GARABALDI and HOFFMAN
[2010] FCWA 97
•17 SEPTEMBER 2010
[2010] FCWA 97
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | GARABALDI and HOFFMAN [2010] FCWA 97 |
| CORAM | : | MONCRIEFF J |
| HEARD | : | 20 JULY 2010, 21 JULY 2010, 22 JULY 2010 AND 25 AUGUST 2010 |
| DELIVERED | : | 26 AUGUST 2010 |
| PUBLISHED | : | 17 SEPTEMBER 2010 |
| FILE NO/S | : | PTW 1869 of 2006 |
| BETWEEN | : | GARABALDI Applicant/Father |
| AND | ||
| HOFFMAN Respondent/Mother | ||
| Catchwords: |
FAMILY LAW - child related proceedings - with whom a child lives - history of abuse and neglect - absence of support of meaningful relationship between children and father
Legislation:
Family Law Act 1975s 60CA
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Ms N Hossen |
[2010] FCWA 97
Solicitors:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Reader Lawyers & Mediators |
Case(s) referred to in judgment(s):
Nil
[2010] FCWA 97
1 [Mr Garabaldi], the father, and [Mrs Hoffman], the mother, are the parents of
[Danton Garabaldi], born in October 2004, now 5½, and [Zachary Hoffman], born in July 2006, now aged 4. The father and the mother are unable to agree on the future care arrangements for Danton and Zachary. The father seeks orders that would have the children reside with him and spend time with the mother initially on a supervised basis. The father also seeks sole parental responsibility.
2 The mother seeks orders that the children reside with her and that they spend
time with the father. The children have been separately represented by an Independent Children's Lawyer, Ms Ruth Reader, who was represented by counsel throughout the trial, Ms Noelle Hossen. Although the parties were only in a relationship for a short time, between their initial contact in late 2003 through to their marriage in February 2004, and final separation in December 2005, this is a matter that has a significant, direct and peripheral history.
3 Germane to that history is the mother's background of abuse at the hand of her
father over a significant period of time prior to the mother's emigration to Australia in 1989, the mother's previous relationships, allegations of violence in the parties' current relationship, and the significant long-term involvement of the Department of Child Protection (“DCP”). In the course of proceedings, reports have been prepared by a consultant psychiatrist, [Professor L], and also clinical psychologist, [Mr C].
4 In the summary to Mr C's report of 20 September 2009, he observes as follows:
“(1) That the boys are at serious risk of emotional and physical abuse as a result of the mother's fabricating allegations of sexual abuse of the boys by the father, resulting in them likely to believe that they have been sexually assaulted by him when they have not. (2) The boys are at risk of compromised care and parenting given the mother's history of dysfunctional care of her two older children and her unwillingness to participate in parenting courses. (3) Given the mother's history of behaviour towards the children and the more recent unexplained bruises, it is unlikely that participation in such courses will result in significant parenting change. (4) The mother suffered significant sexual abuse as a child, and now unconsciously and insightlessly places baseless allegations and fears on her two youngest boys. (5) The boys to move to live with their father. (6) The mother to have counselling for her abuse and its effects on her
behaviour towards the boys.(7) The mother to have supervised access until such time as the reportable counselling indicates that genuine therapeutic gains have been made. (8) That the matter be expedited to trial as soon as possible.”
5 The Independent Children's Lawyer adopts the position in line with the recommendations made by Mr C and the father's case proceeds on similar lines.
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6 A further dimension is added to the matter as a consequence of the mother
having three other children, [Laurie], born of the marriage between the mother and [Ronald Hoffman] in 1986 in the United Kingdom. Laurie was also born that year and is presently 24 years of age. There is another child of the relationship between the mother and Ronald Hoffman, [Ronnie], who was born in early 1988, and is now 22 years of age.
7 The marriage between the mother and Ronald Hoffman is said to have broken
down in 1990, with the two of them separating at that time. They had emigrated to Australia in 1989 and at sometime after their separation it seems that Mr Ronald Hoffman returned to the United Kingdom.
8 Mr Ronald Hoffman died in 1991.
9 There has been significant and ongoing involvement with DCP over Laurie and
Ronnie, but particularly Laurie whom, it would seem, has led a very troubled life, and if not physically abused by his mother, has certainly been psychologically abused by her in circumstances which I consider further below, as although they relate to a child who is not the subject matter of these proceedings and who is now an adult, they are highly relevant to my consideration of the manner in which the mother treats, and is likely to treat, the children of the parties. Similarly, there has been a high level of DCP involvement over Ronnie, again to which I refer later in these reasons, and for similar reasons.
10 At some time during August 1998, the mother formed a relationship with one
Jonathan K. As a result of that relationship with Mr K, their child, [Davis], was born in August 2002. Davis is now eight years of age.
11 The circumstances about which it is said that Davis has contact with his father
are at best uncertain and, at their worst, a fabrication on behalf of the mother, for whilst it is now the mother's case that she says Davis has regular communication with his father, they did not meet face to face until well after the parties' separation and in circumstances that are suggestive of a reintroduction of his father into Davis's life as a means of frustrating his relationship with the father in these proceedings.
The evidence
12 The father relied on his affidavit sworn on 6 July 2010, and affidavits he had filed earlier in the proceedings on 22 May 2008, 28 July 2008 and 16 December 2008. He also relied on the affidavit of his now wife, [Roxanne], filed on 12 July 2010.
13 The mother relied on her affidavit that she had sworn on 18 July 2010, which
contained annexures from [Dr L], her psychiatrist, and also a statement from [Ms P] by way of a character reference, similarly, a statement from [Ms M], statements from Ronnie Hoffman, and [Mr R], who is not identified by her, nor his full name given, but purports to be a counsellor.
14 Of those persons who had prepared the annexures, Dr L was available for cross-
examination by telephone and Ms M also gave evidence. The other persons
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who prepared statements were not available for cross-examination and I am inclined to
accept them.15 Accordingly, the evidence in the mother's case was from the mother, Dr Land
Ms M, and some documents she tendered, notably from the school and, further, from
Dr L on the last day of trial.16 The Independent Children's Lawyer relied on the single expert witness reports of
Professor L, Mr C, [M J], case worker from DCP, [Ms S}a Saba, a contact supervisor from Perth Anglicare, and [Ms N], an Anglicare supervisor from [the northern suburbs]. Independent Children's Lawyers were available to give evidence and all were cross-examined by the mother.
17 Additionally, I received into evidence reports prepared for Anglicare by Ms S
and also by Ms N (dated 20 March 2009 by Ms S and 9 July and September 2007 by
Ms N).18 Both of the parties were cross-examined and I had the opportunity of observing
all of the witnesses in the witness box. All of the witnesses called by the Independent Children's Lawyer impressed me as professional witnesses attending to the proper and professional discharge of their duties and were impressive. None of the Independent Children's Lawyer witnesses were successfully challenged in cross-examination by the mother. Wherever there is a conflict between their evidence and that of the mother, I prefer the evidence of the witness called by the Independent Children's Lawyer.
19 The father's evidence was impressive. He presented as a highly intelligent man.
Although English was clearly not his first language, he was articulate and logical in the presentation of his evidence and made appropriate concessions against his own interests, including an allegation of violence perpetrated by him, about which I will refer later. Similarly, Mrs Roxanne Garabaldi’s evidence was impressive. Her evidence was not in any way diminished by cross-examination; if anything, it was reinforced, and I accept her as a witness of truth.
20 The mother's witnesses were at a distinct disadvantage in that, firstly, Dr L was
not anticipating giving evidence in the proceedings, and I accept that he was not expecting to do so, although given that he prepared reports for the mother, the mother's claim that Dr L’s therapeutic value would be compromised if he were to give evidence did not ring true. Certainly that was not the position adopted by Dr L, who gave evidence in a proper and professional manner, although his observations were based only upon his interaction with the mother, which had been somewhat haphazard, and his brief interactions with the children.
21 Dr L had taken it upon himself to quiz the boys about their residential
preferences. Why he did so is, frankly, beyond my comprehension, given that he was not an appointed expert of the court, and I consider his approach in this regard to have been inappropriate when it is based solely on the say-so of one of the parties to the proceedings who purports to have made contact with him for therapeutic purposes.
