DEACON & CASTLE
[2014] FamCA 1080
•5 December 2014
FAMILY COURT OF AUSTRALIA
| DEACON & CASTLE | [2014] FamCA 1080 |
| FAMILY LAW – CHILDREN – Where final orders made in previous proceedings in July 2013 – Where previous findings as to the father representing an unacceptable risk to the children – Where residence of the children changed from the father to the mother and the father’s time with the children suspended for about six months – Where thereafter orders provided for a gradual resumption of time – Where following resumption of the father’s time with the children father retains the children contrary to final orders – Where father alleges children at risk in the mother’s household – Where no such risk found to exist by the Department of Family and Community Services – Where consideration as to the difficulty of making findings on contested evidence in interim proceedings – Where in the best interests of the children the children’s contact with the father be restricted to written communication pending release of Chapter 15 Single Expert report. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Family Law Rules 2004 |
| Deiter & Deiter [2011] FamCAFC 82 Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 Goode and Goode (2006) FLC 93-286 MRR v GRR (2010) 240 CLR 461 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Ms Deacon |
| RESPONDENT: | Mr Castle |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
| FILE NUMBER: | SYC | 5348 | of | 2008 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 26 November 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rosic |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
Orders Pending further order:
That orders 7, 8, 9, and 14 made on 4 July 2013 by His Honour Judge Harman be suspended,
That pursuant to section 68B of the Act the father Mr Castle shall be and is hereby restrained from:
(a) Approaching or being within 500m of the children X and Y;
(b) Contacting by any means whatsoever, save as provided for herein, the children X and Y; and
(c) Being at or within 500m of the mother’s home or the children’s school.
That the father shall use his best endeavours to restrain or prevent any person acting on his behalf or in his interest from contacting or approaching the children in any way whatsoever.
That the father shall be at liberty to send to the mother at her residential address gifts and or cards for the children on the occasion of their respective birthdays, Christmas or any other special occasion provided always that such cards or gifts are contained in an envelope or parcel addressed to the mother and that the mother shall be at liberty to discretely open such cards or gifts and if appropriate provide them to the children or either of them.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Deacon & Castle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 5348 of 2008
| Ms Deacon |
Applicant
And
| Mr Castle |
Respondent
REASONS FOR JUDGMENT
The present proceedings are further parenting proceedings in relation to the children X Castle born in 2002 and Y Castle born in 2003.
Previous proceedings were determined by His Honour Judge Harman in the Federal Circuit Court of Australia on 4 July 2013 following six days of hearing.
The Primary Trial
The history of the matter up to the commencement of the trial before His Honour’s final orders is set out by His Honour in his reasons for judgment as follows:
2. These are proceedings relating to competing applications regarding the future care arrangements of two children:
a) [X] born … 2002 (aged 11 years at hearing); and
b) [Y] born … 2003 (aged 9 years at hearing).
3. The parties to the proceedings are the children’s parents namely, their mother (the Applicant), [Ms Deacon], and their father (the Respondent), [Mr Castle].
History of proceedings
4. These parties, who were never married and who are unable to agree as to the circumstances of their cohabitation, have been engaged in relatively continuous litigation from September 2008 to the present.
5. Whilst it is not specifically raised by the parties during the course of the proceedings (although each has referred to a history of conflict) it is instructive to consider the history of applications filed and the orders sought by them to trace if not understand how they have arrived at the present point.
6. The first application filed by either party was an Initiating application filed by Mr [Castle] in the Federal Magistrates Court (as it then was) at Sydney on 12 September 2008. That Application sought orders on an interim and final basis and in the following terms:
1. That the children…live with the father and during such times as the children are with him he have responsibility for decisions as to their day-to-day care, welfare and development.
2. That the children spend time with the Respondent Mother…as follows:
(i) During school term time, with the child [Y] from 9.30am to 5.30pm and with the child [X] from after school on Friday to 5.30pm, provided that such contact be exercised at [K Street, Suburb T] (on the basis that the Applicant Father will vacate the premises during that time to permit the children to be with the mother);
(ii) For such other times as agreed between the parties;
(iii) Subject to the mother being restrained by Injunction from taking the children to the home of her father at … and being restrained by Injunction from leaving the children unsupervised with their half-sibling, [A].
7. That application was ultimately discontinued on 15 October 2008.
8. Two days later and on 17 October 2008 an Initiating application was filed by Ms [Deacon] in the Federal Magistrates Court (as it then was) at Parramatta (being the date which had been allocated as the first return date of Mr [Castle’s] by then discontinued Application). That Application sought orders on a final basis and as follows:
1. That the parties have equal shared parental responsibility of the children…
2. That the children live with the mother.
3. That the children spend time with the father as the Court deems fit.
9. Interim orders were sought by the mother which were not significantly at odds with the final relief sought. On an interim basis it was proposed that the parents would have equal shared parental responsibility and the children would live with their mother each alternate week from after school Thursday to before school Monday together with a period from after school Thursday until 10.00am Saturday in the intervening weeks. On this basis, it is clear the mother was proposing, at that time, a shared care arrangement.
10. A response to the above application was filed by Mr [Castle] on 25 November 2008. By that response, Mr [Castle] sought orders for sole parental responsibility, for the children to live with him and for the children to spend time with their mother, on both a final and interim basis:
…one day per weekend between the periods 9.00am to 5.00pm subject to such being supervised by a suitable supervisor.
11. The proceedings came before Federal Magistrate Donald (as he then was) on 1 December 2008 and on which date both parties were legally represented. The proceedings were adjourned for Interim Hearing to 22 December 2008 and in the intervening period a number of orders were made by consent. The effect of these orders was that [X] and [Y] would spend time with the mother on 7, 14 and 21 December 2008 between 8.00am and 6.00pm with the children to be collected from Mr [Castle’s] home and returned to Mr [Castle] at McDonald’s at [Suburb T]. Provision was also made for telephone communication and a number of without prejudice and without admission restraints imposed.
12. On 22 December 2008 an Amended Response was filed by Mr [Castle] and which varied the relief sought by him. On a final basis Mr [Castle] proposed that the time would be:
3. Subject to the recommendations in the Family Report [not at that time commissioned] that the mother spend time and communicate with the children:
a. Every second Sunday from 8.00am until 6.00pm provided the mother:
i. Does not drive a motor vehicle unless she holds a driver’s licence;
ii. Does not bring, or cause or otherwise allow the children to come into contact with [Mr D] [the maternal grandfather] or [A] [the children’s elder sibling];
iii. And does not take, or cause or otherwise allow the children within 100 metres of the residence of [Mr D].
b. Provided that the mother has established her own accommodation and does not live with the maternal grandfather, [Mr D] then the mother is to spend time and communicate with the children as follows, such time not to commence until three (3) months after the making of these orders:
i. In week one from Thursday after school until Friday after school and each alternative week thereafter;
ii. In week two from Thursday after school until 9.00am Saturday and each alternative week thereafter
13. On an interim basis Mr [Castle] proposed that the mother spend time and communicate with the children:
…only by telephone every two days and the father is to facilitate telephone calls to the mother, such time to be limited to 30 minutes.
14. Restraints were sought in similar terms to the above.
15. On 22 December 2008 the proceedings came before Federal Magistrate Dunkley (as he then was) by way of interim hearing. On that date and following hearing orders were made pending further order as follows:
1. The children, [X], born … 2002, and [Y], born … 2003, shall live with the father.
2. The children shall spend time with the mother:
a. Each alternate weekend from 6 pm Friday to before school Monday during school term time.
b. Each week from 6 pm Wednesday to before school Thursday in school term time.
c. For the second week of each school holiday at the end of terms 1, 2 and 3 commencing at 9 am on the middle Saturday and concluding at 6 pm on the last Saturday.
d. From 5 pm on each Christmas Day to 6 pm on each Boxing Day.
e. From 9 am on 5 January 2009 to 6 pm on 11 January 2009, from 9 am on 19 January 2009 to 6 pm on 25 January 2009.
f. For two hours on each of the children’s’ birthday as agreed and failing agreement from 4 pm to 6 pm.
g. On the weekend of Mother’s Day from 6 pm on the Saturday prior to Mother’s Day to before school Monday of the day following Mother’s Day.
16. An order was also made 22 December 2008 appointing an Independent Children’s Lawyer and an order made commissioning a Family Report. Hearing. Dates were fixed for a hearing to commence 1 December 2009 (that no longer being the Court’s preferred protocol).
17. The parties were also noted as being in the process of attending Family Dispute Resolution (although upon file is a section 60I certificate issued by the service upon which the parties attended and indicating that Family Dispute Resolution was considered inappropriate).
18. Whilst it is not clear what difficulties arose following the making of the above orders, a flurry of filing occurred.
a) On 19 January 2009 an appeal to the Full Court was filed by Mr [Castle]. A copy of that Appeal is on the file but has not been read and considered by me as to the grounds alleged. There is nothing on the file to indicate clearly what occurred with the Appeal although in orders made 9 February 2009 it is noted that the Appeal was in the process of being withdrawn.
b) On 20 January 2009 an application in a case was filed by Ms [Deacon] seeking Recovery Orders with respect to both children. One can infer therefrom that one or more time periods pursuant to the orders made by Federal Magistrate Dunkley (as he then was) had not occurred or were not apprehended as likely to occur.
c) A response to the application in a case was filed by Mr [Castle] on 6 February 2009 and seeking a stay of all orders pending the hearing of the Appeal.
