EDGAR & HALLE
[2010] FamCA 58
•3 February, 2010
FAMILY COURT OF AUSTRALIA
| EDGAR & HALLE | [2010] FamCA 58 |
| FAMILY LAW - CHILDREN - residence - Magellan - allegations of physical violence against mother - no disclosures by child to police, protective workers, teachers - unreliability of father’s accounts - no unacceptable risk with mother - unacceptable risk of emotional abuse with father - child to live with mother - sole parental responsibility to mother - time with father |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC(1), 61DA, 65DAA(1) and (2), 60CD(2), 62G(2), 91B, Mental Health Act 1986 s 37 |
| Hartford & Ansilda [2009] FamCA 23 Hemiro & Sinla [2009] FamCA 181 Blanch v Blanch & Crawford (1999) FLC ¶92-837 |
| FATHER: | Mr Edgar |
| MOTHER: | Ms Halle |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 8444 | of | 2008 |
| DATE DELIVERED: | 3 February, 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BROWN J. |
| HEARING DATE: | 7, 8 and 9 December, 2009 |
REPRESENTATION
| THE FATHER: | In person |
| COUNSEL FOR THE MOTHER: | Ms. Agresta |
| SOLICITOR FOR THE MOTHER: | Altavilla Vessali |
| COUNSEL FOR THE I.C.L. | Ms. Boymal |
| INDEPENDENT CHILDREN’S LAWYER | Kenna Teasdale |
Orders
That all previous parenting orders and injunction in respect of the child G (“the child”) born … January, 2000 be discharged.
That the mother have sole parental responsibility for the child.
That the child live with the mother.
That subject to paragraphs (5) and (6) hereof, the father spend time and communicate with the child as follows :
(a)during school terms in each alternate week from the conclusion of school on Friday until the commencement of school the following Monday (or if Monday is a public holiday, Tuesday) commencing on 5 February, 2010 and thereafter recommencing on the first weekend in each school term;
(b)for one half of school holidays at times to be agreed and, failing agreement :
(i)the first half in 2011 and each alternate year thereafter; and
(ii)the second half in 2010 and each alternate year thereafter;
(c)if the child would not otherwise be with the father on Fathers’ Day, from 9:00 am. to 5:00 pm. on Fathers’ Day;
(d)if the child would not otherwise be with the father on the child’s birthday, for four hours on the child’s birthday at times to be agreed and failing agreement from 10:00 am. to 2:00 pm.;
(e)by telephone on each Tuesday and Thursday on which the child is not in the father’s care, the telephone call to be made by the child between 5:00 pm. and 6:30 pm. and to be facilitated by the mother;
(f)at such other times as are agreed between the parties.
If the child would not otherwise be with the mother on Mothers’ Day the child shall spend time with the mother from 9:00 am. to 5:00 pm. on Mothers’ Day.
If the child would not otherwise be with the mother on his birthday, the child shall spend time with the mother for four hours on his birthday at times to be agreed and failing agreement from 10:00 am. to 2:00 pm.
That save when changeovers occur at the commencement or conclusion of a school day, and subject to any agreement between the parties to the contrary, the father collect the child from the mother’s front gate at the commencement of a period of time with him and the mother collect the child from the father’s front gate at the conclusion of each such period.
That the mother keep the father advised of any change in the school at which the child is enrolled (the court noting that he is presently enrolled at P Primary School).
That the father be at liberty to attend events, activities and functions at the child’s school which are routinely attended by parents.
That the father be at liberty to arrange with the principal of each school attended by the child to obtain, at his expense (if any) copies of the following :
(a)each school report for the child;
(b)each order form for a school photo of the child; and
(c)newsletters and like documents routinely provided to parents;
and this order shall stand as authority to the principal to provide these items.
That each of the parties keep the other advised of any significant illness or injury suffered by the child when in his or her care.
That the mother advise the father in writing of the name of each specialist medical practitioner, psychologist, counsellor or like professional consulted by the child and authorise each such professional to discuss the child’s prognosis and treatment with the father PROVIDED THAT all decisions as to the medical or like professional to be consulted and the nature and extent of all interventions and treatment are the sole responsibility of the mother.
That the mother and father each be and are by themselves, their servants and agents, restrained from :
(a)denigrating the other or allowing anyone else to denigrate the other in the presence or hearing of the child; and
(b)discussing the proceedings and the evidence in the proceedings in the presence of hearing of the child or allowing any other person to do so.
That as soon as practicable the mother serve a sealed copy of these orders on the principal of P Primary School and thereafter on the principal of each school attended from time to time by the child.
That the reasons for judgment herein may be made available to :
(a)the principal of each school attended by the child and, in his or her absolute discretion, any teacher, psychologist, counsellor or like professional working with the child through the school;
(b)any medical practitioner, psychologist, counsellor or like professional consulted by the child;
(c)to a member of a State or Federal police force or a protective worker investigating any subsequent allegation which relates to the child or to a party;
(d)any court or tribunal before which is listed any application which relates to a party or the child;
(e)Mr. S; and
(f)the Department of Human Services.
That the independent children’s lawyer be discharged at the expiration of one month hereof or, in the event a Notice of Appeal is filed, upon determination of the Notice of Appeal.
That all extant applications be otherwise dismissed.
That these applications be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Edgar & Halle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8444 of 2008
| MR EDGAR |
Father
And
| MS HALLE |
Mother
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Ms Halle and Mr Edgar have a son G, who was born in January, 2000. They separated when G was almost two. Since then G has lived with his mother and spent time with his father, by agreement. This arrangement broke down in September 2008 and the mother filed an application seeking parenting orders under the Family Law Act 1975 (“the Act”). The court is asked to determine questions of parental responsibility, where G should live and the time G should spend with the parent with whom he does not live.
PARTIES
The mother is 37 and works three days a week at V Organisation. She lives in K with her father and her younger son, N, who was born in November, 2006. Her mother died prior to her move to her father’s home in June 2008. N’s father is Mr W, with whom the mother lived between August 2006 and June 2008. Her sister and brother-in-law live close by and assist with after school care for G and N on the days she is in paid work, and at other times.
The father is 47 and is on a Centrelink carer’s pension as, he deposed, he cares for his 74 year old mother who is “worn out”. He lives in a unit in K, which is only five minutes walk from the mother’s home. Ostensibly his mother lives with him however his evidence about his living arrangements was very unsatisfactory.
The father has two daughters from a previous marriage who live with their mother; E is thirteen and A is twelve. His evidence was that they spend almost every weekend with him and as G is at his home every second weekend, they spend a lot of time with G. The unit in which the father lives has only two bedrooms. His evidence was that whenever any of the children come to stay, his mother goes to live with his sister and her husband as “she can’t be there when my children are there”. His daughters sleep in twin beds in his mother’s room; he and G share the queen size bed in his room.
PROPOSALS
When the trial commenced the mother proposed that the parties share parental responsibility, that G live with her and spend five nights a fortnight with his father during school terms, and half school holidays. This proposal was in line with the recommendations of Mr. S, who prepared a family report dated 3 March, 2009. Pursuant to interim orders G presently spends three nights per fortnight with his father.
When the father saw Mr. S on 29 January, 2009 the father sought that G live with him and spend three nights per fortnight with his mother. That is, he sought a continuation of the present division of time, but that he be the resident parent, not the mother. By the time the trial commenced he sought that G live with him and spend a short period of time with the mother on each alternate weekend, supervised by him or by the Department of Human Services. He proposed that if G “feels comfortable”, he could spend unsupervised additional time with her whenever he wanted. Asked about the tension between that proposal and his primary proposal for supervised time, he said he made it because “I believe he [G] won’t ask for extra time”.
In his final submission, counsel for the independent children’s lawyer (ICL) proposed that the mother have sole parental responsibility for G and that G live with her. He submitted that G’s best interests would be served by spending alternate weekends (from Friday to Monday) with his father, as well as half school holidays and time on special days.
The ICL was very concerned about the pattern of violence and stalking exhibited by the father, his negativity and lack of support for G’s relationship with his mother and his poor role-modelling of violence, personal responsibility and respect for women and authority. It was his submission that one way of overcoming the negative effects of the father’s behaviour and hostility was to limit the time the father spent with G, as this would limit the periods in which G is exposed to a narrative which distorts his own experience and demonises his mother.
Having heard the final submission of the ICL, counsel for the mother supported the making of orders in the terms sought by the ICL, rather than those originally proposed by the mother.
It is difficult to be certain of the father’s final position. At one point he said the court should “scratch out supervised (time)” if the court found there was no risk of harm but maintained his conviction that G is at risk of harm. He went on to say that he or his brother-in-law should supervise the mother’s time with G which should be half a day, or four or five hours, at a park or a play centre.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).
The court must always be mindful of the objects and principles set out in s.60B(1) of the Act.
The principles applicable to the determination of cases involving allegations of sexual and physical abuse of children were recently summarised in Hartford & Ansilda [2009] FamCA 23 and in Hemiro & Sinla [2009] FamCA 181. As submitted by counsel for the ICL, the ultimate and paramount issue is whether the making of the orders sought is in the best interests of the child. While findings on disputed allegations of physical and emotional abuse will have an important and sometimes decisive impact on the resolution of that issue, their resolution is subservient and ancillary to the court’s determination of what is in the best interests of the child.
When considering allegations of abuse, the court must determine whether there is an unacceptable risk of abuse of the child; the relevant standard is the balance of probabilities.
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
Passages quoted from documents before the court are reproduced verbatim; grammatical or spelling errors are neither noted nor corrected.
The mother relied on affidavits sworn by her on 19 September, 2008, 21 October, 2008 and 13 August, 2009. She was cross-examined. She tendered an affidavit sworn by the father on 8 October, 2008.
The father relied on an affidavit sworn by him on 4 November, 2009 and an affidavit of a family friend, Ms T, sworn on 4 November, 2009. Both were cross-examined.
Pursuant to subpoena the father called the following witnesses, for whom no proofs of evidence were provided :
· Ms. M, a DHS protective worker, who investigated a notification to DHS in September 2008;
· Sergeant LN of Victoria Police, who responded to a call to attend the father’s home on 14 September, 2008;
· Ms. H, a teacher and student welfare co-ordinator at P Primary School, who was involved with G for four years.
