Duarte and Morse & Anor
[2016] FamCA 342
•11 April 2016
FAMILY COURT OF AUSTRALIA
| DUARTE & MORSE AND ANOR | [2016] FamCA 342 |
| FAMILY LAW – INTERIM PARENTING – Whether the mother should spend time with the children unsupervised – Where the children have been removed from the mother’s care by NSW State Courts – Where there has been supervised time previously – Where there are concerns as to risks posed in the mother’s household – Where there has been not opportunity to test the evidence in relation to the risks posed – Where the children have not spent time with the mother in a significant period of time – Where the final hearing is not to take place for some time |
| Family Law Act 1975(Cth) |
| APPLICANT: | Ms Duarte |
| RESPONDENT: | Mr Morse |
| INTERVENOR: | Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 737 | of | 2014 |
| DATE DELIVERED: | 11 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 12 February 2016; 3 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Applicant in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Shae |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : | Legal Aid NSW |
| COUNSEL FOR THE INTERVENOR: | Ms Stevens |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor |
Orders
Other than paragraphs 1 and 5 of the Application in a Case filed by the mother on 11 November 2015 is adjourned to a date to be fixed should the mother seek to press the remaining portions of that application. The determination of paragraph
The orders of the Court made 25 July 2014, 23 March 2015, 1 May 2015 and 3 June 2015 are varied only as herein provided.
It is a condition of the mother spending time with the children that she first signs and files in the court the undertaking required by the court order, and that she serves on each of the other parties a copy of that signed undertaking.
The Undertaking to the Court, to be signed by the mother in the presence of an independent adult witness is to be in the following form:
I, Ms Duarte of B Street, Suburb C in the State of N.S.W. being the mother of the children H born … 2006, J born … 2010 and K born … 2012 and being the respondent in proceeding number SYC 737 of 2014 in the Family Court of Australia hereby undertake to the court as follows:
I will spend time with my children abovenamed, pursuant to the court orders made 11 April 2016, in the following circumstances:
(a)I will ensure that the children are not brought into contact with my partner/husband Mr T.
(b)I will not speak to any of my children about their father Mr Morse in any derogatory, disparaging or negative way.
(c)I will not speak to any of the children in relation to my religious beliefs in any way which may convey to the children a negative message about their father’s religious beliefs or otherwise or the manner in which they live with the father or the way in which he undertakes their care.
(d)I will not discuss with any of the children any matter relating to the court proceeding between the father and myself or between the father and any other party in the proceeding in this court or any other court in which we may be involved in litigation.
(e)I will not make any derogatory or disparaging remark about any aspect of the children’s schooling.
(f)I will not make any comment or statement or use any words in the presence of the children which they could possibly understand to be critical of the father or the manner in which he is caring for them.
(g)I will ensure, to the best of my ability, the children are not exposed to hearing any other person speak in a manner which would be contrary to the requirement I have undertaken to comply with in this undertaking to the Court.
In signing this undertaking to the Court I understand that if I act contrary to the provisions of the undertaking I could be dealt with by the court in the same manner as is available to the Court to deal with persons who contravene parenting orders made by this Court.
Dated :
………………………..
Ms Duarte
………………………..
(witness)
The mother is to spend time with each of the three children each Saturday from 10 a.m. to 2 p.m.
Unless otherwise agreed to in writing (exchange of emails or text messages sufficient) The changeover at the commencement of the time is to take place at Suburb C Tennis Courts, Suburb C.
The mother may have a friend/other person (but only one) attend upon the changeover with her.
The father is permitted to have friend/other person (but only one) accompany him to such changeovers.
The father is permitted to have another person deliver and collect the children for changeovers as provided for herein. The person who makes the delivery of the children to the mother at the commencement of the time the children are to spend with her is to be the same person who collects them at the conclusion of that particular occasion of time with the mother and if that is not possible then the father is to make the collection himself.
In the event of the father choosing to have another person deliver the children to the mother at the commencement of the time provided for in this order he is to notify the mother of the identity of that person by text message or by email if that is possible.
The Independent Children's Lawyer is to prepare a minute of consolidated order so that there will be one document which contains all the operative parenting orders, injunctions and facilitating orders which affect the children. Once completed the Independent Children's Lawyer is to serve on each other party a copy of the proposed minute and in the absence of any objection thereto, the Court proposes the consolidated form of the parenting orders will be sanctioned by the Court when the matter is next before the Court.
Any party to the parenting proceeding may apply to the Court for urgent orders, should that be necessary, upon first giving 48 hours’ notice to the court and the other parties. Any application for a recovery order may be made on 24 hours’ notice.
After 1 August 2016 the mother may apply to the court to extend the time she spends with the children and the terms of the undertaking now required by the Court.
The mother is permitted to show a copy of the court orders to Mr T.
In the event that the mother and the father agree in writing to some alteration to these orders they are to forthwith upon such agreement being made, provide a copy of such agreement to the Independent Children's Lawyer and the Secretary of Department of Family and Community Services.
NOTE: The Court recommends that the mother have another person with her at times she spends with the children so that person may corroborate that the mother has adhered to her undertaking should it be alleged against her that she has contravened that undertaking made to the Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym & Duarte & Morse has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 737/2014
| Ms Duarte |
Applicant
And
| Mr Morse |
Respondent
And
Independent Children's Lawyer
And
Department of Family and Community Services
REASONS FOR JUDGMENT
Introduction
Before the Court is an application of the mother, Ms Duarte to vary the Interim parenting orders in respect of H born in 2006, J born in 2010 and K born in 2012. The orders she seeks to vary were made on dates commencing 25 July 2014, 23 March 2015 and 1 May 2015. The father, the Secretary, Department of Family and Community Services the Independent Children's Lawyer oppose the mother’s application.
The application before the Court, which requires the Court to consider the arrangements for the subject children, is a combination of that filed by the mother on 11 November 2015 together with information provided to the Court (in the form both of filed evidence and oral submission) on 12 February 2016 and 3 March 2016, which informed the Court that the mother was no longer spending time with the children as the supervisor was no longer prepared to supervise the mother’s time with the children.
These reasons address only determinations of paragraph 1 of the Application in a Case filed by the mother on 11 November 2015. With the exception of paragraph 5The balance of that application will be adjourned to a date to be fixed upon the application of the mother to press those paragraphs of that application.
In relation to the Application in a Case filed 11 February 2016 by the mother an order was made 3 March 2016 addressing paragraph 4 of that application and in relation to paragraph 1 as sought, an order was made on the application of the mother, to adjourn that application to a date to be fixed.
Each of the parties has made oral and now written submission. The mother was the last to provide her submission and that was received 14 March 2016.
The father, in his written submissions, seeks the following order:
1.That the mother’s application to vary the existing interim parenting orders is dismissed.
2.That the order of 1 May 2015 be varied so that supervision shall be provided by Interrelate Suburb N, and each party shall promptly do all acts and things and sign all documents necessary to enrol there for this purpose.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The parties commenced cohabitation in 2003 and married in 2004. There are three children of the relationship:
a)H, born in 2006;
b)J, born in 2010; and
c)K, born in 2012.
The parties separated in September 2013.
The mother commenced cohabiting with Mr T in late 2013 or early 2014. The mother has one male child (M) with Mr T and is expecting another in June 2016. Mr T is a party to the property proceedings.
On 24 June 2014, the Secretary, Department of Family and Community Services (the Secretary) assumed care of the children H, J and K. They were at that time placed by the Secretary into the care of the father. Since June 2014, the children have lived with the father.
On 27 June 2014 the Secretary made an application to the Children’s Court of NSW for orders in respect of each child. On 1 July 2014 orders of the State Children’s Court were made operative for a period of 10 Days.
A hearing then took place in this court on 10 July 2014 at which the Secretary sought leave to intervene. Orders were made by Stevenson J on 25 July 2014, following a hearing on 10 July 2014, which set out:
1.All previous parenting orders in relation to the children
H born … 2006
J born … 2010 and
K born … 2012
are discharged.
2.The children shall live with the father.
3.The father shall have sole parental responsibility for the children.
4.The children shall spend time with the mother on no less than one occasion each week at a supervised contact centre or otherwise supervised by a professional supervisor agreed in writing between the parties (such as Dial-an-Angel).
5.The mother be and hereby is restrained from bringing the children (or any of them) into contact with Mr T.
6.Pursuant to section 68B(1)(c) of the Family Law Act 1975 the court grants an injunction restraining the mother, Ms Duarte, from entering or remaining in:
6.1Any place where any of the children may from time to time reside, including but not limited to O Street, Suburb P;
6.2F School, G Street, Suburb C or
6.3E Pre-School, S Street, Suburb Q.
7.The Independent Children’s Lawyer (“the ICL”) has leave to serve a sealed copy of these orders on the Principal of F School and the Director of E Pre-School forthwith.
8.The father shall forthwith do all acts and things necessary to make an appointment with a community-based infant/child mental health specialist recommended by the ICL for the purposes of an assessment as to appropriate counselling or other support services to assist the father in managing the children’s transition to his full time care.
9.Upon the commencement of Term 3 2014, the father shall arrange for the school counsellor at F School to resume such involvement with H as he/she deems appropriate.
