JEFFS & MARSHALL (No.5)
[2020] FCCA 2893
•28 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFS & MARSHALL (No.5) | [2020] FCCA 2893 |
| Catchwords: FAMILY LAW – Parenting – competing allegations of unacceptable risk due to abuse, violence, drug use, mental health and neglect – lengthy child protection history – father seeks change of residence – father untested parent – relationship with the children – mother’s ability to facilitate a meaningful relationship between the father and children – assessment of long term risks to children if the children remain in the mother’s care and if they move to the father’s care – mother in breach of orders – complex trial history. |
| Legislation: Children, Youth and Families Act 2005 (Vic) s.162(d) Evidence Act 1995 (Cth) s.140 Family Law Act 1975 (Cth) ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 60CC(3)(b), 61DA, 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA, 65DAA(1), 65DAA(2), 65DAA(3), 69ZW, 91B |
| Cases cited: A & A (1998) FLC 92-800 |
| Applicant: | MS JEFFS |
| Respondent: | MR MARSHALL |
| File Number: | MLC 7616 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 7, 8, 19, 20, 21, 26 & 27 November 2018, 17 January 2019, 14, 15 & 16 October 2019 and 20, 21 & 22 January 2020 |
| Date of Last Submission: | 6 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | Cathleen Corridon and Associates until 15 March 2019. Wilkinson Romer and Associates Pty Ltd from 16 March 2019 until 9 November 2019. Romer Maud Family Lawyers from 10 November 2019. |
| Counsel for the Respondent: | Ms Healey |
| Solicitors for the Respondent: | CBD Family Lawyers until 22 July 2019. Batten Sacks from 23 July 2019. |
| Counsel for the Independent Children's Lawyer: | Ms Devine |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
All previous parenting orders in relation to the children X born in 2009 and Y born in 2013 (“the children”), with the exception of Order 4 of the Orders of Judge Jones dated 27 September 2016 appointing an Independent Children’s Lawyer, be discharged.
The father have sole parental responsibility for the children.
The children live with the father.
The children spend time with the mother as follows:
(a)commencing after three months from the date of these Orders, on the first Sunday in March, June, September and December of each year, for a period of up to four hours, to be supervised by a professional supervisor or supervised contact centre, at times and places as nominated by the supervisor in Victoria, at the sole expense of the mother; with the children B and C also able to attend this supervised time (if they elect to); and
(b)at other times as agreed between the parties in writing.
Commencing after three months from the date of these Orders, the children shall communicate with the mother by telephone, Skype, FaceTime, or by other electronic means:
(a)each Wednesday between 5:30 p.m. and 6:00 p.m.; or
(b)on such other day and time as agreed between the parties in writing,
with the mother to place the call, and the father to ensure that:
(c)the children have access to a fully charged telephone, tablet or computer;
(d)the children are available to take the call,
(e)the call is placed on loud speaker to enable the father to monitor the conversation; and
(f)the father shall terminate the call if the conversation is inappropriate.
Should the mother elect to relocate within 100km of the children’s home, the children shall spend the following additional time with the mother (such time will not occur within the first six months following the making of these Orders):
(a)every second Sunday, for a period of up to four hours to be supervised by a supervisor as agreed between the parties in writing, and failing agreement, the time shall be supervised by a professional supervisor or supervised contact centre in Victoria, at a time and place as nominated by the supervisor or contact centre at the mother’s sole expense.
(b)At such other times as may be agreed by the parties in writing.
Commencing after three months from the date of these Orders, the children shall communicate with B and C as follows:
(a)by telephone, Skype, FaceTime, or other electronic means on the first Saturday of each month between 5:30 p.m. and 6:00 p.m.; and/or
(b)at such other times as may be agreed between the parties in writing;
with the mother to place the call and ensure that the children are afforded privacy during the call, and with the father to ensure that:
(c)the children have access to a fully charged telephone, tablet or computer,
(d)the children are available to take the call;
(e)he is in substantial attendance during the call; and
(f)he terminates the call if the conversation becomes inappropriate or the mother and/or Mr D participate in the conversation.
If the parents are unable to agree upon a professional supervisor, then the father is to provide the mother, within seven days of any dispute as to the professional supervisor, with the names of three professional supervisory agencies, and the mother is to select one of those agencies to provide the supervision.
