Gardner & Vaughan
[2022] FedCFamC1F 470
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gardner & Vaughan [2022] FedCFamC1F 470
File number(s): NCC 2984 of 2020 Judgment of: CLEARY J Date of judgment: 7 July 2022 Catchwords: FAMILY LAW – PARENTING – Where there are competing applications for parenting orders for three children aged 15, 13 and 12 – Where the father moved to the Northern Territory following separation – Where the children lived with the mother for seven years and spent irregular time with the father – Where the two older children were assaulted by the mother’s former partner – Where the mother reacted protectively by terminating the relationship but did not tell the father – Where the eldest child told the father of the assault more than two years later and the father took the two older children to the police -Where the children raised allegations of physical abuse of them by the mother – Where the father returned to [regional New South Wales] and removed the children from the mother’s care – Where interim orders provided for the children to live with the father and spend time with the mother – Where these orders did not operate as intended – Where the father had obligations to his partner and their child in the Northern Territory – Where the children lived with the paternal aunt and paternal grandfather – Where the mother did not contest the making of an Apprehended Violence Order protecting the three children from her – Where the two older children returned to live with the mother – Where the two older children do not wish to see their father – Where the youngest child does not wish to see his mother – Where the youngest child feels safe with the father and likes the household of the father in the Northern Territory – Where the views of the children should be given considerable weight – Where the Court supports a finding that the mother has cared for the children and been protective – Where the Court is confident that the mother’s new partner would be open to facilitating communication, travel and to do whatever it took to help the subject children – Where the mother is no longer under extreme emotional pressure – Ordered that the mother have residence and sole parental responsibility for the two older children – Ordered that the father have residence and sole parental responsibility for the younger child Legislation: Family Law Act 1975 (Cth) ss 64B(2), 60CC(2), 60CC(3) Division: Division 1 First Instance Number of paragraphs: 202 Date of hearing: 23-25 May 2022; 20 June 2022 Place: Newcastle Counsel for the Applicant: Mr Flannigan Solicitor for the Applicant: Grant & Co Solicitors Counsel for the Respondent: Mr Selfridge Solicitor for the Respondent: Hey Family Law Solicitor Advocate for the Independent Children’s Lawyer: Ms Adams Solicitor for the Independent Children’s Lawyer: Adams & Associates ORDERS
NCC 2984 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARDNER
Applicant
AND: MS VAUGHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CLEARY J
DATE OF ORDER:
7 JULY 2022
THE COURT ORDERS THAT:1.That all prior parenting orders made in relation to X born in 2007, Y born in 2008 and Z born in 2010, together known as “the children” are discharged.
Parental Responsibility
2.That the mother shall have sole parental responsibility for X and Y.
3.That the father have sole parental responsibility for Z.
4.Each parent shall keep the other advised of decisions taken about long term issues including but not limited to change of enrolment at school, specialist medical treatment and religious instruction if any.
Residence
5.That X and Y shall live with the mother.
6.That Z shall live with the father.
7.That each parent shall advise the other of any change of permanent address for the children/child in their respective care.
Time and Communication
8.The children shall spend time and communicate with the parent with whom they do not live, by agreement in writing between the parties, in consultation with the children/child in their care.
9.Each parent shall take all necessary steps to ensure that the children are free to communicate with each other by phone, email and electronically at any reasonable time.
10.Each parent shall keep the other advised of any change of phone number, email address and residential address of that parent.
11.That the parents share equally in the travel costs associated with the children, or any of them, spending time with the parent with whom they do not live.
Specific Issues
12.In the event one of the children suffers a medical emergency requiring urgent medical attention/hospitalisation, the parent with whom the child is living or spending time with shall, as soon as practicable in the particular circumstances:
12.1Notify the other parent by phone;
12.2Advise the other parent of the doctor/hospital/medical facility assisting the child and relevant contact details; and
12.3Authorise the treating medical practitioner to provide relevant medical information about the accident/illness of the child and proposed treatment.
13.Each parent shall include the name and contact details of the other parent in any application for enrolment at school.
14.Each parent shall authorise the school which the children/child living with that parent attends to provide all information normally available to parents including invitations to events at school to the parent with whom the children/child is not living with.
15.The father shall provide a copy of these orders to the Principal of the school in the Northern Territory in which Z is enrolled.
Restraint
16.Each parent is restrained from criticising and or making derogatory remarks about the other parent and members of that parent’s household in the presence or hearing of the children or any of them and further shall direct a child to leave the presence of any third party behaving in that way.
Independent Children’s Lawyer (“ICL”)
17.The ICL shall provide a copy of these orders to the principal of B School and the principal of C School.
18.That the ICL, together with the Child Court Expert if available, at a time mutually convenient to each of them and the parents, shall explain these orders to the children and answer any relevant questions which the children or either of them may have.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J
INTRODUCTION
These are competing applications for parenting orders concerning three children, aged at date of trial, X 15 years, Y almost 14 years, and Z 12 years.
