Green & Green
[2022] FedCFamC1F 990
Federal Circuit and Family Court of Australia
(DIVISION 1)
Green & Green [2022] FedCFamC1F 990
File number: CAC 1332 of 2021 Judgment of: GILL J Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – PARENTING – Parties non-compliance with previous court orders – History of family violence including coercive and controlling behaviour perpetrated by the father to the mother – Children living with the mother – Mother seeking respite and facing challenges regarding management of the home – No risk of sexual abuse of the eldest child by the father – Risk of father further undermining relationship between the children and the mother – Amelioration of undermining risk by giving the mother the authority to determine the time with the father – Risk of neglect from both parents – Mother given sole parental responsibility and to decide when children spend time with the father. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 60I, 91B Cases cited: Isles & Nellisen [2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3)[2007] FamCA 1364
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Division: Division 1 First Instance Number of paragraphs: 182 Date of hearing: 21 and 23 November 2022 Place: City E Counsel for the Applicant: Mr A Strik Solicitor for the Applicant: Blomfield Legal Counsel for the Respondent: Mr J Masters Solicitor for the Respondent: Tankard’s Law Solicitor for the Independent Children’s Lawyer: Ms E Karagiannis, Legal Aid, NSW ORDERS
CAC 1332 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GREEN
Applicant
AND: MR GREEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
14 december 2022
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.Ms Green (“the mother”) has sole parental responsibility for the children:
(a)W born 2011;
(b)X born 2014;
(c)Y born 2016; and
(d)Z born 2017.
3.The children shall live with the mother.
4.Mr Green (“the father”) shall not spend time with the children unless with the prior written consent of the mother.
5.The mother’s written consent to the father spending time with the children may be given by any means, including electronically, and including by text message.
6.Neither parent shall make hurtful or disrespectful comments about the other, or the children’s extended family to the children or within the hearing of the children or allow a third party to do so.
7.The Independent Children’s Lawyer be granted leave to provide a copy of these Orders to the NSW Department of Communities and Justice and to the NSW Police.
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
GILL J:
Introduction
The parties to this matter are Ms Green (born 1980), the applicant mother, and Mr Green (born 1970) the respondent father. The parties commenced their relationship sometime between 1999 and 2002, and married in 2003. Their relationship ended in early 2021 when the mother left the family home with the parties’ children, without notice to the father. Their children are W (“W”) born 2011, X (“X”) born 2014, Y (“Y”) born 2016, and Z (“Z”) born 2017, (“the children”).
An Independent Children’s Lawyer (“ICL”) was appointed on behalf of the children.
The scope of the current proceedings
The dominant issues in the trial related to the risks faced by the children in the care of either parent. In the case of the mother this primarily related to risks flowing from neglect, while for the father, neglect, exposure to family violence, exposure to abuse and undermining of the children’s relationship with the mother, constituted the primary risks.
These issues arise in the context of the particular characteristics of the children. They have significant needs and emotional and behavioural issues. For example, W is currently not attending school, purportedly due to cyber bullying issues. X has been diagnosed with autism, attention deficit hyperactivity disorder (“ADHD”), Global Development Delay and anxiety. He is in receipt of support from the National Disability Insurance Scheme (“NDIS”). Y is being tested for autism and ADHD. He is engaging with B Therapy and awaiting paediatric support through C Health Service. Similar to Y, Z is also awaiting testing by a paediatrician regarding ADHD and autism.
Whilst at the commencement of the trial there was an outstanding issue as to whether the father presented a risk of sexual harm to the children and to W in particular, by the end of the trial the ICL and parties accepted that such a risk was not made out. This accorded with the lack of probative evidence to support such a risk.
Against this background, the parties and the ICL all sought orders that the children live with the mother and that she hold sole parental responsibility.
The mother and father both sought orders that the children spend fortnightly weekend and school holiday time with the father, whilst the ICL opposed any orders for the children to spend time with the father.
Given the uncertainties as to the future trajectory of the risks, and the potential intersection between spending time with the father and the ameliorating of the neglect risk for the mother, the prospect of interim orders rather than final orders was raised with the parties during the trial. This was in order to provide further monitoring and evaluation of the crystallisation of the risks. The parents each then preferenced interim orders, whilst the ICL sought that final orders be immediately made.
MATERIAL RELIED UPON
Applicant Mother
The mother relied upon the following:
(1)Her affidavit filed 17 October 2022
Respondent Father
The father relied upon the following:
(1)His affidavit filed 12 October 2022
Independent Children’s Lawyer
As per the ICL’s Case Outline Document filed 14 November 2022, the ICL relied upon the following:
(1)Family Report; and
(2)Tender Bundle of Subpoena Material.
PRINCIPLES
As identified above, these proceedings concern W, X, Y and Z. The focus and the paramount consideration in determining what order should be made for each child is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles give a legislative background for the examination of the considerations contained at s 60CC of the Act in determining best interests. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be thought that in any individual case the objects and principles may point in different directions and find different emphasis, depending on the circumstances of the particular child. It might also be observed that the objects and principles contain a degree of circularity, themselves being conditioned on the notion of the best interests of the child.
Against this background, in determining a child’s best interests, the Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[1] and are “relevant to the particular circumstances of the child.”[2] This calls for a focused examination of the considerations that arise in the individual case. While often the evidence filed in a case ranges across, and touches upon many of the considerations, those that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[1] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[2] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes and, by virtue of s 60CC(3)(m) may include any “fact or circumstance” relevant to the wellbeing of a child. It is the synthesis of the considerations that determines best interest.
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence.
The structure of s 60CC points to some emphasis being given to the two primary considerations. In Marsden & Winch (No 3),[3] Warnick and Thackray JJ observed that the primary considerations are “manifestly of the utmost importance in determining what outcome will best advance a child’s interests.” Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
[3] [2007] FamCA 1364 at [78].
The primary considerations are to be considered as a part of the whole suite of considerations contained at s 60CC. Often there is overlap between the considerations, and often many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(j)’s reference to “any family violence involving the child or a member of the child’s family” necessarily forms a part of the protective considerations of s 60CC(2)(b) and may also form a part of the consideration of the degree of benefit flowing to the child from meaningful relationship with a parent at s 60CC(2)(a). Similarly, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
In this case, the dominant issues related to the risks faced by the children, being risks flowing from neglect, being in part a product of limited capacity on the part of the parents to meet the parenting needs of these children and their special needs, risks flowing from exposure to family violence, primarily in the form of the exercise of coercive control by the father upon the mother, either directly or through the children, the character and limitations of benefits of meaningful relationship with the father, and the potential of his undermining the benefits of meaningful relationship with the mother, along with the views of the children.
