Ellison and Mallick and Anor

[2018] FamCA 603

FAMILY COURT OF AUSTRALIA

ELLISON & MALLICK AND ANOR [2018] FamCA 603

FAMILY LAW – CHILDREN – Interim parenting – Where both parents present an unacceptable risk of harm to the children –Where there is an unacceptable likelihood that the father will sexually abuse the children – Sole parental responsibility given to the Minister – Both parents are restrained from permitting any of the children from living with them or contacting them – Where the father has extensive history of juvenile sexual offending – where the mother has not acted protectively of the children.

Family Law Act 1975 (Cth) 60CA,60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Ellison

RESPONDENT: Ms Mallick

INTERVENOR: Secretary, Department of Family and Community Services NSW

INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

FILE NUMBER: PAC 266 of 2018

DATE DELIVERED: 8 August 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 6 & 20 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Forshaw Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Mallick in person

COUNSEL FOR THE INTERVENOR: Mr Anderson

SOLICITOR FOR THE INTERVENOR: Crown Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

Orders

1. Each of the parents is restrained from permitting any or all of the children X born … 2010, Y born … 2011, Z born … 2013 (“the children”) to live with or come into contact with them.

2. Pending further order, the Minister shall have sole parental responsibility for the children.

3. Pending further order, the children are to live with as directed by delegate of the Secretary of the Department of Family and Community Services.

4. The proceedings are listed for further case management on 3 August at 2.15pm.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC266 of 2018

Mr Ellison

Applicant

And

Ms Mallick

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the three young children of Ms Mallick (“the mother”) and Mr Ellison (“the father”).The Department of Family and Community Services (“the Department”) have intervened in the proceedings and currently hold parental responsibility for the children.  

2. The parties commenced a relationship in April 2007 and separated in December 2015 when the mother left the family home with the children to reside in emergency accommodation.  She returned to the family home after the father had departed at the request of the Department who had previously had quite extensive involvement with the family.

3. The parties came to an arrangement between themselves following separation that the children would live with each parent on shared care basis. This arrangement continued until February 2017 when the mother relinquished the care of the children to the father alone.

4. The children thereafter lived with the father and spent minimal time with the mother until December 2017 when the parties arranged for the mother to spend time with the children for three weeks over the Christmas holidays.

5. On 7 January 2018 the mother informed the father that she would be retaining the children and did not return them to his care.

6. The father filed an Initiating Application in the Federal Circuit Court seeking that the children be recovered to his care on 23 January 2018.

7. A Recovery Order was issued by a Judge of the Federal Circuit Court on 6 February 2018 and the children were returned to the father’s care.

8. In March 2018 the Department was given leave to intervene in the proceedings, having been engaged with the family for a number of years in circumstances to which I will return later in this Judgment. The proceedings were later transferred to this Court.

9. On 18 June 2018 the Independent Children’s Lawyer (“ICL”) made an oral application for the Department to be granted sole parental responsibility for the children. That application was listed for interim hearing on 6 July 2018.

10. For reasons that will be explained in more detail later in this Judgment interim orders were made by consent on 6 July 2018 for the duration of the school holidays that the Department have sole parental responsibility for the children, that the children live as directed by the delegate of the Secretary of the Department (“the Secretary”) and if the children were to spend time with the mother this occur as directed by the Department. The matter was then adjourned for further hearing to 20 July 2018.

11. During the adjourned period the children were placed by in the care of the mother by the Secretary of the Department.

12. During both the hearings on 6 July and 20 July 2018 serious concerns were raised about the safety and wellbeing of the children in the care of both parents.

13. At the conclusion of the hearing on 20 July 2018 I made orders as set out at the forefront of these Reasons that both parents be restrained from allowing the children to live with or come into contact with each of parents, that the Department have sole parental responsibility and that the children live as directed by the Secretary.

14. On 20 July 2018 I gave brief reasons in relation to my assessment that both parents currently pose an unacceptable risk of harm to the children and for the restraint on allowing the children to live with or contact them. I indicated that I would provide more detailed reasons for these orders at a later date. These are those Reasons.