Ms. M, Sgt. LN and Ms. H were cross examined.
At the request of the court, the ICL, Ms. Paula Lesley, gave oral evidence about conversations she had with G. She was cross-examined.
In evidence was a family report, prepared by Mr. S, pursuant to an order made on 12 December, 2008. Mr. S was cross-examined.
Also in evidence was a report prepared by DHS after the court requested it intervene in the proceedings pursuant to s.91B of the Act on 21 October, 2008.
ASSESSMENT OF PARTIES AND WITNESSES
The evidence is that the parties have often co-operated in the past, notwithstanding reciprocal hostility. Events in September 2008 and the ensuing litigation have destroyed their residual good will and both were swift to draw adverse inferences against the other and make comments critical of the other.
The mother presented as very certain in her account of events and at times found it hard to be directly responsive to questions. It is probable she has reconstructed events which occurred when she lived with Mr. W to minimise his violence and the father could have a legitimate concern that she may not appreciate the impact on children of exposure to parental conflict and abuse. The mother conceded that she has stolen from shops on a number of occasions; the last finding of theft from a shop was made on 26 March, 2008. She did tender her prior convictions but tended to minimise her own responsibility, speaking, for example, of stealing food to feed her child.
It is probable the mother’s attitude to the father hardened when she overheard him tell G in mid-2009 that she did not love him (G) and that she only said she wanted the father to spend time with G so she could get rid of him (G), statements I am satisfied the father made.
The father presented as just as definite as the mother and just as swift to use a question to respond critically about her. As noted earlier, his evidence about his living arrangements was very unsatisfactory and the court was left with no clear idea of what G’s living arrangements would be if he were to live with his father. There could well be substance in the mother’s allegation that the father’s application for G to live with him is financially based and made after he lost his job in 2008.
The father has a number of old prior convictions for dishonesty and was convicted in 1995 for possessing a firearm without a licence. Police sought and obtained intervention orders on behalf of the mother against him in 2002, 2004 and 2005 and he and his mother were found guilty on 14 February, 2007 of recklessly causing injury to the mother. The father’s alleged concern about the potential impact on N of exposure to violence between Mr. W and the mother needs to be seen in the light of his own actions, for which he refused to take any responsibility. In almost every instance he asserted he was not guilty of the offences found proven against him in the criminal court, and that there was no factual base for the intervention orders made by magistrates after contested hearings.
The court must find that each of the parties tends to reconstruct the past through a lens of acrimony, exaggerate the other’s flaws and minimise his or her own. That said, I have far more confidence in the mother’s capacity for objective recollection. I am satisfied the father was prepared to tailor, and invent, evidence to support the case he sought to make and was prepared to make wild allegations against the mother and see himself as the victim of a conspiracy, orchestrated by her. The father spoke of taking the mother to church because, he thought, she was possessed. He alleged she was a police informant and thus the police were sympathetic to her. He attributed the failure of police and DHS to take action against her, and findings made against him in the Magistrates’ Court, to the fact “she is a woman” and “it’s a woman’s world”.
The father maintained that the ICL lied when she gave evidence of speaking with G on 10 November, 2009, that Sgt. LN lied when she denied G said in her presence on 14 September, 2009 that his mother assaulted him, that Ms. H lied when she said she was not concerned about a red mark on G’s face in 2008 and that G’s explanation for it was not as his father alleged and that Ms. M lied when she said that the father tried to coerce G into making allegations against his mother when she interviewed G in his father’s presence in September 2008 and when she denied G told her that his mother was violent to him.
Sgt. LN, Ms. H and Ms. M were all called by the father. His submission was that each of them failed to tell the truth. Sgt. LN and Ms. H each said clearly and without prompting that had G disclosed (as the father insisted he had) that his mother had punched him in the ribs or stomped on his head or assaulted him in any other way, she would have been obliged to report it pursuant to the legislative provisions. Ms. M’s evidence was that if a child disclosed physical abuse to her she is required to document the disclosure and make an immediate report to SOCAU. If G had made any such allegation she would have taken that course. He made none.
Notwithstanding the evidence from these three witnesses, the father maintained he heard G make disclosures of physical abuse to them all.
The father’s evidence in respect of the ICL was illuminating as it illustrates his capacity to distort evidence and maintain that distortion, however improbable. Perhaps more importantly, it demonstrated the way he has implicated G in the proceedings and the necessity for caution when assessing the father’s accounts of conversations with G and the accuracy of statements allegedly made by G to his father.
In the course of the trial counsel for the ICL referred to a conversation the ICL had with G on 10 November, 2009 in which G told her that he wanted “things to go back the way they were before”, to see his mother when he wanted to and see his father when he wanted to. The father denied any such conversation took place. Section 60CD(2) of the Act sets out the ways in which the court can inform itself of views expressed by a child. The court can have regard to the contents of a family report provided pursuant to s.62G(2). It can make an order that the child’s interests be independently represented by a lawyer, as occurred in this case. Subject to the Rules of Court it can inform itself by such other means as it thinks appropriate. In this case the court determined it appropriate to call the ICL, Ms. Lesley.
Ms. Leslie’s evidence was of meeting G twice. They first met on 3 December, 2008, before the Magellan listing on 12 December. She did not ask many questions. G knew who she was and called her Paula. G talked about his friends at school and rattled off a list of names. Ms. Leslie told him about the judge and that if he wanted her to tell the judge anything, he could do that through her. G declined to say anything. Ms. Leslie’s impression was that he did not want to be involved.
Ms. Leslie’s evidence was of telling the parties of that meeting at the next court hearing and that the father said, through his barrister, that she had not spoken to G at all.
On 10 November, 2009 Ms. Leslie met with G again; her secretary was present. G was more comfortable. Again they talked about school, his friends and his brother and sisters. He told her “You help people with court”. Ms. Leslie said he presented as “a lovely child”. It was at that meeting that he told her that he wanted things to go back to the way they were before, and to see each of his parents when he wanted.
After that meeting the mother rang Ms. Lesley. Ms. Leslie’s evidence was of the mother saying that G asked her to ask Ms. Leslie not to tell the father what he had said to her; G was worried about his dad finding out.
Ms. Leslie told neither party what G had said at that time.
The trial was listed to commence on Monday 7 December, 2009. At 4:30 pm. on Friday, 4 December the father rang Ms. Lesley. She said she had one of those “embarrassing moments” at the end of a week when she was momentarily at a loss to recall whether or when she last spoke to G. She then recalled it (this was all in the same conversation) and told the father the gist of her conversation with G on 10 November, 2009.
I have no hesitation in accepting Ms. Leslie’s evidence of her two meetings with G, the conversations she had with him and the conversations she subsequently had with both parents.
Ms. Leslie gave that evidence just before lunch on Tuesday 8 December, 2009 which was the second day of the trial. Mr. S gave evidence that afternoon. The father gave further evidence the following day. It was put to him then that he had rung G at 4:30 pm. on the Tuesday afternoon. He candidly agreed that he had done so because he wanted to ask G if he had seen the ICL; he said to G “are you sure you didn’t see Paula Leslie (on 10 November, 2009)?”. The father’s evidence was that G told him he had not seen Ms. Leslie and that he believed G. He maintained Ms. Leslie was lying.
Shortly prior to making that phone call to G the father had heard evidence from Mr. S about the adverse effects of parental conflict on a child and the reasons a child may not tell a parent the truth.
An order made on 19 September, 2008 restrained each of the parties from discussing the proceedings and making available any material filed in the proceedings to G or in his presence or hearing. There could not be a clearer breach of that order. There could not be a clearer illustration of the father’s preparedness to sacrifice G’s best interests to achieve a perceived victory. There could not be a clearer example of the father’s insensitivity to the dilemma in which G finds himself or of his incapacity to listen to, and reflect on, expert advice. If G told his father on the Tuesday afternoon that he had not seen Ms. Lesley, there could not be a clearer illustration of the dangers of relying on statements made by G.
Ms. M
Ms. M was working on the intake team which investigated the allegations that gave rise to the court requesting DHS intervention pursuant to s.91B of the Act. Her evidence was that the father came in off the street on 16 September, 2008, with no prior appointment, and told G he was to “tell the lady what your mum did”. Ms. M’s evidence was of trying to reassure G he should feel safe and of G becoming increasingly uncomfortable as his father attempted to force him to relay a story. In front of G the father said that the mother was physically abusive; the father described what the mother had done, then told G to tell Ms. M the same thing. Ms. M described G as squirming in his chair while the father tried to coerce him into making allegations.
Ms. M was adamant that she never told the father that DHS had any protective concerns.
Ms. M was an impressive witness and I place weight on her evidence.
Ms. H
Ms. H has been a teacher for 34 years. She presented as empathetic, perceptive and intelligent. I place weight on her evidence.
Sergeant LN
Sgt. LN’s evidence was brief but impressive, given in a direct, objective and responsive way. I have no hesitation in finding she told the truth.
Ms. T
The same could not be said for Ms. T, who presented as partisan and very hostile to the mother. Her evidence and that of the father differed significantly, particularly as to when she told the father of events she allegedly observed on Boxing Day 2006, of which she wrote for the first time in an affidavit typed on 4 November, 2009. She gave the impression of embellishing her evidence as she went along. The court could have little confidence in her commitment to telling the truth.
Mr. S
Mr. S prepared a family report which was released on 3 March, 2009. He had not seen the parties or G for ten months by the time he was cross-examined. Further, he was unaware of the various intervention orders made against the father (of which evidence was adduced in the trial) and of the father’s pattern of attacking the credit of any witness who denied observing, or having a conversation with G about, violence directed at G by the mother. It is difficult for a witness to grapple with a range of fresh factual material, presented by counsel or the court, which is at odds with or qualifies the histories given many months earlier which provided the foundation of a reported professional opinion. Mr. S’s initial recommendations contained in the family report need to be considered in the light of all of the subsequent evidence, including his own evidence.
RELEVANT CHRONOLOGY
The parties lived together between 1998 and 2001. G was born in January, 2000 and was nearly two when they separated. Although the parties differ about the time the father spent with G after their separation on 31 December, 2001, no parenting orders were sought until the mother filed an application on 15 September, 2008 in which she sought a recovery order, that G live with her, that she have sole parental responsibility and that G spend time with his father as the court deemed appropriate.