The parents lived together for nine years between 2004 and 2013. They then separated, with the children remaining with the mother in regional NSW and the father moving to the Northern Territory (NT).
There was irregular time and communication between the children and the father over the seven years following separation, enough to keep relationships intact.
In April 2018, the mother learned from X that the child had been sexually assaulted by the mother’s then partner, Mr D. The mother acted swiftly to end the relationship with him.
In August 2020, everything changed for both parties and the children. The children asked the father for his help. They raised allegations of physical abuse of them by the mother. The father spoke with the children’s school and Department of Communities and Justice (DCJ) and was concerned by what he was told.
The father travelled from the NT, collected the children from school and took them into his care without reference to the mother.
On 20 August 2020, the father initiated these parenting proceedings, in what was then known as the Family Court of Australia.
Over the next two to three months X told her paternal Ms E and her father about the past assault on her by Mr D. Y, when asked by the father, disclosed assaults on herself too.
The father took the children to the police. They were formally interviewed.
Ultimately there were eight charges against Mr D [seven charges of Indecent assault person under 16 years of age; one charge of Sexual intercourse with person 10 years].[1]
[1] Exhibit 16, page 1.
What has followed is almost two years of tumult for the family which will not end with this case being determined. There is a criminal trial pending in October 2022, in which the two older children and the mother will probably be required to give evidence.
THE PARTIES
The Applicant Father
The father is aged 39 years. Since 2013 he has lived and worked in F Town, a town in the NT. Since these proceedings commenced in August 2020, the father has spent periods of time in regional New South Wales in the home of his father and sister.
Z has lived with the father in the NT but has mostly lived with the paternal family in regional New South Wales whether or not his father is there.
Z did not wish to return to living with his mother when his sisters did in 2021. He is unwilling to spend any time with his mother.
The father is a professional working for a non-governmental organisation.
The father gave evidence that in the NT he lives with his partner Ms G, their six year old daughter V, and Ms G’s teenage daughter W from a previous relationship.
Ms G was not called as a witness. In cross examination on this point the father referred to Ms G’s mother and sister both having had cancer “we’ve had a turbulent time over the last two years”. He wished to respect Ms G’s decision “to keep at bay”.
No application was made for Ms G to give evidence by phone or video link. Her absence represented a solid deficiency in the evidence where the father was asking for one, if not all, of the children to live with him.
There was no evidence either from a paternal family member and no explanation.
It was not controversial that the children enjoy a good relationship with Ms G.
The Respondent Mother
The mother is aged 36 years. She lives in Suburb H, a suburb in regional New South Wales. The mother works in the hospitality industry.
With the consent of the father the two elder children returned to live with the mother after six months residence with him. X returned in early 2021, Y the following month. By date of this trial the two girls were unwilling to spend any time with the father.
The mother is engaged to Mr J. The mother partnered with Mr J in early 2019 and he began living with the mother and the children in late 2019. Mr J has two children to a previous relationship, who spend regular periods of time in the household of himself and the mother.[2]
[2] Children and Parents Issues Assessment dated 13/11/2020, para 8.
There was no affidavit by any member of the extended maternal family.
THE TRIAL
On 23 September 2021, the trial was allocated three days commencing 26 April 2021.
On 22 March 2022, the late April hearing dates allocated in the matter were vacated by the Court and the hearing was relisted to commence 19 April 2022, for a period of three days. Those hearing dates were vacated on 11 April 2022, due to the Court Child Expert not being available for cross-examination.
The hearing was relisted to commence on 23 May 2022, for a period of three days.
The father and mother were represented by solicitor and counsel.
Both had been unrepresented at various times, including for the preparation of affidavits. As a result there were swathes of irrelevant material in the affidavit of each parent but particularly that of the mother. Relevant material which should have been included was not, particularly in the case of the father.
The Independent Children’s Lawyer (“ICL”) conducted the trial herself, with counsel instructed having fallen ill just prior to trial.
Fortunately for the parties, they, and their children, were represented by experienced and pragmatic practitioners who focused on the issues and disregarded the distractions.
The evidence was concluded within the allocated days but not submissions. The matter was adjourned to a fourth day, 9 June 2022, but for reasons relating to the Court was adjourned to 20 June 2022. The matter concluded on that day.
Judgment was thereafter reserved.
THE ISSUES
Should the sibling group be reunited and if so with which parent should they live?
In whichever household they are living what time and communication should each child have with the non-resident parent?
THE APPLICATIONS
The Applicant Father
The father proposed that he have sole parental responsibility for the youngest child and the child live with him in the NT. If there was to be time for Z with the mother the Court was asked to determine it. That position has not changed since his initial application in 2020.
In the event that the Court considers the mother represents a risk of physical or psychological harm to the two eldest subject children then the father proposed that they also live with him in the NT. If not, he wished to share parental responsibility.