Background

Historical matters

1. The mother, who is 43, and the father, who is 36, commenced a relationship in 2007.

2. The father had a history as an adolescent of extremely disruptive and sexually and physically abusive behaviour towards his younger siblings and other school students. When the father was 15 his parents (“the paternal grandparents”) commenced proceedings in the Children’s Court on the grounds that the father was in need of care due to irretrievable breakdown in the relationship between the father and his parents.  The father was placed in the care of the Director General of the Department.  After being placed in care the father participated in a juvenile sex offender program for eight months before being discharged for sexual offending within the program.

3. Prior to commencing a relationship with the father the mother had been in a relationship with Mr B, with whom she has three children now aged 24, 15 and 13. When the mother separated from Mr B and commenced a relationship with the father she left her two youngest children daughters (“the mother’s older daughters”) then aged five and three, in the care of Mr B.

4. The parties’ first child, X, (“the oldest child”) was born in 2010.

5. The parties’ second child, Y, (“the middle child”) was born in 2011 and was diagnosed with dystonic quadriplegic cerebral palsy shortly after birth.  He has significant physical disabilities.

6. In November 2013 the Department removed the mother’s older daughters from the care of Mr B and placed them with the mother. These children have had no contact with Mr B since this time.

7. In the same month the middle child, then aged two was assumed into the care of the Department at a local hospital following a number of Risk of Significant Harm (“ROSH”) reports being made to the Department regarding the parents’ failure to meet this child’s needs.

8. The parties’ third child, Z (“the youngest child”) was born in 2013.

9. On 17 December 2013 orders were made in the Children’s Court placing the older child, the middle child and the mother’s oldest daughters under the care of the Minister of the Department.

10. In January 2014 the Department received a report in relation to one of the mother’s older daughters to the effect that this child then aged nine had disclosed that her father (Mr B) and his friend had sexually assaulted her.  This disclosure resulted in a JIRT[1] investigation.  The affidavit of the Manager Case Worker employed by the Department deposes that this investigation found that while both of the mother’s older daughters had disclosed indecent assault during their interview there was some conflicting information regarding the disclosures and as a result the allegations were not substantiated. 

    [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

11. On 23 May 2014 final orders were made in the Children’s Court that the older child and middle child be placed under the care of the Department for 15 months and then under the supervision of the Department for a further nine months.

12. The mother’s older daughters were placed under the care of the Minister of the Department for two years, following which parental responsibility for the children would be allocated solely to the mother.  

13. In February 2015 the oldest and middle children were restored to the care of the mother and father.

14. The parents separated in December 2015.

15. In May 2016 the mother made an application to the Children’s Court seeking that the older two children be placed in her sole care as she had concerns about the father’s parenting capacity. Following that application, which was withdrawn by the mother shortly thereafter, the second child was placed under the supervision of the Department for a further 12 months due to concerns about the capacity of both parents to meet his needs. No further orders were made in relation to the oldest child.  At this stage no orders had ever been made concerning the youngest child. 

16. In October 2016 the mother took the youngest child who was almost three to a GP due to concerning discharge observed in child’s nappy. Subsequent tests identified that the youngest child tested positive for Neisseria gonorrhoea and the child was presented to the Emergency Department for treatment. The child was referred to the Child Protection Unit of the hospital.

17. The father also tested positive a few days later for Neisseria gonorrhoea and chlamydia.  The mother her partner and the child’s siblings all tested negative for gonorrhoea.  During an interview by JIRT on 9 November 2016 the father suggested that gonorrhoea could be transmitted by non-sexual means and the youngest child may have contracted the infection by using a bath, towel, bottle or door handle that the father had used. The father’s juvenile history of sexual offending, to which I will return, was also discussed. 

18. In July 2016 a report was made to the Department in relation to potential sexual harm concerning the mother’s older daughters. 

19. In November 2016 a Safety Plan was developed by the Department and signed by the mother in relation to the mother’s older daughters due to concerns about the risk of sexual harm posed to them in the mother’s household. This Plan included that no adults other than the mother and her partner enter the mother’s home, that the mother ensure the older daughter’s father did not attend the home, that the mother not take the older daughters to see their father and that the mother’s partner not be left alone with the children.

