Fell and Hartell & Ors

[2014] FamCA 111

FAMILY COURT OF AUSTRALIA

FELL & HARTELL AND ORS [2014] FamCA 111

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – no orders made for the residence of the eldest two children as no available order reflects the best interests of those children – the two youngest children to live with the applicant, who is the biological father of only the youngest child – youngest child’s limited time with the mother requires supervision – no orders proposed for sibling interaction – second respondent is the biological father of the three eldest children, but he did not make residence proposals for any of the children – maternal grandmother and maternal uncle withdrew from the proceedings – children’s views contaminated – all of the children have changed residence several times – mother has history of poor mental health and drug use – current risk of psychological and physical harm in the mother’s household – history of family violence between the mother and the applicant – the applicant has a limited parenting capacity but it is superior to the mother’s and he has made improvements

FAMILY LAW – CHILDREN – Parental responsibility – no express orders allocating parental responsibility in respect of the two eldest children – mother’s limited parenting capacity prevents her having sole parental responsibility – no presumption of equal shared parental responsibility in relation to the two youngest children due to family violence – applicant granted sole parental responsibility for the two youngest children as a result of their residence with him

FAMILY LAW – INJUNCTIONS – Permanent injunction against the mother’s partner having contact with the children because of the substantiation of allegations he sexually assaulted at least one of the children – high risk of harm in the mother’s household – mother did not comply with interim injunction precluding children’s contact with her partner – additional injunction requiring supervision of the children in the company of the applicant’s teenage children due to past sexual molestation

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68P

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services (2011) 243 CLR 361

APPLICANT: Mr Fell

1^ST RESPONDENT: Ms A Hartell

2^ND RESPONDENT: Mr Moxon

3^RD RESPONDENT: Mr K Hartell

4^TH  RESPONDENT: Ms I Hartell

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: NCC 2776 of 2010

DATE DELIVERED: 7 March 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 10, 11, 12 & 13 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Burns

SOLICITOR FOR THE APPLICANT: Steven Young Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: N/A

SOLICITOR FOR THE 1^ST RESPONDENT: N/A

COUNSEL FOR THE 2^ND  RESPONDENT: N/A

SOLICITOR FOR THE 2^ND  RESPONDENT: N/A

COUNSEL FOR THE 3^RD  RESPONDENT: N/A

SOLICITOR FOR THE 3^RD  RESPONDENT: N/A

COUNSEL FOR THE 4^TH   RESPONDENT: N/A

SOLICITOR FOR THE 4^TH   RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr M Graham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)       C, born … January 1998 (“C”);

   (b)       B, born … January 2000 (“B”);

   (c)       D, born … May 2001 (“D”); and

   (d)       J, born … June 2003 (“J”). 

2. The applicant shall have sole parental responsibility for D.

3. The applicant shall have sole parental responsibility for J.

4. D shall live with the applicant.

5. J shall live with the applicant.

6. Unless otherwise agreed between the applicant and first respondent in writing, the applicant and first respondent shall take all reasonable steps to ensure that J spends supervised time with the first respondent for two hours on the first Saturday of February, May, August, and November each year.

7. For the purpose of implementing Order 6 hereof, unless otherwise agreed between the applicant and first respondent in writing:

   (a)The supervisor of the time spent by J with the first respondent shall be staff at E Supervisors, Town F, NSW, or some other person or entity nominated by the delegate of that organisation (“the supervisor”);

   (b)The applicant and first respondent shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

   (c)The time that is to be spent by J with the first respondent shall commence at the time designated by the supervisor;

   (d)The venue at which the time is to be spent by J with the first respondent shall be designated by the supervisor;

   (e)The applicant and first respondent shall pay in equal shares any costs due to the supervisor;

   (f)The applicant shall cause the delivery of J to, and the collection of J from, the supervisor at the commencement and conclusion of the time spent by J with the first respondent;

   (g)If on an occasion that J is due to spend time with the first respondent that time together cannot be accommodated by the supervisor the time that J would otherwise have spent with the first respondent shall be made-up at another time as close to the original time as can be arranged;

   (h)The applicant and first respondent shall comply with all reasonable requests and directions of the supervisor; and

   (i)Leave is granted to the applicant and first respondent to provide to the supervisor a sealed copy of these orders.

8. Unless otherwise agreed between the applicant and first respondent in writing, they shall each take all reasonable steps to ensure that J communicates by telephone with the first respondent each Wednesday at 6.00 pm, and for that purpose the first respondent shall telephone J on the telephone number provided to her by the applicant and the applicant shall ensure that J is able to receive the first respondent’s calls on that number at that time.

9. Each party is restrained from causing or permitting the children to be, or remain in, the physical presence of, or from communicating with, Mr O.

10. The applicant is restrained from causing or permitting the children to be, or remain in, the physical presence of the following persons, unless personally supervised by him:

    (a)H;

    (b)L; and

    (c)M.

11. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

12. Each party is restrained from denigrating any other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any other party.

13. Each party shall forthwith inform the others, and keep the others informed, in writing of their respective current residential address and contact telephone number.

14. The first respondent shall authorise and request the principal of any school attended by C and B to provide to the second respondent, at his expense, copies of all school reports and school photograph order forms relating to C and B.

15. The applicant shall authorise and request the principal of any school attended by D to provide to the first and second respondents, at their individual expense, copies of all school reports and school photograph order forms relating to D.

16. The applicant shall authorise and request the principal of any school attended by J to provide to the first respondent, at her expense, copies of all school reports and school photograph order forms relating to J.

17. Leave is granted to the parties to provide a sealed copy of these orders to the principal of any schools attended by the children.

18. Within seven days hereof the applicant and first respondent shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.

19. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21. Costs are reserved for 28 days.

22. Any and all outstanding applications are dismissed.

Notations

(A)No orders are made in respect of C and B.

(B)The first respondent and second respondent both retain parental responsibility for C and B pursuant to s 61C of the Family Law Act, which parental responsibility may be exercised independently or jointly.

(C)An apprehended domestic violence order was made for the protection of C from the first respondent for a period of two years by the Local Court of NSW at … on … June 2013, and subsequently varied on … November 2013. These orders are not inconsistent with that apprehended violence order.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2776 of 2010

Mr Fell

Applicant

And

Ms A Hartell

First Respondent

And

Mr Moxon

Second Respondent

And

Mr K Hartell

Third Respondent

And

Ms I Hartell

Fourth Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. What to do with four children whose mother, two fathers, and maternal family members have been beset by animosity, pre-occupied with their own problems, and only inconsistently able to ensure the children’s best interests are promoted?

2. The four children range in age between 16 years and 10 years.

3. The first respondent (“the mother”) is the mother of all four children.

4. The applicant is the biological father of only the youngest child, but he was formerly an important father-figure to the three eldest children.

5. The second respondent is the biological father of the three eldest children, but he has had relatively little to do with any of them over many years.

6. The third respondent (“the uncle”) is a maternal uncle of the children. Until recently, he provided residential care for the third child, but he withdrew from the proceedings when that arrangement ended.

7. The fourth respondent (“the maternal grandmother”) is the children’s maternal grandmother. All of the children have individually lived with her from time to time, but she withdrew from the proceedings some months ago.

8. By deliberate removal of themselves from the proceedings, no order could be made investing the uncle or maternal grandmother with any form of responsibility for the children. They would apparently be unwilling recipients.

9. The difficulty faced by the Court in fashioning satisfactory orders for the children was compounded by their withdrawal from the proceedings. Ultimately, therefore, only the applicant, mother, and second respondent were active participants in the proceedings.

10. There was broad agreement between the mother and second respondent about the two eldest children and the applicant proposed no orders in respect of them. Consequently, the principal issues for determination really only concerned the two youngest children: to whom parental responsibility for them would be allocated; with whom they would respectively live; and the circumstances under which they would spend time with the non-residential parties.

Background

1. The mother and second respondent began their relationship and cohabitation in 1996. They married in 1998 and finally separated in January 2001. The three eldest children were born in January 1998, January 2000, and May 2001.

2. Following the mother’s separation from the second respondent, the children’s interaction with the second respondent was episodic and inconsistent.[1]

   [1] First Family Report, paras 3-4, 23

3. The applicant and mother began their relationship in 2002, married in January 2003, and finally separated in December 2009. The youngest child was born during their marriage in June 2003.

