Donnelly and Bryson & Anor

[2020] FamCA 929

FAMILY COURT OF AUSTRALIA

DONNELLY & BRYSON AND ANOR [2020] FamCA 929

FAMILY LAW – Parental responsibility – time with parents – where the proceedings were previously adjourned when the Department decided to intervene – supervision by the Department – basis for order for supervision grounded in Family Law Act not state legislation – consent by Department to engage in some supervision - injunctions to support supervision - where interim orders had been made providing for two of the children to live with the Father, for supervised time with the Mother and regarding departmental interventions – where further interim orders had suspended the Mother’s time with the children – where the Mother disengaged part way through the resumed proceedings – where the Mother’s evidence was still relevant and used in proceedings – risk to the children posed by each of the parents – where there has been significant violence between the parties – where there is risk of neglect due to parental incapacity – where the Father has previously misled the Court regarding drug use but has recently complied with drug testing – where the Mother has not complied with drug testing or has provided diluted samples – where the older children have been exposed to and involved to some extent with illicit substances and sexual activity – where the Father has made progress regarding his ability to respond to and avoid using violence – where the Father has undergone anger management and parenting courses – where the Mother shows no signs of making progress regarding her violence or addiction issues – where the Mother’s evidence was confused – where there are questions about both parties’ credibility – where the Father appears to offer a more stable home environment than the Mother – where the Father has made efforts to engage the older two children with support services with some success – where the Mother’s home facilitates the children’s engagement with sexual activity, illicit substances and antisocial behaviour – where the Father appears more consistent in his parenting capacity and ability to manage the children – where the Father appears able to engage the younger two children in school – where there are some questions about the Father’s ability to be authoritative with the children – where the older two children are likely to continue moving between the parties’ houses but indicate some intention to live primarily with the Father – where there is a limited risk of the parties resuming a relationship – where it will be difficult to enforce orders relating to the older two children – where ongoing departmental supervision and involvement is warranted – where this involvement should extend for 12 months.

Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA, 65M, 68B, 69ZK
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Johnson v Page [2007] FamCA 1235

Jollie & Dysart [2014] FamCAFC 149

M v M (1998) 197 CLR 250

Marsden & Winch (No 3) (2007) FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

N and S and the Separate Representative (1996) FLC 92-655

Phillips & Hansford [2019] FamCAFC 165

U & U (2002) 211 CLR 238

APPLICANT: Mr Donnelly

RESPONDENT: Ms Bryson

INTERVENER: Department of Communities & Justice

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 1351 of 2019

DATE DELIVERED: 5 November 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATES: 10 – 13 February 2020 and 12 & 13 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: KPW Lawyers

COUNSEL FOR THE RESPONDENT: Dr S Leslie (February hearing)

SOLICITOR FOR THE RESPONDENT: Barker & Barker (February hearing)

COUNSEL FOR THE RESPONDENT: Mr B Apelbaum (October hearing)

SOLICITOR FOR THE RESPONDENT: Blomfield Legal (October hearing)

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Evans Family Lawyers

Orders

(1)All previous parenting Orders are discharged.

PARENTAL RESPONSIBILITY

(2)The Father, Mr Donnelly (“the father”) shall have sole parental responsibility for the children, W, born in 2004, X, born in 2005, Y, born in 2007 and Z, born in 2017 (collectively referred to as “the children”).

LIVE WITH

(3)The children shall live with the Father.

SPEND TIME WITH AND COMMUNICATION

(4)The Mother and the Father shall do all acts and sign all documents necessary to register with the H Region Children’s Contact Service (“the contact service”) within seven (7) days of the date of these Orders.

(5)The children shall spend supervised time with the Mother at the contact service at such times, on such dates and at such places, as may be facilitated and supervised by the operators of the contact service provided that, subject to the availability of the service, the frequency shall be no less than once per month and no more than once weekly, and for that purpose the following shall apply:

(i)The Mother shall notify the Father in writing forty-eight (48) hours prior to the scheduled time at the contact service of her intention to attend to spend time with the children.

(ii)Should the Mother fail to comply with Order 5(a), the Mother’s scheduled time with the children at the contact service shall be suspended.

(iii)The Father shall cause the delivery of the children to, and their collection from, the contact service at the commencement and conclusion of the children’s visits with the Mother.

(iv)The Mother and the Father shall pay any costs due to the contact service.

(v)The Mother and the Father shall comply with all reasonable requests and directions of the contact service.

(6)In the event that the Mother fails to attend for time as scheduled by the supervision centre on three consecutive occasions, then the obligation of the Father to provide the children pursuant to order 5 is thereby suspended.

(7)The Mother and the children shall communicate with each other by telephone or FaceTime at all reasonable times agreed between the Mother and the Father in writing.

SUPERVISION

(8)For a period of twelve months from the date of these Orders, each of the parents shall accept the supervision of a delegate of the Secretary and shall comply with all reasonable directions given by the delegate in relation to the care, welfare and development of the children, including directions given as to attendance at and engagement with services.

(9)For the duration of the supervision in the above order, the Mother and Father are directed by injunction to permit officers who are subject to the direction of a delegate of the Secretary to enter premises that the Mother or Father from time to time occupy for the purpose of seeing any of the children upon such officer making a reasonable request to enter the premises.

INJUNCTIONS AND RESTRAINTS

(10)The Mother and the Father are hereby restrained by injunction from:

(i)Consuming, ingesting, using or otherwise being under the influence of any illicit substance for twenty-four (24) hours prior to or during all time spent with the children;

(ii)From bringing the children into contact with any other person who is under the influence of illicit substances;

(iii)Abusing prescription or over-the-counter medication for twenty-four (24) hours prior to or during all time spent with the children;

(iv)From bringing the children into contact with any other person under the influence of the abuse of over the counter medication;

(v)Consuming alcohol beyond the legal driving limit of 0.05 per cent for forty-eight (48) hours prior to or during all time spent with the children;

(vi)From bringing the children into contact with any other person who is under the influence of alcohol so as to place that person beyond the legal driving limit of 0.05 per cent;

(vii)Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of the children and from permitting any other person to do so;

(viii)Discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;

(ix)Physically disciplining or striking the children or allowing any other person to do so;

(x)Exposing the children to any form of domestic violence including verbal violence or using abusive language to, or within the hearing of the children; and

(xi)Bringing the children into contact with Mr D or allowing any other person to do so.

EXCHANGE OF INFORMATION

(11)The Mother and the Father shall notify each other as soon as reasonably practicable:

(i)By telephone, in the event that the children suffer a medical emergency; and

(ii)By text message, in the event of the children suffering any medical illness, accident or injury, if not an emergency.

(12)The Mother and the Father are hereby authorised to obtain from the children’s schools and/or childcare centres all notices, letters, school reports and invitations.

(13)The Mother and the Father shall advise each other of any change of telephone number or residential address within twenty-four (24) hours of such change occurring.

OTHER

(14)The Mother and the Father shall:

(i)Do all things necessary to engage and cooperate fully with B Group, the Department of Communities and Justice and any other support services for which the family is referred;

(ii)Do all things necessary to obtain referrals for any support services for the children recommended by the Department of Communities and Justice or B Group and to use their best endeavours to ensure that the children engage with the recommended support services;

(iii)Use all reasonable endeavours to ensure that the children attend school as required, including taking active steps to return a child to school in the event that a child returns to their care before the conclusion of school on a day the child is meant to attend school;

(iv)Do all things to ensure that Z attends childcare or a preschool program from January 2021 for a minimum of two days per week until he commences primary school;

(v)Do all things to ensure that W, X and Y attend on a psychologist pursuant to a GP Mental Health Plan as directed by the relevant psychologist for each child;

(vi)Do all things to ensure that W and X attend a relevant program or clinic or medical professional to address sexual health matters; and

(vii)Do all things to ensure that W and X attend drug and alcohol counselling.

(15)Pursuant to s 65Y of the Family Law Act 1975 (Cth), the Father shall be entitled to remove the children from the Commonwealth of Australia at such times, for such periods and for the purpose of travel to such destinations that the Father may determine from time to time.

(16)Leave is granted to the parties to furnish a copy of the single expert report of Dr C dated 6 January 2020 to any professional engaged to provide a therapeutic service to any party or the children.

(17)Leave is granted to any child welfare officer to provide a copy of the affidavit of Dr C filed 14 January 2020 and a copy of the transcript of her evidence given in these proceedings to any Court of a State or Territory exercising jurisdiction pursuant to a child welfare law of that State of Territory in proceedings relating to the children.

NOTATIONS

The Court notes that:

A. Order 2 above is intended to operate as vesting sole parental responsibility in the Father for the purpose of both the Family Law Act 1975 and s. 11 of the Australian Passports Act 2005.

B. The Mother shall be at liberty to bring a further application to the Court to vary the spend time arrangements for the children upon filing evidence capable of demonstrating that the Mother has taken steps as to significantly address her abuse of alcohol and illicit substances.

C. The Department of Communities and Justice intends to assist the Father to obtain priority social housing.

D. The Department of Communities and Justice intends to make further referrals for support services for the Father and the children should the Brighter Futures Early Intervention program fail to adequately meet their needs.

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 Donnelly & Bryson and Anor 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 CANBERRA

FILE NUMBER: CAC 1351 of 2019

Mr Donnelly

Applicant

And

Ms Bryson

Respondent

And

Department of Communities & Justice

Respondent

REASONS FOR JUDGMENT

Introduction    

1. The parties to this matter are Mr Donnelly, the Applicant Father, and Ms Bryson, the Respondent Mother.  The parties commenced a relationship in or around late 2002.  They separated on a number of occasions prior to their separation on a final basis in or around late April 2019. 

2. There are four children of the relationship, W, born in 2004 (currently aged 16 years), X, born in 2005 (currently aged 14 years), Y, born in 2007 (currently aged 13 years) and Z, born in 2017 (currently aged 2 years) (“the children”).

3. The proceedings concern the parental responsibility and living arrangements for the children, in the context of competing issues as to risk to the children posed by each of the parents.  Those issues of risk span allegations in relation to exposure and subjection to family violence, exposure to and use of illicit substances by the parents and the two older children, exposure to and involvement of the two older children in sexual activity and sexual abuse.  The risk to the children is also one of neglect, stemming in part from issues of parental incapacity in the light of the particular characteristics of the children.

4. Neither parent comes to these proceedings well equipped for the care, welfare and development of the children.

5. Interim orders made on 24 July 2019 provided for W, X and Y to reside with the Father and for Z to continue to reside with the Mother (seeing the Father every Wednesday afternoon).

6. The Department of Communities and Justice (the DCJ) was invited to intervene in the proceedings, noting that each party brought a case alleging that the other parent constitutes a strong risk to the children.  Initially the DCJ declined to intervene.