The focus of this trial was upon the assessment of risk of harm to the children, and the amelioration of that risk. As identified in the Full Court case of Isles & Nellisen,[4]the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.”
[4] [2022] FedCFamC1A 97 at [138].
This case calls for a careful consideration of the consequences, both positive and negative, of differing care arrangements, in particular considering how they expose or ameliorate the various risks of harm faced by the children.
Background
The parties had a relationship which spanned approximately twenty years. During their relationship, neither maintained full time employment, rather they respectively undertook casual work.[5] The mother was the primary carer for all the children.
[5] Affidavit of the mother filed 17 October 2022, paragraphs 9–10.
The family has had involvement with the NSW Department of Communities and Justice (“DCJ”) since 2019. DCJ received 18 screened reports for Risk of Significant Harm spanning the last years of the relationship and the post separation periods.
The parties separated in early 2021, the mother leaving the D Town family home with the children, without notice to the father and with the support of DCJ. She and the children were, shortly thereafter, located in public housing in a suburb of City E.
Shortly after the mother left the family home in early 2021 with the four children and moved to City E, W returned to live with the father. The paternal grandmother travelled to the mother’s home in City E and collected W, who went to live with the father. While in the father’s care, W attended F School. The three boys remained in the mother’s care.
In mid-2021, DCJ conducted a safety and risk assessment on the father’s household, at that time he being the sole carer of W. The outcomes were that his household was “safe”, and the risk level was “high”. It is unclear what this means, or why such assessments were made.
Also on that day, DCJ conducted a safety and risk assessment on the mother’s household, who at that time was caring for the three boys. The outcome was high. Again, the significance of this is unclear.
On 1 June 2021, following an application to the Family Relationship Centre at City E, a certificate advising that family dispute resolution would not be appropriate for the parties was issued under s 60I of the Act.
The mother filed an Initiating Application in the Federal Circuit Court (as it was then known) on 23 June 2021 seeking to recover W and keep all the children in her care.
On 5 July 2021, Judge Hughes made orders appointing an ICL.
On 21 July 2021, a Senior Judicial Registrar made orders for all children to live with the mother and for the father to spend no time with W. An injunction was made restraining the mother from allowing the children to spend any time with the father, other than the boys having supervised contact with him. An injunction was also made restraining the father from removing the children from the mother’s care, attending and removing the children from their schools and day care centres.
The Senior Judicial Registrar also made orders that the father spend time with X, Y and Z at the City E Contact Service, conditional on the father complying with orders 7 and 8 dated 20 July 2021, as follows:
7. Within 7 days of the date of these orders the father must do the following:
a. Enrol in an anger management course at [G Organisation]; and
b. Commence the intake process to undertake anger management counselling at [G Organisation]; and
c. Attend upon his general practitioner for the purpose of undertaking a mental health assessment and if necessary to obtain a mental health plan; and
d.Contact [H Organisation] and enrol in the next available Men’s Behaviour Change Program and is required to complete the course and provide the certificate of completion to the mother’s solicitor and the Independent Children’s Lawyer within 7 days of completing the course.
8. For the purpose of Order 7 the father is to:
a.Comply with all recommendations made by the anger management counsellor as to his attendance at [G Organisation]; and
b.Comply with all reasonable directions made by his general practitioner as to treatment and further attendance upon the general practitioner; and
c.No less than 7 days prior to his first appointment, provide the Counsellor with a copy of all affidavits filed by the parties in the proceedings and these Orders; and
d.Within 7 days of the date of these orders, provide to his anger management counsellor, an irrevocable authority permitting the counsellor to speak with the Independent Children’s Lawyer about the counsellor’s recommendations and the father’s compliance with those recommendations.
The father attended counselling sessions through H Organisation. He also completed an anger management course with G Organisation. He states that from undertaking these courses, he has learnt that his behaviour can have major adverse impacts on his children, if they witness his outbursts.
The father says that there is no longer a Men’s Behaviour Change Programme for him to enrol in, and that his general practitioner said that he did not need a mental health assessment.
However, supervised time commenced, and took place on four occasions.
The family was referred to J Services, a support service, in mid to late 2021.
K Organisation have provided case manager support which ceased in early 2022.
On 5 August 2021, a Judicial Registrar made orders appointing a Single Expert to prepare a report. These orders were subsequently discharged on 2 June 2022 as the Expert became unavailable and an order was made for the preparation of a Family Report by a Court Children’s Expert.
Despite the various restraints, the father subsequently spent unsupervised time with the children. He asserts that this was instigated by the mother, and that it was his mother collecting the children and bringing them to her home (which happens to be the home that the father lives in). It may be concluded that neither the parties, nor the father’s mother, paid much regard to the protective orders of the court.
On a number of occasions during the supervised visits, the father told the boys that he had money boxes for them that each contained one hundred dollars. The supervisor for the visit of 28 March 2022,[6] noted the father’s comments about such on one of the visits, as follows:
[Mr Green] began talking to [the supervisor] saying ‘each boy has over $100 in their money box’s at home. I put all my change in there to save it for them, once it’s full I’ll be putting it in a bank account for them.’ [X] dropped his jaw and said ‘over $100! I can buy so much coke and chocolate with that!’ [Mr Green] looked and [the supervisor] and said ‘she doesn’t save any money for the boys.’ [X] shook his head and said ‘nope, nothing!’ [The supervisor] intervened and told [Mr Green] we could talk about it another time. [Mr Green] responded ‘I’m just voicing my opinion.’
[6] Exhibit ICL 37.
The father denied that telling the boys about the money boxes was an attempt to “buy” the children, explaining that it was to provide something for them for the future. He could not explain why he had communicated this to the boys across multiple visits.
An important feature of the interaction is that not only was telling the boys about the money boxes contrary to his protestation otherwise an attempt to sway the boys toward him, but he also took the opportunity to undermine the mother to the boys, emphasising her failure (on limited means) to have done likewise and voicing it as a parenting inadequacy, emphasising that she did not do it for the boys. Intervention by the supervisor resulted in the father asserting the correctness of his position is saying so, asserting “I’m just voicing my opinion” as though that justified his actions.
The interaction between the father and children at this point should be viewed as both highly manipulative and calculated to undermine the mother.
On 31 March 2022, the Chief Justice made orders to transfer the matter to Division 1 of the Federal Circuit and Family Court of Australia.