4. After separation, all four children sporadically spent limited amounts of time with the applicant. The relationship between the mother and applicant was then fractious and the children’s continuing interaction with the applicant was complicated by the existence of mutual apprehended violence orders,[2] which orders were breached by at least the mother.[3]

   [2] Applicant’s first affidavit, paras 46, 49, 52, 55, 100; First Family Report, para 11

   [3] First Family Report, para 63

5. The mother and applicant both formed new domestic relationships with other parties during 2010. The applicant commenced cohabitation with Ms N in March 2010[4] and the mother commenced cohabitation with Mr O in November 2010.[5]

   [4] Affidavit of Ms N, para 1

   [5] Mother’s affidavit, para 13; First Family Report, para 12

6. These proceedings were commenced by the applicant in October 2010 seeking orders in respect of all four children. He sought orders in respect of even the three children to whom he is not biologically related because he regarded himself as their “psychological father”.[6] He was not mistaken, because the mother held the same view.[7]

   [6] Applicant’s first affidavit, paras 9, 12, 104

   [7] First Family Report, para 7; Mother’s first affidavit, para 24.7

7. The first suite of interim orders was made between the mother and applicant on 2 March 2011, with their consent, providing for the children to live with the mother and to spend substantial and significant time with the applicant.

8. The second respondent, the uncle, and the maternal grandmother were all successively joined to the proceedings as parties between June and November 2012.

9. More interim orders were made between all parties on 21 November 2012, again consensually. The orders are literally incomprehensible, but it is tolerably clear they were intended to simply make provision for some supplementary care arrangements in relation to the eldest and youngest children over the 2012/2013 summer school holidays.

10. Although the proceedings were started some years ago in the Federal Magistrates Court (as the Federal Circuit Court then was), they were only relatively recently transferred to this Court following a view being formed that the proceedings were complex and likely to involve a lengthy trial.

11. Once the proceedings were pending before this Court, the Independent Children’s Lawyer filed a Form 4 Notice of Child Abuse, notifying of the eldest child’s allegations that the mother’s partner (Mr O) had sexually assaulted her.

12. A third set of interim orders was made shortly thereafter on 18 July 2013. In light of the deeply-entrenched conflict and the serious counter-allegations of misconduct then being made between the parties, the orders essentially made provision for:

    (a)The parties’ restraint from causing or permitting any of the children to be brought into contact with Mr O;

    (b)The eldest child to live with the maternal grandmother and for the maternal grandmother to have sole parental responsibility for her;

    (c)The second child to live with the mother and for her to have sole parental responsibility for him, on condition she observed the injunction prohibiting the child’s contact with Mr O, in default of which the child would live with the maternal grandmother who would then have sole parental responsibility for him;

    (d)The third child to live with the uncle and for him to have sole parental responsibility for her; and

    (e)The youngest child to live with the maternal grandmother and spend regular time with the applicant, with the maternal grandmother and applicant to have equal shared parental responsibility for him.

13. The four children were then living in three different households and the orders served to endorse that arrangement.

14. In particular, the orders temporarily perpetuated the second child’s residence with the mother. Importantly, though, it was noted that the other parties and the Independent Children’s Lawyer all uniformly considered that any time spent by the other three children with the mother should be professionally supervised. The mother was restrained from approaching the schools attended by those three children and the other parties’ residences.[8]

    [8] Order 3 and Notation B made on 18 July 2013

15. At a procedural hearing in November 2013 it became clear the parties had abandoned compliance with those orders. Although the third child remained living with the uncle, the other three children were then living with the mother and Mr O, in clear breach of the injunction prohibiting the children’s interaction with Mr O. Since neither the eldest or youngest child was living with the maternal grandmother any longer, she withdrew from the proceedings.

16. On the first day of the final trial in February 2014 it was revealed the two eldest children were still living with the mother, the third child had moved to live with the maternal grandmother, and the youngest child had moved to live with the applicant. Despite the maternal grandmother providing residential respite to the third child, she did not revive her interest in the proceedings.

17. On the second day of trial it was revealed the third child had moved again to live with the applicant.

Proposal and evidence of applicant

1. The applicant tendered a minute of the orders he proposed.[9] Essentially, he proposed that the two youngest children continue to live with him and that he have sole parental responsibility for them. He envisaged the youngest child would only spend supervised time with the mother at a contact centre, pending proper evaluation of the mother’s mental health, independent professional confirmation of her emotional stability, and proof of her abstinence from illicit drug use. He did not propose any specific orders concerning interaction between the third child and the second respondent.

   [9] Exhibit A2

2. Although the applicant was generally interested in the welfare of the two eldest children, he did not seek any discrete order in respect of them. He accepted they would likely remain living with the mother, he did not wish to share in their parental responsibility, and he did not seek any order designating the time they should spend with him or the manner of their communication with him.

3. Despite procedural orders permitting extra evidence,[10] the applicant relied upon:

   (a)His affidavit filed on 20 December 2013;

   (b)His fresh affidavit filed on 10 February 2014; and

   (c)The affidavit of his former de facto partner, Ms N, filed on 20 December 2013.

   [10] Order 6 made on 6 November 2013

4. The applicant was denied leave to rely upon another affidavit he did not even swear until the second day of trial, which purported to deal with developments in the preceding 24 hours. It was not served on the second respondent at all and was only served on the mother minutes before. The prejudice suffered by the first and second respondents in being swamped with more evidence during the trial and having to belatedly deal with it, when they were without legal representation, was greater than the prejudice occasioned to the applicant by denial of permission to rely upon the new evidence. In any event, the applicant was cross-examined about the developments of the preceding 24 hours.

Proposal and evidence of mother

1. The mother abandoned the orders set out in her Response filed on 2 June 2011.

2. The mother proposed that she and the second respondent share parental responsibility for the two eldest children, that both those children continue to live with her, and that they spend time with the second respondent as and when they desired. The second respondent was in agreement with that proposal. Having regard to the long distance between the households of the mother and second respondent, it was generally acknowledged that the children could usually only spend time with the second respondent during school holiday periods.

1. In respect of the third child, the mother proposed that she and the applicant share parental responsibility for her. The mother accepted the third child should live with the applicant for the time being, but she could not bring herself to consent to an unconditional final order that the child live with the applicant. She held out hope she could reconcile her relationship with the third child so the child would return to live with her at some point in the future. The mother did not propose any discrete orders governing the time the third child should spend with her.

2. In respect of the youngest child, the mother proposed that she and the applicant share parental responsibility for him. She proposed that the child live for equal time with her and the applicant.

3. The mother failed to comply with the procedural orders specifying the evidence she could adduce at trial.[11] She filed no evidence at all after the procedural orders were made. Her lack of legal representation would undoubtedly have hindered her preparation, but it did not excuse her failure to make any effort to prepare in accordance with procedural directions.

   [11] Order 7 made on 6 November 2013

4. The only affidavit filed by the mother in the proceedings was filed years ago on 2 June 2011. Its utility was negligible by reason of the passage of time, but she was permitted to rely upon it nevertheless.

5. The commencement of the trial was postponed for 24 hours and an ancillary procedural order was made permitting the mother to rely upon a fresh affidavit, provided it was filed and served by 4.30 pm on the first day of trial. The mother failed to file and serve any fresh affidavit within that time.

Proposal and evidence of second respondent

1. The participation of the second respondent in these proceedings was bafflingly inconsistent.

2. Following his joinder to the proceedings, the second respondent attended his consultation with the Family Consultant in July 2012 and filed a Response in April 2013 proposing orders in respect of the children, but he thereafter failed to attend any Court event. He did not appear and was not represented at the Court events in July 2013, October 2013, and November 2013. Nor did he attend the second consultation with the Family Consultant in September 2013.

3. The second respondent failed to appear at the commencement of the final trial in February 2014, but late in the afternoon on the first day of trial he sent an email to the Court indicating his intention to participate, at least in some limited form. As luck would have it, commencement of the trial had already been postponed for a day to accommodate the mother.

4. On the second day of trial the other parties were appraised of the second respondent’s email and it was tendered.[12] Telephone contact was established with the second respondent and he then appeared for the balance of the trial, without legal representation, either by telephone or in person.