20. The outcome of the most of the then recent JIRT Investigation was that the youngest child was found to be a risk of sexual harm.  The JIRT investigators also concluded that no person causing harm could be identified.

21. In February 2017 the mother relinquished the care of the parties’ three children to the father who remained living in Sydney.  The mother who was said to have been experiencing depression or other mental health difficulties moved to live in a rural area a distance of about four hours’ drive from the father with her new partner.  In a risk assessment decision report in relation to the children prepared in October 2017 it is noted that one of the concerns regarding the mother’s two older daughters related to men frequenting her home, a risk of sexual harm and sexualised behaviours.  It was also noted that prior to relinquishing the children to the father there were serious concerns regarding the care the mother had provided to the children in particular not meeting the middle child’s medical needs and not providing a safe environment for him.

22. The Department received two reports following the father assuming care of the children full time which raised concerns that the father was associating with teenagers in the local community and may be “grooming” them for sexual abuse. The father denied engaging in such behaviour when spoken to by Departmental workers and no issues or concerns were raised about the father’s care of the children in the Safety Assessment Decision Report completed by the Department.

23. While the children were in the care of the father during 2017 and 2018 the Department also received a number of reports raising concern about the father failing to meet the middle child’s medical needs. 

24. In November 2017 the mother contacted the father to make arrangements to spend some time with the children. The mother and father arranged for the mother to spend three weeks with the children over the Christmas holidays in December 2017/January 2018.

The proceedings

1. On 7 January 2018 the mother contacted the father and informed him that she would not be returning the children to his care. She then ceased communicating with him. In response the father commenced these proceedings.

2. A few days after the father commenced proceedings to recover the children to his care the Department received a report which indicated that the youngest child allegedly disclosed that the father had placed his fingers in her vagina. A second report indicated the one of the mother’s older daughters also disclosed sexual abuse of the other older daughter by the father. A further JIRT investigation was then commenced.

3. The youngest child was unable to be meaningfully interviewed by JIRT given her age at the time. The oldest child and one of the mother’s older daughters whom the second report had named as being abused by the father, were also interviewed by JIRT and neither made any disclosures.

4. The mother did not meaningfully engage in the proceedings in the Federal Circuit Court.  She did not file a Response to the father’s Application that the children be returned to his care or file any affidavit.

5. On 6 February 2018 a judge of the Federal Circuit Court made orders for the children to be recovered to the father’s care and to live with him pending further order.

6. In March 2018 the Department was given leave to intervene and was joined to the proceedings.

7. In the April 2018 school holiday period the mother had some unsupervised time with the children by arrangement with the father.

8. In May 2018 another report was received by the Department alleging the youngest child had made further disclosures of sexual abuse by her father. No further action has been taken in relation to these disclosures and the JIRT investigation has been closed in circumstances where this child has not been able to confirm or deny the allegations raised in the reported disclosures.

9. On the next occasion the matter was before the Federal Circuit Court (4 May 2018) the proceedings were transferred to this Court.

10. The Department has been engaged with the father regarding the children’s progress and in May 2018 the middle child was enrolled for the first time in a school in the father’s area which specifically caters for children with disabilities. Both of the other children have also been engaged in programs to cater to their specific needs.

11. In an affidavit filed by the Department on 1 June 2018 the Manager Caseworker for the family deposes to the Department holding concerns about the parenting capacity of each of the parents. In relation to the father who had the care of the children at that time, the Department held concerns about the youngest child’s contraction of gonorrhoea in the father’s care and that the father continued to require the assistance of the Department to meet the children’s educational and developmental needs, particularly the complex needs if the middle child.

Application for parental responsibility to the Minister

1. On 18 June 2018 leave was granted to the ICL to bring an oral application seeking that the Department be given parental responsibility for the children due to the concerns raised about the risks of harm posed to the children in each parent’s care. Orders were made for the parties to file affidavits and outlines of case and obtain information as to the father’s sexual offending as a juvenile in preparation for an interim hearing.

2. On 18 June 2018 the mother did not attend the court event and had also not filed a Response and was not otherwise engaged in the proceedings at that stage.

3. At a court event on 6 July 2018 both the Department and the ICL proposed that the Minister hold sole parental responsibility for the children. The removal of the children from the father’s care was also raised due to the serious concerns surrounding the father’s parenting capacity and the possible risks of harm posed to the children in his care.