19. On 9 February 2009 the proceedings again came before Federal Magistrate Dunkley. On that date the application in a case and response were each dismissed. Further interim orders were entered by consent and which affected a variation of the orders previously made on 22 December 2008 and such that time pursuant to those orders was expressed as “recommencing” on 20 February 2009. A number of “provisos” were included within the orders being:
a) It was noted that the mother had provided to the Independent Children’s Lawyer and would provide to the solicitors for the father details of a new residential address;
b) The mother undertook to take all reasonable steps, while the children were in her care, to ensure that [A] did not engage in “over-physical play” with the children; and
c) The mother undertook to take all reasonable steps to ensure the children were not brought into the presence of people who “appear to be adversely affected by the consumption of alcohol” (whatever that phrase may have been intended to suggest or imply).
20. On 24 March 2009 a further application in a case was filed by Ms [Deacon] seeking to vary changeover arrangements. The orders made 23 January 2009 had provided for the children’s collection by the mother from the father’s residence and their return, by their mother, to school or by the father collecting them from the mother’s residence at the conclusion of each period (if not a school day). Again, the evidence relating to the application in a case and its ultimate determination has not been considered as they are not documents identified by the parties. However, clearly difficulties were apprehended at the time of filing the application in a case and as it was sought by Ms [Deacon] that changeovers be varied:
a. For the purpose of Order 2(i) [being each alternate weekend time from 6.00pm Friday to before school Monday] changeover shall occur at [W] Contact Service at times when the mother is not required to collect or deliver the children to school.
b. For the purpose of Order 2(ii) [being the period from 6.00pm Wednesday to before school Thursday] the mother is to collect and deliver the children to school.
c. For the purpose of Order 2(iii) [being a period of school holiday time] changeover is to occur at [W] Contact Service.
21. The mother also sought an order whereby the father be restrained:
…from taking the children to any psychologist, psychiatrist or counsellor without the written permission of the mother.
22. A response to the application in a case was filed by Mr [Castle] on 29 April 2009 (two days after interim orders were in fact made). By that response Mr [Castle], by and large, joined in a variation of changeovers so that they would occur through the [W] Contact Service and otherwise sought dismissal of Ms [Deacon’s] application in a case together with an order in similar to terms to that which had been proposed by Ms [Deacon] but mutualised being:
Each party be restrained from taking the children to any psychologist, psychiatrist or counsellor without the written permission of the other parent.
23. The above application in a case would appear to have been determined by orders made by Federal Magistrate Lindsay (as he then was) by consent on 27 April 2009 and which affected a variation of orders so that changeovers would occur at the [W] Contact Service or, if that service was not available, at McDonalds [Suburb T].
24. On 11 August 2009 orders were made to commission preparation of a Part 15 report by Dr [S] and orders were made (subsequently and on 22 September 2009) discharging the previously commissioned s.62G report.
25. Following the release Dr [S’s] report and on 1 December 2009 (the first listed day of trial) final orders were made between the parties by consent. Those orders are recited in their entirety as follows:
1. That [Ms Deacon] born … 1974 and [Mr Castle] born … 1965 have equal shared parental responsibility for the children [X] born … 2002 and [Y] born … 2003.
2. Commencing 9 December 2009 the children shall spend time with the mother as follows:-
a. Each alternate week from after school Wednesday to before school Monday;
b. Order 2(a) shall continue during each school holiday period at the end of Term 4.
c. From 6.00pm on the Saturday immediately preceding Mother’s Day until 6.00pm on Mother’s Day.
d. For the first half of each school holiday period at the end of Terms 1, 2 and 3 in 2011 and each alternate year thereafter and for the second half in 2010 and each alternate year thereafter. (Order 2a) shall be suspended during this time)
e. In odd numbered years from 4.00pm Christmas Eve until 4.00pm Christmas Day and in even numbered years from 4.00pm Christmas Day until 4.00pm Boxing Day.
f. From 10.00am Good Friday until 10.00am Easter Sunday in 2011 and each alternate year thereafter.
3. The mother’s time shall be suspended as follows:
a. From 6.00pm on the Saturday immediately preceding Father’s Day until 6.00pm on Father’s Day.
b. From 4.00pm Christmas Day until 4.00pm Boxing Day in odd numbered years and from 4.00pm Christmas Eve until 4.00pm Christmas Day in even numbered years.
c. For the second half of each school holiday period at the end of Terms 1, 2 and 3 in 2011 and each alternate year thereafter and for the first half in 2010 and each alternate year thereafter.
d. From 10.00am Good Friday until 10.00am Easter Sunday in 2010 and each alternate year thereafter.
4. The children shall live with the father at all other times.
5. For the purpose of Order 2 b), c) and e) the parent with whom the children are living at the time shall deliver the children to the other parent’s place of residence at the commencement of such time and the parent with whom the children are spending time shall return the children to the other parent’s place of residence at the conclusion of such time.
6. For the purpose of order 2 d):-
a) In 2011 and each alternate year thereafter the school holidays shall commence with the mother collecting the children from school on the last day of the school term and delivering the children to the father at 10.00am on the middle Saturday of the school holiday period and the father shall deliver the children to school at the commencement of new school term.
b) In 2010 and each alternate year thereafter the school holidays shall commence with the father collecting the children from school on the last day of the school term and delivering the children to the mother’s place of residence at 10.00am on the middle Saturday of the school holiday period and the mother shall deliver the children to school at the commencement of the new school term.
7. Each parent shall facilitate any request made by the children to telephone the other parent whilst the children are in their respective care.
8. These Orders constitute authority for any school attended upon by the children to furnish both parents with copies of all school reports, photos, memoranda, newsletters, correspondence and invitations to school events to which parents are usually invited.
9. The Mother and Father are each entitled to attend all school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the children’s teachers.
10. These Orders constitute authority for any medical practitioner, hospital or specialist attended upon by the children to discuss with both parents the children’s health including details of any treatments and medications received by them.
11. Each parent shall notify the other in the event of any serious illness, medical emergency or hospitalisation of the children, including details of any hospital, specialist or medical practitioner attended upon so that both parents may be involved in the children’s treatment and recovery.
12. Both parents shall be restrained from denigrating the other parent in the presence or hearing of the children and shall use their best endeavours to ensure no other person denigrates the other parent or any member of the other parents’’ family in the presence or hearing of the children.
13. That each party shall keep the other parent informed of their current residential address and contact telephone number and shall advise the other within 48 hours of any change.
14. The father shall do all acts and complete any documents necessary to have the mother listed as an emergency contact person at the children’s school.
15. That upon the expiration of a period of six (6) months from the date of these Orders the parties shall confer to discuss the arrangements pertaining to the children as they stand at the time and to consider any variation thereto and both parties acknowledge and agree that they will, in the event of any dispute utilise the services of either a public or private mediator.
16. Without admissions, the children are not to be left in the sole care of [Mr D].
17. The mother and father acknowledge and agree that they shall not attend the children’s school when the other parent is scheduled to collect or return the children unless such attendance is at the request of that parent collecting or returning the children, or a representative of the school.
18. The mother and father acknowledge and agree that they shall ensure the children are at liberty to speak freely about the other parent and their time with them whilst they are in their respective care however they shall not “quiz” the children about the time spent with the other parent.
19. Should the children be with the father during the second half of the Term 1, 2 and 3 school holidays, the time pursuant to 2(a) shall recommence the first week of school term and conversely, should the children be with the mother during the second half of the school holiday period, the time pursuant to 2(a) shall recommence the second week of the school term.
26. The above orders concluded the then raft of litigation between the parties.
27. On 10 November 2011 the Initiating Application which commenced this round of proceedings was filed by or on behalf of Ms [Deacon]. That Application sought orders, insofar as relevant:
1. That the parents shall have equal shared parental responsibility for the children [X] born … 2002 and [Y] born … 2003 (“the children”).
2. That the children live with the Mother.
3. The children spend time with the Father:
3.1 In week one from the conclusion of school on Friday until the commencement of school on Monday, and each alternate weekend thereafter; and
3.2 From after school Wednesday to before the following Thursday, and each alternate weekend thereafter;
3.3 For one half of all NSW school holiday periods…
28. Additional orders were proposed with respect to special events and it was proposed that changeovers would occur through the mother delivering the children to the father at his usual place of residence and the father returning the children to the mother at her usual place of residence (if collection to and from school was not appropriate having regard to the period of time spent).
29. A Response to that Application was filed by Mr [Castle] on 20 January 2012 and which sought orders in the following terms:
1. That [Ms Deacon] born … 1974 and [Mr Castle] born … 1965 have equal shared parental responsibility for the children [X] born … 2002 and [Y] born … 2003.
2. Subject to Orders 3 and 4 the children shall spend time with the mother as follows:
a) Each alternate weekend from 5.00pm Friday until 8.30am Monday;
b) Order 2(a) shall continue during each school holiday period at the end of Term 4 save that the period will commence at 5.00pm Wednesday and conclude 8.30am Monday.
c) For the second half of each school holiday period at the end of Terms 1, 2 and 3 in 2012 and each even numbered year thereafter and for the first half in 2013 and each odd numbered year thereafter.
…
30. Orders were also sought which had the effect that Mr [Castle] would be responsible for delivering the children to the mother’s place of residence at the commencement of each period and the mother return the children to Mr [Castle’s] residence at the conclusion of each period. Also of some significance, Mr [Castle] sought orders as follows:
6. Both parents are to use all reasonable means to encourage the children to visit the other parent but neither parent is allowed to coerce, drag or use any type of physical force to force the children to accompany the parent.