   [12] Exhibit A

5. The second respondent abandoned the orders set out in his Response filed on 19 April 2013.

6. As already mentioned, he agreed with the mother’s proposal in respect of the two eldest children.

7. In respect of the third child, he initially proposed that she live with either the mother or maternal grandmother, even though he was informed neither the mother nor maternal grandmother sought her residence. His subsequent cross-examination of the applicant revealed that he had re-considered his position and instead proposed that the third child live with him. He confirmed that to be so when directly asked. He proposed that he and the mother share parental responsibility for the third child. He envisaged that the third child could spend time periodically with the applicant, but proposed no discrete order obligating the third child to spend time with the mother. During final submissions the second respondent altered position again. He acceded to an order that the third child live with the applicant, he abandoned his desire to share in her parental responsibility, and he accepted that she would spend time and communicate with him as and when she desired.

8. The second respondent made no proposal in respect of the youngest child.

9. In view of the second respondent’s apparent disinterest in the proceedings between April 2013 and February 2014, he filed no updating evidence. He was therefore permitted to rely upon the affidavit he filed in the proceedings on 18 April 2013. That is the only evidence he ever filed.

Absence of the other respondents

1. Following the maternal grandmother’s joinder to the proceedings as a party in 2012, she filed a Response in July 2013 proposing orders in respect of the children. All of the children have lived with the maternal grandmother for confined periods at one time or another. However, she informed the Court on 6 November 2013 of her intention to withdraw from the proceedings, confirming the contents of an affidavit she filed shortly before.[13]

   [13] Notation B made on 6 November 2013

2. The maternal grandmother’s decision to withdraw from the proceedings was therefore voluntary and certain.

3. The uncle remained an active participant until quite late in the proceedings. His potential withdrawal from the proceedings became apparent through his failure to file his trial affidavit in December 2013 in accordance with procedural orders, but was confirmed by his failure to appear at the final trial in February 2014 and the revelation that the third child no longer lived with him.

4. Most probably, the uncle lost interest in the outcome of the proceedings and voluntarily withdrew from them. He was certainly not denied procedural fairness.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer did not begin the final hearing with any settled view, but ultimately tendered a minute of the orders she proposed,[14] which provided for:

   (a)The two eldest children to live with the mother, with the mother and second respondent to have “equal parental responsibility” (sic) for them, and restraint of the mother from allowing them any contact or communication with Mr O;

   (b)The two youngest children to live with the applicant, with him to have sole parental responsibility for them, and his restraint from allowing them to be unsupervised in the company of his children from a previous relationship;

   (c)The three eldest children to decide for themselves what form of interaction they have with the non-residential parties; and

   (d)The youngest child to spend only supervised time with the mother at a regional contact centre once every two months (later orally amended to only twice per year);

   [14] Exhibit ICL4

Additional evidence

1. The parties and the Independent Children’s Lawyer additionally relied upon the evidence contained within:

   (a)The Magellan Report dated 28 June 2013, furnished to the Court by the NSW Department of Family and Community Services (“the Department”), which report incorporated an ancillary report entitled “Casework Specialist Review Report” (compendiously referred to as the “Magellan Report”);

   (b)The original Family Report prepared by the Family Consultant, dated 26 October 2012 (the “first Family Report”); and

   (c)The supplementary Family Report prepared by the Family Consultant, dated 19 September 2013 (the “second Family Report”).

2. The Family Consultant was cross-examined and his evidence proved logical and compelling.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. Since these proceedings were commenced so long ago the amendments to the Act, and in particular to the provisions concerning the considerations relevant to findings about the children’s best interests (s 60CC), wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) do not apply (see Schedule 1, items 44 and 45).

Best interests of children – primary considerations

Section 60CC(2)(a)

1. Since all children have relationships of different quality with their respective parents it is necessary to consider the benefit they derive from those relationships individually.

2. The eldest child appears to have a meaningful relationship with the mother, but it is not necessarily a healthy filial relationship and, objectively, the child derives only limited benefit from it. In the past, the eldest child frequently chose to swap her residence between the mother and other family members. The mother said in cross-examination she had “lost count” how many times that had occurred. Her motivation to repeatedly return to live with the mother seems to have only been her sense of responsibility for the mother. She told the Department the only reason she returned to the mother was because the mother “would make her feel bad” and “would tell her that she was not coping and needed [her] to return home to help and look after her”.[15] It is, of course, deeply disturbing that a child feels burdened by the responsibility of ensuring a parent’s emotional equilibrium and implies a reversal of the parenting dynamic.

   [15] Magellan Report, page 12/28

3. The eldest child’s relationship with the second respondent seems to be almost non-existent. None of the children visited or communicated with the second respondent for about five years between 2007 and 2012. The eldest child has had only very limited interaction with the second respondent since 2012, but the mother said it was as much as the eldest child desired.

4. The second child’s relationship with the mother remains meaningful. Although he also chose to live away from the mother for a period of months in 2012, firstly with the second respondent and then the uncle, he too chose to return to live with the mother.[16] The mother seems to be the person to whom he is closest. He must therefore derive some benefit from his relationship with the mother.

   [16] Magellan Report, pages 9/28-10/28

5. The second child’s relationship with the second respondent seems to have been lost. In late 2012, while living with the second respondent, he assaulted the second respondent and then departed his residence to resume living with the mother.[17] There is no evidence the second child and second respondent have since repaired their relationship and revived their communication.

   [17] Second Family Report, paras 18, 97

6. The third child does not appear to have a meaningful relationship with the mother. She ceased living with the mother in May 2012 when she began living with the uncle and, save for a single conversation between them in the last few days, they have never spoken with one another since May 2012. Their recent conversation occurred following the third child’s move to live with the applicant. In that conversation the child apparently confirmed she wished to live with the applicant and not spend any time with the mother. She earlier told the Department and the Family Consultant she had no interest in spending time with the mother.[18] The most compelling inference is that the third child currently derives no benefit from her relationship with the mother.

   [18] Magellan Report, page 12/28; Second Family Report, para 105

7. The third child has no relationship with the second respondent. She was not even born when the mother and second respondent separated. She told the Department she wanted no contact with him.[19] The mother confirmed in cross-examination the third child visited the second respondent once in 2012 and afterwards said she did not want to go back. The second respondent conceded in cross-examination he had no relationship with the third child, other than a biological one.

   [19] Magellan Report, page 12/28

8. The youngest child has a meaningful relationship with the mother, to whom he has been loyal.[20] The strongest inference is that he derives some benefit from that relationship, but the derivation of that benefit must be considered in the context of the risks of harm he confronts in the mother’s household, which are yet to be addressed.

   [20] First Family Report, para 136

9. When speaking with the Family Consultant in July 2012 and September 2013, the youngest child volunteered feelings of neutrality about the applicant.[21] Historically at least, it seems the youngest child’s relationship with the applicant was not as meaningful as his relationship with the mother. However, the youngest child has lived with the applicant since October 2013. Inevitably, their relationship would have strengthened since then.

   [21] First Family Report, para 138; Second Family Report, para 115

Section 60CC(2)(b)

1. The standard of care offered by the mother and applicant to the children is a matter of serious concern, since in the last decade more than 100 reports have been made to the Department about risks of “harm” and “serious harm” posed to the children. The risks of harm were attributable to alleged neglect, physical abuse, sexual abuse, and exposure to family violence.[22]

   [22] Magellan Report, page 4/28

2. The psychological harm suffered by the children as a consequence of their horrific experiences is easily imputed from their maladjusted behaviour over a protracted period of years. Their history evokes only despair.

3. The eldest child has been deliberately injuring herself for years. As early as August 2008, when she was only 10 years of age, she reportedly placed her hands on a hot water pipe to burn them and said she wanted to die.[23] The Department reported that, up until the preparation of its Magellan Report in 2013, the eldest child still continued to “display behaviours of self-harm” and remain engaged with a local mental health team to counsel her regarding suicidal ideation.[24] In June 2013 the child attended school while intoxicated and was admitted to psychiatric care for a week.[25] She was suicidal again in August 2013.[26] The eldest child reported being medicated for diagnosed depression since she was 12 years of age,[27] which claim was verified by the maternal grandparents.[28] She remains medicated and attends counselling fortnightly.[29] The eldest child’s school attendance was “extremely poor” across many years,[30] and she currently does not attend school at all.