22 Further, given Dr L's undoubted qualifications as a child psychiatrist, I am
somewhat surprised that he had undertaken that task on an unsolicited basis. I am also
[2010] FCWA 97
uncertain as to why the children were involved in the sessions with Dr L at all. In any event, I will have to have regard to the weight that should be attached to any statement of expressed wishes by either of the children later in these reasons.
23 Ms M also gave evidence from a somewhat disadvantaged position in that she
had only known the mother for six months but had been involved in doing some tutoring for her son, Davis, and for Danton. Although she is a registered teacher, I found her evidence about her knowledge of the boys' situation somewhat slim and her presentation rather haphazard. I have no doubt that she was strongly motivated to advance what she saw as being appropriate in support of the mother. However, it lacked coherence and, in any event, was based very much upon what she had been told by the mother.
24 The mother was a most unimpressive witness. Whilst I have no doubt that the
mother has had a very difficult life and has experienced abuse at the hands of her father in her early teens, and childhood, her evidence was chaotic and was highly emotionally charged in its presentation. Notwithstanding the numerous claims by the mother during the course of her various statements from the bar table and her questioning of witnesses that she had undergone extensive domestic violence counselling and therapy, it was abundantly clear from her presentation that she had not gained any, or any significant, benefit from that therapy in terms of moving on. She took every opportunity, despite my repeated requests for her not to do so, to introduce into any question or statement argument about her perception of the tragedy of her position and how she had been victimised by her partners and the system.
25 Her claims insofar as receiving counselling or other therapeutic intervention for
the domestic violence did not necessarily coincide in time with her evidence about allegations of domestic violence, as the only allegations that she specifically made were against the father, yet she sought to present her therapy as significantly backdating her involvement with him although, of course, the abuse that she had experienced at her father's hand naturally pre-dated the involvement of the father.
26 Overall the mother attempted to present herself as a victim at every available
opportunity and used the abuses she suffered to excuse her behaviour, excuse her noncompliance with previous orders, excuse the intervention of DCP, or otherwise justify any position that she adopted in the evidence. Further, the mother appeared as though she was unable or unwilling to accept any responsibility for her actions or the situation in which she found herself at any point in time. Tragically, she could not even bring herself to acknowledge that the father may love the children. At any point in these proceedings where there is a conflict between the mother's evidence and that of any other witness, I prefer the evidence of the other witness.
Background
27 The mother was born in April 1966 in the United Kingdom. She is presently 44 years of age. The father was born in [Europe] in April 1973. He is 37 years of age.
28 The mother, as I have mentioned, had previously been married to
Ronald Hoffman and migrated to Australia with him in 1989. Following their
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separation, as I have noted, Mr Hoffman returned to the United Kingdom and
subsequently died.29 There was an unusual discrepancy in the evidence in this case. In the course of
the cross-examination of the mother, Mr Garabaldi put to her that at the time of their marriage she was a divorced person as was clearly represented, with a date nominated on the marriage certificate filed in these proceedings. The mother, however, represented herself as a widow and claimed that the document representing the marriage certificate contained incorrect information that would have been provided by the father, notwithstanding the fact that she signed it.
30 I reject that assertion given the very specific allegation as to her status at the
time of the marriage and indeed the nomination of the date. Her reluctance even on that point sadly underscores her failure to accept responsibility for a position that she had adopted, irrespective of its objective merits. Between 1994 and 2002 there was significant DCP involvement with the mother and issues concerned her parenting of Laurie and Ronnie Hoffman. The allegations focused on physical and emotional abuse of the children.
31 As a consequence of Ms Hoffman's relationship with Jonathan K, Davis
Hoffman was born, although it would appear that he was born, in fact, after the relationship between Mr K and Ms Hoffman had come to an end. As a consequence, Davis's father had no physical contact with him until late 2007.
32 In June 2003 the father, who had previously studied [chemistry] in his home
country, arrived in Australia on a student visa to further his studies. He was residing in [the Eastern states]. The parties met over the internet and in January 2004 the father came to Perth. The parties married in February 2004, after which the father returned to [the Eastern states], with the mother and Davis joining him in March 2004. On 11 March 2004 the mother says that she was raped by the father, after which she returned to Perth.
33 In June 2004 the father travelled to Perth to make contact with the mother. The
father's student visa was cancelled and he was placed in a detention centre where he remained until 14 February 2005. Whilst the father was in detention the child Danton was born on 30 October 2004. Upon leaving the detention centre in February 2005 the parties resumed cohabiting and later that year the father commenced working as a [technician].
34 On or about 1 December 2005 there was a violent incident between the parties
and the parties separated. The following day the mother took out an interim violence restraining order against the father, and initially ceased contact between the father and the children Danton and Davis. Email traffic between the mother and the father immediately following that incident, however, suggested that she did not consider the relationship to be at an end, and I will refer further to the position she adopted at that time later in these reasons.
35 In April 2006 the father commenced proceedings in the Family Court of Western
Australia.
[2010] FCWA 97
36 On 10 July 2006 the child Zachary was born.
37 In March 2007 the father commenced a de facto relationship with Roxanne who
is now his wife, and they commenced to reside in her home. The father also commenced supervised visits at Anglicare [in the northern suburbs] with the children and Davis. Reports were received from Anglicare which were very favourable to the father, as a consequence of which unsupervised daytime contact commenced in late 2007, although by the time the mother had sought to introduce into Davis's life his biological father, and the time that Davis was spending with the father and with his brothers came to an end.
38 In May 2008 the mother travelled to England with Zachary. Danton spent a
significant amount of the time that she was away in the full-time care of the father as a consequence of it being suspected that he had mumps. In June 2008, Zachary presented with some bruising on his body, and the mother alleged this was caused by the father. In September 2008 the mother contacted DCP to report her concerns about the children's safety in the care of the father and his partner, including allegations of physical and potentially sexual abuse. Notwithstanding the mother's allegations, on 9 September 2008 orders were made by consent commencing overnight contact between the boys and their father each alternate weekend.
39 Following such contact in September, contact was made with DCP regarding
statements made by Danton, that he may have been physically assaulted by his half brother, Laurie, and may potentially have been sexually abused. As a consequence of each of the parties filing Form 4 applications with the court, DCP provided a report to the court following its investigations. The department's investigations do not substantiate harm in relation to the boys at their father’s hand, and recommended continuing unsupervised time for the father and suggested that the children attend a protective behaviours program.
40 On 21 November 2008 orders were made giving the father contact with the
children two out of three weekends from 9 am Saturday to 4 pm Sunday. Each of the parties was restrained by injunction from physically disciplining the children, and the mother, without admission, was ordered to strictly supervise the children and not to leave them alone in the presence of Laurie Hoffman.
41 The mother was also ordered to enrol the children as soon as practical in a
protective behaviours course nominated by the DCP or the Independent Children's Lawyer. She was further ordered to undertake all reasonable requests by DCP and attend all appointments in relation to any parent support program to which she was referred by the Department.
42 On 25 January 2009 the husband and Roxanne were married. In September
2009, the DCP conducted an investigation of relationship concerns raised by the mother of sexual abuse of Danton whilst in the father's care by another child, [Steven], cared for by the father's wife Roxanne. Those allegations were not substantiated and the Department expressed concern at the allegations being malicious in nature. Following those allegations the father ceased spending time with the children because of the concerns as a result of the continued allegations by the mother of abuse.
[2010] FCWA 97
43 The allegations also closely coincided with the tragic death of one of Roxanne's children, a fact I do not find to be coincidental.
44 After the release of Mr Stephen Cohen's report in February 2010 the father's
time with the children resumed for 2 out of 3 weekends from 8.30 am Saturday to 4
pm Sunday.
The Law
45 In deciding whether to make any particular order relating to the parenting of
children the court must regard the best interests of the child as the paramount
consideration (Family Law Act (1975) s 60CA) (“the Act”).46 In determining what is in a child's best interests the court must have regard to
various matters prescribed in s 60CC(2) of the Act. Those matters are comprehensive and whilst they may not all be relevant in each case, there are two primary considerations that are relevant in each and every case, namely:
(a) the benefit of the children having a meaningful relationship with both of their parents; and (b) the need to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
47 It is these two primary considerations that are of particular relevance in these
proceedings.
