successfully excluded the other from the opportunity to participate in making decisions about, or spending time and communicating with the children. The father has been excluded by orders of this Court, and the mother has been excluded by orders of another Court incarcerating her.
Maintaining the child
This is not a relevant or determinative issue in this interim hearing.
Likely effect of change
Because of the toxic nature of the relationships between the members of the paternal and maternal family, the impact of change on both X and Y is accentuated. They lived with their mother from mid-2019 to the date that she was incarcerated in mid- 2022 when they went into the care of Ms W. The children have not lived with the father since mid-2019 and they have never lived with Mr J and Mr I before the incident that brings this matter back before the Court. Since living with the mother and Ms W, the children have not been able to spend meaningful time with the father and even their time with Mr J and Mr I has been a recent development. The mother is due to be released from prison in early 2023 which provides an opportunity for their relationship with her to be resumed, but which raises unknown issues about the state of mind and emotional health of the mother on her release and the risk this presents to the children.
Subject to risk of harm considerations , the impact of both the children being placed in the care of Mr J and Mr I would seemingly be greater than the impact of their returning to Ms W/the mother’s care, save for the mother’s state of mind and emotional health on her release. The mother who went to prison may not be the same as the mother who comes out. The toxicity of the parental relationship means that there is no guarantee that any order made for the children to spend time with and communicate with the other side of the family will be successfully implemented, thus magnifying the impact of the change. The history of this matter is littered with examples of orders that are simply ignored when the parents so choose.
If the children are reunited and in the care of Ms W and the mother, there will be no change of schools. On any other scenario, there will be a change, but there might also be the prospect of the children being more fully supported in their schooling by the paternal family.
Practical difficulty and expense
The paternal family lives in a rural area on the outskirts of Sydney, whereas the maternal family lives in the Region N area. Notwithstanding what might in other cases be a formidable obstacle to the children spending time with other members of their family, the adult children have somehow managed to successfully navigate an arrangement that saw Mr J and Mr I spend time with X and Y both on weekends and during the week. That is not to say this arrangement was not without its problems but rather that, on balance, it was sufficient. On this basis, the Court does not consider this to be a determinative issue.
Parental capacity
Even accepting that none of the evidence has been tested, what material there is before the Court suggests that there are potentially serious concerns about the parenting capacity of both parents and possibly even Ms W.
Maturity, age, lifestyle and background
Whilst the children and their family seem to have enjoyed the benefit of a rural lifestyle, they have also experienced considerable disruption and dislocation to their lives. The circumstances in which they were relocated to Region N is a matter for cross-examination at a final hearing, and is a matter of interest to the Court. There are themes of violence, mental health and drug and alcohol issues which seemingly episodically dominate the lives of certain members of this family.
Parental attitudes
The totality of the evidence indicates that the parents and the adult children are unable to contain to themselves their feelings and views about the present conflict and the parental separation. The Court is left in no doubt that the children have been systematically exposed by the adults in their lives to the negative, if not toxic, views they hold about the other parent. That this is not only contrary to the terms of existing orders, but unacceptable parenting, is self-evident. They seem to have no insight about this.
An attitude of indifference towards law and authority is evident in the lives of the parents and Ms W. The mother’s incarceration resulted from her making heinous false accusations which she then seemingly seeks to minimise and deflect responsibility for. The father seems to have no hesitation in ignoring Court orders, when it suits him. Ms W has experienced problems with the police. They are problematic role models for the children. The deficits in the parent’s insights about the needs of their children is seemingly acute.
All the adults in this case have succumbed to participation in what is, in reality, tribal warfare involving a battle to be won rather than a problem to be solved. Serious allegations are made, and denied. Other adults are enlisted into the cause of one parent or the other.
Family violence
Each parent makes serious allegations of violence against the other. Until these allegations are tested in cross examination, all the Court can do is to look at the more objective evidence which tends to suggest that the parental relationship was characterised by violence, but the nature, extent, and aetiology of the same is unclear.
The mother’s allegations about the violence perpetrated on her is tarnished (but not necessarily diminished) by her conviction and imprisonment for making serious false allegations. She has demonstrated, beyond a reasonable doubt, her capacity to make false allegations. This does not necessarily mean that none of her allegations have any substance, which is very much the tenor of the paternal case. Respectfully, both the father and those who advise him should reconsider this, and both the mother and those who advise her should earnestly consider the ramifications of her conviction and imprisonment and her attitudes in relation to the same.