In the affidavit filed in support of that application the mother alleged that she went to collect G from a weekend with his father on the morning of Sunday 14 September, 2008, to take him to play with her nephew. G had been there since the previous Thursday. The father refused to allow G to leave with her; when she attempted to take G, she was abused and assaulted. She called police who told her that if there were no court orders in place, they could not assist and she should leave. That evening she rang G and arranged to drop off his school uniform, which he needed for the next day. When she arrived with the uniform G came out of the house and said that he did not want his father to kill himself. When asked what he meant, he said “I don’t want my dad to die”. He also told his mother that she had N to look after and his father needed him. She described G as looking very sad. The mother feared the father had told G he would kill himself if G did not stay with him.
According to the father, G told him on 14 September, 2008 that he did not want to go home. He said that his mother hit him all the time when she lost her temper and he did not want to live with her any longer. The father’s evidence was that he had noticed G was often “covered in bruises” and believed he had not said anything until 14 September because he was afraid of his mother.
The father alleged that on 14 September, 2008 the mother became enraged and punched him to the head and upper body.
The mother was not legally represented when she swore that affidavit but had obtained advice from a solicitor employed by Victorian Legal Aid (VLA). Later evidence fleshed out events on 14 September, after the mother went to collect G from the father’s home. The father refused to allow G to go. Police were called. Sgt. LN and another officer attended. Sgt. LN went inside the house and spoke to the father whilst the other officer spoke with the mother. Sgt. LN’s evidence was that there had been an argument between the parents and that G was quite upset. The father put to Sgt. LN that when she asked G who he wanted to stay with, G told her he wanted to stay with his father. Sgt. LN said “no, [G] didn’t”. It was put to her that G told her that his mother had punched him in the ribs and stomped on his head. Sgt. LN’s evidence was of recalling nothing to that effect; she said if G had made any allegation of physical abuse, she would have been required to report it. She said the mother was very upset, angry and agitated and police tried to calm her down. The police ascertained there were no court orders in place and “no violence at all”. It is probable neither party reported to police the physical assaults they now allege.
The father’s oral evidence was of a later confrontation with the mother that day at McDonalds, where he had taken G for an ice-cream. He said the mother said she was “going to commit suicide”; queried, he rephrased it as “going to kill herself”.
The mother’s application was listed in this court on 19 September, 2008. On that day the mother filed a further affidavit sworn by her; by then she was legally represented. Events between 14 September, 2008 and the parties’ appearance before Senior Registrar FitzGibbon on 19 September, 2008 can be pieced together from their respective affidavits and oral evidence given in the trial.
The mother returned to the father’s property on the morning of Monday 15 September, 2008, as the father had lost his driver’s licence and she was sceptical about the father’s statements that he would arrange transport to get G to school.
On arrival on the morning of 15 September, 2008, the mother saw G and the father get into a car driven by a woman she did not know, and drive in the opposite direction to G’s school.
The mother immediately attended Victoria Legal Aid (VLA); at 9:30 am. she rang G’s school from VLA premises and was told G was not at school. The father agreed that he did not take G to school on Monday. He said he feared the mother would “snatch him”. He said that “I had to put a DVO in place” and that “[G] and I were going to put an intervention order on her”.
The father’s evidence was of refusing to allow the mother to take G to school. He tried to ring 000 to complain that the mother was stalking him, to no avail. Stalking was his characterisation of her visit to his home that morning. Rather than take G to school, he took him with him to the Magistrates’ Court and sought to apply for an intervention order; his evidence was that he was told to come back. It seems he wanted to call G as a witness.
On Tuesday 16 September, 2008 the father went to the offices of DHS and spoke with Ms. M. Reference has earlier been made to Ms. M’s evidence. G made no disclosure of abuse to her despite his father’s attempt to coerce him into doing so. Ms. M was adamant that she never told the father that DHS had any protective concerns about G.
It was put to the father that G did not go to school on Tuesday 16 September, 2008. Initially he said he attended but later said “perhaps he didn’t”.
G did not go to school on Wednesday 17 September, 2008; instead, he was taken by his father back to the Magistrates’ Court. There the father made an application for an intervention order, which named him as the aggrieved family member and the mother as the defendant. G was not listed as an aggrieved family member. The complaint and summons was before the court. The father’s complaint was as follows :
I lived with the defendant from approximately 1998 to 2001 wherein defendant frequently became enraged and behaved in a bizarre manner (once jumping from a 2 storey building and causing serious injury). Prior to this the defendant had had a series of psychiatric episodes. On 26.12.2006 the defendant grabbed the aggrieved family member [G] by the neck and punched him three times in the temple. In approximately June 2008 the defendant punched the aggrieved family member [G] in the ribs a number of times causing him to fall to the ground wherein the defendant stomped upon his face. On 14.9.2008 the defendant came to my home to collect [G] from a contact visit and when I told her that [G] no longer wanted to live with her she became enraged and began punching me in the head and upper body. I tried to subdue the defendant who rang the police and upon their arrival spoke to both parties but no proceedings were instituted. About 15 minutes later the defendant accosted myself and [G] at McDonalds [K] and proceeded to abuse me for approximately 4 minutes. The defendant returned about 10 minutes later and attempted to abduct [G]. On 15.9.2008 the defendant was waiting outside our home for no valid reason and began following our car.
Coincidentally, the lawyer the mother had seen at VLA was at the Magistrates’ Court. On learning of the application, she contacted the mother and asked her to attend, which she did. Thus, the application for an interim intervention order did not proceed ex-parte but with both parties present. The father saw this as another example of a conspiracy against him.
The mother deposed that the magistrate was told about the Family Court proceedings which were listed for hearing on 19 September, 2008. The father’s application was adjourned to 10 October, 2008 and no interim order was made.
The mother’s evidence was that in the courtroom the father told the magistrate that he had been in contact with Ms. M of DHS and that she had told him that DHS had protective concerns if G were returned to the mother’s care. He was asked to make a joint call (that is, with the mother’s lawyer) to DHS to verify his statement but refused to participate in such a call, stating he had too much to do. I am satisfied the father misrepresented Ms. M’s advice to the magistrate.
The father’s evidence was that the magistrate was “astounded” to find that the mother and her solicitor were at the court and he attributed this to the mother being told by Ms. M that he (the father) was going to seek an intervention order against her. I am satisfied the father sought to obtain an ex-parte interim order against the mother, that a solicitor the mother had previously consulted contacted the mother and that the mother attended the court at her request. The inference against Ms. M was unwarranted.
On 17 September, 2008 after attending the Magistrates’ Court, the mother attended the DHS office and advised Ms. M that the case had been adjourned to 10 October, 2008. She told Ms. M that the father had told the magistrate that his witness would be G, a statement consistent with the father’s account of why he took G with him to the Magistrates’ Court on 15 and 17 September, 2008. The mother told Ms. M she had elected to let G remain with his father until Friday 19 September, 2008 when the case could be listed in the Family Court, as she did not want to upset G any further. The note records that she was devastated that she was not able to have G with her but hoped that would resolve at court on the Friday.
The mother was still at the DHS office when the father and G arrived. He deposed that Ms. M “ran inside and wouldn’t speak to me”; his position was that Ms. M had a conflict of interest from that time on, because she had spoken to the mother.
The DHS file records that later on 17 September Ms. M returned a phone call from the mother and was advised that the Family Court papers had been served on the father. The mother repeated what she had said earlier, which was that she did not understand why the father had suddenly decided that G would not be living with her anymore; she had never tried to stop the father and G seeing each other and they had done so regularly. She advised that G had not been at school on Friday, Monday or that day (Wednesday) and when she went to collect the child at school that afternoon she was told she could not pick him up because “the father was taking out an intervention order on her”. As a result of advice from the school, the mother asked Ms. M if the father had been at the DHS office that day; she was advised that he had but that the worker was unable to discuss the content of their conversation.
Ms. M noted :
The mother sounded genuinely concerned regarding [G] being exposed to any inappropriate conversations between her and the father but said she was overwhelmed by what had occurred and couldn’t understand why this had happened. She stated that to avoid any distress to [G] she was willing to wait until Friday after court to have him back in her care.
On 19 September, 2008 Senior Registrar FitzGibbon appointed an ICL and made a number of other orders, by consent. G was to be returned to the care of his mother and to live with her, until further order. In the interim the father was to spend time with G each week between 10:00 am. Saturday and 4:00 pm. Sunday, extended to 7:00 pm. if G and his father attended a soccer match. The orders provided for telephone communication on each Tuesday and Thursday between nominated hours. The father was not legally represented on that day; the mother was. The case was adjourned to 21 October, 2008.
Ms. M spoke with the father on 22 September, 2008, after orders were made in this court. He advised that “[G] was back in his mother’s care but with conditions”. The father complained that the mother was trying to bribe G by promising him a motor bike for Christmas.
On 8 October, 2008 the father filed a response in which he sought that G live with him and spend time with the mother on each Saturday between 10:00 am. and 5:00 pm. In the affidavit filed in support of that response he alleged that he had observed substantial bruising on G, that the mother had a psychiatric history, that the mother abused substances and was in a violent domestic relationship.
On the same day the father filed a notice of risk of child abuse in which he alleged that the mother had punched G in the ribs and “stomped on his face”.
On 10 October, 2008 the father’s application for an intervention order was again listed at the Magistrates’ Court. The mother attended and agreed to give an undertaking not to assault, harass, threaten or intimidate the father or cause any other person to do so. The undertaking (which was tendered by the father) makes no mention of G.
The undertaking expired on 9 January, 2009. On 14 January, 2009 the application for an intervention order was again before the court. It did not proceed. It is probable the application was struck out.
On 21 October, 2008 both parties were legally represented at a hearing in this court. The Senior Registrar referred the matter to the Magellan list of cases and requested the preparation of a DHS report.
