Hampton and Heath and Ors
[2017] FamCA 132
•8 March 2017
FAMILY COURT OF AUSTRALIA
| HAMPTON & HEATH AND ORS | [2017] FamCA 132 |
| FAMILY LAW – CHILDREN – Best Interests of the children – Where there is a risk of harm to the children in the care of each parent – Where there are allegations of family violence – Where the first respondent father perpetrated family violence – Where there are concerns regarding the mental health of the first respondent father – Where there are concerns regarding the drug use of the parties – Where the second respondent father has been convicted of assaulting one of the children – Where each of the parties has a criminal record – Where the mother was abused as a child – Where the mother identifies as Aboriginal – Where there are concerns about the mother’s ability to cope with four children – Where the youngest child lives with the paternal uncle – Where the sibling relationships are significant – Where there are concerns about the capacity of each parent to meet the needs of the children – Where there is an unacceptable risk of harm to the children in the care of each parent – Where the children should have a connection to their Aboriginal heritage – Where the Department of Family and Community Services is to have sole parental responsibility for the children – Where the children spend time with the mother – Where the child spends time with the second respondent father – Where the children spend time with the first respondent father. |
| Children and Young Persons (Care and Protection) Act 1998 (NSW) s 46 Backford & Backford and Anor [2017] FamCAFC 1 | ||
| APPLICANT: | Ms Hampton | |
| 1st RESPONDENT: | Mr Heath |
| 2nd RESPONDENT: | Mr Dylan |
| INTERVENOR: | The Secretary, The Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Partners |
| FILE NUMBER: | NCC | 815 | of | 2012 |
| DATE DELIVERED: | 8 March 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 20, 22, 23 & 24 June 2016 and 26, 27, 28 & 29 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Daniel |
| SOLICITOR FOR THE APPLICANT: | Sharon Payne Family Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Tully |
| SOLICITOR FOR THE 1ST RESPONDENT: | The Law Shoppe |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Murphy |
| SOLICITOR FOR THE 2ND RESPONDENT: | Gonzales & Co |
| COUNSEL FOR THE INTERVENOR: | Mr Morely |
| SOLICITOR FOR THE INTERVENOR: | The NSW Crown Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mahony |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Partners |
Orders
That the Secretary, Department of Family and Community Services have sole parental responsibility for each of the children B born … 2007 (“B”), C born … 2008 (“C”), D born … 2012 (“D”) and E born … 2013 (“E”).
That the children B, C and D shall spend time with the Mother, on condition that such time occur in the absence of Mr Dylan, as follows:
(a)For a period of 4 months, on two Sunday’s each month, as agreed between the mother and the Secretary or a delegate of the Secretary, and in the absence of agreement, on the first and third Sunday of each month, between 10 am and 12 pm.
(b)Thereafter, for a further period of 4 months, on two Sunday’s each month, as agreed between the mother and Secretary or a delegate of the Secretary, and in the absence of agreement, on the first and third Sunday of each month, between 10 am and 1 pm.
(c)Thereafter, for a further period of 4 months, on two Sunday’s each month, as agreed between the mother and the Secretary or a delegate of the Secretary, and in the absence of agreement, on the first and third Sunday of each month, between 10 am and 2 pm.
(d)Thereafter, on two Sunday’s each month, as agreed between the mother and the Secretary or a delegate of the Secretary, and in the absence of agreement, on the first and third Sunday of each month, between 10 am and 4 pm.
That the father Mr Heath, is restrained, pursuant to s 68B of the Family Law Act 1975 (Cth), from contacting, approaching or communication with the mother, Ms Hampton and it is noted that this is an order made for the personal protection of the mother Ms Hampton.
That the father, Mr Dylan, shall spend time with the child E as follows:
(a) Until her fifth birthday, on one Saturday each month, as agreed between the father and the Secretary, and in the absence of agreement, on the second Saturday of the month from 10 am to 2 pm under supervision of a delegate of the Secretary.
(b) From her fifth birthday, on one Saturday each month, as agreed between the father and the Secretary, and in the absence of agreement, on the second Saturday of the month from 10 am to 2 pm for a period of 2 years.
(c) Thereafter, on one Saturday each month, as agreed between the father and the Secretary, and in the absence of agreement, on the second Saturday of the month from 10 am to 4 pm.
That the mother shall spend time with the child E as follows:
(a) Until her seventh birthday, on one Saturday each month, as agreed between the mother and the Secretary, and in the absence of agreement, on the second Saturday of the month from 10 am to 2 pm in the event the mother remains in a relationship with the father Mr Dylan and in the event she is not in a relationship with Mr Dylan such time shall occur on the third Saturday of the month.
(b) Thereafter, on one Saturday each month, as agreed between the mother and the Secretary, and in the absence of agreement, on the second Saturday of the month from 10 am to 4 pm in the event the mother remains in a relationship with the father Mr Dylan and in the event she is not in a relationship with Mr Dylan such time shall occur on the third Saturday of the month.
That the father, Mr Dylan, shall do all things necessary to comply with any treatment program recommended by his treating psychologist and/or psychiatrist and shall, within 7 days, provide a written authority to the Secretary authorising the Secretary to obtain information in respect of his treatment and compliance with same directly from the said treating psychologist and/or psychiatrist.
That the Secretary shall do all things necessary to facilitate sibling contact between each of the children on no less than 4 occasions each year.
That the father, Mr Dylan’s time with E is contingent on him abstaining from the consumption of alcohol during the visits or in the 24 hours immediately prior to a visit occurring.
B, C and D are to spend time with their father, Mr Heath, as follows:
(a) From 4 pm to 7 pm on one Monday in every two month period for up to three hours; or
(b) At such other date and time as agreed between Mr Heath and the Secretary or his delegate for a period of up to three hours in every two month period; and
(c) On two additional occasions each year for a period of up to three hours for significant events.
The time that Mr Heath spends with B, C and D is to be supervised by the Secretary or their delegate for a period of two years, thereafter, consideration will be given by the Secretary to whether any members of Mr Heath’s family, including his parents, Ms F Heath and Mr G Heath, should supervise this time.
Mr Heath is restrained from residing at, or staying overnight at, the home of his parents, Mr G and Ms F Heath, during any period that B, C and D are living at the home.
That the mother shall do all things necessary to obtain a mental health treatment plan and referral to a psychologist within 14 days and thereafter shall do all things necessary to comply with any treatment program recommended by her treating psychologist and shall, within 7 days, provide a written authority to the Secretary authorising the Secretary to obtain information in respect of her treatment and compliance with same directly from the said treating psychologist.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hampton & Heath and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: NCC 815 of 2012
| Ms Hampton |
Applicant
And
| Mr Heath |
1st Respondent
And
Mr Dylan
2nd Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for four little children. They are B (known as “B”) who is 9, C who is 8, D who is 4 and E who is 2 (“the children”). All of the children have the same mother, Ms Hampton and the father of the three eldest children is Mr Heath. Mr Dylan is the father of E.
For almost two and a half years the children have been under the parental responsibility of the Minister of the Department of Family and Community Services (“Community Services” or “the Department”). The Secretary of the Department (“the Secretary”) contends that the children will not be cared for adequately in any of the parent’s households and that there are unacceptable risks of harm posed by each of the parents. The Secretary seeks an order that the children continue in the care of the Department until they are each 18.
The mother seeks that after a short period in which the Secretary shall have sole parental responsibility for all four of her children that they be returned to her care and Mr Dylan supports the mother in this position so far as E is concerned. Mr Heath seeks orders that will see his three children be returned to live with him and his current wife and that he have sole parental responsibility for them.
The Independent Children’s Lawyer (“the ICL”) proposes orders that the children remain under the parental responsibility of the Secretary of the Department but proposes different orders with respect to the children’s time with their parents.
The question for me to determine is which of the proposals is in the best interests of the children.
Background
Ms Hampton who is the applicant mother (“the mother”) seeks parenting orders in relation to her four children. She began a relationship with Mr Heath (“Mr Heath”), who is the father of the three eldest children in 2004.
The mother and Mr Heath began living together in Sydney in November 2004. Their first child B, known as “B” was born in 2007.
When B was one week old she, the mother and Mr Heath were involved in a head on car collision when a vehicle crossed over to the wrong side of the road and hit the car being driven by Mr Heath. B was being held by the mother in the back seat of the car, rather than being restrained in an appropriate car seat. The occupants of the car each suffered some minor physical injuries including B who received a small cut to her head. The father says variously that he was diagnosed with depression or post-traumatic stress disorder (“PTSD”) following the accident.
In April 2008 the mother and Mr Heath had a second child named C.
In June 2008 Mr Heath presented to a hospital expressing suicidal ideation and thoughts of harming the mother and the children. He was scheduled under the Mental Health Act 2007 (NSW) (“Mental Health Act”).
The mother and Mr Heath married in 2008. They separated three weeks later, but subsequently reconciled.
In February 2009, Mr Heath assaulted the mother in the family home. He was charged and police sought an apprehended domestic violence order (“ADVO”) against him for the mother’s protection. He subsequently pleaded guilty to this offence and the ADVO was made for 12 months against him.
The mother and Mr Heath each say they separated on occasions in 2009 and 2010 but despite being “separated” they continued some form of relationship.
At one stage in August 2009 the mother and children lived for some time in a refuge. In early 2011 Mr Heath moved into the spare room at the mother’s home.
In July 2011, the mother and Mr Heath separated on a final basis. The mother was at that stage approximately three months pregnant with the couple’s third child. The father then moved to the central coast of New South Wales to live with his parents and the mother and children remained in Sydney.
In November 2011, the mother and Mr Dylan (“Mr Dylan”) met and began a relationship.
