Donne and Scully (No 2)

[2019] FamCA 950

FAMILY COURT OF AUSTRALIA

DONNE & SCULLY (NO. 2) [2019] FamCA 950

FAMILY LAW – CHILDREN – Where the mother seeks orders that the children live with her and have no contact with the father – Where the father disengaged from proceedings – Where the mother and the father are convicted fraudsters and lived separately from society with the children – Where the way in which the children were raised is described as “gross psychological abuse” – Part VII of the Family Law Act 1995 (Cth) applied – Where the children reported that the father was violent, controlling and abusive of them – Where the father poses a risk to the children – Where the children would not obtain benefit from having a relationship with the father – Order that the children live with the mother – Order that the father neither spend time nor communicate with the children – Injunction issued.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA and 65DAC

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Donne & Scully [2018] FamCA 817
Harridge v Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69; [1988] HCA 68
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
N and S and the Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
S v Australian Crime Commission (2005) 144 FCR 431; [2005] FCA 1310
Wacando v Commonwealth (1981) 148 CLR 1; [1981] HCA 60

APPLICANT: Ms Donne

RESPONDENT: Mr Scully

INDEPENDENT CHILDREN’S LAWYER: Ms Cope

FILE NUMBER: CSC 839 of 2016

DATE DELIVERED: 10 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 4 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trevino

SOLICITORS FOR THE APPLICANT: Lehmann Featherstone

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Cope Family Law

Orders

1. All previous parenting orders are hereby discharged.

2. Ms Donne (“the mother”) have sole parental responsibility for the major long term issues for X born … 2005, Y born … 2007 and Z born … 2014 (“the children”).

3. The children live with the mother.

4. Mr Scully (“the father”) is to neither spend time nor communicate with the children.

5. An injunction issue for the personal protection of the mother and the children restraining the father from:

   (a)     Attending within 50 metres of the mother’s residence, or work place;

   (b)     Approaching within 50 metres of the mother and/or children;

   (c)     Attending the children’s day care or school;

   (d)Removing the children from the mother’s care or from the care of any person with whom the mother has placed the children;

   (e)Communicating directly or indirectly, including by third parties, with the mother or the children, whether that be by mail, telephone, email, voicemail or other electronic means whatsoever.

6. The Independent Children's Lawyer is forthwith discharged with the thanks of the court at the later of either 28 days from the date of these orders, or the determination of any appeal that may be brought from them.

7. Otherwise all extant applications are dismissed, and the matter is removed from the list of active pending cases.

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

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

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC839/2016

MS DONNE

Applicant

And

MR SCULLY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. This is a most unusual case.  Both Ms Donne (“the mother”) and Mr Scully (“the father”) are convicted fraudsters.  For most of their relationship, the parties lived “off grid,” with no Medicare or Social Security records.  They operated bank accounts in false names.  They had no permanent address, but moved from place to place, often staying at holiday rentals for one or two nights.  The youngest three children the subject of these proceedings, being X (14 years of age), Y (12 years of age) and Z (5 years of age) (“the children”), although born in hospitals, did so by the mother giving a false name.

2. The children, and indeed the mother’s three other children born to previous relationships were, during the course of the relationship, not allowed to form friendships, rarely allowed to go outside the house that they were living in, and were forbidden to make themselves known to neighbours.  They did not attend school, and rarely received medical or dental attention, and if they did so, it was under false names.  They were forbidden to have any contact with broader family members.  Dr A, a psychiatrist who examined both the mother and father for the purposes of the proceedings, in my view correctly described the way in which the children, and the mother’s other children were raised, as constituting “gross psychological abuse”[1] of them.

   [1] Dr A Affidavit filed 15 June 2017, Annexure ‘C”, paragraph 70.

3. As I shall shortly detail, eventually it all came crashing down in July 2015 when the Federal Police raided the house where the parties and the children were staying, and arrested both the mother, the father and the mother’s eldest child, E. The remaining children were taken into care, although the number of them necessarily meant that they were split up.  In September 2015 the children returned to the mother’s care, although the father remained incarcerated, initially on remand, but ultimately pursuant to a sentence of four years’ imprisonment imposed upon him in August 2016. With the exception of a brief reintroduction to the children during the course of Family Report interviews, the father has not seen the children or communicated with them since July 2015.

4. By her Initiating Application filed 2 December 2016, the mother seeks orders that she have sole parental responsibility for the children, who would live with her and have absolutely no contact with the father.  She also sought a suite of injunctions permanently restraining the father from, in effect, having anything whatsoever to do with her or the children ever again.  By his Response to Initiating Application filed 24 February 2017, the father sought orders for equal shared parental responsibility, but otherwise, beyond contemplating that the children would spend time and communicate with him, did not particularise what orders he would seek to effect that arrangement.  Ultimately, as I shall shortly detail, the father disengaged from the proceedings, which resulted in an undefended hearing on 4 November 2019.  At that hearing, the Independent Children's Lawyer supported the orders sought by the mother.  At the conclusion of that hearing I pronounced orders as sought by her, but reserved my reasons.  These are those reasons.