7. Following the first four days of hearing in February 2020, the DCJ intervened and the proceedings were then adjourned for further hearing.  At that time the parents and the Independent Children’s Lawyer (“the ICL”) agreed on amended interim orders that provided for Y and Z to live with the Father and to spend time with the Mother three times each week.  The time was not permitted to be overnight.  Orders were also made for the parents to engage with DCJ interventions, specifically for the Mother in relation to drugs and alcohol, and for the Father in relation to anger and behaviour management.  Each party was to engage with a psychologist and was subject to various restraints, including from bringing the children into contact with Mr D.  Each was to undertake drug testing.

8. No orders were made in relation to W and X, then aged 15 and 14, there being evidence before the Court suggestive that any orders for W and X would be futile.

9. Further interim orders were made on 4 June 2020, suspending the Mother’s time with the children and listing the matter for further final hearing commencing on 12 October 2020.

10. The trial recommenced on 12 October 2020, and was listed for three days at that time.  At about lunch time on the first of those days the Mother disengaged from the proceedings.  The Mother’s lawyers withdrew from the proceedings and, despite efforts to involve the Mother in the further hearing, this did not occur and the proceedings continued in her absence.

11. By that stage of the proceedings, the Father, DCJ and the ICL were, in large part, agreed as to the appropriate orders to be made which, in general terms, provide for the Father to have sole parental responsibility for the children, for the children to live with him, and for the Mother to have supervised time with the children.   

12. The ICL and the Father, however, sought an amendment to Order 8 concerning the period of time in which the parents would accept the supervision of a delegate of the Secretary.  The DCJ proposed that the Order be for a period of six months from the date of the Orders, whereas the Father and the ICL sought that the period of supervision be for a period of 12 months.

13. Order 3 was not pressed by the Father, DCJ or the ICL, being an order that the Father making all reasonable endeavours to consult with the Mother in respect of long-term decision for the children.

14. In addition, Orders 13 and 14 were not pressed.

15. Prior to her disengagement from the proceedings the Mother had indicated that she sought orders that she have sole parental responsibility, that the youngest children live with her and spend regular time with the Father, and that the oldest two children spend time with the parents in accordance with their wishes.

16. In the light of the risk and neglect issues identified in the first part of the trial, the conduct of the parties and children during the gap between the first and second part of the trial is important to determining the degree to which these issues may be ameliorated, or exacerbated with either parent.

17. The structure of this judgment deals with the evidence advanced at the first and second part of the hearing separately.

18. Although the remaining participating parties in the case agreed to these orders, it remains incumbent upon them to establish that the orders are in each child’s best interests, and the responsibility of the Court to determine the best interests of the children.[1]

    [1]U & U (2002) 211 CLR 238.

Material relied upon

1. The Father relied upon the following affidavits:

   a)Father’s Affidavit filed 12 December 2019;

   b)Father’s Affidavit filed 28 May 2020;

   c)Father’s Affidavit filed 11 September 2020;

   d)Affidavit of Ms BB filed 13 December 2019;

2. The Mother relied upon the following affidavits:

   a)Mother’s Affidavit filed 7 October 2020; and

   b)Mother’s Affidavit filed 17 December 2019.

3. The Department relied upon the following:

   a)The Affidavit of Ms F filed 18 September 2020.

Principles

1. The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.

2. In order to determine what is in a child’s best interests, the Court is required to consider the s 60CC considerations to the extent that they arise in a case. In Phillips & Hansford, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[2]  Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.[3]

   [2]Phillips & Hansford [2019] FamCAFC 165, [43].

   [3] Ibid.

1. The Full Court noted in Jollie & Dysart[4] that:

   What the Act mandates is a “consideration“ — a mental process of analysis — that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child H involved…

   …Yet, neither s 60CC nor any other section or Part of the Act requires a judge’s reasons to deal seriatim with each of the s 60CC considerations. Indeed, doing so can sometimes obfuscate the matters which are judged, properly, to be central to the ultimate determination of a child’s best interests and the orders which best meet them.

   [4]Jollie & Dysart [2014] FamCAFC 149.

2. As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.

3. The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.

4. In Marsden & Winch (No 3) Warnick and Thackray JJ observed in relation to both the interplay between the considerations, that a primary judge is:[5]

   of course obliged to place particular emphasis on the “primary considerations”.  This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.

   [5] Ibid at [78].

5. However they also noted that:

   It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case.  Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions.  That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.[6]

   [6]Marsden & Winch (No 3) (2007) FamCA 1364 at [77].

6. The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright,[7] frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) which concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence. Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No 3), that the Act places focus, not on meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.

   [7]Mazorski v Albright (2007) 37 Fam LR 518.

7. In this case the primary considerations, along with the capacity of each of the parents, the characteristics of each child, and the nature of the relationships with each child were the dominant of the s 60CC considerations. Significant amongst the considerations was the issue of the risk of harm faced by the children, through neglect, exposure to family violence, from abuse, and from deficits in parenting capacity.

8. Consideration of risk of harm forms one of the two primary considerations, s 60CC(2)(b). The consideration is of:

   The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.

9. Section 60CC(2A) directs the Court, in determining the best interests of a child, as follows:

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

10. Of all of the considerations that bear upon a child’s best interests, the statute recognises the relative importance of the protection of children from such harm, and gives emphasis to this as a consideration. 

11. Issues of the consideration of risk arise on the making of assertions or allegations. 

12. The general approach in dealing with allegations is that set out by the Full Court in Sahrawi & Hadrami [2018] FAMCAFC 170 where at [39] Ryan and Aldridge JJ stated as follows:

    It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard.  It is apparent that the mother failed to do so to the satisfaction of the primary judge.  As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.

13. This reflects the approach generally applied in litigation,[8] but is subject, in cases involving assessing whether a child is at unacceptable risk of harm, to the approach taken by the High Court in the seminal case of M v M[9] where it was said:

    But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.  Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression…the court is not enforcing a parental right of custody or right to access.  The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.

    [8] See Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7.

    [9]M v M (1998) 197 CLR 250.

14. Noting that the objective of the judicial process is to make orders that best promote and protect the interests of the child, the High Court went on to observe at [19] that:

    “The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court.  In proceedings under Pt VII …the court is enjoined to “regard the welfare of the child as the paramount consideration”…..The consequence is that the ultimate and paramount issue to be decided in proceedings for the custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.”

15. The consequence of this was said by the Court [21] to justify a deviation from the usual approach in litigation:

    “Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child…the Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”

16. This approach was further explained by the Full Court in Johnson v Page[10]:

    the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.

    [10]Johnson v Page [2007] FamCA 1235.

17. Further, in Johnson v Page, the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, saying:

    No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

    In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.

18. In N & S, Fogarty J observed (as approved in Johnson v Page) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.[11]

    [11]N and S and the Separate Representative (1996) FLC 92-655 (Fogarty J) (‘N & S’).

19. The question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities.  In Johnson v Page the Full Court approved the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:

    4         The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

    5         The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

    6         The onus of proof in reaching that conclusion is the ordinary civil standard.

    7         But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

20. In N & S, consistently with the article quoted above, Fogarty J explained:

    There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.

21. That is, it is the overarching conclusion of unacceptable risk that is to be established on the balance of probabilities.   

22. The approach to assessing such a risk in the absence of positive findings of abuse was addressed in N & S, again as confirmed by Johnson v Page,[12] adopting and expanding upon comments made by the New Zealand Court of Appeal:

    In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:

    “….

    In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.”

    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 the particular case fall, and to explain adequately their findings in this regard.

    [12]Johnson v Page (2007) FamCA 1235.

23. The question remains whether, on the evidence as a whole, there is an unacceptable risk, a question that incorporates both the risk of an event occurring, and the risk of harm associated with such an occurrence.  That analysis involves an examination of the factual matters put forward as it bears upon those questions.

The initial part of the final hearing

1. The evidence in the initial part of the final hearing focussed upon issues of violence, drug use and parental incapacity.  It was ultimately uncontroversial that each of the parents has abused illicit substances, and has engaged in violence toward the other.  It was also uncontroversial that W and X have also used illicit substances and are each sexually active. 

2. However, there was significant dispute as to the degree of violence, particularly by the Father upon the Mother, and as to the currency of drug and alcohol abuse.

3. In assessing the evidence of the parties, it is important to note that neither party could be considered to be a generally reliable witness.  It was also apparent that neither party had a firm grasp on the timing of even significant events that they gave evidence in relation to.

4. The potential unreliability of the Father as a witness was made apparent in his evidence about drug and alcohol abuse.

5. In his primary trial affidavit the Father accepted that he had used methamphetamine.  In his oral evidence, he said that the most recent occasion was February or March 2019.  His use had not been disclosed in his previous two affidavits and he accepted that he had misled the Court about the true situation in relation to his drug use.  He further accepted in his oral evidence that he had come clean about his drug use as he had been caught out by the hair follicle testing that he had undertaken.  He accepted that he had not told the truth previously in relation to drug use[13], partly out of the fear that it would result in the children being removed from him.

   [13] Father’s affidavit filed 12 December 2019, paragraph 170.

6. The Father denied that he presently uses methamphetamines and asserted that he is willing to continue undergoing supervised urinalysis screens and a further hair follicle test to evidence this.[14]

   [14] Father’s affidavit filed 12 December 2019, paragraph 174.

7. The progression of evidence given by the Father in relation to his drug use, his frankly misleading evidence to the Court, his explanation that he was motivated by the potential impact that truthful evidence may have on his case, and his concession that it was the hair follicle testing that caused him to amend his evidence, impact upon an assessment of his credibility, both in relation to drug use and his reliability more generally.

8. The potential unreliability of the Mother was indicated by the conflicts between her accounts to the Court and to third parties in relation to various incidents.  A key example, set out in some detail later in the judgment, is the progression of the Mother’s allegation of violence against the Father in January 2020.  As with the Father, there is good reason to exercise caution in relation to the Mother’s evidence.

Violence

1. Much of the Mother’s material was directed to allegations of violence against the Father.

2. It was uncontroversial that the Father served a period of imprisonment in about 2004 for stabbing a man in the head in relation to an altercation about the Mother.  This was an incident that had occurred in the presence of the Mother, presumably leaving her in little doubt as to the Father’s capacity to engage in serious violence.