4. In addition to the matters previously raised the affidavit of the Manager Case Work at the Department also deposed to additional concerns about the middle child. These concerns include that it had been raised by the child’s school that the child was exhibiting signs of asthma and that he was able to undo his wheelchair seat belt and brakes.  According to correspondence with the father annexed to this affidavit the father is of the view that the middle child does not have asthma and that matters raised in the proceedings with respect to the father’s conduct as a child are irrelevant.

5. There was insufficient information available on 6 July 2018 to make interim parenting orders appropriate to remain in place for some time. However, as the school holidays were to commence imminently the parties’ consented to interim orders for the duration of the school holiday period with those orders to cease operation on 20 July 2018 when a further interim hearing would be held.

6. In these circumstances orders were made with the consent of all parties for the Minister of the Department to hold sole parental responsibility for the children, for the children to live as directed by the Secretary’s delegate and if the children were to spend time with the mother this time be as directed by the Department. These orders were made on the understanding that the children would live with the mother under the supervision of the Department for the duration of the holidays until 20 July 2018 but the Department was on notice that I may assess the level of risk posed to the children in both households to be unacceptable on the adjourned date.

7. At the 20 July 2018 court event the Department and the ICL proposed orders that the Minister continue to hold sole parental responsibility for the children and the children continue to live as directed by the Secretary (which the Department continued to propose would be the mother). It was the position of the Department and the ICL that the risks of harm posed to the children in the father’s care were at this stage unacceptable but the risks of harm posed to the children in the care of the mother could be ameliorated by the engagement and supervision of the Department.

1. In an affidavit dated 19 July 2018 the case worker reported various matters including events when children were placed with their mother in the preceding two week school holiday period.  In particular the case worker referred to a safety plan which provided that a young adult known as “C” aged 18 years who had been present with the mother at court on 6 July 2018 not attend the family home.  The Department records contain information which suggests that C is a relative of a person who previously frequented the mother’s home in Sydney at around the time that the youngest child was diagnosed with gonorrhoea (but had been unable to be located for the purposes of being tested for gonorrhoea) and also had his own child protection history including allegations that he was the perpetrator of sexual abuse against other children when he was a juvenile.  The case worker also deposes that on one occasion when attending the mother’s home during this period she and another colleague specifically discussed with the mother concerns about the risk of sexual harm posed to the children.

2. At the 20 July hearing the mother who was present did not propose any orders herself but consented to the Department retaining parental responsibility for the children.

3. The father, who continues to seek that the children live with him and that he hold sole parental responsibility, ultimately consented to the Department retaining parental responsibility for the children if the risks of harm to the children in his care were assessed to be unacceptable by the Court. He maintained his concerns about the risks of harm posed to the children in the mother’s care and his opposition to the children being placed by the Department with the mother.

4. On 20 July 2018 I remained concerned, given very little had changed since 6 July 2018 that the risks of harm posed to the children by each parent would be assessed as unacceptable.  I expressed my concern that the Department continued to promote the mother as an appropriate primary carer and had not contemplated a third option that did not involve the children living with one of the parents.  I expressed further concern that the specific dilemma of not having a third option had been a live issue and the Department had been on notice about it since 6 July 2018. 

5. Both the legal representative for Department and the ICL raised concerns that the third option of out of home care was fraught with uncertainty and change for the children and would practically be difficult to implement immediately.  The Department’s legal representative was unable to explain why a third option had not been explored during the two weeks of the school holidays and why relevant officers had not responded to the likely assessment by the court of unacceptable risk posed by each parent. 

6. Following submissions from the parties as to the risks of harm posed to the children by the father, I assessed the risk to be unacceptable at this stage and delivered a short judgment indicating I would deliver more detailed reasons in due course. 

7. At the conclusion of submissions from each party as to the risks of harm posed by the mother and the possible amelioration of such risks by the Department supervising her care of the children, the father’s legal representative sought to lead evidence that the father claimed was relevant to the assessment of the risk posed by the mother.

