Dalca and Hamid
[2009] FamCA 1256
•22 December 2009
FAMILY COURT OF AUSTRALIA
| DALCA & HAMID | [2009] FamCA 1256 |
| FAMILY LAW – CHILDREN – Magellan list – allegations of family violence – serious risk of physical and emotional abuse – matters pre-dating last contested hearing considered – no orders entitling the father to spend time with or communicate with the children |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 4, 60B, 60B(1), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 60CD(2), 61B, 61DA(1), 61DA(2), 61DA(3), 61DA(4), 62G(2), 62G(3A), 65DAC(2), 65DAC(3), 69ZT Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| D and D [2005] FamCA 356 |
| APPLICANT: | Mr Dalca |
| RESPONDENT: | Ms Hamid |
| INDEPENDENT CHILDREN’S LAWYER: | Agricola Wunderlich & Associates |
| FILE NUMBER: | DGC | 542 | of | 2008 |
| DATE DELIVERED: | 22 December 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATES: | 3, 4, 5, 6, 7, 10, 11, 13, 14, 17, 18, August 2009 and 22 and 23 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gary Glover |
| SOLICITOR FOR THE APPLICANT: | Bayside Solicitors |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms M Glaister |
Orders
IT IS ORDERED:
That all previous parenting orders be and are hereby discharged.
That the mother have sole parental responsibility for the children D born … September 1994 and N born … July 1998.
That the children live with the mother.
That the mother direct and authorise the proper officer of any school at which the children or one of them from time to time attend to provide copy school reports of the child or children to the father and to the paternal grandmother, Mrs Dalca, by pre paid post to his/her residential address.
That the mother do all acts and things necessary to send a school photograph of each child to the father and to the paternal grandmother once each year commencing 2010, such photographs to be sent by prepaid post to his/her residential address and to be obtained at the expense of the mother.
That the father forthwith notify the wife and the proper officer of any school from which he has received a report or is aware that the children (or either of them) attend as students of any alteration of his address and/or the address of the paternal grandmother from the following:-
a. Mr Dalca, …, Victoria;
b. Mrs Dalca, …, Victoria.
That the mother be responsible for serving a sealed copy of this Order on the proper officer of any school at which either child is enrolled as a student, such service to be effected, at the mother’s discretion, by either personal delivery or by pre-paid post.
That the father and the mother be at liberty to provide a copy of the reasons for this decision to any psychologist or other appropriately qualified person who is treating one or both of the children or himself or herself.
That after the expiration of 30 days and subject to any further order of the Court, all documents produced on subpoena or tendered in evidence be returned to the party producing or tendering same.
That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS NOTED BY THE COURT that the effect of this Order is that the father has no enforceable right or entitlement to spend time with or to communicate with the children or either of them.
IT IS NOTED that publication of this judgment under the pseudonym Dalca & Hamid is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 542 of 2008
| MR DALCA |
Applicant
And
| MS HAMID |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the children D, born in September 1994, and N, born in July 1998. The father seeks to have N reside with him whilst the mother seeks residence of both children and for the father’s time with them to be reserved.
This is a matter involving significant allegations and counter-allegations of family violence. The mother claims that the father has exposed and subjected the children to physical and emotional violence, in particular whilst they were in his care for a four-year period. The father denies that he has perpetrated any violence against the children and claims that the children’s allegations against him are reflections of their experiences in the mother’s care.
Save for the purposes of preparing a family report for use in these proceedings, the father has not spent time or communicated with the children since mid-February 2008.
Conduct of the trial
The wife represented herself. The father was represented by counsel throughout.
Pursuant to an order made on 2 May 2008, Ms Simone Wunderlich, solicitor, was appointed as the independent children’s lawyer (ICL) for D and N within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (‘the Act’). Her role is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what she believes those best interests to be.[1] Ms Wunderlich is not a legal representative retained by the boys and she is not bound by any instructions from them.[2] The role of the ICL is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[4] Ms Glaister, of counsel, appeared for the ICL.
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
These are proceedings to which the provisions of Division 12A of Part VII of the Act apply. Section 69ZT excludes from these proceedings various divisions and chapters of the Evidence Act 1995 (Cth) which deal with general rules about giving evidence,[5] cross examination,[6] documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. That means that the rules of evidence in relation to the admissibility of business records do not apply to this case.
[5] With the exception of ss.26, 30, 36
[6] with the exception of s 41 relating to improper questions
Section 69ZT(3) provides that in exceptional circumstances and having regard to various matters such as the importance and nature and subject of evidence, probative weight and natural justice, the court can decide that certain excluded provisions of the Evidence Act1995 (Cth) should operate in the proceedings. I did not, and was not asked to, make any such order.
Section 69ZT(2) of the Act provides that the court can give such weight (if any) as it thinks fit to evidence which is admitted as a consequence of the non-application of provisions of the Evidence Act 1995 (Cth).
In the course of the mother being cross examined, it appeared that she may be about to give evidence which could incriminate her. On her application, the court granted the mother certificates pursuant to s 128 of the Evidence Act 1995 (Cth) to the effect that the evidence in respect of which the certificates were granted cannot be used against the mother in other proceedings. I was satisfied that the interests of justice required the evidence covered by the certificates to be given. There was no opposition to the granting of the certificates.
Evidence
At the trial the applicant father relied upon the following documentary evidence:
a)His affidavit sworn on 18 February 2008;
b)His affidavit sworn on 6 July 2009;
c)Affidavit of the paternal grandmother sworn 15 July 2009.
The father and paternal grandmother gave oral evidence.
The father did not call, nor seek to call, Ms H as a witness. In closing addresses I was informed by counsel for the father that Ms H had sat in court to observe these proceedings on two occasions. As will become apparent from my discussion of the history of the family and the allegations of the boys, Ms H could have given relevant evidence on a number of important issues including, but not limited to, the allegations of violence which the boys made directly against her and the boy’s assertions (denied by the father and the paternal grandmother) that they lived in her household for extensive periods including whilst the father was in prison. On behalf of the father it was submitted that there is no property in witnesses and that anyone could have called Ms H. Ms H was a witness for the father in the proceedings before McInnis FM even though the father maintained that by that time any romantic relationship had ceased. Whilst any party could have called Ms H to give evidence I assess the father as being the party who would benefit most from her evidence if it were corroborative of his own. Given that the father did not call Ms H and no credible explanation was given for that failure, I am able to infer that her evidence would not have assisted the father.
The respondent mother relied upon the following documentary evidence:
a)Her affidavit sworn on 29 July 2009;
b)Her affidavit sworn and filed on 18 March 2008 and notice of risk of child abuse filed on the same day;
c)The affidavit of Mr O (the mother’s partner) sworn 4 August 2009.
The documentary evidence relied upon by the ICL was as follows:-
a)Report of Department of Human Services dated 13 June 2008[7];
b)Family reports of Mr E, family consultant, dated 23 June 2008, 30 June 2009 and 24 July 2009.
[7] Exhibit “C1”
In addition, there were:-
a)The reasons for decision of McInnis FM, delivered on 22 December 2004;[8]
b)Numerous other Exhibits which were collated in a Court Book.
[8] [2004] FMCAfam 726
The father, mother, paternal grandmother, Mr O were cross examined, as was the family consultant, Mr E and Ms G, DHS child protection worker.
The evidence in this case was far reaching and in many respects historical. As will become apparent when I discuss the litigation history, this is the third set of legal proceedings and the second contested hearing concerning parenting arrangements for D and N. Ordinarily, the court would have regard to historical matters to establish the context of the matter but require the parties to concentrate on evidence of relevant matters which have occurred since the last contested trial which, in this case, was the trial before McInnis FM in the Federal Magistrates’ Court in November 2004. In proceedings other than parenting proceedings, this approach is consistent with the principle of issue estoppel, which arises when a court or tribunal makes a final decision so that matters or evidence fundamental to the court’s conclusion cannot be re-determined. In parenting matters, such as these proceedings, the disinclination of the court to permit parties (oftentimes it is only one party) to prolong litigation by rehearsing evidence which has been tested and the subject of findings by an earlier court is a consequence of the best interests principle. As was observed by Fogarty J in Newling and Newling; Mole (Applicant)[9]:-
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.
I also reflect on the inappropriateness of one judicial officer substituting his or her own conclusion for the conclusion of another judge absent a significant change in the circumstances of the family or children or the law.
[9] (1987) FLC 91-856 at 76,467
Over the objection of counsel for the applicant father, I permitted the mother and then all parties to traverse allegations of domestic violence as well as a number of other events and matters which pre-dated the final orders before McInnis FM in December 2004. I found it necessary to do so because the children’s allegations against the father in the current case, being those made in mid-February 2008 and thereafter, included some events which I suspected pre-dated the final hearing in the Federal Magistrates’ Court. Where, as here, the children make allegations which pre-date the last judicial determination, either as primary complaints or to give context to more recent complaints or circumstances, it would be arbitrary and contrary to their interests for the court to disregard those allegations simply because of the date on which the relevant act is alleged to have occurred. At the time of the Federal Magistrate’s determination, D was ten years old and N was six years old. D is now 15 years old and N is 11 years old. The boys are now better able to articulate matters which concern them even though the passage of time may have dimmed their recollections. I found that it would be as inappropriate and contrary to the boys’ best interests to compartmentalise their allegations by date and disregard some as it would be to disregard the history altogether even for the purpose of providing a context to current events and the children’s current sentiments.