   [23] Magellan Report, page 7/28

   [24] Magellan Report, page 7/28

   [25] Second Family Report, para 68

   [26] Second Family Report, para 70

   [27] Magellan Report, page 13/28

   [28] Magellan Report, page 23/28

   [29] Second Family Report, para 71

   [30] Second Family Report, para 111

4. An assessment of the second child by the Department in early 2006 found he was “very aggressive” and deliberately setting fires.[31] On at least one occasion he attempted to ignite the family home.[32] Another family assessment by the Department in November 2008 found he was hostile towards all members of the family and was making threats to deliberately harm them, which behaviour continued into 2009. He was referred for separate assessment after he threatened suicide.[33] The child even held a knife to his stomach and attempted to strangle himself with a dressing-gown belt.[34] More recently, when the second child lived with the second respondent for a short period, he kicked the second respondent in the face and fractured his nose.[35] He was also suspended from school for climbing out a window onto a roof and kicking a teacher.[36] The mother tendered the second child’s latest school report from 2013,[37] suggesting it proved improvement in his attitude and academic achievement. There were no earlier school reports in evidence to compare, but if the latest report really did represent improvement, it must have only been incremental.

   [31] Magellan Report, page 6/28

   [32] First Family Report, para 116

   [33] Magellan Report, pages 7/28-8/28

   [34] Magellan Report, page 8/28

   [35] Magellan Report, pages 9/28, 14/28; Second Family Report, para 18

   [36] Magellan Report, page 17/28

   [37] Exhibit M3

5. The third child was also observed by her school staff to be acting aberrantly in the past. In 2010 she was “self-harming with a compass”, in 2011 she was behaving “very violently in the playground”, and in 2012 she started a fire in a garbage bin and was “extremely rude, aggressive and defiant towards teachers”. She also assaulted another student in 2012. Her school attendance throughout 2011 and 2012 was “extremely poor”, but even so her behaviour still resulted in her suspension from school for many extra weeks.[38] Her life changed for the better when she moved away from the mother to live with the uncle in May 2012, because reports about her to the Department ceased.[39]

   [38] First Family Report, paras 132-134

   [39] Magellan Report, page 9/28

6. As for the youngest child, the mother reported to the Department as far back as late 2007 that he was aggressive towards his siblings and was destroying property.[40] During 2008 and 2009 he was physically harming the second child.[41]

   [40] Magellan Report, page 6/28

   [41] Magellan Report, page 8/28

7. The Department concluded its last assessment in relation to the children in April 2013 by observing:[42]

   …it is evident that [all four children] have experienced significant child protection issues whilst residing with [the mother] and [the applicant] and continue to experience these issues whilst residing with [the mother] on her own and during her relationship with Mr [O].

   [42] Magellan Report, page 24/28

8. That opinion was endorsed by the Family Consultant, who observed in September 2013:[43]

   It is also of significant concern that [the mother] appears to be continuing to prioritise her own emotional needs over the emotional needs and safety of the children.

   [The mother] is proposing that all children live with her. This is strongly opposed.

   [43] Second Family Report, paras 121, 128

1. The worry expressed by the Department and Family Consultant about the safety of the children, particularly with the mother, is undoubtedly justified.

2. While the applicant has objectively demonstrated some improvement in his parenting performance in recent times, the mother has not. The children remain at considerable risk of physical and psychological harm when with the mother by reason of their subjection or exposure to abuse and family violence. That conclusion is consistent with the opinion of the Family Consultant[44] and the submissions of the applicant and Independent Children’s Lawyer.

   [44] First Family Report, para 157

3. The evidence also proves, partially by the mother’s admission, that she neglected the children, but the evidence falls short of allowing a finding that the children thereby suffered physical or psychological harm. The issue of neglect is therefore pertinent under the rubric of s 60CC(3) of the Act in relation to the mother’s impaired parenting capacity.

4. The following synopsis of evidence explains the numerous risks to the children arising from family violence and abuse.

Family violence

1. The evidence of family violence between the applicant and mother is extensive.

2. In May 2005, after inquiry, the Department concluded that both the applicant and mother were perpetrators of the violence.[45] Reports of the children’s exposure to family violence between the mother and applicant continued throughout their relationship until late 2009.[46] When interviewed in 2013, the applicant admitted their past verbal and physical abuse of one another,[47] to which admission he later deposed in his affidavit.[48]

   [45] Magellan Report, page 5/28

   [46] Magellan Report, page 6/28

   [47] Magellan Report, page 18/28

   [48] Applicant’s first affidavit, paras 20, 26

3. The mother alleged to the Family Consultant in July 2012 that the applicant had raped her three times between 2005 and 2007,[49] of which some passing reference was made in her affidavit.[50] The mother shouted the allegation at the applicant in the public precincts of the Court, prompting the applicant to approach the police demanding that her allegation be investigated,[51] presumably because he denied the allegation and expected it to be unsubstantiated. However, it is impossible to make any factual finding about the allegation since neither the mother or applicant was tested about it in cross-examination. Notably, the allegation does not appear to have been raised until these proceedings were commenced. The mother conceded she did not report the allegation to authorities at any time.

   [49] First Family Report, para 44

   [50] Mother’s affidavit, para 24.19

   [51] Second Family Report, para 6

4. The evidence of family violence between the mother and applicant is troubling, notwithstanding the untested allegation of sexual assault, and regrettably, it is a vice which extends far beyond the relationship of just the mother and applicant.

5. The mother maintains a venal attitude towards the maternal family. In the past she threatened the maternal grandparents with violence and intentionally damaged their property, which necessitated police intervention and the mother’s prosecution. Such aggression was witnessed by one of the children.[52] The Department reported several instances of verbal abuse and threats of harm to members of the maternal family by the mother and Mr O.[53]

   [52] Magellan Report, page 10/28; Second Family Report, para 17

   [53] Magellan Report, page 10/28

6. There have also been episodes of violence in the mother’s household between the mother, Mr O, and Mr O’s teenage son. In January 2013, Mr O’s son assaulted him and fractured his jaw when both were intoxicated, and Mr O damaged the mother’s car by smashing the windows when intoxicated, resulting in police intervention, prosecution of Mr O, and the issue of an apprehended violence order for the mother’s protection.[54] Their household was, and apparently remains, a violent and chaotic one.

   [54] Magellan Report, pages 10/28-11/28, 15/28, 16/28, 24/28; Second Family Report, p 22-23

7. Although the mother and Mr O ended their relationship in early 2013 for a short period,[55] they reconciled after only a few months.[56] During cross-examination the mother confirmed that she and Mr O resumed their relationship in April 2013, resumed their cohabitation in June 2013, and have remained domestic partners ever since. The mother seemed not to realise the significance of her continuing breach of interim orders made in July 2013 precluding Mr O’s interaction with any of the children, since the eldest two children live in their household.[57] The applicant’s belief in the mother’s existing relationship with Mr O was therefore accurate.[58] The mother is probably desirous of maintaining her relationship with Mr O because she previously told the Department her relationship with him was “the best she [had] ever had”.[59]

   [55] Magellan Report, pages 2/28, 11/28

   [56] Second Family Report, paras 35, 39, 43, 46

   [57] Second Family Report, paras 65, 118-119; Order 2 made on 18 July 2013

   [58] Applicant’s first affidavit, para 101

   [59] Magellan Report, page 15/28

8. Family violence has also permeated the relationship between the applicant and Ms N, which has occasionally necessitated intervention by police.[60] It was an unresolved problem until late 2013,[61] but they have recently ceased cohabitation. They maintain their relationship with one another but are uncertain whether they will resume cohabitation. Any resumption of cohabitation will presumably again enhance the risk of family violence in their household.

   [60] Magellan Report, page 18/28

   [61] First Family Report, para 150

9. The children are at risk of exposure to family violence in the households of both the mother and applicant, though the risk is more pronounced in the mother’s case.

Physical abuse of the children

1. The reported history of the children’s physical abuse is also extensive.

2. In May 2005, an inquiry by the Department substantiated physical abuse of the three eldest children. The Department determined, from conversations with the mother and applicant, that the mother was the perpetrator of physical abuse upon the children. No action was taken by the Department to remove the children into foster care because the mother and applicant allegedly “realised the impact of domestic violence on the children” and they were both willing to engage in counselling with respect to “physical abuse and neglect of children”.[62]

   [62] Magellan Report, page 5/28, 8/28, 18/28

3. Regrettably, the Department’s trust seemed misplaced because contact with the mother and applicant was lost after only a few months and the Department therefore “closed the matter without any involvement”.[63]

   [63] Magellan Report, page 5/28

4. The Department undertook another assessment of the family in November 2008. At that stage the second child reported he was still being “hit” by the mother and she had cautioned him not to tell anyone she hit him.[64] In 2009 the mother was observed to verbally abuse the second child and threaten him with “a good flogging”.[65]

   [64] Magellan Report, page 7/28

   [65] Magellan Report, page 8/28

5. As recently as 2013 the eldest child reported to the Department that the mother “regularly calls her a bitch and says that if she doesn’t shut up she will hit her”.[66]

   [66] Magellan Report, page 12/28

6. The mother’s physical abuse of the children, or the threat thereof, has therefore been a feature of their filial relationships over many years. In all probability, the children remain at pronounced risk of physical and psychological harm through physical abuse by the mother.