8. To ensure the best interests of the children I allowed the father’s legal representative to provide this information to the Court from the bar table. It was conveyed that the father had seen the person “C” outside the court building with the mother over the lunch adjournment.

9. In answer to direct questions from the bench about C, the mother who had attended but was unrepresented admitted that he had accompanied her to court to “assist with driving”.  The mother added that “C” had recently, following the court event on 6 July 2018, moved to her local area where she was living with the children.

10. The mother’s continued association with “C” caused me great concern given the level of trust the Department and this Court would be placing in her if the children were placed to live with her by the Department.

11. I advised the parties that I was minded to make an order restraining both parties from allowing the children to live with or come into contact with them. Each of the represented parties made submissions in relation to this suggestion I then made the orders in question and proceeded to deliver a short judgment with more detailed reasons to be delivered at a later date.

Risk of Harm

1. The Department and the ICL submit that the risks of harm posed to the children in the father’s care are unacceptable. The father submits that he does not pose a risk of harm to the children and the risks of harm posed to the children in the mother’s care are unacceptable. The Department and the ICL submit that the risks of harm in the mother’s care can be ameliorated by the supervision of the Department and a series of restraints being imposed on the mother.  

2. Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may have some regard to the matters in dispute.  In SS & AH[2], their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2] [2010] FamCAFC 13

3. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[3], a decision of the Full Court citing Deiter & Deiter[4]).

   [3] [2013] FamCAFC 182

   [4] [2011] FamCAFC 82

4. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

5. I will now consider the risks posed by each parent to the children on the basis of the evidence before me.

The father

1. When I delivered short reasons on 20 July 2018 for my assessment that the risks posed by the father to the children are unacceptably high I emphasised the father’s concerning juvenile history of sexual offending, the youngest child’s contraction of gonorrhoea in the father’s care and the fact that the father was the only member of the family constellation who was tested who returned a positive test for gonorrhoea. I will now deal with each of those concerns and other matters of risk in more detail.

Juvenile sexual offending

1. According to Departmental records in April 1996 the Department received a risk of serious harm “ROSH” report that the father who was then 14 had sexually abused another male student at his school. According to departmental records made at the time and in the proceedings the father has variously denied the incident, claimed he was the victim, or claimed that the incident was consensual.

2. No charges were laid as the victim’s family withdrew the complaint but the father was referred to a treatment centre for young people with complex mental health problems and disorders.

3. A number of months later the Department received a ROSH report alleging the father had sexually abused his younger siblings.

4. In September 1996 while the father was participating in a program at the treatment centre, a progress report was prepared by a doctor at the facility. That report described the father’s sexual behaviour as “predatory and deliberate” and included the following:     

   His current behaviour was more consistent with conduct disorder.  [The father] was not suffering from depression.  He knew what sexual behaviour was allowed and what was not.  He should be held responsible for deviations from that code.

5. In November 1996 the deputy director at the treatment facility the father was attending wrote to the Department indicating that the father showed little remorse and an inability to accept responsibility for his actions. Subsequently the Department recommended the father be placed in out of home care due to his sexual offending behaviour.

6. In March 1997 the father was again accused of sexually abusing another male student at his school, an older boy with Down Syndrome. The father again alternately denied the allegation, claimed he was the victim and claimed the incident was consensual. Subsequently the father was indefinitely suspended from school and in June 1997 his parents made an application for him to be placed in the care of the Department.

7. The father was found by a magistrate in a Children’s Court to be in need of care and protection and was placed under the care of the Director General of the Department as the relevant statutory officer was then known.

8. Department records indicate that the father entered a juvenile sex offenders program in 1997 but was discharged from that program after sexually offending within the program on seven separate occasions with increasing frequency and intrusiveness. The father was described as “actively engag[ing] in grooming of his potential victims”.

9. In September 1999 the father reached adulthood and ceased having contact with the Department. At around the time he ceased contact the father was reviewed by various counsellors, therapists and psychiatrists and given a variety of mental health diagnoses. Little is known about any treatment sought by the father after this time in relation to his offending behaviour. 

10. It is in my view a matter of a significant concern that the father has variously raised from the time of the alleged conduct up until the present that he has been the victim of sexual abuse rather than a perpetrator.  He has maintained this position notwithstanding that there have been a large number of allegations of this type in various settings over a number of years and that there is well documented history by highly qualified professionals who all describe him clearly as a perpetrator. 

