Jarrah and Neason and Anor
[2014] FamCA 239
FAMILY COURT OF AUSTRALIA
| JARRAH & NEASON AND ANOR | [2014] FamCA 239 |
| FAMILY LAW – CHILDREN – Best Interests – Magellan list – Allegations of sexual abuse and family violence – Where there are five children of the relationship – Where the father has a considerable criminal record – Where over fifty risk reports have been made to the Department of Family and Community Services – Where the father has a demonstrated predilection towards having sexual relationships with younger persons – Where the children have been exposed to abuse and family violence by either parent or a person who lives with a parent – Where the court found on the balance of probabilities that the father sexually assaulted two witnesses in the proceedings – Where the father’s potential to meet the children’s needs is negligible – Where the court found there is an unacceptable risk to the children if they were to be placed in the father’s unsupervised care – Where the mother is unable to parent and protect the children adequately without the assistance provided by the Department – Where the court found the mother lacks the insight to protect the children – Where the court is satisfied that the presumption of equal shared parental responsibility is rebutted – Where the court found that the best interests of the children require that sole parental responsibility be ordered in favour of the Minister for Family and Community Services. |
| Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3); s 68C; s 121 |
| B and B (1993) FLC 92-357 Chappell and Chappell [2008] Fam CAFC 143 Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 M v M (1988) FLC 91-979 MRR v GR (2010) 42 Fam LR 531 |
| APPLICANT: | Mr Jarrah |
| RESPONDENT: | Ms Neason |
| INTERVENER: | Director-General, Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid Family Law Specialist |
| FILE NUMBER: | PAC | 287 | of | 2012 |
| DATE DELIVERED: | 10 April 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 27, 28, 29, 30 & 31 May and 7, 8 & 9 August 2013 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Jarrah, in person |
| COUNSEL FOR THE RESPONDENT: | Ms Carr |
| SOLICITOR FOR THE RESPONDENT: | Stidwill Solicitors |
| COUNSEL FOR THE INTERVENER: | Mr Anderson |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor's Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Schroder |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid Family Law Specialist |
Orders
The following parenting orders are made in relation to the children M Neason-Jarrah born … 2002, M Neason-Jarrah born … 2007, R Neason-Jarrah born … 2009, U Neason-Jarrah born … 2010 and Z Neason born … 2013 (“the children”).
All previous orders and parenting plans in relation to the children are hereby discharged and/or set aside.
The Minister for Family and Community Services (“the Minister”) shall have sole parental responsibility for the children until they reach the age of 18 years.
The Minister or the Director-General of the Department of Family and Community Services (“the Director-General”) shall determine where and with whom the children live.
The mother shall spend time with the children at times and places and on conditions, including supervision, as determined by the Director-General.
The mother shall have telephone contact with the children at times and on conditions determined by the Director-General.
The mother shall keep the Director-General informed of her home address, email address and contact telephone numbers.
The mother may send or deliver cards, letters and gifts for the children to the Director-General.
The Director-General shall deliver or send to the mother any cards, letters or gifts from the children.
The father shall spend time with the children at times and places and on conditions, including supervision, as determined by the Director-General.
The father shall have telephone contact with the children at times and on conditions determined by the Director-General.
The father shall keep the Director-General informed of his home address, email address and contact telephone numbers.
To facilitate orders 5, 6, 10 and 11 hereof, the Director-General shall advise the mother and father respectively in writing of the proposed dates, times and places at which those visits and telephone calls to the children shall take place.
The children shall spend time with their siblings if they are not living in the same place as their other siblings at times and places and on conditions, including supervision, as determined by the Director-General.
The Director-General shall provide a copy of these orders to the carers for each of the children.
The Director-General shall have leave pursuant to s 121 of the Family Law Act 1975 to provide the following documents to any doctor, psychologist or social worker who treats or assists the children:
(a) A copy of these orders and Reasons for Judgment;
(b)A copy of the report dated 13 December 2012 prepared by the Court appointed expert, Ms O, and any other reports by her subsequent to that report; and
(c)A copy of the reports of any other professional concerning the mother and any of the children.
The mother is restrained by injunction from doing any of the following during visits with the children:
(a)Criticising any member of the children’s foster family or asking the children questions about how the foster carers look after them;
(b)Using physical discipline on the children;
(c)Telling the children what was said during the case in the Family Court about the children themselves, the mother or the father; and
(d)Swearing or using rude language in the presence or hearing of the children.
The father is restrained by injunction from doing any of the following during visits with the children:
(a)Criticising any member of the children’s foster family or asking the children questions about how the foster carers look after them;
(b)Using physical discipline on the children;
(c)Telling the children what was said during the case in the Family Court about the children themselves, the mother or the father; and
(d)Swearing or using rude language in the presence or hearing of the children.
The father is restrained by injunction from approaching and/or making contact with the children at any place or by any means without the prior written consent of the Director-General.
A police officer may arrest the mother or father without warrant, pursuant to s 68C of the Family Law Act 1975, if such police officer believes on reasonable grounds that the mother or father has, since the orders were made, breached the injunctions contained in paragraphs 17, 18 and 19 of these orders and it is to be taken for the purposes of this order that each of the injunctions in those paragraphs relate to the personal protection of the children or any of them.
The Director-General do all things and sign all documents to cause the name “Neason-Jarrah” to be used in relation to the child Z rather than “Neason”.
That all exhibits be released.
That all parties have leave to re-list these proceedings by arrangement with the Associate to Johnston J in relation to the implementation of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrah & Neason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 287 of 2012
| Mr Jarrah |
Applicant
And
| Ms Neason |
Respondent
And
| Director-General, Department of Family and Community Services |
Intervener
REASONS FOR JUDGMENT
These are parenting proceedings which concern five children, M Neason-Jarrah born in 2002, K Neason-Jarrah born in 2007, R Neason-Jarrah born in 2009, U Neason-Jarrah born in 2010 and Z Neason born in 2013 (“the children”).
The children’s parents are Mr Jarrah and Ms Neason. For convenience I shall refer to them as “the father” and “the mother”.
The Director-General, Department of Family and Community Services (“the Director-General”) has intervened in these proceedings.
The proceedings are included in the Court’s “Magellan” list of cases.
Applications
The father seeks orders to the following effect:
·The parents have equal shared parental responsibility for the five children;
·The children live with their mother;
·The children spend time with their father in accordance with a graduated, increasing-time regime commencing with each Wednesday from 4.00 pm to 7.00 pm and concluding each Sunday from 10.00 am to 4.00 pm increasing after six months to each Wednesday from 4.00 pm to 7.00 pm and each alternate weekend from 6.30 pm Friday to 4.30 pm Sunday as well as school holiday periods of between one and two weeks;
·Special days as specified;
·Changeover if not at school to be at B Police Station;
·Telephone communication as specified;
·Provision of medical information and treatment as well as school information and reports; and
·Non-denigration restraints.
During the father’s final submissions he made an oral application for an order to the effect that the child Z’s surname to be changed from “Neason” to “Neason-Jarrah”.
The mother sought that orders to the following effect be put in place on an interim basis, but if the Court did not consider interim orders to be appropriate, then on a final basis:
·The children live with her;
·She have sole parental responsibility for the children or, if the Court was not prepared to make such an order, that she and the Director-General share parental responsibility;
·The father spend time with the children for two hours on four occasions each year to be strictly supervised by the Department of Family and Community Services (“the Department”);
·Otherwise the father be restrained from spending any time with the children or communicating with the children;
·The mother be restrained from allowing the father to spend time with the children or to communicate with them;
·The above injunctions be supported by ordering a power of arrest in favour of the Police pursuant to s 68C of the Family Law Act 1975; and
·Various mutual non-denigration and other protective restraints.
The Director-General sought orders on an alternative basis as follows:
A.If the Court determined that there was no unacceptable risk of harm to the children from remaining in the care of their mother on the basis of continuing involvement with services provided to her through the Director-General, the following interim orders be made:
·The Minister of Family and Community Services (“the Minister”) have sole parental responsibility for the children;
·The Minister or Director-General determine where and with whom the children live;
·The mother undertake an assessment of her parenting capacity and cognitive skills as organised by the Director-General and various consequential orders;
·In the event that the mother failed to comply with requests of the Director-General, the matter be relisted for further hearing; and
·Various orders providing for supervised time between the father and the children, communication, and various restraints to protect the children as well as a power of arrest.
B.In the event that the Court determined that there was an unacceptable risk of harm to the children if they were to live with their mother then the Court make final orders in accordance with the following:
·The Minister to have sole parental responsibility for the children until they reach 18 years of age;
·The Minister or the Director-General determine where and with whom the children live;
·The mother spend time with, and have telephone contact with, the children as determined by the Director-General;
·The mother may send cards, letters and gifts for the children to the Director-General and the Director-General shall deliver to the mother cards, letters or gifts from the children;
·The father spend time with, and have telephone contact with, the children as determined by the Director-General;
·The children spend time with their siblings if not living in the same place no less than once per month for not less than two hours;
·That the mother and father both be subject to restraints as specified;
·That the restraints be supported by a s 68C Family Law Act 1975 order providing Police with the power to arrest the mother or father without warrant for breach of the restraints; and
·Various other orders of a consequential and machinery nature.