Barring such a finding the father considered that X and Y, in accordance with their wishes, should remain living with the mother who was, in his view, best placed to assist them through the looming criminal trial.
The Respondent Mother
By her Amended Response filed 29 November 2021, the mother proposed, as she has from the commencement of proceedings, that she have sole parental responsibility for the three children and that they all live with her.[3]
[3] Exhibit 3.
The suite of orders proposed by the mother included a six month moratorium on the father spending time with the children. Further there was a pre-condition to the father spending time with the children beyond the moratorium, being that he engage in therapy with a Child and Family Psychiatrist or Clinical Psychologist with qualifications in family therapy. There was an extensive list of matters about himself which the father was required to address and change.
In the event the therapeutic work was undertaken, thereafter orders for time and communication with the children were proposed in the alternative:
(1)If the father continued to reside in the NT:
(a)For a period of six months, for two hours on each alternate day during school holidays to be supervised;
(b)Thereafter for four hours on each alternate day during school holidays to be supervised; [length of time not defined]
(c)Thereafter and continuing for a period of twelve months, six hours on each alternate day during school holidays to be supervised;
(d)Thereafter as nominated by the mother but no less than the previous twelve months.
(2)If the father resided within a reasonable and practical distance from the children, including within the same state:
(a)For a period of six months, for two hours on each alternate weekend to be supervised;
(b)Thereafter and continuing for a period of six months, four hours on each alternate weekend to be supervised;
(c)Thereafter and continuing for a period of twelve months, six hours on each alternate weekend to be supervised;
(d)Thereafter as nominated by the mother but no less than the previous twelve months.
At the commencement of this trial a revised set of Orders were put forward which no longer included mandatory therapy for the father but was otherwise the same.[4]
[4] Exhibit 3.
The Independent Children’s Lawyer (“ICL”)
The ICL did not have a settled view at the outset of the trial. She had met with the children several times and did so again, just prior to the trial, to canvass their views. A document setting out the response of each child was tendered into evidence.[5]
[5] Exhibit 5.
The two older children wished to remain living with the mother, the youngest child wished to live with his father full time in the NT whether or not his sisters did too.
The ICL was alive to the views of the children possibly not according with their safety in either household.
After the evidence had concluded, the ICL submitted that X and Y should remain living with the mother in accordance with their views and not be compelled to spend time with the father over their expressed wishes not to do so.
The ICL disclosed uncertainty about where Z should live. She was inclined towards him living with his father due to his unwavering wish to do so but did not submit that the Court should take that course. A Minute of Order in the alternative was tendered.[6]
[6] Exhibit 35.
The ICL did submit that whichever household Z lived in there should be defined orders for him to spend time with the other parent. This with a view to keeping the sibling group in contact.
At the same time the ICL was sensitive to the fact that the two older children had been able to have their wishes to live with their mother implemented when aged almost 14 years (X) and at 12 years (Y). The ICL was conscious of how unjust Z, now just over 12 years, would consider such an outcome to be.
HISTORY OF RELEVANT EVENTS
In 2000, the father aged about 17 years moved to Australia from New Zealand.
The parties formed a relationship in 2003.
At that time the father had one small child from a prior relationship, U, who was born in 2002. Following separation of the father and U’s mother, U lived between the father’s home and the paternal grandfather’s home, where the paternal aunt Ms E, was also living. U spent alternate weekend time with her mother. U has been in the primary care of her own mother since 2013.
The parties began living together toward the end of 2006. They were never married.
Separation of the parties 2013
The three subject children were born over three years. After the birth of Z in 2010 the relationship of the parties deteriorated. The father was charged with high range drink driving and lost his licence.
In May 2013, the parties and children moved to live with the mother’s parents as they were no longer able to pay their rent. The parties separated later that year and the father moved to the NT.
Following separation, the mother and the three subject children remained living in the home of the maternal grandfather. Such time as the children spent with the father was by agreement between the parties.
The mother’s main complaint about the father was that he moved so far away from the children and spent insufficient time with them.
According to the father, the children had regular video calls with him, and spent time with him approximately three times per year at the home of the paternal aunt Ms E in regional New South Wales, and some occasions of time by the children travelling to the NT.[7]
[7] Children and Parents Issues Assessment dated 13/11/2020, para 6.
It is common ground the mother facilitated regular time for the children with their paternal family in regional New South Wales.[8]
[8] Children and Parents Issues Assessment dated 13/11/2020, para 6.
New partners
The father met his new partner Ms G in approximately 2014, and they had a child together in 2016. Their child V is now aged six years.
In late 2014, the mother formed a relationship with Mr D. In the following year the mother moved with the children out of her father’s home and into a home with Mr D.
The mother was confident to leave the children in the care of her partner when she was working at night. Most unfortunately for the children, especially for the two girls, her confidence was betrayed.
Disclosure by X to her mother – April 2018
In early 2018, during a camping trip, the oldest child, then aged 11 years, disclosed to the mother that Mr D had imposed sexual contact on her. By then Mr D had been living with the mother and the children for more than three years.