THE FACTS

The father

1. The father was born in 1975, and hence is presently 44 years of age.  He commenced work at 14, and continued to work until he was about 26 or 27.  However by then, from about the age of 18, he had apparently commenced stealing items.   At about that time, the father formed a relationship with a woman who was his secretary in a business he was employed in. They had one child together, Ms T, presently 21 years old. However that relationship did not last, and the father formed a new relationship with another woman. 

2. According to the later comments on passing sentence of the District Court judge, the father committed the crime of defrauding his own sister between … 1993 and … 1994, albeit he was not dealt with in the courts in relation to that until 1996. Next, the father committed the crime of obtaining money by deception on … 2002, and again on … 2002.  The best I can glean about the circumstances of these crimes is from Dr A’s report, which states that at around that time the father “could not have a bank account but there was a glitch in the system and he was able to get money from a V account or some such.”[2] 

   [2] Dr A Affidavit filed 15 June 2017, Annexure “C”, paragraph 35.

3. It was at about this time, in 2004, when he met the mother and commenced a relationship with her.  He would then have been about 29 years old.

The mother

1. The mother was born in 1975, and hence is presently 44 years of age.  She grew upon in Sydney, but unfortunately had an unhappy childhood as her father was a violent alcoholic.  She was educated to year 11 and thereafter moved out of home and obtained office work.  She formed a relationship with Mr C, and to that relationship, Mr E was born in 1993, therefore making him presently 26 years of age.  In 1995, apparently Mr E was sexually abused by Mr C, and Mr E told Dr G, a psychologist who examined him for the purposes of his subsequent criminal proceedings, that he had never seen his father since, and there were court orders prohibiting his father from seeing him.

2. The mother then formed another relationship with Mr H.  To that relationship two girls were born, Ms R (presently 22 years of age) and Ms S (presently 21 years of age).  However Mr H was, so the mother told Dr G, a violent alcoholic who, after she separated from him, stalked her, including breaking into her house.

3. It was at this stage of her life in 2004, when the mother was 29 years of age, that she met the father via a phone dating service.

The relationship

1. The relationship did not have an auspicious beginning.  When the mother and father first met, he introduced himself under a false name, and gave a false age.  The mother told Dr G that after she had met the father, they went on a date with all of her then children, and his daughter, and the father “basically stayed.”[3]  Although Ms T went back to her mother for the first weekend “then she just stayed too.”[4]  It turned out that the father was retaining her contrary to court orders, and Ms T was listed as a missing person. Federal Police arrived and recovered her, and it was only then that the mother learnt that the father was using a false name.  Although she told Dr G that “alarm bells went off,”[5] the father was able to assuage her concerns by telling her stories about Ms T’s mother having set him up, and her having policemen friends.  At about that time the mother had a further falling out with her parents, seemingly because of her relationship with the father, and for some reason, she, the father and her children moved to the New South Wales Region J, where the children were enrolled in school. However, whilst they were there, the mother’s mother and sister unsuccessfully tried to take Mr E, Ms R and Ms S off her.

   [3]Confidential Psychological Report (mother) 5 September 2016, paragraph 9.

   [4]Confidential Psychological Report (mother) 5 September 2016, paragraph 9.

   [5]Confidential Psychological Report (mother) 5 September 2016, paragraph 9.

2. By then the mother was pregnant with X, and it was at that time that the father was charged in relation to the V fraud, and also stealing cheques from his previous employer, seemingly as far back as 1999.  He went to court, and in due course was sentenced, although the mother assisted him to obtain bail pending an appeal against his conviction.

3. Although it is not altogether clear, at around this time the mother was hospitalised, as her waters had broken about nine weeks early, and it was whilst in hospital that she was served with proceedings in which, it seems, her mother and sister were applying for contact with the mother’s then three children.  However because her mother and sister were not the children’s parents, that inevitably required the fathers of the three children to be joined as parties in the proceedings as well, and served with their application.

4. The mother told Dr G that the father “took the opportunity to say you’re not going to be able to deal with this on your own (your family wanting to take the children, exs back involved, and a new baby) let’s leave and start a new life (As per the original).” [6] She continued “I came home from the hospital and we were packed up and gone that day.” Thus commenced their life “off grid,” initially in Melbourne. They thereafter ceased using their real names. The father’s own mother became complicit in their strange life, by facilitating the opening of bank accounts for them.  The mother also told Dr G that the father’s mother was “working cold calling for charities taking donations by phone getting people’s credit card details and then handing the credit card numbers to [the father] (As per the original).”[7]  At some stage the parties moved from Melbourne to Adelaide, and it was whilst there that police raided their home and arrested both the father and his mother, although they released the father.  The mother told Dr G “we left the house that day and moved to Victoria.”[8]  Thereafter they moved around a lot more to avoid detection, and sometimes only stayed in one place for a day or two.