In 2012, the third child of the mother and Mr Heath, a girl named D was born. At around the time of D’s birth there was an incident between the mother and Mr Heath. The incident is a matter of significant dispute between the parties but there is no dispute that as a result B came to live with Mr Heath in Mr Heath’s parents’ (“the paternal grandparents”) home on the central coast.
In June 2012, Mr Heath filed an application seeking parenting orders in relation to C and B. He did not seek any orders in relation to D and appeared to be disputing that he was the child’s father.
In July 2012, the mother and Mr Heath divorced.
In September 2012, interim parenting orders were made by consent for parentage testing for D to occur. These orders also provided that B live with Mr Heath and C live with the mother. Orders were also made in relation to the mother’s time with B and Mr Heath’s time with C.
The children thereafter initially spent time with their parents in accordance with the interim orders, but when C was due to spend a weekend with his father on 13 October 2012 the mother refused to make the child available. The mother instructed her legal representative to inform Mr Heath’s lawyer that she had observed unusual sexualised behaviour occurring between B and C and had reported her concerns to Community Services, which was at that stage conducting an investigation. Subsequently an application was made to the court to vary the then existing parenting orders.
On 9 November 2012, interim orders were made for all three children to live with the mother and spend time with Mr Heath on alternate weekends under the supervision of the paternal grandparents. The matter was also transferred to the Family Court and into the Magellan program.[1]
[1]The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
In December 2012, Mr Dylan moved into the home the mother shared with her children.
In May 2013, a parentage test showed that Mr Heath is the father of D.
Dr H, who was appointed by the Court as an expert (“the expert”) assessed the family for the first time in October 2013. His first report was released in January 2014.
In 2013, the mother’s fourth child, E was born. Mr Dylan is E’s father.
Community Services had concerns about the children’s wellbeing and were engaged with the family for a few months from early 2014. This included Departmental case workers conducting home visits, interviewing the children and making a referral for the family to participate in the Brighter Futures program. The Department closed their file in respect of the family in May 2014.
On 10 September 2014 Mr Dylan assaulted B and C at the mother’s home. The mother and Mr Dylan both denied that the assaults had occurred at the time and both maintain that denial in these parenting proceedings. The mother claims that C injured himself by falling off a chair and that B tripped over toys and bumped into a wall. She denies that Mr Dylan has ever hit or physically disciplined the children. This issue is dealt with later in these Reasons.
On 11 September 2014 two Community Services officers attended at the mother’s home and conducted an interview with the mother and Mr Dylan. Both officers observed bruising on B and C and heard Mr Dylan shout at these two children. The Departmental officers took all four children to hospital where they were examined by a paediatrician. C and B were found to have bruising to various parts of their face and bodies and hospital records show that the examining doctor assessed that both children had sustained non accidental injuries. When interviewed by Departmental officers both children reported that they had been hurt by Mr Dylan. Following the interviews all four children were assumed into the care of Secretary of the Department. The children were also taken to the Child Protection Unit at Westmead Children’s Hospital for further review and photographing of their injuries.
On 17 September 2014 the New South Wales Children’s Court made an Emergency Care and Protection order under s 46 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) in relation to all four children. Rather than proceed with an application before that court, the Secretary of Community Services intervened in the parenting proceedings in respect of the three eldest children in this Court and initiated parenting proceedings in respect of E.
On 29 September 2014 interim orders were made with the consent of all parties allocating parental responsibility for the four children to the Minister for Family and Community Services.
Community Services conducted an assessment into Mr Heath’s parenting capacity to determine whether restoring the three eldest children to his care was a realistic possibility. The assessment concluded that this was not possible. There was however a positive assessment of Mr Heath’s parents as carers for the three eldest children. The children were placed in their paternal grandparents’ care.
It was a condition of the children’s placement with the paternal grandparents that Mr Heath would no longer reside in the home. Mr Heath then moved to a home in the Western Suburbs of Sydney. Since this time Mr Heath’s time with his children has been supervised by his parents.
Mr Dylan’s brother was assessed by Community Services as a suitable carer for E and she was subsequently placed with him and his wife and child. The four children have remained in these living arrangements since December 2014.
In December 2014 Mr Heath was charged with supplying a prohibited drug and driving while suspended. He subsequently pleaded guilty to these offences and was convicted. In the same month he commenced a relationship with his current partner, Ms I. Ms I and Mr Heath began living together in 2015 in the home rented by Mr Heath.
In April 2015 Mr Dylan was charged with two counts of assaulting C in September 2014.
The final hearing of the parenting applications had been originally scheduled for the end of October 2015. However, the hearing was adjourned as Mr Dylan’s criminal charges, which he was defending, were still outstanding. At that time, the parties and the court also became aware, for the first time, of Mr Heath’s criminal charges and orders were made for Mr Heath and the mother to be subject to testing for substance use as directed by the ICL.
Specific orders were made that Mr Heath and the mother submit to urinalysis if that form of drug testing was nominated by the ICL and for hair follicle testing in the event that Community Services were able to fund such testing. The mother has complied with the ICL’s directions in relation to drug testing since those orders were made but Mr Heath has refused to comply and says that he will not comply with any such order.
In December 2015 Mr Dylan was charged with a drink driving offence. He was subsequently convicted of this offence, fined and disqualified from driving.
In March 2016 Mr Dylan presented in a manner which gave rise to concerns about his mental health and was admitted to hospital.
On 11 May 2016, Mr Dylan pleaded guilty to one count of assaulting C and an ADVO was made against him for the protection of C for a period of 12 months.
In June 2016 the final hearing commenced, though some days were lost as the mother’s legal representative withdrew. The matter was then adjourned to 26 September 2016 for the remaining final hearing days. In the meantime, in 2016, Mr Heath married Ms I. At the time of the resumed proceedings the mother was pregnant with another child. The father of the mother’s unborn child is Mr Dylan and the mother and Mr Dylan continue to live together.
The mother
Personal history
The mother was born in 1986 and was 30 at the time of the final proceedings.
According to her affidavit, the mother is one of eight siblings. She initially lived with her maternal grandmother until she was three and was then placed in foster care. The mother experienced significant difficulties during her time in care as she had ten placements and says that she was sexually abused by an older foster brother when she was first placed in foster care.
The mother told the expert other matters about her personal history which were not challenged and are therefore assumed to be correct. She told the expert that her mother was unable to care for her due to mental health problems. She also said she did not know her father and had not had any contact with him but did maintain contact with her step–father who tries to be a support to her. She has little or no contact with her siblings, a number of whom live in different states.
The mother identifies as Aboriginal through her maternal side and although she provides little detail in her affidavit, under cross–examination said she has two tribal affiliations.
The mother and Mr Heath met when they were both 19. They apparently experienced no relationship difficulties until the mother became pregnant with the first child, B. The mother contends that Mr Heath became violent and controlling from about this stage but Mr Heath denies this and contends that the mother had difficulties coping with being a mother.
According to the Project Magellan Report (which provides information in relation to Community Services involvement with the family) and an affidavit filed by an officer of the Department, there had been ongoing concerns raised about risks to the children from March 2007 when the mother was pregnant with B. The matters complained of alleged that both parents presented a risk of harm to B and later the other children. Concerns in relation to the mother include her inadequate parenting skills given her background and isolation, alleged neglect, discipline methods, lack of supervision and hygiene issues.
The mother and Mr Heath separated and reconciled a number of times but finally separated in July 2011 when the mother was a few months pregnant with D. Initially following separation both B and C lived with the mother.
Following D’s birth some reports continued to be made to Community Services including concerns about the mother’s parenting.
For nine months after D’s birth, B lived with Mr Heath and spent no time with her mother and C lived with the mother and spent no time with his father.
After the mother and Mr Heath each recommenced having contact with both of the children the mother became concerned about sexualised behaviour exhibited by B and C and withheld the children from Mr Heath due to her concerns. Subsequently orders were made for the children to live with the mother and for Mr Heath to have supervised time with B and C.
The mother’s relationship with Mr Dylan
The mother began a relationship with Mr Dylan in November 2011. Just over a year later in December 2012 Mr Dylan moved into the home with the mother and her children.
In about March 2013 the mother became pregnant with her fourth child (E).
Expert evidence about the mother
The family were first assessed by the expert in October 2013 when the mother was pregnant with E. In his first report which was released in January 2014 the expert expressed the following view about the mother:
[the mother] had a very disrupted and deprived childhood. She didn’t have any relationship with her natural father. Her mother was incapable of caring for her.
…[i]t is likely that she suffered a lot of insecurity with an anxious avoidant attachment style herself. I believe that this has most likely impacted on her self-esteem and self-image and she seems to carry with her a fear of abandonment which may explain her pattern of relationships.
…[s]he seems to be very needy and reliant on others and desperate for some emotional security. However I believe she is also probably frightened of abandonment herself.
…I believe the mother cares a great deal about the children and wants to be able to care for them.
…I do have significant concerns about her ability to cope with four children. I believe there is [sic] significant emotional and personal insecurities that she is attempting to deal with.
At that stage the expert formed the view that the mother did not pose an unacceptable risk to the children but he did have concerns about her being able to cope with “a load of four children”. The expert did not find that the mother had a definite psychiatric disorder or a definitive personality disorder however he did say the following in relation to her personality:
However her history of abuse and neglect suggested there may be significant issues involving her self–esteem and fears of abandonment. These are likely to drive her relationships with men and children in ever–seeking security and ever being driven by fear of losing. I suspect she may find it difficult to cope well with stress and that this could impact on her mood.
For a few months up until May 2014 Community Services were involved in assisting the mother in the care of the children including making a referral to the Brighter Futures program. This engagement ceased in May 2014 as it was felt by Community Services that the mother was progressing well in her care of the children.
