HICKSON & GREEN

[2019] FamCA 678

FAMILY COURT OF AUSTRALIA

HICKSON & GREEN [2019] FamCA 678

FAMILY LAW – CHILDREN – Parenting – Best interests – With whom the children live – With whom the children spend time and communicate with – Where there are four subject children aged between 13 and nine years – Where one child is not a biological child of the father – Where the most recent interim orders provided for the four children to live with the father and spend supervised time with the mother at a contact centre – Where the applicant father sought orders for the children to remain living with him and for the mother’s time to be supervised or unsupervised subject to her meeting strict conditions – Where the respondent mother is seeking a reversal of residence and for the father’s time with the children to be dependent on a finding of risk – Where the Independent Children’s Lawyer submitted supervised time is not a long term solution – Where the children are not at risk of harm in the care of the father – Where there is an unacceptable risk of emotional harm and possible physical harm to the children in the mother’s household – Where the mother has a history of substance use and mental health issues – Where the children have a meaningful relationship with both parents – Where the mother is unable to protect the children from her feelings – Where the mother attempted to undermine the relationship between the father and the non-biological child – Where the Court appointed single expert identified significant restrictions on the mother’s ability to parent the children – Where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where a change in residence is considered as destructive of stability for the children – Ordered the children remain living with the father – Ordered the mother spend time with the child four occasions per year, supervised at a contact centre until each child attains 14 years of age – Ordered no direct communication between the mother and the children – Ordered various restraints and injunctions, including restraining the mother from bringing the children into contact with her current partner.

FAMILY LAW – CHILDREN – Parental responsibility – Where the father seeks sole parental responsibility – Where the mother sought an order for equal shared parental responsibility – Where equal shared parental responsibility is not in the best interests of the children – Where allegations of family violence unsubstantiated – Where high level of conflict during the parties’ relationship, fuelled by drugs and alcohol – Where the children will be living with the father and spending little time with the mother – Ordered the father have sole parental responsibility for the children, with the provision of information to the mother of decisions taken by the father.

Family Law Act 1975 (Cth) ss 64B, 60CC
Family Law Rules 2004 (Cth) Ch. 15, Div. 15.5.2

Betros & Betros [2017] FamCAFC 90
Hickson & Green [2016] FamCA 1032
Hickson & Green [2017] FamCA 1124

APPLICANT: Mr Hickson

RESPONDENT: Ms Green

INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

FILE NUMBER: NCC 2356 of 2015

DATE DELIVERED: 20 September 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 17 - 20 September 2018; and 22 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mueller

SOLICITOR FOR THE APPLICANT: Priest Legal

COUNSEL FOR THE RESPONDENT: Mr Davies

SOLICITOR FOR THE RESPONDENT: Georgia Flynn Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bateman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

Orders

1. That all prior parenting orders made in this Court and in the Federal Circuit Court of Australia in relation to C (born … 2006), B (born … 2008), E (born … 2010) and D (born … 2010) (together known as “the children”), are discharged.

2. That the father have sole parental responsibility for the children with the father to keep the mother advised in writing of all decisions made by him about the long term care and welfare of the children, including but not limited to change of enrolment at school, progression to high school, specialist medical treatment and religious instruction if any.

3. The children live with the father.

4. That the mother have no direct communication with the children.

5. The mother is at liberty to send cards, letters and gifts to any of the children provided that the father may inspect such cards, letters or gifts prior to the children receiving them so as to determine whether it is in the child’s best interests to receive them.

6. The children spend time with the mother supervised at a contact centre on four occasions per year, failing agreement otherwise on the first Sunday of the month in September, December, March and June, with such time to continue until each child reaches the age of 14 years and thereafter at the discretion of the father in consultation with each child.

7. In the event that the mother does not attend for a period of contact without prior written notice, time shall thereafter cease and be at the discretion of the father.

8. Should any of the children leave the father’s care without his prior consent or knowledge and attempt to go into the mother’s care, other than in accordance with these orders, the mother must forthwith ensure:

   (a)That she or someone on her behalf informs the father of the child or children coming into her care; and

   (b)       Forthwith, cause the return of the child or children to the father’s care.

9. Each parent is restrained and an injunction is granted restraining each of them from denigrating the other parent or members of the other parent’s household in the presence or hearing of any of the children or allowing any of the children to remain in the presence or hearing of any third person who is denigrating the other parent or any member of the other parent’s household.

10. The mother is restrained and an injunction is granted against the mother from discussing these proceedings or any consequent orders with any of the children or causing any third party to do so, without the prior written consent of the father.

11. The mother is restrained and an injunction is granted against the mother from attending any school, sporting event or cultural event in which any of the children participates without the prior written consent of the father.

12. The mother is restrained and an injunction is granted against the mother from allowing any of the children from coming into contact with Mr M.