The Independent Children’s Lawyer (“ICL”) seeks orders which are final orders only and which are similar in substance to the final orders sought by the Minister for Family and Community Services. These include the following:
·The Minister have sole parental responsibility for the children and determine the residential arrangements for the children;
·In the event that the Director-General determines that the children live with the mother, the mother:
(a)undertake such assessment of her parenting capacity and cognitive skills as is organised by the Director-General and
(b)follow all directions and participate in all services to assist her parenting of the children as determined and directed by the Director-General.
·In the event the mother fails to comply within 7 days with all such requests of the Director-General and the Director-General determines that the children shall live other than with the mother:
(a)the mother shall spend time with the children on no more than four occasions per year at times and places and on supervised conditions as determined by the Director-General;
(b)the mother shall have telephone time with the children at times and on conditions as determined by the Director-General.
·The father:
(a)shall spend time with the children on no more than four occasions per year at times and places and on supervised conditions as determined by the Director-General;
(b)shall have telephone time with the children at times and on conditions as determined by the Director-General
PROVIDED THAT in the event that the child M does not wish to spend time or have telephone contact with her father she will not be required to do so.
·Various machinery orders and restraints.
Background
The father, 52 years and the mother, 31 years, met in 1997 when she was 15 years of age and in year 9 at high school. She was a friend of his son Y. They commenced a sexual relationship when she was 18 and commenced cohabitation a couple of years later in 2001.
In 1984 the father married his first wife Ms E. They have three children, Y Jarrah now 29 years, S Jarrah now 28 years and G Jarrah now 21 years.
In 1995 Ms D was born. She resided with the parents for several years commencing in 2008. She is currently 18 years of age and now lives in a de facto relationship with the father. He is the father of her younger child.
In 2002 the parents’ first child, M, was born. She is now 11 years of age.
In 2003, or perhaps 2004, Ms W, aged approximately 15, commenced to live in the home of the mother and father at Suburb X. I shall refer to Ms W again below.
In late 2005 the parents separated.
In 2005 or 2006 the mother reported to the Department that the father assaulted the child M. The police became involved.
On 20 February 2006 the father made an application to the Federal Magistrates Court to spend time with M because he said the mother refused to allow him to do this.
On 23 March 2006 interim orders were made to the effect that M reside with her mother and spend time with her father each Friday from 10am to 5pm.
On 20 April 2006 the father filed a Notice of Discontinuance because the parents had reconciled.
The mother also discontinued proceedings for an Apprehended Violence Order (“AVO”) against the father.
At this time the parents were living in a Department of Housing home at Suburb X. Living at the home with them were the child M and G Jarrah.
In 2007 the child K was born. She is now six years of age.
In 2007 Ms C, who was born in 1993, alleged that when she was approximately 14 years of age (late 2007 or early 2008) the father sexually abused her. I shall refer to this again below.
In 2008 Ms D, then 13 years of age came to live with the father’s mother Ms J for a period of one and a half months, and with his father Mr J for eight months. Then she moved in to live with the parents at Suburb X. Ms D had been living previously in various refuges.
In April 2008 the Department received a report of risk of harm to M to the effect that a male child had touched her on the genitals and made her touch his genitals. I shall refer to this again below.
In 2009 the child R was born. She is now four years of age.
In late 2009 the family relocated their residence to Suburb P. Ms D continued to live with the parents and children.
In 2010 Ms C asserted to the mother that the father had been having sexual intercourse with her. I shall refer to this again below.
On 5 February 2010 a risk of harm report was received by the Department alleging an incident of sexual harm to M by her paternal grandfather. I shall also refer to this again below.
On 17 February, 30 March and 3 May 2010 further risk of harm reports were received by the Department in relation to M.
In 2010 the child U was born. He is now three years of age.
In February 2011 the father alleged the mother grabbed M by her hair and legs and threw her across the room. The mother denied this but admitted to hitting the father in self defence.
In 2011 the child SJ was born to Ms D who was then aged 15 years and 11 months. Scientific testing has indicated that S Jarrah is the father.
In May 2011 the father and Ms D travelled to Queensland with SJ. The father wanted to participate in a recreational event at the Gold Coast. In addition, Ms D had come to the attention of the Department in relation to her parenting of the child SJ. The father said that he wanted to give Ms D the opportunity to parent SJ on her own and to be a “good Mum”.
In August 2011 the mother’s sister died. The mother was suffering from grief and for quite some weeks after her sister’s death the mother and the children lived on and off with her parents.
In September 2011 the mother was referred to the Brighter Futures program in Suburb B. This is a support service arranged by the Department.
In October 2011 the mother alleged that an incident of family violence occurred between the father and her in relation to the father’s relationship with Ms D.
Both the father and the mother say they separated in October 2011. The father and Ms D had returned from Queensland and were taunting the mother about her ongoing grief. There was an argument and the mother became very distressed.
On 4 November 2011 the mother and children returned to the home at Suburb P to collect items. The father had wanted the mother to return home to clean up the house because he was expecting a visit from the Department. An argument ensued between Ms D and Ms E who happened to be at the home. There was a further incident of family violence. It is clear that this marked the parties’ final separation. I shall refer to this matter again below.
On 9 November 2011 the mother and the children commenced the Brighter Futures program.
On 28 November 2011 the mother moved with the children to Suburb N.
Also in November 2011 the Department removed SJ from the care of Ms D. Apparently the Department had the view that Ms D did not have appropriate accommodation for herself and the child.
The mother alleges that on 4 February 2012 the child M made a complaint of sexual abuse of her by her father. The mother contacted the Department.
On 27 February 2012 M was interviewed by the Joint Investigation Response Team (“JIRT”). During the interview the child said things which if true, would amount to sexual abuse of her by her father. The allegations were not substantiated. I shall refer to this again below.
On 10 May 2012 the Magellan Report, prepared by the Department, was released to the parties. The report identified allegations including family violence, risk of sexual harm to M, alleged physical abuse of the children and the inability of the mother to protect the children from the father.
Sadly, in 2012 both of the children’s paternal grandparents passed away.
On 12 March 2012 a formal risk assessment was undertaken by the Department which indicated the children … were at a high risk of neglect and a very high risk of harm. I shall refer to this matter again below.
On 20 March 2012 the mother attended the Local Court for AVO proceedings.
On 2 April 2012 a Safety and Risk Assessment (“SARA”) was conducted in relation to the children.
On 5 April 2012 the mother was told not to withdraw the AVO complaint against the father.
On 27 June 2012 the AVO was dismissed because the mother failed to appear at court.
The mother asserts that on 8 September 2012 Ms D made threats to the child M over the speakerphone. I shall refer to this matter again below.
On 8 November 2012 final orders were made placing the child SJ under the responsibility of the Minister. The father is permitted to contact her twice each year.
On 27 November 2012 the parties and the children attended upon the single expert, Ms O.
In early 2013 the child Z was born to the mother and father.
On 15 February 2013 an unannounced home visit by the Department identified the mother’s home as having been in an unhygienic state.
On 27 May 2013 this Court commenced hearing these proceedings. But the five hearing days listed were insufficient to complete the hearing. On 31 May 2013 the hearing was adjourned for a further three days commencing on 7 August 2013. The Court made various orders including orders for injunctions to protect the children and for the children to spend one occasion with their father supervised by the Department.
On 21 June 2013 the mother and children were referred to the T Family Support Service. The actual program commenced on 11 July 2013.
On 5 July 2013 the mother and maternal grandmother took the children to play at a children’s centre. The children K, U and R sustained some minor injuries when a group of older children started to play with them roughly on equipment at the facility.
On 11 July 2013 in accordance with orders made on 31 May 2013 the father spent two hours with R, U and K supervised at the Department’s offices at Suburb TT.
On 15 July 2013 the police made application for what they described as a “non-urgent AVO” to ensure the mother’s protection but declined to take formal action against the father for allegedly threatening the mother.
In mid 2013 Ms D gave birth to ZJ. The father, despite his earlier denials of paternity, is the child’s father.
Credit
The father
The father gave his evidence in a reasonably responsive manner and was cooperative with the process. But I do not believe significant parts of his evidence and I have serious reservations about the reliability of other parts.
He has a serious criminal record including for dishonesty offences.
What is particularly troubling is that he refused to acknowledge that he has a sexual relationship with Ms D who has been living with him in various houses occupied by him. At the time of the first stage of the hearing in May 2013, his denials stood in stark contrast against a considerable body of evidence, not only assertions by numerous witnesses in the proceedings but a considerable amount of documentary evidence. Yet he steadfastly denied being in a sexual relationship with Ms D and denied that he was the father of her then unborn child. During the August 2013 hearing, the father conceded that he was the child’s father.
In all the circumstances I have a poor view of his evidence. Where the father’s evidence is inconsistent with that of other witnesses, generally I prefer not to accept it.
