DUNBAR & DOYLE

[2018] FCCA 2601

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUNBAR & DOYLE [2018] FCCA 2601

Catchwords:
FAMILY LAW – Parenting – undefended – with whom the children shall live – where mother has a history of drug abuse and unreliability – family violence in the mother’s home – where father has been imprisoned for child sex offences – where father has been the children’s primary caregiver for several years – best interests of the children – children live with the father – father have sole parental responsibility.  

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CC, 61DA, 69W, 69ZW

Applicant: MR DUNBAR

Respondent: MS DOYLE

File Number: MLC 9720 of 2016

Judgment of: Judge Hartnett

Hearing date: 27 August 2018

Orders made: 27 August 2018

Delivered at: Melbourne

Written Reasons Delivered on: 20 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Duffy

Solicitors for the Applicant: Lampe Family Lawyers

The Respondent: No Appearance

Counsel for the Independent Children's Lawyer: Ms Healey

Solicitors for the Independent Children's Lawyer: Robert Halliday and Associates

THE COURT MAKES ORDERS, WITH THE CONSENT OF THE FATHER AND INDEPENDENT CHILDREN’S LAWYER, THAT:

1. The father have sole parental responsibility for the children of the relationship [X] born 2005 and [Y] born 2007 (‘the children’).

2. The children live with the father.

3. The mother spend time and communicate with the children as agreed between the mother and the father.

4. The mother and father by themselves and/or their agents be and are hereby restrained by injunction from the following:-

   (a)denigrating or insulting the other parent or that parent’s family member in the presence and/or hearing of the children or allowing any other person to do so; and/or

   (b)discussing parenting arrangements and/or future litigation proceedings in the presence and/or hearing of the children or allowing any other person to do so.

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9720 of 2016

MR DUNBAR

Applicant

And

MS DOYLE

Respondent

REASONS FOR JUDGMENT

Preliminary

1. Before the Court are parenting proceedings wherein competing parenting orders are sought by each of the mother and father. The children the subject of the proceedings are [X], born 2005, who is now 13 years of age, and [Y], born 2007, who is now 10 years of age. 

2. The orders which the Court made on 27 August 2018 were orders as sought by the father in his further amended initiating application which was filed on 9 August 2018 and as sought by the Independent Children’s Lawyer (‘ICL’). Those parties consented to the making of the orders on that day.

3. The mother failed to appear on the final hearing of the matter. It thus proceeded on an undefended basis.  The mother failed to take part in the proceedings beyond the filing by her of affidavits of evidence filed on 19 December 2016, 21 February 2017 and 11 April 2017.

4. What follows are reasons for the making of the orders on 27 August 2018.

5. As at the date of trial, the father and Independent Children’s Lawyer were unaware of:-

   a)where it is the mother is residing;

   b)the circumstances of the mother’s residence;

   c)any ability the mother may have to accommodate the children in her home;

   d)the contact details of the mother (no telephone or other means of contact have been provided by the mother);

   e)the current status of outstanding criminal charges against the mother, which are due for hearing in the (court omitted) on (date omitted);

   f)the current living arrangements of the mother insofar as to whether she is continuing her previous cohabitation with Ms L whose presence in the mother’s household did not promote the best interests of the children. Ms L’s presence contributed to an environment in which the children did not feel safe;

   g)the reason for the removal of Ms L’s three children from her care by the Department of Health and Human Services (‘DHHS’);  and

   h)the mother’s current drug usage, which appears ongoing with its impacts unknown.

6. The mother failed to attend upon the family consultant, Ms A, for the purposes of the preparation of a family report. That report, to the extent it could be completed, is before the Court in evidence and dated 17 July 2018. 

7. The affidavit evidence relied upon by the father in the proceedings was as follows:-

   a)affidavit sworn by the father and filed on 7 October 2016;

   b)affidavit sworn by the father and filed on 16 December 2016;

   c)affidavit sworn by the father and filed on 16 February 2016;

   d)affidavit sworn by the father and filed on 3 April 2017;

   e)affidavit sworn by the father and filed on 4 May 2018; and

   f)affidavit sworn by the father and filed on 9 August 2018

   g)affidavit affirmed by Dr S, psychologist, and filed on 8 August 2017.