   [6]Confidential Psychological Report (mother) 5 September 2016, paragraph 12.

   [7]Confidential Psychological Report (mother) 5 September 2016, paragraph 13.

   [8]Confidential Psychological Report (mother) 5 September 2016, paragraph 14.

5. From there on in it seems as though the family became increasingly isolated and under the control of the father.  They were forbidden friends, their movements were restricted, and the mother’s access to funds was curtailed.  The father also controlled the mother by threatening her with criminal consequences if she ever left, because it seems as though much of his fraudulent activity was undertaken using the mother’s bank cards or accounts.

6. The father forbade the mother from using her Medicare number, as it would enable authorities to track them.  Y’s birth was under a false name, in that the mother admitted herself into hospital as being one Ms L, who was a person whose Medicare number the father had managed to obtain. 

7. It appears as though a significant amount of fraudulent activity which the parties engaged in, involved falsely listing non-existent items for sale on the internet on sites such as eBay and Gumtree, and upon obtaining payment for the item, they immediately withdrew it in cash from the bank, and then refused to communicate further with the purchaser.  The father began to involve Mr E in this enterprise as well, in various ways. Mr E told Dr G “I finished grade 6, I didn’t go to high school, I wasn’t allowed, [the father] said I didn’t need it.”[9]

   [9]Confidential Psychological Report (Mr E) 5 September 2016, paragraph 8.

8. The children have variously reported that the father was violent towards them and controlling and abusive of them.

9. By 2012 the parties were living in Region K.  In 2012, the mother gave birth to a son, M, albeit the mother was admitted to hospital under the alias of Ms D. Unfortunately M passed away shortly thereafter.  Mr E told Dr G that the father “used a fake cheque and didn’t even pay for [M’s] funeral.”[10]  Presumably the family then moved on again.

   [10]Confidential Psychological Report (Mr E) 5 September 2016, paragraph 12.

10. By 2014 the family were back in Victoria. Z was born at Hospital N as Z, with the mother using the alias of Ms F when admitting herself into hospital.  Ms F was a woman whom the parties had some association with, and whose Medicare number the father had obtained.

11. In December 2014 the family moved to City U, Queensland. 

12. On 8 July 2015 the mother, father and Mr E were all arrested on charges which alleged that 65 victims had been defrauded by them of a total of about $200,000.00.  Police records at the time noted that no persons at the parties’ home had any form of identification, and appeared to have been living completely separately from society since 2005.  The mother told police, and in due course departmental officers too, that they had no bank accounts, and were dependent upon cash, and operated outside of the government system, being neither registered with Medicare or Centrelink.  The children told police that they were forbidden to play outside, speak with anyone outside the family, have any friends, or go to school.

13. The children immediately went into departmental care. 

14. It appears as though the parties’ relationship concluded on that day.

Post separation

1. The mother and Mr E were able to obtain bail, but the father did not.  Nonetheless the Department of Child Safety, Youth and Women continued to retain the children until 6 September 2015, when they were returned to the mother’s care.

2. It appears as though, because the children had no identification papers, and had their births registered under false names, that obtaining proper birth certificates for them was problematic, and required DNA testing.

3. In August 2016, a District Court Judge, sentenced the father to four years imprisonment.  He was sentenced on the basis that he admitted to be the “princip[al] offender”[11] in the commission of the parties’ crimes.  On 6 September 2016, the same judge sentenced the mother to two and a half years imprisonment, but wholly suspended it on condition that she be of good behaviour for three years.  Mr E was also at that time sentenced to two years imprisonment, although he was immediately eligible for parole.

   [11] 6 September 2016 [5].

4. Relevant extracts of the joint sentencing comments relating to the mother and Mr E are as follows:

   8. As I said earlier, this is an exceptional background and I accept that both of you found yourselves in a difficult situation.  In your case, [the mother], not only was he controlling, he was also violent towards you, he threatened you and blackmailed you emotionally and financially.  He made it clear to you that if you made any attempt to leave him, you’d find yourself in very big trouble.  And I can well understand how that would have operated on your mind.  In your case, [Mr E], it is particularly tragic that you got to meet him when you were 10 or 11 and you spent all that time under his influence, where clearly, all he ever did was groom you to be a professional con artist like himself.  It is apparent from the advice he gave you that his view was that people that don’t help themselves to other people’s property are losers and that’s something that he drummed into you from a very early age.  He taught you how to scam people, he taught you how to talk to people, he showed you how different scams operated. And it is particularly sad that that’s probably all you’ve known since you were 10 or 11.