13. The parties shall keep each other informed of their residential addresses, telephone numbers and email addresses, and shall notify each other within 24 hours of making any changes to them.

14. The father has leave to provide a copy of these orders to the principal of each of the schools which the children attend.

15. The mother has leave to provide to Dr J (or any psychiatrist treating the mother) the following:

    (a)       Report of Dr K dated 13 October 2017;

    (b)       These orders and reasons for judgment.

16. The Registrar of this Court shall provide a copy of the report of Dr K dated 13 October 2017 and a copy of these orders and reasons for judgment to the Secretary of Department of Communities and Justice.

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 Green & Hickson 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 NEWCASTLE

FILE NUMBER: NCC 2356 of 2015

Mr Hickson

Applicant

And

Ms Green

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders by the parents of four children, three boys and a girl aged 12, 10 and eight (twins) respectively at the date of trial. They are now 13, 11 and nine years.

2. The parties began their relationship in late 2003 and began living together for the first time early in 2004. In October of that year they separated. It is uncontroversial that both parties were drug dependent at that time.

3. The relationship continued to some extent whilst they were living apart. The first child of the relationship, C, was born in 2006.

4. Early in 2008, the parties reconciled. The mother was at that time pregnant as a result of a fleeting relationship with another man. The father accepted that situation and was content to treat the child as his own. The child, B, was born in 2008 two months after the parties reconciled.

5. In January 2009, the parties began living together with the two children.

6. In about November 2009, the father resigned from work. The parties and children moved from Newcastle to H Town.

7. In 2010, the parties’ twins were born.

8. In 2013 the father took the decision, to which he has adhered, to cease using alcohol and marijuana.

9. From December 2014 the relationship between the parties began to fail. The mother was often away from the home for days at a time.

10. In mid-2015 the parties separated on a final basis. The father moved with the four children to the home of his parents.

11. The children moved to and fro between their hostile parents

Application by Father to the Federal Circuit Court

1. On 1 September 2015 the father filed an Initiating Application in the Federal Circuit Court of Australia (“FCC”). Urgently he wanted the children returned to his care. He proposed that the children live with him and spend time with the mother.

2. Various interim orders were thereafter made in the FCC.

3. All the children presently live with the father. They have done so, with the exception of B who lived with the mother for a short period, since mid-2016 as a result of interim orders made by consent in the FCC,[1] and subsequently confirmed in this Court.[2]

   [1] FCC order dated 23/06/2016

   [2] FCoA order dated 25/11/2016

4. The children spend time with the mother supervised in a contact centre. There is no other communication.

The Parties

The Applicant Father

1. The father is now aged 51 years. He lives in H Town on the mid-North Coast of New South Wales (“NSW”). His household consists of himself and the four children.

2. In mid-2018 he separated from his partner of three years, Ms L.

3. At the date of trial, the father had formed a new relationship with a neighbour Ms N. That relationship developed through the friendship between Ms N’s daughter and the parties’ daughter, D.

4. The father receives a Newstart allowance and Commonwealth support for the children. He has in the past both studied and volunteered for the Salvation Army.

5. The father has been a heavy user of drugs such as marijuana and alcohol in the past. He has abstained from both since 2013.

The Respondent Mother

1. The mother is now aged 45 years. She lives in O Town on the mid-North Coast of NSW. Her home is about 18 kilometres, or a 20 minute drive, south of the father’s home.

2. Her household consist of herself, her partner of four years Mr M, who is also her paid carer, and Mr M’s daughter P, now aged 14 years.

3. The mother had for the 12 to 18 months prior to trial received a disability support pension. The relevant disability is said to be a condition of rare benign tumours, in her body.

4. The mother was injured at work in 2002. Since then she has been prescribed with a range of medications which she has taken: Panadol Osteo and Naprosyn for pain in her hip and back; Quetiapine for pain and to induce sleep; Lyrica for nerve pain; Nexium for reflux; Gastrostop for bladder and bowel incontinence; and Fluoxetine and Seroquel in relation to sleep apnoea.

5. The mother has in addition used non-prescription drugs such as marijuana and alcohol.

6. The mother has been diagnosed with Obsessive Compulsive Disorder (“OCD”). She has been prescribed medication, Lovan, for that condition.

7. The mother previously consulted a psychiatrist, Dr J, for OCD but he ceased servicing the H Town area in December 2017. She “spasmodically” consults a psychologist, Dr Q, for this condition.

The trial

1. The trial was conducted over five days in September 2018 and February 2019.

2. The evidence was concluded in the four days allocated. The proceedings were then stood over for submissions. All parties were legally represented.

The Issues

1. The issues can be categorised in this way.

Is there an unacceptable risk of harm of any kind to the children if they:

(a)      Remain living with the father?