In September 2014 all four children were removed from the care of the mother and Mr Dylan and orders were made including that parental responsibility for the children be allocated to the Minister of the Department.
It was alleged that Mr Dylan had physically harmed C and B on 10 September 2014 at a time when the mother was in the house. The allegation included that Mr Dylan twisted C’s ear causing the child to sustain bruising and that he had struck B. The allegations only came to light when the children attended school the following day and made complaints about Mr Dylan’s conduct. Community Services received the complaint and on 11 September 2014 two Departmental officers attended the family home to see the children and interview the parents.
Notes taken by one of the Departmental officers of an interview between another case worker (denoted by the letter “M”), Mr Dylan (denoted by the letter “D”) and Ms Hampton (denoted by the letter “H”) are as follows:
M said:We had a report physical injury to the children. What we want to do is take children to [R Hospital] for a medical examination. At the hospital I will also interview children there. You and [Mr Dylan] can come to hospital and meet us there.
[H] said:I will need to come but I need to check if I have enough petrol.
[D] said:I have enough of this, of the lies they tell about me and other things.
M said:I need to take all children.
[D] said:Feel free, take them. They have bruised themselves. I’m going to be moving out and taking my daughter with me. They have killed my fish and lizard. They are psychotic my daughter is not sitting in the same car.
M said: That’s fine we have two cars.
[D] said:I can’t stay in house with this – [B] got a hit man out me. She is psychotic. They both are, they both do evil things, they psychotic and evil.
M said: We are going to take all children now.
[H] said: Ok
M said: Do they need nappies/milk, clothes
[H] said: Don’t think so.
[D] said:My daughter is not going with them, they are evil and will harm her.
M said:We brought two cars [E] and [D] will be in one car.
[D] said:Ok, as long as no harm comes to E from them. They are psychotic and evil. They cause all the trouble and stress in this house.
[H] said:They do cause a lot of stress. It has been very stressful. I am not sure if they can live here, but I don’t know what to do.
M said: How did they get their injuries?
[H] said:It was an accident. [Mr Dylan] did not mean to do it. They can be so naughty.
M said: Will you be meeting us there at the hospital?
[H] said: Yes
[D] said: No, I cannot cope. I will stay here.
M said: I will see [Ms Hampton] at the hospital.
[as written]
Under cross examination the mother said she did not recall saying that “it was an accident” and “[Mr Dylan] did not mean to do it”.
By the time the expert assessed the family for the second time in February 2015 the children had been removed from the mother’s care. The mother gave an explanation to the expert about the circumstances of the children’s removal. She claimed that C said that he wanted to live with his father and hated her which caused Mr Dylan to slap the table. She said C stood up and fell over and hit his head and scraped his face on the floor. She said that B was startled by the slap of the table and tripped over some toys but was not injured. The mother had a strong view that Mr Heath had “put [the children] up to [making complaints about her and Mr Dylan]” and was “manipulating the children to be returned [to his care]”. At the time of this assessment the mother was seeking restoration of the two younger children only to her care and that the two older children could be returned at a later stage.
When observed with the children the mother told the expert she believed that the older children were “retaliating against [her] and [Mr Dylan] and also explained that [B] had attempted to poison [E] and [D] by giving them fish food.” The expert observed that B and C looked quite distressed at these accusations. The mother also suggested that B was responsible for the mother having to drive long distances to see E in her placement. The expert described B as looking shocked and overwhelmed. The mother also described the children in their presence as rebelling and not listening and the expert said she was “clearly overloading the children with guilt” which caused them to become upset. The mother also asked all the children including three year old D where they wanted to live. Later in the absence of the children the mother told the expert that she felt there was a conspiracy against Mr Dylan and herself and that they were being wrongfully targeted and treated in a prejudicial way.
Under cross-examination the mother said that she “kind of remembered” saying the older two children had been retaliating against Mr Dylan and herself. She explained that this retaliation took the form of them hurting the two younger children, Mr Dylan and herself, especially after visits with Mr Heath. She explained that this referred to a time when all four children were living with her and having visits with Mr Heath.
In general the expert maintained in his third report[2] the opinions he expressed about the mother in the first report. In the third report he also expressed the view that the mother “seemed to be loading a lot of guilt onto the children” which he described as “very damaging and burdening” for them. The expert was also concerned that the mother “openly indicated that she only wanted the two younger children to be with her and did not seem to appreciate that separating the children would be damaging for them.” The expert was concerned that despite the circumstances in which the mother lost the children she intended to marry Mr Dylan. He expressed the opinion that the mother appears to be “committed to [Mr Dylan] as her first priority”.
[2] There had been a second report dated 18 August 2014 which did not include a further interview with the family members.
By the time she was cross examined the mother was pregnant with her fifth child. Under cross examination the mother remained firm as to her version of events in September 2014. She maintained that Mr Dylan had not harmed the children and said that both C and B were lying when they said Mr Dylan had hit them and caused bruises to various parts of their bodies. She believed that the children had inflicted the bruises on themselves to move out of the care of herself and Mr Dylan and into Mr Heath’s care. She maintained this version of events even when shown the Statement of Facts tendered to the court when Mr Dylan pleaded guilty to assaulting C.
Under cross examination the expert did not change his opinion concerning the mother’s difficulties arising from her own childhood and her significant personality disturbance and stronger loyalty to Mr Dylan than she has for her own children. He also added:
…I do have a concern that there is a mutual over dependency between [the mother and Mr [Dylan]] and that they are both heavily reliant on each other in an unhealthy way. So that is my concern– that they both have significant personality disturbance and emotional needs, and that they are clinging to each other to support each other. But whether they can act in the best interests of others such as the children, then it would seem that that’s quite difficult.
The expert expressed in oral evidence his opinion that there is an unacceptable risk to the children if the mother were to be the primary full–time parent or if they were to spend overnight time with her. He was of the view that there was not an unacceptable risk if the children were to have daytime contact only with their mother. He opined that it was likely the mother would reach the stage when she would not pose an unacceptable risk to the children if that daytime contact were unsupervised. When asked his opinion about when the mother would reach this stage the expert said the following:
I think adding in another child, a new baby – I think that that’s going to create enormous upheaval for her emotionally and logistically. So I think that that could be a very unstable time for her. So I would not have confidence until the issues relating to the new baby have become clarified.
Dr H is a child, adult and family psychiatrist. He prepared three reports in relation to this family and had access to a wide range of documents for that purpose and observed the interactions between the adults and children on two occasions. He was cross examined quite extensively in the proceedings and was not challenged in relation to any of the opinions he ultimately expressed in relation to each of the parents. His conclusions were consistent with the manner in which each of the parties conducted their cases. For these reasons I accept his evidence and attach significant weight to it.
Contact between the mother and children
After the children were assumed into care, the mother initially spent time with them once a week supervised by a contact agency arranged by the Department. From January 2015 this time was reduced to once a fortnight at the request of the mother who said that she could only manage fortnightly contact. According to the affidavit of the Community Services caseworker, the children’s time with their mother is generally reported to be positive and the mother is described as “affectionate towards the children and attempts to engage with each of them”. It is reported that the children appear to enjoy the visits though at times C has displayed challenging behaviours.
According to the Community Services caseworker however, there have been occasions which have raised concerns about the mother. In October 2015 the mother showed the contact supervisor a photograph of a specimen jar and told the supervisor it was a “baby” and asked if she could “tell the children and explain”. The supervisor asked the mother not to do this and the mother complied with this request. Under cross examination the mother explained that she had suffered two miscarriages at about this time and wanted to show the children this photo “to inform them they have an angel in heaven watching over them”.
Since the children were assumed into care the mother and Mr Dylan have also spent time with E once a fortnight separately. These visits are also supervised. Generally the reports of these visits indicate that the mother’s interactions with E are positive and affectionate and the child appears happy.
The mother has however on occasions cancelled contact with the children. Generally the mother has cited financial reasons for these cancellations. To assist with financial difficulties the case manager from the Department made a referral for the mother to see a financial counsellor which the mother has not taken up. On another occasion the mother declined the case worker’s offer to provide her with money for petrol.
The mother has undertaken urinalysis funded by the Department on three occasions in November 2015 and on one occasion in March 2016. All tests were negative for any illicit substances and there is no evidence to suggest the mother is misusing any illicit substance at the time of the proceedings.
Current circumstances of mother
At the time of the final hearing the mother was living with Mr Dylan. She was unemployed and did not have a driver’s licence. She was expecting her fifth child.
Mr Dylan
Personal history
Mr Dylan was born in 1984 and was 32 at the time of the final hearing. In his affidavit he says that he had a very difficult childhood which led him to “run away from the family home” from the age of 12. He says he turned to drug use as a way to cope with life and left school in year 9. Mr Dylan says he started using marijuana when he was approximately 13 and continued using it until he was about 27. He says that in the past he also used “speed” (which I understand to be a reference to amphetamine) “on a social basis” but says he has not used this substance in over ten years. He says at the time of the proceedings that he has not used any illicit substances since ceasing marijuana use about five years ago.
Mr Dylan provides no other information concerning his personal history though he gave further information to the expert when interviewed in June 2015.
Mr Dylan told the expert he was one of five siblings who grew up on the south coast. He experienced difficulties at school and was teased. His older brothers had a bad reputation and he was pre-judged because of this at school. He was expelled from high school and went to a special behavioural school which he left half way through year 9. The expert opines that it seems Mr Dylan had significant self-esteem and self-image difficulties.
Mr Dylan has worked in a variety of jobs.