3. On the first day of the proceedings the Mother was asked to set out the factual findings that she pursues in relation to acts of family violence perpetrated by the Father.  Although the Mother set out, in her material, a significant number of allegations of violence, the Mother then identified five instances of family violence that she says should be found by the Court (in identifying those matters the Mother specifically stated that her case is not one of the Father presenting an unacceptable risk of harm to the children):

   a)that in 2010 the Father committed an act of family violence by hitting the Mother to her face and then dragging her by her hair (the 2010 incident).  Although in her affidavit evidence the Mother alleged that the father had subsequently sexually assaulted her, she stated that she sought no positive finding that such sexual abuse had occurred;

   b)that in 2012 the Father committed an act of family violence by pushing the Mother down stairs, causing her to fall, strike her head and sustain a head injury (the head injury incident);

   c)that in 2012, and in relation to the preceding event, the Father sought to hinder the Mother reporting the matter to the police (the police station incident);

   d)that in 2018 the Father struck X to the side of his head (the striking X incident); and

   e)that the Father frequently drives past the Mother’s residence (the intimidating behaviour allegation).

4. The Father also made allegations of violence against the Mother, most significantly concerning an incident in January 2020.

5. Counsel for the Father in the Case Outline alleges that the Mother’s allegations of family violence against the Father cannot be made out on balance given that, inter alia, they are vague, inconsistent with her professions of love over a significant period of time and inconsistent with her own physical assaults.

6. Without suggesting counsel was submitting otherwise, although such may undermine a claim of family violence, they do not necessarily do so.  Whether they do depends on the circumstances of the individual case.  It should not be assumed that a victim of family violence will act in accordance with a paradigm in which they will not retaliate, or that they will not have mixed emotions regarding a perpetrator, or that they will persistently desire the end of the relationship.

7. It should also be recognised that, whether by virtue of trauma or a sheer volume of incidents, a victim of family violence may lack precision in describing the family violence.  Hence it should not be assumed that vagueness, violence, or a desire to maintain a relationship by a person who claims to be the subject of family violence necessarily negates such claims.  At the same time, such matters are still to be considered to evaluate whether in an individual case they do undermine such claims.

The 2010 incident

1. The Mother sets out this incident at [37] of her primary trial affidavit as follows:

   “On one occasion I do not recall exactly, however believe it could have been about the end of 2004 when W may have been about six months old. I left W with my mother and was visiting a neighbour about five or six units from my mother's unit. Mr Donnelly came to the unit he was yelling things at me such as ''you filthy fucking slut." "You dirty filthy slut." "Your fucking two other cunts." He then grabbed me and ripped my clothes off me. I was naked. He commenced punching me and grabbed me by my hair, dragged me by my hair to my mother's unit. While he was dragging me along the cement and gravel, I could feel the pain from cuts and grazes the dragging was causing. Mr Donnelly continued yelling at me and punching me, he was kicking me in the head and other areas of my body, while he was dragging me. I was screaming in pain.

   (a)When we got to the stairs leading to my mother's unit, he kicked me again and then picked me up and carried me into my mother's unit.

   (b)When we got into the unit Mr Donnelly threw me onto the mattress that was on the floor. I could not see my mother or W. I was scared and was silent I laid still. Mr Donnelly commenced raping me, and while he was raping me, he was making repetitive comments to me such as “You filthy slut”, “You dirty slut”; “You like being fucked like this don’t you, you whore.” I believe my mother and W were in my mother’s unit and heard what was happening.

   (c)I don’t know who called the police. Police came and I think Mr Donnelly was charged.”[15]

   [15] Mother’s Affidavit filed 17 December 2019, paragraph 37.

2. The Mother alleges that the incident took place in 2004 (although she does not recall exactly).  The Father was cross-examined on the basis that it was in 2010.

3. The Father subsequently pleaded guilty to criminal charges involving this conduct.  He says that he was convicted, although it is not clear of precisely what, and placed on a three month bond, with a fine.   

4. The Father accepted in his affidavit evidence at [150], and also under cross-examination, that an incident occurred in which he assaulted the Mother by striking her to the head and dragging her by her hair. 

5. In his affidavit at [251] he disputes that he assaulted the Mother in the manner that she describes, and specifically disputes sexually assaulting the Mother, noting that no such allegation was made to the police, and that the Mother’s mother was supposedly close by when he was alleged to have sexually assaulted the Mother. 

6. As noted above, the Mother does not seek a finding that a sexual assault took place.

7. The Father also described the assault to the Single Expert, saying it was the single incident of violence by him in the relationship. 

8. He said that the Mother had gone for a drink with two neighbours, while he had taken the children to her mother’s house.  In his oral evidence he said that the Mother had been intoxicated, and that he was concerned that she had not returned.  To the Single Expert he described that he looked through the window of the residence that the Mother was attending, seeing her lying on the floor naked. 

9. In his oral evidence he described that she was not moving, but that a man was having sex with her, he thought, while she was unconscious.  He thought that she was being taken advantage of.  He said that he observed another man standing nearby rubbing his crotch.  The Father said that he burst in to attack the men, but that the Mother had stood up and said to him “it isn’t what it looks like”.  He said that he hit her and dragged her to her mother’s house.  The Father described to the Single Expert that he was ashamed, and the Single Expert thought that he appeared distressed when he talked about the incident. 

10. The Mother described the incident to the Single Expert at [29], denying the scenario put by the Father, saying that she was having a drink with a friend, that the Father burst in, ripped off her clothes, dragged her along the cement past to her mother’s steps, threw her onto a mattress and raped her.  She attributed the attack to the Father’s jealousy.

11. In her oral evidence, under cross-examination, the Mother again denied that she had been engaging in sexual intercourse as asserted by the Father.  She described that she had been at a neighbour’s unit, 5 or 6 units from her mother.  She said that she had been there with two neighbours.  She said that the Father had kicked “the shit” out of her because he had thought that she was having sex with two men.  She alleged that he had ripped her clothes off, then dragged her by the hair, screaming, to her mother’s apartment and then raped her.  She alleged that her mother and W were able to hear that taking place.

12. The Father said under cross-examination that he was unsure how many times he struck her but accepts maybe once to the face.  He accepted that he dragged the Mother by the hair through a complex of apartments, for a distance of about six apartments.  Given he had found her naked, this was done to the Mother whilst naked.  He accepted that at times she was dragged along on her feet, and at times on the ground.  He accepted that the acts were horrific.

13. He asserted that his “actions were inappropriate, and that violence is never acceptable.”

14. Even relying solely on the Father’s account, this constituted a serious, demeaning and horrific act of family violence upon the Mother.

15. The Father described his personal state when committing the violence upon the Mother.  He described commencing in a heightened state when he thought that the Mother was being sexually assaulted.  He says that he entered the apartment, notwithstanding that he was outnumbered, to fight the men who were, he thought, attacking the Mother.  He described that everything around him had gone “fuzzy” when he went in to attack the man who was having sex with the Mother.  He said that he was in “crazy mode.”

16. The Father identified this incident, and his response to the incident as being important factors in assessing whether he would engage in further violence toward the Mother. 

17. The Father said that he had never thought that he was capable of such conduct, but recognised, through the incident that he was capable of such acts.

18. He described that he was arrested by the police a number of days after the incident, following the Mother making a report to the police.  At the time of his arrest he was looking after the children.  He explained that, on arrest, he thought that he had lost his children, a matter that impacted upon him heavily.  He spoke to changes in his attitude following the offence, in particular changes in attitude to the Mother “cheating” on him.  He asserted that was no longer a matter that affected him, describing a relatively recent instance of discovering such.

19. In what, by any account, was a bizarre incident, I do not accept that the Father’s assault of the Mother extended into a sexual assault.  It was not reported to the police (although this does not necessarily mean that it did not occur, noting that victims of sexual violence may not report such to authorities for a number of reasons). 

20. More importantly, the allegation that the sexual assault was done in her mother’s home and in the hearing of her mother is improbable.  It should also be noted that her mother was not called in the proceedings to give evidence.  Although the Mother asserted that this was because her mother was unwell, there was little support for this assertion, and her mother was otherwise involved in the proceedings to the extent that she was in contact with the DCJ and the ICL in relation to the Mother during the second part of the trial.  Her absence points to a conclusion that her evidence would not have been supportive of the Mother’s allegation as to the sexual assault.

21. Further, I accept the Father’s account of how and why he engaged in conduct that he now describes as unacceptable.  His description of his heightened and uncontrolled emotional state, and the precursors to that, make sense of an otherwise difficult to comprehend situation.

The head injury incident

1. At [42] of her affidavit the Mother sets out this incident.  She says that she attended at the Father’s home in the company of Mr D.  She alleges that she knocked on the door, then she and the Father spoke of something, although she does not recall what.  She says that the Father pushed her.  Exhibit M6 places the incident at 12 July 2012. 

2. The Mother said in her affidavit that she has a “poor memory, as a consequence of being pushed and landing on my head” and described the Father as the person who pushed her.[16] 

   [16] Mother’s affidavit filed 17 December 2019, paragraph 33.

3. Under cross-examination the Mother accepted that she had been told of the incident by Mr D, before asserting firstly that she remembered “a bit” and then that she remembered “most.”  The Mother’s changing descriptions of how much she remembered point to the need for caution in relation to her testimony.

4. The Mother said that Mr D had recounted to her that he picked her up from the footpath.  Mr D then took the Mother to hospital.  She had blood through her hair, neck and face with a cut the back of her head, from where her head had struck the ground (apparently).  The Mother said that a Doctor said to them that if there was a pebble where her head hit the path that she could be dead.

5. The Father describes this incident at [253] and following of his affidavit.  He places the incident in 2014 (although this conflicts with the report to the police by the mother in August 2012) and alleges that the Mother, highly intoxicated, attended his home while the children were asleep in bed and attempted to force her way into the home.  He says that she attended with a woman named Ms J.  He says that he restrained her from entering into the home by lightly pushing her away.

6. The Father describes that the Mother stumbled backwards and fell to the ground, striking her head, causing it to bleed.  He asserts that he then cared for her for two days at his home while she sobered up, and to ensure that she was all right.  He disputes the attendance of Mr D at that time.

7. In her oral evidence the Mother gave strongly divergent accounts in relation to this incident.  She initially asserted that she had been cared for by her mother immediately following this incident prior to being taken to hospital some days later.  A short time later, when revisiting the incident, she gave evidence that she was looked after for a number of days by the Father alone, before attending at the hospital.  The Mother left the distinct impression that she had no idea what had occurred.

8. It may be concluded that an incident occurred, resulting in the Mother striking her head on the ground.  It may also be taken that the precursor to this was the Father’s application of force to the Mother.  The Mother’s evidence is unable to establish matters beyond this.  She has little, if any direct recollection or knowledge of the incident.  Her accounts were variable and appear heavily reliant on what other persons, who may or may not have even been present told her about the incident.  Her primary reliance for information about the event was upon Mr D, a man that she now says has sexually dealt with W, and who she now says is untrustworthy.