1. The children are not at risk of any harm with the father. He supports their relationship with the mother. He is protective of the children and has worked very hard to keep them together as a group of siblings.

(b)    Move to live with the mother?

1. There is an unacceptable risk of emotional harm to the children if they moved to live with the mother. They would lose their relationship with the father which would likely be represented by the mother as a choice for them to make.

2. There is some risk of physical harm to the children from the mother’s partner. The mother depends on him as her carer and has deferred to his decisions about management and discipline of the children. Her partner may have smacked the children and probably kicked B.

3. The Single expert concluded that the mother has a personality disorder:[3]

   I believe that there is strong evidence of these dependency issues and due to the trauma and unresolved issues of her early life (incestuous sexual assault) and persistence with substance abuse that there is an underlying dependent personality disorder.

   [3] Single Expert Report dated 13/10/2017, page 39, line 1508-1515

4. The relevant consequence of the disorder identified by the single expert is that the mother “can’t prioritise her children’s needs over her own needs.[4]

If the children remain living with the father what time and communication should they have with the mother, if any?

[4] Single Expert Report dated 13/10/2017, page 40, line 1546-1547

1. The children greatly enjoy seeing the mother. All of them want more time with her.

2. Unsupervised time puts the children at an unacceptable risk of emotional harm.

3. Continuing with frequent visits, supervised to mitigate that harm, creates an unhelpful illusion that more time in a  more  natural circumstance is planned.

4. In the past the mother used telephone calls to undermine the children’s situation telling them for instance that their father did not love them.

5. The mother also did not discourage B from running away from the father because her need to have the child with her took priority.

6. An order for supervised time on four occasions per year will enable the children to keep the mother in their mind. Such an arrangement is unsuitable for older teenagers so will apply until each child turns 14 years.  When the children turn 18, as young adults they can make their own decisions.

How should parental responsibility be allocated?

1. In circumstances where the children are living with the father and having little time with the mother parental responsibility should be exercised solely by the father, with provision to the mother of information about decisions taken.

The Applications

The Father

1. By his Amended Initiating Application, the father proposed that he have sole parental responsibility for the children and that they continue to live with him.

2. The father put forward an expanding regime of time for the children to spend with the mother, subject to certain significant conditions for the mother to comply with. The proposed conditions were no doubt drawn from the recommendations of the single expert.[5]

   [5] Single Expert Report dated 13/10/2017, pages 47-49, recommendations 1-13

3. The conditions are summarised as follows:

   a)Regular Carbohydrate-Deficient Transferrin (“CDT”) testing;

   b)Regular chain of custody urinalysis (clean) results;

   c)Completion by the mother of Dialectical Behaviour Therapy and Acceptance and Commitment Therapy;

   d)Ongoing therapy with a clinical psychologist with the mother’s general practitioner (“GP”) reporting bi-monthly; and

   e)That the children not be left unsupervised with the mother’s partner, Mr M.

   In the event of failure by the mother to comply with any of the above, the children would continue to spend supervised time with the mother at a contact centre, namely G Group.

4. There was also proposed a restraint applicable to both parents that they not use alcohol or prohibited substances in the presence of the children or for 12 hours before any period of care.

5. There were also orders regarding specific issues.

Analysis

1. The father maintained his position to conclusion of the trial.

2. Submissions on behalf of the father accurately reflected what the father was trying to achieve. The proposed orders, it was said, tended to balance risk factors with methods for effecting change by the mother.

3. To his continuing credit the father has resolutely acknowledged the need to protect the “strong bond between mother and children”.

4. Through his counsel, the father was able to identify why the mother needed to comply with the conditions he proposed. For instance, that the OCD condition with which the mother has been diagnosed was a symptom of deeper problems, aggravated by alcohol and drugs.

5. The father had “woken up to himself” on the subject of drugs and alcohol, and wanted the mother to do the same.

6. His aim was to get the children through adolescence safely, and as a group of siblings.

7. Despite his good intentions, in my view, the proposal of the father is fraught with difficulty.

8. The children could be subjected to stop-start time with the mother if she attempted compliance with all that was being suggested but found that she could not do all of it, or at least not everything all of the time.

9. The likelihood of arguments about the consequences, for example, of one positive drug test after months of clean tests is very high.

10. Further, for a Court to order a person to undergo therapy is to run the risk that the person will comply by attendance but not engage, and they will simply do and say what it takes to fulfil the obligation of attendance.

11. Even assuming that the person, although compelled, was genuinely willing to engage, the therapy ordered could be completely unsuccessful.

12. The question to be decided is what is in the best interests of the children based on the evidence before the Court, not on what could be the case if other events occurred.

13. The facts are that the mother, much as she loves the children, presently acts to meet her own needs rather than those of the children.