Second, the hearing before the Federal Magistrate necessarily pre-dated the coming into operation of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), the provisions of which require the court to focus differently on issues of family violence, physical and emotional abuse. Family violence figured significantly in the determination of McInnis FM. However, the Federal Magistrate’s focus was applied within a different framework or ‘pathway’ of relevant considerations and presumptions and, in my view, with different consequences. The 2006 amendments do not constitute a change of circumstances per se[10] but, once a change of circumstance is established, the court is obliged to consider all relevant matters in light of the law as it then stands.
[10] Section 44 of the amending Act provides that the amendments are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.
Furthermore, a significant element of the mother’s case is the father’s contemptuous attitude towards her. That is something best judged on comprehensive, longitudinal rather than selective evidence. One example is the father’s alleged statements to protective workers from the Department of Human Services (DHS) on 20 March 2008 in relation to his brutal assault on the wife in 1996. Whilst the assault occurred 12 years ago and well before FM McInnis’ determination, it is necessary to have regard to the circumstances and severity of the assault when assessing the father’s current attitude to the mother and to domestic violence and, for instance, the significance of his statement last year that ‘in some cultures they cut off the mother’s clitoris for this offence [sex outside the marriage] but instead he beat it.’[11]
[11] DHS report dated 13 June 2008, exhibit “C1” page 8
In summary, I have had regard to evidence of events and matters in the whole of the relationship between the mother and the father in order to consider where the best interests of the boys now lie. To do otherwise would have limited the court’s ability to assess the extent to which D and N need to be protected from violence, physical and emotional harm and/or to assess the benefit to the boys of having a meaningful relationship with both parents.
Standard of proof
In assessing the evidence, I apply the balance of probabilities as the standard of proof. The practical application of the balance of probabilities was discussed by Lord Nicholls in Re: H & Ors.[12] Relevantly, His Lordship stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
[12] (1996) 1 All ER 1, 16.
As was observed by Carmody J in D and D [2005] FamCA 356, the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.[13] The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be confident before finding serious allegations proved. There are degrees of probability but, when the law talks about ‘the balance of probabilities,’ it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes. I agree with those observations.
[13] Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.
In these reasons, statements of fact constitute findings of fact.
Family law proceedings – litigation history
The mother and father commenced a relationship in about July 1992. They never married.
On 17 July 1996, several months after the father was released from jail on conviction for having assaulted the mother, orders were made in the Family Court for D to live with the mother and have contact with the father as agreed between the parties. The parties were granted joint parental responsibility for D.
After the July 1996 orders were made, the parties reconciled. Their second child, N, was born in July 1998.
The parties separated finally in about September 1998.
Proceedings were commenced by the mother through applications filed in the Federal Magistrates Court on 14 and 17 March 2003. The mother’s applications sought urgent interim orders on an ex parte basis for the recovery of N. In addition, the mother sought final orders that the children reside with her, she have sole parental responsibility and contact with the father be reserved.
Orders were made on 24 March 2003 by McInnis FM, suspending the orders of 17 July 1996 and providing that N live with the mother and have contact with the father on alternate weekends and at other times as agreed. D was to live with the father and spend time with the mother on alternate weekends and at other times as agreed. An order was made for D to be represented by an ICL, and for DHS to intervene in the proceedings pursuant to s 91B.
Orders made by consent on 6 May 2003 varied the orders made on 24 March 2003 to ensure the children were together when spending time with each of their parents. A family report was ordered. Without admission, the parties were restrained from using illicit substances and ordered to provide urine drug screen tests upon the request of the ICL. The parties were also restrained from inflicting corporal punishment upon either of the children, and the father was ordered to ensure his three dogs were suitably restrained at all times the children were in his care.
Ms M, counsellor, prepared a family report dated 11 July 2003, annexed to an affidavit sworn by her on 13 July 2003. Ms M’s recommendations were that D remain in the care of the father and N in the care of the mother, with the children maintaining contact with the other parent and their siblings.
The matter was adjourned until the duty list on 14 July 2003. There was no appearance by the father on this date, and the matter was allocated a two day final hearing on 4 February 2004. On 4 February 2004, interim orders were made including that the parties attend counselling to discuss the welfare of the children and that an updated family report be prepared.
The updated family report dated 15 August 2004 was prepared by Mr B, psychologist, and released on 16 August 2004. Mr B’s report specified that the parties agreed that the boys should remain together, however in his opinion the children could only reside together at the father’s residence, given that D ‘would not settle with his mother and [N] has a strong desire to spend more time with his father and brother.’[14]
[14] Family Report, Mr B, 15 August 2004, pg 12.
After a three day hearing in November 2004, orders were made by McInnis FM on 22 December 2004. The orders provided that the children reside with the father; the parents have joint parental responsibility; and the mother have contact with the children on alternate weekends and for half of school holidays, with changeovers to occur at G Police Station. McInnis FM delivered reasons for judgment (see below at paragraph 85).
The mother filed a contravention application on 19 July 2006, which was struck out on 22 January 2007.
The current proceedings
The current proceedings are effectively the third set of family law proceedings. They were commenced by the father’s application filed in the Federal Magistrates Court on 18 February 2008, in which the father sought a recovery order to issue for D and N. The father’s affidavit sworn on 18 February 2008 deposed to the mother not having returned the children for handover at the G Police Station on 16 February 2008 in accordance with court orders. The father states that he was served with an interim intervention order naming the mother and children as the aggrieved persons when he attended the police station to collect the children.
On 18 March 2008, the mother filed a response to the father’s initiating application, a notice of child abuse or family violence and an affidavit sworn on the same date. The notice of child abuse or family violence and affidavit makes a series of allegations of violence towards and maltreatment of the children by the father and his former partner Ms H (detailed below at paragraph 128).
Orders made on 26 February 2008 by Coates FM suspended the previous parenting orders of McInnis FM made 22 December 2004 and ordered that the children live with the mother and the father’s time and communication with the children be suspended until further order. An order was made requesting DHS to intervene pursuant to s 91B.
The matter was transferred to the Family Court with a request that it be considered for inclusion in the Magellan List on 28 April 2008.
On 2 May 2008 orders were made providing for the appointment of an ICL to represent the interests of D and N, and requesting that DHS prepare a report.
A family report was ordered on 20 June 2008. This was prepared by Mr E, family consultant, and released on 23 July 2008.
On 22 August 2008, orders were made that until further order the mother have sole parental responsibility for the children and the father’s time be reserved, although the children could initiate telephone communication with the father and the father was permitted to send cards, letters and gifts. An order provided that the mother enrol and facilitate attendance at counselling for herself, the children and Mr O.
An updated family report was ordered on 27 February 2009. This report, prepared by Mr E, was released on 30 June 2009.
On 8 July 2009 an addendum to family report was ordered, which was prepared by Mr E and released on 24 July 2009.
A final hearing was conducted before me over 12 days on 3, 4, 6, 7, 10, 11, 13, 14, 17, and 18 August 2009 and 22 and 23 October 2009.
The parties’ proposals
The father seeks to have N live with him. He seeks equal shared parental responsibility for both children. As a fall back position and if N remains living with the mother, the father will take as much time with N as possible.
The father does not pursue residence of D; his position is that D wishes to live with the mother in order to gain freedoms not otherwise available in the father’s household, which the father does not see as in D’s interests to provide. He believes that D and the mother have made allegations of abuse to allow him to live with the mother. Concurrently, the father claims that D’s allegations against him reflect the child’s experience in the mother’s household. In the running of the case, he stated his position variously as that the children should spend time with the parent with whom they are not residing each alternate weekend, to any time which the mother has with the children should be supervised.
The mother seeks sole parental responsibility for the children and that they remain living with her. She seeks that there be no orders (casting obligations on her and/or the children) for the children to spend time or communicate with the father. She does not seek orders from this court prohibiting the father’s attendance at their schools or home or on them personally but believes that the father is prohibited from doing so pursuant to intervention orders. The mother offered to send school reports and photographs to the paternal grandmother for the attention of the father. She stated that she will have the boys counselled for trauma in addition to more general therapy for her whole family. However, she opposes any counselling which has as its goal the reunification of the boys (or either of them) with the father on any basis. In the event that any time between the children and the father is ordered, the mother seeks that the father be restrained from causing permitting or suffering the children, or either of them to be brought into contact with Ms H.
At the commencement of the trial, the ICL sought that the children live with the mother. The ICL’s further proposals adopted Mr E’s recommendation that the mother arrange for the children to attend therapeutic counselling with the participation of Mr O and herself; the father spend up to two hours supervised time with the children upon the children’s counsellor indicating that the children are willing and able to commence spending time with him; the parties do all things necessary to obtain a referral to the ‘Parenting Orders Program’; and upon supervised time being completed, the father spend unsupervised time with the children if this (and the duration and frequency of any unsupervised time) is agreed by the parents in consultation with the case manager of the Parenting Orders Program, the father’s counsellor and the children’s counsellor.
In final address, the ICL submitted that the parents and children should participate in counselling at the Family Mediation Centre, as discussed by the family consultant. Thereafter, the children should spend time with the father for two hours once a month fully supervised at a contact centre on three occasions, followed by 4 hours once a month, not supervised but in the company of the paternal grandmother. The ICL supported the mother’s application for an order about Ms H and the father did not oppose it.