NOTIFICATIONS TO DHS AND ALLEGATIONS OF ABUSE
The father’s evidence (set out in an affidavit he swore on 2 October, 2008 when he was legally represented) is of being concerned about the mother’s presentation and parenting from March 2006; he alleged that she then looked drug affected and had track marks on her arm. He deposed that approximately three months prior to swearing the affidavit (July or August 2008) “a mutual acquaintance” told the father that she had seen the mother punching G in the head at a shopping centre on 26 December, 2006; she had not told him earlier as she did not have his contact details or any other way of contacting him. He alleged that two months prior to swearing the affidavit he received a telephone call from the mother saying that he should come and get the fucking kid as she could not handle him and that when he spoke to G on the phone, G told him that the mother had punched him in the ribs and, when he was on the ground, “stomped on his face”.
The father deposed to reporting “these matters” to DHS and of being told they would investigate. If he did, it was in September 2008. No notifications were made between December 2006 and September 2008.
The DHS report dated 25 November, 2008 refers to five notifications prior to receiving the notification from the court, as follows :
January 2002
In January 2002 it was reported that the mother was abusing drugs and alcohol and was physically harming G. The reporter was unable to provide specific information and many of the concerns appeared to be based on assumptions. DHS assessed the concerns and concluded that they were malicious and could not be substantiated. The DHS report notes that G’s paediatrician had no concerns for G or his mother’s ability to care for him; the maternal and child health nurse noted no concerns for G and was willing to report any concerns should they arise; the mother had obtained an intervention order against the father. The father agreed that in 2002 the mother obtained an intervention order after she alleged he threatened he would chop her up and feed her to the sharks.
The father’s evidence was of observing track marks on the mother’s arm in 2005. In his trial affidavit the father dated his concern about drug use to March 2006, deposing that the mother’s eyes were “constantly closing” and she slurred her words. This needs to be set beside his advice to Mr. S in early 2009 that the source of his allegations of drug abuse was G’s account that his mother was “zonked out on the couch”; from this, the father inferred illicit drug use. It is probable the father invented the allegation of track marks. The mother admitted to some prior marijuana use but no other drugs, evidence I accept. As the father himself deposed, at the time G reported the mother to be zonked out on the couch, she was pregnant with N.
October 2005
In October 2005 concerns were reported that G was presenting with disturbing behaviour, including soiling and wetting, poor school performance and poor social skills, that he had been exposed to family violence between the mother and father in the past and that more recently he was exposed to family violence perpetrated by Mr. W against the mother. It was also reported that G was exposed to excessive alcohol consumption by the mother and Mr. W, that G was not supervised by the mother and that he was left out alone early in the morning and late at night.
The evidence before this court is that in 2005 police sought and obtained an intervention order on behalf of the mother against the father arising out of an incident in which it was alleged that the father and his mother had assaulted the mother, assaults which were found proven against both of them on 14 February, 2007. This notification was made after the father and his mother had been charged with assaulting the mother.
The police summary incident report dated 1 March, 2005 was tendered. The assaults occurred at the soccer club. The father was arrested and interviewed later that day; his mother was interviewed later. Both were charged, pleaded not guilty and were found guilty.
The previous year police had sought and obtained an intervention order on behalf of the mother against the father after receiving advice (not from the mother, who was unaware of the activities) that the father had been stalking her and lurking outside her work premises and was discovered to have listening devices and items of her clothing at his home. The father conceded a listening device and clothing (but not lingerie as alleged by police) and said he was held in custody for two days, prior to the intervention order being made. His evidence was of having legitimate reasons to be in the vicinity of her work place, and using binoculars.
Investigating this notification in late 2005, workers spoke with G in the presence of the school principal. G was five. He referred to his mother’s boyfriend as “dad”. He said he got angry with his dad hitting and said that his dad slapped him on the cheeks and screamed at him really loudly. When this happens his mother told him it was not his fault and reprimanded his dad. He felt scared when his dad jumps on him and plays scary games with him, saying – while laughing – “like ‘what’s the time Mr. Wolf’”.
G then told workers that his mum grabbed his hair, hit him and put him in a room. Then he said that it was he who grabbed his mum, put her in her room and locked all the doors so she could not get out until he said she could. He said he played outside a lot, out the front and out the back. Asked about his mother’s drinking, he said she drank tea and coffee. He said if he were scared or unhappy he talked to mum, dad (Mr. W), the yard duty teacher or classroom teacher, his grandma and his maternal aunt.
The DHS file noted that the mother did not consume alcohol, as the notification alleged, that Mr. W had sought counselling and was no longer driving to Melbourne, and observations made of the mother were of genuine concern and love for her son. The DHS worker spoke with a drug and alcohol counsellor who had spent a lot of time with the mother and Mr. W dealing with Mr. W’s drinking problems, after Mr. W voluntarily attended the service. The counsellor said the mother did not have a drinking problem and she was surprised to be questioned about it.
The 2005 report was investigated and closed. There were no further concerns for G at school. The school reported that G was doing better, was no longer soiling or wetting himself and had started to make new friends. Mr. W had detoxed from alcohol and was following through with counselling. A counsellor working with the mother reported to DHS that she kept a tidy home and was not drinking. DHS assessed the risk of harm as low.
The father maintained that it was when he read of the 2005 allegation of poor supervision of G in the DHS file that he realised the mother’s time with G needed to be supervised. From his perspective, any allegation made against the mother is well founded. This analysis did not apply to allegations made against him: these were, in every instance, untrue and unwarranted. Even when allegations against him were found proven by a court the father denied their foundations.
December 2006
In December 2006 a report was received by DHS about repeated instances of violence perpetrated by Mr. W against the mother. Police sought and obtained an intervention order on the mother’s behalf and Mr. W was precluded from attending the home. A maternal and child health nurse assisted the mother and referred her to a support service. DHS assessed the mother as protective as she was able to sustain appropriate care of the children and was complying with the intervention order.
When N was only two weeks old (mid-December 2006) Mr. W was arrested after police involvement. A risk analysis completed by DHS on 5 January, 2007 referred to an escalating pattern of domestic violence between the mother and Mr. W. It asserted Mr. W had significant “alcohol issues” and that both G and N were present during “the recent domestic incident” between the mother and Mr. W, in the course of which Mr. W had reportedly thrown a knife at the mother, while she was holding N. It is possible Mr. W was charged with a criminal offence at this time as the DHS file records his removal from the house, which he had attended in breach of his bail conditions. It is also possible an intervention order had been sought by a complaint and warrant, rather than a complaint and summons, and Mr. W’s bail related to that.
The mother’s account was of being kicked on the right thigh and left ankle and being slapped on the face by Mr. W; her version involved Mr. W subsequently chasing her inside the house, picking up a butter knife and throwing it at her. She contacted 000.
The DHS file records a notification on 10 January, 2007 which identified “repeat incidents of violence by the father against the mother”. This relates to Mr. W, not to the father in this case.
September 2008
In September 2008 a report was made alleging that two months earlier, the mother had hit G in the head, had stomped on his head when he was on the floor and that G sustained a mark to his face. The name of the notifier was not before the court. This may be the report the father said he made in 2008.
The father deposed that in August 2008 he received a phone call from the mother, ordering him to “come and get the fucking kid”. As he could not drive (his licence was suspended) he did nothing until the following morning, when he “went over by bus”. His evidence was of observing a red mark on G’s right cheek and of G telling him his mother had punched him in the ribs, knocked him over and, while he was on the ground, stomped on his face.
The mother denied that she was ever physically violent to G. The DHS report notes that they were unable to obtain any independent evidence of any physical assault. On 16 September, 2008 Ms. M spoke with G in the presence of his father. In a case note recording the conversation Ms. M noted that despite encouragement by workers, G made no accusation against the mother at all. Ms. M noted that G appeared to relax but did not want to engage in too much conversation. The record notes :
The father attempted to encourage [G] to tell the writer what mum did; who had hit him etc. But [G] didn’t want to.
Ms. M noted that she explained to G that he should feel safe to speak with adults at school or others that he trusted to ensure he was getting support, and that the people who are caring for him could get support as well to help them do that. G nodded in acknowledgement. She noted that G was clean, well dressed and looked healthy.
The case note records that when the father was asked what he thought Child Protection could help him with, he stated :
He had been to Centrelink and registered for employment.
He had an appointment to meet with someone there on the 29/9/2008 regarding child/tax benefit etc.
He wanted to keep [G] at his current school in […] until the end of the year and then move him to [K]. It took him an hour each way to take and get [G] from school. His finances weren’t too great at the moment.
Ms. M recorded that it was obvious during the meeting that the father was attempting to coerce G into making statements about what his mother had said or done and G was very uncomfortable with this. G did not respond to his father’s prompts.
The father’s evidence was that Ms. M lied about this conversation in the case note and in her evidence to the court. He said G started to tell her everything; G told her that his mother had punched him the ribs, he fell to the ground, and she had stomped on his head. He told Ms. M that he did not want to go back to his mother’s.
The father was swift to infer a conspiracy between Ms. M and the mother. As noted earlier, he complained that when he went to the DHS office with G on 17 September, 2008 the mother was at the office and speaking with Ms. M. The father believed that a conversation with the mother demonstrated Ms. M’s “conflict of interest”. I am satisfied Ms. M’s focus was on G and on making the enquiries necessary for an assessment of any risk to his welfare.
The DHS file noted that Ms. M discussed family services that might be able to assist the father if G were with him, such as Berry Street. On 17 September, 2008 a worker rang the father to speak to him about Berry Street services but his phone was switched off. The programs offered included financial counselling, men’s counselling, child counselling, family and home support, victims of crime and domestic violence outreach services.
Stomping on head allegation
The father’s evidence about the date on which G reported that his mother had stomped on his head was confused and internally inconsistent. In an affidavit sworn on 2 October, 2008, he dated it to two months earlier, which would make it around early August 2008. In the application he made for an intervention order in September 2008, he said he was told of it in June 2008. When first cross-examined during the trial, he said it occurred in July 2008. Later he said he was told about it two months after he learnt of another assault by the mother on Boxing Day 2006. His evidence was of learning of that alleged assault some three months prior to 2 October, 2008 (early July 2008); if G told him of being stomped on the head two months later, that would put the conversation in about September 2008.
The father’s evidence of his response to the phone call in which the mother allegedly told him to “come and get the fucking kid” was equally inconsistent. In his affidavit sworn on 2 October, 2008 he swore that he asked the mother to put G on the phone and it was then G told him about being stomped in the face. The father swore then that: “I immediately went to the mother’s home”.