48 Subsection 60CC(3) provides a list of additional considerations the court must
consider. As I have mentioned, not all of these will be relevant and to some extent,
they overlap. In the circumstances of this case those of particular relevance are:(i) the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
(ii) the capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
(iii) the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children's parents;
(iv) any family violence involving the children or a member of the children's family;
49 Further, although in this matter a peripheral consideration, I must have regard to
any views expressed by the children, and any factors such as the child's maturity or
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level of understanding that I think are relevant to the weight that should be given to an
expressed wish by the child.50 In this case I must also determine whether or not it is appropriate for an order to
be made for one of the children's parents to have sole parental responsibility, or whether there should be an order that the parents have joint and equal parental responsibility.
51 In determining the question of parental responsibility the court must deal with
this on the basis that there is a presumption that it is in the best interests of the child for the child’s parents to have equally shared parental responsibility. However, that presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parent of the child has engaged in abuse of the child or another child, who at the time was a member of the parent's family or that other person's family, or family violence.
52 The presumption may be rebutted by evidence that satisfies the court that it
would not be in the best interests of the child for the child’s parents to have equally
shared parental responsibility.53 In each case the determination as to the consideration of where the children shall
reside and how much time they spend with the other parent, and who shall have parental responsibility is subject to the overarching principle that the orders must be made having regard to the best interests of the children as the paramount consideration.
54 In its interpretation the various relevant sections of the Act in the Family Court
of Western Australia and other courts exercising jurisdiction under the Act and, in particular, the Full Court of the Family Court, have determined the benefit to the child of having a meaningful relationship with his or her parents. The consideration is to be a prospective one, in other words, the court must look at the future benefit to the child of that relationship being maintained.
55 Similarly the need to protect a child from abuse and neglect, physical or psychological harm is obviously a prospective consideration.
56 The additional considerations prescribed in s 60CC(3) of the Act are more
retrospective in that they invite the court to look at conduct that has occurred in the past in support of the determination the court must make having regard to the additional considerations. That of course is not true in all cases, however, in this case, in particular the history of the matter and the history of the mother's involvement with her other children is significant in assisting the court to make a determination as to what is in the best interests of these children prospectively.
57 In applying these principles I turn first to consider the allegations of violence
that are extant between the parties. Essentially there are two allegations that were ventilated during the course of the proceedings, firstly, the allegation that at or shortly before the time of separation between the parties in March 2003 the mother was raped by the father, and secondly, the incident at or about the time of the parties' separation on 1 December 2005.
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58 As the allegation of rape the mother says the father had non-consensual sexual
intercourse with her, and the father asserts that it was consensual. It appears that the relevant act took place at least two days prior to the separation. The mother says as a result of the incident, she approached Centrelink for assistance and was given assistance.
59 The fact that the mother made an allegation to Centrelink in support of financial
assistance does not necessarily validate the allegation. I formed the view of the mother during the course of the proceedings that she was very Centrelink savvy in terms of what was needed to be put to Centrelink to maximise the benefit available to her and certainly she would have been aware, in my finding, that had she not been able to make an allegation of significance to Centrelink she would have not have obtained financial support to enable her to return to Western Australia.
60 There is a clear dispute of fact between the parties over this issue and, as I
remarked earlier in these reasons, where there is a conflict of evidence between the father and the mother I prefer the evidence of the father. I am not satisfied, on balance, that the assertion of non-consensual sexual intercourse is established against the father. But in any event, given the events that have now overtaken that allegation probably little now turns upon who is right and who is not in terms of how it impacts upon the future arrangements for the children.
61 Certainly, no similar complaint or other complaint is made in terms of the father’s conduct by any other person.
62 As to the incident that occurred at or about the time of the parties' separation in
2005 there is a dispute as to the degree of what occurred rather than the incident itself. Of that incident, which is noted by the DCP as having occurred on 1 October 2005, although clearly the same incident, the DCP note in summary as follows:
“DV between [Mrs H] and [Mr G] – [He] advised that the house is always filthy, the children are never fed or bathed. The police advise that the home is unclean with food, clothing, nappies and mess on the floor. The children were highly distressed throughout the visit and were ignored by [the mother]. The three-year old [(Davis)] pushed away with cigarette hand the one-year old [(Danton)] in [the mother's] arms during the altercation. Later (9.20 pm) the children to be up.
[Mr G] issued with a 24-hour police order. Family friend advised of ongoing domestic violence, deviance escalating to physical pushing and shoving. [Mrs H] allege (sic) [Mr G] sexually assaulted her in [the Eastern states] and she returned to Perth and that [Mr G] is addicted to prescription drugs and he self medicated for depression (though not diagnosed). [Mr G] held in detention for 8 months for immigration status. [Mr G] on spousal visa. [Mrs H] reports that [Mr G] spends little time at home and complained when he did not have his dinner cooked when he came home. [Mrs H] obtained VRO.”
63 The allegations about the father being addicted to prescription drugs and self
medicating for depression was not pursued in any way, shape or form during the
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course of this trial, notwithstanding its obvious relevance. In her evidence the mother denied the police assessment of the state of the premises, however, in her cross- examination by Ms Hossen the mother appeared, albeit reluctantly, to acknowledge that there may be some merit in it although she considered this to be a normal state with young children. It is of course a matter of degree, however, there is little doubt that an argument ensued between the parties over the state of the house. It is common ground that during the course of the argument the mother threw a cooking utensil at the father. The father says it was an oven pan, the mother says that it was a foil cooking tray and therefore had no weight or substance and could not have caused any injury or reasonable apprehension of injury to the father.
64 In any event, the father responded by assaulting the mother. In her chronology
where the mother refers to this event as having occurred in “January to March 2006” (a date after the parties separated) she alleges “domestic violence by Mr Garabaldi (police called) resulting in perforated ear drum and soft tissue damage VRO”. She would have me find that the violence was significant and resulted in the injuries that she asserts in her chronology. There is no evidence that supports the existence of those injuries.
65 The father's version of the events was that the mother had assaulted him and that
he retaliated by hitting back on one occasion and that that was the only act of violence and that after he had hit her he waited for the police to attend. He denies the allegations variously made by the mother that she was holding one of the children at the time.
66 Following the police attendance it is common ground between the parties that
the police drove the father to the train station, having issued him with a 24-hour order. From my own observation I will draw the conclusion that if in fact the assertions made by the mother as to the degree of the assault upon her by the father and the injuries that she said she sustained had been sustained by her, I doubt very much that the police would have simply driven the father to the train station. It would have been more likely that he would have been taken into custody.
67 On either version of events the behaviour of each of the parties was unacceptable
and escalated. To his credit the father at least acknowledged that his reaction was inappropriate, and whilst violence between the parties is at all times unacceptable equally the violence by the mother toward him was unacceptable. However, I accept, having regard to the physical presentation of the parties, that the violence perpetuated by the father against the mother was likely to have a greater impact. The effect upon the mother, however, of the violence and the position she adopts with respect to that violence now is somewhat at odds with the content of the various emails that were tendered during the course of the proceedings.
68 Whilst I accept that there was clearly an altercation between the parties, and I
accept that the mother wished to overcome that disharmony, the representations made by her as to the nature of the relationship between the father and the mother are inconsistent with the level and degree of violence that she asserts occurred. Overall I am drawn to accepting the father's version of events. I accept that it is unlikely that there will be a recurrence of violence by the father, either towards the mother or any other person. His presentation in court and to those who gave evidence for the
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Independent Children's' Lawyer was not consistent with a pattern of ongoing violence that is likely to impact upon the welfare of the children.
69 The relationship, however, between the parties is and will remain toxic.
However, I accept on behalf of the father at least that he simply wishes to get on with his life and secure what is in the best interests of the children.
70 The consideration of the desirability of the children having a future meaningful
relationship with each of the parties and how that is to be facilitated requires a consideration of how the parties have demonstrated their attitude to the children and to the responsibility of parenthood in the past.
71 The history of the relationship between the father and each of the children is
unusual, in that his ability, in each case, to commence a relationship with the children
has been specifically compromised, and in my finding, deliberately so, by the mother.72 At the time she was pregnant with Danton and following the father coming to
Perth following their separation in [the Eastern states], the mother contacted the Department of Immigration and Multicultural Affairs (“DIMA”), and advised them of the withdrawal of her spousal support and as to where the father was living.