8. The documents relied upon by the ICL in the proceedings was the family report prepared by family consultant Ms A dated 17 July 2018 and the s.67Z of the Family Law Act 1975 (Cth) (‘the Act’) response documents dated 13 January 2017 and 19 June 2017 prepared by Ms T in the first instance and Ms K and Ms C.

9. The mother failed to prosecute her application. Prior to her ceasing to engage in the litigation she had filed the affidavits referred to in paragraph 3 above. Additionally, she had filed an affidavit of evidence by Dr C, forensic psychiatrist, sworn 28 September 2017.  In Dr C’s annexed report being his assessment of the mother, which is dated 6 June 2017, Dr C noted that the mother provided a history of, at the time, residing with her partner, Ms L, and her partner’s three children, and being in receipt of a Newstart allowance.

10. Dr C’s expert opinion, as contained in his report, was that the mother has suffered from trichotillomania; anxiety disorder with features of generalised anxiety disorder; and panic disorder with agoraphobia.  Further, he documented that the mother has a history of polysubstance abuse including methamphetamines, with such abuse associated with methamphetamine-induced psychotic symptoms.  Dr C noted that the mother’s substance abuse appeared, at that time, to be in remission and that there was then no current evidence of psychosis. 

11. Dr C formed the belief that the mother’s medication treatment was suboptimal and that it needed to be reviewed with a view as to whether the dosage taken by her needed to be increased.  Dr C was also of the belief that the mother needed to engage in psychological treatment to assist her to better manage her anxiety symptoms. He opined that he had seen no evidence to suggest that the mother’s anxiety disorder significantly or severely impacted upon her ability to parent her children.

History and evidence 

1. The father commenced these proceedings by initiating application on 7 October 2016.  He amended that initiating application on 16 December 2016, and thereafter filed a further amended initiating application on 9 August 2018.

2. The mother filed a response to initiating application in 19 December 2016, wherein she sought that the children live with her and spend time and communicate with the father as ordered by the Court.

3. The father was born 1946.  He is now aged 72.  The mother was born 1978.  She is now aged 40.

4. Many years prior to the parties meeting, and many years prior to their cohabitation commencing in 2004, the father was, in 1994, charged with five counts of committing an indecent act with a child under 16, and six counts of unlawfully and injuriously imprisoning a child under the age of 16.  1996 the father attended the (court omitted) and was convicted on five counts of indecent act with a child under 16 years, and six counts of false imprisonment of a child under 16 years.  He was sentenced to a total sentence of three years with a minimum term of 18 months to be served before being eligible for parole, with 27 days already served.

5. In the s.67Z of the Act response document prepared by Ms T, advanced child protection practitioner with the Department of Health and Human Services (‘DHHS’), Ms T noted that the father:-

   “…has been convicted of a number of sexual offences against children.  However, he is not on the Sex Offenders Registry due to the offences being prior to when the Register was established.”

6. The parties commenced cohabitation in 2004. The parties’ son, [X], was born 2005.  Thereafter, 2007, the parties’ daughter, [Y], was born. 

7. On 30 October 2009, DHHS received a report alleging a family violence incident occurred between the mother and father. This was the first of 10 reports to Child Protection in respect of the children between 2009 and 2017. The majority of these reports were investigated, some with substantiations of abuse. The children were subject to a Children’s Court protection order from 31 October 2009 to 6 April 2010. The DHHS s.67Z of the Act report dated 13 January 2017 noted the following in respect of the period between 2009 and 2016:-

   “…The concerns were in relation to significant family violence between the mother and her partner Ms L, family violence between the mother and father, environmental neglect, allegations that Ms L dragged [Y] across the stone drive way, report that [Y] disclosed that Ms L had hit her across the face with a shoe, [X] disclosing ongoing verbal and physical abuse perpetrated by Ms L, the mother and Ms L had been evicted from the premises via (omitted) due to environmental neglect, mother and Ms L’s substance misuse (ICE and Marijuana), Ms L’s hospital admission due to drug induced psychosis, possible sexual harm, and chaotic lifestyle….”