9. The Mother’s unsupported assertions should not be accepted.  The Father’s account should be accepted, even with the general reservations as to his credibility.  On his account, the restraint of the Mother, intoxicated, from entry into his home, by the minor application of force should not be determined to either be an assault at law, nor an instance of family violence as defined by the Act.  While it had a role in the causation of injury of some form to the Mother’s head, the context does not lead to a conclusion that the restraint of the Mother from entry into the Father’s home was, in this case, violent behaviour that coerces, controls or caused the Mother at the time to be fearful.

10. There is also reasonable scope for it to be argued that the concept of “violent” must be understood in the context of the general law as to the lawful application of force.  In this case it was not established to be an application of force that was prohibited by law.  It is not necessary to conclusively determine this point, however.

The police station incident

1. Exhibit M6 is a police incident report, relating to an attendance by the Mother upon the police on 22 August 2012, in relation to the above incident.  The Mother had been advised by the police to collect the children from school, at a time when the Father was due to collect the children from school.  The Mother had returned to the police station with the children and given a statement in relation to the head injury incident.

2. The incident report then describes:

   during the time that the police were obtaining the victim’s statement the accused (the father) attended Town E police station and attempted to gain entry into the interview room where the victim and Y were with police.  The accused appeared aggressive and were forced to use force to close the door as the accused attempted to force entry into the mentioned room.  Police directed the accused to leave the station as he would not be allowed access to the children at this time.  The accused then left the station….  About 4 PM the accused into the police station once again. 

3. The Father was then recorded to have given an account that conflicted with the Mother’s account.  He was not charged.

4. The Father explained under cross examination that he had attended the police station, without knowing that the Mother was there with the children, as the Mother had removed the children from his care.  He asserted that when he attended at the police station he went to the room because he could see Y waving to him.  He accepted that he had initially attempted to force the door open, until the police came out.

5. The Father accepted that he returned to the police station later that day, but asserts that was because he was arrested.

6. The police record is a hearsay statement, depriving it of some probative force.  It is unclear what the content of the Father’s behaviour was on the police account, other than it exhibited aggression.

7. I am unable to conclude that the Father’s attendance at the police station was directed to preventing the Mother from making a complaint about him.

The striking X incident

1. The Mother says that in about February 2019 X “wagged” school and the Father went looking for him.  The Mother said that she heard something happening outside her house and that the Father flung open her door and was “holding X at the back of his neck with one hand”.[17]  The Mother said that X seemed to be in pain and the Father pushed him forward with some force.  The Mother said X then ran to his room and later informed the Mother that when the Father found him, he grabbed X by his neck, squeezing him so that he had difficulty breathing and forcing him to his knees.[18]

   [17] Mother’s Affidavit filed 17 December 2019, paragraph 44.

   [18] Mother’s Affidavit filed 17 December 2019, paragraph 44.

2. The Father agrees that an incident occurred around February 2019.  He says that X had been wagging school and acting disrespectfully towards the Mother.  He says that the Mother asked him to do something about this.  He says that he took X by the arm and “tapped X to the side of his head to teach a lesson.”  He denied doing this with any strong force.  He said that he did so to teach X a lesson about going to school.

3. The Mother’s evidence is not sufficient to establish that the interaction with X happened in the manner she describes.

The allegation of intimidation

1. While the Father denies driving by the Mother’s home a few times each week, the Father accepts that he is regularly in close proximity to the Mother’s home.  He explained that this because he would collect or drop children off one or two houses down the street from the Mother.

2. While the Mother also attributed responsibility to the Father for the attendance of a number of men at her home, who she described as pouring petrol on the home, if such occurred responsibility should not be attributed to the Father.  As identified by counsel for the Father, the Mother has been engaged in illicit drug use, an activity notorious for attracting the involvement of violent people, and for violence to be directed toward users and dealers of illicit substances.

3. If the event occurred as described by the Mother, it cannot be necessarily inferred that it was an event procured by the Father.

Other violence

1. The Mother assaulted the Father at a handover on 13 January 2020.  She received a criminal conviction in respect of this assault.

2. Ms K was a case manager for B Group who was working with the Mother.  Her role was funded by the DCJ, with an objective to avoid out of home placement for the children and to keep them at home in a safe and nurturing environment.  The role was for a period of six months.

3. Ms K had attended at the Mother’s home on the day, waking her for the handover of the children.

4. The Mother claimed to her that after she had been drinking with her neighbours the previous evening, and had an altercation with a neighbour for hitting X, the Father had collected the children and punched the Mother, pushing her to the gutter.  She had also said that she had fallen down the stairs, become unconscious and an ambulance had attended.  The Mother appeared to be intoxicated and told Ms K that she was going to kill herself and the Father, who was “nothing but a fucking dog.”

5. The police report records the incident at the L Supermarket in the following manner (Exhibit F1, p.5-6):

   The defendant ran straight up to the PINOP and began verbally abusing the PINOP. 

   The defendant said, “You’re fucked, now you have fucked both of us, now no one is going to get the kids. I hope you know once this goes to court it’s going to be on like ding ding ding”. 

   The defendant took their two year old child out of the PINOP’s arms and passed it M whom she had only just met today.

   The defendant shaped up to the PINOP placing her hands in front of her face in a boxing stance before lunging at the PINOP and punching him up to four times connecting with his chest and stomach. This did not cause the PINOP much pain and on a scale of 1 to 10 placed the pain at low level 3. 

   The defendant continued to yell at the PINOP and verbally abuse him all while continually taking the two year old child Z off M and then handing him back to abuse the PINOP more. The defendant pushed the PINOP in the chest a number of times which was all witnessed by B Group staff, their three children, staff at the L Supermarket and captured on CCTV. 

   Eventually after seven or eight minutes the defendant was coerced to leave with N and the two eldest children while the PINOP and M took Z back to the defendant residence. 

6. Ms K was present when the Mother assaulted the Father.  Ms K reported that the Father remained calm in the face of the attack by the Mother, who called him a “fucking dog” and a “fucking cunt” in the presence of Y and W.  She said that the Mother had taken hold of Z as she physically attacked the Father.  She described Z as very distressed. 

7. The Mother sought to explain her assault of the Father on the basis that he had assaulted her the previous day.  The Mother said that she was reliant on information from X as to the assault.

8. The Mother’s assertions in relation to the alleged incident the previous day were confused and inconsistent.  She had claimed at the time to attending ambulance officers that her injury had been caused by falling down the steps of her home, the fall being caused by stepping onto the children’s balls.  It appears that the Mother first made the allegation regarding the Father’s involvement when the police told her that they would not be bringing the children back to the Mother.

9. The Mother claimed that the incident would be recorded on her CCTV camera, but then asserted that she could not produce it due to lack of a password.

1. It should not be accepted that the Father assaulted the Mother the previous night.  It should be concluded that the Mother assaulted the Father outside the L Supermarket, and did so in the immediate presence of the children.

Drug and alcohol abuse by the Father

1. Although the Mother described that the Father had been an alcoholic, she was not, at the time of the hearing concerned that he was drinking alcohol to excess regularly.

The children and sexual issues

1. There are allegations that the three eldest children W, X and Y, have engaged in sexual activity.

Allegations concerning W

1. The Father was cross-examined about an incident occurring in 2009 or 2010, where the Mother describes that a friend of a friend was attending the Father’s home, and that she caught that person entering W’s room with his pants down.  The question arose as to whether or not the person had simply turned into the wrong room when going to the toilet.  The Father said that when he saw him his pants were not around his ankles.  Nonetheless he asked the man to leave the house and remain at the car outside the house until the other persons at the house were ready to leave.

2. There is no suggestion of actual physical or sexual contact between the man and W.

3. This incident is not suggestive that either parent behaved in a manner that placed W at risk.  The parents together behaved in a manner protective of W.

4. A second incident arises from mid 2019.  Exhibit M2 is a Family and Community Services record from 14 June 2019.  It is heavily redacted.  It records W was then living with her Father, but having attended a friend’s home for a sleepover.  At that home it was suggested that W engage in a threesome.  It was asserted that photographs were then circulated of W kissing another girl aged approximately 16.  It was unclear what sexual activity may have been engaged in.  The witness to the activity was not identified.

5. The Father accepted that such an event occurred when W was living with him.  He says that he spoke to W about how he felt about the incident, saying words to the effect that it was not “how you do things sweetie.”  The incident itself did not point to any inadequacy in the parenting of either the Father or the Mother, other than in terms of a limited response to the incident.

6. A third incident arises from August 2019.  Exhibit M3 is a Family and Community Services record from 8 August 2019.  It reported that W had reported performing oral sex upon an adult male in his 40s, and had reported that the adult male had performed oral sex upon her.  She did not want to get the adult male into trouble.

7. This incident is highly troubling.  It identifies W as vulnerable to, and as having suffered sexual abuse at the hands of an adult male.  At the time of the incident W was aged fifteen.  The actions of the adult male form, at face value, a serious criminal offence, W being unable, as a matter of law, to consent to such activity.

8. Not enough has been identified of this incident to indicate whether it is directly connected to the conduct of either parent.  However, the matters identified by the Single Expert point to circumstances arising from the parenting and limitations of the parents ripe for W to be preyed upon in such a manner.

9. Both parents were apparently troubled by this incident.

10. The Father said that he had also spoken to W about this incident.  He said that he knew who the adult was.  The Mother regarded it as abnormal, but commented to the Single Expert that it was normal (presumably for someone W’s age) to sleep with boys her own age.  She then qualified that W should not be engaging in sex at all.

11. On 11 August 2019 W alleged to a departmental worker that Mr D had rubbed up her leg, towards her upper thigh.  She reported that he was coming into her bedroom, making her feel uncomfortable.  The Mother told departmental workers that she had stopped seeing Mr D after this.[19]

    [19] Exhibit S1.

12. On 2 March 2020 W told a departmental worker that the Mother was encouraging W to sleep with a twenty-five year old male, the Mother having slept with the male’s father.[20]

    [20] Exhibit S1.

13. Ms K, in her oral evidence said that W had reported to her that she had been having sex in the Mother’s home, while the Mother was home.  The Mother said that this was a lie on W’s part.

14. Ms K reported that the older children had told her of visitors to the Mother’s home, of violence including the Mother and her neighbours fighting, alcohol consumption and the Mother engaging in sexual intercourse frequently with people in the house.  W told Ms K that she had been having sexual intercourse in the Mother’s home both while the Mother was in the home and out of the home.  The Mother denied this.  At the time W must have been aged under sixteen.

15. W reported to B Group that the Mother used sex for drugs.

16. The Mother agreed that, when W stayed in a caravan at the Mother’s home, boys were jumping the back fence and coming to the caravan.  The Mother asserted that she kicked them out, and that she had recently installed a CCTV.  The Mother said that W stayed in the caravan, rather than inside the house, because W likes being out there and because the Mother did not get to see Y often.