Reaction of Mother
The mother reacted protectively. She spoke to Mr D and having heard what she understood to be his admission of misconduct, terminated the relationship between them.
The Court accepts that what X later told the school counsellor [18/11/2020] was true, namely that the mother had said to her after the disclosure that Mr D “had probably mistaken her ([X]) for her (the mother)”, and for X not to tell anyone else. The counsellor noted “[X] reported feeling quite anxious about her mother’s response to the police knowing about the assault, she thought her mother would deny it”.[9]
[9] Exhibit 34.
The Court is able to accept the references to secrecy and non-disclosure because it is consistent with what happened, or rather what didn’t happen thereafter.
The mother did not tell the father what had occurred, asserting as an explanation in her oral evidence “he wasn’t a part of our lives”. She did not report the matter to police or Welfare authorities. She did not ask Y or Z whether anything improper had happened to them. She did not organise supportive counselling for X although she asked her whether she wanted to “see someone”. The mother did not seek out advice for herself as to how to manage Y’s feelings and reactions over time.
This reaction of the mother to shut down what had occurred was raised with the Child Court Expert. Her evidence was that it was not uncommon for parents to take that position but in her opinion the position was misguided. The expert went on to say that keeping such a secret was likely to be damaging to X’s sense of being believed, to her knowing that it was Mr D’s fault and not hers, and that it could affect future disclosures.
The question was put to the mother, “didn’t you want to see [Mr D] punished?” Her response was, “I go back and forwards about that all the time. I’d still choose to protect her over punishing [Mr D]”. She reported that what she had seen on TV made her reluctant to make her daughter “go through that process”. She also expressed the view that “I was worried it would look poorly on my daughter”.
The Court concludes with some concern that four years after X’s disclosure to her, the mother had not come to fully understand the perspective of the child X. With an intention to be protective the mother closed X off from extended family support and professional assistance.
Return to the home of the maternal grandfather – Mid 2018
After Mr D left the property they had been renting together, the mother was unable to afford to continue residing there. In mid-2018 she returned with the children to living in the home of her father.
New partner for mother – Mr J
In early 2019, the mother met her current partner Mr J. Mr J began living with the mother and the subject children in late 2019, in a property rented together. Soon after they became engaged to marry.
Mr J happily provides substantial financial support for the mother and the two older children. All three children have enjoyed his company.
April 2018 – August 2020
What was happening for the mother and children between the departure of Mr D in April 2018, and the removal of the children by the father in August 2020, is not clear.
The Court concludes that the two younger children were given no explanation for why Mr D left the home. It is likely nothing was said to them about what had happened to X. The mother had unexpectedly and in most confronting circumstances lost a partner she had liked. She was under pressure financially. She was trying to ensure that information about X did not get out.
Then the mother met Mr J.
The two girls were likely anxious about the possibility of their mother’s new partner behaving in the way her former partner had done.
The mother did not tell Mr J about the assault on X until 2021.
Mr J has two sons who became members of the household most weekends. His elder son S is nine months younger than Z, the younger child T is four years younger.
Some conflict and competition especially between the three boys was inevitable as the children were integrated. There was another factor.
There is no reference in his affidavit to these matters but Mr J’s son S has what the mother identified Medical Condition K and Medical Condition L. He requires careful supervision and management. In his oral evidence Mr J spoke in quite moving terms about his approach to discipline of S and the teaching of good manners. He required S to write a letter of apology to his teacher and principal for his bad behaviour. He acknowledged that S wanted to play with Z “all the time”, with the implication that S was oblivious to whether or not Z wanted to keep playing, “He doesn’t go good with stopping playing with [Z]”. He referred to S “going into the red zone” after which he is, the Court infers, emotionally unreachable.
This would have been a difficult and frustrating situation for Z but likely not to have affected the two older children in the same direct way.
On 12 August 2020, Z told the school counsellor the mother scratched his face, pushed him against the wall and threw objects.[10] He reported that “his mother had threatened to throw sister, [X], from window”.
[10] Exhibit 28.
The Counsellor’s note is that “[Y] reports that home is unsafe and that their mother only treats [Z] with physical force when [Mr J] isn’t at home and sisters (siblings) are in other rooms, says [Mr J] doesn’t know as [Z] has been too frightened to report”.
The interviews on that day reveal that Y at least had told her paternal aunt Ms E what was happening at home and had a plan to phone her “if danger arises”. Y was conscious they could not see their father due to State border closures (Covid-19).
That the mother may have had angry episodes, directed particularly at Z, during all this domestic turmoil and commitment to secrecy, seems quite credible. The complaints Z made are detailed and supported by his sisters.[11]
[11] Exhibit 31.
The Court concludes that during this period it is probable that the mother lost her temper at times, punished Z too harshly and frightened the children with her change in demeanour and her use of offensive language.