Soon after, the children were allocated to a DCJ caseworker for ongoing support and assessment.
The mother and the children were referred to C Health Service’s Intensive Family Based Service (“IFBS”). This service began working with them in mid-2022 in 12–week blocks. As at the time of filing her affidavit, the mother is currently in the second block. The IFBS provides practical support for the mother and family where a support worker attends the mother’s home five days a week and assists in organising the children for school and attending appointments with the mother.
On 25 May 2022, a Judicial Registrar requested the Secretary for the Department of Communities and Justice (“the Secretary”) to intervene in the proceedings pursuant to s 91B of the Act.
In mid-2022, the father ceased seeing the children via the supervision service as X became highly resistant and disobedient when time with the father was to cease. Interestingly, the father placed the blame on the supervision service, asserting to the Family Report writer that the service did not prepare X sufficiently in advance that the time was due to cease, noting X’s autism. The father did not identify any responsibility on his part as the parent for managing and assisting X in the transition.
On 25 July 2022, the Secretary determined that they would not intervene in the proceedings
The boys now spend time with the father through the paternal grandmother who will come to collect the children. The last time the boys spent time with the paternal grandmother and the father was over a long weekend in late 2022. It appears that this has occurred on three or four occasions.
This conflicts with the orders that forbid the mother from allowing the father to come into contact with the children other than through supervision, unless with the written agreement of the ICL. Although the father was also forbidden from removing the children from the mother, no order was in place prohibiting him from coming into contact with the children. He denied any responsibility for the children being in the care of his mother in the home where he and his mother live. By his affidavit he explained that he understood that it was in breach of the orders “but the alternative was that the boys would sit at home doing nothing.”[7]
[7] Affidavit of the father filed 12 October 2022, paragraph 50.
It should also be considered that the father’s deflection of responsibility away from himself did not reflect the reality of the situation, particularly where he later describes the nature of his interactions with the children and the steps that he took to ensure that they had a good time when with him.
Despite this denial of responsibility, the father’s affidavit material contains descriptions of the birthday and Christmas gifts for the children that he keeps at the house, that he and his mother take the children to the movies and the zoo, that he had purchased recreational equipment for the children and a remote control car for Z.
The father states that W started to go to the paternal grandmother’s home when the boys started to attend the home. He states that she stayed overnight approximately three times.[8]
[8] Affidavit of the father filed 12 October 2022, paragraph 55.
While the father further alleges that he has taken picture of injuries to the children when they come into his care, he neither produced them nor referred to such in his affidavit material, nor were such issues prosecuted with the mother, with whom he says the children should live.
The eldest three children, W, X and Y are all enrolled at L School in City E (although W is currently refusing to attend). The youngest, Z, is attending M Preschool four days per week, and will commence kindergarten at L School in 2023. W will be attending N School in 2023. The mother indicated that she spoke with W’s school and offered to repeat her for year six, but was recommended to continue onwards to high school.
The final trial commenced in City E on 21 November 2022.
Key issues
The central issues in the proceedings concern whether the children are at unacceptable risk of harm by each parent in their respective homes. These risks fall under the broad categories of neglect, sexual abuse risk, and risks relating to family violence.
Neglect
The mother was taken to a series of records produced by DCJ and the NSW Police concerning attendances both prior to and following the breakdown of the marriage, that were indicative of neglect.
The father asserted to the Family Report writer that during the relationship the mother was deficient in her maintaining of the household, the home being ridden with cockroaches and mouse faeces by virtue of her poor cleanliness.
As recorded by the Family Report writer, the mother explained “she did ‘everything’ for the children and that Mr Green did nothing to assist with the children’s care or household tasks. She said that she was constantly criticised and belittled for the state of the house and the children and blamed her for everything.”[9]
[9] Family Report dated 15 November 2022, paragraph 48.
Oddly, given the nature of his criticism of the mother and of the state of the home, the father described that he was occupied with casual work which limited his availability to deal with such issues. It seems that he engaged in various casual jobs. This leaves the position that either the father, despite the seriousness of the circumstances, failed to take action to remedy the situation, simply eschewing responsibility and choosing rather that the family would live in such circumstances, and therefore, that he was neglectful of the children to a significant degree, or in the alternative, that he has grossly exaggerated the deficiencies that he has described of the mother.
While ultimately in his oral evidence he accepted that both he and the mother bore responsibility for the state of the home, I was unable to accept this as a genuine concession, given the manner in which he used the state of the house against the mother in the presence of their case worker shortly prior to separation, as set out later in the judgment, and the manner in which he blamed the mother for them to the Family Report writer. While he asserted that he had not intended to give the Family Report writer the impression that the mother was to blame, it is not reasonable to consider that he was intending anything other than to attribute responsibility to the mother.
At the same time, the father accepted that during the relationship he regularly consumed three long necks of alcohol in a day and regularly smoked marijuana. This consumption during the relationship was unlikely to have promoted the care of the children. It renders more ironic the father’s critique of the care provided by the mother.
The father says that he has now ceased using marijuana (which appears to be borne out by hair follicle tests) and reduced his alcohol intake since separation.[10]
[10] Affidavit of the father filed 12 October 2022, paragraph 24.
Exhibits ICL 2 to 6 were a number of DCJ records of the children suffering poor hygiene, displaying injuries, wearing unsuitable clothing, infested with lice, smelling of cigarette smoke, and suffering from eczema from early to late 2020. The mother denied DCJ involvement at this time. She is undoubtedly wrong about this. It was unclear who had made the reports to DCJ.
Post separation, DCJ records from late 2021 reported the children being observed to have been left home alone by the mother, and the home to be malodorous and unhygienic. The source of the description was unclear.[11]
[11] Exhibit ICL 7.
In late 2021, DCJ records that W had been threatened in the neighbourhood (being the neighbourhood in which the family was placed by DCJ), the neighbours purportedly threatening to “stick a pole up your *private part* and rape you like your father did.”[12] The allegation as to neglect was that the mother had not taken this up with the police. It was unclear why a failure to report such a matter to the police would constitute neglect.
[12] Exhibit ICL 8.
The mother said, in response, that she has made numerous reports to the police in relation to the behaviour of the neighbours but was told that nothing could be done because they were aged under twelve.[13]
[13] Exhibit ICL 8.