The ICL did not submit that the court should reject the evidence of the family consultant. Accordingly, I asked counsel for the ICL to clarify the parts of her position which appeared to be inconsistent with the evidence of Mr E. The evidence of Mr E was that an acknowledgement by the father of the truth of the boys’ allegations against him and Ms H, together with an apology from him would be a necessary precondition to the boys undertaking family counselling with the father at the Family Mediation Centre. The father will not provide the acknowledgement or the apology. However, the proposal of the ICL is that the mother and the boys should be required to participate in counselling nonetheless. The ICL submitted that a final order should apply to both boys but that ‘[D] cannot be compelled to attend’. There was no suggestion as to how that proposal might be implemented. The family consultant gave evidence that the boys should ‘stick together.’ However, counsel for the ICL was unable to answer whether N should be compelled to attend time or communicate with the father if D chose not to do so.
Credit and impression of witnesses
The father is 37 years old. He is currently unemployed and on a disability pension. He was diagnosed with cancer several years ago, for which he is in remission.
The father appears to be of normal intelligence. I found his temperament to be rather cold and calculating.
The criminal history of the father is extensive and will be canvassed below. In brief, the father has been convicted on various assault related charges; has faced a range of motor vehicle related charges, including a loss of licence for driving under the influence of alcohol; and has a conviction for cultivating marijuana. The father’s attitude towards his convictions was generally dismissive of the seriousness of his actions, self-exculpatory or blaming of the mother. The father blames the mother for his term of imprisonment on assault charges of her. He showed minimal remorse for his past actions.
As to matters which were not criminal convictions, the father’s position was that he was innocent of all the allegations made against him by the mother and the children. He maintained that the mother lied constantly, was manipulative and evil, and that she was incapable of providing a clean and safe home environment for the children. When confronted with any claim alleged to have been made by the children against him, his consistent response was that the children had been coached by the mother to make the allegation and/or that the children’s allegations were in fact reflective of experiences they had endured in their mother’s care. In short, the father’s attitude towards the mother was entirely negative and the only concession he was willing to extend to her was that she was the children’s biological mother and that, but for the mother, the boys would not have been born.
As a whole, the father’s account of events was frequently incomplete and implausible. He defaulted to the position that all of the children’s allegations to DHS and Mr E were based on the children wishing to make their mother happy. In addition, the father gave evidence of a raft of conspiracy-style theories, which included that the mother had a ‘fat’ female friend at DHS who had tampered with the DHS report. This female friend was also allegedly present at the maternal grandmother’s house during the violent incident on 10 March 2003. He says that later he recognised her at various social security offices and, most recently, he suspects that the ‘fat lady’ has been following him on trains. The father did not provide any evidence which corroborates this and it was not included in any of his affidavit materials. I do not accept that there is any basis in fact for the father’s evidence about the ‘fat lady’. I am unable to determine whether the father is delusional or gave ridiculous evidence in an effort to divert the cross examiner from other topics.
The father impressed me as a disappointed man who believes that he has not received what he perceives to be his proper entitlement in life. He says that he is able to work but is not prepared take employment which is below him or which does not pay enough. He refers to himself as someone who once wore smart clothes. He considers himself to be far superior to the mother. He believes that the mother has done him irreparable damage because, through her, he has criminal convictions. He blames his current financial situation on the mother, in particular, that he had to put his life on hold and assume care of the children in 2003 due to the mother being a hopeless, if not abusive, carer for the children.
The father’s evidence sits very uncomfortably with the seriousness and consistency of the children’s allegations, and the evidence contained in the DHS and family report. I consider him to be an unreliable witness, prone to self justification. He is a person who bolsters his self image by demeaning and disparaging the mother.
The mother is 35 years old. She is of Greek heritage and Islamic faith. She is employed in the professional practice of her partner Mr O, where she undertakes bookwork. She has undertaken some training as a private investigator. She is the mother of five children all of whom reside in her household. That is, D and N who are aged 15 and 11 respectively, B aged 10 years whose father is Mr S and her children with Mr O, being A, aged 6 years, and T, aged 4 years.
The mother is intelligent and of fiery temperament.
The mother’s evidence was that the father was physically and verbally abusive towards her from the commencement of their relationship. She rationalised her continued relationship with the father as a form of ‘Stockholm Syndrome’, whereby having grown up in a violent family environment, she expected family violence to be the norm and thus did not flee from what appeared to be an untenable situation. It appears to me that currently the mother’s life, in contradistinction to the father’s life, is busy to the point of hectic.
The mother made it clear that she had a general confusion in recalling dates, times and places regarding events of the past, and that she felt she had been severely disadvantaged throughout court proceedings. I take this into consideration but, all in all, the mother was a lazy witness who, I am satisfied, found it easier to say that she was no good with dates than to make a genuine attempt to order her thoughts and give correct evidence. The mother’s responses were commonly contradictory, and upon being cross examined, revealed to be plainly untrue. One example of this involved the mother’s initial repeated denials that she had worked as a prostitute, contained in her trial affidavit and initially deposed to in the witness box; she later revealed in cross examination that she had worked as a prostitute for two days.
Whilst the mother is critical of the father, she generally, and in contradistinction to the father, did not try to elevate her own role by being disparaging of him.
I conclude that the mother has little, if any, concept of a responsibility to tell the truth, a consequence of which is that she did not put much care or effort into doing so. She was an unreliable witness whose evidence I find difficult to accept unless it is corroborated or inherently probable.
The paternal grandmother is an elderly woman of European origin. She deposed to having played a significant role in the children’s lives. The paternal grandmother gave evidence for the father that she cared for the children whilst the father was incarcerated for two months in late 2006 and 2007. This evidence was strongly contested by the mother, whose evidence it was that the children had resided with the father’s partner, Ms H, during this time. For reasons which will become apparent, I am not able to accept the paternal grandmother’s version of events.
The paternal grandmother denied that the father was verbally or physically abusive towards her as alleged by the mother. She denied that she had been abused by her own husband. There is insufficient evidence before the court to make findings on these points. However, I do find that the paternal grandmother, although well-intentioned, is closely aligned with the father and the court can only place limited weight on her evidence.
The paternal grandmother deposed that she would dearly like to spend time with the children at her home. She stated that if by order of the court the father could not be present, she would have the capacity to enforce this requirement. I am not able to accept her evidence in this regard. I find that the father holds a substantial degree of control over the paternal grandmother.
Mr O is the mother’s current partner. He practices a profession and runs his own practice. He impressed as a balanced adult in the children’s lives. He is alive to the mother’s foibles but has remained committed to their relationship. I do not accept some evidence which he gave about cannabis paraphernalia and allegedly stolen money being found in the residence which he shares with the mother. However, all things considered, he is the witness in whose evidence I have the most confidence.
Family background
The mother married Mr O just short of her eighteenth birthday and the couple bought their first home approximately 18 months later. The mother separated from Mr O upon meeting the father in around July 1992, who had been contracted to build a garage for Nr O. Three days after meeting the father, the mother left Mr O and took up residence with the father in G.
The parties’ first child, D, was born in September 1994.
In March 1996, the father was incarcerated for two months for assaulting the mother. The parties’ evidence of this will be recounted below (see paragraph 88-96).
The parties separated for some time after the father’s incarceration, during which time proceedings were commenced in the Family Court and the first set of parenting orders made. However, the parties soon reconciled and planned to extend their family. Their second child, N, was born in July 1998.
The parties separated when N was around two-and-a-half months old. The mother deposes to an unacceptable level of fighting and tension in the household, partly due to the father not working and the family living in poverty.
Shortly after separating from the father, the mother went to live in regional Victoria with Mr S, the father of her third child, B, born in November 1999. This relationship lasted about two years, from 1998 to 2000. The mother deposed that B’s father was approximately 18 years of age at the commencement of their relationship, although the father’s evidence was that he was under the age of 18. On my calculation, the wife would have been approximately 24 years of age.[15]
[15] Mother’s date of birth is recorded … 1974 in Information Sheet filed 21 March 2003; the father’s date of birth is recorded as … 1972
D and N lived with the mother in regional Victoria. According to the mother, the children saw the father approximately each fortnight. The father’s evidence was that he did not see N until he was one year old, although he saw D on two occasions during this time. Thereafter he agrees he saw the children every fortnight.
The mother’s relationship with Mr S eventually ended as a result of Mr S’s psychiatric condition, catalysed by a violent incident where he threatened the mother with a knife.
D went to live with the father in about 2000 when he was aged 5 years old. The mother deposed that this was on a one year trial basis.
The mother’s evidence was that around two years after terminating her relationship with Mr S, she resumed a relationship with Mr O. By this stage Mr O had two children, two daughters, with his ex-partner. Mr O’s daughters resided with their mother. Subsequently, Mr O has discovered that he is not the biological father of the younger girl.
At this time, the father lived around the corner from the mother and Mr O and, although separated, they enjoyed a relatively cooperative relationship. The mother’s evidence was that the father would assist her in picking up the children and caring for them. Although D lived with the father, the mother deposed to seeing him every day, up until the time the father moved in with Ms H. The mother’s evidence was that Ms H ‘had a foul mouth’ and created animosity between herself and the father, although the mother continued to see D on a daily basis for some time.
D remained with the father and N with the mother until 2004. The boys saw each other every other weekend.
In December 2004, following a contested hearing at which the mother was self represented, McInnis FM made orders for both children to live with the father. N and D lived with the father until February 2008, which marks the commencement of the current proceedings.
The mother had two children with Mr O, A, born in November 2003 and T, born in May 2005. The mother deposes to a loving and stable relationship with Mr O. My impression is that the relationship has its ups and downs but that the couple have a stable long-term relationship. Mr O gave evidence they have a happy relationship which sometimes suffers from the mother’s volatile moods. I accept that Mr O and the mother have a positive and mutually supportive relationship. The evidence of the mother and Mr O left me with the impression that the household environment is probably chaotic but has a child-centric focus and loving atmosphere.
