Hasip & Ruwan
[2024] FedCFamC1F 638
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hasip & Ruwan [2024] FedCFamC1F 638
File number: NCC 3405 of 2022 Judgment of: AUSTIN J Date of judgment: 20 September 2024 Catchwords: FAMILY LAW – PARENTING – Application for final parenting orders – Where the children have been living with the mother since the parties’ separation in 2019 – Where the children have spent supervised time with the father since 2023 – Where the Secretary of the NSW Department of Communities and Justice intervened in the proceedings – Where both parents suffer from conditions which compromise their parenting capacity – Where the Secretary proposed the Minister having parental responsibility for the children for a period of 12 months and they live with the father – Where the Independent Children’s Lawyer railed against the children living with either parent – Where the father has remained abstinent from alcohol for an extended period – Where after years of intensive involvement by the child welfare agency with the mother, the agency has no faith in her parenting capacity – Where the physical, developmental, medical and educational needs of the children are likely to be better met if they live with the father – Ordered the father have parental responsibility for decisions about the children’s residence and they live with him – Ordered the Minister have parental responsibility in respect of all other major long-term issues affecting the children for 12 months – Ordered the children spend substantial and significant time with the mother. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 65AA, 91B
Family Law Amendment Act 2023 (Cth)
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 164
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443; [2010] FamCAFC 151
Melbourne Corporation v The Commonwealth (1947) 74 CLR 31
RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47
Division: Division 1 First Instance Number of paragraphs: 106 Date of hearing: 9, 10 & 11 September 2024 Place: Newcastle Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: WM Lloyd & Associates Counsel for the Respondent: Ms McKensey Solicitor for the Respondent: Harpers Legal Counsel for the Intervener: Mr Anderson Solicitor for the Intervener: Secretary, Department of Communities and Justice Counsel for the Independent Children's Lawyer: Mr Mort Solicitor for the Independent Children's Lawyer: Joplin Lawyers ORDERS
NCC 3405 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HASIP
Applicant
AND: MR RUWAN
Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All former orders in respect of the following children are discharged:
(a)X, born in 2016; and
(b)Y, born in 2019.
2.Up to and including 30 September 2025:
(a)The father shall have parental responsibility for decisions about the children’s residence; and
(b)NSW Minister for Families and Communities shall have parental responsibility for the children in respect of all other “major long-term issues” (as defined in s 4(1) of the Family Law Act 1975 (Cth)) which affect them.
3.From 1 October 2025, the father shall have exclusive parental responsibility for the children in respect of all “major long-term issues” affecting them.
4.The children shall live with the father.
5.The parties shall take all reasonable steps to ensure the children spend time with the mother:
(a)From 3.00 pm on Friday 11 October 2024 until 5.00 pm on Saturday 12 October 2024;
(b)each alternate weekend in school terms, from the completion of school on Friday (or 3.00 pm if not a school day) until the commencement of school on the following Monday (or 8.30 am if not a school day), commencing on the first weekend of each new school term;
(c)for the first week of the Spring, Autumn and Winter school holidays, from the completion of school on the last day of term until 5.00 pm on the seventh day thereafter, commencing in the Autumn school holidays in 2025;
(d)for six days, from 5.00 pm on Christmas Day until 5.00 pm on 31 December, in every even numbered year;
(e)for seven days, from 5.00 pm on Christmas Eve until 5.00 pm on 31 December, in every odd numbered year; and
(f)for one week every year, from 5.00 pm on 19 January until 5.00 pm on 26 January.
6.Orders 4 and 5(b) are suspended between 9.00 am and 5.00 pm each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
7.For the purposes of implementing Orders 4, 5 and 6, the father and the mother shall ensure the children’s:
(a)collection from school, whenever their residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;
(b)return to school, whenever their residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise
(c)collection from and return to the McDonalds Restaurant at B Street, Suburb C, NSW.
8.The father and the mother are restrained from:
(a)causing or permitting the infliction of corporal punishment upon the children;
(b)denigrating the other parent in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other parent; and
(c)consuming alcohol during any period in which the children live or spend time with them.
9.Each parent shall forthwith notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
10.The Minister and the father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
11.Each parent shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.
12.The mother shall forthwith leave and is restrained from returning to and entering upon the premises of the City D registry of the Court for the remainder of Friday 20 September 2024.
13.The father shall forthwith cause the children to be delivered to the Director of Child Dispute Services at the City D registry of the Federal Circuit and Family Court of Australia (Division 1) to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
14.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
15.The Independent Children’s Lawyer is discharged upon the latter of the expiration of the applicable appeal period or the determination of any appeal.
16.Costs are reserved for 28 days.
17.Any and all other outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hasip & Ruwan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings brought under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) concern parenting orders needed to govern the care of two children, now aged eight and five years.
The proceedings were contested by the children’s parents, both of whom suffer from cognitive deficits of different kinds, the Secretary of the State child welfare agency (“the Secretary”), and the Independent Children’s Lawyer (“the ICL”).