Ms L
Ms L is a friend of the parents although in recent times more so a friend of the father. She lives in his residence. Ms L gave her evidence in a responsive manner. But I did not believe her denial that the father and Ms D live together in a sexual relationship. I did not believe her evidence about the sleeping arrangements in the father’s home particularly her assertion that the father and Ms D occupied different rooms.
I do not regard Ms L as a witness of the truth.
Ms D
At the commencement of the hearing I ascertained from the father what evidence in chief he would be relying on. There was no mention of any affidavit by Ms D. But at the commencement of the second day, the father indicated that he wished to file an affidavit by Ms D in his case, which I gave him leave to do.
Ms D appeared to have some difficulty with the process of cross-examination. There was a level of defiance about her manner of answering questions. On numerous occasions she did not wish to provide an answer to the question. At one point, after prompting by me, she reluctantly provided an answer. During the first part of the hearing she conceded that she was pregnant but steadfastly refused to identify the father of her unborn child. She confidently asserted that she had never been in any sexual relationship with the father. As I have said above, this was quite inconsistent with a great deal of other evidence in the proceedings, and ultimately it became clear that Ms D was lying about this.
In my view, Ms D was a poor witness. Where her evidence is in conflict with that of other witnesses and documents tendered in the proceedings I find myself unable to accept her evidence.
The mother
The mother was quite responsive in her answers to questions. On some occasions she was too responsive in the sense that she started giving answers before counsel had completed the question.
She gave me the impression that she was only too aware of the interest in her parenting ability and requirements of the Department in relation to her children. In my view, this has affected the reliability of her evidence to some extent. For example, at paragraph 82 of her affidavit in chief she said as follows:
I have not had sexual relations with [the father] since we separated.
When the mother commenced oral examination by her own counsel, she sought to correct this. She said that in fact she had had sexual intercourse with the father on two occasions since separation. The first was at the end of April (2012) which was the time of conception of the parties’ youngest child Z. The mother said that the other occasion on which she had sexual intercourse with the father was in May 2013. She said that this occurred when he entered her home with Ms L without her permission at approximately 3.00 am. The mother said that the reason she said in her affidavit that she had not had sex with the father since separation was because she meant that she had not had consensual sex with him.
As I say, the mother would know only too well, that the Department would take a dim view of the father having been in her home. She had entered into a safety plan with the Department which involved her having given undertakings to the effect that she would ensure that the children were not brought into contact with the father. On the mother’s admission, she has contravened the plan. The conclusion I reach about the matter is that the mother was untruthful at paragraph 82, her intention being to mislead the Department and this Court.
In these circumstances I have reservations about the reliability of the mother’s evidence where it is not supported by that of other witnesses or documents.
On numerous occasions the mother appeared not to be able to resist the opportunity to say things which it appeared she perceived might favour her case. On the other hand at other times she was not at all forthcoming in providing the answer begged by the question apparently because she thought the obvious answer would not serve her case.
I found the mother also to be unable to make concessions.
Overall I regard the mother to be an unreliable witness
Ms P
Ms P was born on in 1993. She said that the father had been sexually assaulting her for four years. She said this commenced with the father raping her in the parents’ home in approximately 2007, when she was 14 years of age. She said that the father threatened to arrange for someone “to flog the fuck out of you” if she told anyone or acted differently by not coming over to see the mother and the children. It is unnecessary to repeat the details of this alleged rape set out in Ms P’s affidavit. She said that the sexual abuse continued until she was 17 when she told the mother about the abuse after which she no longer visited the home. She also said that the father’s sons Y and G had sexually assaulted her.
The father denied the allegations and asserted that Ms P had been co-erced into making such allegations as a consequence of threats to her by the mother. He also alleged that Ms P was promiscuous, although he used different words. During his final submissions the father said that Ms P was unclear about when and in what circumstances she met him and that this affected her credibility.
Ms D also said that Ms P had asserted to her that she only prepared her affidavit in support of the mother’s case because she was scared of being “flogged” by the mother if she did not. In my view this is highly improbable.
Ms P said that when she came to Court to give her evidence she saw the father waiting outside the courtroom and he gave her “a filthy look”. She said that she felt pretty scared.
I had offered Ms P a separate courtroom and for her to undertake her cross-examination by telephone from that courtroom. She indicated that she thought she would be alright. However, after a few questions from the father she started to become distressed and indicated that she did not want to continue. I informed her that it was important for her to persevere but I would like her to go into another courtroom and be cross-examined by telephone which she did.
Ms P appeared to be confused by some of the questions. I wondered whether she might have a slight intellectual impairment.
Her demeanour and obvious distress caused me to feel confident that she was telling the truth. Accordingly, I find it more probable than not that the father has sexually abused Ms P and that the sexual abuse commenced when she was a minor.
Ms W
Ms W alleged that when she was approximately 15 years of age and was staying at the home of the mother and the father, the father sexually abused her. She said that one afternoon in 2003, when the mother had left the house to go to the shops and the child M was asleep, the father commenced to touch her breasts. She said he then put his hand between her legs. She said she told him to stop and that he said not to worry because the mother was not going to find out. She said she pushed him away from her and left the house that day. She said she did not inform the mother about this at the time but told her some years later.
The father denied the allegations. He said during his submissions that he did not move into the Suburb X home which Ms W visited, until 2004.
The father might be correct about this particular fact. But even if he is correct, I cannot accept such an error as a basis for rejecting the thrust of Ms W’s evidence.
Early during her cross-examination, well before the commencement of the father asking her questions, Ms W became very distressed. I then arranged for her to leave the courtroom and be cross-examined by telephone to another courtroom.
I had no sense of Ms W having invented the very serious allegations she made against the father. From her demeanour and her responsiveness, I am confident she is a witness of the truth.
In all the circumstances, in my view, it is more probable than not that the father sexually abused Ms W, although it is unclear whether or not this happened when she was still a child.
Mrs NN
Mrs NN is the children’s maternal grandmother. She gave her evidence in a responsive and cooperative manner and was obviously very supportive of her daughter.
Generally I regard Mrs NN as a witness of the truth, although I had a sense that she was being so supportive of the mother that it is probable that she described the state of the mother’s housekeeping as being at a higher level than would be likely to be the case.
Ms O
Ms O, clinical psychologist, is the Chapter 15 expert in these proceedings. She has prepared a very detailed report about the children and the parents which was released to the parties in December 2012.
Where I refer below to various observations and opinions by Ms O I accept such observations and opinions.
Submissions
Independent Children’s Lawyer
The submissions by the Independent Children’s Lawyer (“ICL”) were to the following effect.
Final, rather than interim, orders should be made. It would not be in the children’s interests for a further hearing to be undertaken. There were previous legal proceedings withdrawn by the mother in 2006. The matter has a very long court history and these children need a final outcome. The parents have both had many opportunities to remedy their parenting defects and they have failed in this regard.
In regard to matters of credit, the father has conceded that he lied under oath. The father has no credibility as a result of significant matters he alleges and professes. The same level of credibility could be attached to the evidence of Ms D.
The mother did not lie under oath. She lied concerning having sexual intercourse with the father giving rise to the conception of the child Z. The mother’s credibility is shattered in relation to significant events and allegations made by her.
The Court should accept Ms P and Ms W as witnesses of truth, and accept their allegations of sexual assault against the father.
In relation to the primary considerations, the Court should find that the children are at an unacceptable risk of abuse from their father in unsupervised circumstances. Long term, supervised time between the father and the children would not be appropriate. But the children would benefit from identification time spent with their father, under supervision, and at a time and place as determined by the Department, so that the children would not suffer in the future from an idealised vision of their father. The child M should be able to decline attending any such time to be spent with her father.
The mother should not have shared parental responsibility with the Minister because she cannot be trusted, for whatever reason, not to expose the children to their father.
The only way in which it seems that such risk can be ameliorated is by ordering the Minister to have the sole parental responsibility for the children, and for the Minister to determine their living arrangements.
If the Minister decided that the children were to live with their mother under direction of the Department, there would be a shadow hanging over the mother’s head, if she did not abide by the directions of the Department. These could involve attending parenting courses to address her practical parenting deficiencies. Or if she permitted, or acquiesced in, the father having contact with the children, the children’s residence with her would be terminated.
The Court would be very concerned about the trauma that has been inflicted on these children emotionally, psychologically and physically as a result of the dispute between their parents.
The Court would also be very concerned about the father’s apparent “preying upon young, vulnerable girls” in a sexual manner and his perpetration of physical abuse over a lengthy period.
Learned counsel for the ICL then summarised the evidence in relation to many of the incidents of alleged abuse and the shortcomings of the parents. These included the recent bowling alley contact between the mother and two of the children and the father as well as a similar earlier meeting at a shopping centre.
Director-General, Department of Family and Community Services
The submissions on behalf of the Director-General were as follows.
There is sufficient evidence to make a finding of family violence, and of abuse, sufficient to rebut the presumption of equal shared parental responsibility between the parents.
The Court would be concerned about the likelihood that the father assaulted the child M by hitting her on the chest with a closed fist on 4 November 2011, the time of separation.
The Court would also be concerned about the possibility that M’s allegation in February 2012 that her father sexually abused her is correct.