The father’s evidence was that his relationship with Ms H ended in 2004, although he conceded that they remained friends for some time. The mother strongly contests the father’s evidence regarding his relationship with Ms H, stating it continued well into 2005 and 2006, and that Ms H had the care of the children whilst the father was incarcerated in late 2006. The father denies this, stating that the children stayed with the paternal grandmother and Ms H was not even informed that the father was in jail. He states he was last in contact with Ms H three to four months before incarceration. As indicated, Ms H was present in court for two days of the hearing.
McInnis FM’s findings
McInnis FM delivered reasons for his decision. His Honour’s findings of fact set part of the context of the current proceedings. As the parties sought to lead evidence on issues which were before McInnis FM in the previous proceedings, it is necessary to set out his Honour’s key findings:
·The parents agreed that the children should remain together. It was in the children’s best interests to reside in the same household and attend the same school in the foreseeable future.
·In 1996 the father was imprisoned as a result of an assault upon the mother.
·There were significant issues of domestic violence between the father and Ms H, to which the children were occasionally exposed. However, the father and Ms H ceased living together on about 14 July 2004. Ms H had no intention of resuming residence with the father.
·The ‘vague suggestions of violence’ by the mother towards D were not substantiated; rather, D had exaggerated events to provide the father with information he wished to hear. The father lacked insight as to why a child would behave in this manner.
·Both children had a loving relationship with the parents, although D did not have a ‘close relationship’ with the mother. Nonetheless, he enjoyed spending time with the mother and his siblings and settled well into her household.
·D expressed a strong preference, which had remained constant for several years and was unlikely to change, that he wished to live with his father and N. N expressed a similar view to live with his father and D. These views were genuine, although to some extent influenced by the father’s negative attitude towards the mother and Mr O.
·An order requiring D to live with the mother, and thereby altering the status quo, would create an ‘intolerable situation’ for D, causing disruption to his social and educational life.
·A move for N to the household of the father and D would not have significantly adverse effects. Given the ‘competing demands’ on the mother’s time, she would in any case be less likely to ‘have the capacity to make herself available’ for N.
·The mother’s commitments to the care of her children from other relationships (which then included an infant child and a baby due in mid-2005 to Mr O, a child to Mr S and the occasional care of Mr O’s two daughters) compromised the mother’s capacity to provide for D and N’s needs.
·The father was unemployed, although he had an intention to find employment once both the children were attending school. He had greater capacity to attend to the children’s needs in comparison to the mother.
·There was an ‘incident’ on 10 March 2003, when the father attended the mother’s house in order to collect the children, and an argument ensued which led to a ‘significant violent incident.’ Ms H was involved. During the course of the incident, N entered the father’s car. The father drove it into the driveway of the household, and rammed his car twice into Mr O’s car. The police attended.
·The court did not make final findings of fact as to who was to blame for the incident of 10 March 2003. However, the father’s conduct demonstrated ‘the father’s inability to conduct himself in a normal manner and perhaps a preparedness to engage in violent conduct.’ It would have been traumatic for N. However, the incident occurred against the backdrop of pending family court proceedings and at a time when the father was in a relationship which caused great concern for the mother. The court found that ‘hopefully the combination of those circumstances will not be repeated.’
·Although the father had sometimes shown little insight into the impact on the children of engaging in violent conduct, the children were not at risk of harm in the father’s care.
·The father at times demonstrated ‘an inappropriate attitude towards women and a somewhat half-hearted rejection of the notion that it is acceptable to strike or assault women in a domestic situation.’ However, the father had undertaken an anger management course and Ms H was no longer residing with the father. Accordingly, the prospect of future violence was assessed by McInnis FM to be minimal.
Pre-2008 allegations of family violence or neglect
The mother gave evidence that the father was physically and verbally abusive towards her from the very commencement of their relationship, deposing that the father started hitting her on the day she began living with him in around July 1992. Many of the mother’s allegations pre-dated the contested proceedings before McInnis FM which resulted in final orders in December 2004. In effect, the mother sought to re-litigate matters considered by the learned Federal Magistrate in 2004 when the father succeeded in obtaining orders that D and N live with him. I have stated my reasons for permitting the parties to revisit that evidence insofar as it was relevant to my assessment of the current circumstances and capacities of the parties.
The first documented report to the police of family violence was made by the maternal grandmother on 1 January 1996.[16] It detailed an incident where the maternal grandmother alleged she had been kicked in the stomach by the father, who smashed a window before leaving her premises. The report noted that the mother had an intervention order against the father. The father denies the assault. I make no findings in this regard.
[16] LEAP – Victoria Police Sub Incident Summary Report dated 1 January 1996, Court Book, pg 27.
In February 1996, the mother was seriously assaulted by the father.[17] The father was charged with intentionally causing serious injury, making a threat to kill and breach of an intervention order. He was sentenced to six months imprisonment with four months of the sentence to be suspended for 12 months.[18]
[17] LEAP – Victoria Police Sub Incident Summary Report dated 29 February 1996, Court Book, pg 26.
[18] Victoria Police LEAP Court Outcomes Report, Court Book, pg 12.
The father gave evidence that he assaulted the mother because he discovered that she was working as a prostitute. The mother provided conflicting evidence regarding the context of the assault. Before the court, the mother initially denied that she had ever worked as a prostitute. However, after asking a family member to leave the courtroom and him doing so, the mother revealed that she had worked as a prostitute for two days in 1996.
In the mother’s affidavit sworn 19 March 1996 for proceedings in that year, she states that she worked as a prostitute for two days in a legal brothel in order to support D. On the day of the assault,[19] the father told the mother he had discovered that she had worked as a prostitute and proceeded to become violent and aggressive. The mother’s affidavit states that the father forced her to enter his car with D and they delivered D to the paternal grandmother’s home. They then travelled to the brothel where she had worked, and the father attempted to force her to work as a prostitute, stating that she ‘would make a good prostitute and that was all that I was good for.’ The mother deposed that she stayed inside the brothel for some time, and eventually returned home with the father. She told him that she did not want to work as a prostitute and she did not think it was in D’s interests. Paragraph 7 of the mother’s affidavit gives the following account of the assault:
The respondent bundled me into the house he proceeded to kick and punch me repeatedly and then attacked with a knife stating that he was going to kill me. I had to struggle with the husband for some time and I verily believe that he did intend to kill. The husband was extremely angry and seemed to have lost control of himself. That when the husband finished assaulting me he dragged me by the hair to the bathroom mirror and stated “look what you look like now” or words to that effect. I was covered in bruises and had one very swollen black eye. The husband locked me in the house for two days after that and I was unable to seek medical attention. On the second day my mother attended the home and she was concerned that she had not heard from me. I managed to flee from the home with the assistance of my mother.
[19] The mother’s affidavit sworn 19 March 1996 states the assault occurred on 20 February 1996, however a LEAP Victoria Police Sub Incident Summary Report dated 29 February 1996 states the assault occurred on 28 February 1996.
Before me, the mother eventually verified the account in her affidavit sworn 19 March 1996 as true and correct.
The mother’s dishonesty in court throws her general credibility as a witness into serious doubt. However, I take into account the sensitive nature of the evidence with respect to the circumstances surrounding the 1996 assault, that she did not want to give the evidence in the presence of her male relative but gave it freely when he left the court room and the fact that she swore to it specifically in her affidavit of 19 March 1996.
It is not in dispute that the mother was brutally assaulted by the father. The father conceded that the mother was injured to the extent that he had to take care of her for two or three days. The father denies aspects of the mother’s evidence, which are corroborated by the police report, such as that he threatened the mother with a steak knife; he stated that he could not recall whether he punched and kicked her numerous times. I accept that the father brutally assaulted the mother and that the mother was badly injured as a result.
At some points in the father’s evidence, he stated that he regretted assaulting the mother. Those statements were not congruent with his demeanour and other evidence. At other times, the father implied he was provoked by the mother’s work as a prostitute. I accept that the father regretted having to give evidence about this incident but I do not accept that the father has any remorse over having harmed the mother in what was a brutal assault.
An interview conducted by DHS with the father on 20 March 2008 (12 years after the incident) documents the following account of the assault:
[the father] expressed that he was a proud man and he felt that [the mother] had undermined this. He explained that after he and [the mother] had separated she had returned to him declaring she was pregnant by another man. This had made him feel worthless and shamed. [The father] stated that in some cultures they cut off the mother’s clitoris for this offence, but instead “he beat it” (referring to [the mother]). [The father] then advised that due to injuries sustained from the assault he nursed [the mother] for three days.[20]
[20] DHS Report dated 13 June 2008, pg 8.
The father gave evidence regarding this DHS interview. He denied saying that ‘in some cultures they cut off the mother’s clitoris,’ but instead beat the mother. The father deposed that in fact he stated to DHS workers that:
DHS has said to me that the mother has stated that I was incarcerated for beating her, and I said, yes, I beat her for the fact that she did prostitution, your Honour. And I was young and naïve and I didn’t know what – I didn’t know that it was the wrong thing to do. I realised afterwards, and I felt remorse for what I have done, and I have paid for my due.