11. It is also in my view a matter of concern and relevant to the risk posed by the father that he takes great umbrage in these proceedings to his past having been raised and suggests that his alleged offending as an adolescent is irrelevant to the issue of any risk that he may currently pose to his children. 

12. Further, the recent allegations made against the father that he was engaging in “grooming” behaviour of two teenagers in his area is of concern, particularly given his history.

JIRT Investigation and positive test for gonorrhoea

1. As outlined earlier in these reasons in late 2016 the youngest child was diagnosed and treated for gonorrhoea following the mother taking her to the GP due to concerning discharge in the child’s nappy.

2. During the ensuing JIRT Investigation the father also tested positive for gonorrhoea in addition to chlamydia. During an interview with JIRT officers the father was unable to identify how he contracted either infection but claimed that the youngest child could have contracted the infection in a multitude of non-sexual ways.

3. While the JIRT investigation concluded that the youngest child was at risk of sexual harm but could not identify a person causing harm, it is of significant concern that the father was the only person in the family constellation who was tested for gonorrhoea to return a positive result.

4. On 31 January 2017 the Child Protection Unit, which treated the child for gonorrhoea, provided a report on the youngest child’s contraction of the infection which included the following relevant information:

   ·The youngest child had been in the care of the father in the week before her presentation to the GP;

   ·The incubation period for gonorrhoea is usually between two to 14 days, but symptoms may develop up to three weeks from exposure, placing the likely date of the youngest child’s contraction of gonorrhoea during the period of time she spent with the father.

   ·A number of the youngest child’s family members were tested and only the father returned a positive result for gonorrhoea.  It is noted however that a number of family members, including the mother’s oldest child from her previous relationship, refused to be tested;

   ·If the youngest child acquired gonorrhoea from a person who also had chlamydia, it would not necessarily follow that she would also acquire chlamydia as the rate of transmission of chlamydia following one exposure is less than 50 per cent; and

   ·Gonorrhoea in pre-pubertal children is very uncommon and unless another unusual mechanism for transmission was identified by JIRT, the Child Protection Unit concluded that the infection was highly suspicious for being sexually transmitted.

5. This evidence is not conclusive to prove that the father transmitted the disease to the child.  However, the father cannot explain how he contracted gonorrhoea.  It is also significant that the child was in his care during the likely contraction and incubation period, and that he was the only person tested to return a positive result.  I attach particular weight to the expert evidence that it is highly unlikely that the youngest child contracted the infection other than through sexual means.

6. Having regard to the father’s concerning documented juvenile history of sexual abuse, the recent allegations of association with young people and concerns about grooming behaviour together with evidence that suggests that the father sexually transmitted gonorrhoea to the youngest child when she was three there is an unacceptable likelihood that the father may sexually abuse the children.  Having regard to the severity of the impact caused by child sexual abuse I am of the view that the father poses an unacceptable risk to the children on the basis of sexual abuse if the children were to live with or spend unsupervised time with him.

The mother

1. When I delivered short reasons for my assessment that the risks posed by the father to the children are unacceptably high on 20 July 2018 I also summarised the risks associated with the mother.  These risks include the child protection history of all of the mother’s children, including the removal of four of her six children from her care in the past, the mother’s abandonment of the children to the father’s care, her neglect and failure to meet their needs, her lack of engagement in these proceedings, her mental health and her lack of insight into the need to protect of the children.

2. I will now give further details in relation to my assessment of risk of harm to the children in the mother’s care.

The mother’s protective capacity

1. The mother has a very long child protection history in terms of concerns about all of her children as detailed earlier in these Reasons.  At least two of her older children, in addition to two of the children in these proceedings, have been removed from her care in the recent past for an extended period of time and placed under the care of the Department. Issues of neglect, inability to meet the children’s developmental and medical needs (especially in relation to the middle child) and the exposure of the children to possible sexual abuse were all issues raised at the time these children were placed in the care of the Department.

2. The mother also has a history of abandoning her children. When she commenced a relationship with the father she left her two young daughters from a previous relationship with their father.  It later came to light when the children were removed from his care that he possibly posed a risk of sexual harm to these children.

