Grinnyway and Looper and Anor
[2013] FamCA 1018
FAMILY COURT OF AUSTRALIA
| GRINNYWAY & LOOPER AND ANOR | [2013] FamCA 1018 |
| FAMILY LAW – CHILDREN – Undefended hearing – with whom the children shall live and spend time – parental responsibility – children resident with maternal grandmother for the past two years – children to continue living with the maternal grandmother – maternal grandmother to have sole parental responsibility – need to protect the children from risk of harm posed by both parents – mother and father restrained from spending time or communicating with the children other than by post on special occasions – children to attend counselling for psychological trauma – maternal grandmother restrained from allowing the children to be in the presence of a particular member of the extended maternal family and from administering corporal punishment to the children. |
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ss 4, 4AB
| Aldridge & Keaton (2009) FLC 93-421 Allesch v Maunz (2000) 203 CLR 172 Dennett & Norman [2007] FamCA 57 Potts & Bims & Ors [2007] FamCA 394 Taylor v Taylor (1979) 143 CLR 1 Valentine & Lacerra [2013] FamCAFC 53 |
| APPLICANT: | Ms Grinnyway |
| FIRST RESPONDENT: | Ms Looper |
| SECOND RESPONDENT: | Mr Birkan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 72 | of | 2013 |
| DATE DELIVERED: | 20 December 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 2 December 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Coast Law |
| COUNSEL FOR THE FIRST RESPONDENT: | N/A |
| SOLICITOR FOR THE FIRST RESPONDENT: | N/A |
| COUNSEL FOR THE SECOND RESPONDENT: | N/A |
| SOLICITOR FOR THE SECOND RESPONDENT: | N/A |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr A. Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All former orders relating to the following children (“the children”) are discharged:
(a) A Birkan, born … 2003;
(b) J Birkan, born … 2005; and
(c) K Birkan, … 2009.
The applicant maternal grandmother (“the applicant”) shall have sole parental responsibility for the children.
The applicant shall ensure the attendance of the children at any psychological counselling recommended by their existing counsellor for as long as the counsellor deems necessary.
The children shall live with the applicant.
The parties are restrained from causing or permitting the children to spend time with either the mother or the father.
Pursuant to s 68B of the Family Law Act the mother and father are restrained from entering upon or approaching within 100 metres of:
(a)The applicant’s residence; and
(b)Any school or pre-school attended by the children.
Subject to Order 8 hereof, the parties are restrained from causing or permitting the children to communicate with either the mother or the father.
The parties shall take all reasonable steps to ensure that the children are able to communicate with the mother and father in the following manner:
(a)By the mother and father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and
(b)By the applicant promptly sending to the mother and father:
(i)Written acknowledgement of receipt of the mother’s and father’s written communication, and
(ii)Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the mother and father.
For the purposes of implementation of Order 8 hereof:
(a)The applicant shall, within 7 days hereof, obtain and thereafter retain a post office box to which the mother and father may send written communication;
(b)The applicant shall, within a further 7 days, notify the mother and father of the address of that post office box in writing; and
(c)The mother and father shall thereafter keep the applicant informed in writing of the addresses to which mail directed by her to them may be sent.
The applicant is restrained from causing or permitting:
(a)The children to be within the physical presence of or to communicate with Mr L; and
(b)The infliction of corporal punishment upon any of the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grinnyway & Looping and Anor 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 NEWCASTLE |
FILE NUMBER: NCC 72 of 2013
| Ms Grinnyway |
Applicant
And
| Ms Looper |
First Respondent
And
| Mr Birkan |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parenting arrangements that most effectively promote the best interests of three children whose parents have been unable to consistently offer them adequate care and supervision.
The children have lived with the maternal grandmother since 2011, when she stepped in to protect the children from the risks they faced living with either or both parents.
The mother declined to participate in the proceedings and, although the father participated initially, he withdrew from the proceedings prior to the final hearing.