14. She told B that the father was not his “real father” in the hope that he would come back to her, and on an interim basis that did happen. The child unravelled emotionally. Likewise she told B that he “shouldn’t be on medication”, this was without any prior consultation between her and the father.

15. The mother did not take up the opportunity to provide the report of the single expert to her psychiatrist.

16. The mother is dependent on her partner, Mr M. The single expert was of the view that the mother has developed a Dependent Personality Disorder from unresolved issues in her childhood.[6] Therefore, it is much more likely that the mother would be guided by her partner in relation to the children rather than Court orders.

    [6] Single Expert Report dated 13/10/2017, pages 2 and 44

The Mother   

1. By her Further Amended Response, the mother proposed that the parties have equal shared parental responsibility for the children.

2. She otherwise proposed orders in the alternative.

3. If the Court found that the father posed a risk of harm to the children then the children should move to live with her and spend supervised time with the father at a contact centre for two hours per fortnight.

4. The mother also put forward conditions for the father. If he participated in an educational program for parents, and completed an anger management program then the children could progress to spending every second weekend with him.

1. In the event that the Court did not find that the father was a risk to the children then they should remain living with him and spend alternate weekends, one extra night per fortnight and, half of each school holiday period and other special times with her.

Analysis

1. The same considerations apply to the proposal of the mother for the father to undertake instructive programs. Even assuming attendance with interest by him, there can be no certainty that change would follow.

2. Final submissions on behalf of the mother focused on the positive changes achieved by the mother, her evidence of a reduction in drinking and her low level of drug use. There was also emphasis on the children’s reaction to seeing her at the contact centre, where the “[c]hildren rush in to hug the mother and are glad to see her”.

3. It must be the case that the father be given credit for the loving and enthusiastic response of the children although I conclude that the mother does not see things that way. The mother has a very low view of the father and blames him for taking and keeping the children from her.

4. She has undoubtedly undermined the relationship between the children and the father but particularly the relationship between him and B, who repeatedly ran away from the father to the gratification of the mother.

5. The single expert assessed the father to be the “the healthier parent”.

6. The mother through her counsel submitted that she now consented to provision of the single expert report and other documents to her psychiatrist and psychologist. She also submitted that there was plenty of evidence that the mother “is engaging with experts”.

7. What would have assisted the Court was expert evidence put forward by the mother, from those treating practitioners, on the present state of health of the mother and her level of desire to change her dependent behaviour and “self before child responses”. The report from Dr J to the mother’s GP in 2016 was written when the mother was clearly very unwell, self-described as “just barely managing to cope”.[7]

   [7] Exhibit 8

History of Relevant Events

1. Soon after the parents separated in mid-2015 there was an unsuccessful Legal Aid mediation. The children were then living with the father and their paternal grandparents.

2. Three weeks later the mother attempted to remove the children from day care and school without prior notice to the father. The mother enrolled the two elder children in a school near her and tried to remove them from the school they attended at that point.

3. On 1 September 2015, the father filed his Initiating Application in the FCC.

4. On 2 October 2015, the mother took D from the paternal grandmother at a shopping centre.

5. The father filed a Recovery Application on 12 October 2015.

6. With her Response, the mother filed a Notice of Risk alleging severe physical assault of her by the father and mental, emotional and physical abuse of the children by the father.

7. On 30 November 2015, interim orders were made by consent for the children to live with the mother and have supervised time with the father.

8. On 5 February 2016, the parties and the children attended a Child Inclusive Conference which revealed that the mother had told all the children that the father was not B’s “real father”.

9. On 16 February 2016, further interim orders were made by consent removing the requirement for supervision of the father.

10. On 21 June 2016, a Family Report was released outlining the emotional harm to the children resulting from the conduct of the mother.

11. On 23 June 2016, more interim orders were made by consent providing for the children to return to living with the father (and the paternal grandparents) and for the mother to have supervised time with the children. The father was to organise a referral to a psychologist. The mother was ordered to obtain a Mental Health Plan and file it in the Court.

12. B then ran away to the mother’s home on 12 September 2016, who retained him despite the consent orders.

13. On 20 September 2016, the matter was back in Court and yet more interim orders, by consent, were made for B to remain living with the mother.

Transfer from the FCC to this Court

1. On 9 November 2016 there was another Child Inclusive Conference. On that same day the matter was transferred urgently from the FCC to this Court with the following notations:[8]

   A.This is a complex matter. The family consultant suggests the Court consider transfer the matter to the Family Court. The case is one involving 4 children C born … 2006, B born … 2008, E born … 2010 and D born … 2010. It appears agreed in the proceedings that B (sic) began making homicidal threats to slit the throats of those in the paternal household approximately some 8 weeks ago. Since that time the child B (sic) has lived with the mother. The children C, E and D have lived with the father. C, E and D spend time with the mother and B (sic) supervised at G Group H Town. The family consultant recommends the appointment of a chapeter (sic) 15 expert.

   B.The court asks that the registrar of the Family Court of Australia deal with the matter and allocate it another return date before the Family Court as soon as is possible.

   [8] Court Order dated 9/11/2016, Notations A and B

Urgent Hearing - 25 November 2016

1. On 25 November 2016, there was an urgent hearing in this Court. The Family Consultant who had dealt with the family gave evidence. Her clear recommendation was that the child, B, return to the father and be referred to Child and Adolescent Mental Health Services (“CAMHS”) or a private psychiatrist.

2. Orders were made at the hearing that B forthwith return to live with his father and brothers and sister. The orders were given with ex tempore reasons.[9] A date was appointed for an interim hearing in February 2017.

   [9]Hickson & Green [2016] FamCA 1032

3. On 30 December 2016, B again ran away. The father found him three to four kilometres away from the father’s residence. The father struggled to get the child into the car. Passing motorists called police.

4. On 13 January 2017, B ran away on a third occasion. He refused to get in the car with his father. The father called police for help.

5. Two days later B became completely emotionally unreachable and began damaging property. The father called police, his partner at the time and the paternal grandmother.

Interim Hearing - 10 February 2017

1. On 10 February 2017, the Court made further interim orders for the children to spend time with the mother at a contact centre supervised for two hours each alternate weekend, and have telephone contact every Tuesday at 6.00 pm.

2. On 10 April 2017 a child, adult and family psychiatrist, Dr K, was appointed as a single expert.

Release of the Single Expert Report

1. On 13 October 2017, the report of the single expert was released. The overall recommendation was that the children remain living with the father. There was also a recommendation, as follows:[10]

   …that there be no contact for six months directly between the children and the mother as she is still actively undermining the children and [B] is at great risk of psychological harm.

   [10] Single Expert Report dated 13/10/2017, page 47, par 2

2. On 7 November 2017, the father filed an application seeking to suspend contact between the mother and the children.

Hearing of Application to suspend time - 13 December 2017

1. On 13 December 2017, the application to suspend time was heard. Trial dates were allocated in June 2018.

2. The outcome of the application was for suspension of telephone contact between the mother and the children but a continuation of supervised time at the contact centre.

3. There was evidence, and no denial, of the mother and/or a third person (a young child) telling the children, they would be “coming home”.[11] The father alleged that he had heard the mother saying to the children that only she and her partner loved them and that the father and his partner did not.

   [11]Hickson & Green [2017] FamCA 1124, par 33

4. Reports from the contact centre indicated that the children were enjoying seeing their mother and that the experience was generally positive.

5. It was a balance of harm, undermining by the mother of the children’s love for the father, against the need of the children to express and receive love and affection from her.

6. In June 2018, by consent, the matter was relisted for trial in September 2018 and the mother was granted leave to file an affidavit by a proposed supervisor, the maternal aunt.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father - Mr Hickson

   (a)Amended Initiating Application of the father filed 18/01/2018;

   (b)Affidavit of the father filed 18/04/2018;

   (c)Affidavit of the father filed 17/09/2018;

   (d)Affidavit of the paternal grandmother, Ms R Hickson, sworn 15/09/2018;

   The Respondent Mother - Ms Green

   (e)Further Amended Response of the mother filed 29/08/2018;

   (f)Affidavit of the mother filed 08/05/2018;

   (g)Affidavit of the mother’s partner, Mr M, filed 08/05/2018;

   (h)Affidavit of the maternal aunt, Ms S, filed 26/06/2018;

   Reports

   (i)Report of single expert, Dr K dated 13/10/2017;

   (j)Family Report dated 21/06/2016;

   (k)Child Inclusive Memorandum dated 5/02/2016;

   (l)Child Inclusive Memorandum dated 9/11/2016.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The father has, and will continue to have, the full time care of the children.

2. The mother is incapable of co-operating with the father given her resentment about the children living with him.

3. It is not in the best interests of the children for the presumption of equal shared responsibility to apply.

4. Accepting the evidence of the single expert, the mother would make decisions based on her own needs.

5. The father should have sole parental responsibility for decision making long term and day to day.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children love their mother. She loves them. She provided most of their physical care until separation. The observation of the children for the Single Expert Report was that they appeared “excited and happy to see their mother”.[12] They cuddled her and spoke enthusiastically about games they enjoyed playing with her.

   [12] Single Expert Report dated 13/10/2017, page 26, line 989

2. The children love their father. He loves them. The children showed evident enjoyment of time with the father although in a calmer way, no doubt because they lived with him and saw him every day.[13]

   [13] Single Expert Report dated 13/10/2017, page 29

3. Most unfortunately for the children the best way for the relationship between themselves and both parents to continue as meaningful is to be almost entirely kept away from the mother.

4. The Court is confident that the father will not undermine or diminish the love the children feel for the mother.

5. The Court is equally confident that the mother would continue to undermine the love the children feel for the father, especially B, but only because he is the most vulnerable to the mother’s criticism and blaming of the father.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. Throughout her oral evidence the mother maintained a position that the father was abusive to her and the children.

2. The mother asserted in her affidavit that under the heading ‘the Applicant’s Violence’, she raised numerous complaints about the father, some trivial, and some very serious indeed.

3. After an argument early in 2004, the father moved the mother’s belongings out of the house and left them on the driveway. The maternal grandmother and maternal step-grandfather (“the maternal grandparents”) came to collect her and take her to their home to live. The father recalled the maternal grandparents coming to collect the mother. He cited the erratic behaviour of the mother when under the influence of drugs and alcohol as the reason for the split.

4. The mother alleges that in around June 2004 the father came to her caravan in the grounds of the home of the maternal grandparents, he threw her across the caravan, hitting her head on the television and “splitting my head open.” The maternal grandmother, now deceased, who is alleged to have witnessed this event, told the father to leave and then had taken the mother to hospital where she had four stitches in her head. There was apparently no report to police and no evidence from the nominated hospital.

5. The father denies that he assaulted the mother.

6. There is insufficient evidence to support a finding that he did.

7. The mother alleged that the father lost his job as a resulting of threatening to “punch his boss in the head”. The mother does not say she was present.  The father did not recall the incident.

8. The father observed the parties as both being angry and stressed out during their relationship. It must have been so.

9. Both parties used marijuana and alcohol to relieve stress, with angry arguments as a consequence.

10. The children were undoubtedly exposed to angry aggressive behaviour and the inattentiveness at times of drug and alcohol affected parents.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. In June 2016 the four children were interviewed by a family consultant for the purpose of preparing a Family Report.

2. At that time they had been living with their mother, her partner and his daughter for about six months. Prior to that, they had lived with their father and the paternal grandparents for six months, following separation of the parties.

3. C, E and D all spoke positively about experiences in the father’s care, reported missing him and stated that the time they spent with him was far too little.[14]

   [14] Family Report dated 21/06/2016, par 67

4. B was entirely negative and rejecting of his father who was “not his real Dad”.[15] He complained of being smacked by the father and singled out for punishment. C stated firmly in response that the father did not smack any of them and the younger children agreed. It seems B was unable to be anything but critical of the father.

   [15] Family Report dated 21/06/2016, par 68

5. All children reported that the mother’s partner Mr M had said “bad stuff” about their father and told them if they said anything bad about himself to the family consultant, Department of Community Services as it was then known (“DoCS”) would take P (Mr M’s daughter) away. They appeared distressed by that possibility.

6. It seems highly unlikely that the children could fabricate such a story. If that was said it was manipulative and unfair to the children. Further, the mother was not protective of the children if she knew about it.

7. Nevertheless, despite a threat if there was one, the children reported that the mother’s partner swore and yelled at them and sometimes kicked them if they broke the rules.[16] It is possible that loyalty conflict affected the level of their complaint.

   [16] Family Report dated 21/06/2016, par 73

8. Twelve months later in June 2017 the children were interviewed by the single expert.

9. By that time the children had been living with their father for 12 months after a change away from living with the mother.

10. The conclusion of the single expert having listened to the children and spoken to B about his feelings in the presence of the father, his then partner and the other children was as follows:[17]

    The four children I believe are closely bonded with him [the father] and with each other. I believe there is a solid relationship. The twins are still young enough to be innocent and less aware of some of the dangerous dynamics. The relationship with C is a strong positive one, although C is becoming angry and frustrated with his situation.

    B’s relationship with the father I believe is a positive strong one but has come under a great deal of pressure. B is very confused about his paternity and doesn’t know how to integrate this information into his feelings of self-worth and he now appears to have been persuaded that he’s not wanted by his siblings or his father. There have been major explosions emotionally from B who is struggling. Nevertheless, I believe that the core and basic attachment and relationship between all 4 children and the father is a solid one including B.  

    [17] Single Expert Report dated 13/10/2017, page 34 lines 1292-1306

11. The children were reported to be happy and excited to see the mother. They all wanted to see her more often and B wanted to go home with her.

12. D was still hopeful that her parents would get back together. E enjoyed visits with his mother.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children have their most meaningful relationships with their parents.

2. However the paternal grandmother has had and continues to have an important and stabilising effect on the children. The father moved with the children to live with his parents when the parties separated. The paternal grandfather was in the early stages of Alzheimer’s disease. He has some memory loss which the children understand, but relates to the children in a loving and concerned way.

3. The father remained living in his parents’ home with the paternal grandparents for 18 months, which provided a safe haven for the children through various tumultuous interim applications and various Court orders. In October 2015, there was an unedifying and successful attempt by the mother to remove the child, D then aged five years, from the paternal grandmother at a shopping centre. At that time all children were living with the father.

4. In December 2016, after B was restored to the care of his father with the other children, the father and children moved to a home of their own, a rented property further down the street.

5. Since then, the paternal grandmother has assisted in every way she could. Sometimes one or more of the children stay overnight with her. Many mornings she goes to the father’s house and helps with the morning routine “especially if B is having a bad morning”.[18]

   [18] Affidavit of the paternal grandmother filed 15/09/2018, par 4

6. In her oral evidence the paternal grandmother spoke of having B stay with her two to three nights per week. Clearly, at that time B was still reacting very strongly to finding out that his father was not his biological father. Sadly he has said to his grandmother “you’re not my nan” and “this is not my family”.

1. Of real concern is B telling his grandmother that his mother said at G Group [the contact centre] that he should not be visiting her.[19] The mother went further, according to B, telling him that he should call his paternal grandparents “[Ms R]” and “[Mr U]” not “Nana and Pa” and he should call his father “[Mr Hickson]” not “Dad”.

   [19] Affidavit of the paternal grandmother filed 15/09/2018, par 18

2. This conduct by the mother was callously indifferent to the emotional hurt of B. Instead of reassuring him that his paternal grandparents, whom he had known and spent time with all his life, loved him, the mother fed B messages that meant -you do not belong.

3. Intentional or not, it was cruel. No doubt the mother felt resentful about the children not being with her but she was unable to protect the children from her feelings. That is the problem with the attitude of the mother to the children, she does not conceal her feelings in their interest.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. A change of residence for the children would be destructive of their stable life. They would feel profoundly confused and probably let down by their father even if an ICL explained that the Court had made the order in their best interests.

2. The immediate consequence is highly likely to be that the children would be told by the mother that they never should have left her care and that the father had been wrong to take them.

3. The mother would be most unlikely to change her attitude to become warmly supportive of the relationship between the children and the father.

4. B would likely reject his father entirely, and all over again.

5. The emotional risk of destabilising an arrangement which has now been in place for more than three years is well articulated by the single expert and supported by the evidence of the parties.

6. The children should continue to live with the father with the consequential support and assistance of the paternal grandmother.

7. The children are likely to feel the loss of regular time with their mother by a reduction to four times per year.

8. However, I readily accept the submission made by the ICL that permanent imposition of supervision is not usually desirable.[20]

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

[20] See Betros & Betros [2017] FamCAFC 90, par 13

1. The Chapter 15 single expert, appointed under Division 15.5.2 of Family Law Rules 2004 (Cth) concluded that the mother has a Dependent Personality Disorder. Further, that underlying trauma (including an alleged incestuous assault when she was aged 13 years) should be intensively addressed in therapy first.

2. The single expert considered that the focus on OCD was distracting the mother from deeper problems.

3. He identified significant restrictions on the ability of the mother to parent the children.[21]

   [21] Single Expert Report dated 21/10/2017, pages 40-42

4. In cross-examination at trial, the single expert did not resile from his opinion about the mother. He amplified it by saying that the mother had a substantial pattern of disturbance over a long period of time, perhaps a life time, which had led to a maladaptive pattern of functioning. That the mother needed support from drugs, from other people and from having a “sick role”.

5. The evidence supports a finding that the mother has used marijuana and alcohol over twenty years although that use could be reducing. Also that the mother, to use the words of the single expert, “has been clinging to her children” to meet her own needs.

6. Despite the recommendations of the single expert that his report be provided to the mother’s psychologist/psychiatrist and an order being made by the Court to facilitate the provision of that report, the mother chose not to provide it.

7. She did however, purport to quote her treating psychiatrist as saying that “he does not believe that I have a diagnosis of Dependent Personality Disorder”.

8. It is improbable that a consulting psychiatrist would make such as assertion in the negative, especially without reading the source document that gave rise to it.

9. The mother has missed the opportunity to have her psychiatrist read the report and carefully consider the observations in it.

10. The mother asserts that she wanted to obtain a report by her psychiatrist Dr J but could not get Legal Aid funding. That too seems unlikely given the doctor was a treating practitioner.

11. I conclude two things: First, that because the mother was unhappy with the recommendations in the Single Expert Report, she chose not to show it to her psychiatrist. Next, that the mother did not believe that evidence from her treating psychiatrist would have assisted her case.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are now aged 13, 11 and nine years.

2. C, the oldest child, is entering adolescence and therefore starting the process of becoming independent of both his parents. He has a solid relationship with his father and loves his mother.

3. B the second child has experienced traumatic shock around the revelation of his paternity. His behaviour was violent, aggressive, unpredictable and hard to contain. He has felt like an outsider in his own family. He has been actively encouraged by his mother to believe that he is different to the other children and that his rightful place is with her only.

4. E and D are friendly cooperative children, developing well.

If the child is an Aboriginal child or a Torres Strait Islander child

1. The mother asserts that the natural father of B is an Aboriginal man. It is an agreed fact that the man in question has played no role at all in B’s life and is not known to him.

2. The father knows that the distress B has felt arises from the shock of finding out that the father was not his biological parent and further that he was the only one of the four children in that position.

3. The mother chose to enrol B in Indigenous studies at school but not his siblings to achieve indirectly an opportunity to release information about his paternity, “your real father is Aboriginal”.

4. It is a complex matter for the father to contend with. In time B will likely adjust to the truth of his identity. Hopefully, he will fully embrace the reality that the father is his psychological and legal parent despite not being his biological parent.  

5. Only then is it likely that he would take an interest in the concept of his own inherited Aboriginality. Ultimately he may wish to meet his biological father. He also may not.

6. It will be a matter for the father and any therapeutic practitioner who guides him, as to how to manage this aspect of B’s biological and cultural identity.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. B was raised by the parties as one of the sibling group. He was not told by either parent of his biological parentage.

2. There was a discussion about when and in what circumstances he would be told with no firm decision about timing.

3. Seven years later the mother unilaterally made that decision, with disastrous emotional consequences for all the children, but especially B, soon after the parties separated. The mother quite bluntly told B that the father was not his “real father.” The other children were told about B’s paternity at the same time in the same way.

4. I am satisfied that the mother contrived to have questions raised so she could deliver the information. She did so by including the information that B was Aboriginal when she enrolled him at a new school in 2015. She must have known that the school would act as required and involve B in learning and activities around Aboriginal culture. That did happen. C asked his mother why his brother was engaged in Aboriginal studies but he was not. The mother was ready with the answer, that B was Aboriginal because his father a man named Mr T was Aboriginal, not as he had always believed having the same father as he had grown up with.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There was undoubtedly a high level of conflict between the parties fuelled by drugs and alcohol during the relationship.

2. However, there have been no family violence orders despite both parties ringing for police assistance at times.

Any other fact or circumstance that the court thinks is relevant

1. I have considered the evidence of the maternal aunt, Ms S. The maternal aunt is a nurse. She has children of her own, who are slightly older than the subject children.

2. I accept her as an honest witness and a person of goodwill towards her sister, the father and the children themselves. She said, and I accept, that she has maintained a relationship with both the parties and “won’t get in the middle of a dispute”.

3. I also accept that she has willingly put herself forward as a supervisor at her sister’s request.

4. I conclude that the maternal aunt does not know the children very well although she has known them all their lives. She frankly stated that she does not see them a lot, “once every few months in each other’s homes”.

5. When asked whether she thought B had been traumatised, her response was “I’ve not had enough contact with B to know”.

6. That limited level of knowledge could be overcome. The difficulty is that the maternal aunt does not seem to know her sister very well either. 

7. When asked what she knew about the diagnosis for the mother of Dependent Personality Disorder she said “I haven’t had those conversations with my sister”.

8. I cannot be confident that the maternal aunt understands what has happened to these children nor what her sister is capable of saying to them.

9. It may be the case that the maternal aunt at the first hint of undermining and negativity would shut her sister down and/or terminate the visit but there is no evidence of it in her affidavit of three brief paragraphs.

10. I was left with the impression that the maternal aunt would likely overlook what was being said and try to stay in the background, whilst maintaining neutrality.

11. That would be enough in some situations, but not in this one.

12. I do consider that if the father had confidence that the maternal aunt could manage to supervise effectively, he would ask for her assistance in that way in future for the benefit of the children.

Conclusion

1. The subject children have had a tumultuous experience over the past four years since their parents separated. B has been emotionally injured.

2. The father has created a stable life for the children at home and at school.

3. In the event that the father concludes that the mother has come to understand the need of the children to be protected from her feelings about losing their full time care he would facilitate more time for them with the mother.

4. In that regard the mother might consider undertaking some of the therapeutic work recommended by the single expert in his report. To do so would be in the best interests of the children.

5. When the father believes that the children are old enough and mature enough to spend time with the mother supervised or unsupervised, I am confident that he will enable that to happen. As each child turns 14 he or she can cease attending supervised visits or continue.

6. Until then, some limited supervised time will reassure the children that their mother is alright, and continues to love them.

7. Orders are made in accordance with these reasons.

I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 September 2019.

Associate: 

Date:  20 September 2019