17. The Father said that on 16 March 2020 he facilitated W attending on a general practitioner to arrange contraception, to complete a sexual health test, and to arrange for a mental health plan.

18. On 30 March 2020, W claimed to the Father that she had engaged in unprotected sex at the Mother’s home that week.

19. The Father said that W was not permitted to have sex at his home.

20. The Father alleges that W told him on 27 February 2020 that the Mother would purchase bud (marijuana) for her.

21. On 1 April 2020 W attended upon Headspace Region H for drug and alcohol counselling.  The Father says that on 18 April 2020 W and Y attended a counsellor as part of the mental health plan.

22. On 14 May 2020 Y and W attended a psychologist via zoom as part of the mental health plan.

23. On 18 May 2020 W told the Father that she had unprotected sex again at the Mother’s home.

24. It may be accepted that W has become sexually active, with there being little restraint on such behaviour when at the Mother’s home.  W’s sexual activity has been unprotected and has involved at least one adult male.

25. While neither parent appears to be well equipped to deal with the issue, the Mother’s house is a venue that facilitates W’s engagement in sexual activity.

Allegations concerning X

1. Exhibit M5 is a Family and Community Services record from 21 August 2019.  This records that X, then aged 14, had reported that he had engaged in sexual intercourse.  He had previously reported as at 15 August 2019 not having engaged in intercourse but during a further interview on 20 August 2019 indicated that he had, and had done so without a condom.

2. Under cross-examination the Father indicated that he was aware that X had become sexually active, but thought that he had done so as young as 13 years old.  He indicated that he understood that that was with a young woman called W (not the sister), and that he had become aware that X had also been sexually active with a young woman called O.  It appeared that X’s sexual activity had occurred with someone frequently in the Mother’s home.

3. The Father also alleged that W told him on 15 March 2020 that the Mother had offered for her friend Ms P to sleep with X for fifty dollars, to fund the purchase of a slab of beer.

4. It may be accepted that X has become sexually active.

Allegations concerning Y

1. Exhibit M4 is a Family and Community Services record from 3 November 2015, concerning Y.  It is reported that Y had sucked the penis of another person.  It was alleged that the Father had witnessed it and laughed.  The identity of the reporter was redacted. 

2. The Father denied any such incident.  He denied ever having seen Y perform such an act.

3. In a circumstance where such information is redacted it is impossible to assign probative weight to either the assertion in relation to Y, or the assertion in relation to the Father.  In the face of the Father’s denial the allegation should not be accepted.

4. On 6 March 2020, the Father says that he facilitated Y obtaining a mental health plan.

Other matters

1. Regarding a period in 2019 where W was cutting herself and expressed a wish to kill herself, the Mother said that she took W to the hospital when she attempted suicide.[21]  The Mother said that she has not organised ongoing counselling for W.[22]  The Mother said that she took the children to get mental health help but could not do so because the Court proceedings had been going on for 9 months.[23]  She said that when this was all over that she would get all of the kids help.[24]

   [21] Cross-examination day 2, 11 February 2020.

   [22] Cross-examination day 2, 11 February 2020.

   [23] Cross-examination day 2, 11 February 2020.

   [24] Cross-examination day 2, 11 February 2020.

2. The Father was cross-examined as to his attitude in respect of W wearing revealing clothing.  His evidence was that he did not permit it to occur in his home.  It was suggested that he had asserted that if she was raped it would be her fault because the manner of dress.  He denied saying that to W.  When challenged as to whether his view was that she could be responsible for a sexual attack on herself, he explained that he did not think that way, but that he also recognised how society behaves.

Drugs and alcohol

1. Each of the parties raise the issue of the other’s drug use, and of the other parent’s exposure of the children to illicit drugs.

2. The Father accepts that W and X have both seen both of the parents consuming marijuana.  He says that both W and X have also used marijuana.

3. The Father alleges long standing drug use on the part of the Mother, and accepts that he used methamphetamines with the Mother in about March 2019.

4. Although the Mother says that the Father was an alcoholic, she said that she was not currently concerned that he consumed alcohol to excess.

5. The Father alleges that the Mother facilitates and or tolerates W and X using drugs in her home.  He alleges that W told him on 19 July 2019 that she had seen methamphetamines at the Mother’s home, and that the Mother had offered them to both W and X.[25]  He accepted, however, that W does not always tell the truth.

   [25] Father’s affidavit filed 12 December 2019, paragraph 49f.

6. The Father annexes stills from a video sent to him by W on 12 August 2019, showing W with a methamphetamine pipe.  He asserts that the pipe belongs to the Mother.

7. The Father alleges having seen a bong in the caravan that W occupies in the Mother’s home.  Apart from that he says that he has not seen other drugs, apart from alcohol.

8. The Mother produced, at exhibit M1, notification of and drug test results.  A sample taken from her on 24 January 2020 was tested for amphetamine, methamphetamine, ecstasy (MDMA), MDA, cocaine/metabolites, codeine, morphine, heroin metabolite, phencyclidine (PCP), THC metabolite (marijuana).  The test results were negative, indicating that none were detected at a concentration equal to or greater than their listed cut-off levels.

9. The Father alleged that the Mother had gamed the hair follicle test, reporting a conversation whereby the Mother had asserted the use of a product on her hair to neutralise the testing.[26] The Father was not challenged in cross-examination about this.

   [26] Father’s affidavit filed 12 December 2019, paragraph 184f.

10. The Mother was, notwithstanding Exhibit M1, challenged in relation to her drug use.

11. In her affidavit the Mother admitted that she had developed a benzodiapine dependence as a child and has been working with her Doctor to reduce her dependence.[27]  This accorded with her evidence during cross-examination that she has continued to take benzodiapines consistently since the age of 12 to help manage her mood.[28] 

    [27] Mother’s affidavit filed 17 December 2019, paragraph 54.

    [28] Cross-examination day 2, 11 February 2020.

12. The Mother said that she has been mixing benzodiazepines and alcohol in her system.[29]  She said that she has up to 6 drinks a day sometimes, later saying that she drinks a $10 6 pack every day with the occasional day off.[30]  In cross-examination the Mother accepted that she has a problem with alcohol and that she is seeking help.[31] 

    [29] Cross-examination day 2, 11 February 2020.

    [30] Cross-examination day 2, 11 February 2020.

    [31] Cross-examination day 2, 11 February 2020.

13. She stated that she had first tried drugs with a boyfriend in 2001 and used speed with him on no more than four occasions during the 12 months she was with him.[32]  The Mother stated during cross-examination that she has mixed speed, ice and marijuana respectively with benzodiazepines.[33]  The Mother stated that she has smoked ice mixed with benzodiazepines socially “once in a blue moon” at a friend’s house.[34]  The Mother accepted that her affidavit saying that she had only used ice with the Father was wrong.[35]  The Mother then said that she did a point and a half of ice twice a month which would affect her for two days and cost about $100.

    [32] Mother’s affidavit filed 17 December 2019, paragraph 55.

    [33] Mother’s affidavit filed 17 December 2019, paragraph 55.

    [34] Cross-examination day 2, 11 February 2020.

    [35] Cross-examination day 2, 11 February 2020.

14. She acknowledged associated risks to the children including that the mixture changes her, keeps her awake with racing thoughts, stops her from eating and said that she should never have done it.[36]  She described the effects as lasting for some time but said that she would always organise for the children to stay at her mother’s house for a few nights while the Mother had a sleep and got better.[37]   She accepted that she would put the clothes she had taken to her friend’s house in the laundry when she got home and that there was a possibility that the children had exposure to ice when she returned.[38]

    [36] Cross-examination day 2, 11 February 2020.

    [37] Cross-examination day 2, 11 February 2020.

    [38] Cross-examination day 2, 11 February 2020.

15. In cross-examination the Mother said that she could not remember stating that she had been off her medication for about a month.

16. The Mother also said that she had ceased drinking alcohol for 5 days before the commencement of the trial in February 2020.

17. The Mother said in cross-examination that she knew that she had an alcohol issue but had not told the Court because she did not want the Court to think that she was a bad mother.[39]  She accepted that her earlier statement to the Family Consultant that drinking does not impact her ability to parent may not be accurate, and that it would have an impact on the money that could go towards the children and her health.[40]

    [39] Cross-examination day 2, 11 February 2020.

    [40] Cross-examination day 2, 11 February 2020.

18. Also in re-examination when the Mother denied having sex for drugs, she emphatically said that she was not on drugs.  In cross-examination the Mother denied that she had organised to receive drugs in June 2019 and stated that she has not taken drugs in a long time.[41]  She later said in cross-examination that she had used meth a long time ago, but also that she was not sure if she had used it when the proceedings commenced.[42]

    [41] Cross-examination day 2, 11 February 2020.

    [42] Cross-examination day 3, 12 February 2020.

19. The Mother’s affidavit stated that she has used marijuana when she was really stressed but that she no longer uses marijuana.[43]  The Mother’s affidavit described having one or two puffs of a joint at a time and that she may use a total of two joints over the course of a bad day.  The Mother said that there have been periods where she has not used any marijuana or other drugs for up to 12 to 18 months.[44]  Regarding the drug ice, the Mother’s affidavit said that she has used ice and that on each occasion it was with the Father.[45]

    [43] Mother’s affidavit filed 17 December 2019, paragraph 56.

    [44] Mother’s affidavit filed 17 December 2019, paragraph 56.

    [45] Mother’s affidavit filed 17 December 2019, paragraph 57.

20. The Mother conceded that, although in her affidavit she claimed that she had only ever consumed ice with the Father, she had in fact consumed it also with another person, who she said had since moved to Melbourne.

21. The Single Expert stated that the Mother has admitted to using ice twice per month.[46]

    [46] Cross-examination of Single Expert 13 February.

22. The Mother denied in her affidavit and in cross-examination that she had ever given any drugs to the children.[47]

    [47] Mother’s affidavit filed 17 December 2019, paragraph 64.

23. However, it appeared that on 6 June 2019 the Mother sent this message to the Father:

    She asked me to get it for her. Her and Ms Q. It’s not what I – I’m not what you think I am, baby. I’m really not

24. The implication was that this was suggestive of drug supply.  The Mother denied that it was and denied sending it.  It is not clear what the reference is to and, in particular, whether it is a reference to illicit drug supply.