Between 24 June 2014 and 23 March 2015, the mother spent no time with the children.
On 23 March 2015, this matter came before me in a Duty list, and I made orders, inter alia, which set out the following alterations to the parenting orders:
1.Order number 4 made 25 July 2014 be amended to read as follows:
pending further order, the children shall spend time with the mother on the following: - each Tuesday for 2 hours between 3.00 p.m. and 5.00 p.m.; each Saturday between 10.00 a.m. and 12.00 noon. The time is to take place within the [Suburb R] park near the [Suburb R] shopping Centre. If the weather is inclement, it is to take place in the gazebo within [Suburb R] park, or any other such place as the mother and father shall agree by text message.
2.The times and days that the mother is to spend time with the children may be varied by consent between the mother and father and Independent Children's Lawyer.
3.All of the mother’s time with the children pursuant to these orders is to be supervised by [Ms D].
4.I note that the supervisor has today signed a written undertaking to the Court setting out her obligations in relation to the children’s time with the mother.
5.The Court notes that minor changes to the orders may be agreed between the mother and father from time to time.
On that date, an undertaking by Ms D was filed in court, which set out Ms D’s obligations in relation to supervising the children’s time with the mother.
I made further parenting orders in the matter on 1 May 2015 as follows:
4. I mark as Exhibit “A” a Minute of Order proposed by the Independent Children’s Lawyer and I make orders pursuant to paragraphs 1, 2, 3, 4, 5 and 7 of Exhibit A pending further order of the Court.
5. I make another order pending further order that the mother not permit the children to be in the presence of her partner [Mr T] at any time they are with her pursuant to those orders.
6. It is a condition of the orders permitting the mother to exercise her time with the children at her home, pursuant to these orders, that [Mr T] not be present on the property or the curtilage constituting that home at [B Street, Suburb C].
7. Should the mother be able to provide details of an alternate supervisor for her time with the children pursuant to these orders, the parties are to advise the Independent Children’s Lawyer whether there is any objection to such nominated alternate supervisor, and if there is not, upon the Independent Children’s Lawyer speaking with the alternate supervisor and satisfying herself that the alternate supervisor is suitable and understands the obligations of a supervisor pursuant to these Orders and has signed an undertaking to this Court in similar terms to that signed by the current supervisor [Ms D], then the Independent Children’s Lawyer is to make an application to this Court through Chambers for the Court to appoint the alternate supervisor and note the additional days upon which the mother may spend with the children under the supervision of such person.
8. I amend Order 6.3 of the orders of 25 July 2014 so as to delete “E Pre School” and substitute therein “[F Preschool, G Street , Suburb C]”.
9. It is noted that in the making of these Orders the Court notes no finding has been made that [M]r T has harmed any of the children subject to these Orders.
Exhibit A
In the matter of [Morse, Duarte & T]
SYC737 / 2014
MINUTE OF PROPOSED FURTHER INTERIM ORDERS1) Discharge orders Order 4 made on 25 July 2014 and 1 made 23 March 2015, from Monday 4 May 2015.
2) Pending further Order, and conditional upon Orders 3 and 6 the children [H] (“[H]”) born … 2006, [J] (“[J]”) born … 2010 and [K] (“[K]”) born … 2012 (collectively, “the children”) shall spend time with their mother:
a)Commencing 5 May 2015, each Tuesday from 3 pm until 7 pm, such time to be suspended on 19 and 26 May and 2 June 2015; and
b)Commencing 9 May 2015, each Saturday from 10 am until 2 pm.
3) The children’s time with the mother shall be at all times be supervised by [Ms D].
4) Noted that:
a)[Ms D] has given an undertaking to this Court on 23 March 2015, and continues to be bound by that Undertaking; and
b)[Ms D] is not available to supervise the children’s time with their mother on Tuesdays between 15 May and 15 June 2015.
5) The children’s time with the mother may take place at the mother’s home.
6) For the purposes of Orders 2 and 5 [Mr T] is restrained, and an injunction granted against him, from being present in the mother’s home when the children are spending time with the mother; or approaching or coming with 100 metres of the children or that place.7) The children’s time with the mother shall be facilitated by:
a)the father delivering the children to [Ms D] together with or without mother at [Suburb C Tennis Courts, L Street, Suburb C] at the commencement of the children’s time with the mother; and
b)The father collecting the children from [Ms D] with or without the mother at [Suburb C Tennis Courts, L Street Suburb C] at the conclusion of the children’s time with the mother
On 3 June 2015 the matter commenced in Justice Rees’ docket. The supervised time with the mother continued until about November 2015, at which point the supervisor, Ms D, advised that she no longer wished to continue to be bound by her undertaking and ceased to act as supervisor. No alternative supervisor has been nominated, and the application for determination is a consequence of the mother’s contention that she will not accept further supervision. The mother has not spent time with the children since November 2015.
The Issues
The identified issues in this matter can be concisely stated as follows:
·What orders, on an interim basis, can be framed which protect the children from possible harm whilst in the care of the mother? The harm which is said to amount to an unacceptable risk is the children being exposed to actions which may physically harm them at the hands of the mother’s husband/partner Mr T. There is a further alleged harm which is said to potentially flow to the children being psychological harm arising from statements made by the mother to the children which may harm their relationship with the father who is now their principal carer.
Evidence
The mother
The mother relies on the following documents:
a)An affidavit sworn by the mother on 13 May 2014;
b)An affidavit sworn by the mother on 17 June 2014;
c)An affidavit sworn by the mother on 22 June 2014;
d)An affidavit filed by the mother on 19 February 2015;
e)An affidavit sworn by the mother on 4 May 2015;
f)Part D of the mother’s Contravention Application filed 4 May 2015;
g)An affidavit sworn my Ms D filed 23 November 2015.
In the mother’s affidavit sworn 13 May 2014, the mother sets out the following relevant evidence.
The mother set out her beliefs, and stated that the children had been raised in a Christian home since 2009, which she proposed to continue. She said that the father would leave the room or the house at times when the children were dancing to worship songs.
The mother set out the discipline structure she said was in place, and said that she could not consistently accomplish her stated structure while the father was in the house. She stated that she promoted emotional safety in the home by reading books the children brought home prior to their reading them, and would not permit them to read material which was not appropriate. She deposed that she had concerns that the father would not similarly protect the children’s emotional safety because he had accused the mother of not acting in accordance with H’s schedule of reading.
At paragraph 11, the mother deposed that after “access visits” with the father, the children were tired. The mother stated that she did not “believe they are coping with having this occur so often or for such long periods”. She deposed that H said that he only wished to see the father once “at the start of each year”. She further deposed that she believed the father had breached court orders by:
a)Telling the children that Mr T was not allowed to pick up the children unless the mother was present;
b)Telling the children “[Mr T] is not your real dad. Only I am your real dad.”; and
c)Taking a day off work in order to have a “weekday access” with the children rather than spending time on an ordinary day off.
The mother claimed that the children want to call Mr T “dad”. She did not set out any evidence to support that claim.
The mother deposed that she thought that there was insufficient supervision at access visits, and set out instances where relatives of the father supervised H and J while the father was with K. She further deposed that the father might be engaging in behaviour of a “sexually predatory nature” because an affidavit of his deposed that he had noticed that the children had not been wearing underwear during a visit.
The mother’s affidavit sworn 17 June 2014 set out the following.
The affidavit was in relation to the Child Inclusive Conference Memorandum (report) which the mother said set out “extensive yet not exhaustive evidence that Ms U’s conduct of the Child Inclusive Conference, as well as the memo, were not professionally adequate and therefore cannot constitute expert advice”.
The mother set out the following issues she had with the process and the memorandum, referencing diary notes made by the mother:
a)The Family Consultant did not give the mother a “disclosure of her clinical ethics” and the mother was not asked to sign a clinical ethics protocol consent form;
b)The children watched television in the crèche room;
c)The Family consultant misled the mother into believing that she would only talk to the children in the crèche room. The mother did not sign any ethics protocol consent form for any isolated discussion between the Family Reporter and the child;
d)The children were removed from the mother’s representative’s company without the mother’s knowledge or consent;
e)The mother did not consent to the children being videoed. She was not aware whether they were videoed.
f)The children should not have been formally interviewed, as that evidence is contrary to Rule 15.02.
g)The Family Consultant was not child appropriate.
h)The children did not identify a “trust relationship” with the family consultant;
i)The Family Consultant attempted to manipulate the mother;
j)The Family Consultant disrespected the mother;
k)The Family Consultant’s manner of speaking to the mother was rude;
l)The Family Consultant disrespected the mother’s intellectual propriety by repeating questions;
m)The Family Consultant did not appear to concentrate consistently throughout the interview;
n)The mother said that the Family Consultant was unprepared and disorganised. She said the Family Consultant had not read all of the documents and did not know what methodology she was using.
o)The Memorandum did not set out any investigation of the reliability of the data collected;
p)The Family Consultant did not set out how the interview data was induced by her;
q)The Family Consultant did not disclose her investigative questions and method in the Memorandum;
r)The Family Consultant did not provide evidence linking her investigation to published research;
s)The mother claims the Family Consultant misrepresented a number of matters in the Memorandum, to the mother’s detriment;
t)The Family Consultant was biased towards the father;
u)The Family Consultant’s recommendations were not within her discipline and were unsupported by literature;
v)The mother asserted that “anything other than a literature-informed, peer-reviewed, replicable assessment given by a panel of experts from a wide variety of disciplines including medicine, the arts, education, theology, politics, law, journalism and history is not good enough for my excellent family.