Father returns to regional New South Wales and files an Initiating Application August 2020
On 17 August 2020, following reported disclosures by the children to the paternal aunt Ms E, and reports to school staff about physical abuse they were allegedly enduring in the mother’s care, the father travelled from the NT to regional New South Wales. He collected the children from school and retained them in his care.
The father did not communicate with the mother before doing so. It was a complete shock to her.
The father presented the children to local police, who interviewed the children. The Joint Child Protection Response Team (JCPR, formally JIRT) investigated the allegations and interviewed the child Z.
Interim AVO – August 2020
Police issued an interim AVO to protect the children from the mother.
Court proceedings commence – August 2020.
On 20 August 2020, the father commenced these proceedings in what was then known as the Family Court of Australia [FCA]. He sought urgent consideration of his application and for the matter to be included in the Magellan Protocol.
On 27 August 2020, the mother filed her Response and a Notice of Risk which raised historical allegations of verbal, physical and emotional abuse of the children and herself by the father. In her Notice of Risk the mother further alleged that the father had a history of excessive alcohol consumption and illicit substance use.
Orders – 28 August 2020
On 28 August 2020, procedural and other orders were made:
·The children to live with the father on condition that their residence is maintained within a 20 km radius of the children’s respective schools;
·The mother shall spend time with the children on two specific occasions, 29 August 2020 for three hours, and 1 September 2020 for two hours;
·The mother is restrained from attending the father’s residence and the children’s schools.
A date for interim hearing was allocated.
Orders – 4 September 2020
On 4 September 2020, interim orders were made for:
·The children to live with the father on condition that their residence is established and maintained within a 20 km radius of the children’s respective schools;
·The mother shall spend time with the children from after school (or 3:30pm) on Thursdays until 1:00pm on Saturdays each week.
AVO Final for protection of children – October 2020
In October 2020, an Apprehended Violence Order was made for the protection of the children from the mother. The period of the order was twelve months. The mother did not contest the application.
Children and Parents Issue Assessment – 13 November 2020
On 13 November 2020, a Children and Parents Issue Assessment was released.
The parents reported that the Orders of 4 September 2020 were not operating as intended.[12] In particular, the children were not spending time with the mother in accordance with the orders.
[12] Children and Parents Issues Assessment dated 13/11/2020, para 14.
The father believed that the Orders did not require him to force the children to attend.[13]
[13] Children and Parents Issues Assessment dated 13/11/2020, para 21.
On the weekend prior to the Assessment, the father took the children camping during the time they should have spent with the mother. When asked about his decision to go camping with the children the response of the father was that:[14]
He thought this was ‘reasonable’ because he had asked the children whether they wanted to spend time with the mother and they said they did not.
[14] Children and Parents Issues Assessment dated 13/11/2020, para 21.
The oral evidence of the Court Child Expert was that when she saw the children in November 2020, there had been incongruence between the expressed views of the children (to live with Dad) and real wishes (to see Mum/live with Mum) possibly through fear of consequences, “I’m scared of what Dad will do.”
The Court takes this assessment into account in the following context. At the date of the interview the children had been living with the father and/or the paternal family for less than three months. It must be the case that despite their complaints about her conduct towards them, the children were missing their mother with whom they had lived all their lives.
At least X, perhaps both girls, probably had it in mind at the time of the interviews to talk to the father and/or his sister about Mr D because just days later the two girls did tell their father about that criminal misconduct.
The Court concludes that all three children knew that the father might be very upset with the mother as disclosures were made and more information about their lives over the previous two or three years fully revealed. The evidence does not support a finding that the children were themselves frightened of the father.
November 2020 – Disclosure of past abuse
In November 2020, X disclosed both to her father and paternal aunt Ms E what had happened to her on the camping trip with Mr D in April 2018. The father then asked Y if Mr D had assaulted her. She said he had.
The father attended on police with the two girls. JIRT interviews were subsequently conducted.
On 9 December 2020, X told her school counsellor about going to the police station. The counsellor reports, “She ([X]) reported that she felt it went well and that she was pleased they told her that they would begin investigating”.[15]
[15] Exhibit 22.
X returns to live with Mother –February 2021
In February 2021, X left the home of the paternal family and went to the home of the mother. Two days later the father returned from the NT.
The father invited X to travel with him and the other two children back to the NT. The mother objected. The orders of this Court provided for the children to live within 20 km of their schools in NSW. Those orders also provided for the children to live with the father, but he did not insist on compliance.
The two younger children spent a week with the father in the NT and were then returned to the paternal family home.
Contravention – Application by mother – 15 March 2021
On 15 March 2021, the mother filed an Application – Contravention.
The mother alleged that the father had taken the children to live in the NT and had not engaged a psychologist.
Y returns to live with mother –March 2021
In March 2021, X visited her father and brother and sister. At the end of the weekend, probably influenced by her older sister but also because she was missing her mother, Y returned with X to the home of the mother.