If a child is too ill to attend her scheduled time with the mother pursuant to these Orders, the father shall inform the mother by text message as soon as practicable, with make-up time to be provided as agreed between the parties in writing and failing agreement the father will nominate three alternate times and the mother shall chose one.
The mother be at liberty to send the children letters, gifts and cards by ordinary prepaid post to an address nominated by the father, with the father to read any letter or card prior to passing it on to the children.
The mother and father shall each inform the other of their contact phone numbers, email address and residential address, and provide the other parent with not less than seven days’ notice of any change thereto, in writing.
The father shall request that the paternal aunt, Ms E, be in substantial attendance for the first seven days that the children are living in his care.
The mother and father, their servants and/or agents, are hereby restrained by injunction from bringing the children (or either of them) into contact with Mr D.
The mother and father, their servants and/or agents, are hereby restrained by injunction from bringing the children (or either of them) into contact with Ms F, unless consent is obtained from the father in writing, and such time is supervised by a person nominated by the father in writing at least 48 hours prior to such time occurring.
The parties, their servants and/or agents, are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the children, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children, save to explain any changes in their living arrangements to them as a result of these Orders, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)exposing the children to family violence;
(d)allowing the children to read, have read to them, or otherwise access any part of the Court’s Reasons for Judgment in this matter or any document prepared for the purposes of these proceedings or tendered at trial.
The father shall authorise any child care, kindergarten, school or extra-curricular activity in which the children are enrolled to provide to the mother, at her expense, all information, notices, photographs, reports and like materials usually provided to parents.
The mother is hereby restrained by injunction from asking, persuading or otherwise influencing any third party, including her partner or any other member of her family, to do anything that she is prevented from doing pursuant to these Orders.
The father is at liberty to provide these Orders and Reasons for Judgment to:
(a)Victoria Police;
(b)Department of Health and Human Services, Victoria;
(c)Family and Community Services, New South Wales;
(d)Any Court hearing and family violence matter or criminal proceeding involving the parties;
(e)The children’s counsellors and doctors.
The father arrange the children to attend G Family Services or a similar service for family counselling in conjunction with Dr H, or another psychologist as nominated by the Independent Children’s Lawyer, under a mental health care plan to assist him in the care of the children.
The father do all acts and things and sign all documents necessary to link the children into these supports, utilising tele-counselling during the COVID –19 restrictions.
The father do all acts and things necessary to engage the children in play therapy and/or counselling, as arranged by the Independent Children’s Lawyer, in order to assist with:
(a)their transition into the father’s care;
(b)to assess and treat any trauma associated with allegations of sexual abuse; and
(c)to assess and treat any trauma associated with being exposed to significant family violence, abuse and neglect.
The Independent Children’s Lawyer and a family consultant at the Newcastle Registry are to explain these Orders to each of the children.
The Independent Children’s Lawyer be discharged 12 months from the date of these Orders.
The mother may initiate family dispute resolution prior to bringing any further proceedings to consider the establishment of other time arrangements between the children and herself upon:
(a)Serving the father with a report from an appropriately qualified clinical psychologist who has regularly and consistently treated the mother for a period of no less than 12 months to address:
(i)The mother’s attitude towards the father and understanding and accepting that the father has not perpetrated childhood sexual abuse on the children;
(ii)The mother’s attitude towards the father’s mental health issues and accepting that the father is not suffering from any active mental health issues;
(iii)The mother’s role in perpetrating emotional harm against the children;
(iv)The mother’s lack of insight into the impact of her behaviours and attitudes on the children;
(v)Co-operation with and progress towards the therapeutic goals of that therapy;
(b)Giving the clinical psychologist a copy of these Orders and Reasons for Judgment prior to the commencement of therapy.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7616 of 2016
| MS JEFFS |
Applicant
And
| MR MARSHALL |
Respondent
REASONS FOR JUDGMENT
TABLE OF CONTENTS
REASONS FOR JUDGMENT
Background
Procedural history
Delivery of these reasons
Issues in dispute
The mother’s case
The father’s case
The ICL’s position
Comments on the evidence
DHHS and FACS
Ms J
Ms K
Ms L
Family report
The mother’s interview
The father’s interview
Children’s observations and interview
Mr D
The maternal grandmother, Ms F
