Dean and Dean and Anor

[2016] FCCA 832

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEAN & DEAN & ANOR [2016] FCCA 832

Catchwords:
FAMILY LAW – Parenting – Both parents commit serious family violence to each other and children– father undertakes significant remedial action –– mother lacks insight – father reformed – mother suffers from anxiety and other issues – father more likely to promote relationship.

Legislation:

Family Law Act 1975 (Cth), Part VII

Re: (F Litigants in Person Guidelines) (2001) 161 FLR 189
Collu v Rinaldu [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518

Applicant: MR DEAN

First Respondent: MS DEAN

Second Respondent: DEPARTMENT OF HEALTH & HUMAN SERVICES

File Number: HBC 876 of 2013

Judgment of: Judge Curtain

Hearing dates:

21, 22, 23 September 2015 and

14 and 15 December 2015

Date of Last Written

Submission:

8 February 2016

Delivered at: Melbourne

Delivered on: 15 April 2016

REPRESENTATION

Counsel for the Applicant: Ms Ryan

Solicitors for the Applicant: PWB Lawyers

Counsel for the Respondent Mother: Self-represented

Solicitors for the Respondent Mother:	N/A
Counsel for the Independent Children's Lawyer:	Mr Glass
Solicitors for the Independent Children's Lawyer:	Nicholes Family Lawyers

ORDERS

1. That all prior parenting orders be discharged.

2. That the parents have equal shared parental responsibility for X born (omitted) 2006 (“X”) and Y born (omitted) 2009 (“Y”) (and together, “the children”).

3. That X and Y live with the father.

4. That X and Y spend time with and communicate with the mother as follows:

   (a)During Tasmanian school terms on the first and third weekend of each month, commencing May 2016 from Friday evening to Sunday afternoon (extending to Monday if it is a public holiday in Tasmania);

   (b)For half of all gazetted Tasmanian school term holidays, as agreed and failing agreement for the second half of the holidays commencing July 2016;

   (c)For half of the gazetted Tasmanian summer school holidays, as agreed and failing agreement, for the first half of the holiday period in even numbered years and the second half of the holiday period in odd numbered years;

   (d)Via Skype, telephone or other electronic method agreed between the parties on X’s birthday, Y’s birthday, the mother’s birthday, Mother’s Day, Z’s birthday, Christmas Day and Easter Sunday at 10am, if not a school day, or such time as agreed and each Tuesday and Thursday between 7:00pm and 7:30pm or such other time as agreed, and the father shall facilitate same; and

   (e)Such further or alternate time or communication as agreed and should the mother be unavailable for any period she shall give the father at least 7 days clear written notice.

5. That for the purpose of Order 4 above the following will apply:

   (a)X and Y will travel as unaccompanied minors on direct flights and the mother and father will do all things necessary to facilitate this;

   (b)The mother will purchase the children’s tickets to Melbourne and the father will purchase the children’s tickets back to Hobart for journeys made pursuant to Order 4 above;

   (c)The father and mother will book X and Y’s flights as in (b) above and provide an itinerary to the other, no later than 7 days prior to travel;

   (d)In calculating half the school holiday periods the following formula will apply:

   (i)A = the last day of school

   (ii)B = the day before pupils return to school

   (iii)C = the number of nights between A&B inclusive

   (iv)D = C divided by two

   (e)The number of nights the mother spends with X and Y during school holidays will be equal to “D” in the formula above;

   (f)X and Y will return to the father’s care by 5:00pm the day before they return to school; and

   (g)Should “D” calculate to an odd number the mother will have the benefit of an additional night at the commencement of her time.

6. That in the event that X and Y  are not in the father’s periods of care they will communicate with him via Skype, telephone or other electronic method agreed between the parents, on X’s birthday, on Y’s birthday, the father’s birthday, on Father’s Day, on Christmas Day and Easter Sunday at 10am if not a school day or such time as agreed and each Tuesday and Thursday between 7:00pm and 7:30pm or such further or other time as agreed, and the mother shall facilitate same.

BY CONSENT:

1. That Z born (omitted) 2001 live with the mother and the mother shall have sole parental responsibility for her.

2. That Z spend time with and communicate with the father as she wishes and should she choose to travel to Tasmania for this purpose, the parents shall meet her airfare equally.  

IT IS FURTHER ORDERED:

1. That the father and mother, their servants and agents be and are restrained from:

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent in the presence or hearing of X and/or Y or permitting any other person to do so;

   (b)discussing these proceedings or any dispute between them in the presence or hearing of the children or permitting any other person to do so;

   (c)subjecting or exposing the children to any form of family violence; and

   (d)subjecting X and Y to any form of physical punishment or violence.

2. That the parents will promptly inform each other of any serious illness or injury suffered or sustained by X or Y whilst in their respective care.

3. That the parents are each at liberty to:

   (a)attend any school event involving X and/or Y at which parents are ordinarily invited;

   (b)obtain copies of school reports, photographs and other documents ordinarily available to parents in relation to X and /or Y, at their own expense;

   (c)liaise with and obtain information from any school or other provider of educational or extra-curricular activities attended by X and/or Y; and

   (d)liaise with any medical, para-medical or health care provider (including mental health services) attended by X and/or Y.

4. That the parents are each at liberty to travel within Australia during their school holiday time with X and Y upon the provision of a full itinerary to the other parent, 7 days beforehand.

5. That the father shall forthwith attend upon his psychologist, Mr P, or such other psychologist as recommended by Mr P, as directed and follow their advice and recommendations

6. That the mother shall forthwith attend upon her psychologist, Mr D, or such other psychologist as recommended by Mr D, as directed and follow their advice and recommendations.

7. That the mother shall forthwith provide her treating psychologist with a copy of the following:

   (a)the Affidavit of Dr M filed 6 November 2015; and

   (b)these Orders and the reasons underlining them.

8. That the mother shall forthwith provide her general practitioner with a copy of the Affidavit of Dr M filed 6 November 2015.

9. That the father shall forthwith provide his treating psychologist  with:

   (a)If it is not Mr P, then a copy of the Affidavits of Mr P; and

   (b)a copy of these Orders and the reasons underlining them.

10. That the parents are at liberty to provide any medical, para-medical professional social worker or psychologist involved in the care of X and Y with a copy of:

    (a)the Affidavit of Dr M filed 6 November 2015; and

    (b)these Orders and the reasons underlining them.

11. That the father is to provide a copy of these Orders to the school in which X and Y are to be enrolled and any subsequent school in which either of them are enrolled.

12. That the Independent Children’s Lawyer provide Child Protection Services in both Victoria and Tasmania with a copy of:

    (a)the Affidavit of Dr M filed 6 November 2015; and

    (b)a copy of these Orders and the reasons underlining them.

13. The Applicant father MR DEAN born (omitted) 1972 and the Respondent Mother MS DEAN born (omitted) 1980 and their servants and agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the children X born (omitted) 2006, Male, (“X”) and Y born (omitted) 2009, Male, (“Y”) (and together, “the children”) from the Commonwealth of Australia.

14. The children be and are hereby restrained from leaving the Commonwealth of Australia.

15. It is requested that the Australian Federal Police give effect to the preceding Order by placing the names of children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List for a period of two (2) years (or insert specified different period).

16. Upon expiration of the period referred to in Order 23 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Airport Watch List. 

17. The passports of the mother and Z be returned to the mother and the passports for X and Y continue to be held by the court, at the Hobart Registry.

18. The order appointing the Independent Children’s Lawyer is hereby discharged, after compliance with order 20 above.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Dean & Dean & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

HBC 876 of 2013

MR DEAN

Applicant

And

MS DEAN

First Respondent

DEPARTMENT OF HEALTH & HUMAN SERVICES

Second Respondent

REASONS FOR JUDGMENT

“Success does not consist in never making mistakes, but in never making the same one a second time.”

(George Bernard Shaw)

1. This is a parenting dispute where both parents argue that they have learned from their past mistakes and have successfully overcome any of their deficits in caring for and promoting the welfare of their children.

2. But have they really been as successful as they claim?

3. The parents commenced their relationship in or around (omitted) 2004 in (country omitted) and separated in November 2013 whilst living in Tasmania.  The mother has four (4) children: the first is W who lives with his father in (country omitted).  He has resided with his father from around the age of 6 months.  Her second child is Z who is aged 15.  Her father apparently resides in the (country omitted) and has nothing to do with his daughter.  It is agreed between the parties that Z is to live with the Mother, the Mother shall retain sole parental responsibility for Z and any time spent with Mr Dean will be subject to the full and informed consent of Z. Given this is to be by consent, the main focus of the trial was on the two children from the parents’ relationship.

4. The Mother has had two children to the Applicant father namely, X who is aged 9 years and 10 months and Y who is aged 6 years and 3 months.  Both parents seek that the children live with them and spend time with the other parent.

5. In the recent past, they have parented very badly, doing such things as frequently swearing in front of the children, punishing them by hitting them or slapping them, putting chilli powder in X’s mouth and holding X down and threatening to burn him with matches. Moreover, they have assaulted each other, or abused the other, in the presence or hearing of the children. They have been terrible parents and terrible role models.

6. In around July 2011, it is common ground that the Mother spat at the Father and he responded by hitting her with the back of his hand causing her lip to split and bleed.  In November 2013, the authorities in Tasmania received a complaint from Z through her school that Mr Dean had woken her in the morning and during an argument, hit her with a metal spatula creating a serious red mark on her leg.  Z further alleged that Mr Dean tried to choke her, however, there was no evidence of this.  Z further complained that subsequently on the same morning, the Mother slapped her face.  The mother in cross-examination admitted this as well as admitting to inflicting corporal punishment on all children.

7. The Tasmanian Child Protection workers interviewed Z and X as part of their investigation.  X disclosed that Z was hit by both parents and he alleged that he witnessed Z being picked up by the throat by the Applicant father.  He disclosed that on two separate occasions, he was held down by his mother while his father threatened to burn him with matches.  He stated that Mr Dean had previously put chilli in his mouth as punishment for swearing.  Further, X reported that Ms Dean has previously smacked him with a spatula which also left red marks. Mr and Ms Dean were interviewed by the authorities and the father admitted hitting Z with a spatula on the calf and Ms Dean admitted to hitting Z in the face, claiming that she slapped her as she was fearful of retribution from Mr Dean if she did not support his discipline, but said in cross-examination she did not know why she did it.