The seminal dispute concerned the parent with whom the children should primarily live, as they were the only viable residential options, though each was liable to be disadvantageous to the children for one reason or another. The Secretary supported the father’s residence application, which the evidence proved to be preferable. Confoundingly, the ICL steadfastly maintained the children should not live with either parent despite knowing there was no other option. No amount of hand-wringing anguish could change that fact.
The removal of the children from the mother’s residential care will likely devastate her, but the law requires an outcome which most ably promotes the best interests of the children, not those of the mother.
BACKGROUND
After some years of cohabitation, the parents married in 2018 and then finally separated in July 2019.
Their two children were born in 2016 and 2019 and were infants when the parties separated. They remained living with the mother and had sporadic involvement with the father, controlled by the mother. Before the proceedings were commenced by her in November 2022, the children last spent time with the father in 2021.
In February 2023, pursuant to s 91B of the Act, the registrar requested the Secretary to intervene in the proceedings and he obligingly did so in April 2023. In the meantime, the ICL was appointed in March 2023.
In May 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made interim parenting orders and transferred the proceedings to the Federal Circuit and Family Court of Australia (Division 1). The interim orders provided for the children to live with the mother and for them to spend supervised time with the father, though curiously subject to the Secretary’s assessment that they were not thereby exposed to anything more than a “minimal risk” of harm. The Secretary evidently assessed the children were not exposed to any tangible risk of harm because they have since spent supervised time with the father twice per week.
Both parents suffer from conditions which compromise their parenting capacity to some extent. The mother has a global learning disability and impaired literacy, while the father has brain damage from an accident. Both parents receive government support.
Without any apparent forethought by the parties about whether the appointments would be as single or adversarial experts, or as to how the husband’s wife could be compelled to participate, the parents acquiesced to the Secretary’s appointment of:
(a)Mr E as a forensic psychologist to conduct a “parenting capacity assessment” of both parents and the husband’s wife, to which all three submitted; and
(b)Dr F as a clinical neuropsychologist to conduct a “neuropsychological assessment” of the father, to which he submitted.
At the parties’ request, the trial was pushed back to September 2024 to accommodate the completion of those reports. As it transpired, Mr E was not required for cross-examination and Dr F was only briefly cross-examined by the mother and the ICL.
At the time of trial, the mother had not re-partnered and lived alone with the children. The father had re-married and lived with his wife, their infant child, and the husband’s wife’s two children.
PROPOSALS
The Mother
The mother began the trial seeking the orders set out within her Amended Initiating Application filed on 28 June 2024, which proposal was different from the regime she posited to the court child expert in December 2023.[1] At the close of the evidence, she tendered a supplementary minute of orders.[2] Her final position was the composite suite of orders comprising the orders set out within the minute of orders and proposed orders 7, 8, 9, 10, 13 and 14 set out within her Amended Initiating Application. Her application for all other proposed orders was abandoned.
[1] Family Report at [15]–[16] and [91]
[2] Exhibit M5
In effect, her proposal was for the children to live with her, the conferral of sole parental responsibility for the children upon her, and for the children to spend substantial amounts of unsupervised time with the father, amounting to alternate weekends, one-half of school holiday periods, and other special occasions.
She abandoned her former proposals for, first, the children’s time with the father to be conditional upon an initial period of professional supervision and, secondly, his completion of more parenting courses, of which he has already completed plenty.[3] If he has not already derived sufficient parental education from such courses, more education will not likely make any difference. The mother also substantially revised her views about the need for the ultimate confinement of the children’s unsupervised visits with the father to only discrete periods of four hours on both the Saturday and the Sunday of each alternate weekend.
[3] Family Report at [32]; Affidavit of Mr E, Annexure C, p.5; Father’s affidavit at [23]
The Father
The father sought the orders set out within his Amended Response filed on 8 July 2024, which proposal also differed from the regime he posited to the court child expert in December 2023.[4]
[4] Family Report at [17]–[19] and [92]
He proposed the children live with him and his conferral with exclusive parental responsibility for them in relation to all “major long-term issues”, as that term is defined in the Act. He proposed the children spend substantial time with the mother each alternate weekend, for one‑half of school holiday periods, and on other special occasions, which proposal was motivated by the belief he could provide a better residential environment for the children and his recognition that they need to spend enough time with the mother to preserve their loving relationships with her.
The father abandoned his application for proposed orders 14, 16, 21, 24, 25 and 27.
The Secretary
The Secretary began the trial seeking the orders set out within his Amended Response filed on 25 July 2024 but, after the evidence closed, the Secretary tendered a revised minute of orders setting out his final proposal.[5]
[5] Exhibit INT2
The Secretary proposed that the Minister have parental responsibility for the children for the next 12 months, during which time the children would live with the father. Upon expiration of that period, the children would remain living with the father and the Minister would pass to him exclusive parental responsibility for them. Orders were proposed for the children to spend substantial time with the mother, but which would not commence for three weeks to enable the children to initially settle into the father’s residential care, which proposal was made on the recommendation of the court child expert.