8. On 8 July 2011, DHHS received a report alleging that the children presented with bruises and finger marks on their arms after being in the mother’s full time care. The mother denied the reports of abuse.

9. In 2012, the parties separated on a final basis. They had had some periods of separation prior thereto.  The children remained, upon separation, in the father’s care, and they spent time with their mother as supervised by the father. 

10. In November 2013, DHHS received a report alleging disclosure of sexual abuse allegedly perpetrated by the father towards a child known to the family. The allegation was not substantiated and the child retracted the allegation. At the time of this investigation [Y] was residing with the mother, and [X] was residing with the father. It was also reported the mother engaged in illicit substance misuse and exposed the children to this.

11. On 20 January 2015, DHHS received a report that Ms L, had been physically abusing the children and that Ms L had perpetrated family violence against the mother in the presence of the children. The abuse of the children include Ms L dragging [Y] across the stone driveway at their home and Ms L hitting [Y] across the face with a shoe. Concerns were also raised about the mother’s and Ms L’s drug use. A protection application was issued in respect of Ms L’s children. The father was seen to be acting protectively toward the parties’ children who both then remained in his primary care.

12. On 1 January 2016, DHHS received a report that [Y] did not want to return to her father’s care with allegations that the father was sexually abusing [Y]; that [X] had anger issues and was taking on a parental role in the father’s home; and that the father’s home was in poor condition. The case was closed on 4 January 2016. The children made no disclosures regarding sexual abuse and the mother failed to engage with child protection. The schools had raised no issues in regard to the children’s presentation in the father’s care and the father advised child protection he would not allow Ms L to have contact with the children.

13. On 17 September 2016, the mother overheld [Y] at the conclusion of a brief time spent with period, agreed to by the father, allegedly telling the father, “you’re not getting her back.” [X] had remained in his father’s care during this time as he was fearful of Ms L.

14. On 24 October 2016, the Court made interim orders on the father’s urgent application, filed 7 October 2016, including, relevantly, that a recovery order be issued for [Y] to be returned to her father’s care until further order.

15. On 27 October 2016, DHHS workers interviewed [Y] who made no disclosures of sexual abuse.  [Y] said that she liked living with her father and felt safe with him, and that she would like to spend time with or reside with her mother, but not with Ms L.

16. On 7 November 2016, an interim intervention order in the (omitted court) was made naming the mother as the affected family member and the father as the respondent.  That order was said to last until further order.

17. On 8 November 2016, a differing interim intervention order was made naming the father and children as affected family members and the mother as the respondent lasting until further order.

18. On 18 November 2016, DHHS workers attended the father’s home and interviewed the children.  [X] said of living with his father that “It’s fabulous. I have lots of friends here, I can do stuff with my dad and I like my school”. He said as to his mother that he would like to see his mother, but not Ms L, that his mother and Ms L used drugs in the laundry, and that he missed his mum “heaps”. [Y] said she enjoyed living with her father and felt safe, and that she wanted to see her mother “but only without Ms L.” She liked her school.

19. On 21 November 2016, DHHS interviewed the mother via telephone.  The mother made allegations that [Y] had disclosed to her matters pertaining to sexual abuse of [Y] by the father.  DHHS workers attended the father’s home in the following month and informed him that complaints of a sexual nature had been made against him.  The father shortly thereafter filed his amended initiating application in the Court.

20. On 20 December 2016 interim orders were made by the Court, relevantly as follows:-

    “THE COURT ORDERS BY CONSENT THAT:

    …

    2. Pursuant to s.69W of the Family Law Act 1975 (Cth), the Applicant and the Respondent do all acts and things necessary to undergo a parentage testing procedure to ascertain whether the Respondent is the natural father of the children [X] born 2005 and [Y] born 2007 (‘the children’). Each of the Applicant and the Respondent pay one half of the costs of such procedure.