73 In my finding she did so with the specific and calculated intention of having the
father placed in detention. The father remained in a detention centre until February 2005. Danton was of course born during the time that he was in the detention centre. During the time the father was in the detention centre, the mother visited him very rarely, and as he remarked in his evidence, he "couldn't force her to visit," which resulted in him not seeing her for some four to five months, and after Danton was born he had very limited contact with him.
74 The father was released from detention after the mother again telephoned or
otherwise made contact with DIMA advising them that the parties were resuming their relationship. The mother subsequently became pregnant with Zachary and the parties separated prior to his birth. Following the parties' separation and the circumstance to which I've referred above, the husband saw a psychiatrist for assistance and as result of his concern about his reaction to the mother. He says that basically and ultimately the advice he received was simply to stay out of the relationship, which he did.
75 Following the parties' separation it appears there may have been some ongoing
interaction to which I've referred briefly about between them for a short period of time. However, that came to an end. The evidence about the duration and extent of the ongoing relationship between them was equivocal, although I accept that the mother was certainly motivated, it would seem, to resume the relationship. However difficulties certainly became apparent very early in the post separation period in terms of the father's relationship with the children.
76 There has been little communication between the parties in terms of what was
happening with the children, and indeed in April 2006 the mother sought to have the Violence Restraining Order she had obtained against the father extended to include the children, although no reason was offered by her for so doing and her actions in that
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regard were in stark contrast with the position that she had represented to the father in
the emails to which I've referred.77 Such was the communication between the parties that it was the husband's case
that he only learnt from Danton as to the school that he had attended and that that had not been confirmed until the evidence in these proceedings. The father did not indicate to the mother post separation where he was working or anything about his employment as he was concerned that she would destabilise any employment opportunity which might result in his deportation. The evidence was clear that the mother had contacted employers or would-be employers in the past.
78 Following the commencement between the relationship between the father and
his now wife, the mother made allegations that Mrs Garabaldi had taught the children how to touch themselves in the bath and accused the child, Steven, of touching the children inappropriately. Further, she made allegations that the children had been physically and inappropriately chastised and otherwise assaulted whilst with the father.
79 Whilst the mother alleged that the father had hit the children. The subsequent
investigation by the DCP revealed that the children alleged that it was in fact the case that their mother hit them. The mother has made numerous complaints to DCP about the father which resulted in the DCP visiting his home or otherwise communicating with him in relation to the complaints made by the mother. The mother further alleged that it was necessary for the time the father spent with the children to be supervised as the father was a flight risk.
80 The mother maintained this proposition throughout the trial before me until such
time as the father produced evidence of his permanent resident status which he did on the third day of the trial. This was despite the father having clearly asserted his permanent resident status, the fact that he was married to an Australian citizen and that there had been no evidence whatsoever to support any assertion that the father was a flight risk. Indeed the mother had taken active steps to have him deported.
81 Following the parties' separation there were significant concerns about the
arrangements made for the care of the children with the mother. The mother was involved in the Army Reserves and there were concerns about who would be looking after the children whilst the mother was attending parades or weekends away. It appeared that this responsibility was left to her son Ronnie. In particular, when the mother wished to travel overseas in May 2008 it was proposed that she take Zachary and Danton remain with Ronnie and his then fiancé.
82 It transpired that Ronnie's fiancé was pregnant and there may have been a risk
that Danton had the mumps. In those circumstances Danton should not have been in contact with Ronnie's pregnant fiancé, and ultimately Danton came to reside during that period with the father whilst Davis continued to reside with Ronnie and his fiancé.
83 At the time that Zachary was due to be born, it was clear from the
cross-examination of the father by the mother that the mother wanted the father out of
the country.
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84 The father says that he became aware that Zachary had been born only as a result
of advice that he received from the Child Support Agency. He did not see Zachary until eight months after his birth. In a statement made in the course of her cross-examination of the father, the mother claimed that she had given the father notice of Zachary's impending birth, although her position ultimately was one where she said that she had left a message with the receptionist at his lawyer's.
85 Since Zachary has been born he's carried a different surname to Danton.
86 Danton's surname is Garabaldi and Zachary's is Hoffman. The mother could see
no issue with the children having different surnames, despite the fact that they were born of the same parents. She thought it was appropriate given that at the time that Zachary was born the parties were not together, although that rationale does not bear scrutiny when one reflects upon the fact that at the time Danton was born the father was in a detention centre and the mother was actively seeking his deportation.
87 The mother has not been supportive of the children spending time with the
father, nor has she been supportive of them having a relationship with him. She has sought at many levels to actively distance herself from a relationship with the father, including approaching the Child Support Agency to request that they cease an assessment of child support, as payable by the father for the children.
88 Originally, contact was supervised through Anglicare. Anglicare Case Manager,
Ms N, prepared two reports to which I've referred earlier in these reasons. At the beginning of her involvement with Anglicare, the mother alleged at intake that "the only reason Mr Garabaldi is seeking custody of his children is to prevent deportation." Overall the reports, however, are extremely positive about the relationship that has developed, notwithstanding its beginnings, between the father and the two boys. Ms N reported in July of 2007:
“[Mr Garabaldi] has established a bond with all the children. They give him lots of eye contact and often call out to him to watch them play. Throughout the visits the children call [Mr Garabaldi] "dad" or "daddy" and at times compete for his attention and undivided focus.”
89 The reference to the children in this passage also includes Davis who was
welcome to accompany Danton and Zachary at the time they spent with their father. This relationship, which had developed between the father and Davis was subsequently undermined by the mother.
90 Anglicare have reported in the second report of Ms N of September 2007 that on
4 August 2007 the mother advised staff in Anglicare that, "Davis's biological father is coming from [the country] today or tomorrow." On 1 September, Davis advised the support worker “I'm not coming, [Mr Garabaldi's] not their dad. [Jonathan] is our dad”. This statement was made in front of the mother who quickly, according to Anglicare, corrected Davis saying “No, [Mr Garabaldi's] not your dad”. However, and appropriately in response, the support worker suggested to Davis, “You can come and play anyway”.
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91 Anglicare report that on 15 September 2007 Ms Hoffman commented to the
support worker that “[Davis] was going for a hair cut because he was seeing his
biological father tomorrow”.92 It would seem that Davis is now left in somewhat of a void as it's clear that the
mother has sought to actively alienate him from the father in these proceedings. I have absolutely no confidence in the mother's assertion as to the nature of the relationship if any between Davis and his biological father. It is not without significance that in the early days of contact between the boys and their father, that Davis was often encouraging of his brothers to accompany him.
93 Anglicare's report of the father's interaction with the children would be best
described as glowing from the very early days and continuing. Early reports of free flowing and spontaneous conversation with a provision of age appropriate toys that are also of an educational nature, of appropriate interaction and play and the appropriate and enthusiastic sharing of activities.
94 As to bonding and attachment, Ms N reports:
“[Mr Garabaldi] has established a bond with all the children. They give him lots of eye contact and often call out to him to watch them play etc. Throughout the visit the children call [Mr] Garabaldi] dad or daddy and at times compete for his attention and undivided focus. At the visit on 16 June [Mr Garabaldi] lay on the ground and the children climb (sic) over and on him with lots of kisses and cuddles being exchanged.”
95 Regrettably, the interaction between Anglicare and the mother has not been
positive. In particular on 14 April 2007, the mother stated that she did not want Mr Garabaldi to bring any toys to the visit as he was there to play with the children and not spoil them. Ms N reports:
“Staff informed [Ms Hoffman] that they supported [Mr Garabaldi] bringing his own resources. There had been numerous discussions with [Ms Hoffman] in relation to the differences between the same toys brought each week by [Mr Garabaldi] and gifts.”
96 On 21 April 2007 it is reported that Davis presented with a cigarette burn on his
stomach, stating that Ronnie did it with a cigarette lighter. Upon speaking with
Ms Hoffman about the presentation, Ms Nreports that:“She became hostile and defensive and advised that she was ‘not in the room at the time …what am I supposed to do? Ring DCP? Davis is attention seeking … he did the same thing at day care’.”
97 Upon being advised that the staff were concerned that Davis had said that it still
hurt, the mother replied dismissively “it shouldn't be, he's been to the doctor's, he has cream and it was over a week ago”. Ms N also reports that on the same day the mother accused three staff members of fawning over Mr Garabaldi and later changed her statement to “fawning over the children and therefore helping [Mr Garabaldi] with the children”.