The stated purpose of the Minister’s initial conferral with parental responsibility for the children was to ensure there could be no disruption to the provision of support services to the father during the first phase of the children’s residence with him, thereby guarding against his unexpected rejection of help from the child welfare agency. That eventuality is highly unlikely in the face of the father’s evidence about his willingness to embrace any help offered to him by the child welfare agency.
The ICL
The ICL did not adumbrate any provisional view before the trial. When challenged at the start of the trial about such lack of transparency, the ICL foreshadowed her proposal for the Minister to be indefinitely vested with parental responsibility for the children. Upon the closure of the evidence, the ICL tendered a minute of orders setting out her final proposal to that effect.[6]
[6] Exhibit ICL8
The ICL railed against the children living with either parent, asserting neither was competent, but her adoption of that position was irreconcilable with her proposal for the Minister to be conferred with exclusive parental responsibility for the children when she knew the Minister intended exercising such unfettered authority by placing the children in the father’s residential care. Given the parents were the only two residential alternatives, the ICL’s proposal that the children live with neither parent was untenable.
If, as the ICL proposed, parental responsibility for the children was allocated exclusively to the Minister then s 164 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) would apply and the Minister would unilaterally decide with whom the children live (D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443 (“Tran”) at [88], [213]–[215], [216(c)] and [216(e)]). This Court is not empowered by federal legislation to make orders directing a State officeholder (like the Minister) or instrumentality (like the child welfare agency) how duties and functions must be exercised under governing State legislation (Melbourne Corporation v The Commonwealth (1947) 74 CLR 31). The ICL’s proposal for an order directing the Minister to make the residential decision was superfluous.[7]
[7] Exhibit ICL8, Order 3
If parental responsibility is conferred upon the Minister, the Court is only able to make a residence order for the children under s 64B(2) of the Act when residential decisions are carved out of the parental responsibility conferral (Tran at [57]–[77], [85]–[89], [149], [219], [238] and [255]–[264]).
Knowing the Minister would choose to place the children with the father, the ICL proposed they then spend substantial amounts of unsupervised time with the mother.
Otherwise, the ICL expressly abandoned proposed orders 10, 12, 14 and 15.
EVIDENCE
The mother relied upon her affidavit filed on 26 August 2024 and the affidavit of the maternal aunt filed on 23 August 2024.
The father relied upon his affidavit filed on 27 August 2024 and the affidavit of his wife filed on 27 August 2024.
The Secretary relied upon:
(a)the affidavit Ms G (“the caseworker”), filed on 2 September 2024;
(b)the affidavit of a forensic psychologist, Mr E, filed on 26 August 2024; and
(c)the affidavit of the clinical neuropsychologist, Dr F, filed on 22 August 2024.
The ICL relied upon:
(a)the child impact report of the court child expert, dated 25 May 2023; and
(b)the family report of the court child expert, dated 22 December 2023.
Numerous exhibits were tendered, though few were mentioned in final submissions.
LEGAL PRINCIPLES
These proceedings were heard after 6 May 2024, so the amendments to the Act enacted by the Family Law Amendment Act 2023 (Cth) apply.
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC).
Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.
CHILDREN’S BEST INTERESTS
Sections 60CC(2)(a) and 60CC(2A)
The mother approached the trial foreshadowing her intention to advocate for the pre-eminent importance of two issues: first, family violence perpetrated upon her in the past by the father; and secondly, the current safety of the children in his care.
Of course, evidence addressed to those issues must always be carefully evaluated, but it cannot be the case that such evidence is dispositive in isolation from other considerations. In this instance, the allegations which the mother forecast making about the risk posed by the father to the safety of both her and the children were incompatible with the admissions she made to Mr E as recently as 2024 about the children’s safety with the father. Mr E reported the mother told him this, which fact she did not dispute:[8]
…[The mother] reported that the children had not been safe in the past in the care of the father due to his drinking and anger. She reported though that the children were now “safe” with the father and viewed [the father’s wife] as mitigating any risk of harm that the father posed. She expressed concern that the father still “yelled” at the children but disclosed no other concerns regarding his parenting.
(Emphasis added)
[8] Affidavit of Mr E, Annexure C, p.11–12
In the face of such evidence, the mother’s forecast case about the risk of harm posed by the father to the children could not be reasonably maintained. That was evidently the reason why her proposal changed so dramatically during the trial.
At the commencement of the trial, the mother’s counsel said the only risk of harm which would be asserted against the father is that the children would be subject to his “snappiness”, which might lead to them being anxious. However, that is not a feature of the evidence which warrants consideration as a safety issue under s 60CC(2)(a) and will therefore be considered under the rubric of s 60CC(2)(d) of the Act. Nevertheless, the evidence of violent and abusive conduct should be addressed so it cannot be said it was overlooked or improperly disregarded.
The father conceded he used physical discipline on the children, but asserted he no longer does so,[9] about which he was corroborated by both his wife and her child.[10] No contrary evidence was identified in any supervised contact report. Physical discipline of children, even though now properly discouraged as an appropriate disciplinary strategy, is not regarded by the law as an assault or physical abuse of them unless they are thereby injured. The parents were here satisfied the issue could be satisfactorily addressed by them submitting to an injunction restraining them from administering physical discipline to the children.