DCJ records from late 2021 reported police attendance in relation to Z being, apparently, missing. He was ultimately located within the home. It was unclear whether he had been in the home all along, hiding, or had returned to the home whilst the police were there. Importantly, the police observed animal faeces “smooshed” into the carpet, a disgusting smell, minimal food in the refrigerator, and animal faeces on the beds. The bath was observed to have been filled to the brim with water, which was identified as a potential drowning hazard. The home was also in disarray,[14] to an extent that it was unclear whether Z had been there all along or not.
[14] Exhibit ICL 1.
NSW police records from early 2022 recorded that while attending the mother’s residence, two children were observed to be naked, one with faeces on his leg. Clothes, rubbish and food was observed on the floor of the home, which was emitting a bad smell like rotting food.[15]
[15] Exhibit ICL 10.
The father alleges that he continually deals with lice infestations suffered by the children.
The presence of these neglect issues during the relationship indicates marginal parenting capacity on the part of both parents, even when together, and, unsurprisingly, continuing on with the children in the mother’s primary care. Those aspects identified in the records demonstrate significant deficiencies in the capacity of the parties, and mother post separation in providing adequate care for the children.
The mother asserts that there has been an improvement with the involvement of the C Health Service, although it remains unclear for how long this support might continue to be offered.
The deficiencies in the mother’s capacity are also seen in her permitting the father to have unsupervised time with the children on multiple occasions contrary to the orders of the court.
Sex abuse allegations
An issue was raised as to whether the father has been grooming W for sexual abuse.
This was denied by both the father and the mother. Despite W having accused the mother of making the allegation, the mother said that she was not aware of the allegation until speaking with her lawyer weeks prior to the trial.
The mother was confident that no such abuse has occurred as she expects that W would not have tolerated it and would have told the mother about it.
On this issue, the first of the key records tendered was a DCJ contact record of mid-2015, wherein an unidentified person was upset because she could not attend her grandmother’s house, blaming such on W and saying that W did rude things to her, that everyone knew that W slept with her father.
The second was an entry from K Organisation records from early 2021 (close to the time of separation), which describe the mother commenting previously about the father putting W to bed.[16] A DCJ contact report from two days later recorded a description from the mother that the father puts W to bed every night and pats her bum.[17]
[16] Exhibit ICL 27.
[17] Exhibit ICL 29.
In oral evidence, the father accepted that this was so, describing that he did so at W’s request to help to put her to sleep.
It was also asserted that the father singled W out to shop with and to buy her things. The father denied that he singled her out.
Other matters were also raised, such as the father explaining, in front of a nine year old W, that she would be taught self-defence so that older boys could not touch her private parts. It was suggested that this was inappropriate. It is not clear that this is so, particularly given evidence of the violence in the neighbourhood in which W and the family live, as described in part above.
Finally, it was suggested that the father had slept naked with W when she was younger. The father denied such.
Taking these matters in combination, I am unable to conclude that they point in any cogent fashion to W being at risk of sexual abuse from the father. The anonymous report of mid-2015 does not adequately support the notion either that W shares a bed with her father or has been abused by him, even when combined with the benign description of patting of W’s bum to help her to go to sleep after putting her to bed. Even with the addition of the other matters described above, there is such a lack of cogency as to mean that they do not point to any risk of significance.
Consistent with this analysis, by the end of the trial the parties all accepted that there is not a risk of sexual harm at the hands of the father.
Exposure to family violence
The evidence as to the father engaging in coercive and controlling behaviour toward the mother, including in the presence of the children, is more compelling.
The mother alleged a long history of coercive controlling family violence throughout her relationship with the father, which was often witnessed by the children.[18] This included instances where the father would raise his voice and yell inside the family home scaring the children.[19] The father would make threats of harm including presenting a closed fist, and call the mother names such as: “slut”, “fat”, “lazy cunt” and “liar”.[20] A specific incident, witnessed by the parties’ case manager, and set out below, provides a sufficient basis to consider that this was how the father demeaned the mother during the relationship.
[18] Affidavit of the mother filed 17 October 2022, paragraph 14.
[19] Affidavit of the mother filed 17 October 2022, paragraph 15.
[20] Affidavit of the mother filed 17 October 2022, paragraphs 17–18.
This is also consistent with X’s description to the Family Report writer that “all the time my dad would be yelling at my mother.”
The mother alleges that in early 2013, the father became enraged and burnt the mother with a cigarette.[21] The father denies that he did so.
[21] Affidavit of the mother filed 17 October 2022, paragraph 16.
Although the ICL relied upon the criminal record of the father generally for a broad proposition that the father would resort to violence, one particular entry was more salient. In 2014 the father was convicted of assaulting the mother, Exhibit ICL 17 recording in the police statement of facts that the father did so, whilst in close proximity to the police, also yelling at the mother “get back in the fucking car bitch, I’m handling this.” That is, the father was aggressive, belittling and abusive of the mother in front of police. This conduct gives little confidence that his behaviour was more restrained in the privacy of the home.
It may be observed that while this was the only conviction identified in relation to the father’s conduct toward the mother, he also has convictions for other violence.
The mother alleges that when she was heavily pregnant with Z, the father “snap kicked” the mother.[22] The father denied this.
[22] Affidavit of the mother filed 17 October 2022, paragraph 17.
Exhibit ICL 13 contains file notes from a home visit by the parties’ case manager from K Organisation of late 2020. They record that at 11.30 am the father gave the appearance of intoxication. Although he denied consuming alcohol in the morning, the father’s evidence was that at about this time he was consuming three long necks per day of alcohol per day, along with cannabis.
The case worker described that the parents often argue in front of the caseworker, and that the father appeared dominant, although the mother was comfortable to stand up to him.
Although he initially denied it in his oral evidence, in his affidavit and in his subsequent oral evidence the father accepted that about one month prior to separation he may have threatened to slit the mother’s throat. He explained that he regretted it, and that he was drinking at the time. The inconsistency of his evidence about this incident leads to significant reservations about other denials he has made in relation to his conduct toward the mother. The concession itself that he may have behaved in this manner is highly troubling.
Of perhaps greatest significance, exhibit ICL 16 contains file notes from a home visit by the parties’ case manager from K Organisation of early 2021, shortly prior to separation. The case manager and mother were discussing X and then filling in a form to provide him with psychological support when the father returned home. The father proceeded to make aggressive, abusive and loud comments to the mother and Y, reducing both to tears, despite the presence of the case manager. He criticised the mother for not keeping the house clean, not buying enough with her money, not providing sufficient support for the children, describing her as “lazy” and a “fat pig.” He said that he wanted to divorce her and move out with the children. He threatened to call housing to do a house inspection as she did not keep the house clean enough, and said that as she did not keep the car clean enough he was taking it off her. It was on this visit that the case manager offered to provide support if the mother wished to leave the father. The father’s response to this in cross-examination was that “she put on the ‘crier’ next to the [K Organisation] lady”.