Orders – 6 May 2021
On 6 May 2021, the mother’s Application – Contravention filed 15 March 2021, was dismissed.
The father, who by then had the benefit of counsel, informed the Court that he would comply with the interim orders made on 4 September 2020, in so far as they concerned the youngest child Z.
Application in a Case by mother and Response
On 15 July 2021, the mother filed an Application in a Case.[16] The main orders sought, amongst many others, were for sole parental responsibility and residence of all three children, with time with the father to be in NSW only.
[16] Sealed 16/07/2021.
On 10 September 2021, the father filed a Response. The main orders sought, amongst many others, were that the parties have equal shared parental responsibility, Z live with the father in the NT, X and Y continue to live with the mother in regional New South Wales, and for the children to have telephone communication with each other every Wednesday at 7:30pm.
Trial dates allocated
On 23 September 2021, the matter was listed for final hearing for a period of three days commencing 26 April 2022.
The Court noted:
·The interim orders of 4 September 2020 were not being complied with by either party;
·The father had agreed to X and Y returning to live with the mother;
·Z was living with the paternal family in NSW and not spending time with the mother.
Application – Contravention by mother – 27 September 2021
Four days after the allocation of trial dates the mother filed a further Application –Contravention.
On 15 October 2021, the Contravention Application came before a Senior Judicial Registrar. Allegations of family violence were foreshadowed by the mother and representation under the Act (Section 102NA) discussed.
The ICL advised the Court that the child Z consistently expressed a view that he wished to remain in the father’s care and that he had telephoned the ICL after time periods with the mother expressing his displeasure with the spending time arrangements.[17]
[17] Orders 15/10/2021.
Application in a Case by mother – 22 January 2022
On 22 January 2022, the mother filed an Application in a Case[18] seeking the recovery of the child Z. That application did not proceed.
[18] Sealed 28/01/2022.
On 5 April 2022, the parties were before the Court for hearing of the Application – Contravention filed by the mother earlier on 27 September 2021. The Application was withdrawn and dismissed.
The Court noted however, the mother maintained the allegations set out in the Application, and were the same factual matters to be determined at trial.
On 21 April 2022, the father applied for an order for statutory representation pursuant to Section 102NA and on 29 April 2022, that application was granted.
With that, both parties were represented and the uncontained and belligerent character of the litigation changed to a focus on the real issues at last.
EVIDENCE
The documents relied on in respect of the application were as follows:
The Applicant Father – Mr Gardner
(a)Initiating Application filed 20/08/2020;
(b)Affidavit of Father filed 04/04/2022;
The Respondent Mother – Ms Vaughan
(c)Further Amended Response to Initiating Application filed 29/11/2021;
(d)Affidavit of Mother filed 23/02/2022;
(e)Affidavit of Mr J –Mother’s partner filed 17/03/2022;
(f)Affidavit of Ms M, the father’s partner to a previous relationship and the mother of the father’s child, U, filed 20/09/2021. [Initially relied on but withdrawn during trial]
Reports
(g)Children and Parents Issues Assessment prepared by Ms N dated 13/11/2020.
ORAL EVIDENCE
The Applicant Father
Most unrepresented parties find it difficult to represent themselves. The father was no exception.
He had struggled since August 2020, not only with how to care for his children who had asked for his help, but also how to communicate to the Court what his geographical, financial and emotional dilemma involved.
Throughout the litigation he worked in the NT but was obliged to have the children living in an area of regional New South Wales. His solution was to have them live with the paternal family, grandfather and aunt, who live in regional New South Wales, and to be a member of that household as often as he could. He worked online when he was there. He sometimes took them to the NT.
Clearly the father could not give up his job. He had obligations to his partner and their child in the NT. He had made a commitment to protect the subject children and would not step back from it.
My impression was that the father did stay child focussed despite genuine shock. Until at least August 2020, the father had been confident in the mother’s ability to care for the children. He had no complaints from the children, their school, nor his own family members.
In August 2020, he picked the children up and took them home with him and let them talk. He was surprised by what they said and by what the school counsellor told him. He started these proceedings to sort things out.
In November 2020, when X told him what Mr D had done to her he described his level of shock as “beyond belief”, “the [Ms Vaughan] I used to know was a great mother. She would have protected them. …prosecution? Instead she said, ‘that’s our little secret’, about [Mr D]”. “I hold her responsible for not getting my daughters justice. I do not blame her for the assault".
The father’s reaction was starkly different to that of the mother. He took the girls straight to the police where they made statements. Later he spoke to them both about what had happened.
The Court accepts that the father was dumbfounded that the mother had, in his view, done nothing for X and had not asked Y anything.
With respect to his own conduct the father conceded that in his relationship with the mother and during the relationship with Ms G he had abused alcohol at times and behaved badly. “I’ve done some wrong. I can admit to that”
The Respondent Mother
The mother was inclined to blame the father for most things. She accused him and members of his family for “putting things into the children’s heads”. She firmly stated that all the complaints made by the children about her were either in that category or were lies. She freely agreed that both she and members of her family accused the children of lying and told them that what they were saying was “all from their father”.