Sexual abuse of the third child

1. During 2012, after the third child commenced living with the uncle, she disclosed she had been sexually abused by Mr O several months before while she lived with the mother. The allegation was reported to the Department and, after investigation, the allegation was substantiated. The child gave a cogent, detailed, and credible account of her sexual abuse by Mr O to police officers during a formal interview.[67]

   [67] Exhibit ICL3

2. Apparently, no action was taken to prosecute Mr O because, in part, the mother denied to police the child had ever been left alone with Mr O, and moreover, the child was by then living in sanctuary with the uncle.[68]

   [68] Magellan Report, page 10/28

3. There can be no doubt about the mother’s support for Mr O in preference to the third child because she affirmed her denial of the allegations when interviewed by the Department,[69] and during cross-examination, when she suggested the sexual abuse allegations were fabricated. But her forceful denial of the sexual abuse is unreliable since she conceded she was occasionally rendered unconscious by her medication.[70] The mother seems to harbour the mistaken view that JIRT “threw out” the third child’s allegations against Mr O,[71] but the decision not to prosecute Mr O does not equate to rejection of the allegations.

   [69] Magellan Report, page 17/28

   [70] Second Family Report, para 45

   [71] Second Family Report, para 63

4. The mother was permitted to adduce evidence from Mr O,[72] but she did not do so. Even if he was an unwilling witness and refused to swear an affidavit, the mother could have enforced his attendance at Court by subpoena if she desired. No reasonable explanation was advanced for why Mr O was unable to give evidence. The apparent disinclination of Mr O to attend Court and depose to his denial of the sexual assault allegations enables greater weight to be reposed in the allegations against him (see Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321; Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 385).

   [72] Order 7(b) made on 6 November 2013

5. Since the mother maintains her relationship with Mr O, and apparently intends to continue doing so, the risk of harm to the children by reason of their sexual abuse in the mother’s household is very high.

6. In the past, other allegations of the third child’s sexual abuse were substantiated by the Department. An investigation concluded one of the applicant’s older children from a former relationship “inappropriate[ly] touch[ed]” the third child. No action was taken because, at the time, the perpetrator was under the age of 10 years and therefore doli incapax.[73]

   [73] Magellan Report, page 10/28

7. Despite the Department’s positive finding, the applicant still disavows the validity of those allegations.[74] His stout refusal to accept the abuse occurred when there are reasonable grounds to suggest it did might ordinarily give rise to concern about his capacity to protect the children against predatory behaviour of his older child, but that concern abates. The risk of sexual abuse posed to the children by the applicant’s older child is now mollified for several reasons. The perpetrator is now a teenager and has probably acquired the maturity to appreciate the impropriety of such behaviour. The children are also now all old enough that they can be reasonably expected to exercise greater vigilance against their molestation by a peer. The applicant only sees his other children in school holiday periods and so any risk of harm any of them still pose to the children during those confined periods can be satisfactorily addressed by an injunction precluding the applicant from leaving the children unsupervised.

   [74] Magellan Report, page 19/28; Second Family Report, para 5

Sexual abuse of the eldest child

1. On 31 May 2013 it was reported to the Department that the eldest child had been sexually assaulted by Mr O, and incidentally, that she was drinking alcohol, smoking cannabis, and expressed a desire to die.[75]

   [75] Magellan Report, page 3; Second Family Report, para 32

2. The eldest child was formally interviewed by the NSW Joint Investigation Response Team (“JIRT”) some days later on 4 June 2013, but according to the Department’s records, the allegations of sexual assault or molestation were not confirmed.[76] The Family Consultant believed the allegations were substantiated,[77] but the Department records are more likely to be accurate.

   [76] Magellan Report, page 3

   [77] Second Family Report, para 33

3. In any event, failure to substantiate the allegations does not mean the alleged molestation did not occur. The eldest child could have been abused by Mr O, but the available evidence is insufficient to prove the abuse occurred on the balance of probabilities. Nonetheless, in light of the sustained allegation that Mr O sexually assaulted the third child, there remains an unacceptable risk that he will sexually assault the eldest child, or indeed any child. Whilst ever the mother continues to maintain her relationship with Mr O the risk of harm to the children is incapable of amelioration, since the mother vehemently denies he presents any danger to the children.

4. As was the case with the third child, historical allegations of the eldest child’s sexual abuse some years ago were also substantiated. The perpetrator was another of the applicant’s children from his prior relationship. Again, no action was taken because, at the time, the perpetrator and eldest child were both under the age of 10 years.[78] Those events must therefore have occurred in 2007 at latest, since the eldest child attained 10 years of age in January 2008.

   [78] Magellan Report, page 10/28

5. The risk of harm to the children posed by their susceptibility to sexual abuse by the applicant’s other children is, for the reasons already explained, not an unacceptably high risk and is capable of management by an injunction.

Sexual abuse of the second child

1. The second child alleged to the Family Consultant in July 2012 that he too had been “raped” by the father’s other children.[79]

   [79] First Family Report, para 113

2. The allegation was surprising because, significantly, it has seemingly never been made before or since. The comprehensive Magellan Report prepared by the Department in April 2013 makes no mention of any such allegation. Nor was it raised by the mother with the authorities, in her affidavit, or during the course of the trial.

3. I do not accept the veracity of the second child’s allegation. Most likely it was a fabrication, perhaps due to his immersion in the conflict between the adult members of his family. He is most probably aware of the past allegations of sexual abuse against the applicant’s children which concern the eldest and third children. As the Family Consultant correctly observed, he and the other children have been “chronically inappropriately exposed to selective details regarding the adult conflict for many years”.[80]

   [80] First Family Report, para 147

Best interests of children – additional considerations

1. The parenting capacity of the mother, applicant, and second respondent was a sensitive issue in the proceedings.

2. Dealing firstly with the mother, she is sadly mistaken about the quality of her parenting capacity. She asserted to the Family Consultant in July 2012 that she was told by staff of the Department that “her parenting standards are too high”.[81] That could not possibly be correct, because it directly conflicts with the Department’s conclusions about the mother’s impaired parenting capacity set out in the Magellan Report.

   [81] First Family Report, para 54

3. In September 2013 the mother asserted to the Family Consultant she was “a damn great mother”. She later repeated she was “a good mother” who had “done nothing wrong”.[82] Of course, that may indeed be the mother’s honest belief, but if it is a genuinely held opinion, it is incompatible with the objective evidence about her parenting deficiencies.

   [82] Second Family Report, paras 44, 53

4. Even aside from the children’s deprivation of proper physical care, the mother has been unable to provide them with ample emotional succour. As the Family Consultant correctly observed:[83]

   …it strongly appears that [the mother] has continued to expose the children to the adult conflict…

   It is very concerning that [the mother] appears to have enormous difficulty separating her own emotional needs from the emotional needs of the children.

   [83] First Family Report, paras 147, 151

5. It is enough to recognise the actuality of the mother’s impaired parenting capacity. It is unnecessary to reach any concluded view about why that is so, but some obvious explanations recommend themselves.

6. The mother experiences unstable mental health, which causes her to be labile. Her mood frequently fluctuates from vexation to jocularity and her demeanour did not moderate during her participation in these proceedings.

7. The Family Consultant found her to be highly emotional on the two occasions he met with her. In July 2012, the Family Consultant found her “at varying times extremely upset, hostile, aggressive and demanding…openly and loudly in public areas and without regard to what effect her outbursts might have on the children who were witnessing the disturbing scenes”.[84] In September 2013, the Family Consultant found that, throughout the day, the mother behaved in a “rude and demanding manner towards him and other Court staff” and she engaged in “loud and hostile exchanges” with the maternal grandmother when one or more of the children were able to hear and witness the exchanges.[85]

   [84] First Family Report, para 42

   [85] Second Family Report, para 15

8. The mother’s behaviour during the trial was similar. She was constantly irascible and intemperate when challenged, even when the challenge was only mild, but quite sanguine otherwise.

9. As would be obvious, if the mother cannot control her emotions even in the sanctity of the Court precincts where rectitude and restraint are expected, there is little hope of her containing her behaviour when she is unburdened by any such expectations.