There was also the allegation that the father assaulted M in 2005/2006, which appeared to precipitate there being no contact between the father and the children or M.
There is a risk to the children because the father has sexually assaulted other minors in their home and the Court should accept the events described by Ms W and Ms P.
Ms O reported fourteen risk factors as compared with only five protective factors in relation to the risk of the father being sexually abusive.
The father lied to the Court and to Ms O about his relationship with Ms D. Ms O identified this as an elevating and significant risk factor. This elevates the risk to an unacceptable risk of sexual harm if there is unsupervised time between the children and their father.
Ms O’s evidence demonstrates that the father is an inappropriate role model and lacks adequate parenting capacity. The father’s behaviours are not amenable to moderation. The first step would be for the father to develop insight, which appears to be lacking. The Director-General accepts this opinion about the father.
It is quite concerning that the father has a predilection for vulnerable girls.
The father informed Ms O that he would not engage in supervised contact. But the father said in his oral evidence that he would undertake supervised contact if it was ordered.
The evidence does not support the progressive time which the father is seeking.
The mother sets out evidence of the father being physically violent towards her.
The father denied assaulting the child M and other young women, denied his relationship with Ms D and he is lying.
There is evidence that Ms D suffered some sort of breakdown in Queensland following which the child SJ was in the father’s care and they then returned to NSW. The Queensland authorities were considering removing SJ from Ms D’s care.
The father and Ms D applied to the Housing Department for accommodation but refused separate accommodation offered to them because they wanted to remain together.
The father and MsD shared a bed in Queensland. Both denied a sexual relationship. Ms D was just 16 years of age at the time. The father was shocked that his son may be the father of SJ. The father has SJ’s name tattooed on his body.
There is a question whether the mother has cognitive capacity and the ability to learn better parenting skills and whether she may develop insight and capacity to be more protective of the children. If the evidence suggests that the mother does not have the capacity to be protective, then final orders would be appropriate. If the Court has the view that the mother has the capacity to improve her parenting and that the intervention of family support services such as T Family Support Service would be of benefit to her and the children, then interim orders would be in the children’s interests.
The evidence supports a finding that the children are at risk. Ms O was of the view that the children were not at an immediate risk of harm whilst protective services are involved. Yet there is a lot of evidence otherwise. The most obvious of this is the existence of the child Z, whose conception occurred at the time when the mother had entered into a safety plan and an AVO existed requiring the father not to come into contact with the children and her. So that the mother cannot protect the children from their father and other persons who present as a risk for the children including Mr BG, a violent casual partner of the mother. The mother lied about the paternity of Z and said that Mr BG was her father.
The mother is unable to be aware of the risks. The father has been able to exert coercive pressure over the mother to not continue legal proceedings and to withdraw the AVO when such were in her interests and those of the children.
The mother has required the support of services.
The children M and K’s absenteeism from school raises concerns about whether the mother can attend to the children’s educational needs as well as other needs.
The Court must be concerned about the father’s relationship with Ms D and his lack of boundaries. The father said, in his own words Ms D has “grown to become like a daughter to him” yet he has taken on a relationship with her.
The father considers he is of aboriginal descent. There is no proof of that. The children should be encouraged to maintain contact with their heritage, with reference made to connections with a “NSW mob from out far west”. It is the children’s right, rather than the father’s right, to exercise their aboriginality. The Department would provide considerable assistance to the children to facilitate engagement with their aboriginal culture.
Mother
The following submissions were made on behalf of the mother.
The mother consents to the continuation of provision of intensive services to her.
The mother will do all things to co-operate with the T Family Support Services program. The caseworker said that the mother has complied to date.
The mother would also comply with an order for assessment, as recommended by Ms O.
If the present interim orders were to remain in place and the mother was to continue to comply with Departmental directions to undertake the assessment and to continue with the T Family Support Services program, there would be no need for parental responsibility to transfer to the Minister at this point in time. The orders and supports would be sufficient protection for the children.
There should be an order made to authorise a police officer to arrest the mother and father without a warrant if there is a breach of the injunctions.
Ms O thought that the children would be better protected by an interim order for parental responsibility to be with the Minister. However, the mother could share parental responsibility with the Minister because she has shown herself to be co-operative with authorities.
For example, the mother self-referred to Brighter Futures. It is probable that the mother would comply with what the Department wants her to do. At the worst, the mother has sometimes changed appointment times for visits and she failed to obtain a third quote for a cockroach infestation.
The Departmental officer reported that the mother appeared to be receptive to the intervention.
The mother adopts the view of Ms O and submissions consistent with this that the father poses an unacceptable risk to the children if there is unsupervised time between the children and him. Counsel referred to the young and vulnerable persons whom she said the father preyed upon. Ms D was 13 years of age when she began to live in the parties’ household, fleeing sexual abuse. Counsel also referred to the vulnerability of Ms P and Ms L.
Reference was made to a suggestion that SJ’s conception raised uncertainty about who the father was and it was asserted that S Jarrah had suggested that the possibilities were himself, … or the father.
There is much that is positive about the mother’s parenting and her relationship with the children. The mother has a significant attachment with the children, as evidenced at the interview and the children seek comfort from her. All are young children and live with the mother full time. The mother used appropriate age structure activities and engaged with them. There is some difficulty managing the four children. Ms O said the mother is a kind parent. Ms O referred to numerous positive aspects of the mother’s parental capacity and I shall refer in detail to these below.
There are some conflicting views about the tidiness of the house at times. Brighter Futures reported a clean and tidy home. The mother could develop and improve upon this if she has the cognitive capacity to do so, and with some training. The TT program provides the right intensity.
There are two limbs in respect of concerns about the mother. Firstly, her practical capacity of parenting skills. Secondly, her cognitive capacity to protect the children.
The father has been very progressively out of the children’s lives for some time and increasingly since separation. He is a manipulative and coercive person.
But the mother has done numerous things to rid herself of the father. The mother has:
·Obtained an AVO on 7 November 2011;
·Changed her telephone number a number of times;
·Telephoned the Departmental caseworker on a number of occasions about her concerns. On 8 May 2012, she and the maternal grandmother telephoned the caseworker to inform her that the father had attempted to spend time with the children.
It is true that the mother went to the bowling alley and the incident is concerning. It occurred only a week prior to the hearing. Ms D had said that the father and his sons change venues every Saturday. The mother had every right to assume that the father may not have been there when S suggested she bring bowling equipment there. The mother said she was only there for 10 minutes, then she left. Ms D said the mother was there for one and a half hours but the Court would not believe Ms D.
There is not much to say for the mother about her lie on affidavit to the Court and to the expert about the father not being the father of the child Z. But the mother would have been frightened of consequences because at that time there was a safety plan and an AVO in place. But the Court would find most of what the mother said otherwise was generally true.
Father
The father’s submissions were to the following effect.
He still presses his application for equal shared parental responsibility. If the Court does not favour this he would like the Department to share parental responsibility with the mother because then the children would be safe and the mother would do the right thing.
He is not a risk to the children. The mother was allowing him to see the children at her home and at shopping centres. If the mother believed he had done anything to their children she would not have allowed contact between him and the children.
He will abide by what the Court decides and if he is to have supervised identification contact only, then he will cooperate with this because he loves all his children.
The father seeks that Z’s surname be changed to Neason-Jarrah. He said that it would be unfair for her to have a different name from that of the other children.
The Applicable Law in Parenting Proceedings
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
In parenting cases involving allegations of child sexual abuse the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.
In M v M (1988) FLC 91-979 the High Court said as follows at page 77,080:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court went on to say at page 77,081 as follows:-
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk. Then the High Court arrives at the relevant test saying as follows, still at page 77,081:
This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The Full Court of this Court said in the case of B and B (1993) FLC 92-357 as follows at page 79,778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “"achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Parental responsibility
In my view, the first matter for determination is whether the presumption, that it is in the best interests of these children for their parents to have equal shared parental responsibility for them, should apply.
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child or another child who at the time was a member of the parent’s family.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
In the present case I am satisfied that the presumption does not apply on both grounds for the reasons which will follow.
In Chappell and Chappell [2008] Fam CAFC 143 the Full Court said as follows:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interest the Court must take into account the prescribed matters in ss 60CC(2) and (3) …
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. These are as follows.
Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Ms O said that M and K were the only children able to articulate their views.
Ms O said that M expressed a clear wish to remain living with her mother. She said that she does not want to spend any time with her father and that part of this reasoning is because he is with Ms D. She said that part of her would feel “happy” to see her father but only if Ms D was absent and her mother was present.
When Ms O asked K what she would wish for if she could have any three wishes K replied that “[Ms D’s] dead, [the father’s] dead and that [G Jarrah] is dead.” When Ms O asked why, K replied that all of those people have “hurt” her.
Ms O said that the children’s opinions appear to echo the concerns of the mother and the maternal grandmother and may not be as clear as expected. She said that the weight to be accorded to the views of M and K should be minimal because they are young and have clearly been exposed to too much information from both parents and possible influence in forming their views. Furthermore, she said that M’s intellectual problems should be taken into account as she may not be able to provide a consistent account. Accordingly, in my view the Court would be cautious about placing much weight on these views.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Ms O said that while it was not possible to definitively identify the type of attachment the children had to their mother, it appeared that all four children were attached to her and were comfortable in her presence. She said that their interaction at interview likely reflected the fact that their mother is their primary carer and the children both sought comfort from her and used her as a base to explore and play.