The father’s attempts to re-establish his relationship with the children
The mother withholding the children and failing to comply with court orders
The father’s mental health
Evidence of Dr M
Evidence of Dr N
The mother’s mental health
The mother’s physical health
Sexual abuse allegations
Allegations with respect to the father sexually abusing X and Y
Allegations with respect to C sexually abusing X
Allegations of inappropriate sexual behaviour by C and B
Allegation with respect to the father sexually assaulting the mother
Family violence
Family violence as between the mother and father
Intervention orders between the parties
Family violence perpetrated by Mr D
Family violence perpetrated against the children
Risks to the children in either parties’ care
Substance abuse
Lack of care and supervision
Y going missing in February 2018
Town O
Physical harm sustained from assault by Mr D
Failure to inform DHHS and other individuals about the children having contact with Mr D
Psychological harm to the children in either parties’ care
Emotional harm suffered by B and C
Mother’s failure to take steps to mitigate psychological harm to children
Educational harm to the children in the mother’s care
The parties’ addressing and failing to address the risk concerns
The paternal aunt, Ms E
Family consultant’s recommendations
Credibility and impressions of the parties and witnesses
The mother
The father
Mr D
The maternal grandmother
The paternal aunt
Submissions
Independent Children’s Lawyer’s submissions
Father’s submissions
Mother’s submissions
Applicable legal principles in parenting matters
Consideration of the primary considerations
Are the children at an unacceptable risk if they are placed in the father’s care?
Are the children at an unacceptable risk if they remain in the mother’s care?
Section 60CC(3) additional considerations
Parental Responsibility
Conclusion
This is a complex parenting matter between Ms Jeffs (“the mother”) and Mr Marshall (“the father”).
There are two children of the relationship, namely X born in 2009 (“X”) aged 10 and Y born in 2013 (“Y”) aged seven (“the children”). The children currently live with the mother and have spent minimal time with the father since the parties separated. At the time of writing, the father has not seen the children in over four years, apart from the brief observations facilitated by the family report writer in 2018, a visit with Y supervised by P Contact Centre (“P Contact Centre”) and a visit with both girls supervised by the paternal aunt in January 2019.
This case has a long and unfortunate history before this Court. The trial proceeded in an abnormal manner, spanning a total of 15 days, across approximately 18 months. The protracted nature of the proceedings is largely due to the mother’s failure to attend court, the numerous interim hearings required after the trial commenced and appeals by the mother to the Full Court of the Family Court of Australia during the part-heard final hearing. The mother’s serious leg injury has also added to the difficulties.
The length of the trial is indicative of the complexity and risks involved in this matter. For the reasons set out below, I find that it is in the best interests of X and Y to live with the father, for the father to have sole parental responsibility of the children and for the children to spend time with the mother on a supervised basis.
Background
The parties met in 2008 when the Father was living in Suburb Q and the mother was living in Suburb R. The mother has two older children namely, B born in 2004 (“B”) aged 16 and C born in 2006 (“C”) aged 14. The parties commenced a relationship and spent most days together, staying interchangeably at each other’s houses. The parties never formally lived together.
The mother says she fell pregnant shortly after the parties commenced their relationship. The first child of the relationship, X, was born in 2009 and Y was born in 2013.
There is a dispute with respect to the date of separation. The father says the parties were in a relationship until 2014, after the birth of their second child. The mother disputes this and says that the parties separated in 2010. Issues with respect to the date of separation bear no great significance to the issues I am required to determine.
It is not disputed that the relationship was characterised by domestic violence and heavy drug use. Both parties allege some form of domestic violence against the other and both have struggled with substance abuse.
In 2014 the Department of Health and Human Services (“DHHS”) issued protection application proceedings with respect to the children. The protection applications were filed by DHHS as a result of concerns about family violence, drug use and neglect of the children. Both the mother and father failed to co-operate with DHHS’s voluntary four week plan. X and Y were removed from the mother’s care several times. In 2015 the children were returned to the mother on the condition that she engage in drug and alcohol counselling and domestic violence counselling.
The father saw the children on numerous occasions whilst they were placed on the interim accommodation order. These visits were facilitated and supervised by DHHS.
In 2015 the children were once again removed from the mother’s care by DHHS. The children were removed following an incident of family violence where the mother’s current partner Mr D (“Mr D”) physically assaulted her and the children. The children were returned to her after six weeks when DHHS was satisfied that she had ended her relationship with Mr D.