The mother concluded that the Family Consultant displayed “unsatisfactory professional conduct” and that the mother regarded the document as inadmissible.
In her affidavit sworn 22 June 2014, the mother set out the following evidence.
The mother addressed the children’s education in her home. The mother set out steps she has taken to educate H, and further set out what she says Mr T has done to assist in this. She asserted that J and K have been integrated into the mother’s education activities.
The mother further set out details of education at the F School. The mother noted that H had received glasses for reading, and was awaiting an appointment for a hearing test, at the recommendation of the teachers. The mother set out the spelling and arithmetic issues H had.
The mother detailed complaints about the school, including gates being open too long, H being signed out by the father at 2.18 p.m. when the end of class is 2.25 p.m., and what the mother perceived to be moral failings by the school. She stated that she was attempting to contact the school trustees in relation to same. She stated that she thought that the school might not be the best school for H in the future.
The mother set out some detail of a visit “last Monday” (by which she refers to 16 June 2014) by two Department employees. During that visit, the mother stated that she and Mr T remained on the porch with the Department employees, under a security camera, while the children played inside. They spoke about how the children were being raised. She stated that one employee, [Ms AA], said words to the effect “We will be making a report that there is no risk of abuse in this home”.
In her affidavit sworn 18 February 2015, the mother set out the following evidence.
The mother makes reference to the “letter of divorce” which she says the father sent her on 28 September 2013, in which she says “he indicated that he was leaving the children under my sole parental responsibility.” She alleges that this was a contract between the mother and the father. The letter is not attached.
The mother addresses the interim parenting orders in place and sets out the following:
a)She asserts that she “has been told” by the intervenor that “they do not have any concerns about my household and regard my household as being able to offer an optimal parenting capacity for children from birth and onwards.” She does not offer any evidence in support of this assertion;
b)She refers to the Supreme Court Proceedings, and sets out the admissions the mother claims were made by the Department in that hearing, which she asserts amounts to the Department not having reasonable grounds to remove the children from her care. No evidence is offered to support this assertion;
c)She refers to the force-weaning of K, and states “she deserves to have the opportunity to return to my lactating breast in the urgent interest of restorative healing.” She further asserted that failure to do so could be a matter of political embarrassment, but provides no evidence to support same;
d)She states general concerns for the children’s well-being;
e)She asserts that the children have been denied relationships with the extended maternal family, their church, their brother, and their step-father Mr T, who she describes as “an upright citizen anointed with the wisdom and authority of a fully functioning head-of-home”;
f)She asserts that the orders in place at the time of writing were based on an incorrect procedure and untested evidence;
g)The father’s Initiating Application has altered, rendering the current parenting arrangements “contextually invalid”;
h)She states that the simplest way forward would be to strike out all previous parenting orders and return the children to the mother;
i)She says that she has written to the other parties with her proposals and “no-one has expressed any disagreement” with them, or with other assertions of hers as to “procedural and judicial invalidites [sic]”. She offers no evidence in support of this assertion.
Much of this affidavit appears to be submissions made on the part of the mother.
The mother filed a Contravention Application on 4 May 2015, which is listed for hearing before Justice Johnston on 29 April 2016. In that application, the mother alleges that the father, without reasonable excuse, “handed the children to me and left without the supervisor ordered by Justice Le Pour (sic) Trench being present”.
The affidavit of the mother sworn 4 May 2015 refers the reader to Part D of the mother’s Contravention Application filed the same day.
Ms D filed an affidavit in these proceedings which was sworn on 22 November 2015.
She deposed that she had a diploma in child-care, and had worked in that industry for six years. She said she was now working part-time in after-school care while she completed further study.
Ms D was the supervisor for the mother’s time with the children since 23 March 2015. She has also picked up the children and dropped them off on a number of occasions
The deponent set out the history of her relationship with the mother, Mr T and the children. She sets out, in positive terms, the relationship between the mother and the children and Mr T and the children.
In relation to the supervised time the mother had with the children throughout 2015, Ms D set out the following. She deposed that the children looked “thin and pale” on their first visit and were quiet and clingy throughout. On later visits, the children were “normal, joyful, and affectionate” at the visits. She said that the children are generally excited at the beginning of the visits, and they are generally cheerful, unless they are tired or cranky, which the mother is generally able to soothe. She said that the mother does a number of activities with the children during the visits.
Ms D set out details of what she has observed at the time the visits end. She describes uncooperative behaviour and unhappiness displayed by the children when they are told it is time to go home, something she says is “otherwise uncharacteristic”.
The deponent made several negative observation about times the children spent with the mother. She stated that she had heard the children refer to not being allowed in Mr T’s presence, and H referring to a “court order” in relation to same. She said on one occasion, the father left H and J with the mother without Ms D being present. She said that the father spoke to her in tones that made her feel berated and made inconsistent complaints to her about the children’s clothing.
Ms D also set out her reasons as to why she did not wish to continue to be bound by the undertaking she signed, preferring orders instead. Those reasons included:
a)She did not wish the undertaking to be understood to mean she thought Mr T was a risk to the children;
b)She felt that she was “in a bind” as the undertaking prevented the mother from responding to the children when they mentioned court orders to her;
c)The undertaking is impractical, as the children were “increasingly not wanting to leave their mother” and she was not prepared to use physical force to place the children in her car; and
d)The undertaking as to communication with/about Mr T was impractical as the mother sometimes needed to speak to Mr T about their child M, and the children would also spontaneously make reference to Mr T, for example, to ask if he could buy certain items or when the children remembered his birthday.
Ms D gave oral evidence in Court on 23 March 2015. In that she was asked about her relationship with Mr T who she told the Court was her uncle.
In cross-examination Ms D was asked if she had ever been the subject of a complaint that she had been sexually assaulted by Mr T. She responded in the negative. She informed the Court of her knowledge about a particular matter that allegedly involved Mr T. All of her evidence about this matter was clearly hearsay. She said she understood her sister had claimed she was raped by her grandfather. She understands that Mr T’s brother informed police that Mr T had raped her sister not the grandfather. She understands her sister only ever alleged it was the grandfather. She understands that an allegation was also made that when she was 3 or 4 years of age she was sexually assaulted by her grandfather. She has no recollection of the event and has recently been informed about it.
Ms D was asked about a person named Ms V. Ms D said that person was her cousin. She had been informed that Ms V had made an allegation about Mr T, however, she did not know the detail of that.
The Father
The father relied on the following evidence:
a)The Family Report of Ms W, released 10 December 2015;
b)The Child Inclusive Conference Memorandum dated 30 May 2014;
c)The affidavit of the father sworn 17 March 2015 at paragraphs 17-118;
d)The father’s affidavit filed 29 January 2016 at paragraphs 142-144;
e)The reasons for judgment of Stevenson J of 25 July 2014; and
f)Exhibits 1 & 2 at the hearing of 10 July 2014.
In his affidavit sworn 18 March 2015, the father set out the following.
The father set out complaints in relation to the mother refusing to allow the father to spend time with the children following separation and prior to the commencement of the proceedings in the Family Court. This included a complaint that the mother refused to allow the father to speak to the children on Christmas day 2013.
The father deposed that on 10 November 2013, H told him that the mother wanted the children to call Mr T “Dad”.
The father set out instances where the mother called the police in relation to him, which he said was without basis.
The father set out a complaint that H had not been attending school while in the mother’s care. The non-attendance was without stated reason.
The father set out that he had witnessed the mother “speaking in tongues” in front of the children at a changeover. He said the children had told him that this was normal behaviour for the mother.
The father deposed that the children had told him that the mother had said they spend too much time with the father. He alleged that to the date of swearing the affidavit, the mother had refused to allow the father to communicate with the children by telephone.
The father set out his concerns in relation to Mr T. These included references to material produced under subpoena from New South Wales Police and South Australia Police.
The father set out a complaint that the mother did not facilitate a relationship between the children and the father. He stated that he had witnessed:
a)the children refer to Mr T as “dad” or “daddy” during time they spent with the father;
b)the mother had sent to H’s teacher an email stating “I permit and encourage and request you to pray for [H] in the classroom especially if [Mr Morse] comes around. Bind all demons in the name of Jesus Christ.”;
c)The mother referred to Mr T as the children’s father in affidavit evidence and Court events;
The father complained of contraventions of the “March Orders”. This refers to the orders made by me on 23 March 2015, which are set out above. He set out the details of alleged contraventions by the mother on 9 April 2014, 13 May 2014, and 27 May 2014. He complains that he organised said dates in advance and the mother failed to attend with the children. He further asserts that H said to him on 12 April 2014 that the mother had kept him home from school on 9 April 2014 so that the father could not collect him (or words to that effect), and that on 13 May 2014, when the father collected H from school, H said “I will get into trouble from mum if I go home with you”.