In the affidavit sworn by the father on 4 November, 2009, he deposed to going to the mother’s home the following morning and of G telling him of the stomping incident in response to a question from his father about a red mark on his face. Cross-examined, the father said he went to the mother’s home at 8:00 am. or 8:15 am. the morning after the phone call.
In his affidavit sworn 2 October, 2008 the father deposed that when he taxed the mother with G’s account, she said “well, he’s got to learn”. In the witness box he alleged that she said “I could have done worse”. To Mr. S he reported that the mother told him on the phone call: “Come and get your kid, I’m going to kill him.”
Despite the father’s purported concern about G’s safety, and his fear that the mother could kill G, his response to the advice of a serious assault on G was to leave him in his mother’s care and go to work. He said he told G as he left “Now your dream will come true – don’t worry, daddy is going to help you”, but he did not do anything “to help” until 14 September, 2008, when he withheld G.
Later in his cross-examination the father said :
I left it in [G’s] hands. I said to [G]: “You tell me when you’ve had enough of mum, and you can live with me”.
If the father held genuine fears for G’s safety, this approach was irresponsible. A child’s safety should not be left in the child’s hands; decisions necessary to ensure physical and emotional safety should be in the adult domain. In this case it is probable the father was comfortable about leaving G with his mother as he had no genuine fears for his safety and this account of the conversation was inaccurate, as asserted by the mother.
The father put to Ms. H that in late September or early October 2008 he asked her if she remembered a red mark on G’s face. He put that G told him that Ms. H asked him about the red mark. When Ms. H did not agree with either proposition, the father asked : “why did you lie to me?”
Ms. H did remember the father telling her that G said his mother had “stomped on face”. She spoke to G, who said he fell over in the kitchen. She recalled not being concerned.
I do not find the mother assaulted G as the father alleged, or at all.
Boxing Day 2006 allegation
A further incident was reported to DHS in September 2008 which allegedly occurred on Boxing Day 2006. It was alleged the mother had grabbed G around the throat and punched him to the head at a shopping centre and that security guards had to escort her from the centre.
The father’s evidence was that in about July 2008 he was told by a family friend that she witnessed the mother assaulting G at the D Shopping Centre on Boxing Day 2006. The friend told him that the mother had held G around the throat, punched him to the head and held a metal steering lock to his throat. She had not told him earlier because, she said, she had not known where to find him, although the father agreed that she knows family members who have always had access to his telephone number. On his account, despite witnessing a violent assault by a woman known to her, on a then six year old child who was the son of a family friend, Ms. T did nothing for over eighteen months and only told the father in July 2008 because she ran into him.
The father’s oral evidence was that Ms. T told him that she observed the mother hold G by the throat, an action he enthusiastically demonstrated in the witness box, using his hands. This was inconsistent with the account in his affidavit and with Ms. T’s evidence.
Ms. T swore an affidavit on 4 November, 2009 in which she deposed to her observations on Boxing Day 2006, almost three years earlier. She deposed to witnessing a mother holding a blue steering wheel lock against her little boy’s throat and “bashing into him”. The child was “against the passenger side of the window” and it was only after looking closer that she recognised the protagonists in the drama as the mother and G. Ms. T deposed to walking away and subsequently seeing the mother, with a baby in her arms and G, walking at her side, crying. She said G looked at her, at which the mother grabbed him and said “Don’t look at that fuckin’ lady”.
Ms. T agreed that she and the mother knew each other. Although she said another bystander contacted or said she would contact Security, Ms. T neither saw nor spoke to anyone from Security and did not see the mother escorted from the premises by them.
Ms. T went on to depose to a belief “[G] has mental issues” and “the lady is an unfit mother”. She also asserted a belief that “[G] has suffered a lot of harm and that he is too scared to speak up just in case his mother hurts him again”. These claims mirrored those of the father.
Cross-examined, Ms. T deposed that she told the father of her Boxing Day 2006 observations a month later when she saw him at the R shopping centre. She said she told him she was with her two children and “didn’t realize who the lady or kid was at that stage”. She saw the lady, sitting in the driver’s seat, put a steering lock against the throat of the child sitting in the front passenger seat and then slap the child and punch him with a clenched fist. According to her, she had to leave because her son was terrified.
Pressed, Ms. T said she told the father “within a year” and that she told him he should do something about it. She raised it with him once or twice after that but could not remember his response, save to say he was “concerned”. Ms. T said it was not her role to “report anything”, saying : “I can’t leave my kids and go to DHS”.
Cross-examined, Ms. T’s evidence was of seeing G a couple of times at Easter at the church after her alleged observation on Boxing Day 2006. On these occasions he was with his father. She said G told her once that if he opens his mouth, his mother will hit him, but she could not remember when that was said, guessing it might have been four or five months ago “maybe”, which would put it in July or August 2009. Neither date is close to Easter. She then said she had seen G a couple of months ago; this evidence was given in December 2009 so that meeting could not have been at church at Easter, either.
Ms. T has only seen G with his father at the church. She said when she last saw him he did not act like “a normal nine year old kid”; he presented to her as scared, an opinion she based on his body language and the sense he was frightened. She said he mumbles his words and that he is too scared to speak. Ms. T attributed this to G’s fear of the mother. If Ms. T were considered a reliable witness, the court could infer G is not at all comfortable in his father’s presence in public : the presentation described is very different to that observed by Mr. S, the ICL and the psychologist who completed an assessment in 2008. The only evidence of similar demeanour is Ms. M’s account of G’s presentation when his father tried to coerce him into making allegations against his mother. Similar attempts at coercion may have given rise to G’s “mumbling” and anxiety when questioned by Ms. T.
Despite her evidence that G is too scared to speak, Ms. T went on to volunteer other statements made by G. She said he told her he went to school without lunch and that he rode his pushbike to school. She said she reported all of her conversations to G’s father, who said nothing.
The father’s oral evidence was of the mother telling him that a police car had pulled her over and police in it had questioned the mother about hitting G on or soon after Boxing Day 2006. This allegation was not included in any affidavit sworn by the father and was never put to the mother. It is probable the father fabricated the conversation; the impression he gave was of making it up as he went along.
If Ms. T told the father in early, or indeed late, 2007 of the alleged assault, his failure to act would be a significant breach of his parental responsibility. The court could have little confidence in a parent’s commitment to protecting a child were such a report to be ignored.
The mother’s evidence was that G was not with her on Boxing Day 2006. For years he has gone to his father on the afternoon of Christmas Day and stayed with him for a few days. Although the father agreed this occurred on occasions, he denied it occurred in 2006. I accept the mother’s evidence.
Ms. T may have observed a mother punching a child with clenched fists at the shopping centre on Boxing Day 2006; the evidence does not satisfy me it was the mother.
In the course of investigating these reports, which were made at the time this litigation commenced, DHS was given both parties’ accounts of what had occurred on 14 and 15 September, 2008. On advice that proceedings had been initiated in the Family Court and of the outcome of the hearing on 19 September, 2009, DHS’s assessment was that G was not at risk of any significant harm and that the issues could be dealt with in the Family Court.
21 October, 2008
The final notification was that made by the court on 21 October, 2008, as is routinely done when a case is assessed as suitable for the Magellan list. It sought advice as to investigations into the allegations made by the father in the form 4 filed by him on 8 October, 2008.
The DHS report notes that no new allegations were made in the form 4. The concerns reported were historical in nature and had already been assessed. Child protection workers contacted G’s school and could not confirm any of the allegations made against the mother. Workers were advised that G and the mother had been engaged with the student welfare co-ordinator, Ms. H, for the past three years and Ms. H advised she had no concerns about the mother’s care of G and no concerns about her parenting. Ms. H informed the workers that G had become unsettled on each Monday following contact with the father. He had never disclosed any abuse by his mother to her and had never presented with any suspicious or unexplained injuries. The only concern reported by Ms. H was that G was beginning to be affected by the parental conflict and recent custody battle.
DHS also contacted Anglicare and protective workers were advised that a recent referral had been received for the mother, and that a worker had just been allocated. The mother had been referred for Family Support after she contacted ChildFIRST in November 2008.
DHS concluded that the concerns were historical, could not be confirmed by independent sources and had been previously assessed as unsubstantiated. They assessed the mother as being committed to G’s needs and well-being, noting that she had worked with Ms. H for the past three years and had accessed supports herself to learn strategies to implement in the home to more effectively parent G. The report writer noted that G has learning difficulties; given those, and the fact that G does not adjust well to change, it was important he have stability and structure in his life. The report concluded :
It is evident that [G] has been exposed to the recent parental conflict and Family Court dispute. According to the school this has made [G] unsettled and is affecting his intellectual development. Further the school reports that [G] has made inappropriate references to the court process and fears he will be taken away. It is important that parents do not expose [G] to any conflict and do not speak negatively about the other parent in [G’s] presence. In conclusion, child protection has assessed that [G] is not at significant risk of harm in [the mother’s] care.
The DHS report recommended that G remain in the mother’s care as no risks in that care had been identified. DHS recommended that the mother and father undergo mediation to “resolve their issues and not expose G to any further conflict or negativity about the other parent”.
PRIMARY CONSIDERATIONS
When determining what is in a child’s best interests the primary considerations are :
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These are consistent with the objects set out in s.60B(1).
Exposure of children to adult violence
The court must find that G and his younger brother were exposed to violence and abuse directed at their mother when she lived with Mr. W. The mother and Mr. W have not lived together since June 2008. The DHS file records Mr. W’s admission as an in-patient at an alcohol clinic. There is no reason for the court to doubt that the relationship between the mother and Mr. W is now as she deposed and that N sees his father frequently, but usually during the day, rather than overnight.
The court must also find that G and N were exposed to an altercation between the father and mother on 15 September, 2008.
The court must also find that G was present when the father and G’s paternal grandmother assaulted the mother in March 2005, an assault G tried to stop by intervening. I am satisfied the mother was injured as she deposed and as portrayed in the tendered photographs.
I accept the mother’s account of violence directed at her by the father when they were together.
The evidence supports a finding that G has lived in households in which his mother has been assaulted and abused by his father and Mr. W, who he called dad. He observed his father and paternal grandmother assaulting his mother, years after his parents’ separation. G continues to have problems with soiling, which have not been addressed by his parents until recently, and behavioural and intellectual deficits. Those involved in his assessment and treatment should have access to the findings made by this court, as they may be relevant to G’s psychological and physical functioning.