25. The Mother’s affidavit said that X had told her that he has tried ice and that he smokes marijuana.  She recounted an occasion in November 2019 where she woke to find X and a friend sitting on the door step smoking marijuana and that she gave them a “stern talking to about bringing drugs home and putting everyone at risk”.[48] This accorded with the Mother’s evidence during cross-examination about finding him smoking marijuana on the step, that he does not smoke marijuana at home but comes home “stoned”, and that she tells him not to bring it to the house.[49]  The Mother said that she has spoken to X before about not taking illicit drugs.[50]

    [48] Mother’s affidavit filed 17 December 2019, paragraph 65(a).

    [49] Cross-examination day 2, 11 February 2020; re-examination day 4, 13 February 2020.

    [50] Cross-examination day 2, 11 February 2020.

26. The Mother said that X has used methamphetamine, and that he smokes marijuana.  She said that the marijuana calms him down.  She accepted that he had been smoking marijuana at the Mother’s home.

27. The Mother said that she is aware that W has used drugs but denied giving her any.[51]  She agreed in cross-examination that W’s drug-taking behaviour is extreme.[52]  She also said that W told her that she is using meth.[53]  When asked whether W is allowed to do more things at the Mother’s house (than the Father’s) the Mother said that she does not lock W up.[54] 

    [51] Mother’s affidavit filed 17 December 2019, paragraph 66.

    [52] Cross-examination day 2, 11 February 2020.

    [53] Cross-examination day 2, 11 February 2020.

    [54] Cross-examination day 2, 11 February 2020.

28. The Mother said that she had not organised any drug counselling for X or W, contacted the school to ask what they could do or spoken to B Group about the issue.[55]  Specifically the Mother said that she could not drag X by the hair to such initiatives because he will not comply.[56] 

    [55] Cross-examination day 2, 11 February 2020

    [56] Cross-examination day 2, 11 February 2020

29. The Mother’s affidavit stated that she believed that the Father had also used cocaine.[57]

    [57] Mother’s affidavit filed 17 December 2019, paragraph 62.

30. The Mother recounted an incident where the Father told her that he was trying to get the speed out of dexamphetamine that he was prescribed by a psychiatrist he was attending.[58]

    [58] Mother’s affidavit filed 17 December 2019, paragraph 63(b)(i).

31. Regarding her mental health, the Mother said that she has been attending self-regulation classes with the E Region Women’s Centre and has been learning some techniques such as breathing (but that these techniques were not helpful during the January 2020 incident).[59]

    [59] Cross-examination day 2, 11 February 2020.

Family Report / Single Expert

1. Dr C, a clinical and forensic psychologist, was the Single Expert (the Expert).  She gave her evidence prior to the DCJ joining the proceedings.  She held a poor view as to the prospects for each of the four children, either in the care of the parents, or in the care of the DCJ.  She described these two options as a choice between the devil and the deep blue sea.

1. On 15 September 2020, Ms F received a letter of support for the Father from case manager from the Brighter Futures program.  This letter outlined that the Father was actively engaged with the Brighter Futures program, which he had entered on 7 May 2020 and he had successfully completed three parenting programs and was currently engaged in the SafeCare Parenting Program.  The letter also reported that the Father had applied for a four-bedroom house through NSW Housing and is “a pleasure to deal with” and is “warm, open and honest in his engagement with the Brighter Futures program”.[87]

   [87] Ms F’s affidavit filed 18 September 2020, paragraph 109.

2. By 16 September 2020, the Father had completed or nearly completed all actions set out in the Family Action Plan for Change.[88]

   [88]Ms F’s affidavit filed 18 September 2020, paragraph 110

3. The Father has agreed to arrange appointments as advised by Ms F and organised counselling for W.[89]

   [89]Ms F’s affidavit filed 18 September 2020, paragraph 46, 48.

4. The Father’s conduct during the adjournment period was deficient in terms of Z’s attendance at daycare, which is an important safeguard for Z in exposing him to mandatory reporters.

5. However, generally the Father’s engagement and compliance with the DCJ was positive, as evidenced by his engagement in programmes.  This is indicative of the Father being able to cooperate to a sufficient degree with the DCJ as to benefit from supervision.  The benefits he receives from supervision are supportive of his parenting of the children.

The Mother’s criminal charges

1. Exhibit ICL 3 was a “NSW Police criminal history – bail report,” which set out the Mother’s criminal convictions and outstanding criminal matters.  The record disclosed that the Mother has been convicted of two common assaults this year, and is currently facing a further charge from 14 August 2020 of stalk/intimidate.  The outstanding charge correlates to Exhibit I 3 at page 3, in which the Mother, although described as victim, was a protagonist in a physical altercation with her neighbours, the neighbour allegedly armed with a machete, the Mother with a baseball bat.

Mr D

1. Order 9 of the orders made 13 February 2020 required that both parties be restrained by injunction from bringing the children into contact with Mr D.

2. At [66] of Ms F’s affidavit, Ms F stated that on June 2020, Mr D attended Region E CSC and advised her that W had stayed at his home on 31 May 2020 and he took her to school on 1 June 2020.  Mr D stated that he is “very close” to W.

3. On 3 June 2020, Ms F conducted a home visit, at which time W denied staying at Mr D’s residence on 31 May 2020.  Ms F states that ‘W indicated that the mother had organised for Mr D to drive her to school on 1 June 2020 and he proceeded to do so’.[90]

   [90] Ms F’s affidavit filed 18 September 2020, paragraph 68.

4. Ms F conducted a home visit to the Father’s residence on 16 June 2020, at which time W stated that she had been in the backseat of Mr D’s car when the Mother took off her seatbelt and began punching W.[91]

   [91] Ms F’s affidavit filed 18 September 2020, paragraph 76.

5. On 28 July 2020, Ms F conducted another home visit to the Mother’s residence.  Mr D arrived at the residence and the Mother introduced Mr D as her father and stated that W was lying and W loved Mr D.  Ms F alleges that the Mother said to W words to the effect of, “you love [Mr D], don’t you W”.[92]  Ms F observed W to look very uncomfortable when this occurred.

   [92] Ms F’s affidavit filed 18 September 2020, paragraph 91.

6. On 10 September 2020, Ms F spoke to W who advised her that Mr D made W uncomfortable, but that the Mother continued to have him at her residence.[93]

   [93] Ms F’s affidavit filed 18 September 2020, paragraph 104.

7. The Mother’s breach of the injunction in relation to Mr D, as further exemplified below, is significant not merely because it conflicts with the orders of the Court, but also because it conflicts with the evidence that she previously gave to the Court about Mr D and her view of the risk that he presents.

X’s criminal charges

1. X has been charged in relation to alleged property damage and assault of the Mother on 29 June 2020.[94]

   [94] Exhibit I3 and I4.

2. At the time that X was at the Mother’s house, so was Mr D, although Mr D was falsely described as the Mother’s father.  It was Mr D who accompanied X as his support person, and to whose residence X was initially bailed.

3. The presence of Mr D at the home at which X was apparently staying, being the Mother’s home, is a serious breach of the Mother’s obligations under order 9 of 13 February 2020.

4. The Mother is reported to have alleged to the police that X was using the drug Ice, but was denying to her his use.  X is reported to have told the police that he was smoking cannabis regularly, the police noting that X was not of an age to be employed and was reliant on his family for his needs (implying X’s inability to fund his own drug use).

5. The incident not only evidences drug use by X while living with the Mother, and X being brought into contact with Mr D, but also a breakdown in the relationship between X and the Mother.

6. Shortly after X was bailed to the care of Mr D his bail conditions were amended to provide that he live with the Father.  He is still subject to those conditions although it was accepted by the Father that X does not always stay at the Father’s home.  That is, even with the force of the bail conditions in place the Father is unable to enforce X remaining at the home.

Discussion

1. As noted earlier in the judgment, the Mother disengaged part way through the trial of the matter.  The position of the remaining parties was, in large part, in sync.  Each sought orders that provide for the four children to live with the Father, spend supervised time with the Mother, and to be subject to oversight by the DCJ for a period of time.

2. However, the other parties’ agreement and the Mother’s disengagement did not resolve the assessment of the dominant s 60CC considerations, being the primary considerations, along with the capacity of each of the parents, the characteristics of each child, and the nature of the relationships with each child, although it simplified their consideration. In particular, these circumstances did not resolve the issues of the risk of harm faced by the children, through neglect, exposure to family violence, from abuse, and from deficits in parenting capacity.

3. Those issues are so factually entwined in this case so as to be unable to be disentangled, or dealt with individually.  Issues of risk of harm are closely connected to parental capacity, and in turn connected to the benefits (or limitations in the benefits) of meaningful relationship.  These, in turn, cannot be examined independently from the characteristics of the children and the nature of their relationships with each parent.

4. As identified by the Expert, each of the parents presents a risk of harm to the children.  Those risks, in large part, are not to what she termed “sadistic abuse” or to a failure to provide the basic physical necessities of life.  Rather, they are risks arising from each parent’s personal characteristics.

5. There are risks posed by potential substance abuse by each, although the risk from the Mother far outstrips the risk posed by the Father, who appears to have substance abuse issues well controlled at present.  The differential between the parties in this respect was demonstrated in the period between the two phases of the trial during which the testing of the Father was clean and compliant, while the testing of the Mother was neither.

6. There are risks posed by each of the parent’s resort to violence. 

7. These risks are elevated in circumstances where either party is under the influence of alcohol or illicit drugs, but, particularly for the Father, when he becomes emotionally overloaded.  Although the risk is not primarily directed to violence to the children, there is some risk, for example, should there be conflict between the Father and X, or the Mother and W, and there is a greater risk of exposure to violence between the parents.

8. The extremity of the risk that the Father has presented in the past may be seen in his criminal convictions, which firstly saw him incarcerated for stabbing a person, and secondly, in relation to his assault of the Mother.  However, those convictions do not complete the picture.  It should be recognised that there is no established instance of significant violence against the children by the Father.  Further, there is only one instance of allegation of violence, in relation to discipline of X, which did not rise to a level demonstrative of ongoing risk.  Rather, the children have relationships with the Father that do not appear to be characterised by fear of him.

9. Further, the aged nature of the violence on the part of the Father, and his description of his response, in particular to the violence against the Mother, speaks to some progress made by the Father to deal with his vulnerability to a descent into violence.

10. In particular, the Father’s response to being assaulted by the Mother is illustrative of developing restraint on the part of the Father.  While it is true that the Father was subject to direct scrutiny when attacked by the Mother, it remains significant that he did not retaliate.  This speaks of some level of self-restraint being available to the Father.

11. The Mother, as evidenced by her recent criminal history, shows little, if any, sign of a capacity to self-restrain.  If it is assumed that her resort to violence is accentuated by periods of time that she is consuming alcohol or abusing illicit substances, there can be little confidence gleaned from the period between the two parts of the hearing to indicate that she has gained the upper hand in a struggle against substance abuse.