The father set out details of the “Incident at the [F School] Fete” on 10 May 2014. The father says that he was volunteering at the fete and was given the task of cutting bread rolls. He says the mother and the children walked past him at about 10.00 a.m. and the mother approached him and expressed displeasure about the father “having access” to the children before the appointed time. He said he was holding a knife at the time, but did not point it at the mother or anyone else. He says that the mother returned and took a photograph of him, and continued to yell and attract attention, at which point, she was asked to leave. Police attended at approximately 11.00 a.m. but did not take any action. He said later that day, the children played “cops and robbers” while in his care and H attempted to handcuff him. The father expressed concern that the children had witnessed the event.
The father expressed concern about H’s place in F school was at risk of being terminated due to the mother’s behaviour and her failure to pay her half of the school fees.
The father expressed concern that the mother refused to immunise the children.
The father set out his version of the events leading to the removal of the children from the mother’s care. He recounted conversations with employees from the Department, in which they recounted conversations with the mother. Following that, Orders were made in the State courts on 24 June 2014 for the children to be removed from the mother’s care, and in the Family Court on 10 July 2014 for the father to have the care of the children.
The father then set out the living arrangements of the children while in his care, including school work, speech therapy, daily routine, weekends, religious education, health, and education of the children.
The father set out the contact the children had enjoyed with the mother since the orders. He said there had been none. He further said that she had made several requests through the solicitors which were not in accordance with the orders. He said she had not responded to Interrelate when he contacted them in relation to organising supervised time, and she did not respond to communications from him to telephone the children on their birthdays and at Christmas.
In the affidavit of the father filed 29 January 2016, the father relies on the following. He says that on 23 November 2015, the father’s solicitor received an email from Ms D to the effect that she no longer wished to be bound by her undertaking to the Court as a supervisor. The email from Ms D was attached to the affidavit. He stated that she has ceased her role as supervisor. He further said the mother had not seen the children from the time that Ms D ceased supervising and that she had spoken to the children by telephone on one occasion, being Christmas day.
The father also relied on Exhibits marked “1” and “2” from the hearing dated 10 July 2014. Exhibit “1” contained material produced under subpoena by New South Wales Police in relation to Mr T, and Exhibit “2” contained material produced under subpoena by South Australia Police, again in relation to Mr T.
The Independent Children’s Lawyer
The Independent Children’s Lawyer relied on the following documents:
a)The reasons for judgment of Stevenson J of 25 July 2014;
b)The Reasons for Judgment of Le Poer Trench J of 1 May 2015;
c)The Child Inclusive Conference Memorandum of [Ms U] of 30 May 2014;
d)The Family Report of Ms W, released 10 December 2015;
e)The affidavit of the mother sworn 17 March 2014 at paragraph 252;
f)The affidavit of the mother sworn 18 February 2015 at paragraphs 7, 8, 10, 11, and 14;
g)The affidavit of the mother sworn 22 March 2015 at paragraphs 65 and 76;
h)The mother’s Case Summary Document for the hearing of 23 March 2015;
i)The Undertaking given by Ms D on 23 March 2015
j)The mother’s Case Summary Document handed up on 23 November 2015.
The mother’s affidavit sworn 18 February 2015 was set out earlier in these reasons. The Independent Children's Lawyer relies on paragraphs relating to:
a)the mother’s expressed concerns for the children’s emotional welfare, physical security, and medical and educational issues while in the father’s care;
b)The children being denied relationships with the mother’s family, Mr T, and the children’s brother while in the care of the father;
c)The mother’s assertion that the previous orders were based on incorrect procedures and untested evidence; and
d)The mother’s claim that the simplest way forward would be to strike out all previous parenting orders and return the children to the mother.
In the affidavit sworn by the mother on 22 March 2015, the Independent Children’s Lawyer drew the Court’s attention to the following.
At paragraph 65, the mother outlines her belief that H “perceives Mr Morse to be at fault for his ‘kidnapping’”. She refers to an incident referred to in the father’s affidavit of 17 March 2015, in which H attempted to handcuff the father, and set out the opinion that this action was “a desperate cry from an intelligent child who deserves to have his natural justice restored.” She further states that “[Mr Morse’s] letter of divorce clearly indicated my intent to follow God alongside his intent to go the opposite way (which is to reject the provider of all that is good and therefore embrace the bad).”
At paragraph 76, the mother addressed what she described as the father’s dishonesty. She stated that the children “are all quite capable of discerning even now exactly when [Mr Morse] is being disengenuous (sic) and when he is not”. She further states “I want them to have a good and genuine long-term relationship with their dad, but while he is being dishonest so often, [Mr Morse] himself is undermining everyone else’s efforts in this regard.”
The undertaking of Ms D filed 20 March 2015 contained the following provisions:
a)That Ms D be present at all times while the children spend time with the mother;
b)That the children do not come into contact with Mr T;
c)That Ms D will not permit the mother to speak of the family law proceedings, whether Mr T is a threat to the children, or to make any derogatory statements about the father; and
d)That Ms D remove the children from Mr T’s presence should he attend during the visits.
The Independent Children's Lawyer has drawn the Court’s attention to two documents produced by the mother; one being a Case Summary Document for the hearing of 23 March 2015 and the other being Case Summary Document handed up on 23 November 2015.
Family Reports and Judgments
The father and the Independent Children's Lawyer relied on the Family Report released 10 December 2015 and the Child Inclusive Conference Memorandum of 30 May 2014. Later in these reasons I set out detail of evidence contained in those two documents.
The Independent Children's Lawyer also relied upon the judgment of Stevenson J of 25 July 2014 and my judgment of 1 May 2015. I have referred to some portion of the Stevenson J reasons later in these reasons.
Credit
There was no cross-examination in the hearing of this matter and therefore matters affecting credit can only arise from the affidavit material, the other documents relied upon and the submissions. To the extent that such matters arise I will specifically refer to same in these reasons.
Submissions
The father
The father drew the Court’s attention to the reasons for judgment of Justice Stevenson of 25 July 2014. It was submitted that, in relation to the allegations made about Mr T, such allegations are yet to be tested. It is submitted “Her Honour found it was not possible to ignore the concerns about Mr T, particularly in the context of the mother’s unshakeable belief that Mr T is being wronged”.
The father submitted that the evidence established the risk Mr T may pose, in the form of complaints made by two young girls that he sexually assaulted them, and a caution from police about an incident. The father further submitted that the mother “does not propose to be bound” by any order requiring her to supervise or exclude Mr T due to certain aspects of her religious beliefs, and that the mother also believes that there is no basis on which Mr T ought be excluded.
It was submitted by the father that the mother has a background of disobedience to Court Orders. He asserts that the mother:
a)Has failed to make the children available to the father on several occasions;
b)Failed to take the children to school and pre-school while they were in her care;
c)Made accusations about the father threatening her with a knife at a school event;
d)Called the police in relation to the accusation about the knife; and
e)Permitted H to spend time alone with Mr T (as H informed social workers).
The father submitted that the mother has refused to accept any decision made by the court adverse to her, as evidenced by her multiple applications:-
a)To have Forms 4 filed in these proceedings quashed;
b)To have the matter removed from the Magellan list;
c)To prevent supervised time.
It was submitted that an order restraining the mother from bringing Mr T into contact with the children would bring the father no comfort. The father submitted that if Mr T were to cause a breach of such an order, the mother would not act to prevent it. He submitted that she cannot be trusted to abide such an order in light of her religious beliefs and her belief that Mr T is not a risk.
The father submitted that the circumstances of the case have not changed since Stevenson J made orders in July 2014. He submitted that supervision will allow the children to spend time with the mother safely until a final hearing takes place.
Apart from the risks posed by Mr T, it was submitted that other risks are posed to the children.
The father drew the Court’s attention to the Family Report released 10 December 2015, in which, the father submitted, H “is aware that certain of his activities are an anathema to his mother” and expressed a sense of responsibility for his siblings’ behaviour.
The father submitted that the mother believes the father to “be on Satan’s side”, and that H is aware of that belief. It was submitted that supervision will protect the children from indoctrination by a parent as to the nature of the other parent and the nature of childhood entertainments. He submitted that without supervision, the children are at risk of psychological harm.
It was further submitted that the mother has no insight into the matter of indoctrination, as she “believes (the things she tells the children about the father and Satan) them rigidly”. It was submitted that the mother’s rigid parenting was observed in the Child Responsive Program Memorandum of 30 May 2014.
The father made submissions as to the mother’s obstructiveness. He submitted that the mother had undertaken a course of conduct to “obliterate the father from the lives of the children”. The father asserted the harm this course of action was causing was noted by the Family Consultant in the Child Responsive Program Memorandum of 30 May 2014.
He further submits that the mother has taken steps to prevent any evidence being placed before the court as to her state of mind. It was submitted that the mother “torpedoed” an ordered Family Report by writing independently to the proposed experts and “bullying them”. He further submitted that the mother sought to have Rees J’s order for a Family Report overturned, and sought damages from the court in relation to that decision.