Background

1. On 4 November 2013 the children were removed from the care of their parents and placed in temporary foster care by DHHS Tasmania. After Ms Dean obtained a Family Violence Order against the father and Mr Dean left their residence, the children were returned to the care of the Mother.  Both Mr and Ms Dean were subsequently charged with common assault.  Mr Dean pleaded guilty to that charge and the outcome in relation to the mother is unknown.

2. On 3 December 2013 the father filed an Application in the Hobart Registry of this Court seeking, amongst other things, time with his children and Z.  On 9 December 2013 Judge Baker in the Hobart Registry made the following Orders:

   “UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

   1. Z born (omitted) 2001 (“Z”), Y born (omitted) 2009 (“Y), and X born (omitted) 2006 (“X”) live with the Respondent mother.

   2. The mother be permitted to relocate Z’s, Y’s and X’s principal place of residence to Victoria within a radius of 25 km of (omitted) pending the final determination of these proceedings.

   3. The father spend such time with Y and X at a contact centre as can be arranged and not less than 2 hours each fortnight.

   4. Within 14 days the Respondent mother nominate to the Applicant father’s solicitors the contact centre closest to her residence or such other contact centre as agreed.

   5. Each party:

   (a)     Contact the Contact Centre (“the Contact Centre”) within 7 days after the nomination as outlined in order 4 herein, and arrange an appointment for an assessment for suitability for enrolment in the Contact Centre;

   (b)     attend the assessment;

   (c)     comply with any appointments made by the Contact Centre;

   (d)     comply with all rules of the Contact Centre;

   (e)     comply with all reasonable requests or directions of staff of the Contact Centre.

   6. The Applicant father communicate with Y and X by telephone each week between 7:00-7:30 p.m on Monday, Wednesday, Friday and Sunday.

   7. The Applicant father and the Respondent mother be restrained from discussing with Z, Y and X the family law proceedings.

   8. The Applicant father be restrained from discussing with X and Y the whereabouts of the mother and the mother’s and children’s place of residence. 

   9. Each party hereby authorise the delivery of Z’s, Y’s and X’s passports directly from the Registry of the Magistrate’s Court of Tasmania (Children’s Division) to the Federal Circuit Court of Australia (Tasmanian Registry) or, if the said passports come into the possession of either party, that party forthwith deliver the said passports to the Registry of the Federal Circuit Court of Australia.

   10. The Respondent mother be entitled to obtain copies of Z’s, Y’s and X’s passports for the purpose of enrolling the children in school.”

3. On 6 May 2014, her Honour ordered that this matter be transferred to the Melbourne Registry.  The father has continued to reside in Tasmania and the mother has lived in the Melbourne metropolitan area with the three children.

4. Following the parties’ separation and the involvement of the child protection authorities, the father began supervised time on 10 January 2014 for up to two hours a fortnight with a professional supervisor.  This was increased to 6 hours by December 2014 and the children’s time altered to overnight, unsupervised time in May 2015.  More recently in June 2015 the children went to Tasmania and spent the holidays with him there.

5. The father, Mr Dean is aged 43 years and was born in (country omitted) on (omitted) 1972.  He resides at (omitted), Tasmania.  He works there as a (occupation omitted) and lives with his partner, Ms A and her daughter A who is aged 14 years.  A reportedly suffers from Asperger’s Syndrome and displays some challenging behaviours. 

6. The mother, Ms Dean resides in (omitted), Melbourne.  She is aged 35 years and was born on (omitted) 1980. Her partner, Mr J, resides with her and the children on a part-time basis.  I am told by the mother that they propose to live together next year in the (omitted) area. 

7. These proceedings were commenced in the Hobart Registry of this Court and initially involved the Tasmanian Department of Health and Human Services being a party. After its transfer to the Melbourne Registry, the Department no longer took an active role in the case.

The evidence

1. The parties relied on the following documents:

A. Applicant Father’s material:

(a)Amended Initiating Application filed 18 September 2015;

(b)Affidavit of Mr Dean affirmed 7 September 2015 and filed 9 September 2015;

(c)Affidavit of Ms A affirmed and filed 17 September 2015;

(d)Financial Statement of Mr Dean filed 7 September 2015;

(e)Affidavit of Ms J affirmed 8 April 2015 and filed 10 April 2015;

(f)Section 67ZA Report from the Department of Health and Human Services Victoria to the Federal Circuit Court undated (but clearly post-1 April 2015);

(g)Two Affidavits of Mr P affirmed 17 October 2014 filed 20 October 2014 and affirmed and filed 9 September 2015;

(h)Family Report prepared by Family Consultant Ms A dated 31 October 2014;

(i)Updated Family Report prepared by Family Consultant Ms A dated 7 September 2015;

(j)Case Outline filed 17 September 2015; and

(k)Written Submissions filed 19 January 2016.

B. Respondent Mother’s material:

(a)Affidavit of Ms Dean sworn 5 December 2013;

(b)Affidavit of Ms Dean sworn 19 November 2014 and filed 20 November 2014;

(c)Family Reports dated 31 October 2014 and 7 September 2015;

(d)Outline of Submissions and Case Outline filed 17 September 2015;

(e)Affidavit of Mr J affirmed and filed 18 September 2015;

(f)Affidavit of Ms S affirmed or sworn 22 September 2015 and tendered report dated 15 September 2015;

(g)Amended Response dated 17 September 2015;

(h)Financial Statement affirmed 25 November 2015; and

(i)Written Submissions filed on 8 February 2016.

C. The material relied upon by the Independent Children’s Lawyer:

(a)Case Outline filed 16 September 2015;

(b)Family Reports of Family Consultant Ms A dated 31 October 2014 and 7 September 2015;

(c)Affidavit of Ms J affirmed 8 April 2015 and filed 10 April 2015;

(d)Affidavit of Dr M, Psychiatrist, affirmed 4 November 2015 and filed 6 November 2015; and

(e)Written submissions filed 4 January 2016.

The Applicant’s evidence

1. The Applicant father was cross-examined for some length by Counsel for the Independent Children’s Lawyer and then subject to cross-examination by the mother in person.  I formed the view that he was sincerely remorseful in relation to his past behaviour of assaulting his partner and the children. 

1. It appears he has made a real effort to change his behaviour, for example, he has undertaken counselling and an anger management course where he has developed certain strategies to deal with any potential provocation. He said he attended a course called “Changing Abusive Behaviour” and agreed most definitely that he needed to undertake that course.  He was asked the following question:

   MR GLASS (Counsel for the Independent Children’s Lawyer):

   What you say there is that the course helped you to identify what family violence type behaviours are?‑‑‑Yes, yes.

   So can you tell us what they are?‑‑‑Well, they can range from anything, financial abuse, mental abuse, sexual abuse, physical abuse of course.  There’s a whole lot of abuses.  Yes.  But, you know, basically, though, it was sort of trying to make someone do what they don’t want to do is a form of abuse.

2. He detailed how he learned about avoiding inappropriate parenting methods and that he was attending a Mr P, who has been counselling him in relation to his own upbringing and the damage that has had on his parenting capacity, as the father said that his childhood was subject to significant corporal punishment.

3. He also gave evidence that under a scheme titled “Rural: Alive and Well” he was seeing a Ms D, a social worker who was giving him further support and counselling.

4. Overall, I formed the impression that the father was making a real effort not to repeat his past behaviour and genuinely answered the questions as best he could.  I formed the view that his evidence was generally believable. 

Witnesses of the Applicant father

Mr P

1. The father’s psychologist affirmed two Affidavits on 17 October 2014 and 9 September 2015. In his first report he diagnosed the father as suffering from “reactive depression and anger management issues”. In the more recent, second report, he described those conditions as having dramatically improved.

2. He said that the children would not be exposed to family violence or child abuse in the father’s care. He was cross-examined by Counsel for the Independent Children’s Lawyer about the possibility of the two boys living with him and said that, to have three children in the household, it would create more stress. In answer to that, the expert agreed that he would be under more stress but said he should be able to effectively cope with that. The psychologist was further cross-examined on the history of the allegations of violence and advised that this went on for some time; off and on for a period of about eight years. The expert was surprised and unaware of the length of the period, and in the circumstances, agreed with the proposal that Mr Dean should be monitored for a short period of time, should he have the care of the two young boys. He indicated that he was prepared to continue giving the father psychological support and if he was unavailable, to refer him to another expert.

3. When pressed on the question of whether the father posed a risk to these children, the expert was consistent and said “…there has been significant change and I think Mr Dean has shown a lot of remorse for his actions and shown a lot of motivation to change. I am quite sure that things are looking more positive for him.”

4. However, in all the circumstances, it is my proposal to make an order that the father shall continue to attend a psychologist to ensure he has full support when dealing with the children, in an emotional sense.

Ms J

1. This lady was involved with the supervision of the children when they were first re-introduced to regular time with their father. She affirmed an Affidavit on 8 April 2015, which annexed a report of that supervision. She said in evidence that she supervised 17 sessions of 70 hours in total, whilst three other workers, a Ms M, supervised 12 sessions of 63 hours, Ms P supervised 1 session for 3 hours and a Ms H supervised 1 session for 4 hours.

2. Her evidence was that Mr Dean gave no behavioural indictors to suggest that he has been aggressive or has a tendency towards violence during any of the supervised sessions. When cross-examined by Counsel for the Independent Children’s Lawyer she said she had no concerns about the father or violence being imposed on the children by him. More importantly, she talked of a telephone conversation with the mother after the release of the first Family Report. She said that the mother told her that she had read parts of the report to Z and the other two children. She went on to say that the mother complained that it was a negative report and that she told Z and X that they would be going to foster care. She described the mother as being very upset. Ms J made a notification to the Department of Health and Human Services following the phone call.

3. When further cross-examined by Counsel for the Independent Children’s Lawyer, she said she made the notification because she was concerned about the comment the mother made to the children in relation to foster care and she wanted the Department of Health and Human Services involved to ensure the children were “okay”.

4. She was cross-examined on this topic by Ms Dean and the witness was firm that the mother had said she told X and Z that they would be going into foster care, because at the time of the conversation with the mother the witness wrote down verbatim what she said. She said further that “…from my perspective, that’s what I heard, one hundred percent.”

