Galpin & Varley
[2023] FedCFamC2F 369
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Galpin & Varley [2023] FedCFamC2F 369
File number(s): NCC 1703 of 2018 Judgment of: JUDGE MURDOCH Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to review a Registrar’s decision – Father’s application to review interim parenting orders for the children to commence spending unsupervised time with the mother – Where the father asserts the mother presents an unacceptable risk of harm to the children - Where there are serious allegations of family violence perpetrated by the mother on one of the children – Where the mother denies all allegations of family violence and asserts the father presents a risk to the children – Where the children express strong wishes and views to live with the father – Where the children have been exposed to their parental conflict - Where the court must act conservatively on an interim basis – Orders of Registrar varied so the children spend regular short periods of time with the mother on a graduating basis. Legislation: Family Law Act 1995 (Cth) ss 60B, 60CC, 60CC (2), 60CC (3), 65D (1), 61DA(1) Cases cited: Dieter & Dieter [2007] FamCA 608
Goode & Goode [2006] FamCA 1346
M & M [1988] HCA 68
Marvel & Marvel [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Salah & Salah [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13
Stavros & Stavros [1984] FamCA 38
Division: Division 2 Family Law Number of paragraphs: 117 Date of hearing: 16 March 2023 Place: Parramatta Counsel for the Applicant Mr Givney Solicitor for the Applicant Mcgrath Dicembre & Company Counsel for the Respondent Mr Levick Solicitor for the Respondent Cunningham & Adam Solicitor for the Independent Children’s Lawyer Legal Aid NSW Newcastle ORDERS
NCC 1703 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GALPIN
Applicant
AND: MS VARLEY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MURDOCH
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.Order 4 made on the 6 December 2022 is discharged and in lieu thereof the following shall apply:-
(a)The children spend time with the Mother as agreed between the parties and failing agreement:-
(i)For a period of six weeks from the making of these Orders each alternate Saturday for a period of three hours supervised by “B Contact Centre” or any other such professional service as agreed between the parties;
(ii)For a period of eight weeks thereafter each Saturday from 10:00 am to 12 noon on an unsupervised basis;
(iii)For a period of eight weeks thereafter each Saturday from 10:00 am to 2:00 pm on an unsupervised basis; and
(iv)Thereafter each Saturday from 10:00 am to 4:00 pm.
2.The Father and his servants and agents are restrained by injunction from:-
(a)addressing or referring to the Mother by any derogatory, insulting or belittling name or nickname in the presence or hearing of the said children or either of them;
(b)addressing or referring to the Mother by any name or nickname other than “Mother” or “Mum” in the presence or hearing of the children or either of them;
(c)referring to any other person other than the Mother as the said children’s “Mother” or “Mum”.
3.The Father and his servants and agents are restrained by injunction from causing or permitting the children, or either of them:-
(a)to address or refer to the Mother by any derogatory, insulting or belittling name or nickname;
(b)to address or refer to the Mother by any name, including her first name, other than “Mother” or “Mum”; and
(c)to address or refer to any other person other than the Mother as “Mother” or “Mum”.
4.The following are otherwise dismissed:-
(a)The Application for Review filed on 14 December 2022;
(b)The Application in a Proceeding filed on 8 September 2022; and
(c)The Response to an Application in a Proceeding filed on 19 October 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Galpin & Varley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are parenting proceedings with respect to the children of the relationship, namely:
·X born in 2011 and currently 12 years and 1 month of age “X”; and
·Y born in 2012 and currently 10 years and 8 months of age (“Y”)
collectively referred to as (“the children”).
For determination is the Application for Review filed by the father on 14 December 2022 of interim parenting orders made by a Senior Judicial Registrar on 6 December 2022 (“the Review Application”).
BACKGROUND
The father was born in 1969 and is currently 54 years of age.
The mother was born in 1975 and is currently 47 years of age.
The parties commenced cohabitation in 1998 and separated on a final basis in October 2016. From this time the children lived with the mother and spent regular but ad hoc time with the father.
The father has lived with his current partner, Ms C, since 2017. Ms C has three adult children from a prior relationship and a foster child, D, who has lived with her since he was 10 months of age.
The mother is currently in a relationship with Mr E.
On 5 June 2018 the father filed proceedings seeking parenting orders on both an interim and final basis.
Final parenting orders were made by consent of the parties on 21 September 2018 (“the final orders”). Those orders provided that, broadly:-
·The parties have equal shared parental responsibility for the children
·The children live with the father in a graduating regime with the final stage resulting in the children living with the father for four nights per fortnight and half of each school holiday period and with the mother at all other times.
On 17 May 2022 Y disclosed to her school counsellor, Ms Varley that the mother had hit her across the head with such force that she fell off her chair.
On 19 May 2022 Ms Varley made a mandatory report to the Department of Communities and Justice.
The father deposes that on 19 May 2022 he received a telephone call from the children’s school principal, Ms F. During the course of the conversation Ms F said to the father:
[Mr Galpin] the girls have said that [Ms Varley] hit [Y] across the back of the head and we’re mandatory reporters so we’ve had to report it to you and the Department. We are also obliged to tell you.
[Y] told us the girls were having dinner and they were both laughing and [Ms Varley] told them to stop and then hit [Y] on the back of the heard knocking her off her chair.