The father concludes his submissions by reiterating that the matter is at the same point it was at when Stevenson J’s initial orders for supervised time were made. The father points to the risks associated with unsupervised time, the mother’s resistance to supervision by a person not allied to her, and an assertion that supervision will not prevent the children having a relationship with the mother. The father submits that the only variation he seeks to the orders is that the supervised time takes place at Interrelate Suburb N.
The Independent Children's Lawyer
The Independent Children's Lawyer filed written submissions on 18 February 2016.
The Independent Children's Lawyer addressed the risk of harm Mr T would pose. It was submitted that Mr T had a history of allegations made against him of violence and sexual assault. These allegations spanned a considerable period of time, and cannot be tested until the final hearing. Given the nature of the offences, it was submitted that the Court should take a cautious and protective approach.
The Independent Children's Lawyer submitted that a suggestion made by me on 12 February 2016, that any risk could be mitigated by an order restraining the mother from allowing Mr T in the presence of the children while in her care, could not have the confidence of the Court that the mother would comply. It was submitted that such injunction exists, and that the mother’s previous Case Summary Documents argue for a restoration of the children’s relationship with Mr T.
It was submitted that the mother believes all allegations against Mr T are false and that he poses no risk of harm. The Court’s attention was drawn to the judgment of Stevenson J of 25 July 2014, where Her Honour found that the mother would not supervise the children in the presence of Mr T. It was further submitted that the Court might have a similar lack of confidence that the mother would comply with an injunction which restrains her from bringing the children into Mr T’s presence.
It was also submitted that without supervision, the only method of monitoring the mother’s compliance with orders is through the children’s reports. The Independent Children's Lawyer submits that the high level of conflict between the parties would place undue pressure on the children in this regard prior to final hearing.
The Independent Children's Lawyer made submissions on the mother’s capacity to shield the children from her views. It was submitted that the mother holds strongly held views in relation to:
a)The removal of the children from her care being “illegal” and amounting to “kidnapping”;
b)The veracity of any accusations against Mr T;
c)The risk of harm to the children in the father’s home; and
d)The children’s wishes as to where they live.
It was submitted that the children would be exposed to these views should they spend time with the mother unsupervised. The Independent Children's Lawyer drew the court’s attention to the undertaking of Ms D of 23 March 2015, which includes reference to supervisor not permitting the mother to speak to the children about the proceedings, Mr T, or derogatory reference to the father. It was submitted that the court accepted at 23 March that there was a risk that mother would discuss these matters with the children, and that supervision would mitigate that risk.
The Independent Children's Lawyer drew the Court’s attention to evidence which it is asserted refers to incidents where the mother has spoken to the children on prohibited topics, and also to the mother’s previous case summary documents, which the Independent Children's Lawyer asserted indicates the mother’s belief that there should be no restraint upon the mother in relation to discussing the proceedings with the children. The Independent Children's Lawyer submitted that should the Court make any order restraining the mother in relation to discussing the proceedings, the Court could not be confident of it being complied with. It was further submitted that exposure to the mother’s views is likely to cause the children to “feel overwhelmed, confused, stressed and/or unsettled” and that the father may be undermined.
The mother
Oral submissions of the mother
On 12 February 2016, the mother made the following submissions orally.
The mother submitted that in relation to Mr T’s risk, allegations against him cannot be tested at an interim level, especially as he is not a party to the proceedings.
She submitted that the question is not whether Mr T is a risk to the children, as any person can pose a risk to children, but whether she, as the mother, has the capacity to protect the children.
The mother submitted that she has that capacity. She stated that there is no accusation that the children were abused in her care, and that the current circumstances arose because the Department lied about statements H made. She further submits that the Department abused the children by submitting them to the consequences of their lie.
It was submitted that supervision teaches the children that the mother is incompetent, that there is something wrong with the mother, and that the father is a hero, none of which the mother asserts is the case. She submitted that supervision also presents spiritual problems as to how she is presented to the children.
The mother submitted that she consented to Ms D as a supervisor as the children knew her not as a supervisor but as “Aunty D” (which she says the father undermined), but that professional supervision is not something she will accept. She asserted that she had just finished “putting out the fires” caused by “false data” about her which she said was input “into the system”, and that she is not prepared to place herself in a position where more data can be generated about her and place her back in this situation.
The mother said that she was a good mum, and she was not going to “play along” with saying that she is something that she is not.
At 11.12 a.m. on 12 February 2016, I canvassed with the mother the possibility of orders which permitted the mother to spend time with the children without Mr T being in attendance.
Le Poer Trench J – If I was to make an order that permitted you time with the children in the absence of Mr T, would you do that?
Ms Duarte – At an interim level, as long as it was not supervised, I would be happy with that.
Le Poer Trench J – Righto, and you would understand if such an order was made, and there was any evidence at all that you had breached it, it would be very very serious, and it would be, in all probability, likely to be the end of contact in that form?
Ms Duarte – Absolutely
Written submissions of the mother
The mother provided written submissions, dated 14 March 2016. I note that the mother is self-represented. Her submissions were lengthy, and I have summarised the portions of them relevant to the application at hand.
The mother asserts that the orders of Stevenson J of 10 July 2014 denied the principles of natural justice and statute. She outlined that her Application in a Case of 11 November 2015 seeks orders for the restoration of her parental responsibility and the return of the children to her care full-time.
The mother asserts she filed the Application in a Case in order to resolve the issue “locally rather than jumping to vertical or collateral alternatives” so as to keep costs down, promote efficiency, and reduce embarrassment for the parties and the Court. To that end, she submits that the Court should have regard to subsection 60CC(3)(l) of the Act.
The mother states that her submissions in relation to unsupervised time do not cancel her broader application for the return of the children to her care.
The mother made submissions in relation to the character of the Secretary for the Department of Family and Community Services, and submits that he is not qualified to carry out his role, and as a consequence his delegates are not competent to fulfil their role.
The mother drew the Court’s attention to the Child Inclusive Conference Memorandum dated 30 May 2014, and set out her objections to that process and document. The mother further submits that on 3 June 2015, Justice Rees “removed the report from the evidence pool”. I note that the Court event on 3 June 2015 before Rees J was a First Day Less Adversarial Trial, and I do not see in the orders of that hearing any order in relation to the Child Inclusive Conference Memorandum dated 30 May 2014.
The mother set out an objection to the Father’s counsel misquoting, on 12 February 2016, the Child Inclusive Conference Memorandum dated 30 May 2014 to suggest that the mother thought the father was Satan. She submitted that the actual quote (which she contests) was that the father was living “with Satan” and the mother “with God”. She set out reasons why she does not think that the father is Satan.
It was submitted, in relation to potential denigration of the father by the mother, that the submission of the Department did not address the possibility that the father’s comments to the children about religion were denigrating to the mother.
The mother submitted that the Court does not have jurisdiction to make “excluded child orders” or interfere with the “primary (birth) attachment” based on a “concern, but on a finding of “unacceptable risk of harm” pursuant to s 60CC(2)(b). She submits that subsection does not allow for “concern” as to hypothetical or future events. She further submits that there can be no finding of risk by the Family Court, as the Department never conducted a risk assessment of the mother’s home pursuant to the relevant State legislation. The mother referred to subpoenaed documents to support her submission, which do not appear to have been tendered at the hearing.
The mother submits that the Family Court does not have jurisdiction to make findings as to welfare risk, and that this jurisdiction rests with the relevant State Courts. She draws the Court’s attention to s 3 of Commonwealth Powers (Family Law – Children) Act 1986 and ss 107 and 51 (xxii) of the Constitution to support her submission that the Family Court of Australia does not have jurisdiction to make child welfare assessments.
Following the above submission, the mother submits that no determination has been made by a “child welfare official”. She submits that it is the Department’s position that the mother is a good mother. She asserts that she has a State issued Working with Children Check.
The mother submits that the Department attempted to “hoodwink” the Court by indicating that H said that he had been left alone with Mr T in contravention of Court Orders. It was submitted that the “transcript” (not identified or tendered) did not read that way.
The mother set out her position in relation to the difference between supervising the children and supervising Mr T, in the context of the her submission that the Department indicated (falsely) that the mother had said she would not supervise the children. She submitted that there have been no Contravention Applications filed in relation to her supervision of the children.
The mother drew the Court’s attention to statements from acquaintances, annexed to an affidavit of hers sworn 22 March 2015.
The mother drew the Court’s attention to the affidavit of Ms D filed 23 November 2015, which sets out her observations of the children with the mother and Mr T before and after “the interventions”.
The mother drew the Court’s attention to the Form 4 documents of the father and the Independent Children's Lawyer which indicated “nil” past or present family abuse.
The mother, notwithstanding her objection the Child Responsive Program Memorandum, submitted that Ms U did not make a finding of risk. I pause here to note that Ms U’s report did outline areas of concern, particularly in relation to the mother’s parenting, and indicated that the matter required some urgency.
The mother submitted that the father showed inconsistency in his parenting. She drew the Court’s attention to the Child Responsive Program Memorandum and submitted that the description of the father’s observed parenting was not complimentary. She also drew the Court’s attention to Ms D’s affidavit sworn 22 November 2015, and her own affidavit of 22 March 2015.