The mother was asked whether she thought Z’s complaint had been rote learnt. The mother agreed with that proposition.
The mother was inclined to be dismissive of the children’s distress. She denied knowledge of nightmares and self-harming by X, and was defensive of herself as a parent. The father and his family were responsible for all her difficulties.
She described the children as “too scared to assert themselves with the father”, an assertion wholly inconsistent with the evidence, especially with the respect to the return of the girls to the mother to live.
The Court concludes that the mother has been a loving mother who was overcome by guilt, fear and shame when she learned that her 11 year old daughter had been sexually assaulted by the man she had brought into the family as her partner. The mother of course is not responsible for what he did.
In preparing her case the mother had focused on all that she perceived was negative about the father. His abuse of alcohol, some events involving arguments with his current partner, both affected by alcohol, where police were called.[19]
[19] Exhibits 6-14.
Unfortunately the mother did herself a disservice in her approach to these proceedings. Her stance that everything bad was attributable to the father and her total denial of any mistakes having being made by her, created an impression that she was oblivious to events and insensitive to the children. In that regard it was the evidence of the father which was persuasive that she had always been a really good mum and protective. The whole of the evidence supports a finding that she was for the most part but became unduly punitive, probably as a result of internal emotional pressure after April 2018.
Ms J – Mother’s partner
The mother’s partner brought a warm and affable tone into the proceedings.
The Court accepts his evidence that he cares for the subject children as his own and would do anything for them.
On one occasion after some minor conflict between them over household tasks, Z had run away. Mr J described it as “one of the most stressful days of my life”.
He spoke respectfully of the father and Z’s relationship with him, “I don’t want to replace [Mr Gardner]. I’m his step-dad, if he wants to talk to dad I’d never stop him”
He had shaken hands with the father at a school event and was pleased about that, “I have no issues with him”.
If ever there is a thawing of cold parental relationships, the Court is confident that Mr J would be open to facilitating communication, travel and to do whatever it took to help the subject children.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of a child) has engaged in abuse of a child or family violence.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child in question for the parents to have equal shared parental responsibility.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and concluded that the following matters are relevant to the best interests of these children.
Residence
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The children had not been living as a group for more than a year, by date of trial.
The two older children moved to live with the mother with the consent of the father. He could have relied on interim orders of this Court and the AVO for the protection of the children from the mother, but chose to allow them to make that decision. Although the mother dismissed the father’s consent to the change of residence for the girls as the father wanting “to have control over [Z] as the only boy” the Court concludes otherwise. The evidence suggests that the girls were missing their mother, especially [X], and issues relating to past assaults had been sorted out. The father let them move as a result.
Now the two girls do not wish to see their father although on the evidence before me they undoubtedly love him and appreciated his help. Likewise they are unwilling to visit their brother when he is in the home of the paternal family whether or not the father is in the household.
The youngest child lives with the paternal family and with his father when he comes down from the NT. He is unwilling to see his mother whom he undoubtedly loves even if he is angry with her. He has communicated with his sisters, although more recently not X, unless they attempt to pressure him.
The separation of siblings is not a matter which the Court takes lightly.
The views of these three young people aged 15, almost 14, and 12 years, should be given considerable weight. Each one has had confronting experiences and has suffered as a result.
Their views are clear and in the case of Z unwavering for almost two years. When the two girls felt ready to return to living with the mother, Z did not.
His own experience has been of disruption since age three years when his father disappeared out of his life. The next year Mr D came into his life and he and his mother and sisters moved to live with him. Four years later, no doubt mysteriously to Z, Mr D disappeared from the home. He, his mother and sisters all returned to living with his maternal grandfather.
In 2019, Mr J came into his life together with his two sons, present each weekend, the elder of whom was demanding of Z’s time and difficult to deal with. Increasingly he experienced his mother as angry, threatening and frightening to him. She repeatedly told him to “stop lying”. He confided in the school counsellor about what was happening at home.
In August 2020, in emergency circumstances, Z began living with his father. He has felt safe and has not wanted to leave. He does hope to live in the NT where he is well known to, and likes the father’s partner and the two girls in the household being his six year old sister and 15 year old step sister.
Accordingly the orders provide for the two older children to remain living with the mother and for the youngest child to live with the father. The consequence of these orders is that the separation of the siblings will continue.
Of course the parents can agree otherwise as to where the children live at any time until each child turns 18 years.
Parental Responsibility
Between separation in 2013 and August 2020, the parents each had all the rights and responsibilities of parenthood by law. They managed quite well to agree on where the children should live and about time and communication for the children with the father and the paternal family.
The mother wishes to have sole parental responsibility for the three subject children. The father wishes to have equal shared parental responsibility for the two older children if they live with their mother and sole parental responsibility for the youngest child if he lives with him.