There is no doubt the children are exposed to various risks by both parents and consequently they must remain living with the maternal grandmother, but until the proceedings became undefended there was some debate about the extent of the children’s continuing involvement with the father.
Ultimately, the maternal grandmother and Independent Children’s Lawyer conducted the case on the unchallenged basis that the children should not spend any time with either parent. In the face of the evidence adduced, that outcome became inevitable.
History
The relationship between the parents has existed sporadically since about 2000. The evidence is quite imprecise about when they cohabited and when they did not.
Their three children were born in 2003, 2005, and 2009 and so they are now aged ten, eight, and four years respectively.
The eldest child has lived permanently with the maternal grandmother since April 2011. The two youngest children have lived permanently with the maternal grandmother since October 2011.
The maternal grandmother allowed the children to spend time with the mother, but the arrangements were irregular because of the mother’s unreliability. The last time the children spent any time with the mother was before the school holidays at the end of the third school term in 2012 – that is, in about September 2012.
The children also had intermittent telephone communication with the mother, but that last occurred about six to eight weeks before the first interviews with the Family Consultant – that is, in about March 2013.
The maternal grandmother also allowed the children to spend time with the father, but she terminated that interaction in about October or November 2012 because she formed the opinion, on the basis of disclosures made by the eldest child, that the father posed a risk of sexual abuse to at least the eldest child.
These proceedings were commenced by the maternal grandmother shortly afterwards in January 2013.
Interim orders were made in April 2013 prohibiting the mother and father from approaching the maternal grandmother’s home and the children’s school. It was left to the maternal grandmother to decide, in the exercise of her sole parental responsibility for the children, whether and how the children might remain in contact with the parents.
Once the father became actively involved in the proceedings, the interim orders were adjusted in July 2013, providing for the children to spend supervised time with him at a contact centre for two hours per fortnight. Operation of those orders was frustrated by the delays encountered at the contact centre, even though both the maternal grandmother and father promptly arranged their intake interviews. The orders have apparently been implemented without incident since late August 2013.
The children continue to live with the maternal grandmother at her home situated on the Central Coast of NSW and the father resides with the paternal grandparents in suburban Sydney.
The whereabouts of the mother are unknown. The maternal grandmother previously believed the mother may have been admitted to a drug rehabilitation facility, but no specific evidence was adduced as to the mother’s current residential arrangements.
Absence of mother
The mother has never once appeared in the proceedings, despite being served.[1]
[1] Notation B made on 12 April 2013; Notation A made on 4 October 2013
She failed to file any Response or affidavit and failed to attend the designated appointment with the Family Consultant.[2]
[2] Notation C made on 12 June 2013; Notation A made on 4 October 2013
Belatedly, in or about early October 2013, the mother informed both the Independent Children’s Lawyer and the Court of her intention to participate in the proceedings, but that did not eventuate.[3] If the mother ever held that intention, it must have soon dissolved.
[3] Notation A made on 4 October 2013
The only inference logically available is that the mother could not muster the enthusiasm to participate in these proceedings to determine the orders that will regulate the care of the children.
The fundamental principle of natural justice requires that parties are afforded a reasonable opportunity to appear and present their case in the adjudication of their litigious disputes. But being afforded the opportunity and making use of it are different things. If a party eschews the given opportunity to be heard by voluntarily absenting himself or herself for the duration of the proceedings there is no miscarriage of justice by the continuation of the trial in that party’s absence. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).
The final hearing therefore proceeded in her absence on 2 December 2013.
Absence of father
The father began his participation in the proceedings once he was served,[4] but he was apparently not served in time to enable his attendance upon the Family Consultant for interview in May 2013 as ordered.[5]
[4] Notation C made on 12 April 2013; Notation B made on 12 June 2013
[5] Order 8 and Notations C, E made on 12 April 2013
The father first appeared on 12 June 2013, and so orders were made for the preparation of a supplementary Family Report. The father subsequently met with the Family Consultant in August 2013.