   9. He even took you out of schooling, and your education, instead of being the formal education that other children your age had, was an education as a professional con man.  So that’s something also that I take into account, because we’re talking about the very formative years in your life, which were dominated by this totally unscrupulous and controlling individual.  Now I say all that because it’s going to affect how I deal with both of you.  This is quite an exceptional case.  I note that you, [the mother], have already suffered to some extent because of all of this.  When you were charged, the three youngest children were taken from you and placed in the temporary care of the state.  Investigations there confirmed that these children had been given very little access to the outdoors, which confirmed just how controlling this man was.  It took you some time, but you eventually got the children back and it is apparent from the report that I spoke of the references that I have been given, that you have made a considerable effort to distance yourself from him and to get on with your life.  He is where he always belongs, currently in jail and throughout that time, you’ve managed to re-establish yourself, get the children back, get yourself involved in some volunteer work, obtain new housing, and, I’m told, you’re determined not to have anything further to do with him, and that you are determined that he should not have anything further to do with the three youngest children.  And, to this end, there will be probably be family law proceedings on foot, once this whole case is over, and once he is released from prison on his current charges.  The last thing you can afford is to go back to him.  If you do, you’re going to go back into that whole lifestyle, and it’s just a matter of time before you’re picked up, charged with more offences, and spend a lengthy period of time in jail.  And I hope you appreciate that.  I’m told that you are trying to get on with your life, and you may, in fact, have a new relationship in its infancy.  I hope, for your sake, that that proceeds.

   …

   11. Now, I have to decide what to do with you.  Because of the sophisticated and serious nature of this scam in the first place, substantial head sentences of imprisonment are justified in the case.  But because of the exceptional nature of the case, which I’ve gone to great lengths to summarise, I’m not going to require either of you to serve a term of imprisonment at this stage.  In both cases, I note that you have pleaded guilty, and that these are timely pleas of guilty.  I also take into account your co-operation with the authorities, not only in relation to these matters, but also other matters involving him.  I accept that your offending occurred very much under the influences of this dishonest and controlling individual, and I also make allowance for that.  

   (As per the original)

1. The mother then commenced these proceedings on 2 December 2016.  On 13 December, she served the father with her material.  At the time the father was still imprisoned, but was released on parole on 10 January 2017.

2. Also on foot at the time were applications for protection orders for the mother and her children, and they proceeded to trial on 3 March 2017.  It seems as though the mother’s older children gave evidence in that trial, and were cross-examined by the father, which was apparently traumatic for them. Final protection orders were then made.

3. Initially Mr E was one of the children named on those orders as not being able to be contacted by the father, however contrary to that order, in late March 2017, the father commenced contacting him. Mr E then took steps to have himself removed from the protection order, and apparently still continues to communicate and associate with the father.

4. That was most unusual and unfortunate, given what he had earlier told Dr G in September 2016. Particularly, he had recounted to her the manipulation and abuse he had suffered at the hands of the father, and tellingly said that the father “is an example of what I don’t want to be.”[12]  By then, Mr E had obtained employment, and was looking forward to rebuilding a normal life.  However it is plain that by some means, the father was able to re-exert control over Mr E, and using that control, thereafter sought to reconnect with Mr E’s siblings, including the father’s children.  In due course, Mr E moved out of the mother’s home, and eventually the father started living with Mr E and Mr E’s girlfriend.

   [12]Confidential Psychological Report (Mr E) 5 September 2016, paragraph 12.

5. Mr E’s behaviour progressively became more aggressive towards the mother, and the mother felt that she “had no alternative but to cut off contact with him for the safety and wellbeing of the rest of the family.”[13]  The mother was particularly troubled that the father might seize the children from school and take them.

   [13] Ms Donne Affidavit filed 9 September 2019, paragraph 43.

6. On 17 November 2017, I conducted the Trial Management Hearing in this matter, and listed the matter for trial to commence on 8 October 2018. 

7. In March 2018, Mr E arrived at the mother’s home and commenced punching the garage door. Although the mother was not home, one of Mr E’s siblings called the police. Apparently Mr E left, but then began harassing the mother over the telephone, and when she eventually relented and spoke to him, he told the mother that the father had been arrested again for “using an iPhone set up in a fake name that had been bought by his then fiancée.  He was allegedly using the phone to chat up girls and was sending them presents and he was getting them to launder the proceeds of his fraud.  Mr E told me that there were at least 10 girls (As per the original).”[14]

   [14] Ms Donne Affidavit filed 9 September 2019, paragraph 47.

8. Pursuant to the liberty to apply which I had ordered on 17 November 2017, the father sought to have the Trial Management Hearing relisted due to his incarceration.  In particular, he told me that being incarcerated meant that he was unable to properly prepare for trial, and on 12 September 2018, I acceded to his application and vacated the October 2018 trial listing. In my reasons for so ordering, I recounted what the father had told me at the resumed Trial Management Hearing as follows:[15]

   2. The father has exercised that liberty to restore in bringing his application today.  The father’s situation is a little complex.  At the time of the orders on 17 November 2017 he was a free man, albeit, as I understand it, on parole arising from his conviction for some offences.  The father says that in anticipation of preparing for the defence of the mother’s application, he obtained a mobile phone with internet capability, under a false name.  As it transpires, that was – and it appears, he accepts that it was – a breach of his conditions of parole, which required him to first seek leave of his parole officer or the parole board, if he intended to seek to access the internet or to purchase or have access to a device that was internet-capable. 