    THE COURT ORDERS THAT:

    3. Pursuant to s.11F of the Family Law Act 1975 (Cth), the parties to the proceedings and the children [X] born 2005 and [Y] born 2007 (‘the children’) shall attend an appointment with a family consultant, with the father to attend with the children at 9.00am and the mother to attend at 10.00am on 22 December 2016 for the preparation of a written report.

    4. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth), the children [X] born 2005 and [Y] born 2007 (‘the children’) be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

    …

    7. Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department of Health & Human Services provide a Report to the Court as a matter of urgency, such Report to outline:

    (a) any notifications to the Department of Health & Human Services of suspected abuse of the children to whom the proceedings relate or of suspected family violence affecting the children;

    (b) any assessments by the Department of Health & Human Services of investigations into a notification of that kind or the findings or outcomes of those investigations; and

    (c) any reports commissioned by the Agency in the course of investigating a notification.

    …

    THE COURT ORDERS, BY CONSENT AND UNTIL FURTHER ORDER THAT:

    1. The children [Y] born 2007 and [X] born 2005 live with the father.

2. The Solicitors for the Applicant and Respondent agree on the testing facility to be utilised for parentage testing and failing agreement such testing facility be as nominated by the Independent Children’s Lawyer when appointed.

THE COURT ORDERS THAT:

3. The mother spend time and communicate with the children as follows :

a) during the school holidays from 10.00am Thursday until 10.00am Sunday each week commencing 22 December 2016;

b) for the purposes of Christmas 2016 the mother have time with the children pursuant to order 3(a) until 12.00 noon Sunday;

c) during school term from the cessation of school on the Friday until 6.00pm Sunday each alternate week commencing 10 February 2017;

d) by phone during school holidays each Tuesday between 6.00pm and 7.00pm;

e) by phone during school term each Tuesday and Thursday between 6.00pm and 7.00pm.

4. Changeover occur at Location A.

5. The mother undergo hair follicle testing for drug usage within 24 hours of such request from the Independent Children’s Lawyer when appointed and provide the results of same to the Independent Children’s Lawyer and the Solicitor for the father.  In the event of a positive result there is liberty to apply on short notice.

6. In the event that any of the tests are affirmative the mother will reimburse the father for the cost of such test upon the father’s Solicitor providing documentation of the cost of such test to the mother’s Solicitor.

AND THE COURT NOTES THAT:

Time spent on 22 December 2016 will commence following the S11F Conference.”

1. On 22 February 2017 further interim orders were made which included that the father undergo a psychosexual assessment, the children undergo a paediatric assessment and a mental health assessment, and the mother undergo a psychiatric assessment.

2. On 14 March 2017 [Y] made disclosures at school that she was sleeping with the father in his bed. This was contrary to [Y]’s earlier statement of 17 January 2017 to Ms T that she always slept in her own bed at her father’s home. On the following day, the Sexual Offences and Child Abuse Investigation Team (‘SOCIT’) attended the father’s home and interviewed the father and [Y] separately.  The father stated that [Y] told him after her interview that she had been coerced into making the allegations that she did by the mother and Ms L. [Y] made no disclosure about any sexual abuse occurring in her father’s home to SOCIT.

3. On 24 March 2017 four DHHS workers attended the father’s home and inspected the property. A further child protection report had been received alleging general hygiene issues in the father’s home. [Y] had also claimed there was a camera in her room. The camera was discovered to be a motion sensor from the home security system. The system was not operational. The father agreed to remove the sensor to alleviate [Y]’s concerns that she was being watched or recorded in her room. In that same week the mother allegedly said to [Y] over the telephone, “I am going to the police and having you removed from your house.”  The father again filed another application before the Court as a result of these matters with the parties appearing in Court for a further interim hearing on 11 April 2017. Injunctions restraining the parties from denigrating the other in the presence and/or hearing of the children were made.