The impact on children of observing violence is well known; violence directed at a parent can be as abusive and damaging as violence directed at a child. In Blanch v Blanch & Crawford (1999) FLC ¶92-837 Mullane J. (with whom Lindenmayer and Kay JJ. agreed) spoke at 85,748 of the :
. . . wider and more serious dangers that an abusive parent presents to children than the obvious danger of physical harm. In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hyper vigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development.
Probably the worst danger to children is the role model that a violent parent provides . . .
G is almost ten and approaching adolescence. The role modelling demonstrated by his father and Mr. W has the capacity to impact adversely on his understanding of relationships, his respect for others and the way he manages conflict throughout his life. As the Full Court noted in Blanch v Blanch & Crawford, a child’s long term self-esteem and confidence can also be adversely affected. G must be protected from further exposure of this sort.
Violence directed at the mother by father and his mother
The mother’s evidence was that the father’s mother has assaulted her on numerous occasions, as recently as two to three months ago. When that was put to the father, he categorically denied it. Although he later agreed his mother had been charged and found guilty of recklessly causing harm to the mother, he maintained his view that she had not been violent. I place no weight on his denials. His mother was not called. I accept the mother’s evidence of these assaults and of the father’s assaults when they were together.
The court must also find that between 2002 and 2005 police saw fit to bring three applications for intervention orders on behalf of the mother. The last two applications were brought well after the parties separated. In each case, the court granted the application.
Violence directed at the father by the mother
The father alleged the mother assaulted him on 14 September, 2008 when he refused to allow G to go home with her. It is probable both parents were angry, that their argument was loud and acrimonious and neither was inhibited by G’s presence. On the evidence the court could not find it more probable than not that physical violence was part of the argument.
Physical and emotional violence directed at G
In the witness box the father alleged that the mother had threatened to kill G. He blamed his solicitor for not including this in any of his affidavits. Pressed, he said “she possibly could kill him” and that “with one wrong blow the kid can go”.
I am satisfied this is an example of the father’s tendency for hyperbole. Even he moved away from the allegation when cross-examined. I do not find the mother made any of the threats to kill herself or to kill G as the father alleged.
The court has rejected the father’s allegation of physical violence by the mother towards G. The court has found no substance in the allegations of an assault on Boxing Day 2006 or the “head-stomping” in 2008. It finds no substance in the allegation of drug use or excessive drinking many years ago or those relating to the mother’s supervision of G, or the general allegations of punches.
Benefit to G of a meaningful relationship with both parents
The court must find that it is unlikely the father will do anything to promote a meaningful relationship between G and his mother, as he himself sees no value in such a relationship. He went so far as to say “someone has to mother him; give him the love she doesn’t give him”. He could think of nothing positive to say about her as a parent.
Mr. S’s report makes clear the importance of G’s relationship with both parents. When weighing the two primary considerations, priority must be given to protecting G from physical and psychological harm.
ADDITIONAL CONSIDERATIONS
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
When considering the views expressed by G the court must consider his maturity and level of understanding. G has encountered a number of problems since commencing school including intermittent soiling, learning difficulties and difficulties in observing behavioural and social norms.
In 2008 G’s school organised an intellectual functioning assessment, which was completed on 14 August, 2008 by a psychologist, Ms. O. Another psychologist, Ms. C, conducted a Wechsler Pre-School and Primary Scale of Intelligence (WISC-111) assessment on 7 November, 2005 and Ms. O summarised those results in her report.
The report notes that G’s full scale IQ results indicated he was functioning in the borderline range of intelligence. This was consistent with advice from his classroom teacher that he was then functioning below average in both literacy and numeracy skills.
Ms. O described G as a lovely boy who chatted freely with her about his interests, concentrated well through most of the assessment and attempted all items to the best of his ability, despite becoming distracted at times. His IQ result is located at the seventh percentile, meaning that he performed as well as or better than seven percent of children his age.
The psychologist noted that G is capable of learning but will require extra support in the classroom, may take longer than his peers to grasp new ideas and requires concrete instructions which need to be repeated frequently on an individual or small group basis. She recommended a speech therapy assessment to determine his receptive and expressive language abilities and that he attend specialist classes offered by his present school (P Primary School) to assist with ongoing developments of literacy and numeracy skills. The report sets out practical strategies to use when teaching G new information and preferred methods of learning and “environmental strategies”.
Ms. H is a very experienced teacher and spoke with empathetic objectivity about G, with whom she has worked from 2006. She has had frequent dealings with the mother and met the father a few times. The first time she met the father was after the 2008 psychological assessment and she recalled that he was “a bit angry about it all”.
Ms. H volunteered that she needed to work particularly with G’s “honesty”. She said it was difficult to get to the truth with G; that evidence was given in the context of speaking to him about his behaviour. She said that when spoken to about a problem (for example, physically hurting others) G would always deny it. One needed to delve in nearly every case before he would eventually admit it. The same went for his use of inappropriate language.
The court has before it instances of G (if the father is telling the truth) telling his father things that are clearly not true, such as his assertion that he did not see the ICL.
The mother’s evidence was that G told her that he told Ms. Leslie in November 2009 that he just wanted things to go back to normal, an accurate account of their conversation. The court can find G is sufficiently confident of his mother to tell her the truth. It must find that is not the case with his father, to whom he feels compelled to lie.
The father took the view that any violence or rough play exhibited by G at school is attributable to the mother’s poor parenting and her violence. He rejected the need for G to take responsibility for it and to learn not to blame others. His evidence was that G has been stealing when with him: he said it was so bad he has to search G every time he goes to the shop. According to him, G steals because his mother is a convicted thief.
Having regard to G’s intellectual and social problems and the evidence of his tendency to lie, the court needs to be very cautious before placing weight on any allegations reportedly made by G or any statements of G’s views. What is more important is evidence of his attachments and responses to both his parents.
The father is adamant G wants to live with him.
Mr. S recorded G’s discussion about his wishes in these terms :
[G] stated that he would have preferred to spend two weeks with each of his parents during the long summer holidays, rather than alternating weekly as occurred, he then said, “I want to live mainly with Dad”. He was initially unable to offer any reason for this preference, stating : “I just want to drop Court and live with Dad.” Later, while explaining that he would like to see his mother and brother “every day for a week . . . but Mum’s had me for eight years – now Dad can have me,” [G] then exclaimed, “I remember . . . Mum hit me in the temple, three times, last year.” It is noteworthy that [G’s] facial expression and demeanour did not alter while making this comment, going on to advise that neither parent discusses the dispute with him.
Mr. S’s evidence was that when G spoke of his mother hitting him his demeanour was inconsistent with his words, which were out of context and did not seem genuine. Mr. S was concerned about coaching: he said G’s use of the word “temple” did not “ring true” and it sounded as if G had heard someone else use the word and repeated it, or been coached.
Weight is given to that hypothesis by the father’s account of the alleged assault on G in the complaint made in his application for an intervention order on 17 September, 2008. In it the father alleged the mother “grabbed [G] by the neck and punched him three times in the temple” on 26 December, 2006.
The 2008 “stomping on the head” allegation involved no punches to G’s head or temple so G cannot have been referring to that. There is no evidence G ever told anyone he was assaulted on Boxing Day 2006 and the father’s own evidence is of learning of it some eighteen months later.
It is improbable a child with G’s language and learning difficulties would use the word “temple” or suddenly volunteer details of an assault which occurred more than two years previously and which he had not spoken of before.
Mr. S was also sceptical about G’s statement that he wanted to “drop court and live with dad”. He described it as “a rather neat summary for a nine year old”, particularly when responsive to open questioning.
I place weight on Mr. S’s opinion that G has to be wary and is trying to please both sides. His motive is probably love and loyalty but it may also be a desire to avoid flak if he expresses a view later found to be inappropriate.
On 10 November, 2009 the ICL spoke with G. As found, the father believes G’s account of not speaking with Ms. Leslie and maintains that “she is lying”.
It is probable the conversation with the ICL in November 2009 is as close as the court can get to G’s view of a preferred living arrangement. He would like to go back to the way things were before September 2008 when he saw his parents as he wanted. At that time he lived with his mother and spent time on weekends and holidays with his father. As his parents live in close proximity, G was able to spend additional time with his father on an ad hoc basis, which was supported by the mother.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
Mr. S noted that G was exclusively positive in discussing both his father and his mother on 29 January, 2009. He had spent the previous week with his father and commented that his father “lives on his own, except when my sisters are there”. He told Mr. S that he enjoyed the visits that coincided with his sisters and that he liked going to soccer matches with his father. Similarly, G told Mr. S that he likes living with his mother and playing with his younger brother; he became very animated as he demonstrated some of the games N likes to play with him.
Mr. S reported that when G was with his father he was very reserved towards his mother. Once his father left he greeted his mother warmly with a hug and proceeded to chat excitedly. He had not seen her for approximately a week. They played games together with increasing levels of energy and G was clearly relaxed and happy in his mother’s company, spontaneously kissing and hugging her at the end of the session.
During the corresponding time spent with his father, G was observed to interact in a similarly relaxed manner, smiling and talking with his father as they shared lunch and played an energetic and competitive game of air hockey. He maintained close physical contact with his father as they shared a computer game.
Mr. S’s evidence was that G did not present as anxious or uncomfortable in the presence of either parent. He presented as sharing a close and positive bond with both parents.
The court can say nothing of G’s relationship with his paternal grandmother or paternal aunt. The grandmother vacates her home whenever G stays there, according to the father, but G may well spend time with paternal relatives.
Nor can the court make findings about G’s relationship with his maternal grandfather or maternal aunt, save to say that G has lived with his maternal grandfather since mid 2008 and there is no evidence to suggest there are any problems in the relationship, and that G told DHS workers that he could talk to the aunt if he were worried, which is indicative of a secure relationship.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The father’s evidence is that he does not accept the validity of the psychological assessment of G conducted in 2008. He attributed any problems G experiences to poor parenting and neglect by the mother. He said he had told the school that he did not accept the accuracy of the assessment, which is consistent with Ms. H’s recollection that he was “a bit angry” about it. The report itself is consistent with the assessment of a very experienced primary school teacher and the father’s outright rejection of the psychologists’ opinion is concerning.