The father then proceeded to state his concerns about the partiality of the DHS workers. I do not accept that DHS wrongly recorded the father’s statements. It is the professional duty of DHS workers who undertake investigations to conduct interviews and accurately record responses. The records, including the notes and the report, were before the court and the protective worker in whose presence the statement was made was cross examined. Her evidence was not shaken. I do not accept, as the father contends, that DHS falsely record the father saying he ‘could have cut off the mother’s clitoris.’ The father’s evidence reflects very poorly on his credibility as a witness. It also provides the court with a further insight into how grossly inappropriate the father’s attitude towards the mother is. Finally, in seeking to justify the brutal assault by comparison and by implying that he let the mother off lightly, he demonstrated that, as at March 2008, he had no conception of the gravity of his past actions.
The first recorded DHS investigation occurred between 19 June 2000 and 22 June 2000. The investigation related to a report received alleging that the mother was not appropriately caring for N. The matter was not investigated due to insufficient information.
On 30 June 2002 Ms H made a complaint to police about a verbal dispute with the father over a motor vehicle, stating that the father was violent and refused to leave her premises when she had attempted to terminate the relationship.[21] The father conceded that Ms H had made this complaint but stated that he believed the problem was that they were both being unreasonable. He stated that the children were present but the father maintains that they were unaffected because they were elsewhere in the house. I do not accept that the argument had no impact on the children in the household. He says that they were not aware of the complaint to police or the attendance of the police. I do not accept that evidence as credible. This is an example of the father downplaying violent or inappropriate behaviour on his part and the consequences of that behaviour on children who live with him.
[21] LEAP – Victoria Police Sub Incident Summary Report dated 30 June 2002, Court Book, pg 24.
The father made a complaint to police on 21 September 2002, which details an argument between Ms H and the father in which Ms H was yelling and screaming and the father subsequently locked her out of the house and refused to let her in. The father told workers that he had been in a relationship with Ms H for three years, during which time there had been numerous verbal arguments.[22] The father gave evidence that he made this complaint as he was ‘sick and tired of women making allegations’ against him. He conceded that D accompanied him to the police station on this occasion. Again, the father maintains that the turmoil would have had no affect on D. I do not accept that D would be unaffected by this and take it into account in assessing the father’s capacity and attitude towards parenting.
[22] LEAP – Victoria Police Sub Incident Summary Report dated 21 September 2002, Court Book, pg 23.
A Victoria Police incident summary report dated 16 November 2002[23] details a dispute between the father and Ms H which escalated into a physical assault. Ms H alleges being hit by the father with slats of ply timber and having her phone smashed to prevent her from calling the police. She further states that she picked up a hacksaw in order to protect herself, whereupon she exited the house and left the hacksaw in the front yard. Upon returning to the front door to get her daughter, a further argument ensued and the father struck her with a golf club twice, causing minor injuries. The father was charged in relation to this incident and appeared before the Dandenong Magistrates Court on 27 February 2003 where he pleaded guilty to recklessly causing injury and was placed on a community based order for 12 months (see table at paragraph 177).
[23] LEAP – Victoria Police Sub Incident Summary Report dated 16 November 2002, Court Book, pg 22.
A second DHS investigation occurred between 14 and 21 January 2003, relating to a report alleging that the children were exposed to domestic violence and were not being adequately cared for. The matter was not investigated though the report notes that professionals working with the family were requested to contact DHS if they had any protective concerns for the children.
The mother made an application for recovery of N and parenting orders in respect of both children on 14 March 2003. Between 15 March 2003 and 7 April 2003, DHS conducted a third investigation following a report of a dispute on 10 March 2003, which occurred when the father collected the children from the mother. A police report dated 11 March 2003 confirms that the father stated he twice rammed his car into a car parked in the driveway, following an altercation between himself and the mother’s brother when he went to pick up the children.[24] The father and Ms H were arrested and the father was taken to hospital for medical treatment. The DHS report notes that the matter would be before the family court and the police had reported that the mother appeared to be acting protectively.
[24] LEAP – Victoria Police Sub Incident Summary Report dated 11 March 2003, Court Book, pg 20.
The parties each gave evidence regarding the incident. However, it is not necessary to explore the evidence in detail. McInnis FM accepted that a violent incident occurred. I accept this as evidence which is relevant to the parents’ attitudes towards and capacities to care for the children.
The father’s evidence was that Ms H was being assaulted by the mother and maternal grandmother, and when he went to defend her he was attacked by the mother’s brother, wielding a pick handle. He stated that he had ‘no choice’ but to ram Mr O’s vehicle with his car, twice, so that they would release Ms H. He conceded that N and Ms H’s daughter were in his car when he rammed it into the car of Mr O, but denied that the children had been showered with glass. The father stated that the other children, including D, were kept inside the house and did not witness the fighting. Their passage to the front yard was blocked by a ‘fat lady’ who stood in front of the doorway. The father described that N managed to scramble through the legs of the ‘fat lady’ to join him. Being in a very poor state following the incident, the father had to be taken to Dandenong Hospital.
When asked to reflect on these events, the father stated that the situation could have been better handled but maintained that it was not his fault. The father was charged with criminal damage to Mr O’s car, to which he pled guilty and was fined $1500. Before me, the father was resolute in not taking any responsibility for the incident and would not acknowledge that the children in the house were in any way traumatised. This reflects poorly on his ability to appreciate what constitutes unacceptable behaviour in front of children and his capacity to shield them from harm.
The mother’s evidence was that the incident was precipitated by D calling the father shortly after arriving at the maternal grandmother’s house and asking him if he could live with his mother. The father refused and D became upset. The mother spoke to the father on the phone who stated words to the effect of ‘I’m sick of this, I’m going to kill you fucking Turks, I’m coming down there to kick your fucking heads in.’ The mother then called the police and was informed to wait until the father turned up. The father arrived with Ms H at a time which did not correspond with the extant parenting orders. A physical fight then broke out between the father and the mother’s brother, and Ms H and the maternal grandmother, who was attempting to push Ms H out of her house. Upon further cross examination, the mother stated that D was supposed to be returning to the father later that evening, although she could not transport him due to being very ill.
The mother acknowledged that she shared responsibility for the incident, and the impact it would have had on the children, with the father. I accept that the mother has an appreciation of the damaging impact the behaviour of herself, her extended family and the father would have had on the children.
The mother filed an application for parenting orders in the Federal Magistrates Court on 14 March 2003.
On 2 May 2003 DHS received a report raising several concerns. First, that on 10 March 2003 the children had been exposed to ‘severe domestic violence’ between the parents. Second, that the mother had hit D on the head with a shoe, causing a lump, for fighting with his siblings. A medical practitioner who examined D confirmed N had a small bruise but did not form the opinion that the child had been physically abused. Third, that the mother used illicit drugs and that there were syringes on the ground in the backyard of the maternal grandmother (the latter allegation was partially retracted). DHS closed the case on 26 May 2003 as they believed the concerns would be best addressed in the family court proceedings.
The father made a complaint to police on 15 June 2003 regarding a verbal argument he had with Ms H, with whom he stated he lived although they were no longer in a defacto relationship.[25] The incident was apparently caused by a ‘minor scuffle’ between the seven year old female child of Ms H and the father’s four year old boy (D). Ms H left the home after the incident. The report states that the father ‘only wanted matter reported as he believes female will make allegations re incident’. At this point in the father’s evidence, the father was critical of the mother for having caused him to be convicted of assaulting her. He feels aggrieved because, by virtue of his criminal record for assault, he is a soft target for complaints to be made against him maliciously.
[25] LEAP – Victoria Police Sub Incident Summary Report dated 15 June 2003, Court Book, pg 19.
On 22 September 2003 DHS received a report that the mother had told the father she would take D to a police station because he was misbehaving. The father advised that D did not wish to spend time with the mother. DHS did not identify protective concerns and the matter was not investigated further.
On 9 February 2004 DHS received a report raising concerns for D’s safety. According to the DHS report to the court dated 13 June 2008, the notifier stated that D had returned from spending time with the mother with bruising on his leg which was caused by the mother. The report states that Dr AM examined D on 9 February 2004 and reported that it was likely the injuries were not accidental and had been caused by another person. DHS Child Protection and Victoria Police Sexual Offences and Child Abuse Unit (SOCAU) spoke to D at his school on 20 February 2004, where he stated that the mother had caused the injury, which at this stage had cleared except a ‘small brownish bruise on the upper left leg.’ The mother denied the allegation that she had physically disciplined D. Subsequently, workers interviewed the father and D regarding safety concerns for D in the care of his father. On 15 March 2004 N and B were interviewed at the mother’s home; they did not state that they had been physically disciplined by the mother or had witnessed D being disciplined. N and B’s schools did not raise concerns about their behaviours, although N’s school raised concern about N’s behaviour following spending time with his father. DHS assessed that there were discrepancies in D’s accounts, and that D had a very close attachment to his father and may have been coached by the father in the context of family court proceedings in order to ensure he remained in the father’s care. However, DHS substantiated that D had been physically assaulted and sustained an injury and accordingly developed a safety plan in conjunction with the school in order to monitor the children.
A Victoria Police incident summary report shows that the mother made a complaint against the father on 15 February 2004. The mother complained that she had a current intervention order against the father prohibiting him from approaching or speaking to her, and claimed that the father had approached her with N in her presence at a handover at G Police Station, calling her a ‘fucking bitch’ and stating ‘if anything happens to these kids, I’m going to fucking kill you.’[26] The father was summoned. He denied the offence and claimed he ‘only warned his ex not to abuse their children.’[27]
[26] LEAP – Victoria Police Sub Incident Summary Report dated 15 February 2004, Court Book, pg 17-18.
[27] LEAP – Victoria Police Sub Incident Summary Report dated 15 February 2004, Court Book, pg 17-18.