4. On 8 August 2017 an affidavit of Dr S, psychologist was filed by the father, annexing his psychosexual report in relation to the father dated 26 June 2017.

5. On 23 August 2017 an interim order was made that a family report be prepared and that the solicitors for the mother have leave to issue subpoenas relating to the father’s 1996 sexual offences.  The children were further ordered to be assessed by a paediatrician.

6. On 12 March 2018 the mother was charged with one count each of theft, possession of cannabis, theft of a motor vehicle and burglary. The father was not aware of the mother’s charges until told by his solicitor on 13 April 2018, discovered as a result of his solicitor’s inspection of subpoenaed materials.  The father instructed his solicitors to seek further information from the mother relating to her criminal matters.  No response was received from the mother. Thereafter, the father, on 15 April 2018, attended the mother’s home and saw bruises on her body.  Some nine days later the mother received an eviction notice to vacate her property.

1. The father suspended the children’s time with their mother on 27 April 2018.  Prior to this time, the father had developing concerns as to the welfare of the children whilst in their mother’s care. Some of these are detailed below:-

   a)on 9 March 2018, the children and their father attended changeover at Location A pursuant to earlier Court orders.  The mother contacted the father at approximately 7.30pm and informed him that she would not be attending changeover.  She further informed him that she was being evicted from her home and that she had to vacate it by 10 March 2018;

   b)the mother also advised the father that she would not be able to pick up the children for at least three to four weeks, as she had still not repaired her car and could not afford the cost to have it repaired.  The children conveyed to their mother their disappointment in her inability to see them, with the mother’s response being, “Bad fucking luck” and “I can’t do anything about it”;

   c)on 16 March 2018, the father received a phone call from the mother, wherein the mother said words to the effect that she had no car, no money, no house, and that it would be a long time before she would see the children.  She advised the father that her house had been raided again by the police, as they were searching for stolen goods;

   d)on 23 March 2018, the father again attended changeover pursuant to earlier orders of the Court.  He received a text message followed by a call from the mother saying that contact would not be occurring and she would not be attending changeover;

   e)on 6 April 2018, the children stayed with their mother for the second half of the school term holidays until 13 April 2018.  Two days prior to the children being returned to the father’s care, the mother rang the father to advise that Ms L had left her and that she was in the house on her own with five children, including Ms L’s three children. She informed the father she was unable to return the children until the following day, as she did not have a car;

   f)on the following day, the father attended in (location omitted) to pick the children up. Upon arriving at the mother’s home, he observed that the front windows of the home were smashed, rubbish was strewn all over the front lawn and driveway, and the entrance of the home was a complete mess.  The mother was in a highly distressed state and the father noticed her body was covered in bruises; and

   g)on 2 May 2018, the mother contacted the father to advise him that she was again living with Ms L and her three children, and that they were then living in a motel, as the DHHS could not assist them in finding necessary accommodation.

2. The father, acting protectively toward the children, by necessity again returned to Court to seek a suspension of the mother’s time with the children. On 13 June 2018, the Court made further interim orders, including relevantly that the mother spend time and communicate with the children as agreed between the parents. 

3. The father remains very concerned, given the disclosures made to him by the mother, as to the children’s safety whilst in the mother’s care.  The mother does not currently have secure accommodation.  She is not able to provide any stability for the children, and she has engaged in criminal activity and is currently facing criminal charges.  The mother has, in recent months, provided no consistency or routine for the children to have contact with her. She has cancelled many of the much anticipated, by the children, periods of time the children were to spend with her. This has caused emotional damage to the children who still very much miss their mother.  

4. The father is justifiably concerned by the exposure of the children to the mother’s relationship with Ms L. The father seeks to avoid the children’s further exposure to Ms L and her adverse impactful behaviours in the future.