   3. The father says that he sought that consent, but it appears to have not been forthcoming, and in any event, in about March, it appears as though, by virtue of him having accessed the internet, his parole was revoked, and he was thereafter incarcerated.  The father says that since then he has sought to engage with his lawyers to obtain legal aid to assist in the preparation of his case, and it appears as though his lawyers, perhaps different lawyers, remain engaged with him in relation to his criminal proceedings.  However, the fundamental difficulty is that the father is presently incarcerated with – it would seem on his version of events – limited or no access to the internet from B Prison, where he is presently in custody. 

   [15]Donne & Scully [2018] FamCA 817.

9. Based upon what Mr E had told the mother, it now appears as though much of what the father had told me on 12 September 2018 was untrue.

10. At all events, the Trial Management Hearing later resumed on 7 February 2019.  By then the father had been again released from custody.  I then listed the trial to commence on Monday 4 November 2019, with an estimated hearing time of 5 to 6 days.

11. On 14 August 2019 I dealt with an application by the mother’s solicitor that the father should be prohibited from personally cross-examining the mother, and made an order in those terms. At that hearing, the father then appeared by telephone. However subsequently he wrote an email to the Independent Children's Lawyer indicating that he intended to disengage from the proceedings, and in light of that intimation, on 16 October 2019 I yet again relisted the Trial Management Hearing, on which occasion there was no appearance for the father, and attempts to contact him by telephone failed. I therefore ordered that the matter proceed by way of undefended hearing on 4 November 2019.

Current situation

1. As at the time of the hearing, the mother was anxious to restrict information about her present circumstances, so as to minimise the prospect of the father being able to track her and the children down.  However within those strictures, she tells me that she is currently working full time in an office, resides in a five bedroom house with a granny flat, together with her new partner Mr Q, his son, and Ms R, Y, X and Z.  Ms S only moved out in July 2019 to live with her boyfriend.  The mother tells me that X, Y and Z are attending local state schools, that X is getting straight A’s and is the Dux of her year, that Y is getting B’s and C’s, and that Z seems to be progressing well.

2. I know nothing about the father’s present circumstances, other than he likely lives at distance from City U Queensland, as in the past he appeared at court events by telephone.

THE ISSUES

1. With the assistance of the parties at the Trial Management Hearing, I identified the issues in these proceedings as follows:

   1.What is the nature of the relationship between the children and each parent.

   2.What risk, if any, do the parties pose to the children, and what means are available to mitigate any such risk.

   3.Would the children benefit from a meaningful relationship with the parties, and if so, how might it best be facilitated.

   4.What are the respective parenting capacities of each parent, and what is their ability to meet the needs of the children.

   5.Would each parent facilitate a meaningful relationship between the children and the other parent.

   6.What would be the impact upon the children of each party’s proposal.

   7.Could the parties’ communication and relationship history adequately support equal shared parental responsibility.

2. After I have addressed the relevant statutory provisions and legal principles, but before traversing any residually relevant considerations under s 60CC of the Family Law Act 1975 (Cth) (the “Act”), I will discuss those issues, and then turn to the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Act contains the relevant statutory provisions dealing with children. Section 60B of the Act specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

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

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

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

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

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

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

2. Section 61DA(1) of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, s 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion (Banks & Banks (2015) FLC 93-637 at [49]).[16]

   [16] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Maldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and s 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Act in the following terms:

   Abuse, in relation to a child, means:

   (a) an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d) serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary, they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Act in the following terms:

   (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…or causes the family member to be fearful.

4. Section 4AB(3) provides that “[f]or the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB(2) and s 4AB(4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   (1)(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject-matter of the proceedings; and

   (c)the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) (1992) 110 ALR 449 at 449-450 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

   (Footnotes omitted)

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N and S and the Separate Representative (1996) FLC 92-655 (“N & S”), where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge v Harridge [2010] FamCA 445 Murphy J, having referred to N & S, proceeded to adopt the following list of inquiries in relation to risk assessment at [73]:[17]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [17] Taken from B Mahendra ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  They are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

1. However a Court would obviously only cut the relationship between the child and parent on such a ground with considerable hesitation.

ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN CHILDREN AND PARENTS

1. Other than for a brief period during the course of the first Family Report interviews, the children have not seen or communicated with the father since July 2015. They therefore have no intact relationship with him. Indeed, considering Z’s age, it is unlikely that she even has any memory of the father.