Between 1 and 10 December 2004, DHS conducted a brief investigation following a report citing concerns about the mother’s care of the children and use of physical discipline. The DHS report states that this letter was vague, historical and may have contained ‘malicious components.’ They did not investigate further.
On 22 December 2004 McInnis FM made final orders stipulating that both children reside with the father.
The father claims that the mother neglected to see or have anything to do with the children for a six to seven month period following the final orders made on 22 December 2004. It was the father’s opinion that N’s medical conditions began to improve whilst he did not have contact with the mother. He described N’s bed-wetting and a dental issue as stemming from not being fully immunised by the mother, in addition to not being loved or looked after as well as D, due to the father’s diminished role in N’s life since he was two-and-a-half months old. The father also raised at various times that the mother had attempted to do a cranial osteopathy technique on N, which had had a detrimental impact on N’s health. The father’s evidence in this regard is further indication of his immature and exculpatory mode of parenting, whereby he is insistent on blaming the mother for any and all of the children’s shortcomings without any regard to his role in their upbringing.
The mother strongly denies that there was any extended period of time when she did not see the children other than on two occasions when she was seriously ill. She deposed that for a one-and-a-half month period in late 2005/ early 2006 she was hospitalised with a condition of inflammation of the cerebral liquid, during which time she could not see the children. In addition, the mother stated that in September 2003 she spent one-and-a-half to two months in intensive care with pneumonia, during which time she could not see the children. She stated that T’s birth in May 2005 would not have substantially interfered with her time with the children. Mr O gave evidence that the mother was hospitalised for some time when A was around 6 months old, which would have been around mid-2004, due to symptoms which appeared to indicate inflammation of the cerebral liquid. He could not recall the mother being ill and hospitalised in an intensive care unit at any other time or for the periods alleged by the mother. I prefer Mr O’s evidence over that of the mother who, I believe, exaggerated her periods of hospitalisation.
DHS conducted an investigation between 26 July 2006 and 8 August 2006 following receipt of a letter stating that the father, who had received a commission home by the Ministry of Housing, was living with Ms H in the outer suburbs of Melbourne. The letter alleges that the father and Ms H where involved in a ‘fist fight’ in the home, where the father kicked Ms H in the stomach and punched her in the head several times causing her to bleed in the presence of D, N and Ms H’s daughter. The letter also noted that the father and Ms H used illicit substances. Child Protection could not find evidence to indicate the children were in significant harm and did not investigate further. The father denies that he was living with Ms H at this time.
Having traversed the alleged extensive and far reaching history of domestic violence and neglect, I am satisfied that there was an unacceptable level of violence and tolerance of violence in the father’s household for which the father accepts no real or genuine responsibility. The effect was that whilst in his care, the boys were conditioned to regard that level of violence and the father’s bitterness and disdain for the mother as unexceptional.
Current family violence allegations
The most current notification to DHS, which resulted in an ongoing DHS investigation and the present proceedings, was received at 2:16 pm on 16 February 2008 and concerned a report of allegations made by the children to the mother of a history of abuse by the father. The children had been spending weekend time with the mother and were due to return to the father the next day. Following the report, DHS contacted police who confirmed the mother had made a statement and the police would be applying for an intervention order on behalf of the children. A summary report of the mother’s statement to the police on 16 February 2008 confirms that the children attended the police station and (presumably) D had reported that he and his brother had been subjected to long term physical abuse by their father.[28]
[28] LEAP – Victoria Police CPS Case Record Summary Report dated 16 February 2008, Court Book, pg 28-29.
The mother was contacted by DHS on 21 February 2008. She told Child Protection that the children had made the following disclosures:
· The father had stomped on D’s head approximately two months ago; D stayed in bed for two days.
· The father beat D with bamboo sticks and then put him in a hot bath two or three months ago; he sustained bruises which were not discovered as they were covered.
· The father would slam D against walls and throw him against furniture.
· The children often lived with Ms H, which is where father primarily resided.
DHS contacted the children’s schools on 22 February 2008, who did not raise specific protective concerns regarding the father. On the same day, Anne Wood, the solicitor representing the children in the matter of the intervention order, notified DHS that the children had made statements to her that they had been abused by the father and did not want to return to his care.
Ms G, DHS protective worker, gave evidence for the ICL and was cross examined. Ms G became involved in the investigation on 25 February 2008, after the initial intake. For the purposes of the investigation, Ms G conducted separate interviews with D,N, the mother, Mr O and the father.
Ms G was a considered and insightful witness. I place weight on her evidence.
Mr W, psychologist, wrote the DHS report to the court dated 13 June 2008. Ms G’s evidence was that Mr W was her supervisor and available to her for consultation. He also accompanied her to the interview with the father on 20 March 2008. Ms G verified that the contents of the report were accurate although she would have added a more detailed recommendation regarding therapeutic intervention for the children.
Ms G and Ms VB conducted an unannounced visit of the mother’s home on 25 February 2008. The mother presented broadly the same allegations regarding the children as outlined below in paragraph 128. The mother told workers that the abuse of the children had not been discovered earlier because the father was ‘extremely violent and all members of her family are frightened for their safety.’[29]
[29] DHS Report dated 13 June 2008, pg 5.
The mother’s affidavit sworn 18 March 2008 details that the children made a number of statements to her about their father between 16 and 21 February 2008. They are as follows:
a)eg.1. [Ms H] biting [the father] on the neck, leading up to hospital for stiches, all 3 children were present.
a)..[Ms H] chasing Father around the house with a knife in the presence of the children. Police were called to this incident.-outcome unknown to Me.
b)..[D] being beaten with a hand full of bamboo sticks, then soaked in a bath tub of hot water. [D] said that his Dad said that he made him soak for 1 hr because he would not bruise up as much.
c)..[D] and [N] were beaten with the Fathers belt on a number of occasions using this as a formal punishment.
d)[D] alleges that the Father 2-3 months ago grabbed him by the hair and slammed him on the floor then stomped on his head with his foot, I know what that feels like because he would do this to me whilst we were in the relationship. owwwwwww.
[D] expressed that he could not move out of bed for 2 days due to, as he said “the biggest headache of my life.”
e)The father was incarcerated for what [D] believes to be for drink driving, he was in jail for approximately 2 months and warned not to tell anyone he was locked up, to tell everyone that he was working long hours.
f)The Father was adamant that he wanted Christmas with the Children and instead they were with [Ms H] while he was in jail.
g)[D] was threatened by the Father that if he told anyone when he gets out he will murder him.
h)The Father left both children in the day to day, full time care whilst he was in jail with Ms. [H] his Girlfriend without informing me of his where about.
i)During this time whilst [Ms H] had the Children in her care, [N] informed me that he was picked up by his cloths and thrown on walls, tables and the couch causing bruises on his body, then she would threaten him that if he tells anyone or your Dad’ I am going to kill you and your gonna be outta my life forever”.
j)Ms [H] pushes [N] into walls and shoves him around.
k)[Ms H] was constantly degrading both boys and swearing about me to them.
l)[Ms H] would constantly tell [N] that he was useless, dumb, pathetic, telling them that they cant do anything right.
o)[N] said that he was told by his Father that if they ever asked to live with me again that he was going to kill them stating ‘I put you into this world and I will take you out.’
m)[N] has seen [D] getting hit, punched and kicked by the Father.
r)DHS has given [the father] and the children a housing commission home [at …]. They do not live there they all reside with [Ms H] at […].
s)The Childrens sleeping arrangements are as follows – [D] on the lounge couch , [N] on a very small single camper foldout bed in the lounge room as well , Whilst Father is sleeping on a comfortable queen-size bed with [Ms H].
The mother’s viva voce evidence was that she was generally unclear as to when precisely each of these statements were made or when the children alleged these things had occurred. Her evidence was not satisfactory and, as I have said earlier, I do not accept it in the absence of corroboration or an inherent likelihood that it occurred. However, the boys did go on to repeat their allegations, in the nature of those set out above, to other witnesses and in other circumstances which evidence I do accept.
Ms G and Ms VB interviewed D on 25 February 2008.[30] D reported that when N came to live with them, the father changed and as he was older, he was made to do chores such as feeding and cleaning after the animals, lawn-mowing and rubbish bins. The father’s response to this in cross examination was that D undertook chores in exchange for pocket money. D stated that the father began hitting him when he was 10 or 11 years old, although not as frequently as now. D told DHS workers that his father “smacked him around heaps; slapping with an open hand everywhere; head, body, arms, legs and chest bad. If [N] got hurt I got hit.” He stated that he was too scared to tell him to stop; he would cry and attempt to guard his face with his hands. Ms H, N and Ms H’s daughter had witnessed this occurring. Slaps would progress to punches to his arms and sometimes head; his father would kick him and knock him to the ground, slam his head on the ground and stomp on his head. D reported to DHS workers that his father ‘broke bamboo garden stakes across his back and legs, and then made him soak in a really hot bath to reduce any swelling or bruising’ on 10 to 15 occasions.
[30] DHS Report dated 13 June 2008, pg 6.
Ms H had attempted to hit D once, however he pushed her away and she had not tried since. D alleged that Ms H called N names such as “useless” and “dickhead,” and that she would pick N up and slam him against the couch or wall. He was afraid to tell his father this. He mentioned an incident where his grandmother was stabbed in the eye by Ms H. He stated N had sustained bruises from the father but “he had not bled from Dad like me.”
D told child protection workers, Ms G and Ms VB, that the father would frequently verbally abuse D, calling him ‘useless, a dickhead, and “evil like his mother.” According to D, the father had threatened to kill him and his family if he told anyone about the abuse.