12. Correspondingly, if it were thought that risks of violence, and deficiencies in parenting for the Father were accentuated by substance abuse, his, at present, appears reasonably controlled.  This is not to suggest that he is not vulnerable to relapse, the risk being pointed to by his now acknowledged earlier use of illicit substances in the face of denials, until he was previously caught out by testing.  However, his current position is significantly better than that of the Mother.

13. As observed by the Expert, the children are rendered more likely to be exposed to conflict between the parties in the event that the parties resume their relationship.  In the context of a history of an on and off again relationship, this cannot be ruled out, although, at present, it does not appear likely, given the current gulf between the parties and the Father’s realisation of the Mother’s incapacity to change.

14. There appear to have been no inklings of reconciliation, as feared by the Expert.  This does not indicate that this risk factor is no longer present.  However, the longer the parties remain apart and so polarised, the lower the risk of reconciliation.

15. On balance, despite the severity of the Father’s violence to the Mother in the past, it is the Mother who currently poses the greater risk of violence, while the risk posed by the Father has abated.

16. The greater risk to the children is a developmental risk.  That is a risk that has, in part, been realised in both W and X.  They have been exposed to, and engaged in, drug abuse and sexual conduct.  Both have become largely disengaged from school.  X is currently the subject of criminal charges involving alleged conduct in relation to the Mother.  As observed by the Expert, their prospects are bleak, and face little likelihood of improvement whatever orders are made.  Even the extreme step of removing them from their parents and placing them with the DCJ carries with it no good prospect for success, given their ages and capacity to, and tendency to, vote with their feet.

17. Despite the bleak views of the Expert, she acknowledged that for the younger two children, Y and Z, who have been in the primary care of the Father, such risk has not crystallised.  Y is engaged with school and, like their older siblings, each has a positive relationship with the Father and each appears to accept that the Father will care for them.  Although Y is reaching an age where he could engage in the self-selecting conduct of W and X, the Expert noted that he is not doing so, identifying his realisation that his self-interest does not point in that direction and, further, his disinclination to follow the path of his older brother.

18. The Expert acknowledged that the Father is in a better position, partly due to his better self-regulation, to provide care and an environment appropriate for the children than the Mother.  The limitation she identified was in relation to W and X.  The Expert saw little prospect for the Father to influence W and X as, should they resist his imposition of restrictions, they merely had to return to the permissive environment of the Mother’s home.

19. However, there were two matters that softened the position painted by the Expert.  The first flowed from the Father’s greater success in pursuing support for X and W and, for W, engaging her in that support.  The second appeared much more speculative, whereby the Father asserted that W and X would comply with court orders if they specified that they were to live with the Father.  X’s non-compliance with bail conditions to this effect points to this being an overly optimistic assessment by the Father.

20. In determining the orders for W and X, the reality is that the best that the Court can do to support their best interests is to impose orders that ameliorate their currently damaging circumstances.

21. In determining the orders for Z and Y, despite the poor prospects identified by the Expert at the first phase of the trial, the Father appears to have been consistent in his care for Z and Y (except for his failure to keep Z in childcare as directed).  He has undertaken courses and there is little criticism advanced against him in relation to Y and Z, either in the gap between the two parts of the trial, or in the lead up to the first part of the trial.

22. Orders for the children to live with the Father and for him to exercise parental responsibility give the best chance of the children having circumstances which will aid them in their development, even though prospects are poor.  Out of the two parents, the Father is better equipped to provide those circumstances.

23. The poor prospects point to an integrated suite of orders to, as best as possible, support and monitor the arrangements for the children.

24. In circumstances where the DCJ concedes that it should supervise arrangements for a period, it is in the children’s best interests for the Father to hold sole parental responsibility.  The presumption of equally shared parental responsibility is inapplicable, and is contraindicated by the nature of the relationship between the parties and the demonstrated lack of capacity to act in the interests of the children by the Mother.

25. An issue arises as to the nature of the supervision, as well as the duration of the supervision to be given by the DCJ. In considering this question, it is also necessary to consider that the role of the DCJ in these proceedings, and that orders made in relation to the DCJ are not those it is typically subject to in the State jurisdiction. Pursuant to s 69ZK of the Family Law Act 1975 orders made (usually at the behest of a welfare agency such as the DCJ) under a child welfare law in a State or Territory oust the jurisdiction of this Court, unless consented to in writing by the welfare agency or made operative on the expiration of the child welfare order.  That is not the case here as the orders are not being made under a child welfare law. Subjecting the parties and the DCJ to supervision orders in this case is not the same as doing so under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

26. Rather, the orders are being made, on the basis that the DCJ, following invitation to join the proceedings, has done so as it is concerned with the care, welfare and development of each of the children. This is made plain given the function of the Secretary under State law. The Secretary of the Department is, pursuant to s 16(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) with the following role:

    Principal role  The Secretary is to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act.

27. The objects of the Act are set out at sections 8 of the Act:

    The objects of this Act are to provide—

    (a)  that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

    (a1)  recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

    (b)  that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

    (c)  that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

28. Hence, it is in the performance of the function conferred by State law that the Secretary joins the proceedings that are conducted pursuant to the Family Law Act 1975 (Cth) rather than by the Children and Young Persons (Care and Protection) Act 1998 (NSW). This was not controversial in the proceedings.

29. Any order for supervision is sourced in the Family Law Act 1975 (Cth) rather than the State legislation, although the Secretary’s capacity is governed by the functions and powers given to it pursuant to State legislation. In that context, the capacity to engage in supervision was conceded by the Secretary’s agreement to orders for supervision (albeit that there was disagreement as to the duration of the supervision).

30. The orders for supervision fall to be made pursuant to s 68B of the Family Law Act 1975 (Cth), as the making of such order or injunction as appropriate for the welfare of a child.

31. The scope of the supervision proposed by the DCJ included the capacity of a DCJ case worker to meet with the children, enter premises, along with compliance (presumably by the parents) with reasonable directions.  This, it was said, are the terms of supervision provided for in the NSW legislation that governs the DCJ.  This was identified as the least intrusive form of intervention available to the DCJ.

32. The orders sought by the Father, ICL and DCJ were as follows:

    For a period of six months from the date of these Orders, each of the parents shall accept the supervision of a delegate of the Secretary and shall comply with all reasonable directions given by the delegate in relation to the care, welfare and development of the children, including directions given as to attendance at and engagement with services.

33. The obligation cast by s 68B of the Act to ensure that the order or injunction is appropriate points to the desirability of clarity in the scope of the obligations imposed on each of the parents.

34. Here, taking from the scope as articulated by the DCJ, in the context of the issues of risk in this case, it is appropriate that the DCJ have unfettered access to the children for the supervision period and, in order to exercise that access, have the ability to enter premises occupied by either of the parents to do so.  These are matters that should be specifically spelt out in the orders.

35. Given the depth and severity of the issues of risk and development facing these children, despite the DCJ’s preference for supervision to be limited to 6 months, the supervision should extend to 12 months.  The issues confronting the children, and the parents, are entrenched and, absent the support that may be provided by the DCJ, and the protection afforded by supervision, are at a heightened level.  The children’s best interests, in these circumstances, necessitate involvement with the DCJ for the longer period.

1. The orders, to protect all of the children as best as they can be from the risks associated with the Mother’s home, her lack of parenting capacity and drug and alcohol abuse will provide for the children to live with the Father.

2. Despite the risk that both W and X will move between houses at their whim, orders ought to provide the Father with authority as to where the children will live, being an authority unable to be interfered with by the Mother pursuant to the obligations created by s 65M, which means that she can neither remove nor fail to deliver a child to the person that an order provides that the child should live with.

3. A difficult question remains as to the scope of the time that the Mother will spend with the children.

4. As observed by the Expert, the children receive benefits from their Mother.  They love her, and know that she will receive them should they go to her.  When not abusing alcohol or illicit substances, the Expert’s expectation was that the Mother was sweet and caring.  The difficulty is that there can be little expectation of the Mother’s capacity to maintain such a state.  The Mother’s chaotic circumstances, her limitations in relation to alcohol and substance abuse, her unpredictability, her parenting limitations, the risk that she will expose the children to, or facilitate, or tolerate the children’s involvement in drugs, alcohol and sex and that she will expose them to violence mean that, unless there is significant change by the Mother, the time should be professionally supervised, even for W and X. 

5. It cannot be said with confidence that the Mother will exercise supervised time with the children if that is what the orders provide for.  It seems more likely that the Mother will disengage, given her disengagement from spending time with the Z and Y in the break between the two phases of the trial, on the basis that the limited time was too painful for her.

6. It is equally uncertain how W and X will respond to this but the risks that they face spending unsupervised time with the Mother are too significant to leave the arrangements at large.

7. This will conflict with the views that each of W and X have expressed.  At their ages, their views would normally carry strong weight.  However, the risks to W and X in spending time with the Mother without supervision are chronic and severe, and carry such strong detriment to them in their development and in their future lives as to outweigh what would otherwise be likely to be definitive weight given to their views.

8. The orders proposed by the Father, DCJ and the ICL are for supervised time, to continue for an indefinite period, at a frequency to be determined by the contact service.  No evidence was led to indicate what frequency this might be, pointing to the inadequacy of orders in that form.  Neither the DCJ, nor the Father nor the ICL submitted as to the anticipated frequency.

9. The general structure of the proposed orders should be maintained, but with parameters around frequency.  Without assistance as to frequency, and doing the best to maintain relationships with the Mother without disrupting the primary care of the Father, if the service is available, the visits should be no less frequently than monthly and no more than weekly.  A lower frequency than monthly would seem likely to prejudice the maintenance of relationships.  A higher frequency than weekly would seem likely to be disruptive to the Father’s exercise of primary care of the children.

10. In the event that the Mother fails to engage or remain engaged with the supervision at the contact centre, the Father should be released from the obligation in relation to time with the Mother.

11. Given the open ended nature of the supervision order, it is appropriate that there be a mechanism for the Mother to bring the matter back to the Court to vary the arrangements.  Although the precursors identified in the proposed terms provide a mechanism for this, their requirements are overly onerous.  The capacity to reopen should be contingent on identification of circumstances that indicate that either risk is mitigated or parenting capacity improved.  Those are both predicated on evidence that the Mother has made significant improvement in relation to her issues with substance abuse.  Her dealing with that issue should be the necessary precursor to re-litigating her time with the children.  As to the balance of the matters, they, no doubt, would assist a case for a change in time, but their absence should not pose a bar to an application.

12. The balance of the restraints and injunctions sought by the Father, the DCJ and ICL are well adapted to securing the best interests of the children.  Of particular note is the requirement placed upon the Father to enrol and maintain Z in a childcare or preschool pending commencing schooling.  This is a necessary and specific injunction to ensure that Z is properly engaged with mandatory reporters as an added safeguard for him.