Despite the father’s partial denials, his conduct on this occasion should be accepted to be as described in the file note, produced as it was by the entity providing ongoing support to the family. It is conduct that is threatening, undermining, degrading and isolating, bearing significant elements of coercive control of the mother. Where the father was prepared to engage overtly in this behaviour in front of an apparently neutral observer, it raised a significant spectre as to his conduct when not so observed, consistent with the mother’s descriptions of ongoing abuse.
The father explained that it was necessary to shout at the mother on this occasion to stop her from abusing the children. Such an explanation was not apparent from his affidavit material, nor congruent with the record of the case manager, and appeared, again, to be a deflection of responsibility for his actions.
Exhibit ICL 14 is a letter from the parties’ case manager addressed “to whom it may concern” dated 4 June 2021 written in support of the mother, summarising aspects of dealing with the family, including that the father had not appeared to be active as a parent, nor to support the mother, and that the father often yelled at the children for doing things that he did not want them to do.
The evidence is sufficient to conclude that the relationship, as described by the mother, was characterised by abusive and demeaning conduct by the father toward her, regardless of the presence of the children or others. He demonstrated physical violence toward her despite the presence of the police, resulting in his conviction. He demonstrated abuse and coercive control in the presence of the case worker, removing from the mother access to a vehicle, and threatening her with the removal of their home by calling upon housing to inspect the home, the condition of which he blamed upon her.
Despite his protestations to the contrary, his oral evidence did not either detract from this picture or persuade that he has changed his attitude toward the mother. This latter point is emphasised in the steps that he has taken to undermine the mother since. The father accepted that during the supervised visits he had described the mother to the boys as a “cigaretteohlic” while placing some emphasis on his having provided a roast meal for the boys (and implicitly his superiority to the mother). In his oral evidence he asserted that this was important as the mother constantly fed the children lollies. It was unclear that there was any reasonable basis to come to this conclusion. Further, his reference to the money he had set aside for the boys, and that the mother had not done so is also reflective of an ongoing intent to undermine the mother. During the assessment process for the Family Report he criticised, to the children, the haircuts given by the mother, claiming that he would have done a better job. To the family consultant he asserted that the mother had, prior to their relationship, been a “swinger” and that he was suspicious that she might have returned to such. Each element of this behaviour was designed to undermine the mother. There can be no confidence that the father’s underlying approach toward the mother has improved since the breakdown of the relationship, despite the mother’s description that there are not issues in their communication.
There is a current Apprehended Domestic Violence Order (“ADVO”) protecting the mother from the father issued at City E Children’s Court in early 2021. This will expire in early 2023.
Family Report
A Family Report was prepared by Ms P, with interviews taking place in October 2022, shortly prior to the trial. W refused to take part in the interviews, which the Report Writer considered was an attempt on W’s part to protect herself.
The Family Report writer identified two issues during her assessment:
(1)The adverse emotional and psychological impacts on the mother both as a person and her parenting capacity with her experience of longstanding family violence and prolonged trauma; and
(2)That whatever Orders are made by the Court, the mother may not be able or willing to support the children having supervised time or highly restricted time with the father,[23](as opposed to more regular and substantial time).
[23] Family Report dated 15 November 2022, paragraphs 41–42.
The Family Report writer also addressed consequences relating to sexual abuse risk on the part of the father. Given the conclusion that there is no such risk, it is not necessary to recite those aspects of her opinion.
Ms Green
The mother described that during the relationship the father was “very abusive” to the children, primarily physically and emotionally, but also physically toward Y, who she alleged the father would smack “a lot.”
The mother asserted a preference for the paternal grandmother to be around when the father spends time with the children. She further explained to the Family Report writer the imperative for the father to spend time with the children, and why she has proposed alternate weekends. She explained her:
desperate need to have some ‘time out’ from the children and time to try to get the home in an orderly state, describing the boys as “three hurricanes”. [Ms Green] seemed to indicate that she thought alternate weekend time was relatively limited, which would mitigate the risk. When asked her view on restricting the time to during the day only, perhaps once a fortnight, [Ms Green] was clear that she needed regular weekend respite.[24]
[24] Family Report dated 15 November 2022, paragraph 46.
This was in spite of her, not unreasonable view as recorded by the Family Report writer “that she is fully aware that [Mr Green] and (the paternal grandmother) are trying to undermine her to the children and would denigrate her to them.”[25]
[25] Family Report dated 15 November 2022, paragraph 53.
This risk was reinforced during the Family Report interviews when the father described to the Report writer that the mother had previously been a swinger, and of his suspicion that she may have resumed. No reasonable basis was advanced for such, nor for the raising of such with the Family Report writer other than to smear the mother.
This is also a risk that was illustrated by the incident during supervised time with the father undermining the mother in respect of failing to save money for the children.
Mr Green
The father said it was the mother who would “yell and scream at the kids” during their relationship and since their separation.[26] The father accepted that he does “speak to the kids a bit loud” which he attributes to having a loud voice and a hearing problem.[27] He accepted that he may have spoken “a bit loud” to the mother on a few occasions. The Family Report writer noted that the father speaking loudly was not observed in the interview.
[26] Family Report dated 15 November 2022, paragraph 70.
[27] Family Report dated 15 November 2022, paragraph 69.
The Family Report writer asked the father whether he has smacked the children. Although he denied it, he also accepted that he had given Y “a little smack on his bottom.”[28]
[28] Family Report dated 15 November 2022, paragraph 78.
The father told the Family Report writer that he was:
…very concerned about the treatment the children are subject to by [the mother] including neglect and being yelled at and lack of care. He said that their house is unsafe and had been “smashed up” and “broken into” by the neighbours. He commented that the (mother’s) neighbourhood is known for these type of problems.[29]
[29] Family Report dated 15 November 2022, paragraph 76.
The father described that when he and his mother spend time with the children, they engage in enjoyable leisure activities, such as taking the children to the local zoo, or to the movies. He also described that he has acquired recreational equipment for the children, and a remote controlled car for Z.