The mother submitted that without a current, valid, NSW finding that she poses an unacceptable risk to the children, there is no jurisdiction for “interfering with the children’s equity their primary birth attachment with me”, particularly in relation to the presence of supervisors “with spiritually misplaced authority”. She further submits that orders in relation to supervision have contravened subsection 60CC(3)(b)(i) and (3)(f)(i).
The mother made submissions in relation to parental responsibility. I note here that this was not part of the application to be determined by me in these reasons. She asserts that the removal of her parental responsibility was contrary to the provisions of s 61DA(2), as there have been no allegations of abuse or family violence in her home. Accordingly, the mother submits that this is a “prima facie overturn-able error of law … that the leave the court open to a writ of mandamus”.
The mother addressed points of the Independent Children's Lawyer’s submissions.
The mother submits that the Independent Children's Lawyer’s submissions in relation to the opinion of the Independent Children's Lawyer as to whether the mother would give rise to future abuse of the children is groundless, as the Independent Children's Lawyer “is not trained in any replicable methodology for making a future risk opinion”.
It was submitted that the Independent Children's Lawyer’s submission that the criminal allegations against Mr T cannot be tested until the final hearing is incorrect, as there are no charges or evidence against Mr T to test. She further submits that Mr T is not a party to the proceedings in relation to parenting.
The mother submits that the Independent Children's Lawyer breaches s 68LA(2)(a) of the Act by opining that the mother would lack the capacity to be restrained by order. The mother asserts that she has never breached any order.
The mother submits that the Independent Children's Lawyer’s submission as to the children’s feelings if exposed to the mother’s views unsupervised contravenes s 296 of the Legal Profession Uniform Act 2015 (NSW). She asserts that if the children “psychologically buckle” at being exposed to one set of views, then all people in the children’s social circle should be similarly injuncted to the injunctions sought in relation to the mother.
It was submitted that the Independent Children's Lawyer, in quoting from the Family report at paragraph 45 of her submissions, was relying on data that was not “garnered under forensic conditions”. The mother submits that this is problematical as it is not clear whether the observation quoted by the Family Consultant was valid and derived from the mother’s actual views and expectations.
The mother submits that use of the words “cautious” and “protective” in submissions are meaningless as the Act does not invoke any of this terminology. She submits she has not attempted to “obliterate the father from the lives of the children”. She submitted that she could have done so in a number of ways, but that she has taken steps to stay near the father, rather than relocating to Western Australia. The mother asserted that this assertion by the father is evidence that the father is unstable.
Oral submissions of the Intervenor
The Department made short oral submissions on 12 February 2016.
It was submitted that time with the children should be on a supervised basis. The Department said that they were willing to facilitate that, but conceded that this was a contentious issue.
Counsel for the Department raised concern about the mother denigrating the father in relation to matters of religion. Counsel did not attribute any malice to the mother in holding such opinions, but pointed out that there were consequences flowing to the children, as shown by H’s comments to Family Consultants about the father. It was submitted that a non-denigration order would be of comfort to the Department, but that it would not change the Department’s position that the children’s time with the mother needed to be supervised.
The Department submitted that the children not seeing the mother was due to the mother not exercising time with them. She is the person who is able to make the time happen in these difficult circumstances is the mother.
It was submitted that the fact that there is no current file in relation to M with the Department does not mean that there is no risk to the children in this proceeding.
The department set out the history of the matters in the Supreme Court in relation to the child M which involved the mother, Mr T and the Department.
Counsel for the Department also highlighted some issues of evidence between the Department and the mother which exist at present.
Evidence of the Intervenor
The Secretary caused two affidavits to be filed in these proceedings. The most recent is that of Ms X sworn 29 January 2016.
In that affidavit Ms X confirms she has been the officer with “day-to-day casework” responsibility for the subject children. In her affidavit she set out information sourced from the Department records available to her. She annexed copies of some of those records to the affidavit.
The affidavit recites the history of the deponent’s involvement with investigating the circumstances of the children and includes interaction with the mother, Mr T, the father and with school authorities associated with H’s school and J’s pre-school.
The affidavit recites an escalating level of concern since 4 March 2014 when the family first came to the notice of the Department. This culminated in the Department taking the children into care through a process described as “Assumption of Care”. On 27 June 2014 proceedings were commenced in the Children’s Court. On 1 July 2014 an order was made in that Court for a period of 10 days granting the Secretary an emergency care and protection order.
The history outlined earlier shows that the matter came before this Court on 10 July 2014 and an order was made on 25 July 2014.
The deponent addressed matters relating to the children’s schooling. The reports obtained by the deponent from both the pre-school attended by J and the school attended by H, as at March 2015, suggested both children are progressing satisfactorily.
The deponent addressed matters relating to the father’s care of the children. In 2015 the deponent has had both phone contact with the father, initiated by her, and she has conducted a home visit. The deponent on that occasion was able to speak to the paternal grandparents, whom she described as very supportive of the father. There was nothing about the father’s house or the routine observed which raised a concern for the deponent.
In March and April 2015 the deponent contacted the father and was told that the children had spent time with the mother and that had been a positive experience for the children. Contact with the father in August 2015 again gave rise to reports from him that time for the children with the mother had been positive. In December 2015 when the deponent spoke to the father she learned that there had been no contact between the children and the mother since November 2015 due to there being no supervisor.
The last contact the deponent had with the father was on 28 January 2016. The father informed her that the mother was not seeing the children due to lack of supervisor. He also informed her that the mother had phoned the children on Christmas Day and not since.
Supreme court proceeding
There is very little information before the Court about the proceeding which the Court was informed was instituted by the mother and Mr T seeking an injunction to restrain the Secretary from seeking to remove the child which she gave birth to in 2015 (M). It appears common ground that, at least on an interim basis, the mother was successful and that child remains in the care of the Mother and Mr T.
When the mother was last before the Court she informed the Court she was expecting another child this year. It seems at least possible she will seek from the Supreme Court a similar injunction in relation to that child upon his/her birth.
The mother informed the Court she was still to provide further submissions in writing to the Supreme Court, however, it is unclear to me what those submissions were required to address.
Evidence relevant to Mr T tendered in the proceeding on 10 July 2014 and again tendered in this proceeding.
Documents produced under subpoena by The Commissioner of Police, NSW were part of the tender of documents in the hearing before Justice Stevenson on 10 July 2014. Those documents show that which appears in the judgment of Justice Stephenson at paragraphs 9 and 10. I have reviewed those documents and agree with the summary appearing in Her Honour’s reasons.
Since the hearing before Her Honour the Court has been informed that the charges in NSW, which Mr T faced when the matter was before the court in July 2014, have either been withdrawn or dismissed. In any event it seems clear that Mr T no longer faces those charges and he was not convicted of any charge which had been referred to in the Stevenson J. judgment.
At paragraph 11 of Justice Stephenson’s judgment of 25 July 2014, she set out her summary of records produced by the South Australian Police Force. Having reviewed the documents tendered before Her Honour I agree with her summary at paragraph 11 of her judgment.
Other evidence relevant to the possible risk to the children of unsupervised time in the presence of Mr T
On 9 February 2016 the Independent Children's Lawyer filed an affidavit sworn by Detective Y (the detective). That affidavit was sworn on 29 January 2016. That affidavit provided the following further and relevant evidence in relation to Mr T.
On 13 August 2004 the detective attended a caravan park in the Z Town area of SA. A written statement prepared at the time is annexure “A” to the affidavit. The document has redacted areas which had stated names of persons. Copies of other statements made by witnesses at about that time were annexed to the affidavit. These documents raise very serious concerns about the actions of Mr T at that time.
The detective concludes his affidavit by saying “The charge of unlawful sexual intercourse with a person under 12 against Mr T was ultimately withdrawn by the DPP on 20 March 2007.”
It is to be noted that Mr T has sworn two affidavits which have been filed in this Court in these proceedings. The filing dates were 6 November 2014 and 28 January 2015. Neither of those affidavits specifically denies the allegations which emerge from the police records in South Australia, however, there are certainly denials of guilt in relation to the charges he faced in NSW.
In relation to Mr T, the mother has made it as clear as she can that she regards him as a good and wholesome man who enjoys the full extent of her confidence. She has one child with him and is expecting another. She does not accept there is any concern for the safety or well-being of any of her children from any action of Mr T.
Evidence contained in the Child Inclusive Conference Memorandum.
A Child Inclusive Conference Memorandum was completed by Ms U on 30 May 2014.
The Family Consultant noted that the issues in dispute included parental responsibility, the time the children were to spend with the father and potential risks to the children.
In relation to risk factors, the Family Consultant set out the following:
a)Each parent made allegations about the other in relation to psychological abuse and manipulation, however, there did not appear to be any issues in relation to physical safety;
b)Each party expressed concerns about the other’s mental health; the father that the mother was unable to accept “no” and was aggressive in her pursuit of what she wanted, and that she allegedly believed that he had demons in him; the mother that the father “continuously changes his mind”;
c)The mother indicated concerns about the children’s safety with the father, but did not elaborate;
d)The father reported concerns about Mr T’s criminal record, the mother held no such concerns;
e)The father alleged that the mother was actively removing him from the children’s lives and encouraging the children to accept Mr T as their father.