On this same day the father attended Town G Police Station and reported the matter to a Police Officer. The father was advised later that night that Constable H was investigating the matter.
On 20 May 2023 the father attended at the children’s school and was advised that the Police had interviewed Y. At the time of his attendance the children had already been collected from school by the mother.
On 21 May 2022 a Provisional Apprehended Domestic Violence Order was made for the protection of Y and restricting the behaviour of the mother.
The children spent a period of three hours with the father for his birthday in 2022. The father returned the children to the mother at the conclusion of such time.
The children next came into the care of the father on 25 May 2022. On 29 May 2022 whilst the children were in the father’s care he sent a text message to the mother advising her that the children would be staying with him “until the matter was sorted out.” The children did not spend any face-to-face time with the mother subsequent to 25 May 2022.
On 3 August 2022 the mother filed an Application – Contravention arising from the father’s failure to return the children to her care in accordance with the final orders.
On 8 September 2022 the father filed an Application in a Proceeding (‘the interim application”) seeking on an interim basis, that:-
·The final orders be suspended.
·The father have sole parental responsibility for the children.
·An Independent Children’s Lawyer be appointed.
·A Child Impact Report be prepared; and
·The mother not be permitted to spend any time with the children pending the court considering the Child Impact Report.
The matter came before a Judicial Registrar on 6 October 2022. By consent the Application – Contravention was discontinued and dismissed. The mother was directed to file a Response to the interim and final orders sought by the father and orders were made for the preparation of a Child Impact Report.
On 19 October 2022 the mother filed a Response to the father’s Application in a proceeding seeking broadly that:-
·The father’s Application in a proceeding be dismissed;
·The Orders of 21 September 2018 be reinstated immediately; and
·The father pay the mother’s costs of and incidental to the proceedings.
The mother defended the Application for the Apprehended Domestic Violence Order and the proceedings were heard and determined in the Local Court at Town J on 18 November 2022. Both children were required to be present in court on this occasion. Both children were cross-examined by Counsel for the mother. A final Apprehended Domestic Violence Order was made on this date for a period of one year listing Y as the protected person and prohibiting the mother from assaulting, threatening, stalking, harassing or intimidating Y and further from damaging/harming her property or pets.
The father’s interim application was heard by the Senior Judicial Registrar on 29 November and judgement delivered orally on 6 December 2022. The children by the time of the interim hearing had not seen the mother face to face for a period of six months.
The relevant orders made this date for the purposes of the review application (“the interim orders”) are as follows:
1. The final parenting Orders made, by consent, in the Family Court of Australia on 21 September 2018 in relation to the children [X], born [in] 2011 and [Y], born [in] 2012 (“the children”) are suspended.
2. The parties have equal shared parental responsibility for the children.
3. The children live with the Father.
4. The children spend time with the Mother as agreed between the parties or, failing agreement, on the following basis:
a) For a period of eight weeks from the making of these orders, each alternate Saturday for a period of two hours supervised by [B Contact Centre] or any other such professional supervision service as agreed between the parents;
b) Thereafter, for a period of eight weeks, each alternate Saturday commencing at 9:00am and concluding at 5:00pm;
c) Thereafter, for a period of eight weeks, each alternate weekend commencing at 9:00am Saturday and concluding at 5:00pm Sunday;
d) Thereafter, each alternate weekend commencing at the conclusion of school on Friday (or 3:00pm if the children do not attend school) and concluding at 5:00pm Sunday;
6. The children shall have telephone communication with the Mother every Monday, Wednesday and Friday when the children are not otherwise spending time with the Mother, at 6.30pm, with such call to be facilitated by the Mother telephoning the Father’s mobile phone, and the Father is to ensure that the children are available to talk to the Mother, that the Father’s mobile phone is charged and available to take such call, and that the Father provide the children with privacy for the duration of such call.
8. Both parents are restrained from saying anything to or in the presence of the children which is abusive, belittling or demeaning of the other parent and are restrained from allowing the children to remain in the presence of any other person who is speaking in an abusive, belittling or demeaning manner about the other parent.
9. Both parents are restrained from discussing any matters pertaining to these proceedings, or sharing the contents of any documents filed, produced or otherwise referring to these proceedings, with the children.
10. Both parents must keep the other parent informed of their residential address and telephone number.
11. Both parents shall attend family therapy provided by [K Families, Town L] with the children in separate sessions to one another and the parties are to forthwith do all acts and things to implement this order and commence family therapy.
It was noted that Orders 2, 3, 4(a) and 5 to 11 were made with the consent of the parties.
There is no evidence that the children did not attend supervised time with the mother pursuant to the interim orders.
The father filed the Review Application on 14 December 2022.
On 8 February 2023 the father filed an Application in a Proceeding seeking that the orders for the children to spend unsupervised time with the mother (orders 4(a), 4(b) and 4(c)) “be stayed” with the mother to pay the costs of the application.
On 11 February 2023 the children did not spend unsupervised time with the mother pursuant to the interim orders.