…
16. That upon the expiration of a period of six (6) months from the date of these Orders the parties shall confer to discuss the arrangements pertaining to the children as they stand at the time and to consider any variation thereto and both parties acknowledge and agree that they will if require utilise the services of either a public or private mediator.
17. Without admissions, the children are not to be left in the sole care of [Mr D].
18. The mother and father acknowledge and agree that they shall not attend the children’s school when the other parent is scheduled to collect or return the children unless such attendance is at the request of that parent collecting or returning the children, or a representative of the school.
31. The last of the above made 1 December 2009 has been the focus of significant evidence during the hearing of these proceedings.
32. Following the commencement of this round of litigation, the matter was first came before the Court on 1 February 2012 on which date the Independent Children’s Lawyer was re-appointed. It was noted, as part of the order appointing the Independent Children’s Lawyer, that:
3. The above appointment is requested on the basis that there is apparent intractable conflict and one of the two children is and has, for nearly 2 years, been estranged from the mother and is not spending time with her although her sister is.
33. In light of that reality (again the subject of significant evidence by the parties):
a) The parties were directed to attend a Child Dispute Conference 10.00am that day (1 February 2012); and
b) It was noted that neither party sought any order which would in any fashion seek to intervene with respect to the elder child [X’s] non-attendance with her mother nor seek to address same therapeutically or otherwise (such as through some form of family counselling or family therapy).
34. On 5 March 2012 the proceedings returned before the Court for the first occasion following the re-appointment of the Independent Children’s Lawyer. At that time a Family Report was commissioned and the proceedings were adjourned to allow for the preparation of the report and its release. An order was also made pursuant to section 13C directing that the parties attend at and complete (subject to assessment of suitability) the Keeping in Contact program conducted by Unifam.
35. It would appear common ground between the parties that they have attended the Keeping in Contact program at least twice and possibly on three occasions. The two children have also attended the Anchor program offered through Unifam and Ms [Deacon] has attended individual counselling with a worker from Unifam.
36. None of the above efforts, without intending in any fashion for such observations to be pejorative of Unifam or the services provided by them, have assisted in re-establishment of time and communication between [X] and her mother. Nor have those services assisted in ameliorating difficulties in attitude by or communication between the parents.
37. There was some delay in the preparation and release of the Family Report but ultimately on 9 August 2012 the Report was available to the parties and the matter was listed for hearing for three days commencing 25 February 2013.
38. Immediately before the scheduled hearing of the matter in February 2013, an amended response was filed by Mr [D] (sic) and which sought orders in the following terms:
1. That the children continue to live with their father and that the father remain the primary carer of [X] born … and [Y] born on the …
2. That the change over take place away from the school preferably McDonald’s [Suburb U] from after school at 4pm every alternate Friday and that the Children be taken to school by their Mother on Monday mornings between 8.30am and 9.00am.
3. That the children are to be treated in a Gentle Encouraging manner
4. That no violence or physical force is permitted toward either child or either parent by either parent.
5. That the parents are not to argue, humiliate or use foul language towards each other or the children at any time.
6. That their Mother be refrained from dragging [X] or [Y] on any occasion.
7. That I agree with the Court appointed family Report writer that she doubts that [X] would go with her mother even if ordered to do so and that this family should continue to go to counselling to resolve these issues.
8. That if for any reason a parent is unable to have the children on their allocated time or weekend or they do not turn up for change-over, this does not change their allocated week or following weekend.
9. That if the Monday is not a school day and their Mother cannot return the children to the school, that the change over take place at McDonald’s [Suburb T] at 9am Monday morning.
10. That during the Christmas holiday period the children spend one week with myself and one alternate week with their Mother commencing on the first Monday of the school holidays at 9am and that the change over take place at McDonald’s at [Suburb U]. If Ms [Deacon] is returning the Children to myself it is to be done at McDonald’s at [Suburb T] on the Monday morning at 9am.
If The last week of school ends when their Mother is due for her Allocated time, Her time begins as usual at McDonald’s at [Suburb U] at 4pm on the Friday and then their mother is to Return the Children to myself on the first Monday at 9am at McDonald’s at [Suburb T]. I note that McDonald’s at [Suburb U] is 2 streets away from Ms [Deacon’s] house and McDonald’s at [Suburb T] is 2 streets away from my house.
11. That the father be permitted to stay in his car at all change-overs.
12. That the father be permitted to take a woman along to the change-overs.
13. That the father can not be held responsible if their mother has chosen not to take [X] for her allocated time or if [X] now aged 11 has chosen not to go with her mother.
14. That all other orders that were agreed to by their mother and myself during the meeting with ICL in December 2009 [presumably the final orders made on 1 December 2009] remain in place.
39. On 25 February 2013 the matter was marked as “Not Reached” by (then) FM Monahan and thus fresh hearing dates were fixed before me.
His Honour’s reasons for judgment are lengthy, detailed and considered: (Dsacon & Castle (2013) FCCA 691). There was no appeal from the orders made.
Orders were made in the following terms:
(1)That all previous parenting orders with respect to the children of the relationship [X] born … 2002 and [Y] born … 2003 shall be and are hereby discharged.
(2)That the mother, [Ms Deacon] shall have sole parental responsibility for [X] and [Y].
(3)[X] and [Y] shall live with their mother.
(4)The Independent Children’s Lawyer and a Family Consultant are requested to immediately confer with [X] and [Y] and explain to them the orders made by me today and, in the case of the Family Consultant, to do all things within their power to assist and facilitate the children’s departure from the child minding section of this Court with their mother.
(5)Mr [Castle] shall, forthwith upon these orders being pronounced and judgment delivered, leave the registry and remain away therefrom.
(6)Ms [Deacon] shall be entitled to forthwith affect the children’s enrolment at a school of her choice and proximate to her home.
(7)Pursuant to section 68B and until 5pm 6 December 2013 Mr [Castle] shall be and is hereby restrained from:
(a)Contacting the mother, [Ms Deacon];
(b)Contacting the children [X] and [Y] by any means whatsoever (save for the purpose of attending any counselling or family therapy appointment arranged by the mother and at the request of that counsellor or therapist and with the mother’s knowledge and consent);
(c)Attending at or being within 200 meters of:
(i) The mothers home;
(ii) The school attended by the children or either of them.
(8)Commencing 7 December 2013 Mr [Castle] shall have contact with and shall communicate with [X] and [Y] as follows:
(a)Until the commencement of Term 1 2014 school term - each Saturday from 10am until 5pm;
(b)Thereafter:
(i)Each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend) to commence with the first weekend of each new school term;
(ii)During each short New South Wales school term (those following terms 1,2 and 3) from 10am on the first Saturday of the holiday period until 5pm the following (middle) Saturday;
(iii)During the Christmas School holidays in each year for two one week blocks being from 5pm Christmas Day until 5pm New Years Day and from 5pm 15 January until 5pm 22 January;
(c)By telephone each Wednesday between 6:30pm - 7pm.
(9)That for the purpose of facilitating time with the children that does not occur on school days, the Mother deliver the children to the Father at his usual place of residence at the commencement of their time with the Father and the Father return the children to the Mother at the Mother’s usual place of residence at the conclusion of their time with the Father unless otherwise agreed between the parties and at all other times the father shall collect the children from and return the children to their school/s.
(10)Each parent shall be and is hereby restrained from discussing with the children any issue or allegation raised in these proceedings and shall not allow, cause or permit any other person to do so save the Independent Children’s Lawyer, a Family Consultant or counsellor or family therapist engaged in assisting the mother and/or children.
(11)The mother shall be entitled to provide to any counsellor or family therapist engaged by her to assist her or the children or either of them a copy of the report of [Dr S] and Ms [V] if the counsellor or therapist requests same.
(12)That each party keep the other party informed as to his or her residential address and telephone number.
(13)That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
(14)That each party ensure that the children are transported by them to any sporting and extra curricula activities in which the children are participating from time to time and which occur at times when the children are in the care of that party together with any training or other tuition relating to that activity, provided both parties consent to the children’s attendance and participation in same.
(15)Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
(16)All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
(17)Pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders.
The present proceedings: Judge Stewart
The present proceedings were commenced by the mother filing an initiating application on 21 January 2014. In that application and she sought the following final orders:
a)That orders numbered 7, 8, 9, 10, 12, 13 and 14 of the court orders dated 4 July 2013 be set aside;
b)That the children spend no time with the respondent father;
c)That pursuant to section 68B the respondent father shall be restrained from:
i)Contacting the applicant mother, [Ms Deacon];
ii)Contacting the children [X] and [Y] by any means whatsoever;
iii)Attending at or being within 200m of the applicant mother’s home or the school attended by the children.
The mother in her initiating application sought interim orders in similar terms together with orders that would facilitate the return of the children to her by the father including a recovery order.
On 28 January 2014 the father filed a response to the mother’s initiating application. In that response the father sought the following final orders:
a)That the children live with the father;
b)That there be a gradual transition of access of the children by the mother, through supervised contact visits at a contact centre, for example at … contact centre – Relationships Australia, for 18 months;
c)That the mother be restrained from using any form of physical discipline or chastisement towards the children, or either of them, at any time;
d)That the mother participate in an anger management program and parenting programs i.e. Circle of Security – Attachment Parenting, and the Positive Parenting Program;
e)That the children be reinstated into the Keeping in Contact program – Anchor program with Unifam;
f)That the mother may make phone contact with the children between 5:00pm and 6:00pm once per week;
g)That the mother may send correspondence or gifts addressed to the children via the father’s residential address;
h)That the father will pass on, unopened, any correspondence or gifts received from the mother and addressed to the children, or either of them;
i)That the mother and father are restrained from denigrating each other to or in the presence or hearing of the children, or either of them.
