Griffin and Trueman

FAMILY COURT OF AUSTRALIA

GRIFFIN & TRUEMAN

[2014] FamCA 596

FAMILY LAW – CHILDREN – Family violence – Assessment of the risk of harm to the children in each parent’s home – Aboriginality – What time the children should spend with the non-live-with parent – Whom should have parental responsibility for the children – Greater weight to be placed upon protection of the children from risk of harm - Best interests of the children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Evidence Act 1995 (Cth) s 140(2)(a)-(c)

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Mr Griffin

RESPONDENT:

Ms Trueman

INDEPENDENT CHILDREN’S LAWYER:

Ms Shephard

FILE NUMBER:

NCC

220

2012

DATE DELIVERED:

1 August 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

1 – 4 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner

SOLICITOR FOR THE APPLICANT:

Cox West Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sperling

SOLICITOR FOR THE RESPONDENT:

Katarzyna Rutkowska

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Goodchild

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

NLS Law

Orders

All previous Orders in respect of B born … 2004, C born … 2005 and D born … 2006, (“the children”) are discharged.
The father have sole parental responsibility for the children.
The children live with the father.
The children spend time with the mother as follows:
a.During each NSW School term, commencing on 8 August 2014 from Friday after school until Monday at the commencement of school and each alternate weekend thereafter.
b.Unless otherwise agreed, on Mother’s Day weekend each year from Friday after school until Monday at the commencement of school.
c.During each NSW school holiday period after Term 1, 2, and 3, for one (1) week commencing the first Saturday at 3.00pm of each school holiday period until the next Saturday at 3.00pm.
d.During the NSW School Holiday period after Term 4 as follows:
(i)Commencing in even numbered years from 26 December at 10.00am until 2 January at 10.00am and from 12 January at 10.00am until 19 January at 10.00am.
(ii)Commencing in odd numbered years from the last day of the school term until 26 December at 10.00am and 12 January at 10.00am until 19 January at 10.00am.
Should the mother’s time with the children fall on the Father’s Day weekend then such time is suspended for that weekend.
Unless otherwise agreed, changeover will occur on a school day by the father and the mother collecting and returning the children to their schools or on a non-school day at the Front Entrance the Shopping Centre at E Street, Suburb F NSW.
The children are at liberty to communicate by telephone with their mother and father when they are in the other respective household.
Each party is hereby authorised to obtain from the children’s schools all notices, letters, school reports and invitations and each party is at liberty to attend parent/teacher interviews or other activities to which parents are invited.
The mother and father shall advise each other party as soon as is practicable in the event that any of the children are in a serious accident, hospitalised or suffer a serious illness whilst the child is in their respective care.
The children are to continue to attend G School at Suburb H for their primary school years.
The children are to remain living within a 10 kilometre radius of Suburb H unless otherwise agreed to in writing by the mother.
Each parent is restrained from physically disciplining the children.
Each parent is restrained from using illicit drugs and any form of alcohol whilst that party has the care of the children and not less than 12 hours prior to the children coming into that parent’s care.
Each parent is restrained and an injunction is hereby granted from talking with or in the presence of the children about any past allegations concerning harm to the children.
Each parent shall keep the other informed at all times of his/her current residential address and telephone contact numbers.
Each parent is restrained from attending the residence of the other parent unless agreed in writing.
The mother is restrained from allowing the children to come into contact with Mr I born … 1981.
Each parent is restrained from denigrating or allowing any third party from denigrating the other parent or members of that parent’s family or household within the presence or hearing of the children.
The mother shall immediately upon the making of these Orders do all things necessary to enrol in and complete a Parenting After Separation course as recommended by the Independent Children’s Lawyer.
Each parent is to continue to attend upon their respective psychologist, as required pursuant to Order 19 of interim Orders made on 4 July 2014, to address the following issues:
a.The effect upon the children of exposure to any form of family violence.
b.Drug and alcohol misuse and the effect that this has on parenting the children.
c.The effect that denigrating the other parent or family members has on the children.
d.To develop effective parenting strategies.
e.For any other issues that the counsellor sees relevant.
Each parent continue to attend upon a Community Welfare Service or Family Support Service for a period of not less than six (6) months, or for such period as is recommended by such service, to seek assistance in developing their parenting skills.
The father is restrained from driving a motor vehicle unless validly licensed.
All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: NCC 220 of 2012

Mr Griffin

Applicant

And

Ms Trueman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

B, who is 9, C, who is 8, and D, who is 7, have had a great deal of disruption in their lives since their parents separated some years ago. They have attended four schools in the last four years and lived with each of their parents at different times and sometimes in the homes of relatives.
During the parenting proceedings it also became apparent that the children have been exposed to a significant degree of conflict between their parents. It also became clear that it was likely that the children were currently being exposed to family violence in their mother’s home and this would continue in the future.
On the final day of the parenting hearing, 4 July 2014, after hearing submissions in relation to interim and final orders, I made interim Orders which included changing the children’s residence to reduce their exposure to ongoing family violence. I indicated that I would publish my reasons for Judgment at a later date. These are the reasons for the interim Orders and also for final orders in the matter.