Recently both parents spoke to staff at the Royal Children’s Hospital about G’s soiling and the hospital recommended a mental health assessment by Child and Adolescent Mental Health Services (CAMHS) at the Austin Hospital. The mother’s evidence was that both parents would attend the CAMHS appointment, when a date is confirmed. As with the psychologist’s report, the father queried this assessment and it was his evidence that if G lives with him, he will take G to the Royal Children’s Hospital, rather than to Austin Hospital CAMHS, as presently arranged.
Ms. H’s evidence was that her first involvement with the father was in the course of the psychological assessment in 2008, by which time she had been working with G for well over two years. Although the father said he had been to some parent/teacher evenings, he did not give a sense of real involvement in G’s school life and blamed the school for not sending newsletters to him. He could not remember the name of the school attended by his daughters and although the trial took place in December, did not know when school finished for the year.
The court could have no confidence G’s social, intellectual and behavioural deficits will be addressed by his father or that he will accept and act on the recommendations of educational, medical and other experts.
Late in the trial the father gave evidence of a journal in which he keeps observations of the mother and G’s movements, conversations he has with others about them and matters relevant to G. Entries for a few days, tendered by him, are indicative of the father stalking the mother and G. For example, on 4 November, 2009 he noted that G was observed by him near the mother’s home, drinking a V drink, something the father does not approve of. An entry on 5 November, 2009 notes that the son of a shop owner on the corner told the father that G had bought or been seen drinking a V drink. An entry on 6 November recorded a conversation the mother allegedly had with the shop owner, in which she “degraded” the father. An entry on 10 November described the father, in his car, idling near G, his mother and another woman who were in a park, calling G over to speak with him and the mother putting her hand on G’s shoulder and saying no. His oral evidence was that G was three metres away from the car in which the father sat but he heard G whisper: “I can’t dad, she won’t let me”.
The style of the entries is dramatic and punctuated by histrionic comments. For example, the entry for 10 November, 2009 concludes :
I then said to myself don’t apset the kid & myself just go God will deal with her. (underlining in original) I don’t know any other mother that would be like this towards their child.
The ICL submitted that the journal entries were indicative of stalking and there is force in the submission. The mother applied for an intervention order on 10 November, 2009 and one of her complaints is of the father constantly driving past her place of work and home, and of stopping in her street. Mr. S’s evidence was that such behaviour was of “great concern”. It is of particular concern having regard to the allegations made by police when they applied for an intervention order on behalf of the mother in 2005, which involved stalking and surveillance of the mother.
Despite the mother’s frustration with the father, she has been able to prioritise G’s interests. A simple illustration is her ready agreement to allow G to go to his father after his father rang at 5:00 pm. on 11 November, 2009 to say that a niece was visiting from Greece. That was the day after (according to the father’s journal) he had sat in his car while the mother and G were in the park and tried to call G over to him.
The court can find, based on the DHS report and Ms. H’s evidence, that G’s school is impressed by the mother’s commitment to his education and her co-operation with his teachers and the school welfare co-ordinator. The father maintained that G was sent to school without lunch and Ms. T alleged G told her this. This is inconsistent with the evidence Ms. H gave to the court and advice others at the school gave to DHS.
I am satisfied the mother has the capacity to provide for G’s intellectual, emotional and physical needs.
It is probable the father could provide for G’s physical needs on a day to day basis. He has the capacity to provide for his intellectual needs but his reluctance to listen to professional advice means he is unlikely to maximise opportunities to deal with G’s intellectual and behavioural deficits and may rationalise behaviour rather than attempt to deal with it in a constructive way. Similarly, G’s health and psychological needs may be ignored if the father resists advice or responds inconsistently to it.
Of equal concern is the father’s apparent incapacity to understand that his own hostility to the mother and his continuing attempts to undermine G’s relationship with her are impacting adversely on G’s development and well-being. Nor, despite his asserted concern about G’s exposure to violence when the mother lived with Mr. W, has he been able to modify his own aggression to the mother. Thus G has experienced two adult males abusing his mother.
The father alleged that the mother was psychiatrically unbalanced. He submitted that this conclusion could be drawn from the fact she attempted suicide when she was nineteen and his evidence that she later jumped out of a window and had to undergo psychiatric treatment.
The father tendered medical records which note that the mother was taken to PANCH in late May 1991 after taking an overdose of tablets. After treatment she was sent home. The following week she was taken to her general practitioner after threatening to take another overdose and was admitted to Hospital on 6 June, 1991. The discharge summary, dated 12 June, notes that her presentation related to family difficulties, recorded as her family’s reluctance to accept her relationship with her boyfriend and the distress this had caused her. She had lost two stone over the last twelve months. Interviews with her family corroborated ongoing tensions relating to the relationship with the boyfriend. By the time she was discharged on 12 June, 1991 there was a provisional diagnosis of adjustment disorder with mixed emotional symptoms and she was referred to outside medical practitioners. The certificate signed pursuant to s.37 of the Mental Health Act 1986, dated 12 June, 1991 stated :
She does not exhibit any evidence of a mental illness and does not manifest any suicidal thoughts or behaviour.
There is no evidence of the mother receiving any further psychiatric treatment since that time.
I am satisfied that the father’s evidence of the mother attempting suicide by leaping through a window was a deliberate and malicious distortion of the facts as he knew them. The evidence is of the mother falling out of a window when she was cleaning it and receiving medical treatment for back injuries.
In support of his submission about the mother’s psychiatric state, the father made an extraordinary allegation. He said that in 2002 the mother rang him and asked him to take G. He refused because, he said, “she was clearly going to kill herself on the railway line”. It appeared this was an inference he drew, not a threat he alleged she made. It goes without saying that parental inaction in such circumstances would be a gross breach of parental responsibility.
There is no evidence that the mother’s psychiatric health is anything other than stable. The father’s maintenance of these allegations is indicative of his fixed negative view of the mother. If G were to live with him fulltime, without much input from the mother, it is probable the father would feed him this distorted view of her.
Parents have an obligation to financially support their children. The father pays no periodic child support for G. His evidence was that there is no child support assessment in force. However, he agreed that a recent tax refund of about $3,500 had been diverted from him to the mother, which is indicative of arrears of child support accrued over some time. The mother is responsible for G’s financial support save for periods he is with his father.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Both parents reported to Mr. S that G had settled well into the routine of spending Thursday to Sunday with his father each fortnight. Mr. S based his recommendation in the report on G’s stated wish to spend more time with his father and noted this could be achieved by extending the weekends to a block of four nights per fortnight, with minimal disruption to G’s current routine. He also recommended that a regular night in the alternate week could be added to reduce “the gap” each fortnight.
The ICL submitted the court should be concerned that the father’s approach was to assert to the court, and to G, that authority figures lie. In this category the ICL put the father’s approach to Ms. H, the ICL, the DHS worker and the police. It was his submission that this was not good role modelling for G. I place weight on that submission.
If G were to live primarily with his father, and spend minimal time with his mother, G would be exposed to an unrelentingly hostile view of his mother. The father’s attitude to his own violence and aggression and that of his mother means the court could have no confidence in the father’s capacity to model behaviour such as accepting responsibility for actions and responding calmly and effectively to conflict. G’s own bad behaviour will be rationalised and he may learn to use aggression, violence and dishonesty as his first responses to a problem.
Mr. S’s evidence was that a child of G’s age does not have the tools to grasp what it would be like to live away from his mother for a lengthy period. He suggested the court needed to be cautious when considering G’s expressed wish to be with his father. When G saw Mr. S he had just spent a week with his father; the time was enjoyable and G was quite “swept up” in that context.
The father was confident that G would not miss his mother or N if he moved to live with him and confident that the move would not impact negatively on G in any way. He said that “in spirit he ([G]) will be 100%”. When Mr. S’s evidence to the contrary was put to him he rejected it, and continued :
I have said [to G] if the court says you come and live with me, won’t you miss your brother? He said “No, he’s got his mother”.
This is yet another example of the father’s implication of G in the parental dispute and his attempts to enlist G to his cause.
Early in his evidence Mr. S said that there were other ways to ensure and protect G’s relationship with his father than a change of residence; one way was simply to spend more time with him. Advised of the various intervention orders, aspects of the father’s evidence during the trial and of the father’s proposals, Mr. S’s opinion was that the father should have less time with G than he had recommended in his report.
Mr. S was asked about the father’s proposal that G spend only a few hours each fortnight with his mother under supervision. He said it would have a huge and adverse impact on G and was of real concern. It would greatly restrict and change G’s relationship with his mother. G would be very aware of supervision, which of itself could colour his perception of his mother; the perception would be very negative and he would struggle to reconcile his own view of her with the “dangerous/destructive person she must be to require supervision”. Mr. S spoke very strongly against the father supervising the mother’s time; he said it would make the time “completely ineffective” and there would be little or no opportunity for the mother and G to maintain a relationship.
Mr. S said he could not accept that G would not want to see more of his mother than the few hours proposed by the father. This was in response to advice of the father’s confidence that G would simply not want to spend more than a few hours a fortnight with her. Mr. S’s evidence was that G’s primary attachment is to his mother and it would be unsettling and traumatic for him to move.
The father may well be right when he said G would not ask to see more of his mother if he lived with him. It is clear G tailors his statements to fit his perception of what his father wants to hear. If he told his father he did not want to see his mother, one could not conclude it to be a genuine statement of his wishes.
Mr. S was also concerned about the impact of a move on G’s relationship with his younger brother, N. The boys have lived together all of N’s life. Mr. S said it was not analogous to G’s relationship with E and A; G has never lived with them on a fulltime basis, as he has N, and his relationship with them is based on much less contact. They do not live with the father (save on weekends and holidays) so it is not as if the three children would be brought up in the same household.
In final submissions the ICL spoke of the practical difficulties with the father’s proposals and the lack of certainty about who would be present in the house and whether G would have his own space or even his own bed. It was submitted that given G’s learning and behavioural difficulties, stability and consistency are particularly important during the school week and there could be little guarantee of that at the father’s home. The submission is well founded.