In his response the father sought interim orders in similar terms.
The interim proceedings came before Her Honour Judge Stewart in the Federal Circuit Court of Australia on 28 January 2014. On that day Her Honour delivered extempore reasons for judgement and relevantly made orders in the following terms:
a)That orders 7 to 13 inclusive of the orders made on 4 July 2013 be suspended;
b)The children be forthwith return to the mother and she be permitted to collect the children as soon as practicable after these proceedings;
c)That until further order the father:
i)Be and is hereby restrained from approaching the children or to be at or within 200m of the children;
ii)Be and is hereby restrained from contacting the mother, the children or to be at or within 200m of the mother’s home or the children’s school;
d)Request that the Legal Aid Commission of New South Wales consider the reappointment of Ms Christine Hafey as the independent children’s lawyer in these proceedings;
e)Adjourn all extant applications to 1 April 2014 at 9:30am.
Her Honour noted that the father absented himself from the court during the delivery of orders in the matter.
Her Honour in her reasons for judgment provided a “brief outline” of the proceedings before Judge Harman saying:
6. It is necessary to traverse a brief outline of the proceedings before his Honour in June and July 2013. Up until that date the children had been living primarily in the care of the Father and, for reasons that are set out at paragraphs 465 to 505 of that judgment, his Honour made findings that the children were at an unacceptable risk of harm in the Father’s care. His Honour referred to the evidence of two professional witnesses, a Dr [S] and Ms [V]. Dr [S] had proffered an opinion that the relationship between [X] and her Father was enmeshed.
7. It is quite clear that his Honour observed that Dr [S] had not seen [X] for some considerable period of time prior to the matter coming to Court before his Honour but the deterioration in [X’s] behaviour were entirely consistent with Dr [S’s] predictions and the entirety of her evidence. Ms [V], the family consultant who prepared the family report, ultimately left the finding of enmeshment open to the Court at that time but expressed clearly her view that such a finding was open on the evidence at that time and deduced that there was a dire prognosis for [X’s] future in the event that finding of enmeshment was found.
8. His Honour assessed that there were risk factors associated with the care of the children in each party’s care and recognised that if both children continue to reside with Mr [Castle], there were clear risks, particularly as regards to [X] and her ongoing psychological and emotional development. He assessed that should the children pass to live with Ms [Deacon], there was a clear risk to [X] as to regards her capacity to deal with such a change in arrangements. His Honour found at 472 of the document as follows:
I accept and I am satisfied by reference to the evidence discussed above that there would be an established unacceptable risk to both [X’s] present and long-term wellbeing of continuing to remain in an enmeshed relationship with her Father. Thus, the issue becomes whether I am satisfied that such an enmeshed relationship exists at present, and if so, whether it can be addressed in the future through some form of family counselling, family therapy or other order of this Court.
9. His Honour ultimately found that [X’s] relationship with her Father was enmeshed and thus unhealthy and an acceptable risk to her now and in the future.
10. His Honour’s findings go on for some considerable period of time. However, I note that his Honour said at paragraph 494:
[X’s] independent will and personality and [sic] entirely crushed and subsumed by her enmeshed relationship with her Father and with the simultaneous consequence that I am satisfied that;
(a) the nature of the enmeshed relationship represents an unacceptable risk to [X] and [Y] who, whilst not so enmeshed as her sister, has the potential to be further enmeshed and impacted immediately; and
(b) failure to address that relationship, which the evidence satisfies me can only occur through removal, has disastrous long-term and predicable [sic] and likely consequences for both girls.
11. His Honour identified that there was certainly a risk with respect to changing the children’s residence, although ultimately determined at the conclusion of those proceedings that a change should occur. It is impossible in these reasons to set out all of his Honour’s judgment and, indeed, anyone reading this judgment should also read a much more comprehensive assessment of the facts as they existed in the middle of 2013 as set out by his Honour.
12. As a result of his Honour’s findings, the orders made on 4 July 2013 were significant and effected a very significant change with respect to the girls. He ordered that the Mother have sole parental responsibility for the children and that they live with her. He ordered that the independent children’s lawyer and a family consultant explain the orders [the children] and he ordered that the children, amongst other things, immediately go into the Mother’s care.
13. Importantly, and as a direct consequence of the findings that his Honour made, he ordered that there be essentially no contact between the Father and the children until 7 December 2013 and then there be graduated increasing of time with the Father commencing with or day time on the Saturday, leading to the girls spending time with the Father each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday. There were other ancillary orders associated with that judgment.
14. Suffice to say that today the Father has expressed a great deal of dissatisfaction with his Honour’s findings, but as I have pointed out to him, I do not sit in appeal of his Honour’s findings and I simply sit and deal with the matter as best I can in this busy duty list on an urgent basis, in circumstances where leading up to the change of residence of the girls, his Honour has clearly and with some depth of consideration indicated that he regarded the children at risk, if not grave risk of harm if they remained in the Father’s full-time care.
Her Honour then proceeded to outline the evidence before her as to what had transpired since the orders of July 2013:
15. I turn now to what has happened since the application was determined by his Honour. As was clearly the case, the children did not spend any significant time with the Father until December of last year; that is less than 12 weeks ago. It seems that, on 8 December, the Father commenced spending time with the children. The children spent time with the Father on 7 December and 14 December, on 21 December, and then spent time with the Father on 28 December.
16. On even the first three occasions the children spent time with the Father prior to the children remaining with him on or around 28 December, there were difficulties with the way the Mother perceived the children interacted with the Father. For instance – and I just use these by way of example – on the very first occasion of time on 7 December 2013, the Mother alleges that the Father told the children, “Tell your Mother, while she is here, what she has done to you.”
17. I note that the Father, at this point, has interjected my reasons for judgment and denies that allegation. She says that the Father engaged in a tête-à-tête with the Mother in front of the girls, where he said words to the effect of, “Come here, for once in your life, and you will see what you have done. “Look what you have done. You have taken these girls from their Father, their friends, their school.” The Mother responded and said the girls are happy and finally have had a chance to love their mum, and the Father said, “The girls are crying because they don’t want to be with you. They want to be with their Father. I hope you are happy now.” The Mother responded with the words, “You haven’t learned anything.”
18. I note that, as I deliver these reasons for judgment, the Father continues to interject and denies the allegations or the words that the Mother alleges that the Father has spoken. I digress at this point to point out that, as opposed to the proceedings before his Honour in June of 2013, in a duty list such as this I am unable to make findings on questions of fact that are alleged and denied, even from the bar table, as to what was said or not said at any period.
19. The Mother – and I again say in general terms – talks of what I will term the long goodbyes at the conclusion of time, where, at least by inference, I glean that the Mother says that the Father made a big production out of the changeovers at the conclusion of time. The changeover and the changeovers on 14 December again had the children being returned where the Mother alleges a long goodbye and that the children’s demeanour was not as usual. She says there was a call by the Father for another cuddle to say goodbye, but the children settled quickly back into the Mother’s care. I stress that, at the moment, I’m dealing with the allegations in the Mother’s case and not the Father’s case.
20. The Mother deposes at that juncture that, later in the evening, two police officers arrived at the home and they told the Mother that a call had been made with respect to the safety of the children from a woman that was concerned about the welfare of the children living in her home. The reporter apparently said she suspected that there must be violence in the home because the girls looked unhappy returning. The Mother says that the police spoke with the children and confirmed that all was well, and the police officers appeared happy with their responses. Clearly the Mother suspects – although I make no finding – that the Father was involved in some way with that report to the police, although it had not come directly from him.
21. The Mother then deposes in her affidavit to the changeover on 21 December 2013, which was the next time that the Father was to spend time with the girls pursuant to the orders. The Mother delivered the children as she was required to, and the Father returned the children to the Mother’s home as he was required to. She said that the Father kissed the girls goodbye and was crying when he said goodbye. She says that the girls walked towards her and the Father called them back to give him another hug. According to the Mother there was an unpleasant exchange of words between the parties at that time.
22. On 28 December, which I note occurred on only the fourth occasion of time that the girls had spent with their Father pursuant to the orders made in July 2013, an according to the Mother, at drop off time [Y] whispered to [X], “We’re never on time, like dad said.” The Mother sought to placate the girls. This is contained at paragraph 31 of the Mother’s affidavit. The Father then returned the children at the house at around about 5 o’clock in the afternoon. The girls walked to the rear of the van, and [Y] appeared to the Mother to be nervous. The Father let go of the girls and they walked towards her.
23. She said that she hung onto [X’s] hand and put her arm around [Y’s] shoulder, and she was asking them fairly innocuous questions. They again ran back down to the driveway and gave the Father another cuddle. She walked to get the girls and they started to leave the driveway again. It is alleged by the Mother that the Father said words to the effect of, “I’m leaving now. Are you staying, or what? If you’re coming with me, I’m going, otherwise you are staying here.” She said that [Y] ran to the Father and they went around to the driver’s side of the vehicle. The Mother grabbed [X’s] arm as she went to run, and asked her to wait on the footpath. The Mother walked around the driver’s side of the vehicle.
24. [Y] was standing on the step of the van. She asked [Y] not to get in the van. Apparently [Y] hesitated and looked at her, then the Father, pushed her into the vehicle and said words to the effect of, “Well, I’m leaving.” The Mother alleges that the Father was angry. She says that she started to walk [X] on the footpath and that the Father alighted his motor vehicle and ran after her. She says that the child, [X], looked at the Father chasing after her and ran to the rear of the van and then down to the driver’s door, and that the Father picked up [X] and pushed her into the vehicle, across [Y’s] lap and into the passenger seat.
25. The Mother says that the Father started the vehicle and drove forward at a fast pace to do a u-turn. The Father shouted out of the van window words to the effect of, “The children love me; not you. I’m going to the police. I have so much to tell them about what goes on here,” and there was further altercations. What is clear is that the children have not been returned to the Mother’s care since that time. I note that the Mother has filed further affidavit material by a [LL] who, amongst other things deposes to being witness to abuse between the Mother and the Father, directed by the Father towards the Mother; the witness deposes to the changeover on 14 December, the changeover on 21 December and the changeover on 28 December, which is consistent with the Mother’s version of events.
26. I note that the Mother files an affidavit from a [Ms B] and, importantly from my point of view, that witness deposes to seeing the children when they were in the sole care of the Mother. What is remarkable about that evidence, in terms of what has happened since, is that the children, from this deponent’s point of view, appeared happy and settled in their Mother’s care.
27. There is a further affidavit filed on behalf of the Mother by a friend, [Ms F]. She deposes to the Father abusing her when she was at the … Shopping Centre in an abusive and demeaning way. She says that she was scared of the Father.
28. There is a further affidavit of a [Ms N] who files an affidavit in support of the Mother. She deposes that on 23 November last year she saw the children, [X] and [Y], who seemed happy in the home and saw them on a picnic day … where they seemed happy and behaving as you would expect children to behave. Significantly, there is no allegations or no evidence that the children were enjoying anything but a normal home environment with the Mother. This is in sharp contrast to that which the children report to their Father.
29. In his affidavit filed in support of these proceedings on 27 January 2014, he says that as early as 7 December 2013 – being the very first occasion that the children spend time with the Father following the conclusion of the proceedings on 7 December 2013 – the children:
Cried all day upon their return and said words to the effect of, “I’m not going back to the Mother’s, please don’t make me go back”. [X] said words to the effect of, “I’m scared of my Mother and her angry moods. I hide in the cupboard and she screams at me. She smashes things. She says that all of the Court case and everything that has happened is my fault. My Mother also says that she will never let me see you – the Father – again”.
30. [Y] says, “I’m scared of my Mother. She yells at me and smashes things and I hide under the kitchen table. I have wet my pants while hiding under the table few times”. [X] also said to me words to the effect of, “After court, it took four adults who worked at the Court to get [Y] and I into our Mother’s car. We were crying and screaming as we did not want to go”. [Y] also said, “My Mother makes me a slave over there. I have to get my Mother drinks and take things to and from her while she watches television”.
31. He says that when the children were being returned they were saying things such as, “Please, dad, don’t make us go back”. He says that on a second occasion, the children said to him that they were locked in [Y’s] bedroom with the door tied shut with a rope, that they did not have any bath or shower during this time, that they did not get to change their clothes or speak to anyone, that [Y] would take some food to [X] up in the bedroom but she was too unhappy to eat and that she got very thin and felt sick.
32. The Father says that [the children]:-
a) told him that they had been hiding in cupboards and under the table;
b) that their Mother yells at them, smashes things and tell them that they will never see their Father again;
c) that she drags them round the house by their hair;
d) that they are never able to talk to their friends from [T] Public School again;
e) [X] said that her Mother said that everything that has ever happened with the Court case was her fault and she called [X] “a fucking little bitch” and if she cries, she makes fun and laughs at us.
33. On the second occasion of time, on 14 December, the Father says that the children were both very upset and crying on the return journey to the Mother’s house. He says that when they arrived at the Mother’s house at 5 pm, they both said they did not want to go with the Mother and told him she hurt them. They were begging the Father not to make them go back.
34. It seems that woman, [O], made a report to DoCS on 15 December 2013. The next occasion was 21 December and the children made further complaints about their treatment at the hands of the Mother. They said,
We hate being at our Mother’s place and she’s always angry and screaming at us. We are really scared of our Mother.
35. On 28 December, the children said to the Father, words to the effect of, “we hate it over there with our Mother. We want to come home. Please Dadda, don’t make us go back to her.” Apparently [Y] yelled at the Mother, “I am not going with you” at the return time for changeover. He then says:
I then observed the Mother grab [Y’s] hand and squeeze it. I heard [Y] scream.
36. He also says in a shortly later incident that he saw the Mother grab [X’s] right arm suddenly with both hands, causing it to twist, that the Mother dragged [X] up the driveway by the right arm, he heard [X] let out a high-pitched scream and she was crying hysterically. He said that he got out of his van and yelled “stop” to the Mother.
37. The Father says that at that stage [X] ran to his van and he drove to the emergency department at … Hospital and that the children were examined by various doctors and it appears that [X’s] wrist, at least on a prima facie basis, has been injured. He has retained the children in his care since that time and says in his affidavit and tells me in court today that the children simply do not want to return to their Mother’s care.
38. The presentation of the children in the Father’s care is very troubling indeed. His Honour made a finding of enmeshment and it seems that within four time periods the children have gone from apparently enjoying a simple life in the home of their Mother to being further enmeshed in the difficulties that present in these proceedings. It appears that at least at first blush, there may have been an incident at changeover where the Mother grabbed the child’s wrist and I take that into account.
39. However, what the Father completely fails to recognise is that his involvement in the changeover and the enmeshment of the children as found by his Honour Judge Harman, and the way the children have interacted with him and in turn reacted to returning to their Mother, has directly implicated him in that injury perhaps suffered by [X] and/or [Y], yet he takes no responsibility for it. I am troubled that the Father, rather than reading and taking on board the extensive findings of Judge Harman, seems to simply suggest that Judge Harman got it completely wrong, and is unable to reflect on his own behaviour in terms of these girls’ presentation.
Proceedings in this court
On 1 April 2014 these parenting proceedings were transferred to this court.
On 20 May 2014 the proceedings were listed before a Registrar. An order was made that the matter proceed to the Child Responsive Program and the parties were directed to attend an intake event for that program at 9:00am on 11 September 2014.
On 29 July 2014 the proceedings were listed once again before a Registrar. Directions made on 20 May 2014 were vacated. Proceedings were listed for a judicial case management hearing on 8 September 2014.
On 8 September 2014 leave was granted to the parties to approach the list clerk for allocation of an interim hearing date and directions were made to facilitate preparation for that interim hearing.
The interim hearing was listed for 26 November 2014. On that day the parties agreed to the appointment of Dr Q as a single expert to provide a report to the court for the purposes of the proceedings. Otherwise following completion of the interim hearing on the basis of submissions judgment was reserved to a date to be fixed.
The Mother’s evidence
The mother relied upon her affidavits that were before Her Honour Judge Stewart. Her Honour’s summary of that affidavit evidence is set out above.
The mother otherwise relied upon her updating affidavit filed on 4 November 2014.
The mother shortly after orders were made in July 2013 changed the children’s school from T Public School to U Public School as provided for in those orders. The child X went into year 5 and the child Y into year 4.
The children attended the last two semesters of 2013 at their new school. In November 2013 the child X was elected house sports captain and in December at a school presentation day received the citizenship medal for her class.
The mother resides with the children at her Suburb U home which is on five acres and affords most adequate and comfortable accommodation for the children. The property is also occupied by the mother’s partner LL and the mother’s older son, A, aged 22.
To the mother’s observation the children have settled well into her household and to their new school.
The semester 2 school report 2013for the child X in the general comment observes:
[X] has been a delight to teach. She is motivated, well-mannered and cooperative, with a happy, friendly demeanour. She displays self-control and listens attentively during the instructional part of lessons and works independently and diligently when completing all set written tasks. Her homework is consistently well done and returned to school on time. [X’s] positive and consistent efforts towards school and learning activities have resulted in a most successful academic semester. Well done, [X]!
The semester 2 school report 2013 for the child Y in the general comment observed:
[Y] is a very hard worker and has achieved pleasing results this semester. [Y] has continued to produce quality work in appropriate timeframes. [Y] is keen to answer questions during class discussions and does so with sound thinking. [Y has continued to show great respect to those around her which is a very admirable quality. I would like to thank you [Y] for your wonderful cheery character and wish you all the very best next year and in the future.
A strong inference arises from the above end of year 2013 school reports that the mother has facilitated the children settling in well into her household in circumstances where they were removed from their father’s influence.
The mother says that it took a couple of weeks for the child X to reconnect and warm to her but by 22 July she and the child had reengaged and the mother describes her relationship with the child now as warm and loving.
On 2 September 2013 the mother received a text message from a Mr H, a friend of the father who gave evidence at the original trial. The message criticised the mother for not facilitating some contact between the children and the father on Father’s Day. It is clearly apparent that Mr H was not aware of the terms of the final orders made in July 2013.
Prior to the recommencement of the father’s time with the children the mother on 6 December 2013 forwarded an email to the father in the following terms:
we will be there at 10 a.m., girls are looking forward to seeing you. Can you please make sure the gate is unlocked so they don’t have to climb over.
7 December 2013
The mother on 7 December arrived at the father’s premises. The gate to the father’s premises remain closed. The mother asked the father to open the gate as the child Y had grazed her knee and was having trouble climbing over. The father gestured to the mother to leave. The mother helped the children over the gate and with that the father threw his glasses on the ground, started to cry and grabbed hold of the children. The father then said to the children “tell your mother while she is here what she has done to you”.
The mother turned and walked towards her car. The father called her back holding a child under each arm. The father said to the mother “come here for once in your life and see what you have done”. The father continued “look what you have done, you have taken these girls from their father, their friends, their school”. The mother replied “the girls are happy and finally have had a chance to love their mum.” The father was laughing and by this stage the children were crying and tried to pull away from the father but he held on to them. The father then said to the mother “the girls are crying because they don’t want to be with you. They want to be with their father. I hope you are happy now.” The mother returned to her car as the father continued to yell at her. The mother’s partner LL was present in the mother’s car and corroborates the mother’s evidence.
On the children being returned to the mother’s home that day at 5:00pm the children and the father arrived in a vehicle driven by Mr H. To the mother’s observation there appeared to be other children in the car. The father stood at the rear of the vehicle saying goodbye to the children crying and hugging them. The mother says the children had settled down after a few minutes and in referring to their time at their father’s home said “it was okay”.
14 December 2013
On 14 December 2013 for the purposes of the children’s time with the father the mother was accompanied by her adult son A. To the mother’s observation the children seemed a little anxious on the way to the father’s.
On arrival the father was standing on the front porch of his house and once again it was necessary for the mother to assist the children over the fence as the gate to the premises was not open.
The father returned the children to the mother’s home as provided for by the July 2013 orders. He was accompanied by a Ms O, the mother of a child from the children’s former school at T Public.
On returning the children the father said in a loud voice “I love you kids, you’re the best kids in the world. Oh I love you. Off you go.” Whilst they were walking back to the house with the mother, the father called out “come and give your dad another cuddle”. The children ran back down the driveway cuddled their father and returned to the mother.
Police attend at the mother’s home
Later that evening two police officers attended at the mother’s home at Suburb U, in relation to the safety of the children.
The mother was informed that a call had been made to the police station relating to the safety of the two children. The mother was informed that the call had come from a woman who was concerned about the welfare of the children living in the home who suspected there must be violence in the home because the girls looked unhappy returning.
The police officers spoke to the children, confirmed all was well and left the premises.
The mother later found an email from the child Y to the father that was dated 14 December 2013 at 5:39pm. The child’s email said:
Hi its [Y] I just wanted to say I miss you and I love you PS I will do want (sic) you said love [Y].
21 December 2013
The children next spent time with the father on 21 December 2013. The mother and her partner delivered the children to the father’s home, once again to find the gates locked. The mother helped the child Y over the gate.
The children were returned to the mother at about 5:20pm. The mother noticed there was a car following the father’s van which appeared to be full of people. The children got out of the van and the father, crying, hugged the children and said goodbye. The father called the girls back saying “come and give me another hug”. The mother approached the father at the bottom of her driveway to collect the children and to hand the father copies of the children’s school reports. The father was holding the children under each arm and said to the mother “I’m not interested”.
To the mother’s observation the children were not distressed by the father’s behaviour.
28 December 2013
On 28 December the mother and her partner delivered the children to the father’s home for the purposes of their time with the father.
Once again the father’s gate was locked and the mother was required to help both children over the gate. The father was observed to be standing in the doorway of his house.
Later that day the father arrived at the mother’s house to return the children. To the mother’s observation the father was on his own with the children. The children walked over to the mother and she took X’s hand and put arm around Y’s shoulder arm and commenced to walk towards her house. As he had done on previous occasions the father called the children back for “another cuddle”. The mother and the children then commenced to walk up her driveway.
The mother then heard the father say to Y “I am leaving now, are you staying or what? If you’re coming with me I’m going, otherwise you are staying here.”
The child Y ran to the father and they moved to the driver’s side of the father’s vehicle.
The mother took hold of X’s arm as she went to run and asked her to wait on the footpath. The mother went to the driver’s door of the father’s car and said to the child:
Please don’t get in the van. This is not the way we do it. Please [Y] get out of the van.
The father had then got into the van and the mother shut the door to stop the father from jumping out again. The mother returned to the child X who was on the footpath.
The father got out of the van and ran towards the mother. The child X then separated from the mother and ran to the van. The father picked up the child X and pushed her into the vehicle into the passenger seat. The father then started the vehicle and commenced to do a U-turn.
The father called out of the window of the vehicle “the children love me not you. I’m going to the police. I have so much to tell them about what goes on here.”.
The mother during this incident was accompanied by her partner who corroborates the mother’s evidence. The mother’s partner called out to the father “what is your problem?”. With this the father stopped the car, alighted from the vehicle and ran towards the mother’s partner. The mother said to the father “please leave the property, you have not been invited here. You are trespassing”. The father was yelling and waving his arms around. The father returned to his van and drove off quickly yelling out at as he left:
If you’re looking for me I’ll be at the police station. I have some stories to tell them.
The mother later contacted a Police Station to report what had transpired. The mother informed the police that she had concerns for the safety of the children particularly in relation to the father’s anger and his driving.
The mother was later contacted by the police at about 11:20pm that night and she was informed that the father and the children were located and that there was some delay in locating them, they had been at the hospital as the child X had hurt her wrist. The mother was informed by the police to take the matter to the Family Court.
On 29 December 2013 the mother spoke to the medical director at the Hospital who informed her that he had examined X’s medical reports and x-rays. The injury did not appear serious and the child was sent home in a splint.
The mother subsequently became aware that the father had reported the incident to the Department of Family and Community Services.
The mother thereafter made various attempts to contact the father but to no avail.
11 January 2014
On 11 January 2014 at about 4:50pm the father arrived at the mother’s home at Suburb U unannounced. He sat in his car sounding his sworn. The mother, her partner and her adult son observed the father in his car parked across the driveway with both children in the car with him. The mother attempted to talk to the children through the car window that was a down about an inch. The children did not respond to the mother.
The father said to the children aggressively:
Well, are you going or not?
The mother observed both children to shake their heads. The father then said aggressively to the children:
Well what are you doing?
Neither of the children responded. The mother said to the children “I love you, I am here for you.” With that the father drove off suddenly. The mother observed a second car stationary at the bottom of her driveway.
The reason for the father’s attendance at the mother’s home is problematic. The inference arises that the children may have requested they be returned to the mother’s home but were fearful of so doing in the circumstances.
18 January 2014
At about 5:00pm on Saturday 18 January the father again attended at the mother’s home with the children.
At that time another family was visiting the mother and her partner.
As the mother approached the father’s van she noticed the children looking straight ahead. The window of the van was only open an inch and the car door was locked. The mother tried to speak to the children saying:
Hi my little lovelies it is so nice to see you and I miss you terribly. Do you think you will come home? Come on let’s get out of the car and give me a hug I miss your hugs.
The mother then observed the child Y looking stone faced. The mother saw the father nudged the child and say to her:
Well tell her, you have to tell her.
With that the child looked at the mother and said:
We don’t want to come with you.
The child started to cry a little and stared out of the front window of the car. To the mother’s observation the children appeared scared and distressed.
The mother noticed that the child Y had a video camera in her hands.
The child X then said on prompting from the father:
I don’t want to come with you after what you did to me.
An apparent reference to the child being restrained by the mother when the father abducted the children from the mother’s premises.
The mother observed X was upset and began to cry. The father was asked if he would open the window and he refused. The father then drove away with the children. Once again the mother observed a second car at the bottom of the driveway being the same car she had seen on the previous occasion.
28 January 2014
Following orders made on 28 January 2014 the children returned home with the mother and her partner. That evening both children said to the mother “I love you” before going to bed.
When the child X was returned to the mother’s care she had her arm in a sling. The mother consulted a physiotherapist who recommended the child do some exercises and the child quickly regained full use of her arm.
To assist the child in resettling after the disruptions the mother engaged the children with a counsellor at Unifam and on 12 February 2014 the children commenced to attend the “Kids Connect Program” one day a week for eight weeks.
Following the children’s return to the mother they continued their attendance at U Public School.
The mid-year report 2014 for the child Y in the general comment observes:
[Y] is a kind, quiet and hardworking student who is beginning to express ideas more frequently during class discussions. Her consistent effort and determined attitude is displayed in her work. [Y] listens respectfully to others’ opinions and is a valued member of a small group. [Y] usually completes homework tasks and this is benefiting her. [Y’s] warm nature enables her to make positive friendships. She is cooperative, eager to please in class and is to be commended for her achievements this semester. Keep up the good work, [Y].
In a similar vein the mid-year report 2014 for the child X observes:
It is a pleasure being [X’s] teacher this year. She demonstrates effective work habits by being organised and ready to learn each morning. She keeps her work area clean and tidy and puts a tremendous effort into her homework and class assignments. She demonstrates the ability to work well, independently and within group situations. She is able to listen to constructive feedback and then act upon it accordingly. She asked questions in seeks clarification when needed and tackles new challenges with a positive attitude. She carries out school responsibilities diligently and is always willing to help. [X] is a respectful and courteous class member who consistently uses personal best effort on a daily basis. Being voted class Prime Minister is a testament to the integrity of her character. A great start to 2014. Congratulations.
The children’s school comments are certainly not indicative of children with significant issues within their household but of children settled and focused on their school environment.
The Father’s Evidence
In addition to the affidavits is relied upon by the father in proceedings before Her Honour Judge Stewart that have been referred to above the father relied upon his updating affidavit filed on 14 November 2014.
The father complains that notwithstanding orders made in June 2013 he does not have the children every second weekend as provided for in the orders.
He fails to recognise that those orders were suspended by Her Honour Judge Stewart.
The father says that he continues to work part time as a carer for people who have autism and for the elderly in the community.
The father asserts that he is engaged to be married but the marriage has been postponed until next year. He and his fiancée are expecting a child in March 2015. His fiancée at present remains overseas and has provided no evidence in support of the father or his proposals.
He asserts that he had continued to return the children to the mother’s home in accordance with final orders made even though they would not go with the mother.
There is a strong inference that the father’s behaviour once his time recommenced has had an unsettling and adverse effect on both children.
The father gives evidence that on the morning of 7 December 2013 after the children were dropped off at his residence they cried all day and said “I’m not going back. Please don’t make me go back”. He asserts that the child X said to him:
I’m scared of my mother and her angry mood is. I hide in the cupboard, she screams at me and smashes things. She says that all of the court case and everything that has happened is my fault. My mother also said that she will never let me see you again.
The father says that on the same day the child Y said to him “I’m scared of my mother. She yells at me and smashes things and I hide under the kitchen table. I wet my pants while hiding under the table a few times”. And further “my mother makes me a slave over there. I have to get my mother drinks and take things to and from her while she watches television.”
The father says that he returned the children to the mother’s residence at 5:00pm that day. The children were crying, pleading and refused to get out of the car.
The father lifted the children out of the car one at a time and carried them to the mother’s driveway where the mother was standing. Both children, he says, kept running after me as I attempted to return to the vehicle saying to him “please dad don’t make us go back”.
The father says that he observes the mother laugh of the children and make no attempt to console them.
On 14 December after the children arrived at the father’s home the child X said to the father:
In the first 2 weeks of my mother’s house I was locked in [Y’s] bedroom with the door tight shut with a rope. I did not have any bath or shower during this time. I did not get to change my clothes and did not speak to anyone. [Y] would bring me some food up to the bedroom but I was too unhappy to eat any think. I got very thin and felt sick.
The children then said:
We’ve been hiding in cupboards and under the table as our mother yells at us, smashes things and tells us that we will never see our father again stop she drags us around the house by our care. Our mother says that we are not allowed to ever talk to our friends from [T] Public School again.
The child X then said to the father “my mother says to me that everything that has ever happened with the court case is my fault. She calls me a fucking little bitch. If we cry, she laughs and makes fun of this.”
On returning the children to the mother’s home this day the father was accompanied by a Ms O who drove the father and the children in her car.
The father says that whilst in the car that the children refused to get out and the child Y said “I don’t want to go with the mother, she hurts us.” The father says that as the children refused to leave the vehicle he lifted each of them out of the car and placed them in the driveway of the mother’s residence where the mother was standing. He observed that the mother was laughing at the children while they were crying.
The father says that he returned to Ms O’s vehicle a number of times but the children would continue to turn around and chase after him. He asserts they said to him “no no please dadda, please dada, don’t make me go back.”
The father says that he persisted at returning the children and as he got back into the vehicle he observed the children ran away from the mother towards the rear gardens of the property. He says that he and Ms O were both upset and crying on the return to his home.
Notwithstanding what appears to be the availability of Ms O to become engaged in the issues between the father and mother in these proceedings no affidavit evidence is provided by Ms O to corroborate the father’s assertions as to the above incidents.
The father says that the following morning 15 December he received a telephone call from Ms O. She informed the father:
Yesterday [X] confided in me, and told me what was happening at her mother’s house. She told me that she was being physically abused by her mother. I was so concerned about the safety of the children that I telephoned DOCS last night.
The context of the report made by Ms O to DOCS is revealed in the Departmental file (Exh C). The Departmental notes as to the report by Ms O reveal an unusual level of engagement by Ms O in the issues between the father and the mother. No action was taken as a consequence of the report with the Departmental conclusion being recorded as follows:
It is noted on 4 July 2013 FLC orders were made granting full PR to the mother. It is noted the father who was the primary carer of the girls since they were infants is seeking to raise money to have the matter reheard. It is noted the reporter is also seeking to the children to be returned to their father.
The reported concerns are acknowledged however there are inconsistencies in the information as at one point the non-mandatory reporter alleges [X] has not been fed for 11 days and at another point the report states that she also has concerns that [X] is emotionally eating as [X] has put on 11 kg. Due to this inconsistency the motivation of the report is questionable and it appears the report is malicious.
The father relied upon an affidavit filed on 14 November 2014 by Ms J. Ms J gives evidence of various engagements with the children, observing, she says, their distress and engaging the children in conversation as to what they asserted had transpired at the mother’s home. What she says is consistent with the father’s assertions as to what the children had said to him.
It appears that Ms J and her husband were also willing to engage in the issues between the father and mother in these proceedings by shadowing the father’s car when he returned the children to the mother’s home on 21 December 2013. They also did so on 18 January 2014 after the father had retained the children.
On 30 December Ms J telephoned DFCS to make a report as to her observations and her concerns in relation to the welfare of the children. She then handed the telephone to the child X so that the child could speak to the DFCS representative herself.
However Ms J’s perceptions and observations as to the children’s physical well-being seem somewhat inexplicably inconsistent with the well settled children represented in their school reports and in the mother’s evidence.
After the children had been retained by the father the children were at Ms J’s home. She says that during the day the child X spoke to her and said:
I sent an email to various radio stations and the Prime Minister about what my mother has been doing to us. A lady at radio station 2GB rang the police and DOCS after she got my email. The police are finally going to listen to me.
She says that on the same day the child X showed her a handwritten letter and requested that Ms J look up the address for the Prime Minister, the Minister, Courts, media, Education Department, DOCS and legal aid on the Internet for her. It appears that Ms J provided those addresses to the child as the child received a response from the Minister for Family and Community Services dated 19 March 2014 (Exh F).
The DFCS File
Exhibit C comprises documents produced on subpoena by the Department of Family and Community Services. The file reveals that both children were interviewed by Departmental officers on 9 January 2014 and then again on 20 January 2014.
Prior to interview it appeared that the father had been non-cooperative with the Department in making the children available promptly as requested by the Department. The children made similar complaints to the Department as they had made to the father.
After the various emails had been sent by the child X as referred to above the police in response attended at the father’s home. The police spoke to the child who confirmed that she and her sister had sent emails to radio stations, the Prime Minister, Minister for Children and DFCS without the father’s knowledge. Upon making inquiry of the child X in relation to her allegations the child’s responses lacked consistency and to an extent resiled from the initial complaints made by her.
It is of note that the Department files reveal calls to the Department in relation to the children on 14 December 2013, 28 December 2013 on two occasions, 29 December 2013 on three occasions, and 30 December 2013 on two occasions.
The Department completed a safety assessment decision report on 24 January 2014 considering all of the material at that time available to the Department concluding that there was no evidence of any danger present to the children in the household of the mother.
Copies of email communication purportedly sent by the children or either of them and a copy of the purported handwritten letter by the child X are contained on the Departmental file.
It is of concern that Ms J facilitated the children sending emails and correspondence by providing addresses for them and provided to the children details of other cases that had involved His Honour Judge Harman.
Discussion
In Deiter & Deiter [2011] FamCAFC 82, the Full Court (Finn, Thackray & Strickland JJ) said:
61. The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…
62. We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):
18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
63. In our view, the proposition contained in the final sentence of the quotation is most important. In any event, in Goode and Goode, the Full Court said:
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
a) There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b) In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c) If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The Full Court in Goode and Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Best Interests of the Children
As a consequence of the history of this matter as set out above it is readily apparent that a determination of the present interim applications before the court rests upon primarily protective considerations in relation to these children.
The court is required to have regard to the objects and principles underlying the parenting provisions of the Family Law Act 1975 (Cth). Included therein as one of the primary objects is “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
The findings by His Honour Judge Harman are unequivocal and have been referred to above and should be repeated here:
[X’s] independent will and personality and [sic] entirely crushed and subsumed by her enmeshed relationship with her Father and with the simultaneous consequence that I am satisfied that;
(a) the nature of the enmeshed relationship represents an unacceptable risk to [X] and [Y] who, whilst not so enmeshed as her sister, has the potential to be further enmeshed and impacted immediately; and
(b) failure to address that relationship, which the evidence satisfies me can only occur through removal, has disastrous long-term and predicable [sic] and likely consequences for both girls.
The Additional Considerations: s 60CC(3)
The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
(a) Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
There is conflicting evidence in relation to the wishes of the children. It is the mother’s case that the children have settled well into her household for two considerable periods interrupted by a short resumption of their relationship with the father. The father gives evidence as to the children’s unwillingness to return to the care of the mother back in January 2014. They have done so and objective evidence in terms of their school reports infer that the children are well settled and engaged in the school environment and are progressing well.
Objective material in terms of Exhibit C being the Departmental file of the Department of Family and Community Services reveal a significant circumspection by the Departmental officers and officers of the New South Wales Police Service as to the alleged complaints by the children.
A proper determination of this factor will need to await a final hearing.
(b) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The present primary relationships of the children are with the mother, her partner and their older half sibling. The children appear to be well settled in those relationships.
At present as a consequence of orders made in January 2014 the children have no relationship with the father. The nature of the children’s relationship with the father was extensively examined at trial by His Honour Judge Harman who had no reservation in making findings as to the risk presented to the children by the father. There is a strong inference that immediately upon the father resuming time with the children pursuant to the orders made by Judge Harman the nature of the children’s relationship with the mother and her household again came under question it appears in the minds of the children as a consequence of the conduct of the father and those around him. There is ample evidence to suggest that should the father’s relationship be resumed once again the children will be subject to unacceptable risk by reason of the father’s behaviour as identified by His Honour Judge Harman.
The children presently have a significant relationship with the mother and those in her household and it is important that the children remain in a settled environment pending determination of these proceedings on a final basis.
(c) The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child;
The background circumstances in relation to the engagement by each of the parents with these children over the last few years have been referred to above.
The father’s engagement since July 2013 has of necessity been limited.
Since that time the mother has facilitated the children changing schools and settling well into their new school and home environment. There is no suggestion that she will not continue to do so.
(ca)…
(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father seeks interim orders that would provide for the children to return to live in his household. The circumstances of that arrangement were fully canvassed by His Honour Judge Harman in his reasons for judgment and His Honour as at July 2013 was unreservedly of the opinion that in the interests of the children such a circumstance could not be contemplated and indeed there should be a significant break in the children’s relationship with the father for fear of the ongoing risk to them represented by the father.
Absent the ability to make appropriate findings at a final hearing, such a change as proposed by the father cannot be contemplated. This is particularly so having regard to his conduct, the conduct of those around him and the objective material available from the Department of Family and Community Services.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The matters discussed above impact upon this consideration and it is readily apparent that present protective concerns render this consideration of little utility in the context of this interim determination.
(f) The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This consideration also has been touched upon in the discussion above. The father asserts that the mother’s capacity is subject to question by reason of the complaints by the children. It is clear that the complaints of the children as asserted by him are presently to be considered with some circumspection particularly as a consequence of the conclusions of the Department and the New South Wales Police.
The findings of His Honour Judge Harman reveal significant reservations as to the father’s parental capacity. In the brief history that has seen this matter again before the court for determination those reservations with ultimate findings to await a final hearing.
The mother has demonstrated since July 2013 and until mid December 2013 the capacity to have the children settle into her household and into their new school. From late January 2014 to date the children have once again settled back into her household and continued their exemplary school engagement.
(g) …
(h) …
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The conduct of the parties as it impacts upon this consideration has been referred to above. The father’s behaviour shows little regard or understanding for the reasons, findings and orders made after a lengthy contested hearing by His Honour Judge Harman. His apparent incapacity to take on board the trenchant criticisms of him is of significant concern, as is the reality that within weeks of resuming a limited relationship with the children he has in breach of orders retained the children with them only being returned to the mother following a contested interim hearing. A full consideration of this issue awaits a final hearing.
The mother has been the subject of alleged complaints by the children in terms of her attitude to them and conduct towards them. The circumstances of those complaints have been referred to above and there is a strong inference they should be treated with significant circumspection. The children have remained in the mother’s full-time care since late January 2014, no complaint has been made in relation to any aspect of their engagement with the children since that time.
(j) Any family violence involving the child or a member of the child's family;
The father would contended that there is an issue in relation to family violence in the mother holding the arm of the child X on the 28 December 2013. Circumstances of that incident and objective evidence in relation to any medical treatment administered to the child will await final hearing. The child has now remained in the mother’s care for nearly 12 months following the alleged incident.
(k) ...
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are interim proceedings and a determination of any variation to the present parenting orders including those orders that are presently suspended will await a final hearing. It is conceded by all parties that there is a prospect that there will be a substantive change to orders made in July 2013 as a consequence of these fresh proceedings. That is readily apparent from the issues referred to above
(m) …
The Primary Considerations: s 60CC(2)
The primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) – “meaningful” relationship: In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
In the context of the mother’s relationship with the children going forward the children have remained in her primary care now since July 2013. It is to be inferred that that ongoing relationship with the mother is important and valuable to the children in the context of the background of this matter.
The reservations as to the father’s relationship with the children were stridently set out in the findings of His Honour Judge Harman. Regrettably the occurrences of December 2013 and January 2014 raise significant reservations as to the father’s ability to provide to the children a relationship with him that is important, significant and valuable to the children. He has shown a complete disregard for the obligations imposed on him by the final orders and little if any ability to promote the children’s relationship with the mother.
A consideration of this factor is indicative of the father having very limited contact with the children pending final hearing.
Section 60CC(2)(b) – need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This issue has been referred to above at [127]-[129] and clearly was a primary determinant in the orders made by His Honour Judge Harman in July 2013. There is little if anything in the father’s conduct that allays the concerns expressed by His Honour or those expressed by Her Honour Judge Stewart in making orders pending transfer of the proceedings to this court for a fuller interim hearing.
There is clear and cogent evidence in the reasons for judgment and the orders of His Honour Judge Harman as to the risk that the father presented to the children. There is nothing in the evidence that would indicate any change in that assessment, particularly where the court is unable to make findings in relation to contested evidence and in such a circumstance as this is required to consider the best interests of the children as the court presently finds them.
There has been no concern or complaint expressed or raised in relation to the children in the mother’s household since their return to the mother on 28 January 2014. This is clearly indicative of the children’s present arrangements continuing.
The Presumption as to Parental Responsibility
An order was made in July 2014 following a lengthy hearing that the mother have sole parental responsibility for the children.
In circumstances where the children’s best interest considerations are overwhelmingly indicative of the children remaining in the mother’s primary care it is inappropriate for the presumption to apply.
The mother will thus retain sole parental responsibility for the children as currently provided for in orders of 4 July 2013.
Section 65DAA
In light of there being no order for equal shared parental responsibility, the Court is not required to give consideration to whether the children spending equal time or substantial and significant time with each of the parents is in the best interests of the children and reasonably practicable, and if so, to consider making an order for such equal time.
Orders to be made are determined thus by a consideration of the children’s best interests.
For the reasons set out above it is in the best interests of the children that they remain residing with the mother.
The question remains as to what if any engagement the father should have with the children pending a final hearing, noting that an order has been made appointing a single expert child psychiatrist to report under Chapter 15 of the Family Law Rules 2004.
It is of significant concern that within a very short period of the father resuming limited engagement with the children the parties are once again enmeshed in parenting litigation. There is a strong inference that the father will continue to undermine the children’s relationship with the mother to the children should he have contact with them and perhaps facilitate the children making “complaint” about the mother to third parties. There appears to be evidence that the father has engaged others in his ongoing conflict with the mother and that they have inappropriately engaged with the children. That nature and appropriateness of that engagement will await final hearing.
The independent children’s lawyer suggests that the children have telephone contact with the father on the basis of the mother being able to monitor the appropriateness of the content of that contact and that the father otherwise be at liberty to communicate with the children in writing on the occasion of birthdays, Christmas or other special occasions. It is the position of the independent children’s lawyer that the ongoing conflict between the parents perpetrates psychological harm on the children. That in itself realises the risk of there being any communication between the father and mother such as might be necessary to implement monitored telephone contact between the father and the children and the need for the mother to be alert to signals from the father to the children. Consequently the court is not disposed to make an order for telephone contact.
The independent children’s lawyer submits that the children are presently well adjusted in their present circumstances and have ongoing engagement with their school counsellor and Unifam. It is further contended that the girls are of an age where contact with the father in the context of an institutional supervised contact centre would be inappropriate.
On behalf of the mother it was submitted that telephone calls between the children and the father should not be permitted. Such contact should await the release of the single expert’s report and recommendations particularly in circumstances where the children are settled and doing quite well. It was further contended on behalf of the mother and not disputed that it is expected that the single expert’s report would be available in about four months’ time and the court should err on the side of caution until that report is available.
The mother conceded that communication in written form by way of cards and gifts on special occasions would be appropriate subject to the mother being able to monitor that written communication between the father and the children.
It was contended on behalf of the father that he had previously been their primary carer, that his actions in January 2014 were as a consequence of his fear of risk to the children at the hands of the mother.
It was further contended that there was a benefit to the children of having a “meaningful relationship” with both parents. The court’s reservation as to whether a resumption of the children’s relationship with the father would be in any way “meaningful” is discussed above.
It was conceded on behalf of the father that there was a need to protect the children and that there were no allegations as to ongoing risks of physical harm to the children. The issue was of course related to the question of psychological harm. It was contended on behalf of the father that professional supervision would be appropriate and that the father would have the capacity to pay for some supervised time with the children before initial interviews with the single expert.
As to this proposal the independent children’s lawyer was of the view that it would represent some risk to the children.
The determination as to the risk to the children represented by the father by His Honour Judge Harman is referred to above. Regrettably there is nothing in the circumstances of this matter coming before the court that reflect any amelioration in respect to that finding.
In all of the circumstances and having regard to the best interests of the children it is appropriate that the orders made by Her Honour Judge Stewart suspending the father’s time with the children be continued save that the father be permitted to communicate with the children by way of card and/or gift on special occasions subject to the mother’s right to ensure that any such communication is in appropriate circumstances and in appropriate terms.
Orders will be made accordingly
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 December 2014.
Associate:
Date: 5 December 2014
Key Legal Topics
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Civil Procedure
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Negligence & Tort
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Appeal
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Damages
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Duty of Care
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Negligence
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Standing
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