[9] Family Report at [30] and [61]; Affidavit of Mr E, Annexure C, p.5 and 21
[10] Family Report at [36] and [115]
In respect of family violence, the mother alleged the father’s history of violent conduct directed towards her and other adults, but it is unnecessary to intricately traverse such evidence because several uncontroversial propositions emerge.
First, the mother’s evidence about the family violence committed by the father is confined to the duration of their relationship, which ended in July 2019,[11] which observation is not meant to trivialise the violence which did historically occur, but is recognition of how proceedings such as this are not the medium by which offenders are punished for their past conduct. Proceedings under Pt VII of the Act are determined by orders which will promote the children’s best interests. The future safety of the children and their carers is an important consideration influencing that decision, but findings about historical family violence committed between parents is not dispositive of that prediction.
[11] Mother’s affidavit at [5]–[29]
Here, a family violence order was made against the father for the mother’s protection at or about the time of their separation in July 2019, though it was made with his consent and without admission and so no adverse findings were made against him by the State court.[12] The family violence order expired in 2021 and was neither extended nor renewed.[13] There is no evidence of the father’s breach of the order during its currency. Nor is there any evidence of family violence committed by him since the parties separated in July 2019.
[12] Father’s affidavit at [16]
[13] Family Report at [9], [42]
Secondly, the father conceded he was argumentative with and rude to the mother during their relationship, his anger being accentuated by his then excessive use of alcohol.[14] He concedes his past intemperate behaviour, but not to the extent alleged by the mother. He said in cross‑examination he was formerly an “aggressive person” when drinking alcohol. His evidence of alcohol abstinence for an extended period is corroborated and, additionally, members of the father’s current household positively deny his commission of any family violence within that environment.[15]
[14] Family Report at [61]; Father’s affidavit at [13]–[15], [19] and [26]; Affidavit of Mr E, Annexure C, p.4
[15] Father’s affidavit at [22]; Affidavit of Ms G at [77]–[80]; Family Report at [36], [40] and [116]
Thirdly, the evidence of the children’s exposure to family violence since the parents have separated implicates only the mother, indicating her propensity to form serial romantic relationships with men who are violent, coercive or controlling,[16] which she admitted in cross‑examination. The court child expert said such conduct reflected unfavourably upon the mother’s insight and protective capacity and Mr E said it showed poor judgment on her part.[17] The father relied on such evidence, but not so as to verify any risk of harm posed by her to the children to engage s 60CC(2)(a) – only as an aspect of her inferior parenting capacity to be more properly considered under s 60CC(2)(d) of the Act. Nor did the father raise the mother’s neglect of the children as an issue for consideration under s 60CC(2)(a) – only under s 60CC(2)(d) of the Act.
[16] Family Report at [47]–[51]; Affidavit of Mr E, Annexure C, p.18
[17] Family Report at [141]–[142]; Affidavit of Mr E, Annexure C, p.20
The evidence does not substantiate the need for any order or injunction to preserve the safety of either the children or the mother from any violent or abusive conduct by the father. He is not shown to pose any tangible risk of harm to them on account of family violence or abuse.
Nor does the evidence substantiate the need for any order or injunction to preserve the safety of the children from exposure to family violence or neglect by the mother in her household.
The dispute therefore devolved to the comparative assessment of the parents’ capacity to adequately provide for the children’s physical, emotional, medical and intellectual needs.
Section 60CC(2)(b)
The younger child expressed no views at all which would bear upon the outcome of the proceedings.[18]
[18] Family Report at [109]
The elder child did express some views to the court child expert, but they are given no weight. The elder child told the court child expert he wanted to live with the mother and did not even want to see the father.[19] The court child expert found the child’s verbal rejection of the father informative because, first, the view was inconsistent with the banal way in which it was expressed,[20] and secondly, it was inconsistent with the warm and positive way in which he was observed to interact with the father by both the court child expert and the professional supervisor.[21] Actions are liable to speak louder than words.
[19] Family Report at [104]–[105]
[20] Family Report at [104]
[21] Family Report at [137]
The court child expert speculated the elder child might have been influenced by the mother to express a negative view of the father,[22] about which it is unnecessary to make any finding. It is well known children are prone to be influenced, intentionally or inadvertently, by the adults with whom they live (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[41]; RCB v Forrest & Ors (2012) 247 CLR 304 at [52]). In this instance, the elder child is only eight years of age and is diagnosed with a moderate intellectual disability.[23] He has neither the maturity nor the intellectual sophistication for his expressed views to carry any probative weight.
[22] Family Report at [137]
[23] Family Report at [98]
Section 60CC(2)(c)
The elder child is diagnosed with ADHD and moderate intellectual disability. He is engaged with numerous therapists. He hates school.[24]
[24] Family Report at [96]–[100]
The younger child also appears to be lagging in the achievement of milestones. She too needs the assistance of therapists.[25]
[25] Family Report at [107]–[108]
The evidence suggests both children have developmental, emotional, medical and intellectual needs which both parents are ill-equipped to completely meet. Mr E said both parents require additional support and assistance in promoting the children’s learning and intellectual development if they are to progress academically and achieve in life,[26] which evidence is accepted because it was not controversial.
[26] Affidavit of Mr E, Annexure C, p.20
Leaving aside the support services which have been or could be arranged for the parents by the child welfare agency or pursuant to an NDIS plan, the father has the assistance of his wife, who the Secretary and the ICL both accepted was an empathic and dependable back-stop.[27] The ICL described the father’s wife as “quite remarkable” during final submissions. By comparison, the mother has the assistance of the maternal aunt, who is apparently not quite so well regarded and whose assistance has not helped alleviate the children’s lack of progress while living with the mother. The maternal aunt said in cross-examination she thought the mother’s home was “pretty clean” before she began receiving household help, which offers some insight into why she is not perceived to be as dependable as the father’s wife.
[27] Affidavit of Mr E, Annexure C, p.26–28
Section 60CC(2)(d)
As already mentioned, resolution of this dispute ultimately entails comparison of the parents’ impaired capacity to provide for the children’s needs.
The children have lived with the mother since the parents’ separation and they are primarily attached to her,[28] so changing their residence would undoubtedly be disturbing for them, at least in the short term. However, such an outcome must be seriously contemplated due to the abundant evidence of her incapacity to meet the children’s needs in multiple respects.
[28] Family Report at [138]
Following the parents’ separation in 2019, many reports were made to the State child welfare agency about the risks of harm posed to the children, most being attributed to the mother.[29] The reports included inadequate basic physical care of the children, hazards and squalor in the mother’s home, and her inadequate supervision.
[29] Affidavit of Ms G at [15]
Dealing initially with the state of the mother’s home, police conducted a child welfare check in 2022 and found unhygienic conditions in the home.[30] The child welfare agency commenced the provision of household support services to the mother in 2022, but she initially rejected the help.[31] In 2023, a report commissioned by the child welfare agency raised “significant concerns” about the mother’s capacity to maintain a clean and hygienic home.[32]
[30] Family Report at [73]
[31] Family Report at [74]
[32] Family Report at [76]
Currently, the mother is helped by support workers each week. She is also provided with a cleaner, each week (the evidence on the point was conflictual), and yard maintenance each fortnight.[33] The maternal aunt also attends the mother’s home daily and sometimes helps her with tasks around the house.
[33] Mother’s affidavit at [80]–[81]
The mother professed an improvement of the conditions within her home,[34] but that is evidently only due to the extensive support she receives. The child welfare agency has been continually monitoring the mother and children since late 2021.[35] After intensive involvement with her over the past few years, the child welfare agency has no faith in her parenting capacity. The caseworker gave this evidence in her affidavit:
93.The Secretary has significant concerns in relation to the mother’s capacity to safely care for the children, to meet their needs and to protect them from harm. [The child welfare agency] continue[s] to have concerns in relation to the mother’s capacity to make sustained changes and the high level of support required.
94.The Secretary proposes that the children live with the father and [his wife]. [The father’s wife] is able to provide assistance and support to the father with the care of the children…
[34] Affidavit of Mr E, Annexure C, p.11
[35] Affidavit of Ms G at [18]
Nor does Mr E have any confidence in the mother’s unassisted capacity. He said:[36]
…With the current level of support available to her it appears that she is able to manage adequately, but in the absence of such support I believe the children would be at risk of potential harm due to the previously described deficits in the mother’s parenting capacity…
[36] Affidavit of Mr E, Annexure C, p.22
Nor did the court child expert have any faith in the mother’s unassisted capacity. She said:
139.…The assessed capacity of the mother appears to have not changed, despite a high level of intervention. Despite these assessed and documented concerns, the mother shows very little insight into her capacity issues and maintains she does not need the assistance of ongoing services in her life. It is strongly thought that without regular, consistent and ongoing services, the mother will fall back into a pattern of dysfunction, further exposing these children to ongoing neglect.
…
142.If the children continue to live with the mother, there is no doubt they will continue to be subject to a lack of care, that is an omission of care, due to the mother’s capacity issues. There is also a risk of commission of harm to the children, from other people, due to the mother’s lack of protective capacity.
…
152.…Without the involvement of services, there is an extremely high risk of neglect in the care of the mother, which must be considered with respect to the mother’s time with the children.
The court child expert expressed her opinions in 2023, independently from the evidence given by the caseworker and Mr E. It was not suggested to either the caseworker or Mr E that their subsequently expressed opinions coalesced with the opinions of each other or with the court child expert due to some subconscious desire to avoid expressing conflicting opinions. It is probable their respective opinion evidence was independently formed, in which event their consistent evidence forms a strong evidentiary basis to doubt any real improvement in the mother’s parenting capacity.
The mother believes she is now coping well and professed her belief the continued household help she receives is unnecessary.[37] As recently as late 2023, the mother refused to co-operate with the staff of the external service providers.[38] The mother unwittingly told Mr E her disability had “no effect” on her parenting capacity and past assessment reports were deliberately written to accentuate her disability only to ensure her entitlement to NDIS finding. She told Mr E there was no need for anyone to worry about her care of the children.[39] She said in cross-examination she did not need any help in her home and she would stop receiving the services if she had the option, showing a pronounced lack of sagacity.
[37] Family Report at [77]
[38] Affidavit of Ms G at [38]
[39] Affidavit of Mr E, Annexure C, p.12
Her lack of insight also intrigued the caseworker and the court child expert.[40] The court child expert said in cross-examination the mother showed no insight into her ongoing need for support services and, had she since changed her mind and accepted they were necessary, the court child expert would harbour doubts about the authenticity of her revised sentiments or, if genuine, how enduring they would be. Inferentially, the mother feels as though the help with which she is provided is an unwarranted intrusion, which only serves to illustrate her lack of insight about the deficits in her capacity. The mother’s counsel submitted no such inference should be drawn, but it is the strongest inference available.
[40] Affidavit of Ms G at [35]; Family Report at [77] and [139]
Aside from the physical conditions of the home in which the children live, the mother has been unable to adequately feed them, supervise them, or attend to their medical and scholastic needs.
The mother’s failure to adequately supervise the younger child has been documented by the child welfare agency on several specific occasions,[41] including when she was in the bath and in an unfenced front yard.[42]
[41] Affidavit of Ms G at [30]
[42] Affidavit of Mr E, Annexure C, p.11, 20
The mother admitted to Mr E she fed the children a diet of foods at breakfast and lunch which contain high levels of sugar and fat,[43] though she denied doing so in her affidavit.[44] The mother was not challenged in cross-examination about that contradiction, but her voluntary admission to Mr E is likely to be more reliable than her defensive denial.
[43] Affidavit of Mr E, Annexure C, p.15, 18
[44] Mother’s affidavit at [64]
The elder child was diagnosed with ADHD several years ago. He was supposed to have a paediatric review when he turned seven years of age in 2023 to determine whether he should be medicated for the condition to help his academic performance. The mother failed to arrange the medical appointment and it was only the recent fuss over her failure to do so which resulted in an appointment being belatedly made for him in 2024.[45]
[45] Family Report at [85]; Affidavit of Mr E, Annexure C, p.13, 19
The children’s intellectual needs also seem to have been largely disregarded by the mother. In 2022 and early 2023, the elder child’s school attendance was lamentably poor.[46] So was the younger child’s day-care attendance.[47] The problem was such that, in May 2023, an interim order was made requiring the mother to ensure the children’s attendance at school and day-care unless prevented by illness and then verified by medical certificate. Despite such compulsion, the younger child’s day-care attendance did not seem to measurably improve,[48] though no record was tendered to show either improvement, deterioration, or stasis in the elder child’s school attendance after May 2023. Even so, the mother does not seem to place much value on the children’s school attendance and does not appreciate well enough how their attendance would help with their academic progress and their socialisation.
[46] Exhibits ICL1 and ICL2
[47] Exhibit ICL3
[48] Affidavit of Ms G at [69] and [71]
Aside from the mother’s apparent neglect of the children’s physical, medical and intellectual needs, concerns also exist about her capacity to adequately provide for their emotional needs. The court child expert observed an unusual dynamic between the children and the mother. The elder child appeared to exercise “power and decision making” between the three of them, to which authority the mother and the younger child submitted.[49] The elder child was also “more volatile and agitated” when with the mother than when with the father, which suggests the elder child’s attachment relationship with the mother may be “disorganised”.[50] As the elder child grows and matures, his apparent dominance of the mother’s household is likely to increase. The elder child’s sense of such power is liable to distort the filial relationships of both children with the mother. For the children’s healthy emotional development, they need to know they are protected by and subject to their parents’ direction.
[49] Family Report a [120]
[50] Family Report at [129] and [138]
Finally, the court child expert and the caseworker both speculated how the mother may have been influencing the children against the father and his wife,[51] but that was not an issue about which any party sought a definitive factual finding. Whatever the mother may have said to the children about the father and his wife by way of criticism, both children still have loving relationships with the father and they are both warming to his wife.
[51] Family Report at [137] and [144]; Affidavit of Ms G at [89]
As with the mother, the father’s capacity to care for the children is hampered by several shortcomings, one of which he has already satisfactorily addressed.
Over a long period of time the father drank alcohol excessively. He frankly conceded his level of alcohol consumption was a blight on his life. He determined to cease drinking and he has been abstinent since 2023. Such abstinence is confirmed by longitudinal scientific tests[52] and the evidence of his wife.[53] The father successfully completed a therapeutic treatment plan with a psychologist who reported he had “demonstrated remarkable progress, dedication, and resilience” which boded well for the maintenance of his sobriety.[54]
[52] Affidavit of Ms G at [77]–[80]; Exhibit INT1
[53] Family Report at [40]; Affidavit of Mr E, Annexure C, p.4, 9
[54] Affidavit of Mr E, Annexure C, p.22–23
The father heard the evidence given by Dr F of how his continued abstinence from alcohol left scope for an improvement in his cognitive function over time. With that incentive, the support of his wife, and the knowledge acquired during the hearing of how his relapse could compromise his relationships with the children or even his wife, it is likely the father will remain abstinent.
Ceasing alcohol consumption eliminated one problem for the father, but his irascible nature remains problematic. It was relatively clear that, on a reasonably frequent basis, the father was short with the children during supervised contact visits.[55] He readily admitted the fact when cross-examined about it. Little purpose is now served by trying to discern whether he was more accurately described as being angry, annoyed, irritated, or frustrated on those occasions. He was certainly impatient with the children and they were certainly aware of his intemperance but, based on the observations made by the court child expert, the quality of their relationships with him has not been compromised.
[55] Exhibit ICL5; Exhibit M4; Family Report at [81]; Affidavit of Ms G at [84]
The father acknowledged to Mr E that he needed to improve his parenting performance by being “less confrontational” with the children.[56] He said the same thing in cross-examination. The father’s wife reported to Dr F his mood has improved and he now has better control of his anger.[57] The caseworker also said in cross-examination she thought the father had improved in that regard. The court child expert said in cross-examination the children were not fearful, but rather just wary of the father. Simply stated, the children may have to deal with a gruff, blunt and direct father. That is not an optimal parenting style, but it is not a good enough reason to deny the children’s residence with him when it is uniformly accepted his terse disposition does not preclude them from spending substantial amounts of time with him.
[56] Affidavit of Mr E, Annexure C, p.21
[57] Affidavit of Dr F, Annexure B, p.3
The father admitted he had encountered some difficulty in simultaneously catering to both children’s demands upon him during supervised visits. For that reason, he expressed a desire to have individual supervised visits with the children.[58] The mother contended that, if the father cannot manage the children together during contact visits, it is unlikely he could manage if they live with him. The submission carries some force but is not dispositive for two reasons.
[58] Family Report at [81]; Affidavit of Mr E, Annexure C, p.7
First, the father’s concessions about wanting “one on one” time with the children are more accurately construed as being concessions about maximising the utility of the supervised contact visits and should not be interpreted as admissions he could not have the children live with him. He expressly told Mr E his concession should not be taken to mean he admitted an inability to manage the children together.[59]
[59] Affidavit of Mr E, Annexure C, p.7
Secondly, the mother has also admitted her difficulty in managing both children together. She made that admission to Mr E, saying she took turns responding to the needs of each child.[60] Mr E regarded it as “an issue shared by both parents due to the behavioural challenges the children pose at times” and it was an issue which both parties needed to address.[61]
[60] Affidavit of Mr E, Annexure C, p.13
[61] Affidavit of Mr E, Annexure C, p.21
There was some suggestion the father’s capacity to care for the children on a full-time basis was “untested”,[62] but the proposition is rejected in the face of the evidence about the father’s responsibilities within his household when his wife is working two night shifts each week and when she sleeps to recover. The father’s wife expressed her confidence in the father’s capacity to care for the three children within their household and to attend to domestic chores when she is working and sleeping. She regarded them as running their household as a unified team.[63] By comparison, the mother’s parenting capacity has been thoroughly tested and found wanting.
[62] Family Report at [149]; Affidavit of Mr E, Annexure C, p.23
[63] Affidavit of Mr E, Annexure C, p.9, 10
It is uncontroversial that, if the children live with the father, his household will be under stress by then caring for five children. However, the recommendation for the children to live with the father instead of the mother was made by the Secretary and the court child expert in full knowledge of that fact.
The court child expert said in cross-examination her recommendation for the residential change was a “considered decision” and not a leap of faith. She acknowledged the transition would likely be difficult, but believed the children’s prospects would be better than if they remain living with the mother, which opinion evidence is accepted. The caseworker gave oral evidence of the supplementary services it is intended will be provided by the child welfare agency to the father and his wife if the children live with him. They have gratefully accepted their referral to those support services.
The mother’s counsel criticised the father’s insight, but the criticism was unwarranted. He told Mr E he had given thought to the children’s reversal of residence from the perspective of both himself and of the children.[64] In cross-examination he candidly admitted the reversal of their residence would add to the burden of his household, place him and his wife under extra stress, and would initially disrupt the children, particularly the younger child. He accepted the change would indeed require a “fair adjustment” by the children. He said he had considered the difficulty of the transition and discussed it with his wife. They were jointly committed to his proposal. He certainly was not blithely venturing into an arrangement not fully considered. The father’s wife gave evidence in cross-examination to the same effect.
[64] Affidavit of Mr E, Annexure C, p.6
On the whole, the father’s parenting capacity was established to be superior to the mother’s capacity, though perhaps not by much overall. The father’s support from his wife was a more valuable factor than the mother’s support by the maternal aunt.
Section 60CC(2)(e)
It was uncontroversial the children would benefit from maintaining their loving relationships with both parents.[65] All parties proposed that the children spend substantial amounts of time with the non-residential parent.
[65] Family Report at [123] and [138]
The elder child seemingly has a warm relationship with the father’s wife and her children.[66] The younger child’s initial wariness of the father’s wife did not take long to dissolve in the observation session conducted by the court child expert.[67]
[66] Family Report at [130]
[67] Family Report at [130] and [138]
The children also have close relationships with the maternal aunt and her children,[68] which they should be able to foster irrespective of the parent with whom they live.
[68] Family Report at [27]
Sections 60CC(1)(b) and 60CC(3)
The mother and children identify as Aboriginal, though the mother seemingly does little to inculcate the children with indigenous traditions.[69] The father enthusiastically supports the children’s association with indigenous culture.[70]
[69] Family Report at [10]; Affidavit of Mr E, Annexure C, p.11
[70] Family Report at [33]
Section 60CC(2)(f)
No other consideration was addressed by the mother, the father, the Secretary or the ICL.
CONCLUSION
In final submissions, the mother’s counsel submitted the balance tipped in favour of her residence application because: she was the children’s primary attachment figure; her history of their primary care; and the emotional wrench the children would suffer by being moved to live with the father. They are indeed considerations which favour the mother’s proposal, but they do not clinch the result.
The children should live with the father because their physical, developmental, medical and educational needs are likely to be better met if they live with the father (and his wife) than if they remain living with the mother. The mother’s primary care of the children to date has proven unsatisfactory and, even now, is only barely satisfactory with the benefit of intensive support services. With a similar level of support services provided by the child welfare agency, it is likely the children will do better with the father. That conclusion aligns with the opinion evidence of the court child expert. The ICL described the court child expert as a “very impressive witness”, yet still curiously rejected her recommendation and advocated against the children’s residence with either parent.
The court child expert was indeed an impressive witness and her opinion evidence is accepted, other than in one minor respect. She suggested parental responsibility for the children should be allocated to the Minister indefinitely, but that suggestion is rejected. The Secretary did not seek the Minister’s conferral with parental responsibility for any more than 12 months and only then for the discrete purpose of ensuring the father accepts the support services he has already agreed to accept from the child welfare agency.
Since an order is made for the children to live with the father, parental responsibility for the children is allocated to the Minister for 12 months, but excluding any responsibility for decisions about the children’s residence, which aspect of responsibility the father will retain as the residential parent. The Secretary agreed that arrangement would achieve the same objective as his formal application. Upon expiration of 12 months, the father will assume exclusive parental responsibility for the children in all respects. The parties agreed the residential parent should have exclusive parental responsibility for the children.
That being so, there was general concurrence the children should spend substantial amounts of unsupervised time with the mother, comprising alternate weekends in school terms, parts of school holidays and other special occasions. The parties admitted there was no magic in the detail of their respective proposals, as no evidence was led and no submission was made about the intricate details of such proposals. The orders generally align with the parties’ proposals, but seek to minimise the number of changeovers.
As the court child expert recommended, there will be an embargo upon any interaction between the children and the mother for a period of three weeks following the residential transition. Given the date upon which this judgment is pronounced and the imminent Spring school holidays, the children’s commencement of alternate weekend visits with the mother on the first weekend of the new school term will be four weeks hence. To ensure the hiatus of only three weeks is observed, the children’s visits with the mother will begin with a single overnight stay at the end of the Spring school holidays.
The ICL sought an order in the form of a mandatory injunction compelling the parents to administer prescribed medication to the children.[71] The proposal is rejected. Neither parent was challenged with the proposition that the injunction was needed. If the parents are so unreliable that they might forget to medicate the children and need such elaborate instruction, it is highly likely they would forget to heed the injunction, in which event it is pointless.
[71] Exhibit ICL8, Order 9
The ICL also sought an injunction compelling the parents to exchange the children’s school uniforms.[72] The same comments apply. The issue was not raised in either evidence or submissions and the proposal is demeaning to the parents. The order is not made.
[72] Exhibit ICL8, Order 11
The ICL sought an order restraining the parents from allowing the elder child to bathe with other children.[73] The proposal arises out of the elder child’s sexualised behaviour with other children, but that problem was supposedly satisfactorily addressed by his provision with counselling. The parents do not need such invasive instructions from the Court about how to parent their children. The order is not made.
[73] Exhibit ICL8, Order 13(a)
The ICL sought an injunction restraining the parents from exposing the children to any form of family violence as defined in s 4AB of the Act.[74] The order is not made as it would be a recipe for further litigation and angst. Applied literally, the mother would be in breach of the injunction if she failed to prevent the children from seeing her being assaulted by another violent partner, which surely could not be an intended consequence of the injunction. Without intending to be facile, the parents should not be expected to carry an annotated copy of the Act with them constantly checking whether the behaviour to which the children are exposed is capable of falling within the extremely broad definition of family violence. The parents hardly need to be told the children’s exposure to violent conduct is liable to be harmful. Conversely, if they do need to be told, an injunction of this sort will probably neither be educative nor effective.
[74] Exhibit ICL8, Order 13(f)
All other orders are generally reflective of those commonly sought by the parties, the ICL and the Secretary.
The court child expert advised the children should have the orders explained to them by either her or a colleague, so an order to that effect is made. The mother is required to quit the Court registry upon the pronouncement of judgment so the children can have the orders explained to them and they are then able to leave the Court premises with the father in peace.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 20 September 2024
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