Importantly, the Family Report writer noted:
Throughout the interview, [Mr Green] was highly blaming and critical of [Ms Green] as a parent and housekeeper....that the “state of the house” was “putrid” when they lived in [D Town] and when he returned home he would ask [Ms Green] why she had not cleaned the house...he did not do “much cleaning”...when [Ms Green] left with the children...the house was “in a disgusting state” particularly the kitchen and there was a cockroach infestation.[30]
[30] Family Report dated 15 November 2022, paragraph 74.
He also asserted that when the children spend time with him they arrive with physical injuries. Although in his oral evidence he asserted that he had taken photographs of such, none were produced. He also asserted that the children were not provided with nutritious food by the mother, and that they would smell on arrival.
Somewhat intriguingly he also described that the mother “hasn’t bothered to get the birth certificates” for the children.[31] It was unclear, as with the issue of the cleanliness of the home, why responsibility was attributed by the father to her, rather than himself.
[31] Family Report dated 15 November 2022, paragraph 79.
In much the same vein, the paternal grandmother when interviewed by the Family Report writer, was highly critical of the mother’s parenting and maintenance of the home.
W
As noted above, W did not participate in the assessment by the Family Report writer. It is, however, convenient to set out at this point out issues faced by W.
W remains in the primary care of the mother. The mother described that W can be very angry, aggressive and defiant, and that W has called the police to complain about the mother’s parenting. She also described that W can be “sweet” and that she felt that they had become emotionally closer.[32] The mother expressed that W will do whatever she wants. The mother states in her affidavit that there are difficulties with telling W no, or generally correcting her behaviour as she will call her grandmother to come and collect her, which the grandmother does. The mother states that the actions of the grandmother undermine her and her attempts to parent W, to an extent.[33]
[32] Family Report dated 15 November 2022, paragraph 91.
[33] Affidavit of the mother filed 17 October 2022 paragraph 48.
Counsel for the father put to the mother that W has formed a “trust bond” with the paternal grandmother, to which the mother agreed. She also explained that sometimes she has an issue with W going to stay with the paternal grandmother, stating that she calls the grandmother before she has even said this. It was not the grandmother’s doing, rather W’s actions.
An example of such is that the mother describes that she cannot stop W from contacting the paternal grandmother, and that W will find a way to get out to see her grandmother. One instance is that the father alleges that in late 2022 W called the paternal grandmother and asked to be collected, claiming that the mother had slapped her across the face. The father alleges that he and the paternal grandmother collected W and took her to hospital for treatment of a burn that she alleged the mother had caused in order to punish W. This allegation was not pursued against the mother and was not established. The mother denies hitting W, and states in her affidavit that it was the reverse: W hit the mother and swore at her.[34]
[34] Affidavit of the mother filed 17 October 2022 paragraph 46.
The mother states in her affidavit that W is refusing to attend school due to her being cyber bullied. The mother also stated that the school advised her that W is doing “okay” whilst she attended school, however her non-attendance is a major concern. [35] The mother echoed the concern of W’s non-attendance with the Family Report writer. The mother stated that W had barely attended school due to school refusal and she did not attend at all the prior term.[36]
[35] Affidavit of the mother filed 17 October 2022 paragraphs 39-40.
[36] Family Report dated 15 November 2022, paragraph 16.
W’s very limited school attendance was despite the support of DCJ and the family support service which remains current. The mother said that she went to W’s school at L School for a meeting regarding W’s attendance. The mother offered to transfer W to another school for the next few weeks. She also offered that W could repeat the year. The Assistant Principal advised the mother that by repeating W, she would face the same issues as at present. She described that the teachers advised to let W go to high school for next year which would provide her with a different environment. The mother accepts that this is what W wants to do.
The Family Report writer also noted that the subpoenaed material appears to suggest that W had been caught up with neighbourhood fights with teenagers and had been observed to be wandering about alone in the neighbourhood in the evenings, in Suburb Q, including when aged 10 years.[37]
[37] Family Report dated 15 November 2022, paragraph 16
X
X told the Family Report writer that the father is the only parent “that cares about us” and “he takes us on adventures, and we are going to the beach” and “we do a lot of stuff.”[38] He added “this is the bad part, Mum only likes drugs.”[39]
[38] Family Report dated 15 November 2022, paragraph 97.
[39] Family Report dated 15 November 2022, paragraph 97.
It should be noted that there was no cogent evidence to suggest that the mother is using drugs.
X stated that he:
…wants to live with [Mr Green] and added, ‘he doesn’t care about money he cares about love and all of us’. [X] then indicated that [Mr Green] is ‘going crazy for Mum’ and that he wants to reconcile with [Ms Green], however, she refuses…[40]
[40] Family Report dated 15 November 2022, paragraph 98.
When he reflected on the times “the parents were living together, X said ‘all the time my Dad would be yelling at my mother’ and recalls ‘some bad times’ associated with that.”[41]
[41] Family Report dated 15 November 2022, paragraph 101.
X also mentioned “‘my Mum’s so bad I don’t even want to see her face’ and he said she had been taking drugs for the past year.”[42]
[42] Family Report dated 15 November 2022, paragraph 102.
Y
Y did not answer any of the Family Report writer’s questions during the interview, remaining looking “ahead quietly and seriously.”[43]
[43] Family Report dated 15 November 2022, paragraph 107.
Z
Z presented as “quiet and shy”. When asked, he explained that he was seeing the Family Report writer “because dad takes us everywhere” and “mum only takes us to three places.”
Despite the negative descriptions of the mother, throughout the observation, the three boys interacted in a warm and friendly manner with the mother as she did with them.
When the father was observed with the children, in a context where the mother had given the children uneven haircuts the father said to the children “not being rude but mummy’s done an alright job but that I would have done better.”[44]
[44] Family Report dated 15 November 2022, paragraph 114.
At the end of the observation session, X was resistant to being returned to the mother. The Family Report writer noted limitations in the father’s response to this issue, failing to direct X (the Family Report writer needed to ask him to do so), and failing to remove himself, which would have improved the situation with X. He eventually negotiated with X.
Family Report Writer’s Evaluation
The Family Report writer observed underlying issues as impacting the question of the allocation of parental responsibility:
…the parents’ capacity to have equal shared parental responsibility to benefit the children is seriously impaired. [Ms Green] is a vulnerable person and parent who alleges a pervasive pattern of family violence directed toward her and her emotional and psychological wellbeing would need to be protected for the children’s interests. [Ms Green] does not appear to have the capacity to communicate directly with [Mr Green]. It would be for the best that any communication about the children continue to occur between [Ms Green] and [Ms R]. On the other hand, if the family violence allegations are not found to be valid, that would raise concern about [Ms Green] and her motivation for that. If the case, consideration be given to equal shared parental responsibility.[45]
[45] Family Report dated 15 November 2022, paragraph 143.