3. Later, less than two years after the children had been restored to her care, the mother abandoned the three subject children of these proceedings with the father. At that stage the youngest child was not quite three and had been diagnosed with a sexually transmitted disease in circumstances where the father had tested positive for the same disease.  This is a matter that the mother herself concedes indicates that the father poses an unacceptable risk of harm to the children, and yet she relinquished them to his care four months after the investigation into that matter.

4. The mother then moved to another part of the state in August 2017, with her current partner, even though her partner is a person who is only present in her home for 24 hours once a week. The circumstances in which the mother relinquished the children to the father, who she correctly in my view suspects had sexually harmed one of them, highlights a disturbing pattern not only in the mother’s treatment and lack of prioritisation of the children but also her inability to identify sexual threats to her children and behave protectively.

Parenting Capacity

1. Even when the children were returned to the mother’s care under supervision there have been concerns raised about chronic neglect.  These concerns were present as recently as about a year ago.  The mother’s home has previously been described as so unhygienic and cluttered that the middle child was unable to manoeuvre his wheelchair.  Within two weeks of that issue having been raised and the mother being required to clean up the home the house had returned to its former state.

2. Additionally, there have been two ROSH reports about excessive discipline in relation to the mother and her partner, about whom very little is known.  Although the mother had previously agreed not to leave her children alone in the care of her partner this occurred on 20 July 2018 when the mother attended court for the interim hearing. 

3. There is very little known about the mother’s care of her two older daughters though I note the most recent affidavit from the Department suggests at least one of those children has mental health concerns. 

4. There is very little evidence as to any active steps the mother has taken to change the way she cares for the children which is of particular concern given the middle child’s special needs and his recent improvements in health and education. The mother’s capacity to care for five children, one of whom may have mental health concerns and one of whom has special needs, is substantially untested.

Mother’s conduct in the proceedings

1. The mother’s conduct in both these proceedings and the earlier stage of the proceedings before the Federal Circuit Court, is also of concern.  She is not seeking any orders and did not file a Response, affidavit or a Notice of Risk, despite ordered to do so by a judge of the Federal Circuit Court in February of this year. 

2. The mother belatedly filed an affidavit recently, but it provides virtually no additional information. 

3. The mother’s attitude to the proceedings and lack of insight into her own shortcomings is encapsulated in her own words.  She says she is, “… okay with that being – [if the Department want to put the children with me], I’ll go along with that”.

4. The mother’s lack of engagement in these proceedings or active concern for the circumstances of the children in light of the evidence that has been brought before this Court and brought to her attention is nothing short of disturbing.

Mental health

1. There have also been longstanding mental health issues from the mother, which are identified in the Child Dispute Conference Memorandum[5]. It was allegedly these mental health concerns that caused the mother to relinquish the care of the children to the father in 2017 yet there is no evidence before the Court as to the mother’s current engagement with treating mental health professionals or as to any treatment she is undertaking.  

   [5] Exhibit D.

The mother’s association with “C”  

1. On 20 July 2018 it was quite dramatically revealed that the mother had driven to court with a young person who as had been drawn to her attention in court on 6 July 2018 and by the Department through their Safety Plan for the children, is a suspected perpetrator of sexual abuse.  It has been brought to the mother’s attention that he is someone with whom the children are not to come into contact. The mother’s continued association with this person and lack of insight into the potential risks he poses gives me significant concern.

2. First, although the mother readily acknowledged that C had accompanied her to court she claimed that her understanding was only that C could not come to her house.

3. Further, C did not come into the courtroom with the mother, as he did on 6 July 2018 when his presence was discussed in court.  It became apparent that he waited outside the precincts of the court for the mother and his presence was only made known to the Court because the father happened to see him during the lunch adjournment.  In these circumstances I can draw no other inference than that the mother deliberately attempted to conceal C’s presence with her on 20 July 2018 from the court. If she felt confident about his presence and felt that it would raise no concerns, there would be no reason why he would not have openly been with her in the courtroom. 