Background

The father, who is now aged 34, was born in 1979. The mother, who is now 28, was born in 1985. The parents are both Aboriginal. The parents met in about 2000 when they were living in J Town where the father grew up. They began living together in the western suburbs of Sydney in around 2002 to 2003.
The parent’s first child, B, who is now aged nine, was born in 2004.
The second child, C was born in 2005.
The third child, D was born in 2006. The father’s brother Mr K died on the same day as D was born and the father was severely emotionally affected by his brother’s death and began drinking very heavily.
The parents’ relationship was characterised by a high degree of conflict, violence and instability for a long period of time, though there are disputes about many of the violent incidents, which are dealt with later in these reasons.
On 12 March 2007 in the course of a verbal argument the father punched the mother to the head and her ribs using a closed fist, resulting in the mother receiving bruising. Although the father was not charged at the time, an Apprehended Violence Order was made on 5 April 2007 against him for the protection of the mother for 12 months. This included an Order that the father not go within 100 metres of the mother’s home.
A few weeks later, in May 2007 the father was seen by police at the mother’s home and was arrested and charged with assault occasioning actual bodily harm in relation to the March incident and with breaching the Apprehended Violence Order for being at the mother’s house in May. When he was arrested the mother indicated that she had invited the father to the home and the father said he was living there with the mother’s permission.
In August 2007 there was an incident at the parent’s home in which the father broke the mother’s mobile phone and threw it to the ground. In the course of an argument about the mother ringing the police, as the mother feared she was about to be assaulted and raised her arm to protect her face, the father bit her on the arm, causing a bite mark and bruising. The father also kicked and punched walls at the house causing damage. When the police arrived and arrested the father he adopted a boxing stance and invited the police to fight with him and Police sprayed him with capsicum spray. He also struggled when being taken to the police caged truck. The children were in the house for at least part of this incident.
The father pleaded guilty to the March, May and August offences on 30 August 2007 and served three months in prison. Upon his release in November 2007 the father was met at L Town jail by the mother. He was released on parole for nine months.
After the father was released from prison, the mother lived in M Town with the children and the father was regularly at the home.
In June 2008 the father was arrested and charged by police with serious offences allegedly committed against the mother. His parole was revoked and he served the balance of his sentence from June to November 2008 and was also remanded in custody for 11 months prior to a hearing in relation to the new matters. During this period the mother regularly visited the father in jail with the children.
In mid-2009 these charges against the father were dismissed following a committal hearing and he was released from jail.
The father was also charged with assaulting and intimidating the mother in April 2011. Court records indicate that the father was convicted following a hearing and was ordered to complete community service. The facts in relation to this offence are unknown.
Both parents agree that the relationship had ended by mid-2011 and the children were primarily in the care of the mother. The children attended N School and lived with the mother and some of the mother’s extended family, including the maternal grandmother. The mother then formed a new relationship with a man the mother’s family had known for some time, Mr I.
Although the circumstances leading to the children coming into the care of the father are in dispute and are dealt with later in these reasons, it is common ground that by mid-January 2012, the children were being cared for by the father and that he took them to Newcastle where he had extended family. The father initiated parenting proceedings in Newcastle at the end of January 2012. Whilst in Newcastle the father enrolled the children at a local public school.
On 22 February 2012 a judge of the Federal Circuit Court in Newcastle made Orders following an interim hearing that the children live with the father and spend supervised time with the mother.
The father returned to live in the western suburbs of Sydney with the children in around March 2012. Initially, they lived with the father’s mother.
The father obtained his own accommodation through the Department of Housing for himself and the children in late December 2012. The children were enrolled in G School, a Catholic primary school, a short distance from the father’s home.
During the time the children lived with the father he completed the NEWPIN parenting program. He attended and completed most of the first two parenting modules between March and December 2012 and then resumed again in May 2013. The father also engaged in a support group called “The Shed”, which provided a range of services to support him in his parenting and volunteered in an Aboriginal cultural project aimed at educating Aboriginal children in the local area.
On 29 March 2013 the father was arrested and charged with a high-range drink driving offence and driving whilst disqualified. It was the father’s fourth charge of drink driving and second charge of drive whilst disqualified, though the father has never been never licensed to drive.
B was injured in March 2013 whilst playing at school and required surgery to treat a fracture on his left arm.
From February 2012 to June 2013 the children’s time with their mother was supervised through Relationships Australia at the Children’s Contact Centre at Suburb F. From July 2013 the children spent unsupervised time with their mother with changeovers occurring at the contact centre.
On 14 September 2013 the father delivered the children to the contact centre at around 9.45 am. The children spent their day with the mother and returned to the contact centre for changeover with their father at around 4.00 pm.
The mother says that as B was getting out of the car, he clung to her and said “I don’t want to go home because I’m sick of Dad bashing me. He bashes me after every visit.” When the mother and the children entered the contact centre the mother told the centre coordinator that B needed to speak to her. B began to cry and when the coordinator asked him what had happened he made similar serious allegations that his father assaulted him.
As the father was due to collect the children from the centre, the coordinator telephoned the father and told him there was a delay and that he should return in about half an hour. The coordinator then contacted police and the Community Services Helpline. Although the father showed police a copy of the Court Orders, which indicated the children were to live with him, a decision was made by police to place the children into the mother’s care.
On the following Monday 16 September 2013 the father became aware through a letter from the mother’s solicitor of the allegations that had been made by B. The father denied all allegations of having harmed B.
A Provisional Apprehended Violence Order was issued for the protection of each of the children prohibiting the father from approaching or contacting them by any means. On 18 September 2013 a Judge of the Federal Circuit Court made Orders for the children to live with the mother and all other Orders were suspended.
After the children were returned to live with their mother in September 2013 she enrolled them in N School once again. It is not entirely clear where the mother and children lived between September 2013 up until the date of the hearing and this issue is dealt with later in these reasons.
The father was charged in relation to the alleged assault on B on 30 November 2013. The criminal charges proceeded to hearing on 29 May 2014 and the father was acquitted of the assault charge and the Apprehended Violence Order was also dismissed.
On 10 December 2013 the mother was diagnosed with cervical cancer and received treatment for a period of 8 weeks from this date. The mother completed her treatment and at the time of hearing was in remission.
Other than spending a short time together during the interviews for the preparation of a family report in December 2013, the children spent no time with their father between September 2013 and June 2014.
Consent Orders were signed in March 2014 providing for the children to spend time with their father for one day each weekend between 10.00 am and 4.00 pm alternating between Saturday and Sunday and that the time be supervised by the paternal grandmother. These Orders were not actually made by the Court until 29 May 2014. The children had spent three occasions of weekend time with the father after the Orders were made before the hearing.