5. Despite the father’s protective concerns for the children, and his past acrimonious relationship with the mother, the father nevertheless wishes to promote the children’s relationship with their mother as he, belatedly, acknowledges the, as described by the Family Consultant, children’s “grief over the lack of in person time with their mother”.[1] Accordingly, on 3 August 2018, the father provided an opportunity to the mother for her to spend 40 minutes with the children at Location A, supervised by him. He will continue to promote that relationship within the confines of the mother’s availability and lack of risk presentation.

   [1] Family Report of Ms A dated 17 July 2018 at paragraph 19.

6. The affidavit evidence of Dr R, consultant paediatrician, went to his assessment of both [Y] and [X]’s health, welfare and development, as derived from a lengthy consultation held between he and the children on 31 August 2017.  Dr R said, in respect of [Y], that:-

   “She presented as bright, articulate, forthcoming, and relaxed.  She indicated that she is happier at School A and that she has been to 3 different schools over time.”

7. [Y] said of her father that:-

   “She tries to help her dad.  She says her dad is a good dad.  She is happy living with her dad but would like to see her mother a little more because she misses her.”

8. Dr R asked [Y] why it was she thought that the Court had determined that she and [X] should live with her father rather than her mother.  [Y]’s response was that:-

   “It was because her mother’s partner Ms L used to hit the kids.  She also says that her mum used to drink and that she still does drink and smokes as well.  She said she drinks Smirnoff black straight sometimes, with lemonade, with a twist.  She says her mum smokes stuff other than cigarettes at times.  She says steam comes out of a glass and plastic thing.  She says her mum and Ms L have a few different types of stuff they smoke from.  Mum goes in the laundry to do it, and doesn’t do it in front of the kids although the kids can smell it.  She says her mum looks after them pretty well.  Ms L cooks lasagne and goes and gets pizza.  They don’t eat much take away.  They have garden salads.”

9. [Y] told Dr R that her father looked after she and her brother very well.  [Y] said of her father that:-

   “He does everything for her, takes them places, cooks for us all the time, hardly ever buys takeaway, tries to eat healthy, in particular so [Y] can lose weight.  Her big sisters (half sisters), [D] and [E], come over and help out sometimes.”

10. In consultation with [X], Dr R noted that he spent time with [X] on his own, with his father out of the room.  He said of [X] that:-

    “He was cooperative, relaxed, forthcoming, and articulate.  He presented as a very sweet boy.  He acknowledged that schoolwork is hard particularly maths although he says he is better in English.  He admits his behaviour hasn’t been great over time. He fights with other kids at school.  He swears at teachers.  He finds it difficult to sit and concentrate. He is active and energetic. He has had suspensions in the past but said he has improved with behaviour through 2017.

    [X] has been to several different schools over time.  This is related to multiple residential moves.”

11. [X] told Dr R that it was good living with his father, and described his father as “a good dad”.  He claimed that he would rather live with his dad, “dad for sure”, no matter what.  He said his father was getting older, and he wanted to look after his dad “given that he is getting older”.

12. When asked about his mother, Dr R noted that [X] said that he liked going to (location omitted) to visit his mother, and that in the past, he had difficulty with his mother’s partner, although at the time of assessment it was “okay”.  He said there was “lots of swearing down at his mother’s place”.

13. Dr R noted that one thing that concerned [X] was the prospect of his father passing away.  He said his father had wanted [X] and his sister, [Y], to live with one of their older half-sisters, [D] or [E].  These are adult children of the father with whom the children spend some considerable time. [X] thought he would rather live with his mother, provided “she gets herself right and doesn’t smoke or take drugs”.

Consideration

1. The Court determines, in the circumstances of this matter, the presumption of equal shared parental responsibility, as set out in s.61DA(1) of the Act, is rebutted, and that the father should have sole parental responsibility for the children.

2. Given the mother’s current instability in her life, her apparent lack of accommodation, her ongoing history of drug use, and her impending criminal charges, it is not possible for the parties to engage in any meaningful dialogue with regard to the children’s health, education and general welfare.