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98 Upon being challenged about the basis of her statements as to how she could be
aware of this unless she was staying in the vicinity and watching the visit, the mother quickly changed her position. It was an issue for Anglicare that the mother would delay the commencement of time with the father and take extra time leaving the centre without the children. It was an issue that she would remain outside the centre, and when challenged about this the mother replied that Mr Garabaldi was a flight risk.
99 Anglicare reported on 2 June 2007 when the children were returned to
Ms Hoffman Davis excitedly told Ms Hoffman about the car that Mr Garabaldi had brought with the boys to play as part of his resources. Ms Hoffman responded with "what car?" The older boys glanced over at her and then at the staff. Ms Hoffman became hostile adding "look at me, no-one else. What car?" This was followed by "one, two, three" and a very stern, loud, angry voice followed by "I'm not in the mood, Davis".
100 On 9 June 2007 at the end of the visit, it is reported the mother asked Davis
“what took you so long to come out” and also, "so that's why you wanted to come", referring to the toy car he said he'd been playing with. It is reported that “staff noted that [Ms Hoffman] yelled at the boys to hurry up and get in the car, then slammed the doors”.
101 On 14 June 2007, Ms Hoffman had a telephone conversation with the coordinator of the service in which she alleged:
• that Mr Garabaldi physically abused her when she was three months pregnant; • that Mr Garabaldi had punched her three times in quick succession when she had Danton in her arms causing her to hit her head on a nearby wall three times. The child was also hurt in the process. This incident was witnessed by a friend of Ms Hoffman's; • that Mr Garabaldi raped her in Brisbane; • that Mr Garabaldi threatened a 17 year old who lived next door with a shovel and chased him down the street; • that Mr Garabaldi abused her 19 year old son Ronnie when he was 16; • the two older children witnessed many episodes of verbal and emotional abuse; • that one of the children was very ill and Mr Garabaldi refused to get out of bed and help in seeking medical assistance for the child; • that she is an incest survivor. 102 The report goes on to record that Ms Hoffman has alleged there were two
current VROs against Mr Garabaldi, but despite requests the service copies of neither
of the orders were produced.103 Notwithstanding the mother's presentation to Anglicare, I find that Anglicare
attempted to adopt a very balanced position between the parties and was certainly not dismissive of the mother's concerns. They made recommendations that were respectful of the mother's concerns including, for example, a recommendation that Mr Garabaldi attend an anger management course such as “Changing Trax” and that
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each of the parties complete the “Mums and Dads Forever” program and that
Ms Hoffman attend appropriate counselling.104 A later report from Anglicare in March 2009 prepared by Ms S was similarly positive about the children's relationship with the father.
105 The report commences by reference to the time spent between the father and the
children in October 2008. Some incidents reported through her notes by Ms Saba are
as follows:“Weekend 22-23/11/08
On arrival [Mrs Hoffman] pointed out to the support worker that [Danton] had a bruise to his left eye as well as to the middle upper-back area. She said she didn't know where he got the back bruise from, but the bruise on his eye happened when he played with his older brother. [Danton] told his father in front of the support worker that the bruises happened when he played with his older brother, [Ronald]. [Ms Hoffman] mentioned to the support worker that she wasn't happy with DCP's decision and that she would get her own lawyer.”
106 On 24 November 2008 it was recorded by Ms S:
“I rang [Ms Hoffman] to confirm the handover for next weekend. During this conversation [Ms Hoffman] told me that [Danton] said to her that he will miss her when he goes with dad camel riding. [Ms Hoffman] was afraid that [Mr Garabaldi] intended to abduct the children. She said she had contacted DCP so that they interviewed [Danton] about this incident.”
107 On the weekend of 6 and 7 December 2008 Mr and Mrs Garabaldi asked the
support worker if the boil on Danton' forehead had been mentioned at handover by the
mother.108 It is reported:
“As far as the support worker knew nobody had been made aware of it,
and [Danton] was wearing a cap at handover.”
109 A request was made for the support worker to check the children for any injuries
before the father left the centre with the children. On his return Danton had a cut under his chin which was explained by the father as an accident on the barbecue. The mother questioned Danton about it, however, he would not answer where he got the scratch from.
110 On the weekend of 13 and 14 December 2008 the mother is reported as having
told the social worker that Danton did not want to go and see his father, although after a couple of minutes Danton said to his mother “I want to go”. It is reported that thereafter the mother persistently requested hugs and kisses from the boys before leaving. On that occasion it is reported that Danton had a new “swelled up bruise next to his right eye, and made a sad face when the support worker asked him what happened”.
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111 On the weekend of 3 and 4 January 2009, Danton presented with a bruised
swollen nose, although on arrival that weekend Danton was reported as having said “I Davis’t want to go”. The support worker suggested that Danton say “hello” to his father and that if he didn't wish to go he could return to his mother. In a conversation with his father Danton told him that his mother had promised to take the boys to the beach and he wanted to go with his mother. Upon returning the children to the mother, she denied to the support worker that she said she was going to the beach with them, but perhaps they would go fishing.
112 On the weekend of 10 and 11 January 2009 the boys presented with ringworm
and again presented with new ringworms over their bodies on the weekend of 14 and
15 February 2009.113 On 20 May 2009 Ms S undertook a review with Danton which she reports as
follows:
“He chooses a card which said about his father ‘determined and bossy’. [Danton] said his father is not bossy, he let him do whatever he wants and they have fun together. When I asked why he does not want to see him he said ‘He is evil’. I asked him to explain to me the word and he said he heard it from mum. For [Roxanne] he chose a card “Safe, secure, settled”. When talking to him he told me that she smacks him all the time. The information that [Danton] gave me through the cards was not congruent with the verbal explanations and I felt the answer might have been prepared beforehand. I asked [Danton] to wait in the reception and talk with [Mrs H], who appeared flustered when I told her that I expect [Danton] this weekend to see his father. When we went to the reception [Danton] appeared happy, drawing colourful pictures with staff members. [Mr H] commented how withdrawn he looked.”
114 The observations made by Ms S at that time and consistent throughout Ms S’s
report is the expression of a positive relationship that exists between Mrs Roxanne Garabaldi and the children, although this is not consistent with the representations made by the mother, who has asserted that they dislike Roxanne intensely and have made comments to Roxanne that “Mummy hates you”. It is appropriate to note, notwithstanding the ongoing allegations made by the mother that the father was a flight risk, at no time was an application ever made or orders sought for an undertaking that would have the effect of restraining the father from removing the children from either the State of Western Australia or the Commonwealth of Australia.
115 I would note also that at the time of the commencement of the proceedings the
mother was represented by a senior legal practitioner who practices almost exclusively
in family law and frequently as an Independent Children's Lawyer.116 On 29 September 2009 Ms J, a senior social worker with the DCP, wrote to Ms Ruth Reader, the Independent Children's Lawyer in the following terms:
“I am writing to you to advise you of the present involvement of the Department for Child Protection in relation to the above children [Danton and Zachary]. The Department conducted an investigation in relation to
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the concerns raised regarding sexual abuse of [Danton] whilst at his father's home. The Department has investigated these concerns and not substantiated them. The Department believes these allegations reported by [Mrs Hoffman] are malicious in nature. [Mrs Hoffman's] reporting of these concerns was inconsistent. The Department is concerned that [Mrs Hoffman] is not prioritising the needs of the children and attempting to undermine their relationship with their father. The Department is also concerned that [Mrs Hoffman] may be corrupting these children by discussing such matters with them. [Mrs Hoffman] has on two occasions refused to allow the department to interview the children. The Department did not interview the children for the current investigation as it was felt that it was not in their best interests as it was believed the allegations are malicious, and the children have been interviewed on two occasions previously in relation to similar concerns and have not disclosed. In fact, the children have always spoken positively about contact with their father and [Mrs Garabaldi]. The Department is concerned that similar allegations have been made and several investigations have been conducted by the Department, and each time the allegations have been made by [Mrs Hoffman] and no concerns have been reported by the children or an independent person.
The Department is concerned about [Mrs Hoffman's] lack of engagement with services and lack of acknowledgment of any need for services in relation to her parenting. The Department believes that the current concerns were malicious in nature and that other allegations made by [Mrs Hoffman] may also have been malicious. Subsequently the Department is concerned the children are being corrupted by being exposed to inappropriate information of a sexual nature. Although these concerns remain, due to [Mrs Hoffman's] lack of engagement the Department and other services of the Department will be closing our involvement.”