Ms U made the following observations, inter alia;
a)The father proposed that he have greater involvement with the children’s lives, while the mother “appears to view her current partner as playing the role … and dismisses the father’s capacity to play a parenting role”;
b)The mother presented as rigid in her views in relation to the children;
c)The father alleged that the mother had on three occasions not facilitated weekday time between he and the children;
d)The father expressed concern about the mother “demonising” him to the children;
e)The mother stated that the children calling Mr T “dad” was “up to them”;
In relation to the children, the following observations, inter alia, were made:
a)H referred to Mr T as “daddy”, corrected to “daddy-[T]”, he referred to the father as “daddy- [Morse]”;
b)H seemed to be under the impression that the mother held the view that the father was living in a way “with Satan” and she was living in a way “with God”;
c)H appeared to be aware that the mother did not like him spending time with the father, but he expressed a wish to spend more time, including overnight time;
d)H was aware that the father wished to spend more time with him;
e)J referred to Mr T as “dad”; he seemed to recognise the term “daddy-[Morse]”;
f)J seemed to be aware that the father wished to spend more time with him, and indicated a wish to spend more time with him;
g)K was too young to express any opinion;
h)When spending time with the children, the father interacted with the children with affection and some guidance, but expressed some confusion in relation to K’s behaviour;
i)When spending time with the children, the mother interacted with “firm instructions” and “physical affection”
The Family Consultant made observations and recommendations under the heading “future directions”, including:
a)The children appeared to be exposed to the mother’s influence in relation to the father, Mr T, and how each is regarded in the family. They also appeared to be exposed to the mother’s negative attitude toward the father in relation to religious beliefs;
b)H and J appeared to have a meaningful relationship with the father; K also appeared to have a meaningful relationship with the father but it was less secure;
c)Continued exposure to the above influence would likely lead to the children not being able to maintain a relationship with the father;
d)The children were being exposed to the conflict between the parents;
e)The mother’s presentation raised concerns about her ability to facilitate a relationship between the father and the children;
f)Communication between the parents needs to be improved;
g)A Family Report was recommended on an urgent basis;
Evidence contained in the Family Report
A Family Report was subsequently undertaken by Family consultant Ms W on 7 December 2015. It was released on 10 December 2015.
The mother did not participate in this process. She did not attend any interview with the Family consultant, nor did Mr T. Rees J noted the mother’s intention not to participate in the preparation of the Family Report in her orders of 3 June 2015.
The report commences with the Family Consultant’s note in relation to the mother’s non-attendance. She also noted that three emails were sent to the Family Consultant’s direct email address from either the mother or Mr T. She states that the emails were forwarded unread to the Regional Manager Child Dispute Services and deleted from the Family Consultant’s computer.
At the time the Family Report was undertaken, the children were living in the father’s care.
The father in his interview expressed concerns about Mr T’s history and the mother’s response to concerns raised in relation to that history. He also expressed concern about the mother ‘indoctrinating’ the children.
The father said that neither he nor the mother had ever had any issues in relation to drugs and alcohol.
In relation to mental health, the father said he attended one counselling session after separation, through his employee assistance program. He said in the session “he found himself unable to stop crying because Ms Duarte had told him she was not going to let him see the children”. In relation to the mother’s mental health, he said that he was certain that the mother had an undiagnosed mental illness.
The father told the Family Consultant that the mother can be a very loving and compassionate person, and is very intelligent. He said, however, that some of her “unwavering views” can seem delusional because her suggestions in relation to them is not always practical or sensible. In relation to the children, he said that the mother holds beliefs about certain characters, and the children subsequently refuse to wear clothing or take items to the mother’s house that may contain content “forbidden” by her. He said that H in particular worries about being in trouble with his mother.
The father addressed concerns he had in relation to the children in the mother’s care. He indicated concern as to H losing contact with friends, H’s school attendance and homework, the children’s physical welfare and weight while in the mother’s care. The father said each of these concerns have improved since the children came into his care.
In relation to parental responsibility, the father said that the parties do not agree on a number of issues, and that he cannot see that they will agree in the future about parenting matters. He said “she appeals everything” and accused her of delaying tactics and “attacks”.
The Family Consultant described the children as follows:
H
The father described H as being “initially shy” on first meeting, but then “never stops talking”, courteous, enjoys “typical boy things”, and finds his schoolwork hard. He said that H suffers from constipation, and will sometimes soil himself at school. The father said that H was anxious about the interview with the Family consultant because he worried about the mother’s response to his answers.
The Family Consultant observed H to be articulate and serious, and sometimes cryptic in answering questions. He took on the role of carer for his siblings. The Family Consultant further observed that H understood his parents’ separation to be due to them believing different things.
H expressed to the Family Consultant concern about his mother hearing about his interest in Star Wars and other characters in the media. He said that the mother believes Star Wars to be ungodly. He expressed a wish to keep his “Daddy [Morse]” things at the father’s house.
In relation to the separation, H said “Mum thinks I do have another daddy, Daddy [Morse] doesn’t like us seeing him. It’s daddy [T]”. He said he had heard the mother and Mr T have “a bit of a fight”, but could not recall any fights between the parents. He said Mr T sometimes smokes, which he doesn’t like.
It was observed that H will sometimes talk to the father if he is worried, but will sometimes talk to himself, stuffed animals, or imaginary friends. She observed that H avoided answering some questions.
J
The father described J as “a joy”, who was lovely, affectionate, and adventurous. He said that J has been attending speech pathology weekly to assist with his speech. The father said J’s speech has improved, and he believes J is very bright.
The Family Consultant observed J presented as “gentle, charming, imaginative and active”. She observed he was fidgety, which was natural for his age.
In relation to the parental conflict, J made statements to the Family Consultant which indicated that he had some awareness of it. In relation to Mr T, he said “he’s a Daddy that Mummy has in the new house … we have to choose who to live with, Mummy or Daddy”.
J expressed awareness of the mother’s dislike of Batman, Star Wars, fairies or witches. He said when he is upset, he talks to “Bad [J]”, his invisible friend.
K
The father described K to the Family Consultant as “a darling”, who liked dancing and pink and sparkling things. He said she occasionally wakes at night, but that he is generally able to resettle her.
The Family Consultant observed that she presented as gentle, engaging and imaginative. She separated easily from her siblings, her speech was easier to understand than J, and she knew colours and some counting. The Family Consultant did not report as to any views which may be held by K.
Observations
In the observation of the father and the children, the Family Consultant made the following observations:
a)The children were “well dressed, polite and well behaved throughout the morning”;
b)The father brought lunch boxes for he and the children;
c)The father shared his attention evenly between the children;
d)The children were “busy and imaginative and included each other most of the time”;
e)The father “was warm, positive, educative, patient and gentle”.
The Family Consultant noted in the school reports, from F School, H’s school progress. She also notes in early 2004 a formal caution from the school to the mother about her behaviour toward staff.
Under the heading “evaluation”, the Family Consultant sets out the following.
The Family Consultant set out the history of time the children spent with the father following separation, and opined that the children are likely to have experienced a great deal of distress at the sudden change in 2013, when the father left the former matrimonial home. She further opines that it must have been difficult for them in mid-2014 when their living situation changed again from living with the mother to living with the father. She opines that the children are likely to have been exposed to a high level of conflict during this period as the parents would have been shocked and distressed.
The Family Consultant observed that the father appeared to demonstrate a depth of knowledge of the children’s physical and emotional needs. He appeared to effectively problem solve and multi-task.
The report makes no comment about the mother or her parenting capacity, but notes the father’s raised concerns about Mr T’s history. She opines that if the Court finds merit in the allegations, the judgement of the mother may be called into question. She also noted the father’s expressed concern about the mother’s mental health and further noted the concern about the mother’s behaviour raised by the school.
The Family Consultant also noted the father’s raised concern about the mother’s religious views and her application of them in relation to the children and their access to technology and toy characters. She noted that H corroborated this in his interview.
The Family Consultant concluded that she was unable to make any recommendations, given the limitations of the report.
Conclusion
The Court is faced with a circumstance where the mother says she will not participate in spending time with the children if that time is required to be supervised.
There are significant, untested, concerns raised by the father, the Independent Children's Lawyer, the Secretary and Family Consultant Ms U about the safety of the children in a household which consists of the mother and Mr T.
The Memorandum from Family Consultant Ms U was created from interviews conducted in May 2014. In that Memorandum under the heading of “Risk of sexual abuse” she says “If [Mr T] has a history of child sexual offence charges, whether convicted or not, this presents a significant risk factor for the children and the risks will require urgent assessment.”
Under the heading “Risk of Psychological Abuse” the Family Consultant says “The father alleges that the mother is actively removing him from the children’s lives and encouraging the children to accept [Mr T] as their father.”
Other observations made by the Family Consultant Ms W in her report, which is referred to above, highlight concerns of the father in relation to Mr T and the mother. As the mother did not participate in the assessment, at her own choosing, the Family Consultant was unable to take those concerns further in that she had no ability to raise those with the mother and hear her responses. She was also unable to have any view of the interaction between the children and each of the mother and Mr T.