Mr Dylan’s relationship with the mother
Mr Dylan met the mother when she was approximately six months pregnant with D (in about October or November 2011) shortly after the mother and Mr Heath had separated. Mr Dylan says that he was contracted to work at the residential complex where the mother was living with C and B.
Mr Dylan attended upon the mother when she gave birth to D in 2012. It seems that Mr Dylan had more involvement with D as a baby than Mr Heath who initially questioned whether D was his child.
Community Services records and the Magellan Report indicate that Mr Dylan was supervising C and B on 6 October 2012 when B (who was then living with her father Mr Heath) was spending time at the mother’s home pursuant to the then current interim orders. There was an incident at the home when B and C were said to have engaged in sexualised conduct observed by Mr Dylan. Mr Dylan is recorded to have called the mother who then made a notification to Community Services about the children’s conduct. This formed the basis for the mother withholding B from the father and ultimately led to a change in the interim parenting arrangements.
Mr Dylan moved into the mother’s home in November 2012.
The expert had little to say about Mr Dylan in his first report dated January 2014 and appears to have carried out a limited assessment of him. When interviewed at that time Mr Dylan described himself as the mother’s partner. Mr Dylan told the expert that he didn’t really want to get involved [in the mother’s parenting dispute with Mr Heath] and didn’t have any strong opinion about what should happen with the three children. He told the expert that he and the mother were expecting their first baby and is described in the expert’s report as a little anxious but looking forward to this.
Incident on 11 September 2014
In his affidavit filed in the proceedings and under cross-examination Mr Dylan maintained that he had not assaulted B and C. He continued to maintain that he did not pose a risk of harm to the children and had been generally poorly and unfairly treated by the Department when the children were removed from their mother’s care purportedly as a result of his actions.
Mr Dylan does not set out in his affidavit a version of the events when C and B were allegedly assaulted by him. He deposes only that when the children arrived home from school on the following day (11 September 2014) he noticed a bruise on C’s face and a rash on B’s face. He says the following in relation to his observations:
The bruise was close to his ear and down his face. [Ms Hampton] had asked him how he got the bruise and he had a blank response and smiled. At that time I was not aware any allegation had been made against me.
As regards to [B’s] rash I was not concerned as I had seen this a number of times before and knew that it was her eczema flaring up after she cried.
Mr Dylan then gives an account of the attendance of Community Services officers at his home on the eventing of 11 September. His only evidence is that he denied the allegations to the officers and denied that C had bruising and B had a rash on her face when they left for school that morning.
The only reference to his behaviour towards the children in his affidavit is that he was arrested and charged with criminal offences. Mr Dylan deposes that he was initially charged with two counts of assault occasioning actual bodily harm against C, that he defended the matter and then pleaded guilty to a single count of common assault on 11 May 2016 about six weeks prior to the matter being listed for a final hearing. Mr Dylan says that he entered the plea of guilty because he was advised by Ms J the case worker from Community Services that it would not reflect well upon him if he continued to maintain he was not guilty and C was required to give evidence against him in the criminal proceedings. He also says:
The charge of common assault was offered to me as a plea bargain, and if I was to take this offer, then the two charges of common assault occasioning actual bodily harm would be dismissed. This was subsequently the outcome of my case.
In his affidavit he also denies ever physically disciplining the children when they were in his care.
Mr Dylan takes particular issue with alleged poor treatment by B and C of household pets. In his affidavit he says that shortly after the interim order was made for the children to spend time with their father (this appears to be a reference to the parenting arrangements in place from November 2012 at about the time Mr Dylan moved into the home) B and C would return from spending time with their father and Mr Dylan would observe that the animals had been harmed. In his affidavit he clearly infers that B and C were causing that harm. He says that on one occasion “the fish tank had signs of dishwashing detergent being poured into it” and on another occasion a pet gecko died as a result of eating fish food which had been put in the tank by B. He alleges that B reported to the mother that “daddy [Mr Heath] told her to hurt the animals and [E] so they could move in with him”. He also claims that C was very rough with puppies at the home. Under cross examination Mr Dylan conceded that he made an assumption that the children had fed fish food to the pet gecko as he saw the food there and agreed that generally he believed the children were deliberately trying to hurt his animals and E just prior to the September 2014 incident.
Mr Dylan’s version of events on 10 September 2014 only emerged through cross examination. He said that the incident commenced when B and C were “writing lines” as a form of punishment and in frustration C said that he hated his mother which caused Mr Dylan to become extremely upset. He said he slapped the table to get C’s attention and then walked outside and had a cigarette while the mother spoke to C. He said that when he returned inside C and B were each in their bedrooms and the mother asked him to take D and E out while she spoke to the older two children which he agreed to do. When he returned home he went to bed. Mr Dylan provided no explanation for not providing an account of the incident in his affidavit and maintained in the proceedings that he had not touched C.
The Statement of Facts in respect of the one count of common assault charge to which Mr Dylan pleaded guilty includes the following:
On 12 September 2014 Department of Family and Community Services took the victim [C] to … Hospital for a medical assessment due to a report of physical harm. Whilst at the hospital it was noted that the victim had sustained bruising upon the right earlobe and also further bruising on the upper cheek and linear marks on the left cheek.
In September 2014 the accused twisted the right ear of the victim until he stopped talking, the victim sustained bruising to the right ear lobe. During the incident the victim was made to write lines for being naughty.
Under cross examination Mr Dylan maintained that C was lying when he told the Community Services officers that Mr Dylan pushed him off a chair, flicked his ear, pushed and pinned him down and that this had happened on two other occasions. He also denied striking B with his hand and said that she was lying when she said that Mr Dylan told her she was naughty and hit her.
Mr Dylan also denied saying many of the words attributed to him in the notes taken by the Community Services officers on 11 September 2014 but said it was possible that someone else in the room could have said these words.
Although I made a finding under s 69ZR(1)(a) that Mr Dylan had assaulted C and gave reasons for this finding, the issue generally continued to be dealt with in the proceedings as if the finding had not been made. For this reason I will deal with this issue at greater length in these Reasons.
I am satisfied to the requisite standard[3] that Mr Dylan assaulted both of the children on 10 September 2014 and that he hit them on other occasions for the following reasons. First, Mr Dylan’s plea of guilty and conviction for assault are weighty matters. I reject Mr Dylan’s explanation for pleading guilty to the charge. The records from the Local Court indicate that he was legally represented on each occasion he appeared in the criminal proceedings. It is difficult to accept that he would have entered a plea of guilty when legally represented if he was maintaining that he had not committed the offence. Under cross-examination Ms J, the Community Services caseworker, denied giving Mr Dylan advice that it would not reflect well upon him if C was required to become a witness in the criminal case and denied telling him that the ICL would have a strong view about his decision to force the children to give evidence. I have no reason not to accept the evidence of Ms J in this regard.
[3] The balance of probabilities taking into account the matters in s 140(2)(a) - (c) of the Evidence Act 1995 (Cth).
In finding that Mr Dylan assaulted both children on 11 September 2014, I also attach particular weight to the children’s original account of the assault in their respective interviews and to the conclusion of the paediatrician who examined them that each had been subjected to a non-accidental injury. I am also satisfied that the notes taken by the Departmental officer on the evening of 11 September 2014 are accurate as they are consistent with the general tenor of Mr Dylan’s view at the time that the children had lied and falsely accused him and that harm was caused to him through B and C hurting E and his household pets. In particular I accept that the mother said the children had been injured in an accident perpetrated by Mr Dylan who did not mean to do it. I also attach some weight to the fact that C told the expert when he assessed the family for the second time that Mr Dylan pulled his ear and hurt him.
Mental health and drug and alcohol use
In his affidavit Mr Dylan deposes to some matters concerning his mental health difficulties and substance misuse. He deposes to suffering from depression and anxiety since he was a child and briefly mentions an attendance at K Hospital in 2008. He says this admission was voluntary and for the purpose of ceasing marijuana use and after a few days became an involuntary admission for a period of a month. He also gives a brief history of substance abuse in his affidavit but maintains that he has not used any substances for about five years.
Records from K Hospital tendered in the proceedings indicate that the day after Mr Dylan was referred to the hospital in 2008 he was scheduled as a mentally disordered person. His presenting problem is described as poly substance abuse and the records indicate that he spent four days in the hospital.
Although this is not referred to in his affidavit hospital records indicate that in March 2011 Mr Dylan presented with suicidal thoughts and after having broken up with a girlfriend cut his wrist superficially and contacted her threatening to cut off his penis with a knife.
Another hospital admission which Mr Dylan does not refer to in his affidavit occurred in October 2013. Although Mr Dylan states that he has not used cannabis for five years, notes from the hospital in relation to this admission record that at that stage he engaged in “occasional marijuana use” and that he was diagnosed with alcoholic gastritis.
On 8 November 2015 Mr Dylan collided into the rear of a parked vehicle when intoxicated. When police were called he informed them that he was going to self-harm, and was also taken by ambulance to hospital for a mental health assessment. Police records indicate that earlier that night he was observed by another person colliding with another vehicle.
Following his release from hospital in the early hours of 9 November 2015 Mr Dylan and the mother had an argument in which Mr Dylan threatened again to kill himself. When police arrived at the home a knife was found under Mr Dylan’s pillow and he appeared to be affected by alcohol and had also admitted to consuming a number of Valium tablets. He was detained by police under the Mental Health Act and after being reviewed at hospital by the mental health team started becoming increasingly belligerent to hospital staff and aggressive and threatening towards police.
On 3 March 2016 Mr Dylan sent a message to the mother threatening to kill himself. In his affidavit Mr Dylan says this occurred following a contact visit with E on the previous day when he and the mother observed the child to have a large bruise and bump to her head which he found extremely upsetting. He says that he was feeling very anxious and depressed and took two Valium tablets which were prescribed to him. He says that he then had an alcoholic drink which he describes as an error in judgment but he has no other memory of the incident.