The father again appeared and was represented in October 2013 when the matter was set down for final hearing, but he failed to file any affidavit material pursuant to procedural orders[6] and he failed to appear at Court for the final hearing on 2 December 2013. The father’s solicitor filed a Notice of Ceasing to Act some weeks before on 13 November 2013.
[6] Orders 5, 7 made on 4 October 2013
At the commencement of the final hearing counsel for the Independent Children’s Lawyer announced on the record that the father had recently informed the Independent Children’s Lawyer he had secured employment and would be attending his employment in preference to attending Court. Even if that was incorrect, his absence was otherwise unexplained and so the final hearing therefore also proceeded in his absence.
Proposal and evidence of maternal grandmother
At the commencement of the hearing, the maternal grandmother’s solicitor informed the Court that she supported the orders proposed by the Independent Children’s Lawyer in all respects, save for one minor alteration. She wanted any written communication by the parents to the children to be sent to a post box rather than to her home address. The Independent Children’s Lawyer did not cavil with that amendment.
The maternal grandmother relied upon her affidavit filed on 26 November 2013 and she was not required for cross-examination by the Independent Children’s Lawyer.
Proposal of independent children’s lawyer
The Independent Children’s Lawyer gave advance notice of the orders she proposed. A minute of the orders was tendered.[7]
[7] Exhibit ICL1
The proposal entailed the maternal grandmother having sole parental responsibility for the children, but required her to ensure the children’s continuing attendance at therapeutic counselling.
It was proposed the children live with the maternal grandmother, subject to her observance of an injunction restraining her from permitting the children to spend any time with the mother or father. To enforce that restraint an additional injunction was proposed, restraining the parents from attending at or near the maternal grandmother’s home and the children’s school and pre-school.
The Independent Children’s Lawyer proposed that the only interaction between the children and either parent would be by way of written communication, which the Independent Children’s Lawyer conceded should be sent via a post box as the maternal grandmother desired.
It was proposed the maternal grandmother also be restrained from allowing the children to have any interaction with a particular member of the extended maternal family and from administering corporal punishment to the children.
Additional evidence
Since the father did not appear and was therefore unavailable to be tested on his evidence, the affidavit he filed in June 2013 was not read.
As already noted, the mother failed to file an affidavit.
The maternal grandmother and Independent Children’s Lawyer also relied upon the following evidence:
(a)The Magellan Report, dated 18 March 2013, furnished to the Court by the NSW Department of Family and Community Services (“the Department”);
(b)The Family Report dated 15 May 2013 (“the first Family Report”); and
(c)The supplementary Family Report dated 6 September 2013 (“the second Family Report”).
The Family Consultant was not required for cross-examination by either the maternal grandmother or the Independent Children’s Lawyer. Her evidence can therefore be safely accepted as correct.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
Best interests of children
Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]; Potts & Bims & Ors [2007] FamCA 394 at [8]-[9]).
Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Valentine & Lacerra [2013] FamCAFC 53 at [42]-[43]; Aldridge & Keaton at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53]-[60]). The maternal grandmother remains an important figure in this case.