Each parent makes serious allegations of violence by the other against one or more of the children. In the present interim application the paternal family allege that the children should be placed in their care because of allegations made by Y to the police in a statement made in early 2023. The Court places minimal weight on this document. The brevity of Y’s statement is inconsistent with the submissions made on behalf of the paternal family about the context of the interview. The presence of the paternal aunt in the interview causes the Court disquiet given the highly partisan stance that she adopts in her affidavit. There is a material inconsistency between, for example, paragraph 6 of Mr J’s affidavit filed 16 January 2023, and Y’s account of an assault on him by his mother before she was incarcerated for another reason. The allegations that Y makes about family violence perpetrated by the mother and Ms W arise for the first time after he is retained in paternal care contrary to the terms of Court orders. When both Y and X were interviewed for the purposes of the Child Impact Report there was no reference to violence perpetrated by the maternal family. Indeed, if any fear was expressed by Y, it was about spending time with the father at the family property. The photographic evidence heavily relied on, on behalf of the paternal family, is equivocal despite the certainty with which the evidence was presented. It shows a bruise. It may be indicative of corporal punishment. It does not necessarily indicate that Y was assaulted as he contends in his statement to the police. Moreover, the Court has already expressed concerns about the weight that can be placed on anything that Y says, in the context of this toxic parental conflict.
The mother alleges that the father was violent towards Ms W. Perhaps the strongest corroborating evidence of this was found in a document tendered in the paternal case, the medical records pertaining to Ms W. These contain multiple reports by Ms W of a family history of domestic violence perpetrated by the father, both physical and psychological.
Order least likely to cause re-litigation
Based on the history of this matter the Court has little confidence that any order that requires a measure of diligent and consistent adherence to the orders, let alone communication and cooperation, will be complied with. The toxicity of the parental relationship, which has infected the other members of the family, means that an order for a child to live with one parent and to spend time and communicate with the other faces formidable challenges as to implementation even in the context of an imminent final hearing. The order least likely to cause re-litigation regrettably would mean that the children would not spend time with the parent with whom they do not live or members of the broader family.
As it is a relatively short time before the final hearing of this matter, again dependent on the capacity of the parents to comply with trial directions and cooperate with Family Report interviews, it would be tempting to allow this consideration to justify making an order that the children live with one family tribe and not spend time with the other. The Court does not believe that this would be in the best interests of X and Y.
CONCLUSION
The Court has foreshadowed that this interim decision must be made on the basis of where there is least risk for the children.
Acknowledging all of the problems that have been identified above, and doing the best the Court can, the Court believes that the least risk for Y and X is for them to live with their brothers Mr J and Mr I pending the final hearing, but to spend time and communicate with the mother and Ms W as often as that can be made practicable in the circumstances. The Court is concerned, however, that X will resist such an order. It is for this reason that the Court has, reluctantly, concluded that X will need to remain in Ms W’s care for the time being, despite the concerns the Court has about her capacity to parent him. The Court is, however, somewhat reassured by her negative drug tests in the past.
For Y, of course, this means a change of school, but given the risk issues identified in these reasons, even this dramatic change is warranted.
Until records pertaining to the mother’s incarceration can be presented to the Court and properly considered by the Independent Children’s Lawyer and the Court, the mother’s time with the children must be supervised.
Likewise, the father’s time with the children must be supervised.
The choice of supervisors is problematic. The obvious choice of members of the maternal and paternal family seem contraindicated because of the partisan alignments that have been adopted by them, as well as the Court’s concern that they had advertently or inadvertently further embroiled the children in the adults’ dispute. The harsh reality in this case, however, is that none of the parties have the financial means to afford private supervision services, and there remain inordinate delays to access community-based supervision services. Whilst this is less than ideal, the father’s time with the children will need to be supervised by either of Mr J and Mr I, and the mother’s time with the children will need to be supervised by Ms W or another agreed adult. All supervisors will need to sign written undertakings to the Court about their obligations of supervisors and in relation to non-denigration and non-discussion with or in the presence of the children.
The orders will provide for Y and X to spend each weekend together, alternating between their brothers and sister. Changeover is to be at school wherever possible. No orders will be made for communication as this is another opportunity for parental conflict. X’s part-time job is very important to him and his wellbeing and thus he should be able to keep working the shifts reasonably allocated to him even when spending time with Mr J, Mr I and the father.
The Court acknowledges that these orders will have a significant impact on the boys and the adults in their lives. It is the least of the worst options. Rather than the adults in X and Y’s lives lamenting how unfair or inconvenient these orders are they could focus on trying to support the boys through an exceedingly difficult time in their lives that has been created by the same adults who would dare to lament these orders.
Once the Court has evidence about the mother’s experience of her incarceration, probably in the form of the Corrective Services records, it may be possible to review the requirement for her time to be supervised.