The father’s evidence was so inconsistent that the court cannot say what he proposed in terms of living arrangements and his own employment. I am satisfied that on 29 January, 2009 the father told Mr. S that he had regained his driver’s licence and recommenced work as a truck driver, that the work was flexible and that he could organise his work commitments around family obligations. The father denied that he said this, or that it was true; he said he did not know where Mr. S got that from. According to him, he told Mr. S that in the future he could obtain flexible work and that people were “beating me to work”. Asked who these people were, he gave the first name of one person at a transport company; he could specify no others but said “hundreds of people” wanted him to work for them. He said he could not recall if he had told Mr. S that he was his mother’s carer.
The father may not have been working as a truck driver when he saw Mr. S but I am confident he gave the history Mr. S described.
The father’s evidence was that he has lived in a two bedroom unit since 2001 or 2002. He said his mother rented the apartment to live in. Notwithstanding that evidence, he said his mother only moved in a year or a year and a half ago, having previously lived at his sister’s home.
According to the father, his two daughters are at the unit most weekends. Asked where they slept, he said they slept in his mother’s room and that she went to his sister’s home at that time. His evidence was that when G is with him, G and he share his queen size bed. To Mr. S the father said G would sleep in his bed if he moved to live at the father’s home. Asked in the witness box where G would sleep in those circumstances, he said G would have his (the father’s) queen size bed and “I break my back on the couch”. At another time he spoke of obtaining two large single beds for his room, in lieu of the queen size bed, in which case he and G would share the room.
The father was asked whether his mother would return to live with his sister if G came to live with him, and answered “no”. He spoke of asking his sister to stop work to look after his mother, but agreed she had not agreed to give up her job and had not agreed to take on the role of carer for their mother. The father could not explain why G told Mr. S that his father lives alone, saying that G knew that his mother lived there.
The father then spoke of renting a three or four bedroom home within a month or two. Pressed as to how he could afford that, he said there were “a lot of options for work, as long as my mother can be cared for”.
The court cannot know where and with whom G would live were his primary residence to be with his father. The paternal grandmother may be there on occasions. It is probable E and A would be there on at least some weekends and holidays.
Similar uncertainty bedevilled the father’s evidence about the school G should attend. He was adamant he would change his current school, despite the level of support available there; he said the mother only liked it because she was supported by the school, an analysis illustrative of his incapacity to understand the role of parental support in bringing up a child. According to him, G has no friends and plays alone, assertations not consistent with other evidence. The father spoke of two local schools, being K Primary School and L Primary School. He did not know at what time G finishes school each day and believed that all schools have before and after school programs for children.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a relevant factor
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
G’s parents share a broad cultural background and no submissions were specifically referable to this factor. I do take into account G’s special needs.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
The intervention orders granted to protect the mother against the father’s aggression have been summarised. Shortly prior to the trial, the mother sought an intervention order against the father and an interim ex-parte order was made on 10 November, 2009. It names the mother, G and N as the aggrieved family members and restrains the father from acting violently towards them and from following, contacting or approaching any of them. The order also restrains the father from going within 200 metres of the mother’s place of work. The order contains the usual exceptions for an act permitted by an order made pursuant to the Family Law Act 1975 or by written agreement; other exceptions relate to contact through a lawyer, participation in counselling or mediation and attendances at the mother’s home in the company of a police officer to collect personal property.
The complaint made by the mother on 10 November, 2009 alleges that the father constantly drives past her residence and place of work and watches her from the front of her residence. It alleges the father stopped her in the street the previous Thursday (5 November, 2009) when she was with the children and that he tried to grab her breasts some one month earlier. She also alleged that the father’s mother had run towards her car and tried to assault her some two months earlier. That order was neither made by consent nor after a contested hearing, but is referred to under this sub-section for convenience.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Late in his cross-examination the father was asked about his perception of the risks G faced with his mother. He said that going to court had made things better for G but that he believed the mother had some sort of problem and was “off her head”. It was then that he repeated that “one blow and he is gone”. The father went on to say that while he respected court orders, if G were not placed in his care “I can guarantee the court there will be round two”. Asked what he meant he said “we will enter these doors again”.
The father also alleged that G had said to him :
I am just going to wait to see what the court says; I’m not going to live with her.
If G did say anything to that effect, it is probable he was parroting his father’s views.
The father’s evidence of “another round” is of great concern. The evidence of Ms. H is that G has been adversely affected by the litigation and the hostility between his parents. Mr. S spoke of the negative impact on G of the parental hostility. The father is entitled to appeal against an outcome he views as unsatisfactory but he demonstrated no capacity to focus on anything other than his own interests and his own vendetta against the mother.
The evidence before this court suggests that any trial court to which an application is made by the father, based on statements allegedly made by G, should be very cautious of acting on those statements without further investigation. It is also important that those investigating any subsequent allegations have access to this judgment.
(m)any other fact or circumstances that the court thinks is relevant;
It is important that the Court considers the objects and principles set out in s.60B.
CONCLUSION
I do not find there is an unacceptable risk that G will be physically or emotionally abused in the care of his mother. I am satisfied there is an unacceptable risk that he will be emotionally abused in the care of his father and that his physical well-being may be compromised by his father’s refusal or inability to accept advice from medical and educational professionals.
Section 61DA(1) of the Act provides that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child were the child’s parents to have equal shared parental responsibility for the child.
The findings of family violence made by the courts which granted the various applications for intervention orders, and the findings made by this court, satisfy me that the presumption does not apply. If the presumption did apply, it should be rebutted as I am satisfied it would not be in the best interests of G. One need go no further than the evidence of the father’s response to the psychological assessment of G in 2008 and the advice from the Royal Children’s Hospital in 2009 to demonstrate this proposition. The evidence establishes that the father has no capacity to focus on G’s best interests. Instead, he conflates G’s interests with his own.
I am satisfied that G’s best interests require that he live with his mother and spend time with his father. I am satisfied that G’s best interests demand that the mother have sole parental responsibility for him. Orders will ensure the father is kept informed of issues relevant to G’s education and health, and have an involvement with G’s school and with medical and like professionals involved with G. However, the need for stability, security and consistency requires one parent to be responsible for decisions about major issues; only then can the court be confident G will experience the benefit of consistent, responsive, responsible decision making. That parent must be the mother.
G has been spending three nights a fortnight with his father during school terms. The orders of 12 December, 2008 provided for him to spend time with his father from 3:00 pm. on Thursday until 4:00 pm. on Sunday. The father has been collecting G from school on Thursday. The orders proposed by the ICL, and supported by the mother, would result in G continuing to spend three nights with his father in each fortnight; he would be picked up at the conclusion of school on Friday (in lieu of Thursday) and returned to school on the morning of the following Monday (in lieu of 4:00 pm. on Sunday). The extension of the weekend from 4:00 pm. Sunday until the commencement of school the following day, or the following Tuesday if Monday were a public holiday, would mean that the father could undertake activities with G on Sunday without having to accommodate a 4:00 pm. return; amongst other things, they could go away for the whole of a weekend or spend time with other members of the father’s family in the afternoon or evening of that day.
Mr. S effectively resiled from his earlier recommendation on hearing of the evidence of aggression and the father’s hostility to the mother, including the father’s proposal as to the time G should spend with the mother, which can only be described as punitive.
The ICL submitted that the court could be confident that the mother would allow G to spend more time with the father than ordered. It was his submission that her parenting needed to be supported by a structure which allowed that time to be negotiated between the parents, rather than dictated by the father.
I am satisfied that G should spend time with his father as proposed by the ICL and that orders should provide for there to be additional time by agreement between the parties. Orders should also provide for telephone calls between the father and G.
Orders will provide for the father to be kept advised of the school attended by G and for the father to be at liberty to attend events, activities and functions routinely attended by parents. They will allow him to make arrangements with G’s school to receive school reports, school photos and other documents routinely provided to parents. As the father will be collecting G from school on Friday afternoons and delivering him back to school on Monday mornings he will be able to have some involvement in G’s school life.
To the extent any order is inconsistent with the existing interim intervention order I am satisfied it is necessary to support the relationship between G and the father.
Orders will provide for the father to be kept advised of medical and psychological interventions and for him to discuss G’s prognosis and treatment with those experts. Decisions such as who is to be consulted and the nature and extent of professional interventions and treatment will be made by the mother.
I am satisfied the mother should be at liberty to provide a copy of the reasons for judgment to the principal of each school attended by G; in the principal’s absolute discretion it may be made available to any teacher, psychologist, counsellor or like professional working with G through the school. The mother should also be able to make it available to any doctor, psychologist, counsellor or like professional consulted by G, to police or protective workers investigating any subsequent allegation which relates to G and to any court which hears any proceedings which relate to G. Orders will allow her to provide it to any magistrate before whom is listed an application for an intervention order naming her or G as aggrieved family member or defendant. I stress that it would be a matter for the court in each case to determine whether it should be admissible and the weight to be given to it, if admitted.
The ICL submitted that an order should require the mother to be present at all times G is in the presence of Mr. W. It was his submission that the mother has acted protectively in respect of Mr. W in recent years. She has maintained a parenting relationship with Mr. W and the bond between N and G is strong. DHS had no protective concerns on this front.
The mother’s evidence was that Mr. W sees N frequently but such contact routinely occurs during the day, rather than overnight.
I am not satisfied such an order is warranted. It would be good for N to have his brother attend on some occasions on which he sees his father. The mother gave as an example a party given by Mr. W for N’s birthday. The mother may be in a position to attend such an event but she may not.
The evidence supports a finding that the mother has acted protectively in relation to N and has fostered his relationship with his father while containing it to the extent necessary to ensure N’s protection. There is no reason to believe she would now expose G to risk at Mr. W’s hands. She has demonstrated a capacity to rely on professional advice and to seek supports for herself and her children.
The ICL also sought that each of the parties attend a Parenting After Separation program. In my judgment there is little utility in the court making such an order at this time. It would not be appropriate to make it a condition of either of them spending time with G, as I am satisfied it is in his best interests to spend time as foreshadowed. Courses of this kind are run by the various Family Relationship Centres and by other organisations involved with families. It would be to G’s benefit were both of his parents to undertake such a course. It will be a matter for each of them as to whether they do so.
I certify that the preceding
250 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2010.
…………………………………………
Associate.
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