117 As I touched upon earlier in these reasons, the mother has a significant history
with DCP. Ms J prepared a chronology of involvement which was relied upon by
counsel of the Independent Children's Lawyer in the following terms:“1986 – [Mrs Hoffman] marries [Ronald Hoffman]. [Laurie] is born 1988.
[Ronnie Hoffman] is born. 1989, [Mrs Hoffman] and Ronald
immigrate to Australia. 1990 Mrs Hoffmanand Ronald separate.
118 In the chronology there is a note that volume 1 of the file is missing. Then:
1991 – [Mrs H] returns to England due to death of ex husband. [Ronald] asks [Ms M] to have leave due to concerns regarding [Mrs Hoffman's] anxiety attacks and lack of closeness to the children.
March 1992 – [Laurie and Ronnie] placed in temporary accommodation due to [Mrs Hoffman's] hospitalisation and inability to care given her emotional state.
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1992 - sexual abuse allegations in relation to [Mrs Hoffman] regarding paternal grandfather investigated and unsubstantiated.
September 1992 – [Laurie] lives with maternal grandparents.
May 1995 – [Laurie] returns to Australia to live with [Mrs Hoffman] after residing with maternal grandparents for two and a half years. Paternal grandparents separated and he was primarily looked after by paternal grandmother.
November 1995 - school psychologist reports concerned that [Ronnie] is impacted by [Laurie's] behaviour, eg, school work declining, increasing isolation from other children, also concerns about the children being left at home unattended.
March 1996 – SW at [the] clinic reports concerns reported to her by neighbour. [Mrs Hoffman] reported [Laurie] shouting and pushing children away, makes children stand on one leg with their hands on their head and face the wall as discipline, leaves the children unsupervised for periods of time while [Mrs Hoffman] is at [training]. At night the children are made to sleep on wire beds after failing to bring in their own mattresses that were airing. Previous bruising on the children's arms where [Mrs Hoffman] has used a spatula. [Laurie] had a black eye on his birthday. Emotional and physical abuse investigated, outcome, risk acceptable.
February 1997 – [Laurie] breaks into the school with another boy and smears jam all over the windows. Concerns as to whether [Laurie] is receiving ADHD medication. School reports difficulty in contacting [Mr Hoffman]. Reports that [Mrs Hoffman] punishes boys by not providing equipment for school. [Laurie] sees [Dr H], psychiatrist, who described [Laurie] as a highly disturbed child. [PCH Family Preservation Program] involved with the family since 2/01/97.
May 1997 - school reports [Laurie] not at school for the past two weeks and [Ronnie] transferred to school in [town]. [Ronnie] in the care of [Mrs Hoffman's] friend in [town].
July 1997 – [Mr N], psychologist, ceases sessions with [Mrs Hoffman] due to lack of attendance. Report indicates that [Mrs Hoffman]displays negative attitude towards the children, unrealistic expectations and spoke to them in a harsh manner.
July 1997 - education report regarding [Laurie], continues to be socially inappropriate, eg, disliked, feared by others, verbally and physically abusive to other children, deliberately and consistently disrupts, frequently and openly masturbates, sometimes to the point of apparent climax, probes in the region of the anus and repeatedly
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sniffs his fingers, frequently sucks thumb and plays with his
genitals.2 July 1997 – [Laurie] receiving treatment at the PHM and [the clinic]. [Laurie] reported to have burn on his arm caused by steam. [Mrs Hoffman] did not keep her appointments in getting his dressing changed. [Mrs Hoffman] reported to be negative about [Laurie].
11 July 1997 - woman neighbour falls to death from seventh floor, [Mrs Hoffman] and [Laurie] find her.
2 October 1997 - the neighbour reports that she's had [Laurie] for two nights and attempted to return him home but there was no one there. [Mrs Hoffman] was to come home to collect [Laurie] but didn't turn up.
26 November 1997 - call received from PHM, [Laurie] to have an assessment regarding medical reasons for his behaviour. [Laurie] had MRT and CT scan, chromosomal testing and developmental assessment. [Mrs Hoffman] stated she does not want [Laurie] returned to her care and wants long-term placement. [Ronnie] reportedly coming back to live with [Mrs Hoffman] at the end of the school term.
16 December 1997 – [Ronnie] living with [Mrs Hoffman]permanently.
January 1997 – [Mrs Hoffman] contacts crisis care unit in hospital due to foot injury. [Laurie] and [Ronnie] placed with friend over night. [Mrs Hoffman] had put her foot through glass during an altercation with a neighbour. [Laurie] to attend [special unit] on weekends.
7 January 1998 – [Laurie] placed in temporary foster placement due to [Mrs Hoffman] not coping.
27 January 1998 - reports that [Laurie] stated mum threw knives at him. [Laurie] stated he does not want to go home to mum.
23 September 1998 - school contact advising [Laurie's] behaviours have regressed since he has returned to his mother's care. The school believe [Laurie] is not consistently receiving his medication. [Mrs Hoffman] presented to the school advising that she was removing the children and attempting to enrol them at another school. [Mrs Hoffman] presenting as angry and unreasonable. [The clinic] CAMHS advise of concerns regarding [Laurie] coming to school with masses of lollies in his pocket. Concerned he is not getting fed. [Mrs Hoffman] observed to threaten [Laurie] with going to a home if he did not behave himself.
5 Jan 1999 - case was closed. [Laurie] home no further role for
Department.
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August 2001 – file reopened. Contact from school advising that [Mrs Hoffman absconds from the family home for lengthy periods of time, leaving [Ronnie] and [Laurie] unsupervised. [Mrs Hoffman] went to [the country] for three weeks, leaving the boys unsupervised. Boys reported to smell of body odour, clothes visibly dirty, [Laurie] failing to take medication for ADD, boys beginning to offend, eg graffiti and damaging property, with police involvement due to truancy.
6 December 2001 – [Mrs Hoffman] stating she does not wish to continue to care for [Laurie] and wants alternative care arrangements as she is not able to manage [Laurie's] behaviours.
28 December 2001 - conflict at home. [Mrs Hoffman] asked [Laurie] to leave, which he did. [Laurie] lived on the streets for a few days and was picked up by police possessing alcohol. [Laurie] was then returned home. [Laurie] reportedly wetting the bed, failed years 8, 9 and 10, refusing to return to school, and reported to possibly have mental health condition. Not seen by department as appropriate to accept case management of [Laurie] due to other services involved.
2002 – [ Mrs Hoffman] meets [Mr Garabaldi] via the Internet.
24 April 2002 – [Laurie] spends three months at [a suburban] refuge. [Mrs Hoffman] refusing to have him home. [Laurie] spent a night at Drug ARM and was stoned when taken there. [Laurie] exited from the refuge due after being given two warnings not complied with. [Laurie] accommodated in a hostel in [the suburbs].
4 July 2002 - case closed acknowledging that [Laurie] may present again with further accommodation issues.
17 September 2002 – worker contacted advising [Laurie] has left home and is stating that his mother is physically violent towards him. [Laurie] later denied this. Accommodation (temporary) secured for [Laurie].”
119 The summary concludes with the report of the incident in December of 2005 to
which I have already referred. Whilst I note that there are some clear misstatements in
terms of the dates in the chronology, the events are clear.120 During the course of the conduct of her case, the mother would take any
opportunity to make a complaint about the father, usually supported by a self-serving statement. Whilst clearly, on the one hand, not promoting the relationship between the children and the father, the mother would criticise the father if indeed he backed away from the children and did not seek contact.
121 For example, following the allegations in September 2009, where he backed
away from contact given the allegations that had been made again of inappropriate behaviour, and also on the occasion when he married his wife, the mother criticised
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him for not having the children that weekend. I have no doubt that the involvement with the mother was a complicating factor that the father felt was not necessary to have visited upon his wedding.
122 I turn now to consider the psychological and physical risk. I find that in the care
of the mother the children are likely to be exposed to circumstances that would place them in risk of physical and psychological harm. The DCP files expand upon the chronology referred to above and are littered with reports of inappropriate parenting undertaken by the mother.