Police records indicate that when police attended the home on 3 March 2016, Mr Dylan was unconscious on the lounge, a kitchen knife was located at his feet and he was observed to have a single laceration across his wrist. Police records indicate they could smell a strong scent of alcohol and the mother informed them that Mr Dylan had been drinking heavily since the previous night. He was taken to hospital due to his aggressive manner and threatening manner towards police. According to hospital records he told the staff that the laceration on his wrist was not self-inflicted but was done by his partner when he was asleep.
A psychiatrist to whom Mr Dylan had been referred in 2013 and who saw him periodically up until May 2016 wrote a report concerning Mr Dylan on 21 June 2016. In that report the psychiatrist expressed the opinion that Mr Dylan was suffering at that time from an anxiety disorder (which started in his childhood and continued at moderate to severe levels during his adult life), and depression which probably started in childhood and which has continued at a moderate level during his adult years and become severe in the last one to two years. The psychiatrist noted that Mr Dylan had previously been diagnosed with a mood disorder which he agreed was likely from the history and that he had substance abuse in his early twenties probably due to his anxiety and depression. The psychiatrist opined that Mr Dylan will continue to need help, support, psychological treatment and medication for a number of years and that his mental state in recent years and behaviour in recent years been affected by his psychological and psychiatric disorder/illness.
At the time of the final hearing Mr Dylan continued to receive professional assistance with respect to his mental health.
The expert evidence concerning Mr Dylan
When assessed in February 2015 for the purposes of the most recent expert report Mr Dylan said that he only wanted the two younger children to come back into his care and said that when the two older children “improve” then they could return to the home as well. He expressed being upset that B and C had hurt his animals and believed that Mr Heath had told them to do it. He maintained that C had hurt himself in the incident of 11 September 2014.
The expert described Mr Dylan as looking “quite diffident and guarded” and that he didn’t seem to know what to say when he was observed with the mother and children. It is reported that the following occurred during the observation of the mother and Mr Dylan with the children:
[Mr Dylan] said “I try to get on with them. But they told the school that I did things to them. They told them stuff their father had told them to say.” He said he was upset with [C] because he was hurting the animals. “They killed my lizards. They poisoned my fish tank. They hit and kicked my dog. They were hurting everything I cared about.”
The expert said that C looked tearful and apologised and appeared overwhelmed by the accusations that he had been destructive to Mr Dylan and Mr Dylan’s animals. It is reported that C said “I treated [Mr Dylan] bad” and he “looked very sad and tried to apologise to [Mr Dylan]”. B was also described as looking overwhelmed and was crying and said “I shouldn’t have tried to kill the animals”.
When Mr Dylan and the mother were observed with E Mr Dylan accused his family of stabbing them in the back. The expert also observed that Mr Dylan was trying to interact with E but she did not appear particularly interested in interacting with him and seemed more comfortable with her mother. Mr Dylan raised many complaints with the expert about the current care of E with his brother and family.
The expert expressed concern in his final report about Mr Dylan’s attitudes and understanding of children’s emotional and behavioural states. He was particularly concerned about Mr Dylan’s belief that the children … “were intentionally trying to destabilise him by hurting animals [and] that this was a way of undermining [his] confidence and that they were hurting what he valued most”.
The expert opined:
[Mr Dylan] appeared to be extremely immature. He seemed to be rather childlike and I believe that his lack of self–confidence has significantly influenced his interpretation of the children’s behaviour. In fact the children are very confused and worried about the situation and are reacting to the situation that they have been placed in.
The expert also expressed concerns about Mr Dylan’s parenting capacity and his ability to manage his anger and concerns that when angry he may hurt the children.
In terms of his personality the expert opined that Mr Dylan:
…possibly had significant self–esteem problems when he was a child [and that] these self-esteem problems have led to feelings [of] inferiority and probably dependency on others.
The expert was particularly concerned that Mr Dylan is probably dependent on the mother who herself is quite emotionally unstable and overall said “this recipe is of concern for their ability to be able to provide a stable home environment for the children”.
The expert said in his final report that he was not aware of any problems for Mr Dylan in terms of anxiety, depression or psychosis. Under cross examination when informed about Mr Dylan’s hospital admissions with suicidal ideation in November 2015 and March 2016 the expert said that he had serious concerns about Mr Dylan’s mental health and that these incidents would “absolutely” increase the risk to the children if they were to be living in a household with Mr Dylan.
Overall the expert felt that while Mr Dylan posed a risk to the children should they live with him, he did not think that these risks would arise if he were to have some brief contact in a relatively well controlled environment. He said that the risk posed by Mr Dylan was not that he would intentionally harm the children but that he may not be coping with himself and by acts of self-destruction he could either psychologically or accidentally physically harm the children in the vicinity. He thought it would be unlikely that he would be a danger to the children if there were other adults present.
The major problem identified by the expert is Mr Dylan’s capacity to cope when under any sort of major stress. He said that it overwhelms Mr Dylan’s coping ability and Mr Dylan’s capacity to have some substantial input into the lives of the children depends on him being able to manage stress. He said that the difficulty of Mr Dylan to cope with events that occur in everyone’s lives indicate that he is quite vulnerable and has limited personality resilience.
The doctor explained that the complicated task of treating a personality disorder involves two large “streams” of treatment. The first is emotional regulation treatment focusing on being able to cope with stress in a way that doesn’t result in dangerous reactions. The second stream of treatment is more therapeutically focused, extending over usually two years at least to “deal with the underlying conflicts and disturbances that have led to the flawed security in the self-concept”.
Mr Heath
Personal history
Mr Heath was born in 1985 and was 31 at the time of the hearing. Although he does not set out any of his personal history in his affidavit it can be gleaned from information given to the expert, though I do have some concerns about the reliability of information provided by him for reasons to which I will return.
Mr Heath told the expert he was one of three siblings and was born in L Town and moved to Sydney as a child. His parents both worked in the military. Mr Heath described his home life as “fantastic”. He said he got on well with both siblings, denied any traumatic experiences and functioned well at school. Although there were no social or learning problems Mr Heath also described himself as “a bit of an outsider” as an adolescent.
Mr Heath’s relationship with the mother
Mr Heath and the mother began a relationship in 2004 when they were both 19. Their first child B was born in 2007. The family were involved in a car accident when B was one week old. Mr Heath says that he and the mother did not experience any difficulties until B’s birth but after that time the mother could not cope.
Mr Heath told the expert that he received eight months psychological treatment for post-traumatic stress disorder following the car accident in 2007 in which he was the driver. He also told the expert that he did not have any alcohol problems, had not had any problems with anxiety or depression and had never had any suicidal feelings.
According to the Magellan Report and the records Community Services concerns about the wellbeing of B and later the other children were connected as much as or more to Mr Heath than to the mother. A notification in March 2007 raised concerns that Mr Heath gambled excessively and as a result the family didn’t have enough money for food. In May 2007 a reporter expressed concerns that Mr Heath was “very high strung, speaking quickly and at times inappropriately”, speaking over or dismissing staff when they attempted to engage with the mother about the baby B’s care and ordering the mother about. In December 2007 it was reported that Mr Heath was emotionally abusive to the mother, that he had expressed wanting to hurt people when frustrated and had made inappropriate and derogatory remarks about the baby. The Department also received notifications about Mr Heath’s alleged violence towards the mother on a number of occasions in 2009 and an incident in which he was alleged to have harmed B.
Following final separation from the mother in mid-2011 Mr Heath moved to the Central Coast into his parents’ home.
Mr Heath was last employed at the end of 2011. In 2012 Mr Heath was the primary carer of B for ten months until the interim orders were made in November 2012 for B to live with the mother. Mr Heath started a degree at M University in mid-2013.
Risks posed by Mr Heath
It is contended by the Department that Mr Heath poses a risk to the children on a number of bases. First, it is contended that there is an unacceptable risk that the children will be exposed to or subjected to family violence if they live with him. Second, it is contended that Mr Heath’s parental capacity is seriously impaired due to his significant cannabis use and mental health difficulties. Although the original reason Mr Heath’s time with his children was supervised related to concerns about sexual harm in Mr Heath’s care, this matter was not pursued in the proceedings and it is not contended that there is any risk associated with Mr Heath’s care of his children on this basis. The other contentions relating to Mr Heath involve the resolution of factual disputes.
Although Mr Heath conducted his case on the basis that he did not pose an unacceptable risk of harm to his children and sought orders that they live with him, on the final day he proposed orders that would see him spend time with this children on a limited and supervised basis only. In the course of an interchange between myself and counsel I expressed the view that Mr Heath must be taken in proposing those orders to accept that he does pose an unacceptable risk of harm to the children if they were to live with him or spend unsupervised time with him. A short time later Mr Heath’s counsel said that he no longer relied upon this proposal and he reverted to the original proposal that his children live with him and that he have parental responsibility for them.
It was then submitted on his behalf that the evidence does not establish that he poses an unacceptable risk of harm to the children and that the risks said to be posed by him have not been fully investigated or can be “controlled or treated”.
Family violence
Both the mother and Community Services contend that Mr Heath was the perpetrator of family violence towards the mother to which the children were exposed and that an unacceptable risk remains that he will perpetrate family violence against others to which the children will be exposed. The mother also contends that Mr Heath perpetrated an act of significant violence against B on one occasion.
To a large extent the contentions about the risks posed by Mr Heath are based upon allegations that he has assaulted the mother in the past and on one occasion assaulted B.