She said that when the children came into the interview room they all appeared excited to see their mother and were appropriately affectionate.
In the observation session by Ms O when the father came into the playroom, R and K ran to him and cuddled him. He was able to soothe U, who had been crying, by picking him up and cuddling him. She said that M, however, remained standing on a chair, writing on the whiteboard, and ignored her father. She continued to ignore him throughout the session despite his persistent efforts to engage her. Ms O said M was very quiet and while she did not appear frightened, she seemed physically rigid and hypervigilant to where her father was. Ms O said that M was clear and firm about her boundaries and did not get persuaded by her father to speak to her. She also said that M was found to play a parentified role in relation to the younger children.
Ms O said that it appeared that the father’s behaviour has disturbed the attachment process, such that there was no obvious secure attachment between the children and him.
Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother has not allowed the children to have unsupervised time with their father since November 2011.
It is the case, however, that it is more likely than not that the mother has permitted the father to visit her and the children at her home on more occasions since separation than she has conceded.
On the other hand, there is no admissible evidence which would tend to indicate that if the children were living primarily with their father he would not facilitate and encourage their relationships with their mother.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
In the event that the children were not to be living with their mother one would expect they would be likely to be very distressed and to grieve the loss of their mother. This would almost certainly follow from the fact that they have very close relationships with her and are attached to her.
Ms O said that there would be some short-term impact on the children and that depending on the quality and nature of their new caregiver, the impact may be repaired such that there would not necessarily be any long term damage.
She also said that children transitioning under 12 months of age do not usually suffer significant loss. Ms O also said that the more frequent the changes in caregivers the higher the likelihood of problems for the children like depression, eating disorders, anxiety, poor self-esteem and problems in relationships.
Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a matter which has much relevance.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
Ms O reported the following matters in relation to the mother.
The mother showed no evidence of a formal thought disorder. Her receptive and expressive language were limited, suggestive of concrete thinking and poor cognitive functioning. She had a limited understanding of the reasons leading to her present situation and the purpose of Ms O’s assessment.
At school the mother had a “slow learning disability” and struggled academically. Ms O said it seems likely that the mother has a learning disability and possibly a mild intellectual disability. She said that because of her cognitive limitations she has been vulnerable to the influences of others and finds it difficult to make her own independent decisions. Likely the mother has some maladaptive personality traits.
Ms O conducted psychometric testing of the mother. She said the mother’s profile was indicative of notable psychological and personality disturbance in several domains. She said the mother’s self-concept is generally stable and positive, viewing herself as a self-satisfied person with a clear sense of herself and her goals. She said that interpersonally, the mother is characterised as being distant and withdrawn, viewing social interactions with apprehension. She said that the mother reports a highly developed support system and a level of stress comparable to other adults. Ms O said that clinically, the mother reported being suspicious, having irrational fears, signs of depression and anxiety, stress, distrust, tension and poor interpersonal rapport. She said that the mother is quick to believe others are treating her unfairly and she will hold a grudge against others. As such, her relationships with others are likely to be strained and based on mistrust. She said that the mother denied problems with anger management and suicidal ideation.
Ms O said that such psychopathological symptoms and personality attributes were consistent with the mother’s presentation and self-reported history. She said that the mother’s indications on the testing suggest that a possible diagnosis of personality disorder could be made, with some paranoid traits but the mother’s history suggests high dependency needs and her diagnostic status is unlikely to be clear unless one worked with her over a reasonable period of time. Accordingly, Ms O regarded it as not appropriate to make a definitive diagnosis after only one meeting.
Ms O said that the mother was able to articulate a superficial understanding of the children’s needs and routines. But her level of insight and understanding regarding the complexities associated with parenting was found by Ms O to be limited.
She said that while the mother was able to identify some strategies to protect the children she did not appear to have any comprehensive safety plan in mind, or in practice. She said that perhaps due to her own cognitive limitations, the mother is reactive to situations as they unfold in practice and she cannot gain genuine insight into her children’s needs, practice safety behaviours, or perhaps manage her life appropriately. The mother seems particularly influenced by the father, so her ability to act as a protective ally for the children is therefore questionable.
Ms O said at interview the children generally looked healthy although they were slightly unclean and looked unkempt. She said the mother had some difficulty managing the children and that the end result was a somewhat chaotic environment over the observation period.
Ms O also said that she observed the mother to be attentive and engaged throughout the observation session. The mother was able to structure age-appropriate activities and was both patient and kind to the children. She spoke in an appropriate tone and manner and was attentive to the children’s physical needs such as food and toileting. The mother used eye contact, facial expressions and verbal praise to indicate her approval of the children. The mother was well able to engage in play but appeared to have considerable difficulty setting limits and boundaries on the children and following through with discipline. She was however able to distract the children and attend to their emotional needs.
Ms O’s impression overall was that the mother was a reasonably competent parent at play, who likely has some difficulty managing four children on her own.
Having said this, Ms O said during her cross-examination that there were two broad areas of concern about the mother’s parenting capacity. The first was considerable doubt that the mother could provide a satisfactory level of practical parenting. The second was whether the mother had sufficient cognitive and psychological capacity to adequately protect the children from danger. I shall refer to these matters in detail below.
In relation to the father Ms O said that his thought processes were logical and coherent in both form and content and therefore there was no evidence of formal thought disorder.
She also said that the father acknowledged that he was a “prick of a father” to his first three children and that this was a motivating factor to remain involved in his younger children’s lives. He said that he has learned from his mistakes and now wants the chance to parent his “girls”.
I note that at interview with Ms O the father described his son S as an “arsehole” and expressed considerable anger that S had not taken an interest in caring for his daughter SJ. I note also that the father’s son G is currently in prison and drug court. The father informed Ms O that G has had 15 charges including theft and stealing cars. Ms O said that the father did not appear to feel any responsibility associated with his sons’ current temperaments or engagement in criminal activity. Rather, she said that he was unable to reflect on any parenting deficits and appeared to blame negative peer influences. She also said that the father was unable to identify any particular strengths he had in parenting, nor any areas in need of improvement.
The father has a considerable criminal record reaching back to 1981. He has been convicted of the following:
·False pretences;
·Receiving (twice);
·Illegal use conveyance;
·Stealing (twice);
·Armed robbery (for which the father served 14 months of a four year sentence of imprisonment in 1985);
·Common assault (six months imprisonment served concurrently);
·Give false details;
·Unlicensed driver;
·Breach AVO (1995 and 2011);
·Stalk/intimidate (2006 and 2011);
·Further common assault;
·Assault occasioning actual bodily harm;
·Be in a restricted area of a station;
·Use offensive language;
·Custody of an offensive implement in a public place.
Ms O also said that the father acknowledged that he has been a compulsive gambler from the age of 15 years. He has made two attempts at rehabilitation. He said that he engages in gambling once or twice a week for recreational purposes only and believes that this is under control.
Ms O observed the father to be attentive and adequately engaged throughout the observation session. She said that he was able to structure age appropriate activities for the younger children and was able to soothe the child U. She said that he spoke reasonably kindly to the children but at times he was a bit coarse and rough. Ms O said that at times his behaviour towards M was inappropriate and he became forceful and terse in his approach to her. She said that he did not appear willing to give her space even after Ms O demanded that he back away and give her space. Ms O also said that she observed the father to have little control over the younger children’s behaviour and he was not able to contain them or set limits on their behaviour.
She said that she could make little comment about the father’s ability to meet the children’s physical needs. She said that overall the father appeared keen to interact with the children and he gave the impression of being engaged and attentive. However, she said there also appeared to be some element of show in this performance as the father was being continuously humorous and jocular, without setting rules or structure, or following through with commands. Ms O said that while the younger children appeared to enjoy their interaction with their father, M clearly did not and he was inappropriate in his continued attempts to engage her. In fact she said that he appeared quite threatening towards M by the end of the session.
Ms O said that the father’s potential to meet the children’s needs was negligible, based on her observation.
She also said that overall, the father appears to have little insight into his own behaviour and accepts little responsibility for any difficulties in his life. Rather, he has a victim mentality, blames others and is manipulative for his own gain.
Ms O said that while the father identified some superficial understanding of children’s basic needs, his history indicates that he has not demonstrated adequate parenting skills with his older children or the younger children. She said that he failed to take any responsibility for the current proceedings, either in relation to his own children or in relation to SJ. Rather, he blames the mother.
Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Relevant matters have been dealt with elsewhere in these Reasons.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
The father identifies as aboriginal although he has learned of this heritage only recently. The Department indicated that they would be able to put in place appropriate programs to enable the children to have opportunity to develop their aboriginal culture.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Relevant matters are referred to elsewhere in these Reasons.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
This is a matter where, in my view, the children have been exposed to family violence although the level and extent of this are somewhat unclear.
There have been many allegations of violence notified to the Department as referred to elsewhere in these Reasons.