The Family Report writer noted that there is no dispute between the parents but that the children will continue to live with the mother. She noted that the mother is willing to engage with services, and that DCJ is currently monitoring the children’s well-being. She considered that with support services involved, the mother could be supported to provide adequate care, with a likelihood of further intervention if issues of concern arise, noting that:
A strength in this matter is that [Ms Green] likely copes better and appreciates the support of the range of support services currently in place and particularly relies on them for practical assistance such as helping with house repairs, cleaning and transporting her and the children including to appointments. She appears willing to accept ongoing involvement to help her with the children.[46]
[46] Family Report dated 15 November 2022, paragraph 136.
The Family Report writer noted that the critical issue is the nature of the time that the children spend with the father. While she observed that the mother may refuse to follow orders that are in place to protect her and the children (presumably by providing the children beyond what is specified in the orders, as she has done previously) orders should reflect the protective concerns in any event, and any orders for the children to spend time with the father should be conditioned such that it be subject to the children's wishes, or to written agreement between the parents.
Further, the Family Report writer observed that if the children were to spend alternate weekends and holiday periods with the father, that may be a positive experience for them, and give the mother some respite. However:
As a victim of family violence, it is likely that [Ms Green] may be experiencing poor self-esteem and self-worth and potentially undiagnosed mental ill health currently in the context in which the children may have been actively encouraged to defy and denigrate her by the father. [Ms Green] is primarily concerned that when spending time with [Mr Green] the children would be directly subject to verbal abuse and controlling behaviours by [Mr Green] and there would be adverse consequences for defying or annoying him.[47]
[47] Family Report dated 15 November 2022, paragraph 132.
This is against a background identified by the Family Report writer that it “would have been very difficult for Ms Green to provide the level of care and attention the children needed if she was being subject to verbal abuse and humiliation on a daily basis.”[48]
[48] Family Report dated 15 November 2022, paragraph 129.
Observing that the father, post separation, has turned his attention to providing the children with gifts and fun leisure activities, the Family Report writer considered that:
The potential reasons for [Mr Green’s] positive shift in attention and attitude [towards the boys] may be worth considering and could relate to multiple factors. He might want the children to view him favourably, more favourably than [Ms Green] and to align with him, to undermine [Ms Green’s] parenting role and further marginalise her. If the family violence allegations are correct, [Mr Green] may be behaving this way to cause harm to [Ms Green] or to exert control over the family situation rather than a genuine desire to be a better and more involved parent. If the case, it is feasible that after Court proceedings have finalised, [Mr Green] may revert to past poor parenting attitudes and family violence behaviours toward the children.
Furthermore, if the emotional denigration family violence allegations are correct, the children may be subjected to significant denigration of the mother by the father when spending time with him causing them to experience further emotional harm. The children may also feel that they need to concur with the denigration of the mother to placate and please their father, and potentially to keep themselves safe when in his care. [49]
[49] Family Report dated 15 November 2022, paragraphs 126–127.
It may be seen that the issue of time with the father pulls in different directions, even when considered in the limited plane of the manner in which it impacts the care able to be given to the children by the mother.
While time with the father provides some highly desired respite for the mother, it provides the opportunity for likely undermining of the mother to the children, in a manner that may be anticipated to undermine her parenting of the children, as their primary carer.
At the same time, other benefit can be seen of time with the father, in that it accords with expressed desires of X, and implicitly of Z, to be spending time with the father. Their ages, and levels of maturity do not point to heavy weight being placed on such, particularly where, in both cases their expressions to the Family Report writer were redolent of influence against the mother, evidenced in the nature of their criticism of the mother and comparison with the father.
However, time with the father was identified to offer enjoyable activities and the opportunity for some recovery of the relationship with the father.
If, on the other hand, orders do not permit time with the father, the Family Report writer identified that the children would react, initially in an angry and defiant manner that the mother would be required to manage.
The father sought to establish that time with him would support the children’s attendance at school, it not being apparent that there were attendance issues during the relationship. However, the Family Report writer identified that there may be other issues at play, in particular for W and school attendance, flowing from the removal of the children at the end of the relationship and their relocation into their current, difficult, location.
Importantly, the further impacts of the family violence were identified:
If [Ms Green’s] family violence allegations are found to be correct, [Ms Green’s] capacity to reflect on the adverse experiences of the children subject to his pattern of family violence behaviours would appear almost non-existent. Moreover, if [Ms Green’s] account is correct and [Mr Green] perpetrated family violence towards her that was a parenting choice he made to expose the children to trauma and an emotionally and physically unsafe and insecure parenting environment that has adversely impacted on their emotional wellbeing and sound development.[50]
[50] Family Report dated 15 November 2022, paragraph 125.
The Family Report writer observed other matters impacting on the mother:
Intersectionality issues impacting on [Ms Green] include that she has low socio economic status and been reliant on low Centrelink payment and public housing and that when she and the children were moved by authorities they were placed in a highly dysfunctional public housing estate, adding to her personal and parenting burden and that of the children. Moreover, [X] and [Y] require speech and OT therapy however this is not available to them potentially partly related to that they live in a more regional area where services are less available.[51]
[51] Family Report dated 15 November 2022, paragraph 134.
Family Report Writer’s Recommendations
The Family Report writer made the following recommendations, that:
(1)The mother have sole parental responsibility for the children
(2)That the children live with the mother.
(3)That the mother continue to receive and use all professional supports made available to her and the children.
(4)That the children receive ongoing therapeutic counselling.
If the Court determines that the father poses an unacceptable risk to the children, the following be considered, that:
(1)The children not spend any time with him.
(2)Consideration be given to the children being provided with regular respite care perhaps funded through the NDIS and/or a family support respite care service.
If the Court determines that the father does not pose an unacceptable risk to the children, the following be considered, that:
(1)The children spend time with the father on alternate weekends and half of school holidays, if they wish to do so. Ideally, that Ms R (presumably the paternal grandmother) be in substantial presence during the children’s spend time with the father.
(2)Ms Green facilitate the children’s changeovers and there be no face-to-face contact or direct communication between the parents.
(3)The father complete a Men’s Behaviour Change Program.
(4)The father undergo a mental health plan and receive psychological counselling.