Areas of Dispute

Have the children been harmed by exposure to domestic violence?

Although there is no dispute that the father was convicted in respect of violence against the mother on occasions during the relationship and spent time in prison, he only admits assaulting the mother on one occasion in 2007. The mother alleges that the father was violent towards her throughout their relationship and in the presence of the children and appears to suggest that he is still a violent person.
The father also contends that the parents had a mutually violent relationship and that the mother was violent towards him in the presence of the children, which is denied by the mother. There are also issues relating to the children continuing to be exposed to violence after the parents separated that require resolution.

Father’s violence

On the basis of the father’s admitted criminal history and Court records, I am satisfied that in the course of the relationship with the mother the father was violent towards her on three occasions. These were significant events and the mother was on two occasions physically harmed. I am also satisfied that each of the incidents occurred at home and while it is not clear that the children were physically present, they were exposed to violence and the harm associated with it.[1]
[1] “Family violence” is defined in the Family Law Act 1975 (Cth) in section 4AB. Subsection (4) outlines examples of situations that may constitute a child being exposed to family violence, which include seeing or hearing an assault of a member of the child’s family by another member of the family, comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the family and being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the family.
I am also satisfied that the relationship between the parents is volatile and highly conflictual and that the children have been exposed to this style of parental interaction over many years.
However, I am not satisfied that the father is generally a violent person or that there is an unacceptable risk of harm to the children on this basis for the following reasons. Although the mother makes generalised statements about the father’s violence, she provides no specific details of incidents even those where the father was convicted. Further, there are no other matters of violence involving the father in police records or recorded in the father’s criminal history. There is no suggestion that the father has been violent in other contexts.
The father appears now to have good insight into the impact of violence upon the children. He says in his affidavit that he deeply regrets the role he played in exposing his children to these abusive episodes and says that he realises that is “entirely inappropriate”. The father gave similar oral evidence under cross-examination, to the effect that children should not be exposed to any violence or “bad behaviour” and that being angry and yelling around children should be “not tolerated” as children pick up on everything in the household.
The father also says in his affidavit that a major contributing factor to his behaviour was his heavy reliance on alcohol and that he benefited from undertaking alcohol counselling and anger management courses as part of the requirements of his parole. He says he has learned not to use alcohol in the manner he did previously, “as a way of dealing with adversity”. The Family Consultant said under cross-examination that in his opinion, if the father still has an alcohol issue it is likely to be “a binge issue rather than an everyday one”.

The father has also received ongoing treatment for depression and anxiety and has attended upon a general practitioner and a psychologist and taken antidepressant medication. Overall, the father says he has learned various coping strategies to help deal with stressful situations and feels that his mental state has improved since separating from the mother.
I am satisfied that the violence within the parents relationship has reduced since the parties have finally separated and that the father has benefited from the programs he has completed as a condition of his parole and at NEWPIN and the Men’s Shed. I am also satisfied that an improvement in his psychological functioning through medication and psychologist’s intervention and a reduction in drinking has assisted in reducing his violent behaviour. While there remain some concerns about the impact upon the children of his previous violence towards the mother, I accept and attach weight to the evidence of the Family Consultant which was to the effect that the children appear surprisingly unaffected, to the extent the consultant was able to ascertain, by their exposure to violence between their parents.

Has the father been violent towards the children?