2. In her interview with the second Family Report writer, Ms O, X told her that she feels angry at her father, that she does not want to see him, that she feels he is dangerous, violent, aggressive and has hurt all of the family.  She went on to describe him as egotistical, narcissistic and a bully.  She said he had been physically violent to her, that he was ignorant, and that he uses people.  Ms O concluded that X had not been subject to any alienation by the mother in forming these views of her father.

3. I accept that evidence. I am therefore satisfied that, to the extent that there may be the residue of a relationship of some species between X and the father, it is a bitter one, which has harmed her, and which she rejects.

4. Turning to Y, he told Ms O that he had no desire to see his father, and never wanted to see him again.  He said that he had tried to block out his memory of the consequences of his father’s fraud, which he said was all his father’s fault.  He told Ms O that he remembered his father being very cruel, and as he started to remember things in conversation with her, he became increasingly stressed and upset, to the point where Ms O terminated the interview, and recommended urgent psychological support be provided to him, which it was.

5. Therefore, much like X, I am satisfied that the nature of the relationship between Y and his father, necessarily residual given the four and a half years since he has spent time or communicated with him, is toxic and a source of bitter memory for him.

6. In this regard it is illustrative to consider what occurred during the course of the first Family Report interviews, which were conducted by Mr P on 24 August 2017.

7. At paragraphs 118 to 122 of the first Family Report dated 18 September 2017, Mr P said as follows:

   118. All three children were escorted to the playroom by this Family Consultant and initially settled for a few moments as they explored the room, toys and other activities in the room, particularly Z.  This Family Consultant then went to another room collected [the father] and escorted him into the playroom.  As he entered the room he walked towards the children who immediately huddled together as a group in one corner.  [The father] asked how the children were going and at first they remain silent.  In an effort to engage in some discussion and start things off, this Family Consultant asked Y if he had ever played tenpin bowling before he as there was a ball and large bowling pins lying on the floor in the playroom.  This attempted engagement was unsuccessful as everyone remained silent.

   119. [The father] asked again how the children were going and X retorted, “Fine now that we’re not seeing you”.  [The father] asked what she meant by such, and she replied, “because of all the things you did”.  [The father] asked what she was referring to and X replied that he knew.  [The father] said he did not and wanted to know what she was talking about.  X responded again that he does know what she’s talking about and [the father] in a firm and challenging tone said he did not and insisted she tell him.

   120. It was at this stage that the atmosphere dramatically changed and X and [the father’s] temperament seemed to escalate.  Both were seemingly now arguing with one another and each had raised voices.  X was being very assertive and in response, [the father] continued to argue the point more loudly.  He raised his voice as well, pushing X to tell him exactly what he is supposed to have done.

   121. This observation session continued for exactly four minutes prior to being terminated by this Family Consultant and [the father] immediately escorted from the room.  It was assessed that [the father] was either unable to or unwilling to disengage from such a direct confrontation and argument with X.  Furthermore, there was not even an attempt to engage the children positively and it was assessed that the session was unhelpful and the children were becoming distressed.

   122. This Family Consultant immediately debriefed both children and in particular X said she felt physically sick to her stomach seeing her father and she appeared quite angry.  Y said he felt very frightened and then started to cry.  The children were provided a short moment to calm down and were escorted back to their mother.  

8. This interaction confirms my view that, not only do the children have no relationship with the father of any moment, but engagement with him is distressing for them.

ISSUE 2 – RISK PARTIES POSE TO CHILDREN

1. Both the mother and father were responsible for the children’s care during their relationship. I accept that the circumstances of their upbringing during the relationship comprised, as Dr A concluded, gross psychological abuse. The fact that the mother was a participant in inflicting that abuse upon her children, necessarily means that she must continue to be of some risk to them. At paragraphs 37 to 43 of his report in relation to the mother, Dr A said as follows:

   37. I feel fairly sure that now having been separated from Mr Scully for two years she will not be involved in further fraudulent activities and is likely to be a perfectly competent parent and establish a reasonable life for herself.

   38. But we have to have in mind that she bears some (criminal) responsibility for exposing her children to this gross psychological abuse – for that is the only way you can see the behaviour.

   39. That does not mean that she is likely to do so in the future but we do have to have this in mind.

   40. In that regard I think it perfectly appropriate that she be regarded as capable of looking after the children but I would like her to have some long term psychological surveillance and my understanding is that that is in train.

   41. Now that will be just to keep some track of her and to ensure that things go reasonably smoothly for her.

   42. I understand now that actions are now being taken for her children to be registered, to be vaccinated and to return to schooling.

   43. What I say then is that she is perfectly capable of looking after the children on a normal basis – but that I would like her to continue to have some long term psychiatric surveillance, not necessarily intense, and that she must lead a stable lifestyle and support the children in moving in to that.