13. The injunctions sought in relation to Mr D should be granted given his previous interactions with W and the Mother’s exposure of W to Mr D.

14. The exception in the appropriateness of the injunctions is 9a, 9b and 9c as sought, as it relates to not bringing the children into contact with a person who, in the previous 24 hours consumed an illicit substance, or abused an over the counter medication, or in the previous 48 hours has consumed alcohol to exceed a 0.05 blood alcohol reading.  It is appropriate that the children should not be brought into contact with a person so affected by illicit substances, or abuse of over the counter medication, or alcohol, but neither necessary, nor reasonable to extend it to 24 and 48 hours prior to such contact, other than for the parents themselves who have direct knowledge of their own consumption.

Conclusion

1. With the exception of the modifications identified above, orders will be made in accordance with the terms agreed by the Father, the DCJ and ICL.

I certify that the preceding three hundred and thirty-nine (339) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 November 2020.

Associate: 

Date:  5 November 2020

Appendixes

Orders sought by the Applicant Father, ICL and Department

THE COURT ORDERS THAT:

1. All previous parenting Orders are discharged.

PARENTAL RESPONSIBILITY

1. The father, Mr Donnelly (“the father”) shall have sole parental responsibility for the children W, born in 2004 (“W”), X, born in 2005 (“X”), Y, born in 2007 (“Y”) and Z, born in 2017 (“Z”) (collectively referred to as “the children”).

2. The father shall make all reasonable endeavours to consult with the mother, Bryson (“the mother”) in respect of long-term decisions for the children and notify the mother of any decisions made in relation to the medical care, education and living arrangements for W, X, Y and Z.

LIVE WITH

1. The children shall live with the father.

SPEND TIME WITH AND COMMUNICATION

1. The mother and the father shall do all acts and sign all documents necessary to register with the H Region Children’s Contact Service (“the contact service”) within seven (7) days of the date of these Orders.

2. The children shall spend supervised time with the mother at the contact service at such times, on such dates and at such places, as may be facilitated and supervised by the operators of the contact service and for that purpose the following shall apply:

   a.The mother shall notify the father in writing forty-eight (48) hours prior to the scheduled time at the contact service of her intention to attend to spend time with the children.

   b.Should the mother fail to comply with Order 6(a), the mother’s scheduled time with the children at the contact service shall be suspended.

   c.The father shall cause the delivery of the children to, and their collection from, the contact service at the commencement and conclusion of the children’s visits with the mother.

   d.The mother and the father shall pay any costs due to the contact service.

   e.The mother and the father shall comply with all reasonable requests and directions of the contact service.

3. The mother and the children shall communicate with each other by telephone or FaceTime at all reasonable times agreed between the mother and the father in writing.

SUPERVISION

1. For a period of six months from the date of these Orders, each of the parents shall accept the supervision of a delegate of the Secretary and shall comply with all reasonable directions given by the delegate in relation to the care, welfare and development of the children, including directions given as to attendance at and engagement with services.

INJUNCTIONS AND RESTRAINTS

1. The mother and the father are hereby restrained by injunction from:

   a.Consuming, ingesting, using or otherwise being under the influence of any illicit substance for twenty-four (24) hours prior to or during all time spent with the children, and from bringing the children into contact with any other person who has done so;

   b.Abusing prescription or over-the-counter medication for twenty-four (24) hours prior to or during all time spent with the children, and from bringing the children into contact with any other person who has done so;

   c.Consuming alcohol beyond the legal driving limit of 0.05 per cent for forty-eight (48) hours prior to or during all time spent with the children and from bringing the children into contact with any other person who has done so;

   d.Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of the children and from permitting any other person to do so;

   e.Discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;

   f.Physically disciplining or striking the children or allowing any other person to do so;

   g.Exposing the children to any form of domestic violence including verbal violence or using abusive language to, or within the hearing of the children; and

   h.Bringing the children into contact with Mr D or allowing any other person to do so.

EXCHANGE OF INFORMATION

1. The mother and the father shall notify each other as soon as reasonably practicable:

   a.By telephone, in the event that the children suffer a medical emergency; and

   b.By text message, in the event of the children suffering any medical illness, accident or injury, if not an emergency.

2. The mother and the father are hereby authorised to obtain from the children’s schools and/or childcare centres all notices, letters, school reports and invitations.

3. The mother and the father shall advise each other of any change of telephone number or residential address within twenty-four (24) hours of such change occurring.

OTHER

1. The mother shall engage fully in a program of drug and alcohol counselling and shall:

   a.Attend the program from time to time as directed by the program;

   b.Engage in all activities and sessions directed by the program; and

   c.Upon completion, provide any evidence to the other parties and the Independent Children’s Lawyer.

2. The mother shall engage with a psychologist or mental health professional to obtain a report in relation to her mental health including, but not limited to, any current diagnoses of mental health issues, a review of any historical diagnoses, and recommendations for ongoing treatment plans for any issues identified and provide a copy of the report to the other parties and the Independent Children’s Lawyer within seven (7) days of receipt.

3. The mother and the father shall:

   a.Do all things necessary to engage and cooperate fully with B Group, the Department of Communities and Justice and any other support services for which the family is referred;

   b.Do all things necessary to obtain referrals for any support services for the children recommended by the Department of Communities and Justice or B Group and to use their best endeavours to ensure that the children engage with the recommended support services;

   c.Use all reasonable endeavours to ensure that the children attend school as required, including taking active steps to return a child to school in the event that a child returns to their care before the conclusion of school on a day the child is meant to attend school;

   d.Do all things to ensure that Z attends childcare or a preschool program from January 2021 for a minimum of two days per week until he commences primary school;

   e.Do all things to ensure that W, X and Y attend on a psychologist pursuant to a GP Mental Health Plan as directed by the relevant psychologist for each child;

   f.Do all things to ensure that W and X attend a relevant program or clinic or medical professional to address sexual health matters; and

   g.Do all things to ensure that W and X attend drug and alcohol counselling.

4. Pursuant to s. 65Y of the Family Law Act 1975, the father shall be entitled to remove the children from the Commonwealth of Australia at such times, for such periods and for the purpose of travel to such destinations that the father may determine from time to time.

5. Leave is granted to the parties to furnish a copy of the single expert report of Dr C dated 6 January 2020 to any professional engaged to provide a therapeutic service to any party or the children.

6. Leave is granted to any child welfare officer to provide a copy of the affidavit of Dr C filed 14 January 2020 and a copy of the transcript of her evidence given in these proceedings to any Court of a State or Territory exercising jurisdiction pursuant to a child welfare law of that State of Territory in proceedings relating to the children.

NOTATIONS

The Court notes that:

A. Order 2 above is intended to operate as vesting sole parental responsibility in the father for the purpose of both the Family Law Act 1975 and s. 11 of the Australian Passports Act 2005.

B. The mother shall be at liberty to bring a further application to the Court to vary the spend time arrangements for the children upon providing evidence of the following to the other parties and the Independent Children’s Lawyer:

a) That pursuant to Order 15(a), the mother has made all reasonable endeavours to engage and cooperate with B Group, the Department of Communities and Justice and any other support service to which the mother has been referred;

b) That pursuant to Order 15(b), the mother has made all reasonable endeavours to ensure that the children engage in any support services recommended by the Department of Communities and Justice or B Group;

c) That pursuant to Order 13, the mother has fully engaged in a program of drug and alcohol counselling for a period of twelve (12) consecutive months; and

d) That pursuant to Order 14, the mother has obtained a report from her treating psychologist or mental health professional and adhered to any recommendations made in accordance with the report.

C. The Department of Communities and Justice intends to assist the father to obtain priority social housing.

D. The Department of Communities and Justice intends to make further referrals for support services for the father and the children should the Brighter Futures Early Intervention program fail to adequately meet their needs.

Respondent Mother’s final orders sought

Parental Responsibility

1. That the parties have equal shared parental responsibility for the children W (born in 2004), X (born in 2005), Y (born in 2007) and Z (born in 2017).

Live with and spend time with arrangements

1. That the children spend time with each parent as agreed in writing between the parties, but failing agreement:

   a.W spend time with each of her parents in accordance with her wishes;

   b.X spend time with each of his parents in accordance with his wishes;

   c.Y live with his father and spend time with his mother:

   i.       During school terms every second weekend from after school on Friday until 9:00am on Monday;

   ii.      During school holidays in a week about arrangement;

   d.Z live with his mother and spend time with his father:

   i.       During school terms every second weekend from 3:00pm (or after school or daycare once he commences either) on Friday until 9:00am on Monday, being the same weekend that Y would be scheduled to spend in his father’s care.

   ii.      Once he commences school, during school holidays in a week about arrangement, being the same weeks that Y would be scheduled to be in his father’s care.

   iii.     That upon Z commencing year 1 of school the parties attend alternative dispute resolution to determine the future arrangements for Z.

   e.The children will spend special occasion time (Easter, Christmas, birthdays and long weekends) with the parent they would otherwise be spending time with under these Orders unless the parties agree to other arrangements in writing.

   f.Notwithstanding any other Order, the children will all spend Mother’s Day with the mother, and Father’s Day with the father, from 9:00am to 4:00pm on each of those respective days.

2. W, X and Y will communicate at will with each of the parents, and each parent will facilitate Z speaking with the parent he is not otherwise spending time at least once in each 48 hour period, and on any other occasion that Z expresses a desire to communicate with the other parent.

Restraints

1. Both parties be hereby restrained by injunction from:

   a.Abusing prescription medication or from bringing the children into contact with any other person who does so;

   b.Consuming illicit substances or from bringing the children into contact with any other person who does so;

   c.Consuming alcohol beyond the legal driving limit of .05% for 48 hours prior to and during all time spent with the children and from bringing the children into contact with any other person who has done so;

   d.Consuming alcohol beyond the legal driving limit of .05% for 48 hours prior to and during all time spent with the children and from bringing the children into contact with any other person who has done so;

   e.Physically disciplining the children or allowing any other person to do so;

   f.Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of the children or any of them, or from permitting any other person to do so;

   g.From bringing the children into contact with Mr D;

   h.From relocating the residence of the children from the E Region, NSW area without permission in writing of the other parent.

Other

1. Both parents will use all reasonable endeavours to ensure that the children attend school as required;

2. Both parents will ensure they keep the other informed as soon as practicable, and not more than 48 hours after, any medical appointment that they take any of the children to.

3. Both parents will notify the other forthwith of any emergency situation involving any of the children.

4. The mother will also agree to any reasonable recommendation by the ICL in relation to attendance at drug and alcohol counselling, family therapy, and engagement with community support services.