Best interests – primary considerations
Section 60CC(2)(a)
In May 2013, the children were not observed by the Family Consultant in the company of either parent. The eldest child continually expressed “negative sentiments” about both parents, was ambivalent about spending time with the mother, was even less inclined to spend time with the father, but acknowledged an emotional connection to both.[8] The middle child was rather histrionic about having to confront his recollections of family experiences, but was at least regretful of the absence of the mother from his life.[9]
[8] First Family Report, paras 70-72
[9] First Family Report, paras 73-85
In August 2013, the children were observed by the Family Consultant in the company of the father, but not the mother. The eldest child was desirous of seeing the father, but the two youngest children vacillated between willingness and resistance.[10] The children’s sentiments were not dissimilar to those reported by the maternal grandmother.[11] The eldest child was observed to be affectionate with the father, the middle child seemed disinterested, and the youngest child appeared only mildly interested.[12] Afterwards, the eldest child was distressed and expressed a desire to begin spending regular time with the father.[13] The middle child was reluctant to see the father again, but alternatively, could only contemplate spending time with the father in the company of another adult.[14]
[10] Second Family Report, para 40
[11] Second Family Report, para 38
[12] Second Family Report, paras 41-46
[13] Second Family Report, paras 47-48
[14] Second Family Report, paras 52-53, 55
The maternal grandmother adduced evidence of her perception of the children’s responses to the re-institution of their visits with the father at the contact centre since August 2013. She asserted the eldest child becomes anxious in advance of the visits, that the youngest child has become incontinent, and that all children suffer from nightmares. She alleged the eldest child is content to continue seeing the father within the confines of the contact centre, the middle child objects to continued visits with the father, and the youngest child wishes to continue seeing the father.[15]
[15] Maternal grandmother’s affidavit, paras 67-75
It is clear from all of that evidence that the children’s feelings about the parents fluctuate. They continue to both express and exhibit ambivalent feelings about their relationships with the mother and father. Their occasional expression of willingness or desire to maintain contact with the mother and father necessarily imputes the children do each retain meaningful relationships with both parents.
However, it also follows from their ambivalence that their relationships with the parents must have deteriorated to some extent, and the deterioration must be more pronounced in the case of their respective relationships with the mother by reason of her continuing absence from their lives.
Even the children’s relationships with the father must have deteriorated to a significant extent. The eldest child continues to both express and demonstrate conflicted emotions about her relationship with the father. The middle child continues to broadly express and demonstrate opposition to the continuity of his relationship with the father. As for the youngest child, even though he apparently now wishes to continue seeing the father, he is barely four years of age, has not lived with the father for some years, and had no interaction at all with the father for nearly a year before the most recent interim orders began operation in August 2013. The Family Consultant considered it unlikely the youngest child had even formed a secure attachment relationship with the father.[16]
[16] Second Family Report, para 61
The Family Consultant found the children’s fear, apprehension, and ambivalence about their relationships with the father to be unsurprising.[17] She explained that such ambivalence may be a strong indication that the relationship is insecure and fails to adequately support the child’s emotional needs.[18]
[17] Second Family Report, para 60
[18] Second Family Report, para 62
Overwhelmingly, the most important adult relationship for each child is their relationship with the maternal grandmother. Although that is a consideration pursuant to s 60CC(3)(b) rather than s 60CC(2)(a) of the Act, it is convenient to acknowledge the fact at this point.
Given the obvious corrosion of the children’s relationships with the father and, to an even greater extent, their relationships with the mother, the important consideration at this juncture is whether the children will derive any benefit from retention of those relationships in their current state, or alternatively, from restoration of those relationships. The answer to that question is answered comprehensively by the evidence pertaining to past harm the children have suffered and the risk of future harm to which they remain exposed, which is addressed under s 60CC(2)(b) of the Act.
Section 60CC(2)(b)
These proceedings were commenced on 15 January 2013 and so the amendments to the Act, and in particular to the provisions concerning the considerations relevant to findings about the children’s best interests (s 60CC), wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) now apply (see Schedule 1, items 44 and 45).
In particular, the definition of “abuse” is now defined more broadly to encapsulate “serious psychological harm” (s 4(1)), and the Act now defines how a child is exposed to family violence (s 4AB(3),(4)).
In a generalised sense, the children have been subjected and exposed to abuse and family violence whilst in the care of their parents.[19] But rather than cast aspersions indiscriminately, the evidence bears closer examination.
[19] First Family Report, para 6
Alleged sexual abuse
Most probably the eldest child has been sexually abused by the mother’s former partner or friend, Mr D. The child reported numerous sexual incidents with that man, including his digital penetration of her vagina.[20] The Department accepted the veracity of her allegations.[21]
[20] Magellan Report, pages 4, 5; Maternal grandmother’s affidavit, paras 23-24, 28
[21] Magellan Report, page 7; First Family Report, paras 14, 100
Although not the subject of independent complaint by the middle child, the eldest child also reported to authorities that Mr D had sexually abused the middle child in the bath and the mother had instructed her not to allow Mr D in the bathroom with her and for her to remain in the company of the middle child when he was in the bathroom,[22] implying the mother’s suspicion about Mr D’s sexual proclivities.