4. The presence of the person C in my view raises significant concerns about the mother’s capacity to prioritise the needs of the children and her ability to comply with instructions from the Department or Court Orders.  The mother has not explained why she would want to continue to associate with a young man, many years her junior, when it has been brought to her attention that there is a very concerning contact report about him.  This is especially the case in circumstances where sexual abuse of the children has been an ongoing concern over a number of years and is presently one of the main reasons that the father in these proceedings has been assessed to presently pose an unacceptable risk of harm to them.

5. The fact that C, following the interim hearing on 6 July 2018 and after concerns about him were raised with the mother, has relocated to live in the same area as the mother, (who then had the children in her care) without the knowledge of the Department or the Court, only increases my concern about the mother’s ability to act protectively and in the best interests of the children. 

6. Given all of the concerns surrounding the mother’s care of the children and her behaviour in relation to C on 20 July 2018, I can only conclude that the mother fundamentally lacks any insight as to her shortcomings and how to prioritise the needs of the children above her own notwithstanding her assurances to the Department to the contrary.  In circumstances where the Department and the ICL propose that the children live with the mother a high level of trust would be placed in her.  I cannot find that the mother can be trusted to act in the best interests of the children to the extent required for the arrangement proposed by the Department and the ICL to be implemented.

7. Accordingly, I find that there is an unacceptable risk of harm to the children should they live with the mother. 

8. As the Department has a current intention to place the children with the mother, the only way to prevent this from occurring is to put a restraint upon the mother that she not permit any of the children to live with her or have contact with her. I have previously indicated my reasons for imposing a similar restraint upon the father.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[6].

   [6] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Pursuant to s65D(1), subject to certain sections a court may make such parenting order as it thinks proper.

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. It is likely that the interim parenting arrangement under consideration here will be in place for many months.

6. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

The best interest considerations

1. The primary considerations, which are contained in s 60CC(2), 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.

2. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

3. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7] 

   [7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. The Secretary of the Department who holds parental responsibility for the children intends to ensure that each of them has the benefit of having a meaningful relationship with each parent by facilitating a regime of contact between both of the parents and the children.  This will ensure that the children continue to receive the benefit of a meaningful relationship with both parents while being protected from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.

5. For the reasons previously given I am concerned about the unacceptable levels of harm to which the children may be exposed in each of the parents’ households and my view that the only way to ensure the necessary level of protection is through a restraint on the children living with each of the parents.

6. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

7. The children’s views in relation to their interim parenting arrangements are not known but in circumstances where the need to protect them from harm is such a significant factor and in light of their ages very little weight if any would be attached to their views even if they were known. 

8. Each of the parents at various times had significant involvement in the care of the children and it can be assumed that each child’s relationship with each parent is important.  However, the children have also experienced times in care when the Minister has held parental responsibility for them and have been cared for by other adults including the paternal grandparents.  In recent times the father has been the children’s primary care giver but the weight to be attached to their relationship with him is less significant in a case such as this where the need to protect the children from harm posed by each of the parents is the most salient feature.

9. As previously noted the mother’s abandonment of the children to the father especially in circumstances where she was at that time of the view that he posed an unacceptable risk of harm to them is a very weighty factor in these circumstances.  The mother’s desire to pursue a relationship with her partner which apparently motivated her to move to another part of the state (even though the partner was absent for most of the week) also indicates the mother’s inability to prioritise the needs of her children over her own needs. 

10. Concerns about each of the parents’ capacity to meet the children’s needs as outlined earlier in these Reasons is also an important matter.

11. One of the other significant factors in these proceedings is the likely effect of any changes in the children’s circumstances upon them.  The effect of the restraint upon each of the parents from having the children live with either of them amounts to effective removal of the children from the care of both of the parents and will mean significant separation from both parents and placement in the care of a caregiver deemed to be suitable by the Department. 

12. There also may be some practical difficulties and expense for the children to spend time with and communicate with each parent.  However, given the intention of the Department to facilitate the children’s relationship this will not substantially affect the children’s right to maintain personal relations and contact with both parents.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, the only way to ensure that the children are appropriately protected from the risks of harm posed by each of the parents is to make the orders as I did restraining each parent from permitting the children to reside with either of the parents.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 August 2018

Associate: 

Date:  8 August 2018