Although it is not entirely clear, as the mother gave contradictory evidence concerning this issue, it appears that she maintains that the father assaulted B as B initially alleged in September 2013.
The mother’s evidence in relation to this allegation seems to be based entirely upon reports made to her by B and to the contact centre staff.
On 14 September 2013 the mother says that at the end of her time with the children that day B clung to her and started to cry and said he did not want to go home because he was sick of his father bashing him after every visit. The mother said that as they entered the contact centre for supervised changeover she reported to the coordinator of the centre that B was upset and needed to speak with the coordinator. B repeated the allegation to the coordinator and added that the father hit him on the top of his legs and arms and punched him in the head with a closed fist. The coordinator wrote in a letter attached to the mother’s affidavit that B told her the father hit him with “metal things” and an “iron pole” and showed her a horizontal mark on his left forearm near his elbow that he said was caused by the blow from the metal pole. B also told her that the father threw things at him and hit him with a phone charger cord and was scared because he did not want to go home to the father.
The father denies each of these allegations.
I am not satisfied, to the requisite standard, that the father has on any occasion been violent towards B. No affidavit has been provided by the coordinator of the contact centre and she also did not provide a statement in the criminal proceedings so this evidence has not at any time been tested. The scar that the coordinator observed on B’s left arm, which she believed to be of significance, may very well have been related to B’s then quite recent surgery to that arm. B’s disclosures in his interview with police about the alleged assaults are far from clear.
Further, the Family Consultant noted that B made only very generalised allegations about the father in the course of his assessment, (which was carried out within six weeks of the alleged assault) and did not repeat the allegations he made on 14 September. Of significance, the Family Consultant was of the opinion that B showed no concern when observed in the father’s presence quite soon after the allegations were made and said overall the presentation was inconsistent with B being fearful of his father. At [41] of his second report he said:
There was a strong contradiction between [B’s] negative statements about his father and the observed loving behaviour with him, which occurred only twenty minutes after he expressed those views.
B’s strong criticisms of the father included describing him as “an evil nasty dad”, whom he hates, who has hit him and called him “a dog”. He was unable to be more specific about why he felt this way and could not remember actual details of the alleged hitting.
The Family Consultant was of the view that B has been most affected by the parental conflict and it is predicted he will experience “divided loyalties into the future, at times siding with one parent over the other”. The Family Consultant said this was not uncommon for children of his age in similar family situations. His oral evidence was to the effect that B may be confused and have split loyalties, causing him to say one thing to one parent and another thing to the other parent. This could explain why B made allegations of violence against his father to his mother.

Have the children been exposed to violence perpetrated by the mother or in the mother’s home?