In M & M[4] when considering an allegation of sexual abuse the High Court said [18]:
The Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
[4] (1988) 166 CLR 69; [1988] HCA 68.
In Johnson & Page[5] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[5] [2007] FamCA 1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[6], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[6] (2005) FLC 93–235.
The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[7] and will also be applied when determining the allegations issue of physical abuse towards B and family violence towards the mother in this matter.
[7] See e.g. Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
In her affidavit, the mother makes a general allegation that Mr Heath was frequently violent towards her during the relationship and in particular grabbed her around the throat and on other occasions hit her. The mother told the expert when first assessed that there were twenty such choking incidents. She also told the expert about an incident where she alleges Mr Heath choked B to which I will return.
Although the mother does not refer to this incident in her affidavit, under cross-examination she agreed that there was an occasion where Mr Heath used a broom to strike her. She said she believed that this occurred when she was 8 months pregnant with C (which would have been around March 2008). Mr Heath also agrees that there was one incident which resulted in him being arrested and found guilty for assaulting the mother and an ADVO being issued against him for 12 months for the mother’s protection. He also believed that this occurred in early 2008.
Local Court records indicate that the father was arrested for assaulting the mother in February 2009 and pleaded guilty to it. Although neither the mother nor Mr Heath provide any details concerning this incident Local Court records include the Statement of Facts upon which the Mr Heath was sentenced. This document indicates that the parties had an argument in the presence of B when the mother was sweeping in the kitchen. According to the Statement of Facts Mr Heath grabbed the broom from the mother and struck her a number of times around the legs. He then said “I’m sick of you, get the fuck out of the house” and grabbed her “around the throat with one hand and squeezed” and then pushed her out of the house.
The mother sets out in her affidavit an incident which she says arose from an argument about Mr Heath’s expectation that she collect a car from a mechanic which would have necessitated her traveling by public transport with two young children. She says that Mr Heath yelled at her during this argument and put his hands around her throat, squeezing it tight.
Although the mother does not depose to any incident in her affidavit where Mr Heath physically abused the children, under cross examination about the incidents of violence perpetrated by Mr Heath against herself the mother referred to a serious instance of violence against B. The mother says that on that occasion when B was sleeping in the parent’s bed, she woke to find Mr Heath with his hands on B’s throat and him abusively yelling to her to “get the kids out of the room”. The mother says that B’s eyes had started to turn red and tears were coming to her eyes. She says when Mr Heath left the house she made a report to police.
Police and Local Court records indicate that there were a series of incidents between 6 August 2009 and 15 August 2009 which resulted in Mr Heath being charged with assaulting the mother on two occasions on 6 August, assaulting the mother on 11 August and 14 August, assaulting B on the morning of 15 August and breaching the ADVO on the same date. Police documents indicate that it was alleged that on 6 August Mr Heath punched the mother to her leg and later punched her in the ribs. The alleged assault on 11 August arose from an argument about picking up a car from a mechanic’s and Mr Heath was said to have put his hands around the mother’s throat and squeezed and pushed her into a wall. The allegation on the 14 August 2009 is that Mr Heath again placed his hand at the front of the mother’s throat. According to police records the allegation in relation to B is that she was in bed between the two parents and as she climbed over Mr Heath he grabbed her by the throat with both hands saying to the mother “get her the fuck out”. According to the Magellan report these allegations were reported to Community Services by a mandatory reporter.
The court records indicate that Mr Heath who was legally represented contested all of the charges related to incidents in August 2009. In the Court file there is a letter purportedly written by the mother on 31 August 2009 in the following terms
I [Ms Hampton] have charges against [Mr Heath] and I would like to drop the charges against him.
On 15 August 2009 I had called the police and [named police officers] had come to the premises where I was residing and I have told them about the DV violation. I would like to drop those charges as I was very stressed out and I wanted to get out and I wanted to get away from him.
I would not like to see him go to jail. I also believe that I was part to blame. I do not wish to get back with him and have been advised that I am not welcome back at the premises as to where he resides. But I would like [Mr Heath] and his children to have a relationship and for us to be able to talk again so we can still be friends.
I would like to be present with these visits as I believe we can still be friends and maybe later down the track start the relationship back up. But as part of his bail conditions he and I are not to speak or see each other. But I would like to make it that we can speak to each other and discuss things about the kids and other stuff not only for the kids’ sake but also for our own.
I also believe he has suffered enough knowing that he could go to jail and I also believe he won’t commit any more violence.
So if you could find it in your heart to drop all present charges against him I would really appreciate that.
Sincerely
[Ms Hampton]
The transcript of the Local Court proceedings reveals that on 24 June 2010 the mother gave evidence in chief but was not cross examined on that occasion and the matter was adjourned for further hearing. On the second day of the hearing (17 August 2010) the mother failed to appear despite there having been a subpoena issued requiring her attendance and it was noted by the presiding magistrate that she was “clearly unfavourable”. The magistrate declined to grant an adjournment as sought by the prosecution and found a prima facie case for all charges which were subsequently dismissed on the same day.
Mr Heath does not set out any details concerning these alleged assaults in his affidavit.
Mr Heath does however rely upon transcript of the Local Court proceedings. In particular he relies on the evidence of the police officer who attended at the home on 15 August 2009 when Mr Heath was arrested that he did not observe B to be distressed and that he did not observe any injuries to the mother.
The mother gives details in her affidavit of another instance when she says that Mr Heath grabbed and squeezed her throat in the course of an argument about her accessing Mr Heath’s phone. She says he tightened his hands around her throat and only stopped when she was “on the floor in tears”. According to the mother the children were present when this occurred and she took them outside put them in the car and planned to drive away. The mother says that Mr Heath got into the passenger seat and in the course of further argument he threw her phone and keys out of the car causing them to break. On this occasion, the mother contacted police and says that “they checked whether I had any marks or bruises on me, but I did not”. She says that police applied for an ADVO for her protection and also charged Mr Heath with malicious damage in relation to the phone.
Police records indicate that in November 2010 Mr Heath was charged with assault and damaging property. According to police records these charges arose from an allegation that in the course of an argument about the mother accessing Mr Heath’s phone Mr Heath assaulted her by grabbing her on the jaw and tightening his grip while making a threat to kill her. The mother’s complaint to the police includes an allegation that Mr Heath grabbed her jaw again and caused her to fall on the floor where she “curled up in fear of [Mr Heath] and began crying”. The police records indicate that the mother alleged at the time that there was a further argument in the car in which Mr Heath snatched the mother’s mobile phone and keys from her hand and threw them out the window causing her central locking key and phone to be damaged. Court records indicate that Mr Heath pleaded guilty to damaging the mother’s property and was convicted and fined but defended the assault charge which was dismissed following hearing.
Under cross examination the mother confirmed that the allegations about Mr Heath’s violence contained in her affidavit were truthful. She said that on most occasions when Mr Heath was violent she reported this to police. When asked about whether the police investigated those complaints the mother said:
I am aware that he was charged with domestic violence. He did also, at [Suburb N] Courthouse, inform me that if I persisted with these and that if he was to go off to goal, that he would kill himself.
It was not suggested to the mother that any of the allegations she made concerning family violence were untrue. There was generally very limited cross examination about family violence.
The mother also alleges that Mr Heath was verbally aggressive and controlling and attempted to control her during the relationship, including having control of their finances. She was not challenged about her evidence that Mr Heath spent money as he wished but controlled her access to money. She also describes him as demanding that she complete household chores and becoming angry over minor issues.
Mr Heath makes no reference to any allegations that he is the perpetrator of family violence in his affidavit other than to say that “there was an incident between [the mother] and I which resulted in me being charged with assault” to which he pleaded guilty. Other than that incident he makes the assertion that on at least three occasions the mother made false allegations to police that he had breached the ADVO. He says that he was charged in relation to some of these matters and that on each occasion it was found that he had not breached the ADVO and that “[the mother’s] allegations had been maliciously” [sic].
Under cross examination Mr Heath appeared to have a poor memory of matters concerning allegations of violence including those which resulted in his arrest. He denied all of the allegations of specific events including the alleged assault in February 2009 to which he had pleaded guilty and the allegations of assault in November 2010.
I am satisfied on the balance of probabilities that Mr Heath was the perpetrator of family violence against the mother to which the children were exposed prior to their separation and in particular that he assaulted her on a number of occasions including putting his hands around her throat. In making these findings I attach particular weight to Mr Heath’s plea of guilty to assaulting the mother in February 2009 and that the facts upon which he was sentenced include that he struck the mother with a broom, grabbed her around the throat and squeezed and pushed her out of the house. As the court records indicate that Mr Heath was legally represented, I am satisfied that he accepted these facts when he entered his plea of guilty. This plea is also consistent with the mother’s evidence that on one occasion Mr Heath struck her with a broom and that on many occasions he choked her.
Mr Heath was not found guilty to the criminal standard of numerous other assaults upon the mother, including two occasions on which it is alleged that he put his hand around the mother’s throat in August 2009. However, a magistrate found that there was a prima facie case, that is, sufficient evidence upon which he could have been convicted. One of these assaults is consistent with the mother’s evidence that it arose from an argument between herself and Mr Heath about picking up a car from a mechanic.
It is of significance in my view that Mr Heath does not set out in his affidavit any version of the alleged assaults in February 2009, August 2009 or November 2010 which resulted in him being charged. Further, under cross examination it was not put to the mother that her evidence concerning these incidents was untruthful or inaccurate. She also said that on most occasions when Mr Heath was violent she reported this to police and police records confirm that she did make complaints on a number of occasions about Mr Heath’s violence which resulted in him being charged.