D spoke of continual drug use and violence between the father and Ms H and stated that police attended the house regularly. Ms H’s house was described as filthy and D stated he slept on the couch in the lounge-room and N slept on a ‘really thin mattress and has no sheets because he wets the bed.’ In cross examination, the father maintained that the children had new beds.
Relevant law – parenting issues
These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to D and N, I must regard their best interests as the paramount consideration.
Subject to the best interests of the child being the paramount consideration,
s 60B sets out the aims and principles of Part VII. The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case. Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the 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.
The objects may be regarded as the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the 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).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.
In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in
s 60CC of the Act.
The primary considerations
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(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.
This is a case where both of the primary considerations are relevant.
In my view, a consideration of the benefit to D and N of having a meaningful relationship with both parents is informed, significantly but by no means solely, by incidents of family violence and the attitudes and behaviours of the parties in that regard. Accordingly, I will deal first with my assessment of the need to protect the children, or either of them, from physical and psychological harm in the context of s 60CC(2)(b).
Protection from harm
The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’ or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.
‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[50] A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.
[50] s 4 Family Law Act 1975 (Cth).
This factor requires a prospective evaluation. As such, I must assess the future risk of exposure by D and N to physical or psychological harm and formulate orders which protect them from that harm.
I take into account the evidence set out above of the boys’ allegations to the mother, to DHS and to the family consultant. I am not satisfied that all of the violence occurred as alleged by the boys, or by the mother as she deposes that it was related to her. Counsel for the father submitted, and I accept, that the allegations were vague as to time and place and circumstance and that there was no corroborative physical injuries. N said that he told his teacher of the father’s abuse but, with the assistance of the ICL, the teacher’s statement was admitted into evidence to the effect that there had been no such complaint, let alone bruising, to indicate abuse. The school records for both children were complimentary of the father’s attendances at the school and made clear his support for the boys.
Whereas I do not accept that the boys’ complaints were accurate in every detail, I do accept that the allegations were made to the mother and to DHS and to Mr E. I am satisfied that the DHS Report of 13 June 2008, Ms G (child protection worker) and the family consultant, Mr E, accurately reported the allegations made by the children.
I reject that the mother has conditioned the boys to make the statements or coerced them into making them. I do so on the basis of the expert opinion of the family consultant to the effect that the boys appeared to be relating their own experiences as well as the evidence of the child protection worker, Ms G, that she was confident that the boys’ allegations were based on their own experiences. Both were cross examined on this point and their evidence was not shaken, in fact, it was strengthened. Ms G’s account of her interview with N on 25 February 2008 and her description of N’s complaints of being assaulted by Ms H are compelling. When Ms G agreed with the DHS report that:-
[N] began to say “When my dad was at work”, then the workers observed his eyes fill with tears and he said “My Dad missed Christmas and when he wasn’t there…
she captured very convincingly the hurt that I am satisfied N would feel as a result of the father, D and the paternal grandmother telling him that his father was at work during the Christmas period (when he was, in fact, in jail) as well as the physical mistreatment of him by Ms H.
I am satisfied to the requisite standard that the boys have been subjected to family violence within the father’s household and have been assaulted by the father and by Ms H. I do not accept that the assaults have been as precisely alleged by the children and I cannot be satisfied as to dates and times. However, I accept that the boys’ complaints are genuine. I accept the evidence of Ms G who deposed: ‘I am confident that the children have been abused physically and emotionally at the hands of the father.’
I also reject the father’s position that D has falsely accused him of assaults and family violence in order to be able to remain with the mother and in her household solely out of his desire for freedom.
I reject the father’s assertion that N is merely going along with false allegations against the father as a means of self protection and consistently with how the father advised him to behave, in the sense that the father gave evidence that he told N to comply with the mother’s expectations as a defensive mechanism.
I am also satisfied that the father’s environment is psychologically harmful to the boys. As identified by Mr E, the father’s denial of any wrongdoing is very damaging to the children’s emotional development, in particular insofar as:-
Such denials would only serve to undermine the children’s credibility and sense of their own self worth, and would cause them to believe they are responsible for the difficulties in their relationship with their father. The writer also believes the children would feel under constant pressure form their father to change of completely deny their own experience. In addition it was apparent to the writer that [the father] would actively undermine the relationship with have with their mother who, at the moment is their primary carer and responsible for their welfare.[51]
[51] Mr E, Family Report dated 24 July 2009, [24].
I assess the risk of further physical harm from Ms H as negligible. However the father’s continued denial of it ever having occurred is serious and ongoing. The mother sought an injunction against the father bringing either of the children into contact with Ms H. The father was prepared to agree to the injunction and I will make it accordingly.
I assess the risk of further physical harm from the father as medium to high. I note that the boys referred to being more able to protect themselves from the father as they get older. That is a consciousness on the part of the boys of the current and future danger which I assess the father poses to the children.
Another highly significant risk to the boys vis-à-vis the father is psychological harm. No part of the father’s oral evidence or presentation at trial satisfies me that the harmful effects of the father’s denials of the boys’ experiences or ill will and contempt for the mother have been ameliorated in any sense.
The benefit of a meaningful relationship
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parents and the boys by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with each parent is going to be beneficial and of advantage to the boys into the future against such of the additional considerations as are relevant to this case.
Both parents have reservations about the benefit to either of the children having a meaningful relationship with the other parent.
The father contends that, ideally, anytime which the boys have with the mother should be supervised for an indefinite period. As indicated, the only positive quality that he could identify in relation to the mother was that, without her, the boys would not have been born. In this jurisdiction it is often the case that one party’s statement about the other party is more illuminative of the maker of the statement than the party about whom the statement is made. This is one of those instances.
The mother contends that the children would benefit from the father apologising to them for his past conduct which, I am satisfied, is not something which is likely to occur. To the extent that the mother has permitted or encouraged the boys to believe that the father might be sorry for what they perceive he has done to them, I find that she has acted irresponsibly. She has allowed the children to think that the father will apologise to them when there is nothing to suggest that he will do so. However, vis-à-vis the benefit to the children of a meaningful relationship between them and the father, it appears that the mother’s position is that, absent a change in the father’s attitudes, there is no benefit.
Additional Considerations
The child’s views[52]
[52] s 60CC(3)(a) Family Law Act 1975 (Cth).
In determining what is in the child’s best interests the court must consider, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views. Previously there was a similar provision, which required the court to take into account the child’s ‘wishes’. [53] There is significant jurisprudence from this court in relation to children’s wishes which, as will become apparent, I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act.
[53] The repealed s 68F(2) Family Law Act 1975 (Cth).
The Full Court of the Family Court considered children’s wishes in
R & R: Children's Wishes(2000) FLC 93-000. The court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944: ‘[t]he wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.’
There is a distinction between the concept of children’s wishes and children’s views. ‘Views’ will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion. ‘Wishes’ are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind. The requirement to focus on the child’s views, as opposed to wishes, means that I may have regard to the child’s perceptions and inclinations without requiring the family consultant to make enquiries or elicit the child’s ultimate preference or wish. I agree with the reference in the Revised Explanatory Memorandum[54] that consideration of the children’s views will:-
allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[55]
However, consideration of a child’s views does not exclude consideration of a child’s wishes.
[54] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[55] Ibid paragraph 56.
Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare. This process was is described by the Full Court in R v R , in relation to children’s wishes, as follows:-
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
I consider that in the discussion by the Full Court in R v R, reference to ‘wishes’ may be read interchangeably for ‘views’.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant or other expert or appropriately qualified person retained by the parties or through the.[56]
[56] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
Mr E’s report dated 23 July 2008 provides a useful summary of D’s expressed wishes:
[D] has made it clear that he does not want to spend any time with his father or to see him in the foreseeable future. He presented as a thoughtful young man who had given consideration to the implications of his disclosures about what his father had done. While saddened by the impact these have had on his relationship with his father, he nevertheless believes he cannot retract what he has said. Given these factors, the writer believes that [D] has been able to make an informed decision commensurate with his developmental stage and level of maturity. If the allegations about his father are accurate, the reasons he has given for not wanting to see his father are also understandable. [D] believes however, that there may be a time in the future when he might be able to spend time with his father. His description of such a time suggested that he would only contemplate it if he believes he is able to physically defend himself against his father. The writer believes that this is not a responsibility [D] should have to bear.[57]
[57] Mr E, Family Report dated 23 July 2008, [52].
As to N’s wishes, Mr E’s family report dated 23 July 2008 states:
[N] was also clear he does not want to spend time with his father. Nevertheless he informed the writer that he was prepared to see his father on the day of assessment. Despite this comment however, his presentation suggested a level of personal vulnerability and ambivalence about meeting his father. The writer would therefore have some reservations about whether [N’s] comment was in fact an informed view. In the writer’s experience of working with children and families where abuse and violence has occurred, it is not unusual for a child to display ambivalence or even a desire to see the parent who has harmed them. This dynamic is usually a reflection of the child’s strong desire not to loose their relationship with a parent and a hope that their parent can again be a safe person for them. It is usually a dynamic seen in either younger or immature children. It is also unfortunately a dynamic that has the potential to place a child at risk of further physical and/or emotional harm.[58]
[58] Mr E, Family Report dated 23 July 2008, [53].
I accept Mr E’s evidence in relation to the views expressed by the boys. I propose to accord the views of the children weight in my determination. They are young boys who have been through a lot, including estrangement from the mother and abusive treatment by the father, physically and emotional abuse, and by Ms H to whom the father entrusted the care of the boys. They have made statements about their parents, particularly the father, at considerable risk to themselves. It is not a difficult case to assess with the benefit of hindsight.