10. The mother’s behaviour suggests her mental health is not as stable as she perhaps believes. She has a history of emotional ill-health over recent years.

11. The mother admitted she was diagnosed in 2009 with “mild bi-polar disorder” and “borderline personality disorder”, for which she was medicated and received counselling.[86] The diagnosis followed her presentation to a mental health unit complaining of depression, suicidal ideation, and self-harm.[87] She was subsequently referred to a psychiatrist.[88]

    [86] First Family Report, para 53; Applicant’s first affidavit, para 92

    [87] First Family Report, para 58

    [88] First Family Report, para 66

12. The mother was medicated for her bi-polar disorder and she received some counselling for a period.[89] Despite such treatment, the mother still experienced difficulty. In January 2013 she presented herself to a hospital emergency department for help.[90] Throughout 2013 she was,[91] and is presently, medicated for her condition.

    [89] First Family Report, paras 49, 53

    [90] Second Family Report, para 24

    [91] Second Family Report, para 44

13. In early 2013 the mother completed a DBT course over a period of ten weeks,[92] which was apparently intended to address her borderline personality disorder by teaching her to “focus her mind” and “talk about feelings”. It is, of course, laudable that the mother would seek out such therapy, but the successful completion of that short course would surely not have completely solved the disorder. The children are aware of the mother’s need for such therapy because she told at least the second child about it.[93]

    [92] Exhibit M2; Magellan Report, pages 15/28-16/28

    [93] Magellan Report, page 14/28

14. It is likely the mother’s emotional instability was exacerbated by her past illicit drug use. The mother was a “chronic user” of cannabis in the past.[94] Mr O formerly supplied illicit drugs to her.[95] Whether the mother is now abstinent from illicit drug use is a moot point.

    [94] First Family Report, para 8

    [95] First Family Report, paras 12, 84

15. The mother alleged to the Family Consultant she ceased using drugs when she separated from the applicant in December 2009,[96] but she inconsistently told the Department in April 2013 that she did not cease drug use until late 2010.[97]

    [96] First Family Report, para 49

    [97] Magellan Report, page 16/28

1. The mother’s reports of ceasing illicit drug use in either December 2009 or late 2010 are flatly inconsistent with reports of at least two of the children, who told the Family Consultant in 2012 and the Department in 2013 that the mother and Mr O still used illicit drugs frequently in their presence.[98]

   [98] First Family Report, p 122; Second Family Report, p 51; Magellan Report, page 11/28

2. The mother tendered a single drug urinalysis report,[99] which was intended to prove she was abstinent from drug use at the time the test was completed in January 2013. However, the exhibit does not carry the probative weight envisaged by the mother because there is considerable doubt about whether the urine specimen was indeed hers. The exhibit records:

   The date of collection (21/01/13) on the chain of custody form and specimen containers does not match the one recorded on the request form (23/01/13)

   [99] Exhibit M1

3. The mother and Mr O were charged by police in 2013 with offences related to possession and supply of illicit drugs, but the mother’s evidence that such charges were finally dismissed was not contradicted. The dismissal of the charges does not mean the mother did not actually possess or supply the subject drugs – merely that it was not proven beyond reasonable doubt.

4. Consequently, while the evidence does not convincingly prove the mother still does use illicit drugs, nor can the Court be comfortably satisfied she does not.

5. The mother’s emotional instability and past drug use caused her to abdicate parental responsibility. The eldest child was left with the responsibility of performing many domestic chores and caring for the younger children. Although the mother denied that happened, it is probably true because it was independently reported by at least two of the children.[100] Notwithstanding the household help afforded by the eldest child, the mother is aggravated by her and “regularly calls her a bitch”.[101] Nor did the mother have any compunction describing the third child to the Family Consultant as “foul mouthed tramp who was turning into a slut”.[102]

   [100] Magellan Report, pages 11/28, 12/28

   [101] Magellan Report, page 12/28

   [102] First Family Report, para 43

6. It appears to be beyond the mother’s capacity to cope with both the children and her household. In order to help her cope she divests responsibility and unreasonably expects disproportionate maturity of the children. The situation reached a critical juncture in May 2012 when all four children ceased living with the mother and began living with other relatives.[103] There is no need to determine whether the children left of their own accord, as the mother contends, or whether the mother evicted them, as the other parties uniformly asserted. In either case, it was impossible for the children to continue living with her. Significantly, the mother conceded in both cross-examination and final submissions that she was overwhelmed.

   [103] First Family Report, para 22

7. The mother told the Family Consultant she could not decide what parenting orders were appropriate because she was uncertain of what the children desired. Ultimately she confessed she wanted “whatever my kids want”.[104] Of course, the children’s wishes are important, but inevitably it is a parent’s role to lead children, not follow them. The mother either does not appreciate the distinction or she is unable to accept that mantle of responsibility.

   [104] Second Family Report, para 79

8. Turning to the applicant, he too has experienced difficulty in fulfilling his responsibilities as a parent. Besides his engagement in family violence, past illicit drug use probably also impaired his parenting capacity. His evidence about when he ceased drug use is unreliable because he told the Department he ceased illicit drug use in December 2009 when he separated from the mother,[105] but acknowledged to the Family Consultant he thereafter used drugs with      Ms N.[106] However, unlike the mother, he adduced credible evidence of his current abstinence. He has completed numerous negative urinalysis tests and is subject to ongoing random testing in the course of his employment.[107]

   [105] Magellan Report, page 18/28

   [106] Second Family Report, para 12

   [107] Second Family Report, para 12; Applicant’s first affidavit, para 113

9. There is other independent corroboration of the applicant’s improvement. The uncle told the Department he believed the applicant was “trying to change his lifestyle and has come a long way”.[108]

   [108] Magellan Report, page 21/28

10. There is no doubt the applicant can cater for the children’s physical needs. He works only part-time as a driver and enjoys flexibility with his working hours.[109] His rented house is also able to accommodate the two youngest children.[110]

    [109] Applicant’s first affidavit, paras 110, 114

    [110] Applicant’s first affidavit, paras 128-129; Exhibit A1

11. Although the applicant should still be regarded as having limitations to his parenting capacity, he now presents with a superior parenting capacity to that offered by the mother.

12. There was eventually no need to compare and contrast the parenting capacity of the second respondent, since he abandoned all proposals for any of the children to live with him and he acknowledged that none of the children should be compelled to spend time or communicate with him unless they so desired.

13. Having considered the evidence pertinent to the parties and their respective proposals it is necessary to turn to the views expressed by the children. They are all now old enough to venture views about their care arrangements, and all have done so, but considerable caution should attend acceptance of their expressed views as truthful and accurate statements. In some instances their views have changed unpredictably and there is reason to suspect their views have been influenced, perhaps only inadvertently, by the attitudes of their residential carer of the time. That conclusion accords with the Family Consultant’s opinion that the children’s views are likely to have been “extremely heavily contaminated”.[111]

    [111] First Family Report, para 148

14. When interviewed by staff of the Department in early 2013 the eldest child described her residence with the mother negatively. She was anxious to know when she could live with the maternal grandparents and did not want any contact with the mother.[112] However, more recently in September 2013, the eldest child told the Family Consultant she wanted to live with the mother because “it will make [the mother] happy”.[113] The eldest child is now living with the mother, apparently pursuant to her most recently expressed wish.

    [112] Magellan Report, pages 11/28-13/28

    [113] Second Family Report, para 87

15. The second child clearly wants to live with the mother, as he is now doing. In his interview with Department staff in early 2013 he described living with the mother as a positive experience, but his view of life with the mother seemed unreasonably idealised.[114]

    [114] Magellan Report, pages 13/28-14/28

16. The third child’s views have been uniform and resolutely expressed since she began living with the uncle in May 2012. She told the Family Consultant in July 2012 she wanted to live with the uncle forever.[115] In expectation of her being able to do so, she was content to spend time with the applicant.[116] In early 2013 she told staff of the Department about her dislike of living with the mother, confirmed her desire to continue living with the uncle, and confirmed her willingness to continue seeing the applicant and the youngest child.[117] In her last interview with the Family Consultant in September 2013 the third child confirmed she wanted no changes to her residence and was content to continue seeing the eldest and youngest siblings.[118] In November 2013 she told her counsellor she did not want to be forced to contact the mother.[119]

    [115] First Family Report, para 122

    [116] First Family Report, para 124

    [117] Magellan Report, pages 11/28-12/28

    [118] Second Family Report, paras 103-105, 125

    [119] Exhibit ICL1

17. Unfortunately, despite the third child’s settlement with the uncle for nearly two years, her residential arrangements recently changed. In late January 2014 the uncle refused to retain her in his care and delivered her into the care of the applicant. The third child refused to live with the mother and instead chose to live with the applicant.[120] Almost immediately the uncle and maternal grandmother re-considered and so she returned to live with the uncle and maternal grandmother, but then in early February 2014 she returned to live with the applicant, which apparently reflects her current wishes.[121] Within the last few days the third child told the mother directly she did not wish to visit her.