It is the father’s case that the mother is a volatile and at times violent person. In his affidavit the father relates a number of the mother’s violent incidents, including an allegation that the mother stabbed him in the month following B’s birth, and in his version of the incident in August 2007, which resulted in his incarceration, the father alleges that the mother came at him with a knife.
The father also alleges that in February 2011 the mother struck him with a beer bottle to the right side of the face and that the force of the blow caused the bottle to shatter and he suffered a laceration to the right side of his face. In another incident a short time later the father says that the mother chased him with an object that he believed was a knife and threatened to “drive this knife into [him]”. Suburb O Hospital notes indicate the father reporting such an incident occurring in early February 2011 when he was being attended to in respect of another incident, about a week later.
The father relates another incident where he says the mother repeatedly struck him with a plastic cricket bat and that C, who was 6 at the time, comforted him as he was unable to move due to his injuries. The father describes C as being distraught during this incident. He says that he attended Suburb O Hospital the next day with extensive bruising over his entire body and a cut over his eye. The father says he also reported the incident to Suburb O police, but on the day the mother was arrested for questioning he told police that the claims against the mother were a false accusation, due to pressure and threats from her.
Each of the incidents the father relates in his affidavit were denied in their entirety by the mother.
I am not satisfied that the mother stabbed the father in the month following B’s birth as alleged as there is no other evidence to support this allegation. My findings in relation to the incident in August 2007, which are consistent with the Statement of Facts tendered when the father pleaded guilty, do not include a finding that the mother came at him with a knife. There is no other evidence to support this finding and I am not satisfied that it occurred.
Although the father says that he reported the incident when he was struck with a bottle by the mother and was treated by ambulance officers, there are no records to support this allegation in the material produced from the Ambulance service. The only possible corroboration of this incident is an Ambulance record of 4 February 2011 which refers to ambulance officers attending the father at a police station and noting that the father had a laceration to his right eyebrow. He was described as intoxicated, agitated and uncooperative. In my view, this record is too vague and non-specific to relate to any of the father’s allegations and little weight is attached to it.
However, there is evidence to support the father’s allegations concerning the assault using a cricket bat in the Suburb O Hospital notes relating to an admission on 10 February 2011. On that occasion the father told hospital staff that he had been bashed by his girlfriend or ex-girlfriend the night before with a cricket bat. He reported feeling pain all over his body and presented with a laceration of about 1 centimetre to his left leg. He was observed during the day to have bruising to his right shoulder, bruising all over his right back, lower right side of chest, over his right upper limb and over his left arm. He was tender all over his right upper limb and chest.
In addition to alleging that the mother herself was violent in these specific instances, it is the father’s case that the mother has continued to form relationships with violent partners and exposes the children to violence when they are in her care. The mother denies these allegations.
The father says that on about 10 January 2012, just after he returned from Newcastle and had returned the children to the mother, he received a telephone call from the mother, who was upset and crying, and he could also hear the children crying and sounding distressed in the background. The father says the mother asked him to come and stay with them because he was frightened of Mr I (her then boyfriend). The father says he did not agree to go to the mother’s house but agreed to meet her at Suburb F train station. He says that he met up with the mother close to midnight at the station and saw that she had bruising on both arms, had a black eye and was wearing dark sunglasses. He says the mother told him Mr I had hit her. The father says he encouraged the mother to report the incident to police and offered to take her to the police station but she refused. According to the father the children were visibly shaken that evening and both B and C said that Mr I hit their mother and also “[Mr I] pulls our hair and spits on us”.
The mother disputes that she ever met with the father in January 2012 or told him that she had been assaulted by Mr I. She says she and Mr I did argue from time to time but she denies that Mr I subjected her or the children to physical abuse.
In a Children and Parents Issues Assessment Report, a Family Consultant indicates that when the children were interviewed the following month, each of them supported the father’s version of events that the mother had rung the father asking for help, that they had met at Suburb F Station late at night and that she was crying and upset as Mr I had bashed her and hit the children. The children also reported that the mother had bruises and the father told the mother to call the police but the mother refused, and that the mother had asked the father to take the children and look after them.
I am satisfied, having regard to the matters set out in s 140(2)(a) to (c) of the Evidence Act 1995 (Cth) that the mother’s boyfriend, Mr I, was violent towards her and the children and that the children were exposed to violence in the mother’s home during the course of her relationship with Mr I for the following reasons. The father was challenged extensively under cross-examination as to details surrounding these events but remained firm as to his version. The mother gives no alternate version of this event at all and simply says that it did not occur. The Family Consultant who interviewed the children a short time after these alleged events said that although the content of the children’s stories were consistent, they did not use the same words when describing the incident. Each offered their own version of events and were able to give quite detailed accounts of the violence between the mother and ‘Mr I’. In her opinion each of the versions was authentic and the children did not appear to have been coached by the father.
Further, although in many respects the maternal grandmother’s evidence was unsatisfactory and at times quite unbelievable, she did concede when questioned about whether she saw bruises inflicted upon the mother by “Mr I” that she had seen “just one bruise” on the mother’s arm.
I do not accept that the father would simply invent the entire incident with very specific details such as meeting at Suburb F train station late in the night and that the children were influenced by him or told lies, which happened to be consistent with each other and with the father, as submitted by the mother.
I am also satisfied that the children came into the father’s care in January 2012 as a result of the mother leaving them with the father following the meeting at Suburb F train station as she could not cope with caring for them.
In being so satisfied, I reject the mother’s version of the circumstances in which the children came into the father’s care, that in around mid-January 2012 she allowed the children to spend overnight time at the paternal grandparents house while she went to a funeral. She said that the father assisted by other paternal family members retained the children and removed them from the western suburbs of Sydney to Newcastle. The father says the mother did not mention the funeral and the paternal grandmother (who also attended the funeral) confirmed that it occurred the following week. I also find it inherently unbelievable that the mother took no steps to have the children returned to her but waited until the father initiated proceedings in the Federal Circuit Court in Newcastle.
In my view the most concerning evidence of all in this matter in relation to the children’s exposure to violence is the evidence given by the mother under cross-examination about the circumstances in her home. Although the mother gave very contradictory evidence concerning the domestic circumstances of the children after they returned to live with her in September 2013, I am satisfied that the mother and children spent extensive time living at the maternal grandmother’s home since separation as this at least is conceded by the mother and the maternal grandmother.
There is no dispute that the mother’s family are close knit, with the mother’s four sisters and their children also at times living at the maternal grandmother’s home. The maternal grandmother also cares for some of her other daughters’ children, either permanently or from time to time.
Under cross-examination it became apparent that police have been called to the maternal grandmother’s home on a number of occasions between 2009 and 2013 in relation to violent domestic disputes involving the maternal aunts and on occasions the mother herself, and that the children at the home, including at times, the children in these proceedings, have been exposed to those incidents.
I find it particularly disturbing that both the mother and maternal grandmother when being cross-examined about these incidents normalised and minimised the significance of violence in the maternal home. For example, the maternal grandmother when describing a fight in 2011 between the mother and her sister in which the mother punched her sister to the face said “they have fights now and again”, and “they have squabbles like all sisters do”. She said mainly the incidents were verbal but have also involved “a little slap, that’s about it”.
Police records indicate that there was an incident at the maternal grandmother’s home in November 2013 in which one of her daughters grabbed the other by the hair and pulled her to the ground, began to punch her to the head and kick her in the chest causing red marks and scratches. The mother tried to intervene. An ornament was then thrown at a window, causing it to smash and broken glass to fall inside the home. A chair was then used to smash another window in the home. As one sister raised a bottle above her head to strike at the mother, a child in the home ran up and stood between them, trying to intervene. One sister then proceeded to punch the other to the jaw four times and raised a bottle above her head and said “You slut, you’re gone, you wanna go being cheeky. I’ll bottle ya”. This incident, the maternal grandmother said, “just got heated”.
The mother was cross-examined about an incident in November 2011 between herself and one of her sisters in which a cricket bat and golf club were used and the mother punched her sister Mr P in the mouth. The mother described such an event as “little arguments between sisters”, a “little scuffle” and agreed that they have fights now and then. She also agreed that the young children were in the house during that incident but says they didn’t see it.
Police records from October 2013, a period where I am satisfied the mother and the children were living at the maternal grandmother’s home, indicate a brick was found in the kitchen of the home one morning, having been thrown through the window, smashing it, at some point during the night.
These incidents indicate that in the maternal home the children are being exposed to quite regular violent behaviour. It also appears that the children have at times intervened in these violent altercations. It is apparent that extended maternal family members do not protect the children in the home from exposure to this violence, and on the basis of the evidence given by the mother and maternal grandmother, the violence is minimised and normalised by the adults within the maternal home.
As a result ultimately of the mother’s own admissions and the maternal grandmother’s evidence, I am satisfied that the children are exposed to ongoing family violence within the maternal home.
At the hearing, after the level of violence in the maternal home was revealed, the Family Consultant was cross-examined. In his two reports dated 10 January 2013 and 7 January 2014 it appears that the Family Consultant’s general understanding of issues relating to family violence were that they were “allegations” only made by each of these parents against the other. In his most recent report the Family Consultant had recommended that the children remain with their mother, essentially because this arrangement would provide greater stability to the children for their residence and school not to be changed again.
When the mother and the maternal grandmother’s evidence relating to violence in the mother’s home were put to him, the Family Consultant said that he changed his mind regarding recommendations as to the children’s living arrangements. He recommended that, if the Court found this level of violence proved in the maternal home, the children should reside with their father and spend time with their mother, notwithstanding the instability of another change.
The Family Consultant was concerned that violence was being presented to the children in the mother’s home as a norm, which would not be good for them psychologically or socially.