Discussion
Both parties and the ICL support orders that provide for all of the children to live with the mother, and for the mother to have sole parental responsibility for each of them.
Such orders are appropriate. The family violence perpetrated by the father upon the mother renders the presumption in favour of equally shared parental responsibility inapplicable. That same violence also means that the parties should not be required to collaborate in relation to long term decision making, as such a history of coercion and control undermines the notion that the parties could make a genuine effort to come to a joint decision.
As the undisputed primary carer it is the mother who should hold decision making responsibility. While her parenting capacity is demonstrably limited, she has also demonstrated her willingness to accept support and assistance from outside agencies, and to take advice in relation to the care of the children, for example, through the school. To some degree her limitations are lessened by her engagement with outside agencies.
That engagement also points to her suitability as primary carer. Whilst it may be seen that the children are at high risk of neglect in the mother’s home, they were likewise at risk of neglect when the parents were in an intact relationship. This points to the children also being at risk of neglect from the father, whilst also being at risk of exposure to family violence from the father, in a manner described further below.
These matters point to the orders that the children live with the mother, and that she hold sole parental responsibility as being in the children’s best interests, despite the risks attendant with such an arrangement.
This leaves as a primary issue what if any time the father should spend with the children, and how such might be managed to promote the children’s best interests including to protect them from neglect and exposure to family violence.
The mother’s description of abuse during the relationship from the father should be accepted. Further, it should be understood through the lens of the evidence of the support worker shortly prior to the parties’ separation, where the father’s coercive, dominant, aggressive behaviour toward the mother was clearly illustrated. Seen against the background, for example of the criminal conviction against the mother, his behaviour is no less than highly coercive and controlling toward the mother, to which the children were exposed.
As observed by the Family Report writer, such exposure constitutes a “parenting choice…to expose the children to trauma and an emotionally and physically unsafe and insecure parenting environment that has adversely impacted on their emotional wellbeing and sound development.”[52]
[52] Family Report dated 15 November 2022, paragraph 125.
Whilst it might be argued that now that the parents are apart that there is a lesser risk, particularly in the context where the mother asserts that there is no difficulty in communication with the father, it should be concluded that a high risk of exposure still remains.
This may be seen in the identified examples of the undermining of the relationship between the mother and the children. Whether or not this constitutes an ongoing attempt at the control of the mother, or is simply an attempt to gain the affections of the children for himself over the mother, it is highly harmful and emotionally abusive conduct. It both weakens the relationship with the mother, and weakens the mother in the role of primary carer, causing the children to consider her as inferior or sub-standard. If the children form harder views of the mother, her role in parenting becomes more difficult, having greater obstacles to manage in a context where she already demonstrates inadequacy.
The father’s undermining of the mother is a matter of significant risk to the children. This is also a cogent reason to give marginalised weight to the views of the children.
Added to this, the exposure of the children to family violence during the relationship leaves an open question as to whether, in their own relationships with the father, they will also be the subject of coercion and control.
This raises difficult questions in terms of the time that the children might spend with the father.
Perhaps in recognition of these difficulties, both parents supported the making of temporary orders, which would enable the court, to some degree, to monitor the progression of time with the father prior to fashioning permanent orders. The ICL submitted that there should be an order for no time with the father, made as a final order.
While a no time order, if complied with, means that the children are not exposed to the seriously deleterious effects of the undermining by the father, the mother, by this, loses any respite that she so desperately craves, and the children lose what benefits of meaningful relationship might be available from the father, as identified by the Family Report writer.
Further, the history of the matter since the making of orders restraining the bringing of the children into contact with the father, subject to exceptions, have been met by significant non-compliance. No confidence can be had that either party would comply with a no time order.
However, unless conditioned, as suggested by the Family Report writer, by a requirement for time to be subject to agreement, or the wishes of the children, time with the father carries with it the ongoing risks as identified above without a mechanism to ameliorate them.
Whilst it may be the case that interim orders would benefit by giving a trial period, it may also be considered that the current interim orders have already achieved such, and that they indicate ongoing risk issues. In this context, where the parties have already had interim orders, further interim orders, and their corresponding effect of prolonging the litigation, are not justified.
This leaves a conclusion that neither interim orders, nor orders for no time provide circumstances that are in the children’s best interests. Orders should be made that provide for time with the father. However, those orders should not lock in a scheme of ongoing exposure to the father should he continue to undermine the mother to the children, or otherwise expose them to abuse, or to a greater level of neglect.
This is not a matter that can be left to a test of what it is that the children want, especially where the very effect of the undermining that is so dangerous to them is to change what they want, to results that may be at great variance with their best interests.
In imperfect circumstances, observing the mother’s support for time with the father, observing the mother as the person best able to judge from time to time the manner in which she may be being undermined, observing the mother as being able to consider the degree to which she needs respite to function, the necessary flexibility or responsiveness on the arrangements means that time with the father should be subject to the agreement of the mother.
An important potential effect of such an arrangement is that, by placing the choice or power to determine the children’s time with the father into the hands of the mother, the father is not placed into a position of power with respect to the mother, and is not thereby facilitated in an exercise of coercion or control over the mother.
Whilst not an ideal arrangement, the circumstances facing the children and parties are not ideal. This is an arrangement that has the potential to secure the benefits of meaningful relationship with the father, counteract undermining of the relationship with the mother and exposure to coercive and controlling behaviour by the father towards the children, and to equip the mother with the power to make the decision such that she is not the subject of control by the father through the children.
Conclusion
Final orders will be made providing for the children to live with the mother, and for the mother to hold sole parental responsibility. The orders will provide that the father is, subject to the agreement in writing from the mother (which may be by text message), restrained from coming into contact with the children.
Whilst the ICL sought orders for the children to engage in counselling, and while it would be beneficial for this to occur, there is insufficient evidence to determine that the particular scheme of counselling is available, or what the scope of obligation would, as a matter of practicality, be imposed upon the mother. Similarly, the mother cannot be directed to undertake to comply with direction from C Health Service or the DCJ, despite anticipated benefits accompanying engagement and compliance with those agencies.
While it was suggested that the paternal grandmother be in substantial attendance, it is unclear what such an order would mean in the context of this case, nor the protection such would provide to undermining of the mother, particularly given the paternal grandmother’s criticism of the mother to the Family Report writer.
The ICL should, however, be at liberty to provide these orders to NSW Police and the DCJ as, despite these orders, in the context of limited options available to the court, the children remain at risk of neglect and of exposure to family violence.
I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 14 December 2022
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