They are trying to assimilate into a large and busy family and to put down roots in a world where, for good reason, their father plays no significant part. All in all, life is better for the boys than it has been but they are each still vulnerable in their own way. I am satisfied that it would be wholly inappropriate not to listen carefully to what the boys say and to accord their views respect and significant weight. To do otherwise, I am satisfied, would significantly undermine each boy’s confidence in himself, each other, the mother and the administration of justice.
The nature of the children’s relationships[59]
[59] s 60CC(3)(b) Family Law Act 1975 (Cth).
I consider the nature of the children’s relationship with each of the parents and other persons inclusive of grandparents and other relatives.
I am satisfied that a very significant relationship for both boys is the one they have with each other. This is one of the reasons why I would be disinclined to make orders which treat the boys differently from one another or remove one from being able to derive support from, or to be of support to, the other.
The boys are closely and strongly bonded to the father but it is not a healthy or, I am satisfied, beneficial relationship for them having regard to the physical and emotional abuse from the father.
The boys have a close bond with the mother but were casual visitors in her household until February 2008. Now they share her with their siblings and with Mr O. I assess their relationship with the mother as having the potential to be strong and they will benefit from her care, attention and nurturing, developmentally. I am satisfied that the boys’ relationship with the mother is one which is beneficial to them and can sustain her role as their primary caregiver.
I am satisfied that the boys would like to see the paternal grandmother and that she would dearly like to spend time with them. She impressed me as a loving and affectionate grandmother. Unfortunately, however, she is in the thrall of the father and will do his bidding, if not immediately, then ultimately. I assess her as fair minded and well disposed to the mother but that in any conflict of interests, she will subordinate her own interest and those of the boys and the mother to the interests of the father. She gave evidence that if the boys were permitted to visit her she would keep the father away from them. However, I do not accept that that she actually has the wherewithal to do so.
It is likely that by now the boys will have fallen into a relationship with the mother’s other children and Mr O. Mr O’s demeanour in the witness box would make him an easy and understanding step father.
The mother has an extended family from which the boys will benefit.
The willingness and ability of each parent to facilitate and encourage the children’s relationship with others;[60]
[60] s 60CC(3)(c) Family Law Act 1975 (Cth)
Capacity of the parents to meet the children’s needs;[61]
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents;[62]
[61] s 60CC(3)(f) Family Law Act 1975 (Cth)
[62] s 60CC(3)(i) Family Law Act 1975 (Cth)
I am required to consider the ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is also necessary for me to assess the extent to which each of the parents has frustrated the other parent’s participation in this regard.[63]
[63] s 60CC(4) Family Law Act 1975 (Cth)
I must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his/her responsibilities as a parent. This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time with[64] and communicate with[65] the children and to participate about major long term issues concerning the children.[66] It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the children financially[67] or otherwise maintain the children. It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare[68] and the other parent communicating with the children[69] or spending time with the children.[70]
[64] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).
[65] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).
[66] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).
[67] s 60CC(4)(c) Family Law Act 1975 (Cth).
[68] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).
[69] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
[70] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
I am required to have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[71]
[71] s 60CC(4A) Family Law Act 1975 (Cth).
I have regard to the fact that the mother did not avail herself of all of the time that she was entitled to spend with the boys after they were both living with the father. However, given the hostility of the boys and the father to her, I am not critical of her on this account.
I have discussed the parents’ criminal histories earlier in these reasons to the extent to which I am satisfied that they bear upon their respective parenting capacities. Both parents have a significant capacity to justify behaviour that is unacceptable. This sets a poor example for the boys as they move toward adulthood.
The father’s attitude to the mother I find to be one of the main disqualifying factors to a meaningful relationship between him and the boys being beneficial to them. I find that if the father were to spend time with or communicate with the boys, he would undermine the boys’ relationship with the mother which would be entirely contrary to their best interests. Furthermore, the father’s attitude towards his physical abuse of the mother is reprehensible and the boys should not be contaminated by it. My impression is that the father is driven by vindictiveness in relation to the mother and is also disposed to disparage and demean her as a means of bolstering his own position.
I am confident that the mother would permit the children to have some relationship with the father to the extent that she could be confident that they would not be physically or emotionally harmed. I do not consider that will occur anytime soon. However, and for all the difficulties the mother has in telling the truth, she has sufficient insight as a parent to know that the boys’ self image is impacted upon by the impression they have of the father.
I consider the mother to have the capacity to decide, consistently with the boys’ interests, whether and when the boys can see the paternal grandmother.
The likely effect of any changes in the children’s circumstances[72]
[72] s 60CC(3)(d) Family Law Act 1975 (Cth)
In determining what is in the best interests of the child I am required to consider the likely effect of any change in their circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
The boys have not spent any significant time with the father or paternal grandmother since February 2008. The orders I will make will not bring about a change in that situation. However, it is my determination that this is consistent with their best interests.
Mr E opines in his last report:[73]
The writer recognises however, that the children’s desperate desire to retain a relationship with their father may make it difficult for them if they were unable to spend any time with him at all. It is possible that denying them with such an opportunity would result in the children becoming distressed and may result in them expressing their distress in the form of oppositional behaviour towards their mother. This would have the potential to significantly challenge the viability of their current living arrangements and relationship and with her.
[73] Family Report dated 24 July 2009 [par 27]
I take Mr E’s professional view into account. However, given my assessment of the physical and emotional risk to the children of spending time or living with the father, I find that that it would not be in their best interests to do so notwithstanding any resulting distress that they may suffer from a loss of contact with the father.
The father’s proposal was to have specific orders in relation to N. That is untenable having regard to my findings about the abuse perpetrated by the father and would also have a destructive effect on the relationship between the children.
The children’s maturity, sex, background and other characteristics[74]
[74] s 60CC(3)(g) Family Law Act 1975(Cth)
I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents.
All things being equal, it would be optimal for the boys to have the benefit of each parent’s culture. However, all things are not equal. The boys’ physical and emotional wellbeing dictates that they should live with the mother and not be compelled to spend time or communicate with the father. Culture and traditions relevant to the father’s heritage did not figure in the evidence to any significant degree.
As I have discussed earlier in these reasons, the boys are at a vulnerable age. I am satisfied that the mother’s parenting of them should be supported and be protected from the undermining influence of the father.
Any family violence involving the children or any member of the children’s family and family violence orders[75]
[75] ss 60CC(3)(j) and (k) Family Law Act (Cth)
As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.
I have found that the boys have been subjected to serious emotional and physical abuse whilst in the care of the father and, at times, Ms H. I have regard to the fact that the father has done nothing to assist the boys to move past the abuse or to be safe in an ongoing face to face relationship with him. I agree with the professional opinion of Mr E that the children would be at continued risk of emotional harm, in the least, if they were to have unsupervised time with the father. I also assess the risk of physical abuse by the father of both boys, or N by himself, as high. The risk to the boys of being harmed by the father, emotionally and physically, is grave and these are risks from which they must be protected.
At the time of trial, the parties were uncertain as to whether there was an extant family violence order under State legislation. However, neither made application for any corresponding orders to be made by this Court.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[76]
[76] s 60CC(3)(l) Family Law Act (Cth)
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively.
Mr E’s final recommendation included a period of supervised time between the boys and the father, counselling, therapy and then an assessment of whether the father can act protectively towards the boys. I am unable to accept that recommendation. The evidence does not support the father changing his behaviour towards the children in the foreseeable future. The boys deserve some finality and to move on as best they can.
The orders which I make will not preclude the boys from contacting the father if they wish to do so. However, they do not compel the mother to produce the boys, or either of them, for time or communication with the father.
Parental responsibility
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[77] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[78] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[77] s 61B Family Law Act 1975 (Cth).
[78] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[79] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[80] and to ‘make a genuine effort to come to a joint decision about that issue’.[81] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[79] s 65DAC(2) Family Law Act 1975 (Cth).
[80] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[81] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[82] or abuse of the child or another child who is a member of the parent’s family;[83]
[82] s 61DA(2)(b) Family Law Act 1975 (Cth).
[83] s 61DA(2)(a) Family Law Act 1975 (Cth).
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[84] or;
[84] s 61DA(3) Family Law Act 1975 (Cth).
c)Where evidence is adduced, upon which the court is satisfied 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.[85]
[85] s 61DA(4) Family Law Act 1975 (Cth).
I am satisfied that (a) and (c) apply to this case with the effect that the presumption in favour of shared parental responsibility is rebutted.
Looking at the case unaided by any presumption, and for the reasons set out above, I do not identify it as being in the best interests of the boys, or either of them, for the father to have parental responsibility in relation to them.
Consideration of equal time or substantial and significant time with both parents
By virtue of having determined that it is not in the best interests of D and N for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether I should make an order providing for the boys to spend equal or substantial and significant time with each of the parents.
Conclusion
Having regard to the primary considerations and such of the additional considerations as are relevant, I conclude that it is not in the best interests of D and N, or either of them, to be required to spend time or to communicate with the father. I also find that it would be contrary to the best interests of the boys for the father to have parental responsibility on a shared basis with the mother or to operate independently of the mother.
Proceedings of this nature are a positive enquiry directed to determining in a positive way the children’s future is arranged to be consistent with their best interests. However, a positive enquiry does not mean that negatives and deficiencies in parenting styles can be overlooked.
This outcome, whereby the father has no enforceable involvement in the boys’ lives, is the least dangerous course of action and is the outcome most consistent with their best interests.
I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 22 December 2009
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