There are reasonable grounds to believe that a person who lived with the mother abused two of the children. That finding does not bear directly on the allocation now of parental responsibility. That person ceased living with the mother at her direction once those facts were known to her in April 2018.
However the mother’s conduct with the children over the 2.5 years following her decision to exclude the father from knowledge of serious events known to her about the abuse of one subject child, and her ongoing refusal to concede any benefit to the children of the father’s subsequent actions, satisfies the Court that the presumption of equal shared responsibility should be rebutted. If the mother does feel any respect for the father as a parent she did not reveal it during this trial. Consultation and discussion, inherent in shared parental responsibility, is most unlikely to occur. An order to that effect would delay decisions being made in a timely way.
The pragmatic course is for the parent with whom each child lives to have sole parental responsibility for that child subject to orders which require information to be provided in advance of major decisions and any medical emergency. Each parent is to authorise release of information by schools.
The benefit to the child of having a meaningful relationship with both of the child’s parents
The subject children have had meaningful relationships with both parents. It would be of enormous benefit to them if those relationships were fully restored, encouraged and supported.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The children have been exposed to harm. Their present circumstances although emotionally tense, are safe.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The mother reacted with extreme distress and hostility to the father taking the children into his care in August 2020. Her attitude during this trial continued to reflect those emotions.
She was unwilling to admit to any extent that she had caused distress to the children by her behaviour prior to that date. She was unwilling to concede that the father had assisted the girls by taking them to police to be interviewed about Mr D despite acknowledging that X had expressed appreciation for investigation being undertaken by police.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The mother alleged that the father paid little or no Child Support until recently. If that is the case she has every reason to be disappointed. She has worked to provide for the children herself.
No Child Support documents were tendered into evidence.
Likewise it is unclear who paid for the children to travel for holiday times to the NT.
The Court cannot determine the extent to which each party maintained the children.
The capacity of each parent to provide for the needs of the child including emotional and intellectual needs
Each of the parents has the capacity to meet the needs of the children.
The mother cared for the children effectively as a single parent for seven years after separation. The father did travel to see them and introduced them into his current family. The parents were able to cooperate with each other.
Both parents are hard workers and value education for the children.
There was disruption and distress in the mother’s household after April 2018, due to the unexpected and confronting conduct of the mother’s former partner. The mother attempted to carry the whole burden of X being assaulted alone and in silence. She did not call on the father’s help or reach out for assistance. Both she and the children suffered as a result.
The impact on the mother of those events did lead to some harsh and abusive behaviour by her towards the children and Z in particular. There is no evidence of the mother acknowledging that to the children, although she may have done so now with the two children in her care. Such defensiveness is a limitation on capacity.
Four years on there is little to no risk of another such situation nor of the mother behaving in that way again.
The father sometimes drinks to excess which has led to argument and police involvement in his relationship with the mother and with his current partner. He has allowed alcohol to impair his judgment which in itself is a limitation on capacity. With one more child in his household, a boy approaching adolescence and looking to his father as a role model, the decision of the father to rethink his use of alcohol is an important one.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
The Father
The mother alleged there had been family violence in her relationship with the father.[20] She referred to the father drinking to excess at times and having on one occasion in 2007, pushed her with force against a window which broke. The mother alleged that he had at times yelled at her and thrown things, and argued about money.
[20] Affidavit of the mother filed 15/02/2022, paras 15-15.9.
The father denied pushing the mother. Without more the Court cannot come to a conclusion but memory is affected by intoxication and intoxication itself leads to unintended consequences.
The father conceded that he has been in the habit of drinking alcohol to excess at times. He commented, “I’ve had to have a re-think about my behaviour and use of alcohol”. That may be the case but as recently as 2019 an AVO was put in place protecting Ms G and her brother from the father as a result of a drunken argument.
The Mother
There was an interim order (AVO) for the protection of the children from the mother and then a final twelve month order. It expired in October 2021. By then the two elder children had been living with their mother for six months.
The events which gave rise to the order and also prompted the father to take the children into his care were effectively addressed by those orders.
The mother is no longer under extreme emotional pressure. The children in her care are likely to change schools to their benefit[21] and they will no longer be subject to free floating gossip in the school community about themselves and what happened to them.
[21] Exhibit 36.
Conclusion
Orders are made effectively for the current arrangements to continue. Orders for defined time with each parent have not been made.
All three children are caught in a painful conflict of loyalties. The parents could help them by at least allowing the children to freely visit and communicate with each other. That is to say genuinely allowing it, without strings, reproaches and warnings about “being manipulated”.
The same could be done about spending time and communicating with the other parent. If the parents were able to put their shock and disappointment and anger to one side and warmly encourage the children to restore parental relationships they most likely would.
The conclusion of the criminal trial could be a turning point for that to begin.
If the parents are unable to conceal their feelings from the children then the children will be unlikely to see each other again as a group until they are all young adults. That change of status is less than six years away.
Orders are made accordingly.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 7 July 2022
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