At all times the father has denied that he has physically assaulted or abused the mother. But the following matters would appear to be inconsistent with his assertions in this regard.
The mother’s mother, Mrs NN, said that she had seen bruising on the mother between the years 2002 to 2011. She said that on occasions when she asked the mother how such bruising had been caused the mother would say that the father caused the bruising. Mrs NN also said that the mother also informed her that the father had pulled her hair.
The child M informed Ms O that her father was “violent” and that she used to hear him “yell” at her mother and that he punched her mother.
The child K informed Ms O that she recalled her parents fighting, that her father once hit her mother on the neck and threw a knife at her. K said that she used to be scared that her father would hurt her mother again.
The following other matters tend to point to the father as having been violent.
In 2009 or 2010 Mrs NN noticed bruising on the child M and M said that her father had hit her.
In February 2010 M informed Departmental officers that “dad always yells at mum”.
In early November 2011, after the father, Ms D and the child SJ had returned from Queensland, and the mother and children had been staying with her parents, the mother returned to the Suburb P home where the father, Ms D and SJ had continued to reside. There was an argument. The child M had also come into the home. The father suggested that because of the mother’s shortcomings M might have to be removed from her care by the Department. Upon hearing this, the child became very distressed and appeared to be hyperventilating. The mother said that the father hit M on her chest with his closed fist. The father denied this and said that M was having an asthma attack. The maternal grandmother said that M was screaming and was crawling from the house. She said that she saw a red mark on M’s chest. She also said that M said that her father had hit her and said he was going to get the Department to take the children. The father denied that he had hit M and said that she had sustained the red mark on her chest at school gymnastics. I prefer not to accept the father’s denial.
In April 2012, the mother described to the Department that the father’s behaviour towards her involved physical abuse, mental abuse and that he was very controlling. At that time the Department developed with the mother a safety plan under which the mother was not to permit the children to have any contact with their father (including telephone contact) and also required the mother to abide by conditions under the then current AVO. If the father was to breach the AVO, under the safety plan the mother was to notify the police and the Departmental case worker.
In February 2013 the child K informed Departmental officers that a bruise on her face came from her father hitting her. She said it happened when he was babysitting her on the weekend when her mother was in hospital having baby Z.
In August 2009 the father’s son G Jarrah was living with the parents and the children. G Jarrah had an argument with a woman on the footpath outside the parents’ home. A short time later a man called Mr KC arrived outside the home with a rifle. The mother rang the police. A short time later the mother looked out the window and saw the man holding a gun up to the father and his son G. The police arrived and arrested the gunman.
Records of the police and the Department include reports of threats of violence and physical harm to the child M by Ms D on 29 October 2012. An interim AVO was issued to protect M from Ms D. The child M informed Ms O that Ms D had hit her with a belt, threatened to throw her on a wall and to “put a beer bottle in me and put a guy’s willy on me” during a telephone conversation. The child K informed Ms O that Ms D used to hit her on the “bummy” and that she often cried. The father denied these allegations.
On 19 November 2012 the police responded to a domestic violence incident involving the mother and a Mr BG. The mother was involved in a sexual relationship with Mr BG at the time. It was recorded that Mr BG had punched the mother in the face in public and in front of the children. The mother failed to inform the Department about this incident.
The child M denied to Ms O that her mother smacks her. I would find this denial somewhat difficult to accept.
Sub-section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
On 15 July 2013 an interim AVO was made to protect the mother against the father.
Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As indicated above, the Department sought orders on an interim basis only, to enable the mother to have the benefit of further support services prior to the making of final orders. I do not propose to make interim orders for the reasons referred to below.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
There is no matter of relevance.
Primary Considerations
I return to consider s 60CC(2) of the Act and particularly s 60CC(2)(b). This is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Is There an Unacceptable Risk to the Children
The risk constituted by the mother
The family has been known to the Department since 24 October 2004 when the Department received a risk of harm report alleging that the parents were drug addicts and not properly feeding M.
This report was followed over the years to April 2012 by 49 further risk of harm reports. These reports alleged as follows:
·the mother slapped M in the back of her head;
·domestic violence between the parents;
·presence of a sexual offender resident in the home where the mother and M were living;
·physical violence to M by G Jarrah, her half brother;
·domestic violence between the parents;
·inappropriate behaviour and sexual innuendo by the father and G Jarrah towards M;
·alleged sexual abuse of M by a maternal family member;
·parents presenting M for medical examination for alleged sexual abuse;
·father alleged to be growing, selling and smoking marijuana;
·father presented M for medical examination by a general medical practitioner who could find no evidence of sexual assault;
·parents complained to police about sexual assault upon M;
·physical abuse of M by her maternal grandfather;
·sexual abuse of M by her father;
·father punching the mother in her chest in the presence of M;
·M’s cousin … put his finger in her vagina;
·drug and alcohol use by G Jarrah, then 13 years of age;
·G Jarrah threatening suicide;
·M’s grandparents’ foster child put his toe in her “whoopsie” and made her touch his “willy”;
·G Jarrah pushed M down the stairs;
·M witnessed two strangers threatening her father and G Jarrah with a gun;
·threats by a 14 year old boy to shoot the children and burn down the family home;
·sexual behaviour directed at M by a female child;
·M witnessing two older children from next door having sex;
·sexual abuse of M by her paternal grandfather and sexual penetration by a man residing in her paternal grandfather’s home;
·psychological mistreatment of M;
·neglect of the children and exposure to guns;
·physical abuse of M resulting in a broken arm;
·sexual abuse of SJ by S Jarrah and production of a gun;
·exposure of the children to domestic violence and controlling behaviours by their father;
·unhygienic and inadequate home;
·mother failed to provide medication to M following an asthma attack;
·M witnessing domestic violence and receiving a blow to her chest from her father;
·K witnessing her father and Ms D having sex
·physical abuse at the maternal grandparents’ home;
·M disclosed “Daddy tried to touch me down there, daddy was naked and tried to get on top of me”. “Daddy was naked and he tried to put his willy inside me” and
·despite the existence of an AVO to protect the mother and children from the father, the father had been in frequent contact with mother and children.
The risk constituted by the father
Ms O reported that the father described himself as a loner who does not have many friends. He claimed that he is the only person who supports himself and that his general medical practitioner doctor is of some support. Ms O said these comments are indicative of a person who is socially isolated and very likely has poor social skills.
She said that the father informed her that he had been sexually abused when he was 11 years of age for approximately five years and no one supported him, including his parents. He also indicated that he had been emotionally and physically abused by his parents. Ms O said that based on the father’s account of his treatment in his parent’s home it seems likely that he was unhappy and that he was traumatised by his parents and also by the ongoing sexual abuse. She said that it would be reasonable to assume that the father has struggled with his sense of self and self esteem throughout his life. She said that overall, the dynamics within the father’s family were dysfunctional.
Ms O conducted psychometric testing of the father. She said that the profile suggests a person with significant thinking and concentration problems, accompanied by prominent hostility, resentment and suspiciousness. She said that his sensitivity in social interactions serves as a formidable obstacle to the development of close relationships and thus he is likely to be withdrawn and isolated, feel estranged from and mistreated by those around him. She said that his judgment is likely to be poor and that he is likely to be chronically tense, and pessimistic about the future. He is likely to have poor social skills, lacks personal closeness and is likely to feel threatened by anyone offering a close relationship. She said these poor interpersonal attributes were consistent with the father’s presentation and self-reported history. She said that the father reported a number of dysfunctional personality traits, including a fear of abandonment and rejection. He disclosed being impulsive, taking risks and having a history of antisocial behaviour including theft, property destruction and physical aggression towards others.
Ms O expressed the opinion that likely diagnoses for the father are dysthymic disorder and possibly personality disorder not otherwise specified with borderline and antisocial features. But she said that it was not possible to make such a diagnosis after only one meeting.
Ms O said that the father estimated that he had had over 100 sexual partners, all women, except for the male perpetrator of his sexual abuse. She said that based on the father’s reports of his very frequent sexual encounters, his responses indicate that he is hypersexual and that during his adulthood he has been attracted to women much younger than himself. Somewhat surprisingly in my view, Ms O said that the father denied any interest in women who are much younger, post-pubescent or pre-pubescent and denied any sexual fantasies regarding pubescent girls.
Ms O said that the father identified a satisfactory understanding of consent and sexual boundaries and he did not endorse attitudes consistent with sexual abuse. He thought the reason for the age of consent being 16 years was because children are not old enough to become parents. She said that he was unable to identify any reasons that younger children would not be able to consent. Ms O said as follows at paragraph 96 :
Overall, [the father] reported a history of being the victim of sexual abuse during early adolescence, having his first sexual encounter at the age of 17 and engaging thereafter in frequent sex of up to 16 times per week. He claimed to have had over 100 partners and his sex drive seems notably high. Despite this, he denied masturbating at all in the past year and denied regular use of pornography to aid masturbation. [The father] claimed to be maximally attracted to peer-aged women and denied any attraction to young or very young women. Yet again this seems inconsistent with his experience in relationships, where his partners have sometimes been much younger than he. There are inconsistencies between his account and [the mother’s] account of libido, sexual deviancy and violence within sex. The poor internal consistency, as well as lack of support by [the mother], certainly highlights the possibility that [the father] has not been open or frank in the current interviews.