123 The mother's relationship, particularly with the child Laurie, could best be
described as turbulent, and her actions at times inexplicable; for example, returning Laurie to live with her parents in the United Kingdom despite the allegations of the history of abuse that she suffered at her father's hand, then returning Laurie to Australia against his wishes, and it would seem thereafter refusing to accept responsibility for Laurie, and to a lesser extent Ronnie, and leaving them to fare for themselves. A pre-sentence report was prepared for Laurie and dated in October 2008:
“[Mr Hoffman] reported to have alternated his residence between Australia and England throughout most of his childhood, and to have resided with his grandparents in England for some time. He stated that his mother asked him to leave the family home at the age of 14 because she could not “put up with [him]” any longer. [Mr Hoffman] stated that his mother “hates” him because of “what [he] has put her through” but he did not expand on this. He stated however that his mother “would do anything” to help him if he was in trouble. He stated that she intends to apply for custody of his child (her grandchild) as soon as practicable following its birth [Although it appears that that action has not been pursued on behalf of the mother].
[Mr Hoffman] reported to have attended primary school and high school and to have been suspended on numerous occasions but to have excelled academically. He listed several awards that he had won and stated that he was talented in many areas but not “mentally” or “emotionally” or where “general knowledge” was concerned. Despite having made such an assertion, he described himself as being very “street smart” due to having left home at the age of 14. He reported to have resided in various hostels since having left home and to have supported himself by working. He reported to have worked in various positions, including behind a bar and in consumer relations positions. He stated he is currently employed as a cleaner, in a [business].
[Mr Hoffman] reported to have had behavioural problems as a child and stated that he had caused significant injuries to his brother during their childhood, including having broken his jaw. He reported to have reacted to comments made by his brother about him being “slow”. He stated that this incident had led his mother to ask him to leave home however, this incident was not mentioned by his mother who clearly stated that [Mr Hoffman] had never been physically violent towards his brother. She described him as “passive”, as opposed to “aggressive”. This is
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inconsistent with many reports that refer to him as having been impulsive, and verbally and physically abusive towards peers, teachers and staff of various health services. [Mr Hoffman] stated that he often “just snapped” as a child and caused serious damage to others as a result of this. He stated that he has not done so for over two years and indicated that he expects another incident to be due soon.”
124 The unexplained physical presentation of the children to Anglicare and the
mother's defensive posturing upon being questioned about it, not only by Anglicare but during the course of the trial, leaves me with significant concerns about the welfare of the children with the mother and her insight as to the behaviour of those around her.
125 This is in stark contrast to the presentation of the father and Roxanne. The
father has, apart from the incident at separation, presented as appropriately caring and empathetic towards the needs of the children and understanding of their developed mental stages and with an ability to promote their needs and welfare, both physical, emotional and psychological. He is likely to offer a consistency to the children that the mother cannot.
126 In the course of her evidence, the mother stated openly that her sole objection to
the children spending time with the father has been her concern about his residential status. I utterly reject that suggestion. Her lack of insight, the effect of decisions she has made in terms of the welfare of the children, including Davis, Laurie and Ronnie, is of significant concern.
127 On the issue of the children's different surnames, her answer was that when
Danton was born, she "still loved him", referring to the father, notwithstanding the fact that she had brought about his detention and it was within her power to have him released, a power she chose not to exercise. Davis, who has turned eight since the trial commenced, is now in his fifth school and is still in Year 1. Danton commenced kindergarten in 2009, and despite requests from the father to have access to information regarding the school, nothing was done about it.
128 The mother has sought actively to undermine employment opportunities for the
husband, and it would seem for the purposes of again undermining his opportunity of obtaining permanent residency. The mother's posture with DCP has been reactive and there is no evidence of any commitment to change, despite her oft-repeated statements that she has received extensive counselling and interaction with support for abused individuals. It was clear to me in the course of her evidence the mother would at any turn play the system to obtain every possible form of victim support. However, she has not evolved as a result of any of the support that she says that she has been given.
129 In answer to the criticisms that the mother had failed to engage in programs
required or recommended by DCP, she disputes that assertion, although despite the recommendation for her to participate in a protective behaviours course being made in the report dated 16 March 2009 in response to a Form 4, the certificate attesting to her attendance was dated 29 June 2010, and the email that she tendered in support of her position was equivocal to say the least.
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130 I have no doubt that the mother undertook the course purely for the purpose of
presenting as having completed it for the purpose of these proceedings, and that such a step is typical of her reactive behaviours. In a Signs of Safety assessment and planning outline prepared by DCP in 2009, the current worries were identified by DCP as being:
“(1) DCP is worried that [Zachary, Davis and Danton] will be physically hurt by [Ms Hoffman, Laurie or Ronnie Hoffman], or they will not be supervised appropriately and will also be physically hurt;
(2) DCP is worried that [Ms Hoffman] is not encouraging the children to have contact with their father, and this will impact upon the children's relationship with their father and their identify and general development.”
131 These conclusions were drawn against past concerns and past harm experienced
by the children, and whilst I appreciate that some of this is repetitive. I set it out as
follows:“1994 – [Laurie] openly masturbating, verbally and physically abusive to
other children.
1996 -Bruising to [Laurie and Ronnie], children state [Ms Hoffman] hit them with a spatula, concerns of inappropriate disciplining techniques and children being left unsupervised. [Ms Hoffman] has a negative attitude towards [Laurie].
1997 – [Laurie] received a burn to his arm caused by steam and [Mrs Hoffman] did not keep his appointments to get his dressing changed.
1997 – [Mrs Hoffman] requested that [Laurie] be placed in long term care.
1998 Consideration given to taking [Laurie and Ronnie] into foster care.
1998 – [Laurie] placed in temporary foster care as [Mrs Hoffman] not coping with the two children.
2001 - Concerns that [Ronnie and Laurie] were being left alone unsupervised and children present as unclean and police involved due to truancy.
2001 – [Ms Hoffman] stated she didn't wish to care for [Laurie] and would like alternative care arrangements made for him. [Mrs Hoffman] asked [Laurie] to leave and he lived on the streets and was picked up by the police possessing alcohol.
2002 – [Laurie] lived at a refuge for three months. It was reported that [Laurie] left home because his mother was physically violent towards him.
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2005 - domestic violence incident between [Mrs Hoffman and Mr Garabaldi] - verbal incident which escalated to pushing and shoving (no injuries) [my emphasis]. Police advise that the home was unclean with food, nappies and mess on the floor and the children highly distressed and ignored by their mother. [Danton] was in his mother’s arms during altercation. Police also advised that [Mrs Hoffman] nearly burnt a child with a lit cigarette while she was on the phone.
2008 - [Mrs Hoffman] alleged that [Danton] had played with [Zachary’s] bottom and penis and had also grabbed [Davis’s] penis in the bath. [Ms Hoffman] reported that [Danton] said [Roxanne} taught him this. [Mrs Hoffman] advised that she had seen bruising to [Danton and Zachary]. [Mr Garabaldi] had let [Davis] touch him on the penis when he was 18 months old. [Danton] stated that [Mr Garabaldi] hit him with a drumstick to [Dr L] (mum took to doctor two days later). [Roxanne] stated that [Danton] reported [Laurie] had hit him in the head and that [Laurie] kisses his willy, [Mrs Hoffman] had hit her with a wooden spoon and he had kicked her in the cunt. [Danton] reported to [Mr Garabaldi] that [Laurie] touches and kisses his penis and testicles and if he did not do what [Laurie] wanted he would bash him up. [Danton] also said that [Laurie] kisses his mum’s gina. [Laurie] opened [Danton’s] belt and pulled his trousers down and kissed his penis and testicles, he tried to do it to [Davis] to (sic) but [Davis] told him to ‘piss off’.”
132 [I emphasise portions of the above as it is sadly an indictment of the level of
language that is considered to be appropriate to be used by the children, and I note that during one incident, Anglicare reported the response to an accidental spillage was that it was "fucking stupid".]
“2008 - both children [(Danton and Davis)] reported being smacked by
[Mrs Hoffman] by her hand. No further disclosures made.
22/11/2008 - [Danton] turns up to contact with a black eye and a bruise on his back and the children were dirty and hungry. [Mrs Hoffman] advise (sic) that the black eye was caused due to play fighting with his brother and he and [Davis] banged heads she said the bruise to his back would have occurred when he fell out of a trolley. [Danton] reported that his brother [Ronnie] punched him in the eye.”