It may be time for the Independent Children’s Lawyer to revisit the need for each of the parties in this case to be randomly drug tested.
THE ROLE OF THE LEGAL REPRESENTATIVES
The Court must, regrettably but openly, express its concerns about the legal representation of the parties and the children in this case.
With the greatest of respect to each of the lawyers in this case it is possible that they have lost sight of their professional roles and their responsibility to the Court. Both the solicitor for the mother and the father have, at times, said things and done things that have led the Court to form the impression that they have an interest and involvement in this case that is more than professional. Both solicitors are to be lauded for their willingness to advocate for, as well as assist members of the family who were not formally represented such as the father, and Ms W. Perhaps inadvertently, this strengthened the Court’s impression about tribal allegiances within the family and it was not always entirely clear in whose interests submissions were being made.
The zealousness of the advocacy of the solicitor for the paternal family often led to her purporting to lead evidence from the bar table and continuing to do so despite repeated admonitions not to. Her professional objectivity at times diminished.
The solicitor for the maternal family should perhaps reflect on possible conflict-of-interest and duty issues arising out of her firm’s representation of the mother in criminal proceedings at a time when the relevance of that matter in the family law proceedings was self-evident but not necessarily disclosed in a timely manner.
Both solicitors should perhaps refresh their memory about the primary duty they owe to the Court, a duty above and beyond that owed to their client.
The over-zealousness of the lawyers for the parties perhaps stands in strong contrast to the under-zealousness of the Independent Children’s Lawyer, particularly in terms of drawing the Court’s attention to material in the subpoenaed documents, often subpoenaed by the Independent Children’s Lawyer himself, relevant to risk of harm to the children. The concerns raised in the paternal case perhaps should have been taken more seriously. A good Independent Children’s Lawyer is proactive, not reactive.
The interaction between the three lawyers in this case has, at times, been less than optimal particularly in the context of the thinly veiled but plainly implausible allegations of the so-called corruption of the Independent Children’s Lawyer. The lack of civility between the parents and their respective tribes does not justify any lack of professional civility between the lawyers.
SECTION 91B
An application for a s 91B order has previously been made requesting the DCJ to intervene in the proceedings. The DCJ declined to intervene on that occasion. The Court intends to make another such order and provide these reasons for judgment to the DCJ in support of the request. It is the view of this Court that both Y and X need a level of consistent professional and personal support that their parents are unable to provide for them. The care provided to them by the adult children is admirable but the Court doubts whether it can be sustained in the medium to long-term.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 25 January 2023
SCHEDULE 1
KEY CONSIDERATIONS AND PATHWAYS FOR DECISION MAKING
42. The primary dispute issue appears to be, with whom the children should live, while their mother is incarcerated.
43. Due to the current involvement by DCJ, the Court may benefit from obtaining up to date child protection records.
44. In the interim, as per the current arrangement, X and Y would likely benefit from living with Ms Daeger and spending time with their brothers.
45. Given the information that the children are fearful of their father attending the property and that their father may be recording conversations between the children and their brothers, the children would likely benefit from not attending the property and spending time with their brothers in the Region N area. In addition, it is understood that the brother’s property is some hours from Region N, which makes travel to and from this location impractical.
46. In the interim, due to the allegations of family violence that are known to the Court and until the father can demonstrate a capacity to follow the Court Order to attend an Intake session at a supervised contact centre, X and Y would likely benefit from spending no time with their father.
47. If their father can demonstrate he can attend an Intake session, X and Y may benefit from attending supervised contact with their father, once per month, at a supervised contact centre such as MM Contact Centre in Region N in NSW. The children’s choice whether they attend should be respected.
48. While Ms Daeger is incarcerated, where possible, the children would benefit from continuing to communicate with Ms Daeger. Given Ms Daeger is currently incarcerated in the NN Correctional Centre, a face-to-face visit, no more than once per month, may be appropriate.
49. The children and Ms Daeger may benefit from meeting with the children’s NDIS support coordinator to ascertain whether NDIS funding can allow for any additional support such as transport, mentoring or respite care.
50. The father, Ms Daeger and brothers may benefit from attending a parenting course, such as OO Program, which is provided by CC Health Service, Region N and PP Family Services.
51.Ms Daeger may benefit from seeking support through a service, such as the Youth and Family Case Management service through C Family Centre, City QQ and Region N, for practical support to bolster her capacity as the children’s primary carer.
52. The Court may wish to consider an order that prevents the family members from requesting excessive or unreasonable welfare checks and notifications through DCJ and the police.
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