In relation to the charges for numerous acts of violence against the mother (and the assault on B) in August 2009, the mother said under cross examination that they did occur and that Mr Heath told her at Suburb N Local Court that if she persisted [with the charges] and he went to gaol he would kill himself. This is consistent with the mother’s letter requesting that the charges be dropped and that she did not wish to see Mr Heath go to gaol. Of significance, in that letter the mother says she feels Mr Heath has suffered sufficiently in having been charged and facing the risk of incarceration. In the letter she does not withdraw her version of events and says that she believes “he won’t commit any more (emphasis added) violence”. It can be inferred that she maintained the allegations but did not wish to be responsible for Mr Dylan being convicted and gaoled. This is also consistent with her failure to attend at court on the resumed date in the criminal proceedings. A dismissal as a result of a key witness failing to attend in these circumstances does also not in my view support Mr Heath’s position in these proceedings that he did not assault the mother.
Mr Heath also does not challenge the mother’s evidence that he was verbally aggressive and controlling and attempted to control her during the relationship, including having control over their finances. The mother’s general allegation of Mr Heath’s verbal aggression is also supported by the Magellan Report which contains records of notifications made to Community Services including one which appears to be from a mandatory reporter at the hospital following the car accident in May 2007. The notification includes a complaint that Mr Heath was “ordering the mother around despite her injuries and becoming angry when the mother attempted to provide a dummy to the baby”. Another report which in my view was most likely made by a mandatory reporter having regard to its contents in December 2012 describes Mr Heath as having been diagnosed with “Intermittent Explosive Disorder” and using violent and aggressive language including towards the mother. I also attach some weight to the statements made by Mr Heath contained in the hospital records related to his hospital admission in June 2008 making suicidal and homicidal threats towards the mother and B.
The expert also identified that children being in the primary care of a person with marked dependent features to his personality is of concern. He was of the view that such people want to have their needs to be met by others and often a reverse care role can develop where the parent is overly dependent and is looking to elicit responses from children to care for them. The expert noted many features in Mr Heath that indicated he was eliciting such a care response from others. The expert also expressed concerns about the father’s parenting capacity if it were found that he were the perpetrator of family violence expressing the view that children’s exposure to family violence “is clearly very detrimental to their emotional wellbeing and their development”.
The assessment of Mr Heath’s parenting capacity carried out at the request of the Department in November 2014 also raised concerns about Mr Heath’s understanding of the impact of domestic violence on the children. In his evidence under cross-examination Mr Heath in my view continued to show a particularly poor understanding of the impact of exposure to family violence upon children. Although Mr Heath denied the more serious allegations against him that he assaulted the mother, he did agree that he yelled at the mother in the presence of the children and on one occasion broke her phone. When asked about the impact upon the children of him yelling and calling their mother names and how it would make the children feel, Mr Heath said “probably the same way that they felt about when she was calling me names. People argue. Arguments are natural in relationships”. When pressed about the impact upon the children of conflict between the parents and directed to answer a question about how he thought the children would feel, Mr Heath said:
I can’t tell you how the children would feel, because I don’t know how the children would feel. If somebody – if my parents had an argument, it would not affect me. If I have an argument that’s between me and my wife, it’s not going to affect my children. Why? Because my children aren’t – they don’t witness it. They might hear it. “Oh mummy and dad had an argument. Oh that’s fine. Is everything ok? Yes that’s fine”.
The expert described Mr Heath’s general denial or minimisation of the severity and seriousness of his violence, as “a major worry about his ability to be a stable parent as well”.
The expert also identified limitations in parenting capacity arising from Mr Heath’s emotional dysregulation. He ultimately agreed that as a result of all of the difficulties associated with Mr Heath his recommendation was that Mr Heath was not capable of parenting the children adequately on a full time basis and he could not even recommend that Mr Heath spend unsupervised time with the children.
All of the parties including Mr Dylan appear to recognise the serious limitations in Mr Dylan’s parenting capacity as none propose that he have parental responsibility for the children or that they live with him. As discussed at length earlier in these Reasons the matters which impair Mr Dylan’s parenting capacity include his inability to cope when under stress, his poor judgment when impaired by alcohol or other substances and other features associated with his personality.
The mother’s parenting capacity was considered by the expert both of its self and in conjunction with Mr Dylan. So far as Mr Dylan and the mother together parenting children is concerned, the expert referred to the significant problems that each have supporting themselves and says that when they are dependent upon one another “it’s like a house of cards that could collapse”.
Some of the particular concerns that the expert had in relation to the mother’s parenting capacity include her prioritising her relationship with Mr Dylan over her children and her inability to cope with the load of (four or five) children given her personality style and dysfunction.
The expert was asked about the mother’s capacity to manage the children overnight if she separated from and did not live with Mr Dylan. He remained firm that overnight time is still a major concern for her ability to cope with the children and said it was even more difficult now that she is pregnant and expecting another child.
Given the statutory role of the Department it can be safely assumed that the carers with whom the children are placed under an order of parental responsibility to the Minister have the capacity to meet the children’s needs. To date there have been no difficulties associated with the current carers with whom the children have been placed.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Each of the children has had significant instability and disruption in their lives as difficulties in the parental relationship appear to date from the birth of the first child. B was involved together with her parents in a serious car accident when she was one week old at a time when she was being held by the mother rather than being restrained in an appropriate car seat. By the time she was two her father had presented to a hospital expressing suicidal ideation and thoughts of harming her and her mother and her father had assaulted her mother in her presence in the family home. At this stage the second child, C was born.
From around the time Mr Heath first assaulted the mother, the children experienced numerous periods of separation between their parents and at times live in a refuge and with their mother, away from their father. The parents separated when B was four and C was three. Mr Heath moved out of their home and into their grandparent’s home and played a more peripheral role in their lives. The children’s mother then met Mr Dylan and began a relationship with him and for some time it appeared that Mr Dylan played a father like role for the children, in particular D who was born in 2012.
For a significant period of time, Mr Heath denied that D was his child and he made no effort to form a relationship with him. For some time it is clear that she had a closer, father like relationship with Mr Dylan.
At around the time of D’s birth B went to live with her father Mr Heath and had no contact with her mother for around nine months. Mr Heath had no contact with C during this period.
The issues relating to the children’s removal from the care of the mother have been traversed at length. So far as B is concerned the evidence suggests that he was clearly traumatised by the events that gave rise to her removal. It is particularly poignant that when interviewed B said “if I go home I am going to run away and find a nice family to live with.”
Against this background it is pleasing to see that the children have developed reasonably well. At the time of the final proceedings B was in year 4. She is described in her school report as having a “bubbly personality” and enjoying maths and creative writing. B plays soccer in winter and is learning to play the violin. In the summer time she has engaged in swimming lessons.
Since B has been in the care of her paternal grandparents she has settled well and there have been no concerns about her emotional wellbeing.
At the time of the proceedings C was attending the same school as B and was in year 3. There are some concerns about C’s cognitive skills and verbal comprehension skills and there have also been some particular concerns about his hyper-active and oppositional behaviours and interaction with his peers. C has been placed on a behavioural plan to support him at school.
C also plays soccer in winter and is to be enrolled in swimming in the summer.
At the time of the proceedings D attended an early learning centre three days per week and appears to be progressing well.
Aboriginal or Torres Strait Islander background and the children’s right to enjoy their culture
As set out earlier in these Reasons, the mother identifies as Aboriginal through her maternal side and under cross examination said she has two tribal affiliations.[15]
[15] Transcript dated 23 June 2016 at pages 38-39.
This consideration is directed to the children’s right as Aboriginal children to enjoy their Aboriginal culture including the right to enjoy that culture with other people who share it and to consider the likely impact any proposed parenting order will have on that right. Aboriginal culture is defined in s 4(1) of the Act to mean “the culture of the Aboriginal Communities to which the child belongs and includes Aboriginal lifestyle and traditions of that community or communities.
There is very limited evidence in relation to the culture of the Aboriginal Communities to which the children belong or the lifestyle and traditions of those communities. The mother’s affidavit is concerned more with her identity as an aboriginal person as opposed to providing evidence of the culture, lifestyle and traditions of any particular community. In her affidavit the mother describes herself as one–eighth aboriginal and the children as being one–sixteenth aboriginal. The mother describes learning about aboriginal culture in general as a child including dancing, face painting, carving and painting and eating native Australian food. She also describes celebrating [NAIDOC] week with her foster family and at school and being set up with an aboriginal support worker when she left foster care. She says that she would like her children to know something about their own history so they can benefit as she has from learning about aboriginal history and culture.
In her affidavit the mother also states that she had a conversation with B about her aboriginal heritage in which B informed her that Mr Heath had told B that the mother was aboriginal but the child was not. The mother deposes to giving information to B about her “aboriginal heritage” in answer to B’s questions. She relates similar conversations with C.
It is the mother’s case that Mr Heath is not willing to teach the children about their aboriginal heritage and she says that he made derogatory and racist remarks towards her at the time of separation.
Under cross examination when I asked the mother about the cultural traditions that she wanted the children to know about and participate in, she responded as follows:
I want them to be able to research and learn basically for themselves about their own culture. I have had to do some research back when I was younger myself as I had no help around me in order to research…
The mother then confirmed in answer to further questions that her real concern was that the children should have an understanding of their aboriginal identity. When asked about the steps she would take if the children were in her care in relation to promoting their understanding about their aboriginal heritage the mother said “we were doing drawings, we were looking at finding videos”. The mother agreed that these actions related to providing information to the children and that the steps taken to date related to their aboriginality [generally] as opposed to matters concerning any particular tribe. The following evidence was then given:
So, again, it’s more about their identity rather than cultural traditions associated with the community that they come from?‑‑‑At the moment, it is. Like, I would love to be able to take them up the coast and to regions around where my ancestors grew up.