09/12/2008 – [Danton] attended contact with a hat, hat removed when he went home with father there was a lump over his right eye. [Mrs Hoffman] did not report this to the father or contact supervisor. [Danton] reported several accounts of how this occurred to father.
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[Danton] reported to workers that his mum hits him with her hand and her slipper on the “ass”. [Danton] did not report how he obtained the black eye.
2009 - domestic violence incident between [Mrs Hoffman] and [Ronnie] (verbal altercation – [Ronnie] screaming and shouting at her and calling her foul names) - children were present.”
133 I assume that this is the same incident where the mother called upon the police to remove [Ronnie] from the home:
“2009 - report received from [Ms S] (Anglicare contact centre) 14/12/08 –
[Danton] had new bruise to his eye did not report what happened.
[Danton] had diarrhoea all weekend no clothes sent by mother.
04/01/09 – [Danton] attended contact with a bruised swollen nose and said that it happened at the beach.
11/01/09 – [Danton and Zachary] present with ringworm and [Danton] had allergy. [Mrs Hoffman] advised that she had taken to dr (sic) and they could not do anything about it.
15/02/09 – new ringworms over [Danton’s] body.
22/03/09 – [Zachary] had a cut on his nose and a bruise on his head (said that he had run into mum’s bed). [Zachary] appeared to be unwell and warm, [Mrs Hoffman] said she did not have medicine and did not want the father to give him any.”
134 The complicating factors in this case are identified by DCP as being:
“- 2005 – [Laurie] convicted of sexual penetration of a child over 13 and under 16 years ([Laurie] was 19 years) - received a custodial sentence and was released on parole on 29/10/2007. [Mrs Hoffman] did not visit him in prison. - [Mrs Hoffman] alleged rape by [Mr Garabaldi] but re-established a relationship with him following alleged rape and did not report this to the police. - [Mrs Hoffman] reports being sexually abused as a child. - [Mrs Hoffman] has refused to follow up the Protective Behaviours program for the children and Parent Support which was required by the Family Court Order. - [Mrs Hoffman] inconsistent in reporting of how injuries occurred (said eye was hurt on trampoline, then said occurred when he bashed heads with his brother) and used similar story for different incidents (i.e. bruise on back and bump on head due to falling out of trolley).
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- History of physical abuse of [Laurie and Ronnie]. - Two investigations in relation to physical abuse of children. - Mother undermining contact with father, promising the children they can do (sic) somewhere nice, staying around for twenty minutes after handover. - [Laurie] expressed his disdain for [Danton] and favouritism of
[Davis].- [Mrs Hoffman] has a history of lack of engagement with services.”
135 I digress to add that a similar approach was given during the course of the trial in
terms of inconsistencies that emerged as to the stated cause of injuries reported on the
children.136 There is, in my finding, a clear, present and identifiable risk of the children
suffering physical, emotional and psychological harm and neglect at the hand of their mother. When cross-examined about the matters I've set out above, particularly insofar as Laurie was concerned, the mother response was that it was "10 to 15 years ago, a lot of learning has gone on since then". Clearly, little has been learned by the mother in terms of the identification of her behaviours that pose a risk to the children, and she appears to have no ability to recognise or accept any responsibility for any of her own actions that may have contributed to those circumstances.
137 The only wishes that have been expressed by the children in this case is that in
response to the questioning by Dr L, other than those to which I have already referred. As I mentioned earlier in these reasons, I consider that questioning to have been inappropriate, given Dr L's apparently therapeutic engagement with the mother and the questioning was undertaken in circumstances where the mother, whilst not physically present in the room, it would seem was certainly very much a part of the appointment.
138 In any event, having regard to the age of the children, I am not satisfied that I
could place any weight upon the expression of those wishes, and I have little doubt that the children are well aware of their mother's negativity towards the father. In particular, I refer to remarks made by Zachary, who is quoted as saying, "I hate you, dad, because you hit my mummy when I was in your tummy." Clearly, he could only have obtained such information or a foundation for such a statement from the mother. Similarly, the mother has, to use her words, "not discouraged" the children from referring to the father [by his first name]. In his second report, dated 1 March 2008, Professor L concluded in answer to the questions from the Independent Children's Lawyer that he remained of the view that:
“The children should continue to live with their mother. Even though the children now do demonstrate attachment to their father, their primary attachment remains their mother, and in my view, it is in the children's interests that this be supported.”
139 Professor L's assessment of the mother was that she had a personality trait
disorder. He defined that as meaning that she had traits within her personality out of
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the norm. There were certainly issues of sexual passivity, issues of sexuality and depression that he observed; however, he advised that such traits were not uncommon in people who had been abused. He recommended that the wife undertake psychotherapy through Dr Dulcie Veltman. The mother's position insofar as that recommendation was concerned was “it would be a good idea if Dr L thought so”.
140 Of some significance also is that Professor L also strongly advocated a view that
Davis should be part of the arrangement with the boys, given the position that had been held in his life by the father.
141 Mr C's conclusion in his report advocates a different position to that adopted by Professor L. Significantly, Mr C concludes:
“The mother will not promote the relationship between the children and the father, although albeit doing so superficially and allowing Zachary to go on access. She clearly undermines Danton' relationship with the father, creating doubt in his mind about the safety of having overnight at his father's. Her false allegations against the father are a clear indicating that at least at an unconscious level, she struggles to promote the relationship between the children and the father because of her dysfunctional relationship with her own father.”
142 Further, in terms of his recommendations:
“There is a very strong inclination to recommend that the boys change residence and live with their father. There is a real risk that these boys will grow up believing they have been sexually abused when this is clearly not the case. [Mrs Hoffman], because of her damaged background and her own abuse, appeared to be imparting such beliefs to the children, both in terms of their father and [Mrs Hoffman's] children. This represents a significant risk for the children. Further risk is the mother's lack of insight in regard to this behaviour and her unwillingness according to DCP to do anything about it for herself or the boys.
It may be significant for the children to leave their mother, with whom they are closely aligned. In the short term, these difficulties will present problems for [Mr Garabaldi], but a long-term separation from the mother on a residential basis will be beneficial to the boys because of their right to develop a life in which they do not have false beliefs about sexual abuse. As indicated in the DCP file, it is not only the false beliefs but also the mother's willingness to talk to them and impart the information about that that is of great concern and significant risk to the children. It is recommended that the children have time with their mother. Initially the mother will not cope with the children being taken away from her, and there will need to be a period of independently supervised access. This will be for two purposes: to allow the mother to commence some therapy, which if she does not undertake she would not be allowed to have contact. She needs to deal with her own abuse issues and develop insight as to how they are unconsciously affecting her behaviours that are not in the best interests of the boys. Also, to ensure that her past patterns of behaviour,
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speaking to the children negatively about the father, and the allegations of sexual abuse do not continue to occur until she has successfully completed her therapy and developed some insight into her behaviour. When the reportable counselling indicates that the mother has reached that insight, she may have unsupervised access with the boys; hereafter, handover would be best undertaken by Anglicare or by a school pick-up or drop- off.”
143 I respectfully agree with and adopt the recommendations of Mr C. Whilst I have
great respect for the view expressed in early 2008 by Professor L, the continuing history that has led Mr C to his conclusion supports, in my findings, valid reasons for the recommendation that Mr C now makes, and with which I entirely agree. Accordingly, I propose to make orders that the children reside with their father, and that they have initially supervised time with their mother after a cooling-off period of some three to four weeks.
144 I must also consider the question of parental responsibility. To make an order
for equal shared parental responsibility in this case, in my finding, would be totally unwarranted and would lead to the possibility of further dispute between the parties. There needs to be clear direction for the children, and any requirement that imposes either expressly or implicitly upon the parties any concept of communication would, in my finding, be an utter waste and only cause further aggravation.
145 This is not a case, in my finding, where an order for shared parental
responsibility would have any utility whatsoever, nor would it operate to serve the best interests of the children. It would more likely become a tool to be utilised by the mother which would have the effect of undermining the interests of the children.
146 During the course of the trial, as I've mentioned, it became apparent that the
children had different surnames. This is not, in my finding, in their best interests. Only Danton has the surname Garabaldi. The children will henceforth be residing with their father. It is, in my finding, in the best interests of the children in terms of their sense of identity with each other and their father that they share a common surname, and that surname should be Garabaldi, and I propose to so order.
I certify that the preceding [146] paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Court
Associate
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