The Law & Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.
The objects 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.
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).

According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
As these proceedings were commenced prior to 7 June 2012, each of the primary considerations are to be balanced equally.
The meaning of the phrase “meaningful relationship” is not defined in the Act itself. The Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[3] (2007) Fam LR 518
[4] [2006] FamCA 994
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
Although there are shortcomings in relation to each of the parents, which will be dealt with further in these reasons, I am of the view that a meaningful or significant relationship with both parents will be of advantage to these children. Each of the parents’ proposed orders, which involve the children living primarily with one parent but spending regular time (every second weekend and block time during school holidays) with the other parent, would have the effect of the children enjoying a meaningful relationship with each of their parents.
The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, looms large in this case.
Although I am not satisfied that either of the parents has been physically abusive towards the children, the children have been exposed to family violence perpetrated by the father during the time the parties lived together, which may have caused some psychological harm. However, the evidence of the Family Consultant, to which I attach significant weight, is that the greater and current concern is the harm occasioned to the children as a result of the exposure to family violence in the maternal home.
Under the arrangement put in place by the orders proposed by the Independent Children’s Lawyer, which were made on an interim basis at the conclusion of the hearing, there is still some risk of psychological harm from the likely exposure of the children to family violence when spending time in the maternal home. Although this risk could justify the imposition of supervision for the mother’s time with the children, this is not sought by the father or the Independent Children’s Lawyer. In any event, it is impracticable and unrealistic to impose supervision of a child’s time with a parent on an indefinite basis. Rather, the Court must consider the risk of harm to the children under the proposed orders and determine whether it is unacceptable.
The Orders made on an interim basis not only reduce the risk of exposure to family violence in the maternal home as the children are living with their father, they also reduce the risk of psychological harm in the maternal home arising from the persistent involving of the children in allegations made against the father.
I am particularly concerned about the manner in which the mother and maternal grandmother responded to what they say were concerns about possible sexual harm to D. Each of them described persistent questioning of D in a highly leading and inappropriate manner having regard to her age, and in my view, induced a disclosure of sexual harm, which was then attempted to be used against the father. The mother did not include in her affidavit that she no longer pressed the allegation of sexual abuse by the father and at the hearing this allegation was conveniently withdrawn, with the mother describing it as something she must have “misunderstood and didn’t correct it at the time”.
Similarly it appears that B has suffered psychological harm from the constant conflict and allegations between his parents such that he has difficulties with divided loyalties. He may very well have made the disclosure concerning his father assaulting him in September 2013 to gain a particular response from his mother.
Although the concerns I have in relation to the risk of harm to the children in the maternal home as a result of exposure to family violence and psychological harm is sufficient to have ordered that the children reside with their father, I am not satisfied that reducing the time further than that proposed in the Independent Children’s Lawyer’s orders, which were made on an interim basis, is required in these circumstances.

Additional considerations

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views expressed by the children

When the children were last interviewed by the Family Consultant in December 2013 they expressed negative views about residing with their father. However, the Family Consultant was of the opinion that these views were inconsistent with the children’s behaviour and in light of the way in which the parents had involved the children in the conflict, he was of the view that little weight should be given to them. I accept the Family Consultant’s opinion and in light of the children’s ages, attach little weight to their views.