But you hadn’t done that when they were in your care before they were removed?‑‑‑For that brief period of time, no. I hadn’t.[16]
[16] Transcript dated 23 June 2016 at pages 40-41.
Pursuant to s 60CC(6) an Aboriginal child’s right to enjoy his or her Aboriginal culture includes the right to maintain a connection with that culture and to have the support, opportunity and encouragement necessary to explore the full extent of that culture and to develop a positive appreciation of that culture.
The difficulty in this matter is that there is no evidence concerning the culture of any tribe or other community with which the mother identifies including an absence of evidence concerning the lifestyle and traditions of those communities. In these circumstances difficulties arise in determining how these children can exercise their right to enjoy that culture as defined in s 60CC(6). During the time that the children lived with their mother while undoubtedly she educated them to ensure that they had a positive sense of their aboriginal identity she was unable to impart any knowledge about the particular culture pertaining to the communities with which she identified.
Section 61F which is also relevant here, provides
In:
(a)applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b)identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture
In Backford & Backford and Anor[17] the Full Court referred to the matters underpinning s 61F and noted:
The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) relevantly noted that (emphasis added):
The purpose of [s 61F] is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.
[17] [2017] FamCAFC 1 at [184].
In Donnell & Dovey[18] the Full Court said in relation to the application of s 61F of the Act:
It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child. In proceedings under Pt VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture. Failure to take account of that provision would, in our view, ordinarily amount to appealable error...
Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them. In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them. We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.
[18] (2010) FLC 93-428; [2010] 42 Fam LR 559 at [183]-[184].
Once again the difficulty arises in relation to evidence concerning any kinship obligations and child rearing practises of the children’s Aboriginal culture. Although a court may be permitted to draw on common knowledge pursuant to s 144 of the Evidence Act, or receive the transcript of evidence in other proceedings and adopt any finding decision or judgment of any court pursuant to section 69ZX (3) no party in these proceedings sought that I take either course in this matter. No further submissions were made in relation to any provisions relating to the children’s enjoyment of their Aboriginal culture.
As indicated in the discussion concerning the mother’s views about her Aboriginal heritage, it appears that the weighty matter for her relates more to the children’s identity as Aboriginal than to the cultural traditions associated with any particular community. The mother has been diligent in ensuring that the children are aware that they are Aboriginal and to sharing with them matters relating to Aboriginal history. She is likely to be the person who will continue to promote the children’s sense of their Aboriginal identity and appreciation of it and will have scope to continue to do so under all of the proposed orders.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
I have no doubt that the mother loves and has a great deal of affection for all of her children and that Mr Dylan and Mr Heath similarly love and are committed to each of their children. However, the mother has demonstrated that in the past she has prioritised her relationship with Mr Dylan over the children and this continues up until the present time in her approach to the proceedings.
Although the expert initially described Mr Heath as being “very focused about the children” in his final report, the expert was clear in recommending that if Mr Heath sought to care for the children on his own he should move to be near his parents to gain support from them. Despite this clear recommendation Mr Heath did not move.
Mr Heath’s steadfast failure to see his cannabis use as an issue in these proceedings and refusal to undergo a level of monitoring of it shows a particularly poor attitude to his responsibility as a parent.
Family violence relating to the children or a member of the children’s family
The issue of family violence has been previously dealt with at length. There are no concerns on the evidence that the mother poses a risk as a perpetrator of family violence, although I am satisfied in her relationship with Mr Heath, she was the victim of family violence to which the children were exposed. At that stage in her life she appeared to be unable or unwilling to act protectively of the children by separating from Mr Heath and appears not to have the wherewithal to have assisted in his prosecution by appearing in court in the criminal proceedings against him. However, there is no evidence to indicate that the children were exposed to family violence in the mother’s household after she separated from Mr Heath.
There is no evidence to suggest that the relationship between the mother and Mr Dylan is one that is characterised by family violence. However, Mr Dylan has perpetrated family violence against C and for reasons discussed earlier there is an ongoing risk that children in his care may be the victim of family violence at his hand in the future if he is unable to cope at times of stress. It is concerning that a feature of the mother’s personality in prioritising Mr Dylan over her children is that she denies that Mr Dylan has assaulted them in these proceedings. This is particularly concerning as the mother originally told the Community Service’s case workers that Mr Dylan had harmed the children, albeit unintentionally. In this regard, concerns are raised about her capacity to protect the children from being the victims of family violence in her household.
For the Reasons given earlier, I have concerns about the risk posed by Mr Heath that he may assault other partners or family members in the future in the presence of the children. I have particular concerns about the paternal grandmother diminishing the seriousness of risks posed by Mr Heath in this regard. These concerns found the Secretary’s proposal that Mr Heath’s time with his children be supervised by someone other than his parents for two years.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
Finality in parenting proceedings is always beneficial for children especially where there is ongoing conflict between their parents which is often perpetuated by the ongoing parenting proceedings.
In this matter there does not appear to be any suite of orders are more or less likely to lead to the institution of further proceedings in relation to the children. Accordingly, this is not a weighty factor in these proceedings.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[19] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[19] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 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 (s 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 (s 61DA(4)).
In this matter none of the parties propose that the mother share parental responsibility for the three older children with Mr Heath or with Mr Dylan in respect of E. In any event the presumption of equal shared parental responsibility does not apply with respect to the three eldest children as I have found that Mr Heath engaged in abuse of B and family violence.
In relation to the three eldest children Mr Heath and the mother each seek sole parental responsibility and the mother also proposes a short period in which the Secretary has sole parental responsibility prior to it being allocated to her, to which I shall return.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of “parental responsibility” in s 61B, the order sought by the mother and Mr Heath must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
Having regard to all of the considerations with respect to the best interests of the children and attaching particular weight to the need to protect the children from harm, the capacity of each parent to meet the children’s needs and the attitude to the responsibilities of parenthood demonstrated by each parent, I am of the view that it is not in the best interests of the three older children for either of their parents to hold sole parental responsibility for them.
Having regard to the circumstances in which the children were removed from the care of the mother and my finding that there is an unacceptable risk of harm to them if they were to live with the mother or in the mother’s household or if they were to spend overnight time with her, I am satisfied that it is in the best interests of the children for the mother not to hold parental responsibility for them.
Similarly, for the reasons given in relation to Mr Heath and my finding that he poses an unacceptable risk of harm to the children except in circumstances where he spends limited and supervised time with them, I am also of the view that it is not in the children’s best interests for Mr Heath to hold parental responsibility for them.
Having regard to the circumstances in which the Department intervened in these proceedings following an Application in the Children’s Court after the children were removed from their mother’s care and having regard to all of the best interests considerations I am of the view that it is in the best interests of these children for the Secretary to hold parental responsibility for them.
The mother’s final proposal included an order that the Secretary hold sole parental responsibility for a short time. Having regard to the evidence and in particular the opinion of the expert that there is no likelihood of the mother overcoming her difficulties and being able to safely care for the children full time, I am satisfied that it is not in the best interests of these children for the Secretary to hold parental responsibility for only this short period of time.
None of the proposals involve Mr Dylan holding parental responsibility for E and for the reasons given having regard to the best interests considerations, such an order would not be in that child’s best interests. For the same reasons given with respect to the three older children, I am also satisfied that it is in the best interests of E for the Secretary to hold sole parental responsibility for her.
Conclusion
Although the Principles and Objects underlying the Act indicate a clear intention for both of a child’s parents to have a meaningful involvement in their lives and that parents fulfil their duties and meet their responsibilities with respect to the care, welfare and development of their children, these Objects and Principles are always subject to the consideration that the involvement of parents in their children’s lives is to the maximum extent consistent with the best interests of the child. Other Objects clearly envisage that the best interests of children are met by protecting them from harm and ensuring that they receive adequate and proper parenting.
I have regard to the primary considerations and attach particular weight as I am required to the need to protect the children from harm. I also attach significant weight to the capacity of each parent to meet the children’s needs and each parent’s attitude to the responsibility to parenthood as well as considering all the other matters as required. I am satisfied that the orders set out at the forefront of these Reasons are in the best interests of these children. In the main these final orders adopt the proposal of the ICL with some exceptions.
The major area of difference involves the children’s time with their parents including the conditions attached to that time. The ICL’s proposal with respect to the mother’s time and Mr Dylan’s time with the children in relation to both the issue of supervision and frequency is in line with the recommendations of the expert which I accept.
For the reasons given I am satisfied that there is a benefit to the three older children in spending some time with Mr Heath and the orders proposed by the Secretary with respect to his time with the children are in line with the recommendations of the expert. So far as the proposal that Mr Heath’s time be supervised, I am of the view that it is in the best interests of the children for this to be carried out by a person other than a member of his family for at least two years.
The proposal of the Secretary provides a mechanism for the need for supervision to be reconsidered including the issue of an appropriate supervisor after two years. After that date as part of the Secretary’s exercise of parental responsibility supervision may or may not be continued. This is in accordance with the authorities previously referred to concerning the issue of long term or indefinite supervised time.
The ICL’s proposed order restraining Mr Heath from contacting, approaching or communicating with the mother is, in my view, an appropriate order to make. The mother was previously the victim of significant violence perpetrated by Mr Heath and is under these orders to have unsupervised time with the children at times and places which may become known to Mr Heath as the children are placed with his parents.
The order requiring Mr Dylan to comply with any treatment program with respect to his mental health is consented to by him, and the mother consents to a similar order with respect to her.
I certify that the preceding three hundred and sixty-three (363) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 March 2017.
Associate:
Date: 8 March 2017
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