3. The father is the children’s primary caregiver, indeed, in the absence of the mother’s ongoing participation, their only caregiver at the present time and is required to make decisions, not just concerning their day-to-day care, but matters relating to their long-term care without input from the mother.  Both on the evidence that is before the Court, and by virtue of the risk that the mother presents to the children, the presumption is rebutted. 

4. The ICL submitted to the Court that the children, when looking to the s.60CC of the Act considerations, would benefit from having a meaningful relationship with both of their parents. Whilst they would, and in particular because of the children’s attachment to their mother, there is a difficulty in progressing that meaningful relationship at the present time as a result of the mother’s actions. She is inconsistent and unreliable in her exercise of time spent with the children, which causes the children to be upset. She has also failed to protect them with respect to incidents of family violence in her relationship with her partner, Ms L. The children have been exposed to both neglect and family violence in the mother’s household, and have been psychologically damaged by that exposure.

5. The children have also been exposed to their mother’s regular intake of marijuana and her use over time of ice, cocaine and ecstasy, as alleged by the father. There have been previous protective concerns in respect of these matters whilst the children have been in the mother’s care. The mother’s partner, Ms L, has been admitted to hospital due to drug induced psychosis, possible sexual harm and chaotic lifestyle, as referred to in the s.67Z of the Act response prepared by Ms T. That same s.67Z of the Act response also noted:-

   “It is evident the relationship between both parents remains acrimonious and impacts upon [X] and [Y]’s wellbeing with constant allegations being made mainly by Ms Doyle, and occasionally by Mr Dunbar.

   … [Y] has been interviewed twice by SOCIT and several times by child protection workers, and she has not made any disclosures of sexual abuse to date, nor have she disclosed feeling unsafe in her father’s care.”

6. The father’s earlier criminal history of sexual assault upon a minor was noted by Dr S in his report to be minimised by the father.  This resulted in Dr S, in his psychosexual risk assessment of the father, to include that the father presented a “moderate” risk of sexual violence, whilst nothing that:-

   “Because of the lack of appropriate information, it would be inappropriate to make a formal estimate concerning Mr Dunbar.”[2]

   [2] Report prepared by Dr S dated 26 June 2017 at paragraph 27.

7. The DHHS have not recommended at any time that the children be removed from the care of their father. The children have been continuously interviewed by departmental workers and SOCIT workers, and have not considered themselves unsafe in their father’s care, nor has the DHHS concluded that to be the case. 

8. The children’s views, as they have been expressed in the s.67Z of the Act responses, in the Family Report prepared by Ms A, and in the s.11F of the Act report prepared by family consultant, Mr W, have remained consistent. They very much miss their mother and would like to spend more time with her, but are happy living with their father.

9. Both children want to spend more time with their mother. They want that to include overnight time, and the father would, the Court is satisfied, support that if the mother were in a position to offer safe and stable accommodation. 

10. In respect of s.60CC(3)(i) of the Act in particular, the ICL adopted paragraph 47 of the Family Report, where in relation to the attitude to the children and the responsibilities of parenthood of each of the parents, Ms A stated that the mother’s:-

    “…absence at the interview after many attempts to contact her raises the question of whether the children feel the intensity of their grief because their mother is emotionally, psychologically and physically unavailable to them at present, rather than due to anything their father might do to obstruct their time with her or anything he is not providing.”

11. The father has, for some years now, assumed the primary care of the children, and they are happy in his primary care.   He has not re-partnered, nor exposed them to family violence in the way in which the mother has. He was required to initiate this litigation because of the over-holding of [Y] by the mother in respect of an agreed period of time to be spent by [Y] in her mother’s home. Thereafter, as occurred previously, DHHS have been extensively involved with the family with allegation and counter-allegation being made. The outcome of those allegations is that the evidence before the Court as discussed above, supports the making of orders as sought by the father which are supported by the ICL, without challenge to the father’s evidence. Nor is the father’s evidence challenged by the mother who allowed the proceedings to proceed undefended, and who ultimately failed to seek any parenting orders with respect to the children.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 20 September 2018