[22] Magellan Report, page 5
It is also probable the eldest child was exposed to explicit sexual activity between the mother and adult males, including the father, within the mother’s household.[23] Although the children were not personally involved in such sexual conduct as “sexual objects” and their exposure to such conduct did not of itself constitute “sexual abuse”, it still potentially fits the description of “abuse” since it is liable to cause the children “serious psychological harm”.
[23] Magellan Report, pages 4, 5; First Family Report, para 67
On the strength of such evidence, it should be concluded the children are at risk of psychological harm through subjection or exposure to abuse of a sexualised nature while in the mother’s care.
Concerns about the children’s safety from harm through sexual interference also implicate the father. The eldest child alleged the father kissed her “inappropriately on the mouth and cheek”, the apparent inappropriateness of which act caused the middle child to intervene and push the father away. The father allegedly responded by then grabbing the middle child’s “private parts”.[24] The middle child confirmed to the Family Consultant the father had “pushed [his] rude part”.[25]
[24] First Family Report, para 65; Maternal grandmother’s affidavit, paras 32-33
[25] Second Family Report, para 53
The father denied he had ever kissed any of the children “inappropriately”,[26] but the Family Consultant found him “combative”, “uncooperative” and “vague”,[27] so his bare denial is not accorded the weight it otherwise might.
[26] Second Family Report, para 25
[27] Second Family Report, paras 19, 27
The Department did not sustain the allegation of sexual abuse against the father because of the absence of contextual detail,[28] but that does not mean it did not occur. There could be little doubt the father kissed the eldest child, since he admitted it. The difference in their perceptions related to whether the kiss was “appropriate”. The two eldest children clearly did not think so, even if the father did. The untested state of the evidence precludes any finding about the level of risk the father may present, but even if the father does not objectively present any risk of sexual abuse to the children, the two eldest children apparently perceive that he does. The actuality of the children’s apprehension is sufficient to arouse their anxiety about their safety in his care.
[28] Magellan Report, page 7; First Family Report, para 14
Apart from concerns about the parents and their associates, there was a live issue about the exposure of the children to the risk of sexual abuse within the maternal grandmother’s household. Mr L is an adolescent maternal relative of the children. He was previously convicted for the obscene exposure of his genitals to a teenage girl, but that was apparently only one of numerous episodes of deviance.[29] He remains a registered sex offender and there are existent concerns about his propensity to conduct himself in a sexually provocative way towards others, including children.[30]
[29] First Family Report, paras 18, 22
[30] Magellan Report, page 4; First Family Report, para 20
Mr L lived with the maternal grandmother at times after she assumed residential care of the children.[31] Regrettably, the maternal grandmother has minimised the gravity of his conduct in the past, attributing it to intoxication.[32] She even informed the children’s school he was authorised to collect them from school,[33] suggesting she was willing to leave the children in his unsupervised care from time to time.
[31] First Family Report, para 10
[32] First Family Report, paras 20, 46, 104, 105
[33] First Family Report, para 23
Interim orders were made in April 2013 restraining the maternal grandmother from allowing the children any contact with Mr L, which injunction has apparently been observed. Mr L has not lived in the maternal grandmother’s household since the interim injunction was made.[34] The Independent Children’s Lawyer appropriately proposed perpetuation of that injunction and the maternal grandmother acquiesced. A permanent injunction accords with the recommendation of the Family Consultant.[35] I am satisfied the maternal grandmother will probably abide by the injunction, which will avert the risk posed by Mr L to the children.