2. That report was written in May 2017.  Since then, there have been a further two and a half years during which the mother has been, in effect, under the scrutiny of the Court.  In that time she has re-partnered and appears to be living a normal, responsible life, and the children appear to have adjusted back into mainstream society.  Therefore whilst I cannot exclude the risk of the mother relapsing into criminal ways, and hence subjecting the children to those, and the risks from the moral code which they represent, I assess the chance of that occurring as low.  The means available to mitigate that risk is to have the children living within the community, attending schools, and hence subjecting the family to the scrutiny which society ordinarily imposes.

3. Turning to the father, Dr A concluded that whilst he does not have any psychiatric condition, he “would have to seem as having a significant personality disorder – on the psychopathic continuum.”[18]  He said that this “represents [a] significant personality disorder.”[19]  He said that the father is “seductive, persuasive and must be surely be an excellent liar.”[20]

   [18] Dr A Affidavit filed 15 June 2017, Annexure “C”, paragraph 57.

   [19] Dr A Affidavit filed 15 June 2017, Annexure “C”, paragraph 62.

   [20] Dr A Affidavit filed 15 June 2017, Annexure “C”, paragraph 63.

4. At [72] and [73] he continued as follows:

   72. I do not see him as being physically dangerous to his children but I suspect that if he has any contact with the children he is likely to move them in the direction of seeing things the way he does and in that context I have to say that ideally I do not think he should have any contact at all with any of his children.  But I emphasise that is from an ideal perspective because we do have to consider what attachments the children may have to him and whether or not it would be very disruptive to them and their wellbeing to completely disrupt any contact he has.

   73. My concern with this man is that he would very likely indeed to adversely influence the children into seeing his behaviour as being perhaps normal and acceptable.

5. Later at [76] he said that “we cannot avoid the concern about his being so seductive, manipulative and, let us face it, lying.”[21]

   [21] Dr A Affidavit filed 15 June 2017, Annexure “C”, paragraph 76.

6. It has been seen that I do not accept that the children have any attachment with the father whatsoever.  Therefore the potential for them deriving benefit from the father, which Dr A was advertent to, does not exist.

7. In answer to a specific question as to the parties’ posing a risk to the children, Dr A said “the risk of the father having contact with the children is that it will expose them to his personality structure and may well contribute to them developing comparable maladaptive behaviours.”[22] 

   [22] Dr A Affidavit filed 15 June 2017, Annexure “C”, page 9.

8. I accept all that evidence. 

9. There is no means available to adequately mitigate that risk.

ISSUE 3 – WOULD CHILDREN BENEFIT FROM A MEANINGFUL RELATIONSHIP WITH THE PARENTS AND IF SO HOW BEST FACILITATED

1. Ms O reported that, post separation, the mother has established “a safe, secure environment for [the children] in which they feel comfortable, nurtured and well supported.”

2. I am satisfied that the children have, under the mother’s care, adjusted into mainstream society, and that the mother has assisted them in doing so, and provides them with nurture, comfort and support.  I am satisfied that the children would benefit from a meaningful relationship with her, and the best means of facilitating it would be for the children to spend as much time as circumstances permit in her care, and for her to be engaged in all areas of their lives.

3. As to the father, Ms O’s opinion was that the children’s mental health would be at serious risk in the event that the father was allowed contact with them.  She could identify no benefit in a relationship between the children and the father.  That said, the father had disengaged from the proceedings by the time of her interviews, and hence he was not interviewed by her, but nonetheless Ms O had comprehensive material available before her in forming her recommendations and views.

4. Dr A opined at paragraph 51 of his report in relation to the mother:

   51. I have indicated in my report about the father that I think the ideal is that he should have no contact with the children if for no other reason than for fear of him educating and seducing the children into the same attitudes towards life, lifestyle, et cetera which I argue would be counterproductive.

5. Unfortunately the father has demonstrated what would likely happen to the children if they were to have a relationship with him, through his engagement with Mr E.  Notwithstanding the fact that by 2017 Mr E had recognised that the father had positively harmed him, and was not a person that he wished to have anything to do with, nonetheless under the father’s influence, he appears to have reverted to criminal ways, and plainly is strongly influenced by him.  That influence is dangerous and harmful.

6. I am well satisfied that the children would obtain no benefit whatsoever from any form of relationship with the father.

ISSUE 4 – PARTIES’ PARENTING CAPACITIES AND ABILITY TO MEET CHILDREN’S NEEDS

1. I have already addressed the risk which both parents necessarily pose to the children, by virtue of their gross psychological abuse of the children during the course of the relationship.  I have also addressed the children’s reports of the father physically and psychologically abusing and controlling them.

2. I am not satisfied that the father has any capacity to properly parent the children, or meet their needs.

3. On the other hand, post separation the mother has reformed her ways, and has demonstrated now, for four and a half years, that she does have the capacity to parent these children in a proper manner, and is able to meet their needs.