    [120] Applicant’s second affidavit, paras 3-7

    [121] Applicant’s second affidavit, paras 10-17

18. Care arrangements for the youngest child also changed relatively recently and the arrangements do not correlate with his previously expressed views. In July 2012 he told the Family Consultant he wanted to live with the mother.[122] He affirmed that wish to the Department in early 2013 and added that he desired regular contact with the applicant each alternate weekend.[123] In September 2013 he expressed a desire to the Family Consultant to live with the maternal grandmother mid-week and spend alternate weekends with the mother, applicant, and maternal grandmother.[124] Shortly afterwards, in October 2013, the applicant assumed residential care of the youngest child.[125] There is no evidence as to whether the existing arrangement is consistent with the child’s current desire.

    [122] First Family Report, para 137

    [123] Magellan Report, page 15/28

    [124] Second Family Report, paras 109, 111

    [125] Applicant’s first affidavit, paras 90-91

19. In all probability, as the mother accurately admitted to the Family Consultant, “the children don’t know what they want.”[126] If that is indeed true, it is almost certainly due to the children’s uncertainty about from whom they are likely to receive stable and consistent care.

    [126] Second Family Report, para 79

Conclusions and orders

1. The Family Consultant frankly observed:[127]

   All four children have experienced enormous difficulties…There does not appear to be any great options for these children at this time. It is recommended that decisions be made on what might be best for each child individually and that an attempt is then made to assist the children to have a positive relationship with each other if they were not all living together in the same household.

   [127] First Family Report, para 156

2. The best interests of children should always be considered individually, but in this case it is imperative.

The eldest child

1. The presumption of equal shared parental responsibility does not apply in respect of the eldest child because the evidence proves the mother physically abused the children and both the mother and applicant exposed the children to family violence (s 61DA(2)).

2. Even if the presumption of equal shared parental responsibility otherwise applied, the evidence surely rebuts it (s 61DA(4)).

3. There is no evidence of even a single decision the mother and second respondent have made jointly about the long-term welfare of the eldest child since their separation in January 2001. Rather, the second respondent contended his involvement in the eldest child’s life was deliberately thwarted by the mother and applicant and, for many years, he had no interaction of any sort with either the mother or the children. Even since contact was re-established in 2012 their interaction has been infrequent and inconsistent.

4. Although there is now general concurrence between the mother and second respondent about the orders sought in respect of the eldest child, the extent of their accord is ambiguous, at least in respect of parental responsibility for the child. The mother and second respondent both wanted to share parental responsibility for the eldest child, but “sharing” parental responsibility for a child is conceptually different from the exercise of “equal shared parental responsibility”.

5. The mother and second respondent already share parental responsibility for the eldest child by operation of law (s 61C). As her parents, they each have parental responsibility for her, which they may either exercise independently of, or in conjunction with, one another. They would each retain such parental responsibility for the eldest child, unless the Court makes a discrete order allocating parental responsibility for the child in another way – such as, for example, exclusively to one person or “equal shared parental responsibility” to two or more persons.

6. The exercise of “equal shared parental responsibility” for a child by two persons requires, at least when making decisions about “major long-term issues” in relation to the child, an enduring high degree of co-operation and trust between them. That is because they are required by law to consult one another and make a genuine effort to reach joint decisions (s 65DAC). The evidence falls well short of proving the mother and second respondent are capable of that sort of sustained co-operation. Their historical interaction over many years proves impaired communication and relatively high conflict. Their suddenly discovered commonality of interest in these proceedings does little to erode the pessimism about their ability to exercise “equal shared parental responsibility” in the future.

7. The mother is unsuited, for reasons already addressed under s 60CC of the Act, to exercise parental responsibility for the eldest child alone. Her judgment is not sufficiently reliable.

8. Nor is it feasible to allocate sole parental responsibility for the eldest child to the second respondent. She does not live with him and she may choose not to include him in her life.

9. Accordingly, no order is made as to the allocation of parental responsibility for the eldest child. Instead, the mother and second respondent will each retain their individual parental responsibility, which they may exercise jointly if they so desire.

10. Since no order is made allocating “equal shared parental responsibility” for the eldest child to her parents, the Court is relieved of the burden of considering particular residential options for her (s 65DAA).

11. Presently, the eldest child chooses to live with the mother. It is inevitable that situation will prevail for as long as the mother and eldest child mutually desire. Neither the applicant nor the second respondent seeks an order that the eldest child live with them. The mother is the only party who offers herself as a residential carer of the eldest child.

12. Given the circumstances, it would be easy and neat to simply order that the eldest child live with the mother. But orders should not be made merely for ease and neatness. The Court is obliged to make orders that accord paramount importance to the child’s best interests, consonantly with the evidence (ss 60CA, 65AA). The evidence does not permit a finding that it is in the best interests of the eldest child to live with the mother. In fact, the evidence dictates otherwise, because there are real risks of physical and psychological harm for her when living with the mother. Even though the mother is the only willing residential carer for the eldest child, the Court should baulk at making an order endorsing that arrangement, as such an order would imply a conclusion by the Court it is in the child’s best interests to live with the mother when that is plainly not so.

13. In all probability the eldest child will remain living with the mother, but that is an outcome consistent with, firstly, the mother’s decision as an incident of her parental responsibility for the child, and secondly, the eldest child’s wish. It is not an outcome foisted upon them, or just as importantly the other parties to these proceedings, by way of Court order.

14. It should not be overlooked that there is an existent apprehended violence order protecting the eldest child from the mother, a term of which forbids the mother from entering the premises in which the eldest child lives.[128] Their current joint residence therefore contravenes that order. A parenting order stipulating the eldest child’s residence with the mother would therefore be repugnant to the apprehended violence order. While the Court has power to make parenting orders which prevail over such “family violence orders” (s 68P), the eldest child’s best interests do not require an inconsistent parenting order to be made.

    [128] Exhibit ICL2

15. It is impossible to know whether the eldest child’s residence with the mother will endure only temporarily or indefinitely. Since the mother and second respondent both have parental responsibility for the eldest child, the second respondent may make decisions about with whom the eldest child lives but, for all practical purposes, the mother and the eldest child will make that decision themselves. If, as has occurred in the past, the eldest child decides she can no longer live with the mother, or the mother evicts the eldest child, it is likely the maternal grandmother will afford her sanctuary as she has before.

16. No order is made dictating the eldest child’s interaction with the applicant. She is old enough to make her own decisions about that. She told the Department staff she did not presently want to see him.[129] The applicant told the Department he understood it was up to the eldest child whether she wanted contact with him.[130]

    [129] Magellan Report, page 13/28

    [130] Magellan Report, page 19/28

17. No order is made dictating the eldest child’s interaction with the second respondent either. As has occurred on relatively few occasions since 2012, the child will likely spend time and communicate with the second respondent when she wishes. The second respondent accepted that outcome.

18. Thus, no parenting orders are made in respect of the eldest child.

19. That outcome should not be regarded as a failure by the Court to exercise its power when its jurisdiction is regularly invoked, thereby warranting the grant of a writ of mandamus. Rather, it is a positive exercise of discretion by the Court to refrain from making orders that affect existing rights and obligations, consonant with its statutory obligation to only make orders that serve the eldest child’s best interests.

The second child

1. Much the same considerations apply in respect of the second child.

2. Similarly, no orders are made as to the allocation of his parental responsibility, the stipulation of his residence, or the regulation of the nature of his interaction with either the applicant or second respondent.

The third child

1. The presumption of equal shared parental responsibility does not apply to the third child, but would be successfully rebutted in any event, for the same reasons explained in respect of the eldest child.

2. The allocation of parental responsibility for her is therefore linked to the determination about with whom she shall live.

3. By the end of the trial the applicant, mother, and second respondent all agreed the third child should live with the applicant. In such circumstances it would be absurd for the applicant not to at least share in the exercise of parental responsibility for her. The real question is whether either of her parents should also do so.

4. The mother sought to share parental responsibility for the child, but her proposal is rejected. She made poignant concessions in her final submissions which explain why she should not share in the child’s parental responsibility. In reference to herself, the applicant, the uncle, and the maternal grandmother, she admitted they “have never agreed about anything”. In reference to herself and the applicant, she acknowledged there had been much conflict between them. For his part, the applicant said in cross-examination he and the mother had only “occasionally” been able to have a “rational discussion” about the children.

5. Although the mother harboured hope there was scope for future improvement in the tone and frequency of communication between her and the applicant, it really was merely hope rather than expectation. Nothing about the evidence reasonably permitted a conclusion that the applicant and mother could likely exercise equal shared parental responsibility in the manner demanded by law (s 65DAC).

1. The second respondent did not ultimately press for any share in the third child’s parental responsibility. Even if he did, his proposal would have been forlorn. The third child barely knows him, will not live with him, does not wish to see him, and will not be ordered to do so. The second respondent has not and will not play any material role in her life. He has no working relationship with the applicant, who will be the child’s residential carer. In fact, he previously criticised the applicant, both as a person and as a parent. There is no realistic expectation they can work together harmoniously to manage the third child’s best interests.

2. The outcome must necessarily be that the third child lives with the applicant, who will have sole parental responsibility for her.

3. No orders are made specifying the manner in which the third child spends time or communicates with either the mother or second respondent. That will be left to the child’s discretion and the decision of the applicant in the exercise of his parental responsibility for her, just as the mother and second respondent conceded should be the case.

The youngest child

1. For the same reasons already advanced, the presumption of equal shared parental responsibility for the youngest child does not apply. Nor can the applicant and mother realistically exercise equal shared parental responsibility for him.

2. Given that equal shared parental responsibility is not ordered, the Court is relieved of the obligation to consider orders for the youngest child to live for “equal time” with his parents, or alternatively, to live predominantly with one and spend “substantial and significant time” with the other (s 65DAA).

3. The youngest child will live with the applicant, who will have sole parental responsibility for him. 

4. The vexed question is how to cater for the child’s meaningful relationship with the mother. His future derivation of benefit from that relationship must be managed in conjunction with the preservation of his physical and psychological safety. They are the two most pressing considerations (s 60CC(2)(a),(b)).

5. The risks of physical and psychological harm he faces in the mother’s household are too virulent to permit either his residence with the mother or his expenditure of unsupervised time with her. It would be a disproportionately severe remedy to eliminate the mother from his life to avert those risks. Rather, the risks can be satisfactorily managed by ensuring the child spends only limited supervised time with the mother.

6. Those conclusions are in conformity with the Family Consultant’s recommendations, the joint submissions of the applicant and Independent Children’s Lawyer, and the earlier opinion of the Department.[131] I accept the validity of those recommendations and submissions and that opinion.

   [131] Magellan Report, page 28/28

7. The applicant abandoned his convoluted proposal as to the manner in which the youngest child should spend supervised time with the mother and instead adopted the proposal of the Independent Children’s Lawyer.

8. The Independent Children’s Lawyer proposed that the youngest child only visit the mother in a contact centre six times per year, but later amended the proposal to require only two visits per year. The reason for the alteration remained imprecise, but was apparently stimulated by some concern the designated contact centre (situated in the region of the parties’ residences) might not accommodate the family on an indefinite basis with the level of frequency initially proposed.

9. The child is now at an age where he does not require frequent visits to ensure his relationship with the mother remains meaningful, but only two short visits per year will allow their relationship to wane. The visits should occur with greater frequency, but not so frequently as to overwhelm the parties’ financial circumstances, or present an unreasonable inconvenience to the parties, or incline the contact centre to withdraw its services from the family. Those competing considerations suggest that quarterly visits are manageable and satisfactory. It should be remembered that, by the parties’ own machinations, the youngest child has not spent much time on many occasions with the mother for some considerable period of time.

10. The mother’s only source of income is social security payments, so her financial circumstances are difficult. Nonetheless, she said she would certainly find a way to fund both the cost of periodic travel to the contact centre and the cost of supervision in order to maintain her relationship with the youngest child. She may do that by, for example, terminating her Foxtel contract, saving her $132 per month, which amount would be sufficient. She has a car and a valid licence to facilitate the visits.

11. If the supervised visits are successful, the contact centre is willing, and the parties’ financial circumstances permit, the applicant may later decide in the exercise of his parental responsibility for the youngest child to allow the visits to occur more frequently. The orders enable variation by agreement between the applicant and mother.

12. So as to promote retention of the youngest child’s relationship with the mother, and to help alleviate any perception he has of abandonment by the mother, the orders provide for them to communicate by telephone once each week. There is a risk the mother may be emotional on the telephone with the child, at least initially, causing him emotional disturbance but that risk is worth taking in order to help sustain their relationship.

13. The second respondent did not seek any orders in respect of the youngest child.

Other orders

1. There are no orders making discrete provision for the children to spend time or communicate with one another. No proposal of that type was made by any of the parties or the Independent Children’s Lawyer. Nor did the evidence provide a sufficient foundation to fashion prescriptive and enforceable orders to achieve that purpose. Maintenance of the children’s relationships with one another remains merely an aspiration.

2. Historically, the acrimony between the mother and the other parties tended to dissuade them from allowing the children to pass freely between their respective households, and since the children have lived separately with different parties from time to time, the impasse has impinged the children’s sibling relationships.

3. Even though there was little scope for the Court to make orders which rectify the predicament, there is room for some optimism.

4. The mother asserted her belief that she and the applicant now had the capacity to communicate cordially. They will continue to live in reasonable proximity to one another. If either of the two eldest children wish to visit the two younger siblings living with the applicant, hopefully the mother will facilitate that. The youngest child will spend supervised time with the mother periodically and there is no reason why the two eldest children cannot attend those visits with the mother.

5. The two eldest children may also choose to live with or visit other members of the maternal family in the future, as they have both done in the past. The uncle and maternal grandmother will also continue to live in reasonable proximity to both the mother and applicant. The uncle and maternal grandmother have convivial relationships with the applicant, so they may make arrangements for the children to spend time together. The applicant certainly expects that can occur.[132] He said in cross-examination he hopes the maternal grandmother will remain a “support network” for the children.

   [132] Second Family Report, para 14

6. The mother, the two eldest children, and Mr O still share a common household, notwithstanding the interim injunction prohibiting the mother from allowing the children’s contact with Mr O. The evidence demonstrates Mr O continues to present a risk of harm to the children. The mother’s disinclination to comply with any injunction requiring her to keep the children away from Mr O should not dissuade the Court from imposing a permanent injunction in the same terms, which the evidence suggests is warranted. The interim injunction is therefore converted to a permanent injunction. What effect that has on the mother’s household remains to be seen. Nothing may change, in which case she will remain in brazen contravention of the injunction. So as to avoid contravention of the injunction, the mother may choose to retain her relationship with Mr O and evict the two children from her home, or alternatively, she may prioritise her relationships with the two children and separate from Mr O.

7. As already mentioned, another injunction is imposed upon the applicant prohibiting him from leaving any of the children in the unaccompanied presence of his other children. That will work to prevent any repetition of the sexual molestation that occurred years ago when all of the children were younger. The applicant was agreeable to the imposition of such an injunction, but wanted the discretion to delegate the responsibility of supervision to some other adult if necessary. His proposal is rejected. He should undertake the supervision personally. His other children only visit infrequently in school holidays so the injunction should not be unreasonably onerous or inconvenient.

8. An order is made restraining the parties from denigrating one another in the presence of the children. There is clear evidence of the mother previously dissuading the children from pursuing relationships with the applicant, presumably because of her past adverse view of him,[133] and she openly speaks negatively about members of the maternal family.[134]

   [133] First Family Report, para 99

   [134] Magellan Report, page 16/28

9. The remaining orders either generally reflect miscellaneous proposals of the parties and Independent Children’s Lawyer or could not be the subject of reasonable resistance.

10. Finally, an order requires timely presentation of the children to the Director of Child Dispute Services so that a Family Consultant may explain the orders to the children, and the reasons for such orders if considered appropriate by the Family Consultant. The children have been embroiled in the adult conflict for the duration of this litigation, extending well over three years. It is better they are informed of the result impartially rather than through any distorted perception of the parties.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 March 2014.

Associate: 

Date:  7 March 2014