Relationship with parents and other significant persons

Despite the serious allegations raised that the father assaulted B, in observation a few months later, the children showed no signs of fear of the father and both B and the other children appeared to maintain a close and positive attachment to him. The children were described as having run excitedly over to their father and hugged and kissed him and the paternal grandmother when reunited in the interview. Their behaviour in this regard was consistent with that observed in the first report in January 2013, when the children were in the father’s care.
The Family Consultant found the children to have a “similarly” or “mutually” positive attachment with both parents, despite the various allegations in these proceedings.
When observed with the mother in preparing the first report in January 2013 (when the children were not in her care), the children were observed to be very happy to see her and engaged lovingly. They were affectionate with her, but then happily returned to their father.
The children would also have formed relationships with the maternal grandmother, having recently lived at times in her home and spent time in her care, together with other members of the maternal family, such as maternal aunts and cousins. They have also had a longstanding positive relationship with the paternal grandmother. The arrangements under the interim Orders would on the evidence before me allow the children to continue to develop these important extended family relationships.

Willingness and ability of each parent to facilitate a relationship with the other parent

Since separation, each of the parents has shown an unwillingness and inability to facilitate and encourage a close and continuing relationship between the children and the other parent, with each making allegations against the other. The result has been that much of the time between the children and the non-residential parent has been required to be supervised, probably in retrospect, unnecessarily.
At the date of the hearing, in my view, the mother still seemed unable to facilitate and encourage the children having a relationship with their father. She seemed to be of the view that, as she had suffered at the hands of the father and he had failed to take full responsibility for his violence, that he, in effect, did not deserve a close and continuing relationship with the children. Although she gave contradictory evidence, ultimately the tenor of it was that she did not want the children to have a close relationship with their father, and would prefer that they not see him at all, despite her proposed orders including time with him.
Although the father in the past has made many allegations concerning the mother’s capacity and at times did not facilitate a close relationship between her and the children, at the hearing he appeared more willing to see the benefit of the relationship for the children and make efforts to facilitate that relationship with the mother.

Likely effect of change in the children’s circumstances

The children’s circumstances changed upon the making of the interim Orders, in that they returned to live with their father. Although it had been some time since the children had lived with their father and returning them involved yet another change, in my view, this change will have been and continue to be of benefit to them.
Firstly, they will return to their previous home, which was well arranged to meet the children’s needs, and school, which is nearby. In my view, there will be greater stability in the father’s home than with the mother. The father in his oral evidence described a good understanding of the importance of consistency and stability in daily routines, whereas the children’s circumstances with the mother involved a great deal of disruption on a daily basis with her effectively living in two places and their care being shared by many maternal relatives. Although the mother gave extremely confusing and contradictory evidence about the most recent period the children were living with her, I am satisfied that the children mainly lived with the mother for lengthy periods at the maternal grandmother’s home but sometimes spent one or more nights each week in a mobile home in a caravan park. The mother saw no difficulties with this constant change in the children’s daily routine.
Although I had some small concerns about the fact that the children had missed more days of school while residing with the father than the mother, the father seemed to gain an understanding during the proceedings of the importance of the children attending on each school day.

Practical difficulty and expense of spending time / communicating with the other parent

There is some practical difficulty in the children spending time with the parent they do not live with as only the mother has a driver’s licence. However, over a number of years when the children have been in the care of each of the parents at different times, there has been no real practical difficulty in spending time with each other parent. The parents live a relatively short distance from each other and have a well-demonstrated capacity to seek assistance from extended family members and to utilise public transport.

Aboriginal background

Each of the parents is Aboriginal and shows a commitment to raising their children within Aboriginal culture. Both of the proposed suite of orders would ensure that the children’s right to enjoy their Aboriginal culture, including enjoying it with others who share that culture, will be assured.

Capacity of parents

The Family Consultant had no concerns about each of the parent’s capacity to meet the children’s physical and day-to-day needs. The children did not appear to be neglected and were well clothed, clean and well-fed in each of the parent’s respective care.
Each of the parents articulated a capacity to understand the needs of their children, though the father in my view expressed a greater understanding of their individual needs. I am also satisfied that when living with the father, the children participated in a range of school and extracurricular activities, including sport, at which they appeared to excel, which were not available when living in the maternal home.
The father has depression and anxiety, for which he has sought treatment. He seemed to be aware of the way in which his mental wellbeing may impact upon the children, and the importance of continuing in appropriate treatment.
There were also concerns that arose from evidence in the proceedings that each of the parents has used cannabis in the past, though current usage is unknown. Under cross-examination the father showed an understanding of how cannabis use could affect his parenting of the children, such as it resulting in him not maintaining a routine and suffering from mood swings. The Family Consultant gave oral evidence that he had not observed these parents to be affected by cannabis to an extent that would impact upon their ability to properly parent the children.
It also became clear in the proceedings that due to the father’s long history of drink driving offences, if he were to commit another such offence he would in all likelihood be sentenced to prison, which would have a dramatic effect on the care of his children. The Family Consultant said under cross-examination that if the father has participated in programs to address his drinking, it indicates he is motivated and this would give the Family Consultant more confidence in the father’s statement about reducing his drinking. The father has also agreed to give an undertaking that he will not drive a motor vehicle unless he is appropriately licenced.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