[34] First Family Report, paras 28, 46, 47
[35] First Family Report, paras 107-108
The eldest child also reported her sexual abuse by the partner of the maternal aunt, although there was some discrepancy in her reports about it. One account she gave was that the assailant had digitally penetrated her vagina, [36] but her account to the Family Consultant was that he “grabbed near [her] rude part”.[37] Irrespective, the eldest child is gravely wary of him and the maternal grandmother is now also aware of the danger he poses. That man is not part of the maternal grandmother’s household, so the risk he poses to the children is not unacceptably high.
[36] Magellan Report, page 6
[37] First Family Report, para 65
Alleged physical abuse
The children have uniformly reported their physical abuse by the mother and father, and one instance was witnessed by the maternal grandmother.
The eldest child reported multiple instances of physical abuse perpetrated by the mother, even with implements, upon her and the younger children, some of which caused injury.[38] The middle child corroborated the eldest child.[39]
[38] First Family Report, para 63; Maternal grandmother’s affidavit, para 14
[39] Magellan Report, page 6; First Family Report, para 85
The children’s physical abuse by the mother culminated with an incident in October 2011, which led to the maternal grandmother's intervention and her removal of the two youngest children. The mother was enraged and threw the youngest child across the room causing him to cower between furniture. He desperately clung to the maternal grandmother for refuge when she arrived.[40]
[40] First Family Report, para 90
Such unchallenged graphic descriptions inexorably warrant a finding that the mother poses an unacceptable risk of physical abuse to the children. That conclusion is consistent with the conclusions reached by the Department and the Family Consultant.[41]
[41] Magellan Report, page 7; First Family Report, paras 14, 100
The eldest child also reported being “whacked” so hard by the father on the leg and face that she was bruised in the shape of his hand. She also reported being “smashed into a wall” by him on an earlier occasion, which left a mark on her back.[42]
[42] First Family Report, para 62
The father denied to the Family Consultant that he had ever physically abused the children, but did admit he occasionally “gave them a smack on the buttocks” and yelled at them.[43] The father’s impression may be honest. He may consider such admonition of the children to be appropriate forms of discipline and not perceive that his past treatment of them was abusive, but objectively, there is little doubt it was. Any corporal punishment of children that causes more than transient physical discomfort could not reasonably be considered anything other than abuse.
[43] Second Family Report, para 24
The inability of the father to appreciate that truism necessarily means he too remains an unacceptable risk of physical abuse to the children.
Alleged psychological abuse
The maternal grandmother reported to the Family Consultant that the mother has “verbally abus[ed]” and called the children unpleasant names over a prolonged period of time.[44]
[44] First Family Report, para 44
When the maternal grandmother took the two youngest children into her care in late 2011, in circumstances already described, the mother screamed she had had enough of the “fucking cunts”.[45] There is every reason to suspect the children heard the mother refer to them in that disrespectful way.
[45] First Family Report, para 8; Maternal grandmother’s affidavit, para 19
When the mother last spoke with the eldest child over the telephone in about March 2013, she called the child a “liar” in reference to the various disclosures the child has made about the ill-treatment of her and her siblings.[46] The child independently reported the incident to the Family Consultant,[47] so it had a marked effect upon her, meaning she is in no doubt about the lack of emotional support she receives from the mother.
[46] First Family Report, para 17
[47] First Family Report, para 70
The eldest child also reported how she had been exposed to the parent’s possession and use of illicit drugs, which she was able to convincingly explain in quite intricate detail.[48] She was corroborated by the middle child.[49]
[48] First Family Report, para 60
[49] First Family Report, para 85
Parental behaviour of that sort is liable to cause the children serious psychological harm because it tends to arouse their anxiety, weaken their self-esteem, and model destructive behaviour to them. If such behaviour causes the children to experience serious psychological harm then it constitutes “abuse”. The Family Consultant agreed.[50]
[50] First Family Report, para 101
Alleged family violence
One certainty is the children’s exposure to family violence in the company of the mother and father. The children independently reported witnessing various episodes of violent conduct between their parents.