ISSUE 5 – PARENTS FACILITATION OF A MEANINGFUL RELATIONSHIP BETWEEN CHILDREN AND OTHER

1. By virtue of the father’s disengagement from the proceedings, this issue is no longer relevant.  That is because there is no option but to make orders that the children will live with the mother.  The question of whether she will facilitate a relationship between the father and the children whilst therefore moot, is nonetheless easily answered.  She wants nothing more to do with him and would not facilitate a relationship between him and the children, because she recognises the danger that he poses to them.

ISSUE 6 – IMPACT UPON THE CHILDREN OF EACH PARTIES’ PROPOSAL

1. There is now only one live proposal before me.  The impact it will have upon the children is they will never have a relationship with their father during their childhood. The older two are left with bitter and angry memories of him. It is unlikely that they will ever seek him out again in their lives. They will therefore in all likelihood be deprived of ever having a meaningful relationship with their father, however that is clearly in their best interests.

2. Sadly, the children will likely continue to suffer psychological distress and difficulty throughout their lives in consequence of the way in which they were brought up during the course of the relationship.  However the mother’s proposal is likely to provide the best means of them progressing as best as the circumstances permit, with the balance of their lives in the future.

ISSUE 7 – COULD PARTIES SHARE PARENTAL RESPONSIBILITY

1. The answer to this question must be a resounding no. The father’s personality disorder, and his demonstrated long term history of manipulation, deceit and fraudulent criminal behaviour, rules him out as having anything to offer in relation to decision making for these children.  In any event, the parties’ relationship history, and absence of any communication post separation, would preclude it.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both of the primary considerations, and many of the additional considerations, in traversing the issues. Nonetheless, by reference to the remaining additional considerations, I observe as follows.

2. X and Y have expressed strong views that they do not wish to have anything to do with their father ever again.  They are currently 14 and 12.  Given their traumatic background, I give those views considerable weight, particularly in the case of X.

3. The father makes no financial contribution towards the costs of raising the children, in part perhaps because the mother has obtained an exemption from child support, such that the father will not be assessed for it.  In any event, it is unlikely that his income will be earned in a way which could ever be accessed by the Child Support Agency.

4. Absent knowing anything of the father’s present circumstances, I cannot conclude whether there is practical difficulty and expense in the children spending time or communicating with him.

5. There has been plainly a long history of family violence, as that term is defined in the Act, during the course of the relationship. Further, a family violence order presently exists which precludes the father from having any contact with the mother or children at least up until 28 May 2024, that order having been made as recently as 21 October 2019. The inference which I draw from that is that the father poses such a risk to the mother and children, that a magistrate was satisfied that he should have nothing to do with them for effectively another five years.

6. Plainly it would be preferable to make an order that it is least likely to lead to any further proceedings, given the relatively long history of this matter in this court already.

7. I cannot identify any other fact or circumstance which is relevant.

PARENTAL RESPONSIBILITY

1. Clearly there has been family violence, and hence there are reasonable grounds to believe that it occurred. The presumption of equal shared parental responsibility therefore does not apply.

2. In any event, the father is, as I have already observed, not a potential candidate for any form of responsibility in relation to the children.  I am well satisfied that the children’s best interests lie in the mother having an order for sole parental responsibility in relation to them.

WITH WHOM SHOULD CHILDREN LIVE

1. The father’s disengagement from these proceedings made the prospect of any order, other than as contended for by the mother, impossible.  But in any event I am satisfied that the children’s best interests lie in living with the mother, as she has demonstrated, for the last four and a half years, that she is able to properly meet their needs, and the children, within the strictures of their own psychological problems, have managed to flourish.

2. I am therefore satisfied that it is in the children’s best interests that they live with the mother.

TIME AND COMMUNICATION WITH FATHER

1. Regrettably this is one of those cases where not only is there no benefit to the children in knowing, or communicating with, the father, but he is a positive risk of harm to them, not susceptible of any adequate mitigatory measure, and hence unacceptable.  He would likely use any time or communication with the children to influence them in the way which he plainly has with Mr E.  His personality disorder would see him likely seek to bend the children to his beliefs and ways, as is not only tellingly illustrated by the fact that he has managed to do that to Mr E, but that he was trying to do it to X in front of a family consultant during the course of the first Family Report interviews.

2. Dr A’s opinion was that “this is one of those situations where I do not believe that telephone contact [between the children and the father] would be appropriate.”[23]  I accept that opinion, and in any event, would have independently reached it on the material.

   [23] Dr A Affidavit filed 15 June 2017, Annexure “D”, paragraph 52.

3. Not only will there be no orders facilitating the children spending time or communicating with the father, but there should be permanent injunctions as sought by the mother restraining him from doing so as well.

OTHER ORDERS

1. Otherwise there should be orders as proposed by the mother and Independent Children's Lawyer.

CONCLUSION

1. For these reasons I made the orders which I pronounced on 4 November 2019. 

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 December 2019.

Associate: 

Date: 10 December 2019