Ms A

1. This lady is the partner of the father. They have cohabited for just over 12 months and previously knew each other. She is employed as a (occupation omitted) and has a daughter, A, who she said has been diagnosed with Asperger’s Syndrome.

2. I had the following discussion with her;

   And when you’ve had a conversation with him about his past behaviour – the way he physically disciplined children ‑ ‑ ‑?‑‑‑Mmm.

   ‑ ‑ ‑ what view did you form about his attitude to that?‑‑‑It’s very old school. 

   He’s very ‑ ‑ ‑?‑‑‑It was very old school.

   Yes?‑‑‑Yes.

   And his current attitude?‑‑‑He has adapted and evolved through the constant conversations that we’ve had, the literature that we’ve read, the support that we’ve had from the parenting courses, our social worker.  I think that we’ve – that Mr Dean has evolved quite a lot.  He has changed his approach from being very gruff and abrupt to a lot gentler, a lot calmer. 

   And is he the fellow when you first went to live there – was he the same fellow you met many years ago in (country omitted)?‑‑‑No.

   In what way has he changed?‑‑‑If I’m brutally honest, he’s a lot – he’s a lot ‑ ‑ ‑

   I want you to be brutally honest?‑‑‑He’s – he’s not the man that I knew back then.  He was a lot – he’s a lot – he’s almost broken, if I can say that.

   I don’t follow that.  What do you mean by that?‑‑‑He ‑ ‑ ‑

   Is it emotionally – is he more fragile more emotionally?  Has he got a shorter temper?  Emotionally, does he yell and scream?‑‑‑No.  Emotionally, he’s – he’s not the lively, vivacious, happy-go-lucky – he’s more sombre and serious and quite distressed.

   About the past?‑‑‑And it weighs on him a lot.

   There’s some guilt there?‑‑‑And ‑ ‑ ‑

   Is that a fair comment?‑‑‑Yes.

3. She also gave detailed evidence about the (omitted) High and Primary Schools which her daughter attends. I found this very helpful.

4. I found her to be an impressive witness and a good support person for the father.  I am satisfied that she would be protective of the 2 boys.

The Respondent mother’s witnesses

Mr J

1. This gentleman is the partner of the mother and he swore an affidavit on 18 September 2015. He presented as an agreeable person who has a developing relationship with the mother and children. It appears to be going very well. An (occupation omitted) by profession, they have had a relationship for over 10 months and although they refer to each other as partners they do not reside together in a de facto relationship. However, I understand from the mother’s evidence that in the future they propose to reside together in the (omitted) area.

2. In cross-examination by Counsel for the Independent Children’s Lawyer he acknowledged that the mother would occasionally say negative things about Mr Dean in the presence of the children and further in answer to the question that she hates Mr Dean, he said “I would say it’s something that has been going on for a while and I try and calm it down.”

Ms S

1. This lady is a social worker employed with the (omitted) Community Health Service. She relied on an affidavit sworn or affirmed on 22 September 2015 which annexes a brief report of the same date. She also relied on an earlier report dated 15 September 2015 which was tendered and marked as an exhibit.

2. In cross-examination she acknowledged that she graduated in 2012 and commenced employment with her current employer in 2013 initially working with adult males. She said that from November 2014 (about 12 months before the trial) she started working with families. She believes that she has worked with around 15 families over that period.   Her experience appears to be very recent and very limited.

3. There are a number of weaknesses with her evidence. Firstly, she only sourced information from the mother and did not speak with the father at all. Secondly, she was unaware that the mother had undergone a psychiatric assessment and had not read that assessment. She did not know the mother had been diagnosed in respect of anxiety and that she demonstrated borderline personality traits. She admitted that “…I haven’t been provided with a lot of written information…”. She had not read either family report, the affidavits of the father nor the affidavits of the mother.

4. She was unaware that X has alleged in October that his mother hits him. She was unaware of the allegations that the parents often have arguments and were swearing at each other in the presence of the children. She was further unaware that the boys allege that their mother uses a very profane language about the father.

5. Overall, this young lady, whilst trying to assist the mother and the court, presented as being ignorant and naïve. Her evidence was unhelpful.

Ms T

1. This lady is a senior child protection worker with the Department of Health and Human Services. She has been employed with the Department for nearly 8 years and has a degree in Criminology. She told the Court she has been employed in the Child Protection Division for about 6 months. In April 2015 she prepared a report pursuant to 67ZA of the Family Law Act 1975 (Cth).

2. Under cross-examination by the father’s Counsel, the following was said:

   Has anyone informed you that there was never any suggestion at all, much less an application to this court, that Mr Dean would seek anything other than time or communication with Z in absolutely accordance with her wishes?  That he has never sought anything other than that?

   HIS HONOUR:   And if she said, “No” there would be no contact.

   MS RYAN:   Exactly?‑‑‑I was under the impression that he was seeking to have unsupervised contact with her.

   And what gave you that impression?‑‑‑Conversations with their mother.

   Did you ever make contact with the father?‑‑‑No.

3. She also conceded that she was unaware the mother had been charged with the assault of Z.

4. Under cross-examination by Counsel for the Independent Children’s Lawyer she said the following:

   MR GLASS:   Ms T, you spoke to Ms K yesterday?‑‑‑I’m not sure who that is.

   Ms K.  A team manager at Child Protection Intake and Assessment in Preston?‑‑‑From our – yes.  Briefly.

   And you might or might not be aware that Ms K, with some haste, has prepared an additional 67ZA report, that we’ve – that has now been released?‑‑‑No.  I wasn’t aware.

   You weren’t aware of that?‑‑‑No.

   It’s said of you – or Ms K says of you that you said you do not hold concerns for X and Y in the care of either parent?‑‑‑Mmm.

   That’s your view?‑‑‑Yes.  Without any additional concerns being reported.  I mean, like I said, I don’t know the father but we don’t have any concerns reported about him.  Our concerns are about Z not the boys.

5. I found the evidence of this witness of little assistance. She appears to have little or no knowledge of some important events that have occurred after her involvement with this family and her involvement focussed on Z, and not the boys.

The Respondent’s evidence

1. The Respondent mother appeared in person.  I informed her about practice and procedure. I assisted her as best I could, relying on the direction from the earlier case Re: (F Litigants in Person Guidelines) (2001) 161 FLR 189. This trial went for many days and I had the advantage of not only seeing her in the witness box but observing her generally in the Court room.

2. I adjourned the case part-heard for the mother to undertake a psychiatric assessment. A Dr M undertook the assessment of the mother on 30 September 2015 and provided a written report dated 1 October 2015. The relevant parts of that report are as follows:

   Ms Dean reports at the age of nineteen to twenty, a history of social drinking and marijuana use although she denies that it was excessive and these behaviours stopped when she became pregnant with her first child, Z (sic), in 2000.

   Past Psychiatric History

   In 2004 Ms Dean was diagnosed with Post Natal Depression for which she had a voluntary admission to the (omitted) Hospital where she was prescribed citalopram has made her mood more stable and somewhat better but she believes that she still suffers from Post Natal Depression all these years later. The only other times that she has received any form of psychological intervention was when, at the age of thirteen or fourteen, she was sexually abused by a paternal relative and at the age of sixteen when she was sexually assaulted on an overnight train. The first matter was kept quiet by the family, the second matter resulted in the assailant being jailed and possibly extradited…

   Symptomatic History

   Ms Dean reports at different times having a slight tendency to impulsive spending, to comfort eating, feelings of emptiness, a tendency to day dream, in her youth a minimal history of promiscuity, a past history of self-harm, particularly following the sexual assault at the age of sixteen, with occasional suicidal thoughts at the same time but with never any plans or attempts. She describes a tendency to temper tantrums and stress related paranoia, with also some tendency to jealousy in her relationships and a very unclear sense of self.

   Forensic History

   Apart from the occasional speeding fine, there is no significant history.

   Diagnosis

   In my opinion, Ms Dean has:

   Axis I a Mild Anxiety Disorder with features of Social, Obsessive-compulsive and Generalised Anxiety. When she was younger she had specific symptoms of Obsessive-compulsive Disorder but these are no longer apparent.

   Axis II – Borderline Personality Traits

   In my opinion, the prescription of citalopram 40mgs is more likely to be impacting on her anxiety. Her mood is, in my opinion, chronic dysthymia this is not a Major Depressive Disorder. In addition to medication Ms Dean reports that she is also seeing a clinical psychologist on a monthly basis using the Better Mental Health Outcomes Plan.

   Parental Capacity and Mental Health Assessment

   I did not comprehensively assess Ms Dean’s parental capacity. Such an assessment requires more than a one, one hour session. A parent’s parental capacity is contextual and is subject to change. In my view parenting capacity reflects a long term view of the parent’s ability to sustain appropriate parenting. My assessment focused on the mother’s psychiatric and emotional functioning.

3. Under cross-examination of Counsel for the father the expert said as follows:

   MS RYAN:   So could you go through the symptoms that you identified were applicable for Ms Dean?‑‑‑I just need to clarify that they were symptoms that were discussed historically rather than being present in the room at the time.

   I think we understand that but, of course, if you saw something demonstrated in a room that’s additional evidence?‑‑‑Yes.  No.  I mean, borderline personality disorder is something that I deal with.  It’s generally a condition that arises when people are raised in environments where it’s not safe just to walk into the room and be themselves.  It’s either unsafe or invalidating.  What’s interesting in Ms Dean’s case is that her early history seems to have been comparatively healthy, which from a therapeutic point of view is good because it suggests that you have a background of emotional health to build on.  Her difficulties really seem to begin with her history of sexual abuse in adolescence and it’s at that time that we start to see emerging some of the behaviours that one sees within the emergent and then fully developed borderline personality disorder.  So she did describe impulsive behaviour such as, at times, spending impulsively;  at times comfort eating;  feelings of emptiness;  dissociating;  daydreaming;  switching off ‑ ‑ ‑

   You will have to slow down?‑‑‑Sorry.

   See, I got up to “emptiness”?‑‑‑Daydreaming;  switching off – just sort of zoning out.  In her teenage years there were periods of promiscuity with one night stands.  She described episodes of self-harm before the age of 20, and at that time suicidal thoughts but no plans or attempts.  She admitted to having problems controlling her anger.  She also admitted to periods in the past of stress related paranoia, feeling that perhaps people were undermining her or working against her.  There had been some issues of jealousy within her relationships and she had an unclear sense of who she was as a person.  She denied gambling, shoplifting and dangerous or impulsive driving.

   Now, it can be very stressful for families dealing with a family member who has some of these traits, if not the disorder, can’t it?‑‑‑Absolutely.

4. Then the mother asked the doctor the following question:

   With the diagnosis, that you’ve given, of anxiety and borderline personality traits how do you feel that would affect her ability to parent?‑‑‑Well, as we’ve indicated, it can make people more likely to be impulsive;  to react emotionally without stopping and reflecting on their feelings before behaving.

   But with the appropriate therapy that can be made easier?‑‑‑Absolutely.

5. The mother’s credibility was called into question when during cross-examination she was asked questions about making allegations that she had a broken nose when in fact it was not broken. In answer to this, she said “everyone plays Chinese whispers”. I stopped her there and asked her exactly what she meant by that expression and she said as follows:

   Well, let me rephrase that. I can say to whoever I want, what I want. It’s freedom of speech. If I want to say to my friend that my nose was broken, I’m allowed to say that.

6. In cross-examination of the Report Writer, the mother put the following question, referring to herself in the third person:

   Do you believe that with Ms Dean maybe not telling you everything or maybe extending the truth in some circumstances may also be related to stress and frustration over – over the separation? --- Yes, over the separation and probably over many interviews and a long court process.

7. I formed the view that often the mother was evasive or would exaggerate or lie when it suited her needs and sadly, she often attempted to mislead the Court.  When her evidence conflicted with the father’s, I preferred the evidence of the father.

The Independent Children’s Lawyer’s Witness

Dr M

1. Dr M and his report has been referred to above.

2. In response to some questions from Counsel for the Independent Children’s Lawyer about his diagnosis of the mother, he said the following:

   She described to you, I think, that she experiences a tendency towards temper tantrums?‑‑‑Yes.  I was looking, then, at the list of symptoms for borderline personality disorder, which are symptoms that come and go, and she did acknowledge that at times she has a tendency to lose her temper.

   And although you diagnose her borderline personality traits I understand you don’t diagnose her with borderline personality disorder?‑‑‑No.  I didn’t think the symptoms were persistent enough for the full disorder but I did think that that explanation – or that diagnostic categorisation would help, hopefully, treating her, like her psychologist, to put her behaviour into some context that would make some sense of it.

   And are you able to comment on – or are you able to say anything about the current psychological treatment that Ms Dean is undertaking?‑‑‑I don’t know exactly what her psychologist is offering.  The point about borderline personality disorder is that the behaviours that appear to be pathological are strategic.  They’re quick fixes.  Ways to suddenly feel a little bit happier;  to switch off your feelings;  to change your feeling state – and so the psychological treatments that are most effective are strategic, such as acceptance and commitment therapy and dialectical behaviour therapy.  More so than just straightforward cognitive behaviour therapy.

   …‑ ‑ ‑ is it typical of that sort of disorder that it’s likely to remain fairly consistent across a lifespan?‑‑‑No.  I mean, I think once you understand it’s there then it’s eminently treatable and usually the best outcomes are a combination of medication and then some psychological interventions.  Purely for anxiety, cognitive behaviour therapy is effective.  But because of some of the issues around managing her emotional life the therapies that I recommended would introduce her to things like mindfulness meditation, so that it gave her strategies to manage emotion as well as anxiety.

   Dr M, you’re aware, aren’t you, that there are allegations of Ms Dean inappropriately using physical force on the children?‑‑‑Yes.

   And, indeed, she has acknowledged during the course of these proceedings that she has done so on occasion?‑‑‑Yes.

   She has also acknowledged that she slapped her daughter to the face in frustration?‑‑‑Yes.

   You can imagine that the court is concerned about a repetition of behaviours like that.  Is there anything that, in your professional opinion, you can say that would suggest that there’s a lower risk or a higher risk of a repetition of that kind of behaviour?‑‑‑Well, if Ms Dean can understand that she needs, clearly, to have new strategies to manage anxiety, to understand that she does have a tendency to some impulsivity, then those are the sort of things that the therapies that I am suggesting are designed to address, so that they are remediable.

The Family Report

1. I was greatly assisted by two family reports written by Ms G which were dated 31 October 2014 and 7 September 2015. I will be referring to these reports subsequently in some depth when I consider the relevant legal principles below.

Relevant Legal Principles

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children are met by:

   (a)ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and

   (b)protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that the 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. Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):

   (a)the 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;

   (b)the 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);

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   (d)parents should agree about the future parenting of their children; and

   (e)the children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the children’s best interests.

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) and s.60CC(2A) of the Act. They 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.

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. The primary considerations will be considered after the relevant matters in sections 60CC(3) are looked at (see Collu v Rinaldo [2010] FamCAFC 53).

2. As to sub-section 60CC(3) of the Act:

(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;

Y

1. The first Family Report dated 31 October 2014 indicates at paragraph 59, page 21 “…that Y was not interviewed due to his young age and his distressed behaviours within the playroom.” In the circumstances this appears very appropriate.

2. In the second Family Report by the same author dated 7 September 2015 at page 26, paragraph 69 the author says the following:

   In relation to his future parenting arrangements, Y clearly expressed a wish to live primarily with his father in Tasmania and to see his mother “sometimes”. Y would also like X to live with him in Tasmania with his father.  Y suggested that living with his mother was OK, but expressed that he loved his father and he has always wanted to be with his father. Y was aware that his mother would be very angry if he lived with his father, but rather than expressing anxiety or fear regarding his mother’s potential reactions to this, he laughed and thought that this was funny.

3. Given Y’s young age and the author’s comment in cross-examination by the mother that he might not really understand what that means, I put little weight on his wishes.  

   X

4. In the first report at page 19 paragraph 51 X said the following:

   X presented as a quiet boy and serious boy.  He was unsure why he was being interviewed however he was aware he would be seeing his father that afternoon.  During his interview, X spoke predominately about his father, stating how much he missed him, and that he did not have the opportunity to spend much time with him.   X strongly advocated for more time with his father stating he wished to spend every weekend and overnight time with his father on the farm in Tasmania.  X expressed distress regarding the geographical distance between his parents and the impact this has upon his relationship with his father. X also expressed disappointment that due to the family report interviews he was unable to spend time with his father this coming weekend.

5. In the second report at page 28 and 29 there is more detail:

   77 X spoke positively about his holiday with his father in Tasmania.  He enjoyed spending extended time with his father and loved being on the farm again, engaging with the animals, and enjoying in farm life.  X reported he would like to spend more time with his father in Tasmania and overall, more time with his father. 

   78 X did not report any safety concerns in the care of his father and expressed that he was not fearful of him. In relation to his future parenting arrangements, X stated that he would like to spend time with both his parents, but understood that the geographical distance between his parents prevented him from spending more time with his father or equal time between his parents. Despite this dilemma, X expressed that he missed his father, and requested to spend more time with him.

   79 X believed Z shared a close relationship with his mother and that she wanted to live with her in Melbourne. He believed that Z liked talking to his father; however she has said to other professionals that she does not want to see him. X believed that Y had a close relationship with his father and that Y wanted to live with his father in Tasmania and visit his mother in Melbourne, however he believed that he was “in the middle” in that he would like to live with both of his parents. 

6. Some weight should be placed on X’s views, however they will not determine the outcome.

(b)  the nature of the relationship of the child with:

(i)   each of the child's parents;

The father

1. I note from the first report there is an observation period between the children and their father. This is detailed at pages 22 and 23 where the author says the following:

   60 X and Y repeatedly asked the Family Consultant when they would be spending time with their father during the day and were overjoyed when their father finally entered the playroom. Y in particular raced to his father, jumped up on him and asked to be carried by him. Both Y and X were physically affectionate with their father throughout the session and appeared overly competitive for his attention.

   61 Overall, Y found this session emotionally distressing. He was excited to be spending time with his father, but grieved for its short duration.  Many times throughout this session Y threw a tantrum, bursting into tears, stating “I don’t want you to go”.  On one occasions Y hid in a tent within the playroom, and on another, he curled up in a corner crying that he did not wish his father to leave.  Y needed to be continually reminded to enjoy the short time he had with his father, rather than being distressed that he would shortly be leaving. 

   62 Y vacillated between being extremely clingy with his father, continually climbing on him, hugging him and seeking his undivided attention to and alternatively becoming extremely distressed and running away from his father and being angry at him for leaving.  Y also appeared to have a limited attention span and experienced difficulties in focusing on one activity for any length of time.

   63 Mr Dean managed Y’s various and contradictory needs extremely well.  He beautifully engaged Y in imaginary play by setting up a mini restaurant. Y was encouraged to make his siblings meals and cups of tea.  While Mr Dean attempted to meet Y’s unquenchable demands for his attention, he was also able to verbally and/or physically engage with X and Z who were also clearly vying for his attention.

2. The author also commented at paragraph 64 that X engaged with this father “in a loving and affectionate manner throughout the session”.

3. I also note further the observation at paragraph 69 where the author says:

   At the end of the session, all three children gave their father a hug and Y in particular expressed overwhelming distress at his father’s departure.  X appeared sadly accepting of his father’s parting.

4. I also note the contents of paragraph 87 at page 29 which says as follows:

   The level of Y’s expressed distress and grief regarding his limited time and subsequent separation from his father after 10 months post separation may indicate that his primary emotional attachment may well have been provided by his father during the parents’ relationship. This assessment would suggest Y may benefit from spending significant and substantial time with his father for his optimal social and emotional development.

5. The evidence disclosed that the father and the boys have a close, loving and happy relationship.

   The mother

6. The mother presented as being capable of physically caring for the children, save for the serious allegations of violence. I was also concerned about her capacity to promote their emotional and intellectual wellbeing.  In the first report the author says at page 25 paragraph 71 when observing the mother with the children:

   This session was unremarkable, as the children behaved in a relaxed manner consistent with children living in the primary care of their mother.  All three children appeared comfortable in the presence of their mother and after their long day were content to pack up their activities and return home at the end of the day.

7. My concerns were raised when the author made the following comments at pages 27 and 28 of the first report:

   79 This assessment has highlighted that the children remain at risk of physical and emotional harm in the care of their mother as a result of excessive physical discipline. During his interview, X casually described multiple incidents of violence involving her mother hitting him, causing bruising, and punching him to the head.  He confirmed that these incidents had occurred since relocating to Melbourne and as recently as two weeks prior to interview.

   80 Following X’s disclosure of multiple incidents of excessive discipline within his mother’s care this family was re-notified to the Department Human Services, Victoria in order to re-assess the physical and emotional safety of the children within their mother’s care.

   81 Given that the children were removed from her care in November 2013, following an incident of excessive discipline, Ms Dean would undoubtedly be aware that this level of physical discipline is unacceptable.  Despite this knowledge, it would appear that Ms Dean has continued administering such discipline upon the children, and has failed to adopt alternate parenting techniques since involvement of Children and Family Services - Tasmania.  

   82 There have been no allegations made in relation to Mr Dean physically assaulting X and Y and therefore it would appear that X (and Y) may be presently more at risk of physical assaults in their mother’s care than in their father’s care.  Since Ms Dean’s relocation to Victoria, X has been diagnosed with ODD and PTSD, which she claims developed as a result of him witnessing his father’s violence against her in 2011 and Z in 2013.  Given X's mental health diagnoses it is imperative that he is living in an environment where he is protected from further violence.

8. The mother has long standing problems which lead her to impose inappropriate discipline on her children. The relationship is based on an uneasy mix of parental love and parental violence. The mother needs to focus on the children’s happiness and address her shortcomings as a parent.

   (ii)   other persons (including any grandparent or other relative of the child);

9. The only other persons relevant to this topic that provided evidence to this court were the parties’ current partners. Both presented as decent people who appeared to have a close, workable relationships with the children.

(c)     the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

1. The parties, it appears from the evidence, have taken all opportunities available to them to be involved in the above criteria subject only to the geographical distance and opportunity, which sometimes was frustrated through their poor communication or attitude to each other.

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. The evidence indicated that both parties maintained the children pre and post separation to the extent that they were able subject to whatever income they had through their own exertion or Government benefits.

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents;

1. The evidence detailed the particularly close and loving relationship the boys enjoyed with their father.  It appears through the careful reunification during 2014 and 2015 with their father going from limited time, to weekends, to holiday periods the relationship has progressed well and the boys are enjoying the time they have spent with their father. The evidence indicates that the boys and their father have a close, loving relationship and more particularly, the boys want more of the same. Any separation from their father could cause them significant distress.

2. In relation to their potential separation from their mother, the evidence indicates to me that they have a well-established relationship which can be properly maintained through the mother having regular time with the children whether it be in Tasmania or Victoria. There is no doubt in my mind that the relationship can still be nurtured, subject to the mother making herself emotionally and physically available. They could accept this separation more readily than that from their father, based on the evidence.

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Should the boys reside with their father primarily in Tasmania it is clear that Z will remain living in the care of the mother. The separation of siblings is not a matter that is considered lightly and it appears to me that given the age and gender differences, the children will accept that separation. They will be able to see each other when they spend time with the mother and further, given the technical advancements in recent years of the internet and such features as Facetime, these children will be able to independently communicate with each other.  I would expect from the evidence I heard and saw that the father will promote the relationship between the children and Z.

(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;

1. There is some difficulty and expense with the mother residing in Melbourne and the father north of Hobart. However both have proposals which will overcome any significant issues, and I note that the mother expects to be employed in her career of choice in 2017.

(g)  the maturity, sex, lifestyle and background (including lifestyle,                   culture and traditions) of the child and of either of the child's               parents, and any other characteristics of the child that the court           thinks are relevant;

1. See the evidence of Dr M earlier in this judgment in relation to the mother’s background. Clearly she has some issues to address.

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. This is not relevant.

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(i)  the attitude to the child, and to the responsibilities of parenthood,           demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's          family;

1. There are detailed and significant facts which overlap or fall into these categories and therefore to avoid repetition, I shall deal with these 3 categories together.

2. This family has a history of exposing the children to family violence and excessive discipline. The children were removed from their parents’ care by Child and Family Services in Tasmania in November, 2013. The parents separated as a result of this intervention. The children were returned to the care of Ms Dean as the primary carer on condition that she obtain a Family Violence Order against Mr Dean, which she did.

3. The subpoenaed material appeared to disclose that the children have been exposed to their parents’ mutual violence since 2011 and the parents conceded they were experiencing relationship difficulties. In 2011 the children witnessed their mother spitting in Mr Dean’s face and him retaliating by hitting her face, causing her to at least have a split lip.

4. Z and X reported both parents have physically disciplined them, at times with a spatula and X reported both parents had been involved in threatening to burn his fingers when he was playing with matches. Subsequently in November 2013, Z reported she was grabbed around the throat and hit with a spatula by her father and slapped across the face by her mother. Both were charged, however only Mr Dean was found guilty of assault. We do not know the outcome in relation to the mother. Both parents historically have had an opportunity to change their ways. It appears only the father has taken up that opportunity.

The Mother

1. In the first Family Report, X was interviewed by the report writer. At page 20 he says the following:

   52 In discussing issues of family violence, X reported he had witnessed his father hit his mother on one occasion a number of years ago, when they were previously living in (omitted).  He also witnessed his parents swear at each other and call each other bad names. He believes his mother ‘hates’ his father as she continues to refer to him in a derogatory manner.  X expressed that it makes him sad when his mother says bad things about his father.

   53 X has been told that he is living in Melbourne as a result of his father ‘hurting mum and Z’.  He stated he witnessed his father hit Z and “tried to strangle her” in Tasmania.  X reported that both his mother and father used to hit him, however now only his mother does.

   54 When this was explored further, X reported that since relocating to Victoria, his mother has mother hit him on his arms and legs and “all over my body”.  He stated sometimes he received bruises and other times he did not.  X reported that his mother hits and punches him to the head, but that he only receives headaches “sometimes”. X confirmed that his mother does not use implements to discipline him anymore, but uses her hand or fist.  X reported this information in a casual and nonchalant manner and confirmed he was last hit by his mother approximately a fortnight ago.

1. At page 27 of the same report the author says at paragraph 79 as follows:

   This assessment has highlighted that the children remain at risk of physical and emotional harm in the care of their mother as a result of excessive physical discipline. During his interview, X casually described multiple incidents of violence involving her mother hitting him, causing bruising, and punching him to the head.  He confirmed that these incidents had occurred since relocating to Melbourne and as recently as two weeks prior to interview.

2. The author goes on to say in paragraph 82 of page 28 the following:

   There have been no allegations made in relation to Mr Dean physically assaulting X and Y and therefore it would appear that X (and Y) may be presently more at risk of physical assaults in their mother’s care than in their father’s care.  Since Ms Dean’s relocation to Victoria, X has been diagnosed with ODD and PTSD, which she claims developed as a result of him witnessing his father’s violence against her in 2011 and Z in 2013.  Given X's mental health diagnoses it is imperative that he is living in an environment where he is protected from further violence.

3. At  paragraph 91 of page 30 the author notes the following:

   Ms Dean has an extensive mental health history, inclusive of difficulties with depression, obsessive compulsive disorder and low impulse control/anger management.  It is unknown whether Ms Dean’s mental health is a contributing factor to the current allegations of violence against the children.  A psychiatric assessment of Ms Dean may assist the Court in the future.

4. In the second Family Report Y is interviewed by the author and says from paragraphs 64 to 68 the following:

   64 When Y was asked why he thought he was being interviews, he replied that his mother instructed him to tell the interviewer that “dad wants us to say the F word”.  In exploring this further, Y stated that he and X get into trouble if they swear at their mother’s home and when they are with their father, but he said that both his parents use ‘bad words’ frequently.

   65 When Y was asked if he thought that his parents were friends, he laughed and thought that this was incredibly funny.  He explained that his mother “hated” his father and she wanted him to report “only the bad things about Dad, but we are not allowed to say to any bad things about her today”.  Y confirmed that both Z and X, “got into lots of trouble, and made mum really angry” because they said bad things about her for the purpose of the previous assessment.

   66 When Y was asked why his mother wanted him to say bad things about his father, he replied “because she hates him, and she doesn’t want us to see him”.  Y believed that if he said bad things about his father, this would mean that he would not have to see him and this would make his mother happy. 

   67 Y was asked how he knew this information, and he replied that he had witnessed “big fights” between X and his mother, because his mother did not want the children to spend time with his father however, X wanted to.  Y reported that his mother hit X on the back because he said that he wanted to go to Tasmania to visit his father which made his mother “really angry”. He believed that X had a bruise on his back as a result of this ‘big fight’. Y confirmed that this incident occurred on the day they travelled to Tasmania. 

   68 Y confirmed that his mother hits X when she is angry (about once or twice a week) and that the last time she hit X was the day they travelled to Tasmania.  Y stated that X was hit more than he was, and that he was rarely hit by his mother.

5. X is re-interviewed for the second Family Report and his comments are contained in paragraphs 71 to 76:

   71 Without prompting, X commenced his interview by stating “mum never hit us”.  Upon discussing this further, X recalled that he had previously reported to this writer the year before, that his mother had regularly hit him.  X then stated “well mum does not hit us now”.  X appeared stressed or burdened to report this information to the writer.  When this was raised with him, he burst into tears.

   72 The writer negotiated with X that he did not have to report anything about his mother’s ‘hitting’ on this occasion.  This seemed to reassure X, and he became more open throughout the duration of his interview.

   73 X reported he was particularly anxious about attending this interview, as a consequence of his mother’s negative reactions and behaviours following his previous interview last October. He expressed that he was scared that his mother would become angry with him again, in the same way she did following the previous assessment.  He reported that both he and Z were questioned and disciplined for their comments and behaviours during the last assessment. Consequently, he was reluctant to provide information he knew may make him vulnerable to become a further target to his mother’s anger. He believed he was specifically chastised as a result of reporting the physical discipline in the home and Z was specifically chastised for the way she behaved in the playroom.  Overall, X clearly reinforced that, he was fearful of his mother’s anger following her reading this report.

   74 X reported that his mother hates his father and she does not like him and Y spending time with him.  X reported that his mother particularly did not like them spending time with their father in Tasmania. When X was asked how he was aware of his mother’s views, he reported that his mother refers to his father a “dickhead or a fuckhead”. 

   75 X explained that he had had big fights with his mother about spending time with his father.  He believed his mother does not want him to attend handovers to see his father and she wanted him to say to his father and other professionals that that he did not wish to go.  X reported however that he did want to see his father, which makes his mother very angry. X repeated that he was fearful of his mother’s anger.

   76 Notwithstanding the agreement about X not reporting about physical discipline in the home, he was informed that Y had disclosed that his mother had hit X on his back during a ‘big fight’ prior to the boys attending the airport on the way to Tasmania.  X confirmed that this was the case, reporting that his mother did not want them to go to Tasmania and was angry with him for wanting to go.

6. In the evaluation section of the second Family Report I was disturbed to read the following from page 30:

   86 Following the release of the previous family report, information obtained from Ms Dean’s affidavit material, and her interview, and which was subsequently confirmed by subpoena documents, indicated that Z’s mental health had significantly deteriorated, resulting in self-harming and challenging behaviours. Prior to the release of the family report, Z expressed a wish to this writer and the Independent Children’s Lawyer, that she would like to re-establish her relationship Mr Dean and there was no concerns raised at this time regarding Z’s mental health. At this time Z was reportedly doing well at school, both socially and academically. 

   87 This assessment has raised significant concerns regarding Ms Dean’s reaction to release of the previous family report.  Information obtained from the DHHS suggested that concerns were raised for Ms Dean’s mental health upon the release of this assessment. Ms Dean’s own affidavit material, seemingly documents that she had questioned both X and Z regarding various paragraphs within the family report. She subsequently documented alternate explanations, reportedly retrieved from the children, regarding what they actually stated to the writer during their previous interview and how they truly behaved during their observation session.

   88 Additional, information contained in the DHHS-Victoria file indicated that Ms Dean had reported that X’s headaches he described to the family report writer were as a result of his family being loud, not due to being hit in the head by his mother, as described in the family report. Such statements seem to confirm that Ms Dean has questioned the children regarding the contents of the previous family report and consequently the children have had to provide alternative explanations regarding their behaviour to their mother.  This behaviour, if found to be accurate, demonstrates a significant lack of insight into the emotional needs of the children, by their mother, and creates a considerable emotional burden on them, to only report information which is acceptable to her.

   89 During interview, Ms Dean, claimed that Z’s mental health issues were not only triggered by the release of the family report, but that Z was also particularly distressed regarding statements made during the Interim Hearing. This also may indicate that Ms Dean has shared with Z her views and accounts of the Interim Hearing, prior to Z’s decline in her mental health.

   90 X and Y during this assessment reported that their mother became angry at both Z and X concerning their previous interviews with this writer and their behaviours during the observation session with Mr Dean in October 2014. X during interview expressed genuine fear and anxiety regarding his mother’s negative reactions to this current assessment given his and Z’s chastisement following the previous one.  X’s descriptions of Ms Dean’s behaviours towards the children are consistent with coercive controlling violence.

   91 X’s level of fear and anxiety regarding his mother’s previous reactive behaviours has raised the possibility that it may not have been the family report process or the subsequent Orders made by the Court, (no Orders were made providing Z to spend time with Mr Dean against her wishes) that triggered Z’s mental health issues. Rather, it may have been Ms Dean’s intense negative reaction to the family report and her reported chastisement of the children regarding their expressed views, which may have contributed to the decline of Z’s behavioural and mental health issues.

   92 As a consequence of X’s anxiety concerning what may be contained within this assessment and specifically how his mother may react to this information, the writer negotiated with X that he would not need to talk about his mother’s ‘hitting’, during this assessment. Y however, who was under no such emotional pressure during his interview, openly reported that X was physically disciplined on a frequent basis by his mother, often in relation to X expressing a wish to spend time with his father.  Y confirmed that the last occasion this occurred was on the day they travelled to Tasmania following a “big fight” regarding X’s wish to visit Tasmania, despite his mother’s wishes, and X was subsequently struck on the back.  Whilst X did not report this information, when the writer informed X that his brother had disclosed this event, he confirmed that Y’s account of this incident was accurate.

7. The author says at page 34 of the second Family Report:

   96 In addition to the physical safety of the children within their mother’s care, this assessment has raised significant concern regarding the emotional wellbeing within their mother’s care.  Following the release of the previous family report, Z reportedly altered her views regarding maintaining a relationship with Mr Dean, and subsequently exhibited a number of behavioural and mental health concerns.  According to Ms Dean and Z’s treating mental health practitioner, Z was too emotionally unstable to attend this assessment.

8. The author continues with the following comments at pages 36 and 37:

   103 Y also reported how his mother previously became ‘very angry’ at both Z and X regarding their statements during the last assessment. Given the family report was released many months ago, it was surprising that Y remembered his mother’s reactions to this, unless it was a particularly significant event for him. It was also surprising that Y was aware that some of his actions may upset his mother and make her angry, but rather than expressing fear of his mother, he laughed at the prospect of her becoming angry.  Y’s level of emotional disconnection with his mother and her potential distress or anger was particularly concerning

   104 The issues identified within this family are numerous and complex.  This is compounded by the geographic distance between the parents. There is a history of family violence between the parents, and historical documents of assaults against the children.  Mr Dean claimed he has admitted to, and taken responsibility for slapping Ms Dean to face, which is documented on the Victoria Police file.  He also admits to excessively disciplining the children as contained within the DHHS- Tasmania file. He subsequently pleaded guilty to assaulting Z with a spatula. Mr Dean has sought counselling and support in relation to his parenting and there have been no further concerns raised for the children in his care since this time. Given X’s mental health diagnoses, it is imperative that he is living in an environment where he is protected from further violence.

   105 As stated above, a further notification has been made to DHHS concerning the physical and emotional safety for the children within their mother’s care. Until the DHHS- Victoria has finalised their investigation into the most recent allegations of violence within the home, it may be premature to make firm recommendations regarding future parenting arrangements for the children.

9. The report writer Ms G was subject to cross-examination on day 5 of the trial. Many of the allegations in relation to the mother were not challenged by her. In fact when one considers the questions asked by the mother it gave the Court the impression she conceded many of the allegations made in the Family Reports.

10. Under cross-examination by Counsel for the Independent Children’s Lawyer the author was asked whether the disclosures made by X and Y contained in the Family Reports were likely to be accurate and the expert says as follows

    That’s difficult because I was very much aware by the second report that they had made a number of statements to a number of professionals.  So by the time you’re working with the second assessment I was very much aware that the children had said, you know, contradictory things to different people.  And under those circumstances I am always very cautious with – with children so that they’re not over-interviewed.  And that also gives me rise to concern, particularly in this family, around why children are saying what they’re saying which is, in some regards, more important to the overall issues than actually what they’re saying [my emphasis].

11. Counsel then took the author to paragraph 53 of the first Family Report where X said both his mother and father used to hit him but now only his mother hits him and she was asked the following:

    Was there anything about the context of X saying that to you that led you to have any doubts about what he was saying?‑‑‑Not at that point in time because at that point in time he was kind of open around that.  He didn’t necessarily think that there would be consequences of that.  In some families they have no hitting;  in other families there is hitting.  So he didn’t think that that was a bad or a good thing.  He was just explaining that’s the way it was.  And I think we know by the history that the children have been exposed to physical discipline.  Therefore for X saying something like that, that was – that was pretty much his experience of that, so that made sense to me.

    And in relation to paragraph 54, I might just ask you to have a read of that to yourself for a moment?‑‑‑Yes.

    You observe that those particular disclosures were made in what you describe as a casual and nonchalant manner?‑‑‑Yes.

    I take it from that, that that supports the idea that they were likely to be accurate?‑‑‑In some of the nuances in that, for example, he had said that they used to use implements but they don’t any more so that – that’s a good thing.  That’s a little bit of detail around that.  And he wasn’t overly, from what I remember, concerned or stressed about that.  That was just that’s what happens when I’m naughty, if that makes sense. [my emphasis].

    That was just his reality?‑‑‑Yes.

    ‑ ‑ ‑ we could have some confidence that X – or some confidence in what X says that there is some continuation of hitting ‑ ‑ ‑?‑‑‑Yes.  And it ‑ ‑ ‑

    ‑ ‑ ‑ by his mother in that household?‑‑‑ ‑ ‑ ‑ ..... in the sense implements aren’t used now;  it’s only hands.  So – and that’s what he explained at the time.

    You may be aware – in fact, I think you refer to this in your second report – that Ms Dean alleges that the headaches X is referring to relate not to having suffered any physical discipline or physical injury from his mother but relate to other medical causes.  Do you have any comment to make about that?‑‑‑I think the only comment that I made, and I think I made that in my second report, was more of my concern of X being questioned around his interview with me on the first occasion, and then subsequently a – an alternative explanation having to made for that.  So I think that process may well have been more stressful for him than actually the interview itself.

    When it was suggested to you that these headaches had another cause, did that sound like it was likely to be true, to you?‑‑‑In – in the affidavit material?

    Well, just from your observations of how X made those disclosures to you, when you then find out that it’s alleged that ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ the headaches were just headaches and result of medical conditions ‑ ‑ ‑?‑‑‑Yes.

    Did that cause you to doubt what X had said to you?‑‑‑No, it didn’t.

    Was it ever suggested to you that what X might be describing on that occasion was play-fighting with his mother?‑‑‑No, because he raised it in the context of it’s not – “We don’t implements any more.  She just uses her hand now,” so that was – it wasn’t referred to in play-fighting, no. [my emphasis].

    Do you think it’s possible he might have been referring to play-fighting?‑‑‑No.

    Ms Dean also alleges that the reason X made those statements to you is that he wanted to spend more time with his dad.  Is that possible?‑‑‑Not on – on that occasion because I think on that occasion X wasn’t aware of the implication of his answers.  He was a child that was just kind of freely answering questions [my emphasis], whereas in the second report I was very much aware that he had gained a greater understanding of how his – his – his statements and words could be used and was quite anxious about that.  So I don’t think in the first assessment he could see how his words may affect his parenting arrangements.  I think that would just be beyond his comprehension.

    When you refer to his anxiety the second time you saw ‑ ‑ ‑?‑‑‑Yes.

    X, what was he anxious about?‑‑‑He was anxious around a repeat of the – or the release of the first report.  The end of the first report he spoke about mum being very angry with him, that he said the wrong things, that she had read and gone over such the things the did around – hitting around the head and being discussing those things, getting into trouble about what he allegedly said to me.  He didn’t use the word – I got the sense that he was kind of grilled on that and he was really quite anxious about having to be interviewed again and what might happen.  And he talked a lot about being fearful that his mum would be angry again and therefore he was reluctant to be interviewed a second time; [my emphasis].

    And the information about his mum having been angry with him ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ was that information you got from X?‑‑‑Yes.

    And you also got that from Y, I think?‑‑‑Yes.

    If I could take you to paragraph 68 of your second report?‑‑‑The second report.  Yes.

    What you’ve reported there is that Y confirmed that his mother hits X when he is angry ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ about once or twice a week, and that the last time she did X – sorry, the last time she hit X was the day they travelled to Tasmania?‑‑‑Yes.

    Was there anything about the way Y said that to you that caused you to doubt the truthfulness of that?‑‑‑No, because I asked him when he thought that be, and the flying to Tasmania was a date that he remembered.  He remembered what the argument was about.  What concerned me about that was that when I interviewed them it was only a couple of days from them returning back from Tasmania so there hadn’t been, in my mind, many days from when Y had said that his mother had hit X to them being back in their mother’s care.  So relatively it wasn’t long ago if you’re counting days that they’re in the mother’s care.  So there’s – I don’t – I believed Y when he was saying that because he had no reason to – to say otherwise.

    The explanation that Ms Dean has given of that incident, that is, the day that they travelled to Tasmania, is that she did pat X on the back but she did it to congratulate him on winning an award at school that day.  So it was in that context that there was a physical interaction on that day.  Does that strike you as plausible based on your interviews with the children?‑‑‑It seems inconsistent with both children talking about a really angry or a big fight.  I think both children, or at least one of them used the word “big fight” and that’s not consistent with a pat on the back because you won an award. [my emphasis].

    I take it from your recommendations that if his Honour is not satisfied with the mother’s explanation of the ongoing physical interaction between her and the children, then you would be concerned about the children remaining in her primary care?‑‑‑Yes, but in some ways I wish to preface that with the sense that even though we’ve talked about lots of physical discipline, for me that – might sound a little bit bizarre, but I don’t see that as the primary issue of concern for the children in their mother’s care.  I understand in sort of reading the information and having mum’s counselling and the psych assessment that, yes, I think there has been a history of, you know, anger management issues and inappropriate, you know, discipline issues.  And I think that’s with both parents.  And I tend to think that in time – I like to be positive.  I would like to think that in time mum is engaging with therapy – fantastic – that that’s probably, hopefully, going to lessen with time.  The children themselves have said that has lessened in time.  She used to use implements, now she doesn’t.  That’s a positive.  So I would like to think that that would decrease.  But I think my primary concern for the children living primarily with mum, while she is denying issues of physical discipline, for example, is the fact that if you don’t have the insight into that, then you’re not able to address the issues.  And my concern I think in the second report was more around mum’s ability to promote the children’s relationship with their father longer term and for the children – Z – that’s a bit complicated. [my emphasis]. But even if you look at X his intense sort of anxiety around if I spend time with dad, that’s going to make mum angry or – and we know that when mum gets angry sometimes that resorts to physical discipline, not always.  So in some ways I’m more concerned around the emotional impact upon the children than I am the physical because the outcome longer term, as we often see, is that X may be in a position now – I don’t – I haven’t had anything to do with the children in nearly five months – where he – he may need to choose one parent over the other. [my emphasis]. When I interviewed X at this stage he was saying, despite all those difficulties, I love mum and I love dad and I want to spend time with both of them.  My concern is the dynamic here that he would be quickly put in a position where he would need to reject one parent or accept another parent.  And where I have referred sort of Z in the previous, I have considerable concerns for Z’s emotional and psychological wellbeing and I am concerned that in this current dynamic that X – sorry, I call him X – X might be heading down the same path and I see that as a stronger and more concerning risk factor than actually the physical discipline.  That was a very long-winded kind of explanation.

The Father

1. In relation to the father the second Family Report considered him not only historically but currently particularly when he alleges he has done a number of courses and undertaken therapy to change his ways and be a caring, loving parent and not one that turns to violence very easily,  or very quickly. In the second Family Report, X is interviewed at page 28 and says as follows:

   77 X spoke positively about his holiday with his father in Tasmania.  He enjoyed spending extended time with his father and loved being on the farm again, engaging with the animals, and enjoying in farm life.  X reported he would like to spend more time with his father in Tasmania and overall, more time with his father. 

   78 X did not report any safety concerns in the care of his father and expressed that he was not fearful of him. In relation to his future parenting arrangements, X stated that he would like to spend time with both his parents, but understood that the geographical distance between his parents prevented him from spending more time with his father or equal time between his parents. Despite this dilemma, X expressed that he missed his father, and requested to spend more time with him.

2. At page 30 of the same report the author says at paragraph 85 the following:

   Since the previous assessment, Mr Dean has continued to travel to Melbourne each alternate weekend to spend time with X and Y.  This time subsequently moved from supervised to unsupervised time, culminating in the children spending some unsupervised holiday time in Tasmania with their father, during the June/July school holidays.  Both X and Y reported they enjoyed their time with their father in Tasmania and no concerns were raised for the children in the care of their father during this time.

3. Under the cross-examination of the Counsel for the Independent Children’s Lawyer the expert was asked the following “…was there anything in his presentation with you over the course of those two sessions that gave you concern about his ability to regulate his emotional control, his anger or any of those issues?” The expert’s answer was as follows:

   ‑‑‑Not in those situations.  In fact I was impressed in the way that he was able to readily, I suppose, admit his failings.  Not all parents can do that.  And talk about what they have learned from counselling or what they have learned through insight.  That doesn’t necessarily mean – that’s easy to do when the children are living in a different state.  That’s very different to 8 o’clock in the morning when, you know, Y hasn’t got his shoes and X is throwing a tantrum because he doesn’t like his lunch.  You know, so he hasn’t had that really, you know, that day-to-day full on practical, you know, experience of that.  So it’s one thing to – to know what to do in parenting on a theoretical basis but you – he may not have had that in a practical basis.

4. The father’s parenting now does not involve violence but he must continue to show to the world that his changes are permanent and long term.

(k)  if a family violence order applies, or has applied, to the child or a             member of the child's family--any relevant inferences that can be               drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. Those matters have been addressed when considering the above section 60CC factors. Sadly, violence was the enemy within this family during cohabitation and it must not be part of their future.

(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;

1. I shall make orders to provide not only for the children’s welfare and happiness but hopefully avoid further litigation which clearly is not in the children’s best interests.

(m) any other fact or circumstance that the court thinks is relevant.

1. Under the orders, I have delayed the weekend time with the children commencing until May to allow the mother sufficient time for her to produce a copy of this order and the reasons to her counsellor and to continue that counselling to ensure there is no suggestion that these children are suffering any further violence in her care.

Primary Considerations

1. Pursuant to Section 60CC(2)(a) the Court has to consider the benefit of the children having a meaningful relationship with both parents.

2. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life.  It does not give guidance to the interpretation of the phrase “meaningful relationship””.

3. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

   “…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 [sic] one.”

4. At paragraph 170, the Full Court said as follows:

   “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”

5. It then went on to say that there are three possible interpretations of section 60CC(2)(a) of the Act and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

6. The ‘present relationship approach’ was defined by the court in paragraph 118 as follows:

   “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).”

7. The ‘prospective approach’, which I will apply in this case, was also set out at paragraph 118 as follows:

   “(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”

8. The orders I will make, in my view, provide for the children to have a meaningful relationship, which also means a risk free relationship with both parents.

9. In 60CC(2)(b) the Court has to consider the need to protect the children from physical or psychological harm and being subject to or exposed to abuse, neglect or family violence. I also note the requirements of Section 60CC(2A).

10. This is the cornerstone of this judgment. These 3 children have been victims of violence far too often and for far too long. I am satisfied that the father’s proposal is less likely to involve further violence to the children than the mother’s proposal. She may undertake therapy to deal with her weaknesses as a parent. She may not benefit from this. It is very much an unknown outcome.

11. Given the requirements of the Family Law Act 1975 (Cth) I cannot gamble with the children’s wellbeing. They must not suffer any further form of harm and must have an opportunity for happiness. This is more likely to occur should they be in the primary care of the father.

Equal Shared Parental Responsibility

1. It is common ground that the parties agree that they should continue to have equal shared parental responsibility in relation to the 2 boys.

2. The mother has made some serious parenting mistakes in the past, however on balance it is my view that it is in the best interests of the children that the mother should be given an opportunity to exercise parental responsibility with the father to encourage her to embrace the change she has indicated she is prepared to undertake. The children will benefit from the parents working together for their welfare and I have been told by the parents that their communication of late has improved.

3. I made an earlier consent order on 23 September 2015 however I will discharge that order to have all orders in one document, to avoid confusion. This also applies to earlier orders in relation to Z.

4. In the future, should equal shared parental responsibility be a source of conflict or otherwise problematic, then the court may have to provide one parent with sole parental responsibility. This is the last opportunity these parents have to work together for the benefit of their children and they should not waste it.

Section 65 DAA

1. Equal time is not practical where the mother will reside in Victoria and the father in Tasmania, (see Section 65DAA(5)). Whist they continue to reside in different states, the definition of s65DAA(3) cannot be satisfied in terms of the expression “…substantial and significant time.”

2. However, it is my view of the evidence and of the parties’ proposals that the children will continue to have a meaningful and significant relationship with their mother should they reside with their father in Tasmania.

Conclusion

1. Written submissions were filed by the ICL on 4 January 2016, the father on 19 January 2016 and the mother on 8 February 2016. They were all helpful in reviewing the evidence and reflecting on the arguments raised by all of the parties.

2. In the unusual circumstances of this case, the most useful and relevant evidence that assisted the Court was that provided through the two family reports undertaken by Ms G and her evidence when she was cross-examined on the last day of the trial.

3. It is worth repeating what Ms G said to Counsel for the ICL when asked about any concern she may have should the mother be the main caregiver for the 2 boys when she said “…I think my primary concern for the children living primarily with mum, whilst she is denying issues of physical violence, for example, is the fact that if you don’t have the insight into that, then you are not able to address the issues and my concern in the second report was more around mum’s ability to promote the children’s relationship with their father in the longer term and for the children…” She went on to say as follows “…I’m more concerned around the emotional impact upon the children than I am the physical because the outcome longer term, as we often see, is X may be in a position now….. where he may need to choose one parent over the other.”

4. On this topic Counsel for the Independent Children’s Lawyer put to the Family Consultant that a possible consequence of not being permitted or allowed a relationship with their father should they live in their mother’s household was the boys rejecting their father. She said that this was a risk is in the mother’s household, given the criticism and hostility of the mother towards the father.

5. The Counsel for the Independent Children’s Lawyer then asked the expert whether the best chance for these children to have a relationship with both of their parents would be to live with the father at present and the expert answered as follows:

   At the moment if these issues haven’t been addressed I suppose we’re continuing to see low insight from Ms Dean and if we continue to see alternative explanations rather than outwards kind of admitting “yes I did that. I lost control. I did that” we can work with that. You can then get some counselling and assistance around that. If you continue to deny those issues then they are more likely to continue and therefore, yes, it does appear to be that longer term the children may be better off to maintain a relationship with both parents if they are living in the primary care of the father.

6. She then gave evidence about being impressed with the father confronting his failings and undertaking courses and treatment to ensure that his poor parenting is not repeated.

7. She was asked the following:

   Would it be a fair assessment that you saw a higher degree of insight in Mr Dean in relation to his prior conduct than you did from Ms Dean in relation to her prior conduct?

   Yes, because everything in the child protection and police records were consistent with what dad’s explanation was. The Police records say that he did that and Mr Dean says “yes, I absolutely did that.” He admitted to DHS to the things that he had done. He took consequence for that. He got counselling around that. And he was frustrated that by being honest around his conduct that he felt that he was totally in the position of perpetrator. Unfortunately in the Child Protection file it tends to be one or the other and sometimes family violence can be seen one or the other, you know, perpetrator-victim, whereas in a number of families it’s a combination of their scales of that. And I think he felt he was placed fully in ‘perpetrator’ without being seen what other positive things he could contribute to the children and he felt that Ms Dean was not made to account for her equally inappropriate discipline with the children. So the stories are very different.

8. Overall, I found the Independent Children’s Lawyer’s submissions to be the most helpful. At paragraph 2 on page 1, the Independent Children’s Lawyer submitted that the boys should live primary with the father in Tasmania and spend time with the mother for the following reasons:

   (a)The boys remain at risk of physically harm in the care of the mother;

   (b)The boys are at risk of emotional harm in the care of the mother; and

   (c)The boys are unlikely to maintain a meaningful relationship with both parents in the care of the mother.

9. At page 6, paragraph 15, the author then detailed the risks of physical harm, as follows:

   (a)She has used physical force on the children since X was an infant.

   (b)She was counselled against using physical discipline on children as early as 2007.

   (c)She has continued to use physical force on the children despite giving evidence to this Court in December 2013 that she regarded physical discipline as inappropriate.

   (d)She has used physical force on the children out of frustration and in retaliation in circumstances where she reported Dr M that she has a short fuse and a tendency to temper tantrums.

   (e)She has not attended an anger management course as ordered.

   (f)She has adduced no expert evidence to suggest a reduced future risk

10. In relation to emotional harm the Independent Children’s Lawyer’s submissions were:

    17 The Mother poses a risk of emotional harm to the boys. That risk is demonstrated by the serious decline in Z’s mental health during these proceedings. In early 2015, Z was suicidal and self-harming… Z told Ms S that what led to the decline in her mental health was being informed that the Father sough access to her… it was from her mother Z received that information, contrary to the fact that no orders have been made that require Z to spend time with her father against her wishes.

    18 (a) upon receiving the first family report, the Mother was upset and frustrated by the report as it related to Z, and read sentences from it to her; and

    18 (b) Z was considerably distressed by what her mother told her was said in Court in December 2014

    20 Although the Mother accepted that some of her conduct demonstrated poor judgment, nothing in her evidence suggests that she now has greater capacity to shield the children from further emotional harm. Her lack of insight into the harm her conduct has caused is demonstrated by her evidence that she was justified in being upset and frustrated with Z in relation to the first family report.

    21 The Mother’s emotionally abusive behaviour towards the children has not been limited to Z. In her frustration and upset upon receiving the first family report, she told X that the boys would be going into foster care. The Mother’s reaction gave Ms J such cause for concern about the children’s welfare that she made a notification to the Department of Health and Human Services.

11. I was so concerned about the mother discussing the contents of the report with  X and reading parts of it to Z, I asked her about paragraph 44 of the second report where it said:

    “Ms Dean denied she had provided Z with a copy of the family report to read, however confirmed that Z was aware of its contents.”

12. I then asked:

    The only way she could be aware of its contents is through you?‑‑‑– like I said to you before, your Honour, I did read a few sentences out of it to her, but I never produced a copy for her to read directly.

    She is aware of its contents?‑‑‑She is aware of ‑ ‑ ‑

    She is aware of its contents through you, right?‑‑‑Yes.

    And since that, it has triggered her self-harming behaviours? -- It – it increased her self-harming behaviours.

    ….  But then it was a negative outcome for your child because of what you said to her?‑‑‑I understand that, your Honour.

    It’s the only conclusion you can draw, isn’t it?‑‑‑I believe so.

    So how is that good for Z ‑ ‑ ‑?‑‑‑It’s not ‑ ‑ ‑

    ‑ ‑ ‑ to be immersed in this trouble and then for her to cut the inside of her thigh or the tops of her feet?‑‑‑It made me very upset when I found out what she was doing, because I had been ‑ ‑ ‑

    Why doesn’t it make you more upset that you were the cause of it?‑‑‑I came to – I have recently come to terms with that after talking to my psychologist.

    So your emotional and mental state was such in November last year that it affected your ability to parent properly;  is that what you are saying?‑‑‑Yes, and due to the interaction with my psychologist and regular GP visits, I am slowly coming to terms with the detrimental effects of my behaviour.

13. In relation to submission (c) about maintaining a meaningful relationship with both parents, the Independent Children’s Lawyer said, as follows:

    22 The Mother has exposed the boys to her opposition to them spending time with their father and has responded in anger to them expressing a desire to do so. X is afraid of his mother’s anger.

14. And at paragraph 24:

    24 Not only is the Court required to consider the benefit to the boys of having a meaningful relationship with both parents, Ms G made specific reference to X loving both his parents and wanting to spend time with both of them. The boys have the best chance of maintaining a meaningful relationship with both parents in their father’s household. The boys spoke to their mother every day when spending time with him in Tasmania in the mid-2015 holidays. The Father is happy for them to communicate with their mother at any time from his house.

15. And also at paragraphs 25, 26 and 29:

    25 …. Despite accepting that Z could have told Ms G that she wanted to spend time with the Father, the Mother actively discouraged her from pursuing that relationship. For example, when Z was speaking to the Father by electronic communication, her mother told her she doesn’t have to speak to him.

    26 The Mother has continued to denigrate the Father in the presence of the children despite an order not to. In October 2014, X reported that his mother refers to his father in a derogatory manner, making him sad. In July 2015, X reported that his mother refers to his father as a ‘dickhead or a fuckhead’. At that time, Y reported that his mother hated his father. The mother’s denials of denigrating the Father in the presence on the children lacked credibility, particularly in light of her admission that she does refer to the Father as a ‘dickhead’ in the presence of the boys.

    29 The exposure of the boys to the Mother’s attitude towards the Father in the context of her use of physical force and emotionally abusive behaviours towards the children leads the Independent Children’s Lawyer to have grave concerns for the boys remaining in the primary care of their Mother. Alarmingly, the Mother’s physically and emotionally abusive behaviours since separation appear largely to have been triggered by the children expressing a desire to spend time with their father. It was this context that led Ms G to opine that there is a risk the boys will reject their father in their mother’s household as it would be psychologically safer for them to do so. This risk is exemplified by the complete deterioration of Z’s relationship with the Father in circumstances where it was assessed to be particularly strong and require ongoing maintenance in October 2014.

1. I accept these submissions and adopt them in this my judgment as part of my findings. When I look at all of the proposals I note that both provide for the children to live in different geographical areas, both parents will be working from 2017 at least, and both involve a change of schools. The mother indicated clearly to the Court that she was planning to relocate to the (omitted) area but had no proposals for what school or schools the children should attend. 

2. I then turned the spotlight on their parenting capacity and discovered that the father has changed his parenting style to offer the children a loving, violence-free environment. This cannot currently be said of the mother’s environment.

3. Another issue that troubled me is the separation of siblings should the boys live with the father. Z is now aged 15 and soon will be an adult and so do what she pleases. X and Y, however, are still very young boys who are vulnerable. They must be protected and have their welfare promoted. I believe the father is likely to promote the relationship between Z and her half-siblings and she will be able to spend time with them, at the very least, when the boys spend time with their mother.

4. Although not ordinarily desirable to separate siblings or half-siblings, in the circumstances of this case, I cannot take the risk of the boys remaining in the mother’s household as primary carer. I note that Z through social media and other electronic forms of communication should be able to continue her communication with the boys. I accept that the father is likely to facilitate this given his evidence that X had a mobile phone that the mother had given him and that he put some credit on that phone so that X could ring his mother whenever he wanted. He said that X carried the phone around but he had no idea how often he rang her but the facility was clearly there.

5. I note the concerns of Ms G at paragraph 109 of the second report, but the author then did not have the benefit of the psychiatric report of the mother, nor hearing from her or observing her for the five days of this trial, and I adopt paragraph 116 of the same report which states that where I am satisfied that X and Y have been exposed to ongoing physical and emotional abuse within their mother’s care and it is unlikely she would promote the children’s relationship with the father, then X and Y should live primarily with their father and spend time with the mother. This is my finding and further I believe it to be in the best interests of these 2 children to live primarily with their father.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 15 April 2016