The eldest child described an incident in a car in which, while the parents were seated in the front seats with the children behind, the father grabbed the mother’s hair and then “smash[ed] her head into the dashboard”.[51]
[51] First Family Report, para 61; Maternal grandmother’s affidavit, paras 9-10
On another occasion the eldest child saw the father “grab [the mother] around the throat and smash her into the floor”. She also saw the father on other occasions punch the mother, grab her arms, and shove her against the wall.[52]
[52] First Family Report, para 61
The middle child is almost mortified by fear of the father’s violence.[53]
[53] First Family Report, paras 74-76
The father was charged with assault of the mother in March 2012.[54]
[54] First Family Report, para 5
The father was charged with her assault again in February 2013, following his vilification and physical assault of the mother across a period of four days.[55]
[55] First Family Report, paras 5, 27
More recently, in April 2013, the father was charged with another assault upon the mother.[56]
[56] Second Family Report, para 22
Notwithstanding that history, the father flatly denied any violence in his relationship with the mother. He dismissed the events behind the police charges by simply telling the Family Consultant “it never happened”. The father implied none of the prosecutions were successful because the mother repeatedly failed to attend Court to support the prosecutions, which he mistakenly seemed to equate with a positive finding of his innocence.[57] With such an attitude, the father has little hope of reformation and he remains an unacceptable risk to the children of causing them psychological harm by their exposure to family violence.
[57] Second Family Report, paras 22-23
The mother’s domestic experiences with Mr D were no better. In 2011 they argued so vociferously that the youngest child became hysterical and the eldest child raced to intercede and protect the mother from Mr D.[58] The mother also must be regarded as continuing to pose an unacceptable risk of psychological harm to the children by her willingness to expose them to family violence between her and her domestic partners.
[58] Magellan Report, page 3
Poignantly, when the children met with the Family Consultant in May 2013 they conceived and performed a puppet show. The two puppets in the show were designated as a “mum” and a “dad” and the children introduced the show by saying “Hi, I’m the mummy and I hit my children” followed by “I’m the daddy and I hit my wife”.[59] That simple vignette speaks volumes about their experiences with the parents.
[59] First Family Report, para 93
As a result of their adverse experiences the children have certainly suffered psychological harm. The Family Consultant attributed their trauma to the abuse they have endured and the family violence to which they have been exposed.[60] As the Family Consultant explained, exposure to family violence can have serious deleterious consequences for a child’s psychological health.[61] The children’s counsellor and paediatrician both consider that the children “exhibit symptoms of anxiety and post-traumatic stress disorder”[62] and the Family Consultant implicitly agreed.[63]
[60] First Family Report, para 97
[61] Second Family Report, para 59
[62] Second Family Report, para 37
[63] Second Family Report, para 63
Insightfully, the maternal grandmother has ensured the receipt of individual counselling and group therapy for the two eldest children, which they have found beneficial.[64] The proposal of the Independent Children’s Lawyer for an order compelling the maternal grandmother to ensure the children’s continued attendance upon the counsellor was therefore sensible.
[64] First Family Report, para 94
Best interests – additional considerations
Little need be said about the statutory considerations prescribed by s 60CC(3) of the Act because, on the evidence, the primary considerations under s 60CC(2)(b) are pre-eminent and incapable of being outweighed.
The parties seemingly remain afflicted by illicit drug use[65] and neither demonstrates any insight into the emotional needs of the children. Their past treatment of the children, their subsequent abandonment of the children to varying degrees, and their apparent inability to empathise with the children’s impoverished experiences in their care collectively prove they are incapable of managing a parenting load.
[65] Second Family Report, para 21
The maternal grandmother identifies as Aboriginal so the children have Aboriginal heritage. The maternal grandmother is considered a local elder and is actively involved with the … Aboriginal Land Council. She has engaged the children in Aboriginal culture since her assumption of their primary care. The eldest child is now in the Koori Choir and participates in Aboriginal dancing and the middle child expresses an interest in learning to play the didgeridoo.[66] That cultural aspect of the children’s lives is enriched by their residence with the maternal grandmother.