It is to be remembered that the test which this Court must apply in cases such as the present is to determine if there is any unacceptable risk which flows to the children of any order which the Court may make. The determination is based on a satisfaction of such risk being found to exist on “the balance of probabilities”. This test is different to the standard which is applied to the foundation of a criminal offence namely, satisfaction of guilt “beyond reasonable doubt”.
None of the evidence before the Court, at this time, establishes that Mr T has ever been the subject of a trial in which he faced a charge of sexual assault.
Adding to the difficulty in the determination of this case is the order made by the Supreme Court in proceedings between the mother and Mr T as plaintiffs and the Secretary as defendant, relating to the child they share. On 17 October 2014, Rothman J made an interim order as follows:
Until further order of the court, the defendant be restrained from taking any child born to the plaintiffs on or after 17 October 2014 or taking any step to interfere with the care and control of any such child.
There is no evidence before the Court which sets out what has happened in the Supreme Court in that proceeding since that date, however, all indications from the mother and the Secretary in hearings/mentions in this Court point to the continuation of that order to this time.
The father has been supportive of the children spending time with the mother, subject to there being supervision. That supervision is to ensure the safety of the children with Mr T and also to ensure the mother does not act in a way seen to be emotionally abusive. The manner in which the father sees such circumstances as possible include encouraging the children to call Mr T “daddy”, making statements to the children, based upon her religious beliefs, which send the children a message that their father is “evil” or in some way associated with “evil” or that the children need to be away from his influence.
At many levels it seems clear to me that each of the parents have a great deal to offer the children as significant carers. The father’s attitude towards the children appears, on the untested evidence so far before the Court, to be entirely appropriate and supportive. His parenting capacity has had some time now to be tested. Thus far, it has not been suggested by those Family Consultants who have observed him, to be deficient in any significant way. This conclusion must be seen, however, in the circumstance where the mother refused to participate in the preparation of the Family Report.
The mother appears to be a highly intelligent and articulate person. She has conducted proceedings in this Court and in the Supreme Court acting for herself. The mother has complied with requirements of this Court to file evidence and has participated in hearings before me in a respectful manner. This must be acknowledged to have been achieved in very trying circumstances for her. She sees herself as clearly being a victim of “the system” where she has had her children removed from her care in a confronting and dramatic manner. Her youngest child, K, was still being breast-fed by the mother at the time the child was removed. The mother has obviously deeply held and practised religious beliefs. She is quite brave in the manner she espouses those beliefs in the secular environment of a court. She is clearly convinced that Mr T is a good, wholesome person of like religious belief and who is in no way potentially harmful to the children. To the contrary she believes he is a good role model for her children, so much so that it is appropriate for him to fulfil a fatherly role to them in her household.
The mother now has another child who was born in 2014 (M). That child is a brother to the subject children. It is normally seen as important in cases such as this, for siblings to be able to grow up together to the extent that is possible. It would be hoped, at the least, that the siblings have an opportunity to spend frequent time together.
Added to the above, the children appear to have had a close and loving relationship with their mother. They understand she holds concerns about their interaction with the father because of his religious views (if any), certainly to the extent they differ from her own. The reports of the father, in relation to the time the children have spent with the mother following the orders made by me for them to have time with the mother supervised by Ms D, were positive.
The mother spent supervised time with the children between 23 March 2015 until November 2015. The order of 23 March 2015 provided for the mother have 2 hours each Tuesday and each Saturday at the Suburb R Park. That was altered on 1 May 2015 to each Tuesday 3.00 p.m. to 7.00 p.m. and Saturday 10.00 a.m. to 2.00 p.m. Further, the order provided that the time could take place at the mother’s home. There was a condition that the mother not allow the children into the presence of Mr T during the time they spent with her.
The Court has been told that in November 2015 the supervisor declined to carry on as a supervisor. Since that time the mother has not spent any time with the children. Consequently the children have been deprived of all the benefits which flow to them of spending time with their mother and also they are missing out on being able to interact with their brother M.
On the last appearance before me by the mother on 3 March this year, she informed the Court she was expecting another child with Mr T. Again this could be an exciting time for the children, i.e. being able to see their new sibling as a new born baby and to be able to interact with that child.
The Court is left with a very challenging task of crafting orders which will fulfil the children’s needs and rights and at the same time ensure they are safe from physical and psychological abuse until such time as all the concerns of all parties about those risks can be ventilated and tested within the confines of a final hearing.
The hearing of the parenting issues in this case was expedited by me and listed for 1 August 2016, being the first date I could fit it into my hearing calendar. That date has now been vacated on the application of the mother due to the expected birth of her second child with Mr T.
When the matter was before me on 12 February 2016 I asked the mother whether she would be prepared to would follow orders of the Court not to bring the children into contact with Mr T if she was permitted to have unsupervised time with the children. She said she would be happy with that on an interim level.
If the mother was prepared to give that undertaking in writing and also prepared to undertake to the Court not to make any derogatory, disparaging or negative statements, including statements with religious connotation, about the father, to the children or within their hearing, then I consider the benefit which would flow to the children of that contact would outweigh any adverse inference the children may pick up about the mother’s views of the father, the court process or the secular world in which they now predominantly live with their father and carers.
In the appearances before the Court made by the mother, I have not had reason to doubt her honesty or sincerity. I consider it probable that if the mother gives her word to the Court in the form of a written undertaking, she will adhere to that undertaking. Should she fail to do so, she will understand that she puts in jeopardy the ability of the Court to be able to make orders she might seek or certainly more in the nature of that which she would seek on the final hearing.
That being the case the next matter to consider is the time which should be provided for the children to spend time with the mother.
The two boys are at school. K is not at school but does attend pre-school. The children were seeing their mother until November last year each Tuesday and Saturday. The Court should move cautiously with the order it makes in the circumstances of this case. There should be an arrangement which would enable the children to meet their new sibling when that time arrives.
I propose to make an order which would operate until August 2016. That order will provide for the children to spend time with the mother unsupervised upon her first signing and filing in the Court the undertakings required by the Court as a pre-requisite to her spending time with the children. The mother’s signature on same is to be witnessed by an adult person of her choosing other than Mr T. The undertaking will also carry an acknowledgment signed by her that she understands the importance and consequence of breaching an undertaking given to the Court. The undertaking, if signed by the mother will also be an acknowledgement by her that she commits herself to abide strictly by the terms of that undertaking. The mother will be required to serve a copy of her written undertaking on each other party (including the intervener and the Independent Children's Lawyer) forthwith upon her filing same in the Court.
The time the children are to spend with the mother will, during the initial period, be each Saturday from 10.00 a.m. to 2.00 p.m. The changeover is to take place at Suburb C Tennis Courts, L Street, Suburb C. The father may have a relative of his or another person of his choice, provide and collect the children to the mother on Saturday, provided that the person delivering at the commencement of the time also be the person to collect the children at the conclusion of that time. If it should transpire that the person delivering the children at the commencement of the time is unavailable to collect at the end of such time then the father is to be present at that later occasion.
I will provide that each party may relist the matter on 48 hours’ notice to the Court and the other parties should any matter of urgency arise from the implementation of these orders and that includes an application by the father for a recovery order. If a recovery order is sought then the application may be made upon 24 hours’ notice.
I will recommend to the mother that she have another person present with her (a friend) to verify her evidence should any allegation arise from the time she spends with the children. This recommendation is made from the Court’s experience in making these types of orders in very difficult and conflictive parental relationships. It may be that the children will report to each parent allegedly bad behaviour engaged in by the other parent, which is contrary to court orders, or which is inflammatory to the interpersonal relationships, which exist in this case.
I have no doubt the mother will see the prerequisite to her spending time with the children as unnecessary, unwarranted, intrusive and perhaps even cruel. Be that as it may, the Court is charged with the responsibility of ensuring children, over whom the Court is exercising its jurisdiction, are not exposed to an unacceptable risk. Consequently, until such time as a full hearing can be conducted, in which the concerns relative to the children’s safety in the care of each parent can be ventilated and tested, those potential risks identified in these reasons need to be contained in a way which permits the relationship between the mother and the children to survive and potentially grow in an environment where their safety can be protected from any identified potential harm.
Ultimately, it must be acknowledged, the mother may be vindicated in relation to the stand she has taken relative to the alleged risk to the children of contact with Mr T. In the meantime the court must make orders which balance the need for the children to have a meaningful relationship with their mother and other siblings in such a manner that does not place them in a situation of unacceptable risk to their wellbeing.
There remains for me a concern about the mother being able to ensure the orders are complied with in one area, and that is that she will be able to have the children return to the father in a circumstance which is not surrounded with trauma to the children. I have no doubt from the evidence of Ms D that the mother will experience the children exhibiting strong signs of not wanting to be returned to the father at the conclusion of the visit with her. The mother will need to be able to manage those events for the children so that they are not traumatised. If she is unable to do so then she may well place in jeopardy the children being able to spend time with her until the final hearing is determined. Such an outcome would be not in the children’s best interests. The events which might give rise to such an outcome may also work against the mother being able to establish her parenting capacity and authority in a manner which would give confidence to a court that she could manage the children successfully into the future.
For all those reasons I make the orders set out at the beginning of this judgment.
I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 11 April 2016.
Associate:
Date: 11 April 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Standing
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Costs
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Appeal
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