I note that the father informed Ms O that when he met the mother he was 38 years of age and she was 18 years of age. I note that the mother said they met when she was 15 years of age and in year 9 at high school. It is clear that they met in circumstances where she was a school friend of his son Y. Ms O said that the father claimed that their relationship “just developed” and that he “did not expect it to”. She said that when asked whether he considered this inappropriate, given the age gap and the mother being his son’s school friend, the father denied this and claimed that “love finds a way” and is often “unexpected”.
Ms O also said that the father denied domestic violence, and denied sexually assaulting the child M, Ms W or Ms P. He also denied at interview having a sexual relationship with Ms D.
In my view this is extremely worrying. It is now clear that the father is in a sexual relationship with Ms D and that he is the father of her younger child. It is likely that they have been in a sexual relationship since they went to Queensland in late 2011 at the latest and probably earlier than this. The father conceded that they shared a bed in Queensland. In my view it is much more probable than not that the father has sexually abused both Ms W and Ms P as I have said. This causes me great concern about the father’s denials that he has sexually abused M.
Ms O also said that the father informed her that he met his first sexual partner at the age of 17 years but four years later, when she decided unilaterally to terminate her pregnancy, he then found out that she was 13 years of age when they started their relationship. Ms O said, on reflection, the father did not consider this to be particularly problematic and claimed that her parents did not mind her being involved in a relationship at such a young age. She said that he stated that this young girl had been raped twice and this distressed him.
Ms O also said that the father said that when Ms D was pregnant he discovered that she had been having sex with both his sons S and G. He said that S and G were unaware that Ms D was only 15 years of age when they were having sex with her and the father blamed the mother for misleading them with regard to Ms D’s age.
I must say I have considerable difficulty accepting this. It is common ground that Ms D was only 14 years of age when she commenced living with the parents. From her first night spent in their home she slept with S Jarrah in his bed. He was 10 years her senior. Neither parent suggested Ms D should leave his bed. In my view, it is clear that Ms D had been sexually abused while in the care of the father and the mother and that they had not been able to protect her from the abuse.
In considering the likelihood of risk that the father might engage in sexually abusive behaviour, Ms O said in her report that the following matters would be protective against such a risk:
·the father does not have a history of substance abuse concerns;
·the father has had some experience of mature adult intimacy;
·the father’s recent partnership included sexual and physical intimacy;
·the father claimed that his sexual interests are generally appropriate, although this is inconsistent with the information provided by the mother; and
·the father did not endorse attitudes consistent with sexual abuse.
On the other hand, Ms O said that the following factors could be considered to elevate the father’s future risk of sexually abusive behaviour:
·he was a victim of child sexual or physical abuse and both his parents were emotionally abusive towards him;
·he is isolated socially. He has few friendships with a limited independent social routine. His social skills are likely to be poor and he is suspicious of others, mistrusting and hostile;
·his relationship with the mother commenced when she was an adolescent and she has cognitive limitations. Both of these raise concerns about whether the father has sufficient skills to have a relationship with a peer without such power differentials;
·his alleged sexual offending behaviour has included contact offences;
·his alleged sexual offending behaviour has included physical and psychological coercion;
·while he denied attraction to younger women, his last relationship was with the mother, who is some 20 years his junior and whom he met when she was 15 years of age;
·if he has been in a sexual relationship with Ms D, she is 34 years his junior and the power differentials are large;
·he has been in trouble with the law previously for armed robbery;
·it is unclear whether he has previously come to the attention of authorities for sexually inappropriate behaviour as he made reference to this;
·the mother alleged a history of domestic violence and possible anger management concerns;
·the father’s lifestyle, employment and accommodation have been intermittently unstable;
·it would appear that his sex drive is high for his age;
·he has obvious personality dysfunction, including manifesting in suicide ideation and self-harm; and
·his self-awareness is limited and he denied all allegations of sexual assault, violence within his sexual relationship with the mother, use of pornography, and he denied masturbation within the last year.
In her report Ms O said given the predominance of risk factors compared with protective factors, it is likely that the father is at least of moderate risk in regard to sexually abusive behaviour. She said that his lack of insight or preparedness to take responsibility with regard to inappropriate behaviour and boundary violations, is quite concerning.
In her report Ms O went on to observe that the allegations of sexual abuse by Ms W and Ms P could not be ignored nor could the possibility that the father might be in a sexual relationship with Ms D who at the time of her report was 16 years of age. She said that while the father denied almost all sexual deviance, minimised his use of pornography and masturbatory practices, such information was inconsistent with the mother’s account and his denial would appear unlikely to be accurate, given his high sex drive. She said that it would be unusual for a person who typically has sexual intercourse six times a day with his partner, to then not masturbate for 12 months in the absence of a sexual partner. She said that it would seem that the father was not frank in his account of his sexual practices with the mother, who provided quite a different account. In all the circumstances, Ms O reported that there appeared to be an appreciable risk of harm to the children in the event of the father having unsupervised contact with his female children.
Ms O’s concern in this regard became heightened by information which became available to her since preparing her report. This was the fact that, despite earlier denials by the father and Ms D, the father of Ms D’s new baby turned out to be Mr Jarrah. And it became clear that he was also the father of Z, the mother’s youngest child.
In cross-examination Ms O said it was of concern to her that the father appeared to have a predilection for young girls in relation to his sexual gratification. And she was concerned because the young women with whom he has had sexual relationships, or has sexually abused, were quite vulnerable. His first sexual partner was only 13. She said that the mother in these proceedings was vulnerable because of her age when their relationship commenced and because she had some cognitive limitations. Ms D was young and vulnerable being akin to a foster child. Ms O said that the vulnerabilities of the mother and Ms D might be to compensate for the father’s own difficulties in having relationships with women his own age in that she thought he lacked some social skills and perhaps the capacity to have a relationship with a woman of his own age. Ms O said that given the father’s predilection for vulnerable young girls, his past behaviours and his personality trait of controlling behaviour, the children would be at risk of possible sexual abuse in his unsupervised presence.
Conclusion
It is clear that the mother has shown herself unable to parent the children adequately without assistance provided by the Department. There are two broad areas of concern. Firstly, despite the very strong submissions otherwise by learned counsel for the mother, the evidence has not left the Court with the impression that the mother has a sufficient level of practical parenting skills to be able to attend properly to the needs of four children, let alone five now that the family also includes Z.
It is true that some of the evidence from the Department and others, as counsel has observed, does report a reasonable level of cleanliness of the home and tidiness of the children. But there is a much greater deal of material to indicate that the mother has struggled with the physical aspects of the care of the children. These include keeping a reasonably clean house, being able to provide reasonably clean bedding for the children, being able to attend to the washing of linen, having the energy and skill to provide nutritious meals for the children on an ongoing basis and always being able to supervise the children appropriately. On the contrary there was evidence of a serious cockroach infestation and the mother having failed to obtain quotes for eradication of this notwithstanding her being pressed to do so by the Departmental officers. As I have indicated, various reports described piles of laundry awaiting washing in the laundry, piles of unwashed dishes on the kitchen sink and benches, and food scraps on benches and the floor. Departmental officers described furniture piled up in one of the rooms in a manner in which the officers considered it to be a risk to the children. Even toilet paper with faeces on the bathroom floor.
With a view to endeavouring to address these shortcomings, the mother, to her credit, self-engaged with the Brighter Futures Program for assistance. After this service had been provided for a period, the view of the Departmental officers was that the mother required a higher regime of assistance. Accordingly, the Department then engaged the T Family Support Service. This is the highest level of supportive assistance and training available through the Department. It is not clear at this point whether the program has been of assistance to the mother in improving her mothercraft skills to a satisfactory level.
In addition to the mother’s lack of parenting skills, it is clear that she has not been able to achieve a proper level of school attendance for the relevant children. As indicated above, the F Primary School has classified M and K as habitually late students.
Secondly, as indicated above, Ms O expressed a concern about whether the mother has sufficient cognitive ability to be able to protect the children. The first area of this is whether she would be able sufficiently to resist the father’s suggestions given that she feels the need to acquiesce to him. The other area is whether she has the cognitive ability to be able to develop insight into situations which confront the children on an ongoing basis. For example, Ms O’ was concerned that the mother thought that the risk which the father constituted for the children was in terms of her fear that he might abduct them to Queensland, rather than they might be exposed to his unacceptable violent or sexually abusive behaviour, or that the children might be exposed to such risks in the presence of other persons, especially persons who might visit her home. As indicated above, Ms O thought a cognitive assessment of the mother might assist in informing the authorities about whether the mother would have the cognitive capacity to develop such insight.
As I have said above, it is very troubling that at a time when the mother had developed a safety plan with the Department which required her not to bring the children into contact with their father, it has now become clear that she conceived the parties’ youngest child, Z, with the father notwithstanding that safety plan having been in place.