[66] Maternal grandmother’s affidavit, paras 57-61
Such evidence only serves to endorse rather than counteract the outcome dictated by the considerations under s 60CC(2)(b) of the Act.
Conclusions and orders
The presumption of equal shared parental responsibility does not apply. There are reasonable ground to believe that both parents have engaged in abuse of the children and that at least the father has engaged in family violence (s 61DA(2)).
In the circumstances of this case, the allocation of parental responsibility and the designation of the children’s residence must be determined conjunctively. There can be no question that the children should continue living with the maternal grandmother and that she should have sole parental responsibility for them.
In light of that conclusion, the Court is freed of the obligation to consider the preferential residential alternatives postulated by the Act (s 65DAA). The children’s best interests assume paramount importance in the determination of their future interaction with the parents.
The primary consideration of the need to protect the children from the virulent risks of harm posed to them by both parents overwhelms any benefit the children would derive from attempts at restoration of their relationships with either parent. To the extent that any tension exists between those considerations, the legislation now dictates that the former takes precedence over the latter (s 60CC(2A)).
There is no point making any orders regulating the expenditure of time by the children with the mother since she currently exhibits general disinterest in them. Even if she was interested in resurrecting her relationships with the children, the evidence proves that she still presents an unacceptable risk of harm to the children that cannot be satisfactorily attenuated.
The Family Consultant opined that it may be best for the children to spend no time with the father if the Court concludes they are at unacceptable risk of harm through physical, sexual or psychological abuse in his care,[67] which is the finding made on the evidence. That outcome may cause some emotional distress for the eldest child, and perhaps also the youngest child, but the Family Consultant regarded the maternal grandmother as sufficiently equipped to deal with that eventuality and help the children cope.[68]
[67] Second Family Report, para 65
[68] Second Family Report, para 65
The Family Consultant considered an alternative option of the children experiencing only irregular, professionally supervised visits with the father for “identity purposes only”,[69] but her preference was plainly for the former.[70]
[69] Second Family Report, para 70
[70] First Family Report, paras 101, 109, 115; Second Family Report, para 73
It is only by substantial removal of the parents from the children’s lives that they will maximise the chance of recovery from the dreadful trauma they have already suffered.[71]
[71] First Family Report, para 98
The evidence demonstrates the children’s best interests would be served by severance of their relationships with both parents. Such an outcome only represents continuation of the status quo in respect of the mother and restitution of the situation that existed between the children and father prior to August 2013.
The Family Consultant was concerned the parents may subsequently exert pressure upon the maternal grandmother to relent and allow their interaction with the children to resume. To avert that possibility she suggested the imposition of injunctive orders,[72] which suggestion was adopted by the Independent Children’s Lawyer.
[72] First Family Report, paras 110, 115, 119
However, the residence of the children with the maternal grandmother is not made conditional upon her observance of the injunctions concerning the limited extent of the children’s interaction with the parents, as the Independent Children’s Lawyer proposed.[73] Making the orders conditional in that way is futile because breach of the injunctions by the maternal grandmother would only render the children’s residence with her voidable when there is no other viable residential option for them. The Independent Children’s Lawyer’s proposal does not stipulate any self-executing alternative in the event of breach of the injunctions. The injunctions therefore impose an independent obligation, compliance with which is not a pre-condition of the children’s residence with the maternal grandmother.
[73] Exhibit ICL1, Orders 3-5
The removal of the parents from the children’s lives is not a complete elimination, since orders are made, consistently with both the Family Consultant’s recommendation[74] and the Independent Children’s Lawyer’s proposal, for occasional written communication between the children and the parents.
[74] First Family Report, para 120
In conclusion, an injunction is imposed precluding the maternal grandmother from using corporal punishment on the children. The Family Consultant recommended such an injunction because of a suggestion the maternal grandmother had occasionally disciplined the children in that way.[75] The Independent Children’s Lawyer proposed the order and the maternal grandmother agreed to its imposition.
[75] First Family Report, para 122
I certify that the preceding one-hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 December 2013.
Associate:
Date: 20 December 2013
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