There is no doubt that the parents love their children and have done their best as parents. They are each responsible in the sense that they have physically looked after the children when in their respective care. The mother has demonstrated at times that she has a capacity to earn an income and pay rent for appropriate premises for her children, though it is clear at times that she has not resided there but with extended family. The father has secured appropriate accommodation and fee support for the children to attend a Catholic school.
Neither parent has understood through their actions to date that a responsible parent should not involve children in the conflict between the parents. On many occasions these children have been exposed to and even used by one parent against the other in this conflict.

Family violence

As indicated and discussed at length above, family violence is a significant factor in this matter and of greatest concern is the risk that the children will be exposed to family violence within the maternal home. In my view, this risk can be mitigated by having the children live with the father and spend time with the mother on alternate weekends, and half of their school holidays.

Whether it would be preferable to make an order least likely to lead to the institution of further parenting proceedings

The inclusion of an order restraining the parties to remain living in the same area will reduce the possibility of one parent relocating with the children, which would lead to the institution of further proceedings.

Can the parents share parental responsibility?

The mother seeks an order for the parties to share parental responsibility for the children, whereas the father is seeking to have sole parental responsibility for them. On an interim basis, the Independent Children’s Lawyer sought for the father to have sole parental responsibility and this order was also sought on a final basis.
Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s 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 or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Although the presumption does not apply in cases such as this where both parents have engaged in family violence, joint parental responsibility must still be considered as it is proposed by one of the parties.
In his oral evidence the Family Consultant expressed the view that it would be very difficult for these parties to exercise joint parental responsibility as he said, unfortunately, neither parent appeared well-disposed towards the other parent’s position in the children’s lives. He was of the view that the parent whom the children live with should be the one exercising sole parental responsibility, but that the non-live-with parent should be involved in schooling and extracurricular activities, despite not being given a say in decisions regarding the children.
The Family Consultant agreed with a suggestion put by the mother’s counsel that there be a limitation on sole parental responsibility to one parent in that the parents should be restricted from living outside of a certain geographical proximity, particularly having regard to the father not having a driver’s licence and the past difficulties in the parties’ communication, to facilitate the children spending time with the other parent.
It is not in dispute that these parents communicate particularly poorly with each other and each have at times made serious allegations against one another. They have demonstrated no capacity to act cooperatively for the interests of their children, even over issues such as schooling. Having regard to the level of disruption these children have suffered and the need for stability in their lives, I am of the view that it is in the children’s best interests for the parent who is to have primary care for them to have sole parental responsibility.

What time should the children spend with the non-live-with parent?

The Family Consultant was of the view that a “50/50” arrangement would be unworkable in this case because the parties in the past have had a history of not being able to share the children with one another and persisting in “quite florid allegations” about the other parent’s mistreatment of the children. He was of the view that the children should live primarily with one parent and spend substantial and significant time with the other parent, or something less.
Substantial and significant time includes, by definition, non-weekend and holiday time with the non-residential parent as well as weekend time. In this case, it would be unnecessarily disruptive and unsettling for these children to have an arrangement whereby they spend time mid-week with their mother, especially as she lives from time to time in different homes.
The Independent Children’s Lawyer sought on an interim and final basis for the children to live with the father and to spend time with their mother on alternate weekends and for half of school holidays. Interim Orders along these lines were made on 4 July 2014 and it is, in my view, appropriate for this arrangement to continue into the future. Changeovers occurring at school also reduces the children’s exposure to conflict between their parents as they would not come into direct contact with each other under this arrangement. Block school holiday time as proposed by the Independent Children’s Lawyer (also having been made on an interim basis as part of the interim Orders made on 4 July 2014) is considered appropriate and orders will be made accordingly.

Conclusion

Having regard to all of the factors in this matter in relation to the best interests of these children, particularly protecting them from ongoing exposure to family violence in the maternal home, while maintaining the benefit of a meaningful relationship with each parent, I make orders as sought by Independent Children’s Lawyer. These orders are in the main a continuation of those made on an interim basis on 4 July 2014.
One order that was not made as part of the interim Orders was the Independent Children’s Lawyer’s proposal for the children’s residence to remain in the Suburb H area unless the mother otherwise agrees in writing. The father agrees to such an order, but seeks it be limited to when the children are in their primary school years. The Family Consultant gave evidence that such a limitation upon the father exercising sole parental responsibility would be appropriate. Such a limitation will provide stability for the children and ease the burden of travel on both the parties, and importantly for the children. Further and importantly, it will ensure that the ongoing relationship between the children and their mother will be maintained as the father will not be unilaterally able to move from their current residential area.
For these reasons, orders are made as set out at the forefront of these reasons for Judgment.

I certify that the preceding one-hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 August 2014.

Legal Associate:

Date: 1 August 2014

[2014] FamCA 596

1 August 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies