HULL & TORRANCE
[2017] FCCA 758
•19 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HULL & TORRANCE | [2017] FCCA 758 |
| Catchwords: FAMILY LAW – Parenting – allegations of risk with respect to both parents – allegations of family violence – children have been in father’s primary care after the Department of Health and Human Services removed the children from the mother’s care in 2013 – mother seeks children be returned to her primary care. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(3) |
| Cases cited: Friscioni & Friscioni [2010] FamCAFC 108 Re JRL; ex parte CJL (1986) 161 CLR 342 |
| Applicant: | MR HULL |
| Respondent: | MS TORRANCE |
| File Number: | MLC 5347 of 2015 |
| Judgment of: | Judge Harland |
| Hearing dates: | 27 & 28 February 2017, 1 & 2 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Paul |
| Solicitors for the Applicant: | Hughes Watson Marks Kennedy |
| Counsel for the Respondent: | Ms Manderlet |
| Solicitors for the Respondent: | Cathleen Corridon & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Dowler |
| Solicitors for the Independent Children's Lawyer: | Ebejer & Associates |
ORDERS
The father is to have sole parental responsibility for the children X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2011 in relation to religious upbringing and education, but otherwise the parents are to have equal shared parental responsibility for the children.
Order (1) is conditional upon the following:
(a)The father shall contact the mother in writing and provide his views in relation to major long term issues about:
(i)The children’s education;
(ii)The children’s health;
(b)The father shall consult (via email unless otherwise agreed) with the mother with regard to any such issue;
(c)The father and mother will make a genuine effort to come to a joint decision, in writing, about any such issue; and
(d)If agreement is not reached between the parties within 7 days, the father shall make the final decision and advise the husband in writing of the decision about any such issue.
That the children live with the father.
The children spend time with the mother during school terms as follows:
(a)In week one from after school Friday until before school on Monday;
(b)In week two from after school Wednesday until before school Thursday.
That the children shall spend time with the mother as follows:
(a)In odd numbered years, for the first half of each school holiday period commencing from after school on the last day of school term until 5.00pm on the day calculated to be halfway point of the holiday period; and
(b)In even numbered years, for the second half of each school holiday period commencing at 5.00pm on the day calculated to be the halfway point of the holiday period until before school on the first day of the following school term.
(c)On each of the children’s and the Mother’s birthdays from after school to 7.00pm if the birthday falls on a school day or from 9.00am to 3.00pm if the birthday does not fall on a school day, should the children not otherwise be spending time with the mother on such days in accordance with the Orders herein.
Notwithstanding any Order herein, the Mother’s time with the children shall be suspended and the children shall remain in the care of the Father as follows:
(a)On each of the child’s and the Father’s birthdays from after school to 7.00pm if the birthday falls on a school day or from 9.00am to 3.00pm if the birthday does not fall on a school day, should the children not otherwise be spending time with the Mother on such days in accordance with the Orders herein.
That notwithstanding any other order the mother shall have care of the children from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in even numbered years and from 5.00pm on Christmas Day until 5.00pm Boxing Day in odd numbered years.
That notwithstanding any other order the father shall have care of the children from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in even odd numbered years and from 5.00pm on Christmas Day until 5.00pm Boxing day in even numbered years.
In the event Mother’s Day falls on the father’s weekend the father’s time shall be suspended and the children will spend time with the mother from after school Friday until before school Monday.
In the event Father’s Day falls on the mother’s weekend the mother’s time shall be suspended and the children will spend time with the father from after school Friday until before school Monday.
That each party shall keep the other informed of his or her current residential address, email address and contact telephone numbers and advise the other of any change to these details in writing as soon as practicable and no later than within seven (7) days of such change taking place.
That each party shall notify the other of any significant illness or medical condition suffered by the children within 24 hours, or as soon as practicable in the case of an emergency and further shall provide to the other party all the relevant particulars of the treatment received by the children together with the name and address of the treatment provider.
That each party shall provide authorisation to any treating medical practitioner of the children to allow both parties to have direct access to the child’s health and medical records.
That each party shall do all acts and things and sign all documents as may be necessary to instruct the principal of any such school as the children may attend to forward to both parties a copy of all school reports, request forms for school photographs, and any notifications and other documents relevant to the child’s welfare and education and, in this regard, both parties shall be permitted to attend any functions at the child’s school to which parents would normally be invited, including attending the first day of each primary and secondary school for each primary and secondary school as the children may attend.
Notwithstanding any other order, the mother will have care of the children from 5.00pm on Easter Saturday until 5.00pm Easter Monday in even years and the father shall have care of the children from 5.00pm Easter Saturday until 5.00pm Easter Monday on odd years.
That the father shall keep the mother informed at all times, by way of email or SMS text message, of the children’s enrolment in extra-curricular activities and the times of these events.
That the mother do all things necessary to facilitate the children’s attendance at extra-curricular events at all times whilst the children are in her care.
That each party be at liberty to attend all sports and extra-curricular activities in which the children may be involved.
Both parties, their servants and agents, be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or members of their family; and
(b)Discussing these proceedings to or in the presence or hearing of the children and from permitting any other person to do so.
Whilst the children are in either parent’s care they are restrained from inflicting physical punishment of any kind on the children.
Each party shall facilitate the communication between children and other parent at reasonable times and parties are restrained from recording such conversations and allowing third parties to do so.
IT IS NOTED that publication of this judgment under the pseudonym Hull & Torrance is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5347 of 2015
| MR HULL |
Applicant
And
| MS TORRANCE |
Respondent
REASONS FOR JUDGMENT
The parents’ positions in this case are polarised. Each seeks to have the children live in their primary care. For the reasons I shall explain I have concluded that the children should remain living with their father, but should spend substantial and significant time with their mother. This is possible because of developments late during the course of the hearing.
Both parties are in receipt of legal aid. The Independent Children’s Lawyer is also funded by Victoria Legal Aid. Both are represented by private law firms who undertake legal aid work. Clients in receipt of legal aid deserve the same quality of legal representation whether represented by legal aid lawyers of private firms. There is no doubt that legal aid work can be difficult and is poorly paid. Most lawyers who take on legal aid work do so because of social conscience which is to be commended. However those who take on legal aid work must be prepared to perform the work properly. Unfortunately this is not always the case and this case does not stand in isolation.
As I indicated during the course of the hearing, the hearing proceeded in an unsatisfactory manner and the hearing time was lengthened because of poor case preparation. The father’s solicitors failed to inspect subpoenaed material, issued long before the hearing prior to the final hearing. Inexplicably Ms T and Dr C who have both provided significant ongoing assistance to this family were not on affidavit. Their evidence was important. For this reason I granted leave for them to be called dispute not being on affidavit. Their evidence was very helpful to the Court.
The parties have three children: X born (omitted) 2008 (“X”), aged 9; Y born (omitted) 2010 (“Y”), aged 7; and Z born (omitted) 2011 (“Z”), aged 6.
The children have been living in the father’s primary care since August 2013 when the Department of Health and Human Services (“the Department”) removed the children from the mother’s care.
The mother has three older children from previous relationships. Two of those children A, born (omitted) 2000, aged 17, and B, born (omitted) 2002, aged 15, live with the mother. The mother’s other son C, born (omitted) 2007; aged 10 spends supervised time with the mother. There are proceedings on foot with respect to C. I do not know the details of those proceedings.
There is no dispute that Y has autism. He also has Attention Deficit Hyperactivity Disorder (“ADHD”), attachment disorder and other behavioural problems.
The importance of the children remaining at their current school was an issue that featured strongly at the hearing. The mother’s position at the commencement of the hearing was that the children should live primarily with her which would have required the children to change schools because the mother lives 45 minutes away from their school. The mother does not drive and therefore relies on family members or public transport.
By the close of evidence the mother sought an opportunity to make enquiries as to whether or not she could secure private rental accommodation close to the children’s school. She was given that opportunity and filed further affidavit material. The other parties did not seek to cross-examine her or her further witness on the material. The mother has been able to secure accommodation close to the children’s school. This change in the mother’s circumstances is important as it means the choices for the Court are not so stark.
The family report writer recommends that the children be returned to the mother’s primary care and that until the father completes an anger management course, he should spend only supervised time with the children. Once he has completed that course the father spend time with the children on alternate weekends and during the holidays. At the beginning of the hearing the Independent Children’s Lawyer largely adopted the recommendations in the family report. By the end of the hearing, after hearing evidence, her position had changed. The mother supports the recommendations of the family report writer. By the end of the hearing she sought that the children live with her and spend time with the father on alternate weekends from Fridays to Mondays and alternate Wednesdays overnight. The father does not seek any changes to the current order.
One of the central concerns of the family report writer is the allegation that the father physically abuses the children.
The father’s position and presentation
The father is 41 years old. He is reliant on Centrelink benefits. The mother alleges that the father works for his brother in his business for cash. There is insufficient evidence to support that claim. The mother also alleges that the father continues to gamble. Again there is insufficient evidence to support this claim.
The father says that the mother was responsible for family violence in the relationship. He says that he believes her violence was exacerbated by her drug use and mental instability. He says the children were damaged psychologically by her serious neglect of them.
The father also alleges that the mother denigrates him to the children and refers to things that X has said to him including “mummy says you are a junkie”, “mummy told us we will be going to a new school”, and “mummy says we should live with daddy Friday, Saturday and Sunday and live with her all the rest of the time”, and “I’ve got to tell the lady in court that you hit us and that we want to live with mummy.” He caused his solicitors to write to the mother’s solicitors about these comments. The father goes on to say he “strongly denies” that he ever hit the children. However he admitted in cross-examination that he has physically chastised them. I will return to this topic.
The father says he is concerned about the mother’s mental health because of erratic behaviour she displayed during and after their relationship. He provides some examples.
The father also complained about the food the mother provides the children and complained the children are often returned from her care with soft drinks and sweets. He blames the mother for X’s weight gain. The mother says X has always been a stocky girl. The father says he has addressed this issue by taking her to a dietician and enrolling her in (hobby omitted). He says she has lost weight since starting (hobby omitted). The mother says that the father gives the girls junk food.
The father says that the children are well settled in school and have several supports in place both through the school and outside of it because of the efforts he has made.
The father says he has been engaged with the support worker at (omitted) Community Health in (omitted) since late 2013.
The father researched schools and found (omitted) Primary School. Since attending that school Y receives fortnightly speech therapy, sees a psychologist fortnightly and also has an aide.
The father takes Y to see a paediatrician every three months.
Y also attends (omitted) Therapy which specialises in providing early intervention and support for children with autism. Y attends group therapy and individual counselling there.
The father has enrolled the children in a number of extracurricular activities. The children attend (hobbies omitted) twice a week.
The father complains that the mother told him Y that if he lived with her he could go to B’s special school.
The father has completed the post separation parenting course which he was ordered to do on 16 November 2015, but is only in the process of enrolling in an anger management course. It is of concern that he only did this shortly before the hearing.
The father makes allegations that the mother’s father consumes drugs and expresses concerns about him driving the children but does not provide any evidence to support this allegation. Simply making an allegation in an affidavit is not evidence.
The father’s position is that the children should remain living in his primary care. He seeks an order for sole parental responsibility. He says the mother does not have the parenting capacity to look after the children. He disagrees with the family report and says that the mother undermines him as a parent and has been coaching and bribing the children so that they will say they want to live with her.
The father gave his evidence in a calm manner.
The father was keen to repeat his evidence about all the things that he has done for the children and to say that the mother is not capable of parenting the children.
It is of some concern that the father did not say anything positive about the mother. It raises the concern that he will not facilitate the mother’s relationship with the children and that he does not appreciate that it is an important and beneficial relation for the children.
The mother’s position and presentation
The mother is 35 years old. She is also reliant on Centrelink benefits. She has been living in transitional housing but has now secured private rental accommodation.
The mother’s position is that the children should be returned to her primary care. She adopted the orders sought by the Independent Children’s Lawyer which are in turn based on the recommendations of the family report writer.
The mother says the parties met in 2007, married in 2008 and separated at the end of 2011. She describes a violent and abusive relationship and she says the husband was responsible for this. She says the husband used methamphetamine (“ice”), cultivated and sold marijuana, and gambled. She says he was violent towards her and the children. She annexes a letter from the (omitted) Hospital dated 10 January 2009 which refers to the mother presenting to the emergency department after her partner sexually assaulted her. The record also refers to the police being involved.
The mother also annexes an application for an intervention order which was listed for hearing at the Broadmeadows Magistrates’ Court on 5 August 2010. In that document she complains that she and the father had had many arguments because of his drug use which resulted in him being paranoid. On this occasion she says he woke up late in the evening and he was being aggressive and complaining that she did not prepare food for him. She says that he hit her with a vacuum cleaner pipe. Police attended and issued the parties with a safety notice. On 5 August 2010 the Magistrates’ Court made an order against the father for the protection of the mother and her five children.
A few weeks later the father was incarcerated for three months for cultivating marijuana. The mother says when she and the children became homeless, the father found out and contacted her and told her to move into his home at (omitted). The mother says she was desperate so she moved in but that the house was in a poor state because of the father’s criminal activities in the home. She says after the father was released he again became emotionally and physically abusive, and the Department were notified and carried out an investigation.
The mother’s affidavit does not address the extent of the concerns the Department had with respect to her care of the children. She gives the impression at [13] that the house was not in a liveable condition because of the father cultivating marijuana and that she did not have the money or resources to address it. As will be apparent from the summary of the Department reports annexed to the father’s affidavit, that was only part of the problem and there were other issues of significant concern. I find it somewhat concerning that the mother minimises the issues which led to the children being removed from her care.
She also says that she became anxious and depressed after all of her children were removed and used ice on several occasions between August and September 2013 and disengaged with support services and did not spend frequent time with children. I am satisfied that the mother was taking drugs before the children were removed from her care. This finding is supported by the Department’s material. This causes me concern and the mother does not take full responsibility for her conduct.
The mother has engaged and continues to engage with supports and has made great progress.
The mother expresses concerns about the children displaying aggressive behaviour towards each other. She says she believes that these issues are often attributed to events that happen at the father’s house. What this ignores is Y’s autism and his behavioural difficulties. It is agreed that he will have meltdowns and act out and will hit and kick people including his siblings and it is unsurprising that at times the siblings retaliate. It must be remembered too that the children spend the majority of the time in their father’s care.
The mother made concessions when asked about the father’s parenting of the children and the supports he has put in place for them. She says that the father provides for the children’s physical needs but not their emotional needs. When being cross-examined at times the mother was angry, at other times she was distressed.
She disagrees with the Department reports but says she cannot refute them as they are the documents.
The mother did not provide any detail in her affidavit as to enquiries she made with respect to supports being available to the children, particularly Y. I accept that she made some enquiries and find that if she had made detailed enquiries, including supports for Y, she would have referred to them in her affidavit.
The mother also showed some naivety about Y’s needs in particular when cross-examined by the Independent Children Lawyer’s counsel. She spoke about Y having “the ability to surprise us” and believed that all three children would adapt very well to being in her primary care. When asked what the basis was for her beliefs she said “being their mother”. She said that being with her would ease a lot of Y’s anxiety and he would not be acting up. That shows a lack of understanding as to the nature of Y’s behavioural problems and autism. His issues will not simply go away. She also said that she got to bond with the children particularly during the recent long school holidays and she believes it will be easier for the children to manage with their mother by their side.
The mother’s sister and mother swore affidavits and were cross-examined. They are supportive of the mother. The maternal grandmother says she believes what the children tell her and that she believes that the father hits the children. The mother’s sister said the mothers’ children were removed from the Department because of claims made against the mother with respect to drug use. Their evidence does not greatly advance the issues before me.
Exhibit A is a transcript of a telephone call between the mother and the children whilst the children were in their father’s care. This transcript was not annexed to the mother’s affidavit and the recording was not provided to the other parties prior to the hearing which resulted in the matter needing to be stood down so that could occur. The mother raises particular concerns with respect to Z telling the mother several times that the father told her to piss off, apparently in (language omitted). The children are also complaining that the father will not let them go to the park.
The father says he does not know the (language omitted) word for piss off. He says the children were at the playground at McDonalds and wanted to go to the park but he needed to get them home in time for their bedtime. It is clear there was a lot going on. What concerns me most is that the mother recorded the call. In light of the other evidence, including concerns expressed by the police and the Department that the mother has made malicious reports, I am concerned that the mother made this recording in order to gather evidence to support her case. This must stop. I will injunct the parties from recording telephone conversations with the children.
The Department of Health and Human Services
The Department has had extensive involvement with the family.
The father annexes some of the Department documents to his trial affidavit. The first annexure is an addendum report to the application and discipline disposition report dated 23 July 2013. The addendum report is dated 23 September 2013. It details a number of concerns with respect to the mother’s care of her six children. The concerns included the children roaming the streets, throwing eggs at houses, and being observed to be in a filthy state both in respect to their clothes and faces. B and C had multiple absences from school. There were also concerns about A’s education. On that day in August 2013 two protection practitioners noted that X had been seen with a burn to her hand from a curling iron the day before.
On 19 August 2013 a child protection worker attended the mother’s home and noted that there were a large number of filled garbage bags outside the home. Looking through a peephole in the front door the inside of the home presented as having belongings scattered everywhere. When the protection worker contacted C’s and B’s primary school she was advised that they were not there. Two child protection workers attended the home the next day and noted there was no food in the fridge or pantry, there was glass in the front yard and the home had broken windows, two rooms were cited as requiring significant cleaning with pot plants on the floor and chains from the ceiling, windows blocked out and piping in the room, and the children’s sleeping area had broken bed frames and filthy mattresses and no sheets (which the mother said were in the wash). The mother reported the father grew marijuana plants.
Child protection workers attended on 21 August 2013 and presented the mother with a letter requiring her to address serious issues within 24 hours. The workers reported that the mother became angry and yelled at them and they left due to personal safety concerns. The report also records concerns about the children’s presentation at their day care centre presenting as exhausted, being unwashed, presenting poorly, and not having had breakfast. The children reported that they had no food in the home and had to eat dog food. The following day X was still unwashed and Y had a dirty nappy. The workers attended the home in the afternoon and the mother presented as having just woken up. No improvement had been made to the conditions of the home. C was lying on the floor. He had not gone to school because he did not want to go. When the workers served the mother with a protection notice she became aggressive and started yelling in front of C. Again the workers recorded leaving because of concerns for their personal safety.
The workers assessed the father’s residence and had no significant safety concerns. He was living with the paternal grandmother and they spoke with her. The father was compliant with accepting supports and drug screens and his three children were placed with him. The older three children were left with the mother as they were assessed as being not as vulnerable because they were older. The report records other concerns about the mother.
Since the children were removed from the mother, the day care centre had been facilitating the mother seeing the children when she did not attend the centre presenting as drug affected. They suspected her being substance affected on many occasions. The other concerns that the mother was attending inconsistently leading to the children being disappointed. With respect to the father, the day care observed that the children were coming in clean and happy.
The report also summarises the orders sought with respect to an interim protection order for both sets of children. Those orders sets out numerous conditions that parents are required to comply with.
The father annexes a further addendum report dated 9 January 2015. By this stage the mother was spending time with the children. The report records both parents raising concerns about the children after having been in the other parent’s care and that these concerns not been verified by other sources.
The mother’s time resumed in September 2014 for two hours supervised by the Department. No concerns were raised and from 14 November 2014 the mother’s contact was supervised by the maternal grandmother. From 12 December 2014 contact moved to being monitored with overnight contact to commence on 25 December 2014. The mother completed a seven day residential drug rehab paternal rehabilitation programme at (omitted) House on to October 2014 and was continuing to engage in supports for her substance use. She also was engaged with (omitted) outreach support service and she was seeing a psychologist.
The report records that the father was facing criminal charges with respect to a Centrelink debt of $200,000 and that the father had told them that there is potential for him to receive a gaol term of between 6 to 12 months. The father’s support worker reported that the father was doing well with the children and that the children have come a long way since being in his care and that she had no concerns about the children in his care. At the time of the report the Department supported the mother’s application to change the contact conditions and increase her time.
A further addendum report dated 15 April 2015 was annexed to the father’s trial affidavit. The report noted that the mother had made significant gains in the previous six months. They were of the view that they could revoke the Children’s Court Supervision Order and proceedings could be taken to the Family Law Courts although they did note that the father alleged that X had disclosed that her mother assaulted her over the contact weekend on 14 and 15 March 2015. The Department noted that they would investigate that allegation. When they interviewed X they noted that she presented with low affect and was reluctant to make eye contact. She told them that her mother had slapped her face when she was told to wash the dishes for her grandmother. She said she told the father’s partner. Y also said that X was slapped on the face by her mother when she was asked to do the dishes. When the worker spoke to the maternal grandmother she was adamant that the incident did not occur. The worker spoke to the mother who also denied slapping X but agreed to participate in a parenting course to work on discipline strategies.
On 11 April 2015 the father contacted the after-hours service of the Department and reported a family violence incident which he says occurred in front of the children. He was dropping the children off to the mother’s house when she became abusive pushing him and pulling a fist to his partner who was in the car. He said he wanted to take the children but was concerned that this would escalate the situation. He reported that the mother threatened to kill the children and also said that she would kill for the children. The report records concerns for the children’s safety because of the mother’s aggressive behaviour and her history of using ice. The Department contacted the police. It is of some significance that the report discloses that the mother made both a threat to kill the children and to kill for the children. The worker also spoke to the police constable dealing with the father’s complaint. The police officer listened to the recording the father made of the mother’s threat, and that it was clear from the recording that he listened to that the mother threatened to kill the children and that the mother had sounded very angry. This contradicts the mother’s evidence where she says she said she would kill for the children. The family report writer said the same thing in cross examination. She clearly believed the mother’s version.
The police attended the mother’s home and arrested her. The police recorded that the mother appeared to have been provoked when the father attended the home with a girlfriend and gave the impression that his girlfriend was caring for children. The mother was not substance affected. The police took out an intervention order against the mother in favour of the father and the children, and also charged her with three counts of threats to kill. The Department decided not to revoke the supervision order and required the mother’s visits to revert to supervised visits at the Department’s office.
Incidents in December 2016
The father says that the police attended his home at 7.35am on 7 December 2016 because the mother alleged he was harming the children. He says he was shocked and invited the police to inspect the property and the children. He says they remained for two minutes and apologised. He says this incident frightened the children. When he asked the mother why she did it she said “you used to do it to me.” The father says he believed she was on ice and that she did this out of spite and impaired judgement. He does concede in his affidavit that the mother has returned a number of negative drug screens in answer to requests for drug screens from the Independent Children’s Lawyer. The mother says she was acting as a protective parent. She does not say what made her request the welfare check.
The mother also complains that when the children came into her care during the first week of the Christmas school holidays that she noticed that X had large bruises on her legs. When the mother asked her what happened X said she fell over at the park. The mother said to her that they did not look like she had fallen over. She says a few hours later, X told her mother that the father got angry at her and had hit her several times with a wooden spoon. She says the other two children said they had witnessed the father hitting X. She made a notification to the Department in the New Year with her support worker. In her affidavit the mother says she believes that it is in the children’s best interests for them to reside in a shared care arrangement if the Court finds the children not at risk of harm whilst in the father’s care.
Incident on 26 February 2017
The day before the hearing the father was due to collect the children from the maternal grandmother’s home at 4.00pm in accordance with the orders. The father attended at that time or a couple of minutes after 4.00pm.
Exhibit B is an email the mother sent to her lawyer which she adopted as the proof of evidence as to the events which occurred over the weekend. She claims that on Friday when the children came home with her they said they were scared and did not want to go back to the father’s home because they did not feel safe there. She said that X and Y said that the father closes his door and does drugs, and X said she got in trouble from him when she found green stuff. I do not accept that the father was taking cannabis as she suggested. Cannabis stays in a person’s system for months and his drug screens have been clear.
He says that when he arrived only the two older children came outside. He says Y came up to him and said “why did you call the police on mummy”. The father said “what are you talking about”. He said Y was upset. X came out and got inside the father’s car. The mother went to grab Y from out of the car saying several times “don’t worry tomorrow you’ll be living with me”. The father he did not want to cause a scene.
The father says that Y was angry with everyone and was hitting out at everyone. The father says it was one of his tantrums.
The father denied yelling at the mother. He says the mother yelled at him whilst she was taking Y’s seatbelt off him.
The father said that the maternal grandmother called the police. He asked the grandmother to bring the children outside. She said they needed to go to the bathroom. She then refused to allow them to come back out.
The father says he called the police himself and waited across the road for the police to arrive. The father says when the police officers arrived he told them that he has custody of the children and was due to collect the children pursuant to the orders.
The two police officers who attended the home were subpoenaed by the mother’s legal representatives to give evidence.
Constable W gave evidence that they received a job to attend the maternal grandmother’s home for a custody dispute. They were not given any other information. Senior Constable M directed him to go into the house. Constable W spoke to the mother and saw the children. Constable W said he asked the mother what happened. She told him that the father was there to collect the children pursuant to Court orders. The mother said Y was playing up and ran away and that the children did not want to go with the father.
He said the mother and the children were in good spirits. The children seemed excited that the police came. The mother was polite and everyone seemed to be in a good mood.
Constable W said the mother did say to him that the children would be with her from the next day. The children were in another room with a door open. He did not know if the children could hear him or not. He did not talk to father. He observed that both parties were polite and compliant. I accept Constable W’s evidence and find that the mother did make that comment.
Senior Constable M stayed outside and spoke to the father. The father was sitting on the curb on the other side of the street diagonally opposite from the house. The father approached them and said that he had custody of the children pursuant to orders. The children did not want to go with him. He said he did not want to make a scene. The case was before the Court the next day. He was content that the Court would sort it out.
The father’s version of events is consistent with the evidence of the police officers.
The mother became distressed and defensive when she was cross-examined about the incident on Sunday 26 February 2017.
I am concerned about the timing of this incident. The evidence of the police officers do not support the mother’s position. I have some concerns that the mother saw the weekend as an opportunity to raise concerns about father on the eve of the hearing. I am not left with the impression from her or her witnesses that there were new issues raised on that weekend.
The father says that when he collected the children the next day the children were happy to see him and there were no difficulties.
I also do not find it credible that the children would be expressing such extreme level of fear of returning to the father’s home the very weekend before the hearing began. The evidence from the police officers that the mother did not raise any of these concerns with police and it is significant Constable W did not refer to the mother telling him about any of these concerns.
Ms T
Ms T is the psychologist working with Y. She works in early intervention for autistic children to assist them through primary school. She has been working with Y since August 2015. She works with Y to build his social skills including greeting people and taking turns. She also works with a speech pathologist named Ms K. Y attends a mixture of individual sessions and group sessions. The father has had greater involvement in the sessions but that is not surprising given the limited time the mother has had with the children.
Exhibit C is a bundle of documents relating to Y. There is a psychological assessment of Y dated December 2015. The report refers to Y’s test scores as supporting the diagnosis of autism spectrum disorder, intellectual disability, and ADHD, as well as oppositional defiant behaviour and defiance aggression. Psychologist Ms T prepared the report. She also attended Court and gave evidence. In her report she records the father’s concerns which includes Y acting aggressively, becoming angry and very aggressive with his sisters, and having difficulties interacting with other children in regulating his emotions. She noted that he has a range of learning, social and emotional difficulties, and he becomes frustrated and has outbursts. The tests administered include responses from the parents and his teachers. His tests indicate that he needs substantial support from with the respect to social interaction and communication and behaviour. The report makes various recommendations to assist Y at home and at school.
Ms T has also had three sessions with the girls and with Y to work on how the children can play together. She has assisted the father using techniques such as time out and visual aids on the wall and also recommended a trampoline which is good for children with ADHD to get out their frustrations. Y has a mild intellectual disability. She was concerned about the possibility of changing schools as that would be very difficult socially and emotionally for him.
She gave evidence that if he ever had to change schools it would increase his emotional dysregulation with increased aggressive behaviour anxiety and a decrease in social interaction. There are a lot of support systems in place for him at his current school.
Ms T has provided early intervention assistance for Y and indicates that she engaged in 26 sessions with Y and visited his school on 21 February 2017.
Ms T also provided a letter with respect to her school visit on 26 February 2017. The visit was arranged because it was believed that the mother was considering a special school placement for Y if he was returned to her care and the father had requested an observation of him in the classroom to help determine the most suitable placement for his educational needs. Ms T observed Y in the classroom and also spoke to the student welfare officer and his classroom teacher. The student welfare officer Ms W indicated that Y had transferred from (omitted) Primary School where his behaviour was unmanageable in the classroom. He was violent and he would also abscond from the classroom and school. At (omitted) these behaviours have not occurred Ms W did say that there has been an increase in disruptive behaviours in the classroom in the last few weeks but she believes that this is probably due to transitioning between the two homes between his mother and father and that this is similar for other children in that situation. Ms W reported that the school believes that the father takes good care of the children. They are never late, they do not miss school, they have clean and healthy lunchboxes, and all notes from school have been returned on time. Y is behind academically and has assistance of an integration aid. He socialises well with his peers but sometimes needs time and support to calm down and manage his frustration. Ms T records that Ms W was adamant that Y is too socially sophisticated for a special school and responds well to his peers and steps up to their behaviour. She was concerned that his behaviour would deteriorate if he was placed in a special school. She acknowledged that he requires a modified curriculum but that this has been working well with aid support.
Ms T noted that in her observation of Y in the classroom he followed instructions without difficulty. His teacher said some days he is focused and on other days he is unfocused. Sleep is the biggest factor for him as when he does not get enough sleep he is highly distracted and unable to focus. She agreed that he is too social for a special school and would be worried about him copying behaviours of other students if he was in a special school. She recommended a mainstream class with the teacher aide. His teacher reported that he gets along well with his peers but that he needs strong direction and consistent attention.
Ms T concluded that she would not support Y moving to a special school and she noted that he is doing well in his class as the school is supporting his individual needs.
I was assisted by her evidence.
Family therapy Dr C
The father and the children, as well as the mother, attended upon Dr C, who is a psychologist and family therapist, for family therapy. Her evidence was very helpful. Exhibit D is a letter from Dr C dated 15 November 2015. At the time of writing the letter she had seen the father and the children for 15 sessions from 2 June 2015 and had not seen the mother. She records that in early sessions Y was uncontained and would hit his sisters and kick his father. She used behavioural techniques in the session to contain his behaviour and his father has been using those techniques with success outside of the session. There has been focus on limit setting and allocating times for all three children to play together with the adults in the room. She has noted that the children’s play has improved and that the family sessions have provided a place of containment for all three children also provided a space for modelling good parenting for the father. She says he has followed all instructions carefully and she has seen the children’s behaviour settle.
Dr C was cross-examined. She saw the family for 54 sessions from 2 June 2015 until 7 November 2016 when the funding ran out. The mother has been involved since March 2016. She has seen the family in various combinations, including the father with the children and the mother with children.
In March 2016 the mother raised concerns about the children displaying sexualised behaviour but that when they spoke about it in detail it was the mother’s adult interpretation of children at play. She said there has been no disclosure with respect to family violence.
Dr C said Y has improved. Initially the children’s play was very disorganised. For example when they played with the dollhouse they placed furniture all over the place. After instructions from her and the father they were able to do it in an orderly fashion.
She says the children were very distressed in the lead up to the determination of the criminal proceedings against the father with respect to Centrelink fraud. She says the children were fearful of losing their father and of the unknown but that they have settled considerably since that issue was resolved.
She said that Y does throw toys and hits his sisters when he is anxious. X is very keen to please. Z is not so consistent and can sometimes be non-compliant.
All three children have settled in really well to their current school.
The mother’s counsel cross-examined Dr C about her letter and said it was self-serving for the father. She said she was very clear that at the time she wrote that letter she had not seen the mother. When it was put to her that what she said was based on the father’s report she said the reports from the Department backed up what the father said.
The father has been complying with her recommendations.
She thought changing schools would be detrimental to the children and that they had struggled at their previous school but have settled in very well to their current school.
Surprisingly she said that the parents have worked well together in their sessions. She felt confident that they would be able to work together in the future. In answer to my questions, she said it would be of considerable help to the family if they continued to see her and that they would be able to do this through Medicare. Funding had run out with her other servers but she could bulk bill through Medicare with the referral.
She also said that it is not unusual that the children are not as challenging in their behaviour with the mother as they are with the father as they are living with him and it is exciting when they see the mother. This is insightful and something the mother does not appreciate.
It will be important for the family to continue to engage in the family therapy. The parents indicated their willingness to do so.
Both parents were able to describe their children’s personalities, their likes and dislikes.
Allegations of family violence
The mother alleges that the relationship was very violent and that the father was responsible for this. The father says the mother was responsible. Clearly the relationship was volatile.
There is some evidence to support the fact that there was violence during the relationship. There is also evidence that there have been incidents since. However the state of the evidence is such that I am not in a position to make findings of fact about this.
The mother was charged and pled guilty to discharging a missile and contravening an intervention order on 7 May 2014. She says she had no choice but to plead guilty and claims she was set up. The mother was charged and pled guilty to threats to kill on 29 June 2015. She claims she had no choice. I find it very concerning that the mother denies the events took place despite pleading guilty. As with the removal of the children from her care, she continues to deny responsibility for her own actions. It was clear too that she undertook drug rehabilitation because she said she needed to prove herself in order to get the children back rather than her accepting that she needed help.
Allegations of physical abuse of the children
Under cross-examination the father said that he has hit the children on a couple of occasions in the past three and half years. He says he would smack them on the hands. This mostly occurred in the first six months after they came into his care.
He says he has smacked Y’s hand when he has run away. He has a habit of doing that.
The father says that during the relationship the mother slapped the children on many occasions and says it is referred to in the Department’s material.
The father says he put chilli in Y’s mouth once. He says it was done to him as a child. He says that he when told Ms T about it she told him he should not do that and he has never done it again. He says when he needs to discipline the children he takes toys away, puts them in time out, or cancels or delays a planned outing.
The father also said that he hit them softly on the hand and again until he was told by the experts not to do it, he did not see anything wrong with it as it was done to him as a child.
I think it is likely that the father hit the children on their hands on more than three occasions. I also accept the father’s evidence that he was applying the discipline he received as a child. Community standards expectations and acceptance about physical chastisement of children have changed since these parents were children. Whist the father has shown limited insight, he has also followed directions of experts very well. This has been confirmed by them. I accept his evidence that once he was advised by the experts that he should not physically discipline the children he has stopped doing it and has used other methods.
The father says he plays with the children and wrestles with them and has playfully bitten their ears when doing this.
Dr A’s report
Dr A conducted a psychiatric assessment of both parties. He was not required for cross-examination. Dr A summarised the Department’s material. Both parties gave Dr A a history of events that were generally consistent with their trial affidavits.
It is of some concern that Dr A records that the mother denied that the children were left unattended or that they were malnourished or unkempt. This is inconsistent with the Department records and the neglect of the children was of sufficient concern that the three youngest children were removed from her care first and subsequently her older children were also removed. It is very concerning that the mother told Dr A that she did not understand why the children were removed from her care. She also told Dr A that she tried amphetamines and ice for the first time after the children were removed from her care. It is clear from the Department’s material, it was not simply the state of the house alone. There was a lack of food in the house. The children were unsupervised. The children were unkempt and her older children were not attending school regularly. The mother blames the father for the children being removed from her care claiming that he made false reports. This ignores the fact that Department workers attended the home on several occasions and spoke to the children and others.
The father did admit to significant drug use to Dr A during the relationship not limited to the marijuana use.
Dr A noted that one of the difficulties of the assessment was the widely discrepant accounts given by the parties with respect to their substance use and violence during the relationship. This is also a challenge for the Court.
Dr A observed “while Mr Hull seems very committed to his children, I wonder whether he may also be motivated by the possibility of getting a non-custodial sentence in relation to Centrelink fraud if he is primarily responsible for the care of his children.” He does not expand on this. Nor does he provide his reasoning for this. Whilst I suspect the father was hopeful that his having custody of the children would assist him avoid a jail term, I am not satisfied that was his motivation for wanting the children to remain in his primary care.
Dr A states that if the mother only started taking amphetamines after the children were removed from her care, “it is difficult to understand why she required residential detoxification and ongoing rehabilitation in the community.” He noted a number of inconsistencies in the history provided by the mother with respect to her substance use, care of the children and domestic violence. He observed that the Department reports appeared to confirm the father’s accounts. He concluded that the mother’s “presentation and the history provided by her are consistent with long-standing personality difficulties however, there was insufficient evidence to make a diagnosis of a specific personality disorder.”
When cross-examined about what she told Dr A, the mother said she could not recall what she told him. She said she was still in disbelief that the children were living with their father.
The parents interaction with each other
Both parents have at times made numerous allegations against the other and complaints about each other’s care of the children including the children being physically abused. It is readily apparent that there is a high level of distrust between the parties with a readiness by both parties to look out for the negative with respect to the other party and interpret things the children say in the most negative way. I have no doubt that the children are highly aware of their parents dislike for each other and that they are aware of the reaction they get from their parents when they make complaints about the other parent. Both parents need to address this for the children’s sake in the order to avoid long term emotional harm to the children.
Both parents allege that the other parent denigrates them in front of children and to the children, and both accuse the other of being drug affected at times. The negative drug screens do not support their allegations.
I have the impression that both parents are very keen to present evidence in support of their respective positions and at times lacked child focus.
The family report
The family report is detailed. Despite this there are some limitations to it. The family report writer did not speak to the family therapist Dr C who has been involved with the family for the last three years. She reports that the mother had concerns that Dr C has aligned herself with the father. I have had the benefit of seeing Dr C give evidence. That is not my impression. Rather one of the concerns I have with the family report writer is that she has failed to appreciate some basic but important facts and did not appear to have an open mind. I note that I have had the benefit of seeing all of the witnesses give evidence, which the family report writer has not. I was also left with the impression that she had not read the annexures to the affidavits particularly with respect to the Department.
She records the mother telling her that she will be able to get carer assistance to take the children to school if they live with her. The mother also complained that the father “insisted” on changing the children’s school once the children went to live with him. The change in school has been very beneficial to the children, particularly Y.
The father is critical of the family report. He says the family report writer has made critical errors. He referred to her reference to the children being in his care for two years when it has been three and a half years and the reference to him living in (omitted) when he moved to (omitted). He also refers to the fact that she rang him twice on a Saturday and spoke to him for a further 20 minutes each time. He said he thought it indicated that the report was rushed and that she lacked professionalism but the mere fact that the report writer made follow up calls does not indicate this. She has identified many matters of risk, although, certainly with respect to the Department’s involvement with the family, she did not seem to appreciate the nature and extent of it.
The father also referred to the fact that she only spent 15 minutes with each of the children. He referred to this many times throughout his evidence. The family report writer disputed this and said she spent 45 minutes.
He was discursive in answering questions and took every opportunity he could to emphasise the mother’s deficits and to emphasise the things he has done for the children and how well the children are settled. He was also keen to refer to how many people could give evidence to support his case. He is legally represented and has had the opportunity to obtain supporting witnesses. He was aware that the mother’s mother and sister have sworn affidavits in support of her case. However it was clear that there were some aspects of poor case preparation on both sides which lengthened the hearing. I am not satisfied that this is a case of the father failing to call family members to give evidence because they would not have assisted his case.
The family report writer identified the following as issues of risk:
“The issues of risk or concern identified during the assessment are:
·The parent’s allegations and counter allegations of extreme domestically violent behaviours.
·Mr Hull’s allegations that Ms Torrance is mentally unstable and self harms, later portraying him to be the perpetrator of her injuries.
·The parent’s disparate accounts of their pre and post separation issues.
·The children’s described experiences that they are being physically abused by their father.
·The parent’s inability to communicate and cooperate in regards to their children’s ongoing care, welfare and development.
·The children’s expressed views and the extent to which they have sufficient maturity to express these independently of the views of either parent.
·Both parent’s acknowledged use of illicit substances and the extent to which they no longer do so.
·Both parent’s histories of criminality.
·The children’s attachments in regards to their relationships with their parents.
·The children’s relationship’s with their older half siblings and the need for these to be facilitated.
·Both parents’ claims that the other involves the children in the adult issues and denigrates them to their children.
·The earlier history of DHHS involvement with the family requiring the children to be placed in care.
·The distance between the households.
·The children’s need to change schools in the event they live with their mother.”
The family report writer records the allegations that the parties make against each other. For example, the mother alleges that the father was responsible for family violence in their relationship whilst the father says that the mother would self-harm and then blame the father for her injuries.
Both accuse the other of using physical discipline on the children.
The family report writer records at [50] that the father says that he disciplines the children by taking away privileges and that “now and then I might smack them on hand.” The father told her that the mother would slap the children and that the maternal grandmother has also hit them a few times and put chilli in their mouths. X reported to the family report writer that both parents have put chilli in their mouths when they have sworn a lot.
The family report writer refers to an incident during the Christmas school holidays where X’s legs were bruised. The mother told the family report writer that X had two large bruises on her legs. She says initially X told her she fell over in the park but later said her father beat her with a wooden spoon. The mother said as it was the Christmas weekend so she could not access services but took photos to show her support worker. The father told the family report writer that Y caused the bruising on X’s legs as he had a tantrum and started kicking her. He is said they tend to fight a bit. In answering how he deals with that he said that he has hit both children on hand with a wooden spoon lightly.
Interestingly, at [53] the family report writer records that the father told her that the children get scared in his home in the middle of the night that they want come to his bed and that he has to leave the lights on. He says his psychologist says this is because of their earlier trauma. In light of the father’s reports in this regard it is not surprising that the children also tell the mother that they get scared.
The family report writer also discusses the issue of Y’s birthday which was the day after the report interviews. The father was to spend time with Y on his birthday. The mother told the report writer that she checked with her lawyers and was told the orders do not provide for that. The family consultant expressed the view that the timing of the father offering the children money could have been to influence the children to remain silent or report information as instructed to the family report writer. I do not accept that. I find the father’s explanation credible in that his family has a tradition of giving children money on birthdays with more money for the child whose birthdate it is and smaller amounts to the other children. It was Y is birthdate the following day.
Interview and observations of the children
The family report writer makes several observations about X. She records that X told her she misses both parents when she is with the other parent and that she gains emotional support from both parents. The report writer asked if anyone hit her and she said that her father hit her sister once. When asked again later she said the father has hit her at once too and her mother also hit them once.
At [81] the family report writer records that she asked X if she could be one of the children who might be too scared to say what she really wants to say, X indicated that she was.
She records Y telling her that the person who hits him is his father but only on hand and then that he added “hesitatingly” and “sometimes on the body but not everywhere.”
It is of some significance that at [104] the youngest child Z claims that she wants to live with her mother because the father hits them. She said that the mother never hits them but the father hits them anywhere that he lies about only hitting them on the hand. It is most concerning that she would refer to the father lying. This is suggestive of the mother or her family telling her that the father was lying. She later said that the father hits them for discipline and the mother puts them in time out.
She recorded that when the three children were observed with their father they all appeared comfortable and happy with him, there was no observable fear or apprehension displayed by any of the children.
The family report writer also interviewed A and B who indicated that they returned to the mother’s care two years ago. They enjoy seeing the younger siblings but that it is heartbreaking when they leave because they know they do not want to go. They both enjoyed living with their mother and observed that she is “way better.”
They both disclosed that the father was violent towards them and their mother when the mother and father were together. They both said that the younger children disclosed to them that they are hit by father a lot but they are too scared to say anything because they will get in trouble.
The father disagreed with the characterisation of X in the report. He says that X is in the position where she is trying to please both parents. He said it is not good and it is hard for the children.
The family report writer misunderstood the length of time the children have been in the father’s care. Given the children’s ages this is significant.
Family report writer’s oral evidence
The Independent Children Lawyer’s counsel cross-examined the family report writer about the impact that change of school would have on Y. She agreed that Y would become more dysregulated in his behaviour for a period of time. This would manifest in lack of control and acting out behaviours. He would become distressed, aggressive, angry and non-compliant.
It was very clear it that the family report writer is firmly of the view that the father has been physically abusing the children. She also was of the view that they would be returned to their primary attachment figure and caregiver. This is where the report writer’s misapprehension about the length of time the children have been in their father’s care is significant. Given the age of the children the difference of 18 months is significant. They have been in their father’s primary care for three and a half years. In Z’s case this is most of her life.
She thought the children presented as having been rehearsed. She does not appear to have considered that they may have been rehearsed by their mother.
She says the father admitted to hitting the children with a wooden spoon. She said he acknowledged this when he was claiming that X’s bruising was caused by Y and X fighting. It was not suggested to the father in any of his cross-examination that that is what he said with respect to that incident.
The report is significantly limited by the fact that family report writer did not speak to any of the people involved in the children’s therapy and care including Ms T, Dr C, and the children’s school.
She acknowledged that the Department has been significantly involved with the children for the past several years up until November 2016 and the Department did not have concerns about the father’s care of the children.
She was not aware that the police had investigated the mother for making false reports. With respect to the threat to kill the father in front of the children, she said she was aware of the claim but that the mother’s information to her was that she would kill for the children not that she would kill the children. She says she was aware that the mother refuted the claims. She was not aware that the mother had pled guilty. She then said she may well of pled guilty to making the comment but the her intention was to indicate the importance of the children to her and that she would kill for the children and that was what she concluded. In this regard I refer back to [57]. I find that given the police officer listened to the recording the mother did in fact threaten to kill the children.
My impression of the family report writer was that she was convinced that she had reached the correct conclusion that the father was physically abusing the children and interpreted everything in light of that. She minimised this incident and my impression was that she was advocating for the mother. When pressed she conceded that it was not appropriate to say that in front of the children but stressed it was different from stating that she would kill them. There is no dispute that this happened in front of the children. The children would not be able to distinguish the difference. I have concerns that the report writer seemed at pains to justify the mother’s position even when presented with contrary evidence. She appeared to have lost some objectivity. This was apparent during several points.
It was put to the family report writer that the mother breached the intervention orders three times and on one occasion arrived brandishing a knife. She said she had no doubt that the mother was behaving in a way that was aggressive, out of control and abusive. It was also put to her that at that time the Department had no concerns about the father caring for the children. Her reply was “I’m very aware of that.”
With respect to the bruising on X’s leg in December and the Department being called, when it was put to her that the Department had no concerns she said “well, perhaps they didn’t, but that doesn’t mean they’re entirely correct.” It is important to remember that the Department has had significant involvement with this family for over three and a half years and had numerous opportunities to observe both parties and the children.
In one report dated 22 March 2016 with respect to an incident where the mother was complaining about alleged sexual activity, the Department concluded that the report may have been malicious in nature that there are other occasions where the reports have recorded concerns that there have been an element of maliciousness in the reports. The family report writer has not read that material and was not aware of it.
The father’s counsel put to the report writer that the father has organised a number of services for the children and researched their current school before moving there. She acknowledged this but said that she understood the mother had done the same thing. I find that the mother has not made the same sort of enquiries as the father.
She interpreted X’s reporting of the father just hitting them once and then added hesitantly that the mother just hit them once as X being cautious and that X to correct and balance out what she was saying so as not to portray her father negatively. The family therapist has described to X as a child who wants to please. I think it is likely that both parents have used physical discipline at different times. There are certainly reports of the children saying that the mother had physically disciplined them in the reports that were made in the early period after they are removed from her care.
It is also significant that the family report writer said that if the children are behaving aggressively then “my guess is they are learning it.” This completely disregards Y’s autism and behavioural difficulties when there is no doubt that Y has meltdowns and acts out.
In addition to the Department, Ms T and Dr C have had significant regular involvement with the family and no reports were made to them of concerns about physical abuse. They did not observe anything that cause them concerns. Their involvement is over a significant period of time where they are working closely with the family. I find it highly unlikely that they would not have picked up on any concerns.
It was also clear that when the family report writer referred to the father as being aggressive when in the waiting area at the report interview, that she did not observe this but was relying on what the mother and her older children said to her.
It is also significant that again with respect to the incident when the mother over held the children and the police attended. When it was put to her that the police had no concerns she replied “that doesn’t mean they are correct.”
The father’s counsel put to the family report writer that the children had been micromanaged in many ways with the significant involvement of various people with the family in the past three and a half years. She said in terms of their special needs they have but had to concede when challenged that was more involvement than that. She also said she accepted that none of them had come up with concerns about the father but then added that they had not come up with concerns about the mother either. She said that the reports from both parents support workers and the Department were glowing. When it was put to her that the Department’s reports have not been glowing about the mother she replied that the one she read by the support worker was. She then said that she read the affidavit material and would have read the annexures. I have summarised the reports that are annexed to the father’s affidavits.
The family report is one piece of evidence. It does not have a special status. It is for the Court to determine what weight to place on it.
The Full Court of the Family Court of Australia (“Full Court”) said in Friscioni & Friscioni [2010] FamCAFC 108 (17 June 2010):
“95. In this case the trial Judge had before her a large amount of written and oral evidence and also had the opportunity to observe the parties and various witnesses being cross-examined. The evidence before her Honour included what was in the family report prepared pursuant to s 62G of the Act by a Family Consultant. In the family report the Family Consultant expressed an opinion, as she was entitled to, on the ultimate issue, namely, what proposal would be in the best interests of the child: see s 80 of the Evidence Act 1995 (Cth).
96. Although the Family Consultant was an expert appointed by the Court to prepare a family report she was not in a privileged position and was required to give her evidence in the ordinary way. As Gibbs CJ observed in Re JRL; ex parte CJL (1986) 161 CLR 342 at 348:
In the performance of this function the court counsellor becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court
See also BBT & JMT (1980) FLC 90-809 per Wood J.
97. In Hall & Hall (1979) FLC 90-713 the Full Court (Evatt CJ, Asche SJ and Hogan J) said at 78,819:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs.A. Marshall, Director of Court Counselling Sydney Registry — “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia”. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report”.
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.
Similarly, in M. and M.(1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial `by report' rather than on the whole of the evidence.”
One thing that is apparent to me after having the benefit of hearing from the professional witnesses treating these children is that the children, particularly Y, display challenging behaviour at times.
It must be remembered that these children have experienced enormous upheaval and uncertainty in their lives. Their home life before the parties separated and after the Department removed them from the mother’s care must have been a chaotic and dysfunctional period of time for the children. The fact that they have made such significant progress since they were removed from the mother is in no small part due to the father with the benefit of considerable support.
The family has a significant number of professionals engaging with them regularly. It is of great significance that these professionals do not share the concerns about the father and that the mother and the family report writer do. It seems unlikely that if the children were being physically abused in the father’s household that they would not have disclosed this to one of them or that they would have not seen concerning behaviour in the children not explained by Y’s issues.
I find it of significant concern that the family report writer was dismissive of the views of the police and the Department.
Her response with respect to the Department and the police both getting it wrong strengthened my impression that she became an advocate for the mother rather than being an independent expert. This together with the limitations in her report in not speaking to those who have had significant involvement with the family leads me to place very little weight on her report.
Parenting principles
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled their parental responsibilities and has facilitated the other parent in fulfilling their parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are no issues of family violence in this case.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court of Australia (“High Court”) found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
Concerns about parents
Both parties are keen to demonise the other and portray themselves as the victim. The real picture is not entirely clear and is far more complex.
The Court is left with concerns about both parents. It is clear that during the relationship and in its aftermath both parents failed to be appropriate role models and carers for the children. Both parents present as being very keen to present information and evidence in support of their positions. They are both keen to blame the other and to minimise any responsibility for their own actions.
The mother complains that the father has restricted her time with the children and will not facilitate her relationship with the children. Certainly the father did not consent to increases in the mother’s time except for some time at Christmas recently and I have concerns about the father’s ability to facilitate the mother’s relationship with the children but I also have similar concerns with respect to the mother. When she was cross-examined by the Independent Children Lawyer’s counsel about what time she thought the children should spend with their father she said it should be up to them.
I am satisfied that both parents, and in all likelihood extended family members, have involved the children in adult issues. The children would be keenly aware of their respective parents’ positions in wanting them to be in their primary care and the distrust that they have of the other parent. The children would be aware that each parent has few positive things to say about the other parent and believes the other parent presents a risk to their safety. I am also satisfied on the evidence that the mother has sought to influence the children. Both parents are keen to hear the children say negative things about the other parent and accept these statements at face value.
The mother says she believes the children when they disclose things to her. She shows no insight into the fact that the children are in the middle of conflict between their parents and they want to please both of them. I find mother is keen to hear the children say negative things about the father and make reports about those issues. I find that the father also lacks insight into the invidious position of the children.
I am satisfied that the parents’ relationship was dysfunctional and characterised by family violence. I am unable to make findings as to the extent of it nor was I asked to do so. I do not accept that the father was merely a victim and the mother self-harmed. I also do not accept that the father has set the mother up post separation. The mother must take responsibility for her own actions. She pled guilty to criminal actions. It is not appropriate for the Court to look behind that.
The father is unable to say anything good about the mother. I am mindful that when the children came into his care he faced many challenges and he would have seen the consequences of the mother’s neglect. Nevertheless he should recognise that he had deficits too. Both have clearly engaged with support services well and they and the children have benefited.
It is clear that the children crave more time with their mother. They will benefit from their parents being substantively involved in all aspects of the children’s lives.
I have concerns about the father’s ability to foster and promote the children’s relationship with their mother. The fact that the mother has moved closer to the father means that the children will be able to spend significantly more time with their mother.
The mother was able to concede that the father had provided for the children’s physical needs. It would have been difficult for her not to in the circumstances. I have some concerns that the mother fails to appreciate the extent of Y’s behavioural issues and his autism and I refer back to the comments at [42] and [98] of these reasons.
When cross-examined the mother continued to deny the reasons the children were removed from her care. She was cross-examined about material which included the police record that in March 2015 the mother had made a false report and she was being investigated for making false statements. The mother denies making false statements and says that all she does is that she tells the authorities the things that the children disclose to her.
The parties level of distrust for each other is such that despite each returning several negative drug tests they still expressed concerns about the other taking drugs. The children cannot help but be aware of the negativity their parents feel towards each other.
The father feels that the mother is undermining of his parenting no matter what he does. Whilst it may not be conscious, I think the mother and her family are on the lookout for the children to say negative things about the father and his care of the children and that they interpret what the children say in the most negative way. The mother is keen to report these to authorities. I am also satisfied that the mother has said inappropriate things to the children. The evidence of Constable W is consistent with the evidence of the father in this regard. I am satisfied that the mother has said things to the children such as they will be living with her after the Court case.
Both parents need to work on this in order to provide better for the emotional well-being of the children.
Submissions
At the end of the hearing, counsel for the Independent Children’s Lawyer submitted that the problem is the relationship between the parents and that the recent incident of the police being called to the mother’s home is an example of that. The issue is not so much about the children’s relationship with each of their parents. I agree with that submission. The father has provided stability for the children. The Independent Children’s Lawyer’s position had changed significantly by the end of the hearing after having had the benefit of hearing all the evidence. She does not have a strong view about parental responsibility but acknowledges the difficulty in the parties’ communication so submits that the parent with primary care should have sole parental responsibility but with an obligation to provide notice and to ensure both parents have access to the people who can support the family.
The father’s counsel submitted that the children should remain living in the father’s primary care and spend alternate weekends and half school holidays with the mother. This was after being aware that the mother was moving closer to the father’s home in the children’s schools.
I accept the father’s counsel’s submissions that it is significant that none of the professionals reported the children complaining that the father hits them and that the mother did not make these kinds of reports to them either. To place some significance on the fact that the mother told Constable W that the children would be living with her from the next day being the first day of hearing. She submits that the family report writer got it wrong. She was wrong about how long the children were in the father’s care and was not aware of the false reports the mother made and the significant concerns the Department had about the mother.
The father has provided the children with stability and a good routine where they are thriving. Dr C said that the father was good at implementing recommendations.
The mother’s counsel said that the historical evidence concerning the mother could not be denied that she had shown insight into the children’s care and that it is to her credit that she has done all she can to obtain appropriate accommodation so that the children will not need to change schools. It is to her credit that she has been able to arrange accommodation however is also very clear during the course of the hearing that it would not be in the children’s best interests for them to change school.
The mother seeks that the children live with her and spend significant time with the father.
Parental responsibility
The father seeks an order for sole parental responsibility. The mother seeks an order for equal shared parental responsibility. The Independent Children’s Lawyer expresses concern about the parents’ poor communication and their ability to exercise parental responsibility jointly. The parents have a deep distrust of each other. They both accuse the other of continuing to take drugs. There is no evidence to support this. They both criticise the other’s parenting capacity. Whilst the mother was able to make some concession with respect to the father, she really had to in light of the history, it is clear that neither is confident that the other can provide for the children’s emotional and psychological needs. Both accuse the other of seeking to influence the children and undermine them as a parent. In these circumstances the Court cannot have confidence that the parents will be able to exercise parental responsibility together.
The father has been able to provide for the children’s educational and medical needs very well. The mother has not had the opportunity to do this since the children were removed from her care 3 and a half years ago. Since being able to be involved with the children’s therapies she had taken up that opportunity. The children will benefit from both of their parents being actively involved in their education and medical treatments. No criticism has been made of the father in this regard. I am satisfied that the father should have sole parental responsibility for the children’s education and health needs but he should be required to consult with the mother before making the final decision. They should share other aspects of parental responsibility equally. These include the children’s religions and cultural upbringing, their names and changes to the children’s living arrangements which would make it significantly more difficult for the children to spend time with the other parent.
Family violence and abuse
Both parties allege that the other committed serious family violence during their relationship and afterwards. The mother has been convicted for breaches of an intervention order after the relationship and for making threats to kill. I am not satisfied that the mother was the only person to be responsible for family violence but I am not in a position to make further findings about this issue.
I find that it is likely that both parents have physically chastised the children at times. I am also satisfied that the father has physically chastised them to a greater extent than he admitted but I do not accept that he subjects the children to ongoing physical abuse and that the children are afraid of their father. I accept the evidence that the father is good at implementing recommendations and that since he had been told he should not use physical discipline he has not done so. Nevertheless I am satisfied it is appropriate to make an order that both parents be restrained from using physical chastisement or letting anyone else do so.
With respect to the incident in December 2016 where X had bruising on her thighs, I am not satisfied that this was caused by the father. I find it is more likely that it was as a result of Y lashing out.
Section 60CC considerations
Both parents have a meaningful relationship with the children which the children benefit greatly from. They will continue to do so pursuant to these orders.
The children are young. They have expressed views to the family consultant but this case does not turn on those views. I am satisfied that the children have a close and loving relationship with both parents. They have experienced significant change and upheaval in their short lives. They clearly want to spend more time with their mother. Now that the mother will be living in closer proximity it will be possible for them to do so.
The orders I will make will enable the children to spend significant time with their extended family members on both sides of the family.
Prior to the children being removed from the mother’s care, both parents showed significant deficiencies in their parenting capacity. Both have done a considerable amount of work to improve this.
The father has proven capacity to provide for the children’s practical, educational, and health needs. The mother does not. There is some concern about both parents being able to provide for the children’s emotional and intellectual needs. Both have involved children in adult issues. The reporting to authorities and involving the children in the adult dispute must stop. They must be given the emotional space to enjoy their relationship with both parents. They should be able to speak about their other parent freely and positively. Currently they cannot. They are very aware that each parent wants them to live in their primary care. They are very aware, most particularly X, that their parents are keen to hear negative things about the other parent. Particularly with respect to their mother, they receive comfort and attention when they do.
Changing the children’s living arrangements such that they live primarily with their mother would be a significant change for the children. They have already experienced significant changes. The children have numerous activities during the week which they should continue. Now that the mother will be living locally to the children and the father, I find that it is in the children’s best interests that the children spend time with the mother on alternate weekends from after school Fridays and before school on Mondays in week one and from after school on Wednesday until before school on Thursdays in week two. The parents should share the school holidays equally but whilst Z is young, the summer school holidays should be shared on a week about basis rather than in longer blocks.
All of the parties seek injunctions restraining the parties from using illicit substances and or drinking alcohol in excess of a BAC of 0.05 when the children are in their care. It is against the law to take illicit substances. A final order injuncting the parties from doing something illegal does not advance the matter. There is no evidence that the parties drink to excess. There is evidence to support a mutual non-denigration order being made.
I cannot be entirely satisfied that there will not be further proceedings as a result of these orders. This will depend on the parents but I am satisfied that the orders I am making are in the children’s best interests.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 19 April 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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