Orders were made by consent on 21 February 2023 that order 4 of the interim orders be stayed until 16 March 2023. In lieu thereof:
The children, [X] born [in] 2011 and [Y] born [in] 2012 (“the children”), spend time with the Mother each alternate Saturday for a minimum period of two hours, and up to a maximum of six hours at the Mother’s discretion, supervised by [B Contact Centre] or any other such professional supervision service as agreed between the parties.
At the hearing of the review application on 16 March 2023 the parties agreed that the orders made by consent on 21 February 2023 be continued pending the determination of the review application. Thus the children have now spent time with the mother on a supervised basis for a period of almost 4 months.
COMPETING PROPOSALS
Both parties have changed the relief they seek from the court on an interim basis several times.
The Review Application filed by the father seeks that orders 4(b), 4(c) and 4(d) of the interim parenting orders be varied so that:
4(b) Thereafter, for the next eight (8) weeks for a period of six (6) hours commencing at 10:00am, and concluding at 4:00pm, supervised by [B Contact Centre] or any other professional supervision services agreed between the parties.
4(c) Thereafter, each alternate Saturday commencing at 9:00am and concluding at 5:00pm.
Two days prior to the hearing of the Review Application the father’s changed position, as set out in his further Outline of Case, is that the children live with the father and that:-
3. The mother be restrained from causing the children to visit and/or stay at her residence.
4. The mother have time with the children each alternate weekend on either a Saturday or Sunday for a period of up to three hours supervised by a professional contact service with such times to be determined by communication between the parties and the professional contact service.
Despite the mother’s Response to the Review Application simply seeking a dismissal of the father’s review application and for the interim orders to continue, her position has now also changed. The mother’s position now as set out in her Case Outline is that the final parenting orders of 21 September 2018 remain in force and effect pending further order. Thus the mother seeks orders that the children live with each of the parties for a significant and substantial time. In the alternative the mother seeks that the Review Application be dismissed and the interim orders for the children to spend graduating time with the mother remain in effect.
The Independent Children’s Lawyer seeks Orders in accordance with the Case Outline of 16 March 2023 that:-
Order 4 of the Orders made on 6 December 2022 be varied to that the following order is inserted after 4a and 4b:
4(a)(i) Commencing 25 March 2023, for a period of 8 weeks, each alternate Saturday commencing at 10:00am and concluding at 2:00pm.
The Independent Children’s Lawyer therefore seeks that the children’s time with the mother pursuant to the interim orders occur on a slightly more graduating basis.
The court was advised that the mother does not dispute, as an alternate position, the variation to the interim parenting orders as proposed by the Independent Children’s Lawyer.
Thus all parties including the Independent Children’s Lawyer seek a variation of the interim parenting orders the subject of the review application.
Thus the court is required to determine on an interim basis:-
·With whom the children live.
·In the event the children are to remain living with the father, the time and manner in which they spend time with the mother.
EVIDENCE
I have read the following documents relied upon by the father:-
·Application for Review filed on 14 December 2022;
·Initiating Application filed 8 September 2022;
·Notice of Risk filed 8 September 2022;
·Genuine Steps Certificate filed 8 September 2022;
·Parenting Questionnaire filed 8 September 2022;
·Affidavit of Mr Galpin filed 23 November 2022;
·Affidavit of Ms C filed 23 November 2022;
·Affidavit of Mr Galpin dated 20 February 2023;
·Affidavit of Ms M dated 20 February 2023;
·Case outline dated 14 March 2023; and
·material tendered throughout the course of the hearing.
I have read the following documents relied upon by the mother:-
·Response to an Application for Review dated 9 March 2023;
·Affidavit of Ms Varley filed 19 October;
·Response to Initiating Application filed 19 October 2022;
·Notice of Risk filed 19 October 2022;
·Parenting Questionnaire filed 19 October 2022;
·Case Outline filed 22 November 2022; and
·material tendered throughout the course of the hearing.
Whilst the mother appears to have filed a further affidavit in the proceedings on 17 February 2023 the mother did not rely upon this affidavit at the hearing of the Review Application.
The Independent Children’s Lawyer relied upon the Case Outline dated 14 March 2023.
I have read the Child Impact Report dated 3 November 2022.
THE LAW
The Full Court in Salah & Salah [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode [2006] FamCA 1346. The procedure for making interim orders continues to be a truncated process in which the court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
Subject to certain sections, a court may make such parenting order as it thinks proper: s 65D (1) of the Family Law Act 1995 (Cth) (“the Act”). In deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations as set out in s 60CC (2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the child from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Despite the court’s limited ability to make findings in respect of controversial facts in interim proceedings, the court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said:
[100]… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The assessment of risk thus requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing.
Despite the mother urging during the course of submissions that the court should be “bold” at this moment, I must consider the Full Court’s statement in Marvel & Marvel [2010] FamCAFC 101 namely, that where risk is alleged in interim proceedings, a conservative approach is warranted.
As this is an interim hearing I may give my reasons in short form and I am only required to address the relevant considerations as presented by the parties through the evidence and presentation of their case.
PARENTAL RESPONSIBILITY
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in s 61DA(1) of the Act that it is in the best interests of the children that the parents have equal shared parental responsibility is rebutted as:
·there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of the children or family violence; or
·it would not be appropriate in the circumstances for the presumption to be applied.
A final Apprehended Domestic Violence Order was made restricting the behaviour of the mother for the protection of Y. I am satisfied in those circumstances that there are reasonable grounds to believe that the mother has engaged in family violence and thus the presumption of equal shared parental responsibility is rebutted.
I am satisfied that it is in the children’s best interests that the parties continue to have equal shared parental responsibility as:-
·The interim parenting orders provide that the parties have equal shared parental responsibility. The father does not seek to review this order. The mother seeks a reinstatement of the final parenting orders made in 2018 which provided that the parties have equal shared parental responsibility. Thus both parties concede that it is in the children’s best interests that they continue to have equal shared parental responsibility for the children.
·The terms of the final Apprehended Domestic Violence Order do not restrict the parties from communicating with each other. The father does not depose as to any issues with the communication between himself and the mother.
·It does not appear that there have been any significant issues between the parties arising from the final parenting orders prior to the alleged incident between the mother and Y. The mother’s evidence is that the final parenting orders have “generally worked well” although she does make complaint that she has not always been able to contact the children to speak to them pursuant to the final orders.
·Police enquiries are continuing as to an online sexual predator seeking indecent photos of X. I accept the mother’s submissions that both parties should be involved in any care decisions for the children arising from this serious and upsetting matter for the family.
·Both parties continuing to have equal shared parental responsibility assists in both parties continuing to have a meaningful involvement in the children’s lives.
Thus the order of the Senior Judicial Registrar as to the allocation of equal shared parental responsibility will continue.
CONSIDERATION
Turning now to the primary considerations.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright [2007] FamCA 520. The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the court:
[118] …should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The father proposes that the children spend an extended period of supervised time with the mother; with no orders at this stage for such time to move to unsupervised.
The mother substantive relief sought by the mother on an interim basis is that the children live with the father for four nights per fortnight and half of each school holiday period and with her at all other times. In the alternative the children live with the father and, as proposed by the Independent Children’s Lawyer, spend increasing graduated and unsupervised time with the mother.
Risk of Harm in the Mother’s Household
The Alleged Incident of 12 May 2022
The father deposes that the children are at risk of physical and psychological abuse and neglect in the mother’s care. The mother unequivocally denies posing any threat or concern to the children’s welfare whilst they are in her care.
Whilst both parties make lengthy and historical allegations as to risk factors they assert arise for the children in the care of the other party, it appears that the catalyst for the father’s retention of the children and the current application before the court is the alleged incident of 12 May 2022 grounding the current Apprehended Domestic Violence Order.
The grounds of the application made by Constable H in which the “PINOP” is Y, records:
The PINOP informed police that on the evening of Thursday 12 May 2022 she was home with her elder sister and the defendant at [N Street, Suburb O]. Both the PINOP and her sister were sitting at the dinner table and began laughing together. The defendant told the girls to stop laughing which the PINOP has left the table and gone to the toilet before returning and sitting down. The PINOP began laughing again with her sister who had a mouth full of water and as a result the PINOP sister spat the water out which hit the defendant and the floor. In reaction to this the PINOP continued laughing with the defendant then striking out and slapping the PINOP to the back of the head. The force of this slap knocked the PINOP off her chair. When asked how hard this “slap” was she was able to explain that on a scale of 1 to 10 it was around a “7, 6 or 5”. The PINOP was able to quantified [sic] her assessment as she had learnt about scales at school.
The PINOP further informed police that after being slapped she said “Oow” to which the defendant replied; “Yeah that’s what you get for laughing, you deserved that.”
The PINOP re-seated at the table and finished her dinner before going to her bedroom.
In the days following the assault, the PINOP informed staff of her school who made their mandatory notifications.
In 2022 the children were spending time with the father for his birthday. The father deposes that he asked Y why she did not disclose that the mother had hit her and knocked her off her chair. He deposes that Y responded:
Dad I’m scared of [Ms Varley]. I didn’t want to tell you because she would then stop us from seeing you. We don’t know when [Ms Varley] is going to go off. Please don’t send us back. If you send us back we are just going to run away. [X] said “she hits us all the time and yells and screams and we live in a pigsty. Please don’t send us back.”
The father deposes that he explained to the children that he was required to return them to the mother pursuant to court orders and that if they were scared they were to call him. The father returned the children to the mother’s care. There is no evidence that the father spoke to the children about referring to the mother by her first name.
On the next occasion the father spent time with the children he deposes that X told him that she ran away “that night”; walking around the streets before returning to the mother’s home at approximately 11:00 pm. The father deposes that X told him that the mother was not aware of X not being at the home during this time. There is no evidence that the father contacted the mother to discuss X’s alleged disclosure to him.
The mother deposes that the alleged incident occurred on the 3 May 2022. She and the children were at home having dinner whilst she was on the phone to her father. Both girls began laughing and she told them to “stop laughing and get on with eating your dinner.” Both girls continued to laugh after Y returned from the bathroom and X did spit out a mouthful of water onto the mother, the table, Y and Y’s chair. Y was startled by this and began rising from her chair and at the same time the mother reached over to grab the chair and in the:
…process of reaching over to grab [Y]’s chair my hand did come into contact with [Y]’s head. [Y] did come off the chair and it was not because of my contact with [Y] it was because she was off balance at the time.
The mother denies having ever used physical discipline or excessive force towards the children.
As set out above, the application for an Apprehended Domestic Violence Order was defended by the mother and proceeded to a defended hearing on 18 November 2022. Both of the children were required to give evidence and it appears were both cross examined in the Local Court by Counsel for the mother. A final Domestic Violence Order was made naming Y as the person in need of protection for a period of 12 months.
The Alleged Incident on 3 February 2021
The father deposes to an event on 3 February 2021 where he observed a deep scratch on X’s arm. X advised the father that the cat had scratched her and so the father arranged for X to attend the medical centre to have a tetanus needle. X then admitted to the father that it was not the cat that scratched her but that “Y and I were fighting, Ms Varley was yelling at us and grabbed me by the arm and dug her nails into me and dragged me away. It was bleeding and really hurt.”
The mother deposes in relation to the same incident that the children were having an argument that escalated into a physical fight and the scratch left on X’s arm was a result of the mother attempting to separate the children from one another.
Irrespective of how the scratch arose on X’s arm, it is concerning that there appears to be no dispute that the two girls were involved in some form of physical altercation in the mother’s household. Again there is no evidence from the father that he addressed the issue of X calling the mother by her first name.
The Mother’s Living Conditions
The father deposes that within the first few years of the parties’ cohabitation he observed the mother regularly collecting and keeping various items in boxes around the home. The father deposes he had many conversations with the mother prior to their separation where he would state that the house was “full of rubbish and boxes that we can hardly move” to which the mother would response “it’s my good stuff, don’t touch it, it’s mine.”
The father deposes that the mother did not attend regularly to household chores such as washing up, cleaning bathrooms and ensuring pets were not kept in the house. For the last five years of their cohabitation the father alleges that he observed mice in the house as well as cockroaches which seemed to multiply and live in cardboard boxes and cartons. He often took rotten food out of the fridge and when he did so the mother would say “what are you doing that for?” and “don’t go near the fridge”.
The father alleges that the children have complained to him about being bitten by fleas in the mother’s home for years. The father tendered photographs taken by him of flea bites on the children at various times. He deposes that the children have advised that the fleas are “all over the house, the cat’s got fleas, they’re in our beds and they’re on our clothes”. The photos tendered by the father are so unclear as to not assist.
The father deposes that on 7 February 2022 he received a video on his mobile phone sent from X. The video showed the state of the mother’s house where the children were living. The father deposes that the video depicts cat faeces in the shower, clothes in various rooms and the mother’s home in an untidy and unhygienic state.
The father deposes that on 15 May 2022 he gave X a jumper and Y a thick coat to wear as they were complaining that it was cold. He was subsequently advised by X that the mother had used the coat for the cat to sleep on.
On 23 May 2022 the father deposes he received a further video from X as to the state of the mother’s house. The import of the father’s evidence appears to be that these videos were forwarded to him out of the blue – the father gives no evidence as to any prior knowledge or conversations with X as to filming and forwarding to him videos of the mother’s home. I accept the submissions of the mother that at the commencement of the video X states: “So I have some more information for you.” It could be inferred from such statement that the father and X had some form of communication relating to her obtaining evidence as to the state of the mother’s home prior to her sending same to the father but that is a finding to be made at a final hearing.
Both the videos are of poor quality. I do accept that they, together with photographs tendered by the father, shows the mother’s home in an untidy and cluttered state.
The mother does not address the father’s allegations as to her hoarding in her written evidence. She does depose that she has always made sure the children eat healthy and nutritious food in her care. She concedes that at times her house does get messy and untidy however it is not ever unhygienic, filthy, unhealthy or dirty. The mother deposes that the children’s behaviours in terms of cleaning up has deteriorated and they have never had a positive attitude towards assisting the mother in cleaning the house. The mother ultimately deposes that she lives in a peaceful and happy home and that the children are very comfortable at all times.
The mother’s evidence contrasts to that reported by the children to the court child expert. Y is reported as telling the court child expert that she has not seen her mother now for some time due not only to her not wanting to but also due to the “state” of the mother’s home. “Y spoke about disliking the significant untidiness and unkempt nature of her mother’s home, giving examples of this.” X is reported as telling the court child expert that she dislikes that the mother’s house was “in a mess” and wishes for her mother to “be more stable and stuff” which the court child expert thought meant such things as being able to address the state of her home.
Allegations of verbal abuse
The father deposes that the children have said that the mother refers to them as “dumb, stupid, little bitches, a pain in the arse, and useless”.
The mother’s written evidence is that she does not call the children these demeaning terms nor does she yell or scream at the children or taunt them in any way. She deposes that if she removes the children’s technology from them it is a far more effective method of punishment.
Risk of Harm in the Father’s Household
The mother makes various allegations giving rise to her assertion that the father presents a risk of harm to the children in his care including but not limited to:-
·On 22 May 2019 when the children returned to her care Y complained of having a sore back and she observed that Y had marks and bruises on her back. Y told the mother that the father had taken her on the quad bike going “really fast in the dark without wearing a helmet” and she was continually being pushed up against the spray tank on the back of the quad bike.
·The children have told her the father has hit them on the back of the head, slapped them, and twisted their ears when they are fighting.
·On 3 February 2019 both children but in particular X were returned to her care badly sunburnt. X was in extreme pain for many days after and developed large blisters. The mother bandaged her body to try and alleviate her pain.
·The children have told her that they often sleep in the father and Ms C’s bed and that they have access to Netflix whilst in the father’s care including watching movies with a 15+ rating.
·Throughout the children’s lives the father has made comments to the mother to the effect of “do you want them? You can have them if you want them” and “these kids… do you want the fucking little bastards?”
·In 2018 the children made disclosures to herself, the father and a psychologist that members of Ms C’s family including her grandson and foster child had been touching the children’s genitals. The mother states that an investigation was conducted by “JIRT” and “FACS” but that the matter was closed as a result of the father and Ms C denying what had happened.
·The mother deposes to having seen comments made by X in her personal diary that she had seen photographs of the father’s penis that he had sent to Ms C with the caption “it needs some attention”. The mother deposes that X had written about how disgusting she had found the photographs.
·The children are fearful of the father and his temper “and his cruelty.” The father takes the children hunting and shooting with him.
·The father was physically violent and emotionally abusive to the mother when the parties lived together.
·The mother witnessed the father “bash into” his dog many times.
At the same time as she makes allegations that the children are at risk in the father’s care the mother seeks orders that the children spend substantial and unsupervised time in the father’s care. The mother did not explain during the course of the hearing the self-evident inconsistency between the case that she sought to prosecute and the relief sought. In the circumstances arising from the relief sought I accept for the purposes of this determination that, from her own case, the contentions as to risk asserted by the mother were such that they are not unacceptable and I do not propose to address them any further.
Relevant section 60CC (3) Considerations
Both Y and X have expressed strong views and wishes to the court child expert.
The court child expert records that Y presented as a “confident, strong minded and open child who holds and expressed strong and clear views and opinions about her views, wishes and experiences.” The court child expert noted that much of Y’s reporting aligned with that of the father and that her key experiences can be summarised as follows:
·Y explained not having seen her mother for some time as being due to not wanting to, and due to the “state” of her mother’s home.
·She expressed a dislike to calling her mother “mum” as it “does not feel right”. The court child expert observed that Y called the mother by her first name during the interview and the father’s partner; Ms C as “Mum.”
·She expressed being worried that the mother may “end up really hurting me” due to her having “hurt us in the past but not that bad.”
·She spoke about her mother and maternal grandmother having hurt herself and X in the past and that she did not like it when the mother spoke about Ms C in a negative way, that the mother did not like Ms C and did not accept the children’s relationship with her.
·Y spoke about her father and Ms C speaking about the mother but “not in a mean way”. She provided examples such as “it would be good if she treated the fleas in her home”. The court child expert opined that the examples provided by Y have clear negative connotations about the mother and her home.
·She expressed general anxiousness and concern about being taken away from her father’s home.
·Y is well aware that her parents do not get along and dislike each other but appears to place more blame on the mother for this.
·She feels speaking with her school counsellor is helpful.
Y expressed a number of wishes in relation to herself and her family to the court child expert including:-
·She wanted to be able to obtain some personal belongings from the mother’s home including her pets.
·She wanted the mother’s house to be “much tidier”.
·She wanted to live with the father and to see her mother once a month in the presence of someone and to speak with her mother every Friday like she used to.
X presented as a “strong minded, outspoken child who expressed having been affected by her parent’s sustained conflict and dispute over many years”. The court child expert again opined that much of X’s reporting aligned with that of the father’s and her expressed views can be summarised as follows:
·She referred to her mother by her first name and to Ms C as “mum” but told the court child expert that she and Y usually call the mother “mum” and that she was purely using these terms in the interview to differentiate her mother and Ms C.
·X believes that she has not seen the mother since May because “she did something to Y” and “gave some detail of the event.” When asked about how she felt about not seeing her mother for a period of time she stated feeling “a bit safer but I do miss her too because she’s my mum”. She expressed that she does not feel it is currently safe without supervision and is unsure how the mother would respond to and treat herself and Y.
·She spoke of living with the father and his partner and raised no real concerns in relation to this.
·X identified things she liked about living with her mother previously but dislikes that the house was “in a mess” and was worried about her mother doing something to her cat. She identified other things about the mother that made her feel uncomfortable including that the mother had taken photos of her diary, that she felt like the mother used to record calls with the father, taking photos of injuries her and having asked her to lie to the father as to how she sustained scratches on her arm.
·X is well aware that her parents do not get along and like each other and that it “makes me sort of cranky because I wish they got along” but appeared to place more blame on the mother for this.
X expressed wishes in relation to herself and her family include:-
·She wants to live with the father.
·She wants her mother to be more “stable and stuff” which appeared to mean being able to address the state of her home.
·To be able to see the mother “sometimes” in the presence of a supervisor in the short term but that she can see a future where she will want to spend regular time with the mother, including overnight time, if she tidied up her house and “starts being honest”.
The court child expert opines that it appears that the children have been directly and indirectly exposed to the parental dispute between the parties over much of their remembered life. This is likely to have had an adverse impact on them over times as:
…children who are exposed to sustained parental conflict are at greater risk of developing adverse outcomes such as issues with their emotional wellbeing and general health, presentation and/or escalation of behavioural issues, issues in their relationship with one or both of their parents, with some children reaching a point of feeling like the have to choose one parent over the other.
The court child expert opined that in light of the children’s exposure to the sustained parental conflict their expressed experience of their parents may be clouded and influenced by who they are living with or in the presence of at any particular time and thus it is unsurprising that the children’s reporting strongly aligns with that of the father. Whilst the children’s expressed views and wishes should be given some weight, it may be that such expressions are not necessarily consistent with their actual thoughts and feelings about their mother.
…their verbalised concerns regarding their mother and previous experience of their mother could be exaggerated based on some influence by their father, them feeling unable to express things that go against their father, and them having lived with their father solely for some time now. It may also be the case that the children’s expressed views and experiences are also partly based on the children’s actual lived experiences of their mother.
The mother reported to the court child expert that she believes the children’s relationship with her has been influenced over time by the father and that the children would express a wish to live with their father in interview.
The mother deposes that the children have been subject to “years” of the father and his partner making derogatory comments about the mother. She alleges that the father has been putting pressure on the children for “years” to decide where they wanted to live “even prior to the current orders.” She deposes unequivocally that the behaviour of both the children towards her has worsened over the years and the father and his partner have been working
…towards the goal of removing the children from my care and are trying to achieve this through swaying the children’s perception of me. The children have been told for years that their mother is no good and completely at fault and unfortunately they have developed the same view…
One example given by the mother is the children often saying to her if she asks them to do a task or help her: “You do it, it’s your house, you do it” or her request is ignored. X particularly the mother deposes has been “lashing out” at her sister “getting into moods, argumentative, defiant, having meltdowns and saying negative and hurtful things.” The mother has taken X to see Dr P. The mother alleges that Y has begun to attempt to play the parties off against one another and suggests that Y has possibly been influenced by witnessing X’s behaviour over time.
The mother clearly lays the blame for the children’s alleged behaviour towards her at the feet of the father and his partner. It does not appear that the mother has considered that there may be any possibility that there may be other reasons for such behaviour.
The court child expert opined that one or both of the children having to give oral evidence at the Apprehended Domestic Violence matter in the Local Court is likely to be a distressing event for the children and noted that it was unfortunate that the children were required to give evidence either against their mother or about their truthfulness, placing great stress and pressure on them regarding their relationships with their parents.
A further affidavit of the father filed with the leave of the court deposes that on the day the children were to commence seeing the mother on an unsupervised basis he told the children one hour prior to changeover: “You need to get ready to go and see your Mother today.” The father deposes that both the children said they were not going and he further stated: “I have to take you it’s a Court Order. You need to spend time with your Mother.” Upon Y telling the father that they would not be attending the father deposes that he stated: “Well you can tell your Mother that yourself if that’s how you feel but I’m taking you so get ready.” The father deposes that upon Y telling the father that the children are scared of the mother he stated: “No problems Ms M is here. I’ll ask her if she can come with us and she can walk with you to your Mother but we’re going whether you like it or not.”
The father and Ms M had a conversation and Ms M accompanied the father and the children to changeover. The father parked approximately 15 metres from the mother’s motor vehicle and the father remained in the car whilst the children and Ms M walked towards the motor vehicle, all returning a short time later. Ms M states that when seeing the mother X said: “We don’t want to go and see you without supervision, we are scared.” She deposes that: “The children and I then walked away towards Mr Galpin’s motor vehicle.”
The children identify as Aboriginal, with the mother reporting to the court child expert the children’s heritage being from the Q people. The mother deposes she has been a member of the Region R Aboriginal Lands Council since 2002 and is recognised by her local community as being Aboriginal. The mother asserts that it is well known that it is not in the best interest of indigenous children to be removed from their mother as it is seen as culturally inappropriate and thus it is very important in the Aboriginal culture that children remain living with their mother. The mother reported to the court child expert that the children have previously enjoyed their connections with culture through her family, their place of education, cultural gatherings and celebrations of NAIDOC events.
The father noted to the court child expert that the children continue to learn about their Aboriginal heritage at school but he appeared to question the mother’s level of connection to culture.
DETERMINATION
This is a difficult matter to determine within the confines of an abridged hearing. It is made more difficult by the limited evidence before me. Neither party has put any evidence before the court as to whether the family therapy as ordered on 6 December 2022 has yet commenced although it was submitted from the bar table that it was due to commence the week after the hearing of the review application. There is no evidence before me from either party as to how the supervised time between the children and the mother has been progressing. The only evidence I have before me is the affidavits filed by the father as to the children’s refusal to attend unsupervised time with the mother on 11 February 2023. The mother did not seek the court’s leave to place any evidence before the court as to this incident.
I am required to weigh the competing considerations of the risk of harm to the children being returned to live with the mother as against the risk of a further fracturing of their relationship with the mother should they continue to live with the father pending a final determination of the matter.
I accept that complaints as to the state of the mother’s home have now existed for a significant period of time; even prior to the final consent orders entered into between the parties. I accept the father’s submissions that it appears that the mother has been unable or unwilling to address this situation which may be causing issues for the children now that they are older and more aware perhaps of the differences between their mother’s home and their father’s home. I am not satisfied that this in itself however presents a risk to the children such that they not be able to live or spend unsupervised time with the mother.
Y makes an allegation of a very serious assault occasioned upon her by the mother. On the evidence before me the allegation is made by Y to a school counsellor and not her father. She appears to have been consistent in her reporting to both the school counsellor and to Constable H as to the nature and context of the assault. Whilst the mother was not charged with any criminal offences, the mother appears to have made the unfortunate decision to subject the children to cross examination in her defence of the apprehended domestic violence order which was ultimately made. I imagine the mother will be subject to cross examination at a final hearing as to why she did not in the circumstances adopt a more child focussed approach and simply consent to the order that was ultimately made on a “without admissions” basis.
Whilst the mother alleges that the father has engaged in a course of conduct designed to undermine the children’s relationship with her, she does not specifically address why the children would make the allegations they did with respect to the alleged 23 May 2022 incident. Whilst the mother denies the incident and provides an alternate version of events, she does not specifically assert that the father is behind the allegation. She does not address why this allegation would be made if it were untrue. If it is untrue it speaks volumes as to the nature of the relationship between the children and the mother.
The possible trauma the children have suffered and witnessed if the allegation is found to be correct must be part of the risk matrix that I apply in determining what orders are to be made pending a final hearing of the matter. I must also consider if there is the risk of physical harm to the children should they live or spend unsupervised time with the mother. In light of the current proceedings before this court and the potential serious consequences for the mother should she be found to have breached the current Apprehended Domestic Violence Order I am satisfied that there are risks of physical and psychological harm to the children in living and spending time with the mother arising from the alleged assault on 23 May 2022, but that such risks can be ameliorated as set out below.
Both the children are very clear in their reporting to the court child expert that they do not feel safe seeing the mother unless it is on a supervised basis. Whilst the court is unable to make a determination at this stage as whether the children’s reported wishes are from a lived experience or as a result of the father’s conduct, it is clear that the children’s relationship with the mother has significant difficulties at this time. The father’s allegation that X told him she “ran away” from the mother’s home and wandered the streets alone unbeknownst to the mother is concerning. The mother proposes in light of this fracturing to have the children live with her. There is no evidence by the mother as to how she proposes to deal with the children’s opposition to spending any unsupervised time with her. There is no evidence as to how the mother proposes to deal with the children’s continuing behaviour which she asserts has come about partly from the father and his current partner’s undermining of her. What is going to change if I order that the children return to live with the mother?
I do have concerns as to the father’s capacity to proactively encourage and support a relationship between the children and the mother having regard to my consideration above. The father’s changed position from the children’s time progressing to unsupervised after a period of time appears to have arisen subsequent to their apparent refusal to attend for unsupervised time with the mother on 11 February 2023. The evidence of the father in itself raises serious questions as to his parenting capacity and ability to support and encourage the children’s relationship with the mother.
Whilst it may be found at a final hearing that the father has engaged in inappropriate and conduct that is not child focussed, on an interim basis when faced with the competing considerations the risk of harm takes priority and I am to act conservatively. The mother is alleged to have occasioned a serious assault upon Y. Whilst the origin/s of the children’s views at this stage are not capable of determination, I must at this stage place weight upon them and, acting conservatively, order that the children remain living with the father.
In those circumstances the mother seeks that for the most part the orders of the Senior Judicial Registrar remain with the addition of an extra staged process as sought by the Independent Children’ Lawyer. The father seeks the continuation of supervised time indefinitely.
The children did not spend any time with the mother for a period of five months and have now spent approximately four months of supervised time with her. Again I reiterate that the absence of evidence as to how time has been progressing does little to assist me in determining what is in the children’s best interests.
In light of my considerations above and the allegations as to risk arising to the children in the mother’s care, it is not in the best interests of the children to spend equal or substantial and significant time with the mother. I am satisfied, weighing all the competing considerations and balancing the risks of harm to the children as against their continuing relationship with the mother, that there should be a further time of supervision with the mother to allow the therapeutic intervention to assist the children and the mother improve their relationship. I am satisfied that the children spending short but regular periods of time is thereafter in their best interests. Noting the concern of the court child expert as to the possible complete loss of the children’s relationship with the mother and the risk concerns set out above, I am satisfied it is in the children’s best interests that they spend regular time with the mother on a fortnightly but not on an overnight basis at this stage. This will allow therapy to commence and provide the family with something to work towards and ensure that the children are seeing their mother on a regular basis but for shorter periods of time.
No submissions were made as to the father’s proposal that the mother be restrained from allowing the children to attend upon her home and I refuse to make such an order.
In light of the court child expert’s and my concerns that that children are referring to the mother by her first name, I will make an order restraining the father from addressing of allowing others including the children from addressing the mother in any way other than as “Mum” or “mother.”
Both parties must remember that this determination arises from an abridged process where the court avoids making findings of fact on contested issues. Findings of fact will however be made on a final basis. This court expects the father to positively encourage and support the children’s relationship with their mother. It also expects compliance with its orders. It is not for the children to decide their parenting arrangements and in circumstances where the parents are unable to do so, this court must. The obligation to ensure compliance with a parenting order carries with it more than merely an obligation to remain passive. It requires a positive application of parental authority: Stavros & Stavros (1984) FLC 91-562 at 79,539.
Orders will be made accordingly.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 31 March 2023
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