Also troubling is the fact that on the weekend before resumption of the hearing on 7 August 2013 the mother took two of the children to the bowling alley where the father was playing bowls. Even if the mother’s account is correct, namely that S asked her to take his equipment to the bowling alley, in my view this demonstrates very poor insight on the part of the mother. One would have thought in the context of all the issues in these ongoing proceedings the mother ought to have had the insight to see that any involvement with one of the father’s sons could also involve a risk that the father would not be too far away from such a son. It was submitted on behalf of the mother that because the mother had become aware that the father’s bowling venues change regularly, the mother had every right to assume that the father would not be at that particular venue. I must say I cannot accept this. In my view, the mother’s poor judgment about this matter demonstrates her difficulty with lack of insight which was highlighted by Ms O. This reflects poorly on the mother’s cognitive ability and ultimately on her capacity to protect the children.
One can only have a great deal of sympathy for the mother in her position. A young mother who has found herself now to be the sole parent of five young children. It is tempting to provide the mother with a further opportunity to develop her parenting skills and to undertake the cognitive assessment which, as advised by Ms O, might be of assistance to her. As submitted above, this would involve making interim orders to enable these processes to take place and then bringing this case back for further hearing.
In my view, on the basis of the detailed material in the evidence, this Court could have little confidence, that if the mother was given more time and continuing supports, she would be able to improve her practical parenting skills to a level which would enable her to satisfy the reasonable needs of her five children. And in my view their needs will only increase with their development.
Would it be in the children’s interests to prolong proceedings for the purpose of enabling a cognitive assessment of the mother to be undertaken with the objective of ascertaining whether the mother might have the cognitive capacity to develop the necessary insight to be able to protect her children from danger?
In relation to the mother’s parenting deficiency in not being able to protect the children, it is clear from past experience that the mother lacks the insight to protect the children. She failed to protect Ms D from being sexually abused in the mother’s home by the father’s sons and possibly by the father. She failed to protect both Ms W and Ms P from being sexually abused in her home by the father. I cannot dismiss entirely, a fear which I also have that she might have failed to protect the child M from being sexually abused by the father.
The mother also failed to protect the children from their father coming to their home, indeed at her invitation, notwithstanding the fact that the Department had been at pains to develop with the mother a safety plan which precluded the father from being permitted to come into contact with the children.
One cannot dismiss the possibility that a cognitive assessment might indicate that the mother has the resources to improve in terms of her insight and capacity to be able to make decisions which are in the interests of the children. In my view, the possible utility of such an assessment must be weighed with the other matters relevant to the best interests of the children, including the inevitability of a further hearing and the continuing uncertainty for the children and the parents in the interim.
The ICL submitted that it would not be in the children’s interests for there to be further proceedings. It was submitted that there has been a long period of litigation between these parents. Proceedings were withdrawn by the mother in 2006 at a time when she had reconciled with the father. As was submitted by the ICL the parents have had a long period of opportunity in which to demonstrate that they have at least sufficient parenting capacity to be entrusted with the care of the children. In my view, neither of them has been able to do so.
Ms O has indicated that the mother has cognitive limitations. The mother herself described having learning difficulties when she was at school. Ms O said it seems likely that the mother has a learning disability and possibly a mild intellectual disability.
As indicated above, on the basis of the family violence and child abuse which regrettably has occurred in this family, it is clear that the presumption of equal shared parental responsibility does not apply.
In all the above circumstances, which involve a mother who does not have an adequate level of parenting skills or a sufficient cognitive ability and insight to enable her to protect the children, in my view, for the mother to continue to have the parental responsibility for the children and for them to live with her would expose the children to unacceptable risk. And in my view it would be inappropriate and impracticable for the mother to share parental responsibility with the Minister. I also accept that the father presents as an unacceptable risk to the children and I shall refer again to this below.
Accordingly, in my view, the interests of these children require that sole parental responsibility be ordered in favour of the Minister.
In arriving at this finding, I have also taken account of s 60CC(2)(a) of the Act, the benefit to the children of having a meaningful relationship with both their parents. The difficulty is that the desirability of this is well offset by the need in s 60CC(2)(b) to protect the children.
In my view, in a strict sense it is unnecessary for the Court to consider the arrangements for the children to have relationships with each of their parents. This is because responsibility for the parenting of the children will be placed with the Minister. However, learned counsel for the Director-General submitted that it would be helpful for the Court to provide some guidance about contact arrangements between the children and their parents.
I make the following observations in relation to the children and their father.
As indicated above, I have the view that it is more probable than not that the father sexually abused both Ms P and Ms W.
As was submitted both on behalf of the ICL and also by learned counsel for the Director-General, the father has a demonstrated predilection towards having sexual relationships with young persons. This was the case with his first sexual partner, then the mother in these proceedings, Ms D, Ms P and Ms W. Each of these persons was vulnerable, as indicated above. Not only has he demonstrated clearly that he has not been able to apply appropriate boundaries to his behaviour but it is more probable than not that some of the activity against these young persons would clearly constitute criminal behaviour.
As indicated, Ms O said that it would appear that the father has been unable to develop the social skills which would be required to support an ongoing relationship with his peers as distinct from such young persons.
In my view all this is particularly worrying. The father has shown by his behaviour towards all these young women in relation to whom he has been in a position of trust, that he has betrayed such trust. Furthermore, a characteristic of the father’s behaviour towards these women has been that he has been coercive and controlling.
In all these circumstances, and also in the light of the JIRT interview of the child M on 27 February 2012, I am very concerned about the risk which the father presents to the children and particularly to M.
I accept the correctness of the conclusion of JIRT on the material available to them about the allegation, including what M said in the interview, that the allegation had not been “substantiated”. But I infer that this would be on the basis of the criminal standard of proof of “beyond reasonable doubt”. If one was to apply a lesser standard of proof, in my view, what the child has said together with her demeanour in the interview are very worrying indeed. In my view, this becomes all the more worrying when one considers the predilection of the father for young females and the psychological profile of him as presented by Ms O.
In these circumstances, in my view, this Court could not possibly have confidence that if the father was placed in a position of trust in relation to his own children, which would be required for unsupervised time with them, he would not betray that trust by either physically or sexually abusing his children.
This has led me to the finding by this Court that for the children to be placed in the unsupervised care of their father would expose them to an unacceptable risk of abuse.
This then leaves for consideration, whether it would be in the interests of the children to spend time with their father.
Ms O expressed the view that it would not be helpful for these children to have regular supervised time with their father. She said that children’s predominant role models are their parents and they tend to copy the behaviour of their parents. In my view, the father is an inappropriate role model for the children.
Ms O also expressed the view that generally it is not in the interests of children to develop an idealised or fantasised impression of a parent. She said that if children do not have an understanding of their biological parents it can make it more difficult for them, particularly as they approach adolescence, to form a positive identity by understanding who they are biologically and the characteristics of each of their parents. For this reason she recommended that it would be in their best interests to spend short periods of supervised time with their father perhaps on four occasions each year.
In relation to the children spending time, and communicating, with their father, in my view, what Ms O proposes would be appropriate for the reasons she sets out. This would be supervised time for up to four occasions each year but M should not be required to attend unless she wishes to do so. But as I have said, this is all a matter for the Director-General.
The Director-General also proposes telephone communication between the father and the children on each child’s birthday, Christmas Day, Easter Sunday and Father’s Day. In my view, this would be in their interests.
So far as the children spending time with their mother is concerned, this was not addressed much during the hearing. This was because it appeared that the children might be placed by the Minister with their mother upon whatever conditions the Minister thought appropriate.
As I have said, the children have a close relationship with their mother. As I have also observed above, one would expect for the children to be separated from their mother would be likely to cause them distress. Ms O thought the difficulties, whatever they might be, would more likely be short term rather than long term.
The Director-General proposed that in the event that the children were not living with their mother there would be supervised time between the children and their mother arranged for up to six times each year with similar telephone communication to that between the children and their father.
I would think that such a proposal would be the minimum for these children. Given the fact that their mother has been their primary parent and the closeness of their relationship with their mother I would think that after a settling in period of perhaps a month or six weeks, the children should see their mother once per month or per six weeks, if the practical demands of this could be met. It would be on a supervised basis given the mother’s difficulties as referred to above.
In the event that the Director-General might require further guidance about this, in my view, Ms O would be in a good position to assist on the basis of her experience with the family.
Change of Name
The father has sought an order which would bring about a change to the child Z’s name. He proposes that her family name be changed from “Neason” to “Neason-Jarrah”.
I cannot recall this matter being properly ventilated in the proceedings. But the father has asked the Court to assist in this way and I propose to do so.
There is no issue that the parents of Z are the father and the mother. There is no issue that they are also the parents of the four siblings of Z.
I accept the father’s submission that it would be unfair to Z not to have the same family name as her siblings namely, “Neason-Jarrah”. I propose to make an order to this effect.
In the event that any party might wish me to reconsider this matter they can make contact with my Associate to re-list the proceedings in relation to this part of the proceedings.
I certify that the preceding three hundred and fifty-seven (357) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 10 April 2014.
Associate:
Date: 10 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Remedies
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Statutory Construction