Apart from the periods the children spent in care due to DHHS intervention, the children have lived in the primary care of the mother since the parties separated. In August 2016 the mother filed an initiating application in this Court seeking sole parental responsibility of the children and that the father’s time be reserved pending assessment.
When the mother commenced proceedings in August 2016 the father had not seen either child for over a year.
Procedural history
This matter has a long and somewhat complex procedural history. Whilst it is necessary to set out some of the procedural history in order to give context to these reasons, it is unnecessary to transverse all such occasions for the purpose of these reasons.
I have previously given four sets of reasons in this matter, Jeffs & Marshall [2018] FCCA 3185, Jeffs & Marshall (No.2) [2018] FCCA 3713, Jeffs & Marshall (No.3) [2019] FCCA 58, Jeffs & Marshall (No.4) [2019] FCCA 174.
The mother filed an initiating application on 12 August 2016 seeking that the children live with her and spend no time with the father.
The father filed a response on 21 September 2016 seeking time with the children at S House Contact Centre on six occasions and then a progression to day time visits. The father’s position has changed significantly during the course of the proceedings.
On 27 September 2016 Her Honour Judge Jones made interim orders for the parties to enrol with the T Contact Centre and made an order for a Child Inclusive Conference pursuant to s.11F of the Family Law Act 1975 (Cth) (“Family Law Act”). She appointed an Independent Children’s Lawyer (“ICL”) and made orders that the parties attend for a psychiatric assessment with Dr M. On 17 May 2017 I made orders adjourning the matter for an interim hearing and listed the matter for a four day final hearing commencing on 24 September 2018.
On 11 August 2017 the parties agreed to consent orders requiring them to enrol in the reunification program at G Family Services Suburb U, register at T Contact Centre, for the mother to provide school and/or day-care reports to the father’s solicitors with the addresses redacted and a restraint on the mother denigrating the father in front of the children. On that occasion the mother flagged a desire to relocate.
The father attended all the appointments made available to him at G Family Services. The mother did not engage.
On 7 September 2017 the mother filed an application in a case seeking permission to relocate to Town O in New South Wales (“NSW”) on an interim and final basis. The mother sought orders that the parties enrol in a reunification program within 90 kilometres of Town O and enrol at a contact centre. The mother sought to relocate straight away because she was due to have a major operation on her leg and needed family support to assist her with the care of the children during her recovery. The maternal grandmother was living in Town O at the time.
As the reunification process had not started at that time (and still has not) I made orders on 9 October 2017 permitting the mother to take the children to Town O once her operation was scheduled, for a period of up to 12 weeks after her operation.
On 19 February 2018 the mother’s Counsel indicated that the mother was about to have another operation and was living in Town V NSW where she has cousins.
On 21 June 2018 the father filed an application in a case seeking orders for the mother and children to return to Victoria and live within 50 kilometres of his home, for the children to be enrolled in a Victorian school, for the parties to enrol in W Family Supervision, for the father to have supervised time and for the parties to attend for a private family report.
On 28 June 2018 I made the following orders by consent:
1. That within 28 days, the mother make, file and serve an affidavit setting out the following:
a) The current day to day care arrangements for the children
b) The day to day care arrangements for the children while the mother is in hospital
c) The day to day care arrangements for the children upon the mother’s discharge from hospital
d) The children’s knowledge about their mother’s current circumstances.
2. That within 28 days, the mother provide a report from her surgeon and any other treating health professional including any psychologist, psychiatrist and GP as to the following (where relevant):
a) The outcome of any previous operation;
b) current prescribed medication and the purpose, dosage and duration required for that medication;
c) when the next operation is to occur and the purpose of that operation;
d) the recovery period expected;
e) prognosis;
f) whether the prescribed medication affects the mother’s capacity to properly parent the children;
g) expected outcome from any required operation.
NOTATION:
A. In the event the mother fails to comply with orders 1 & 2, the ICL may seek orders on 6 August 2018, for the mother to deliver the children to the child minding facility at the Melbourne Registry on 24 September 2018.
The mother failed to comply with Orders 1 and 2. The mother filed a response on 27 July 2018 seeking that the father’s application in a case be dismissed, that until further order, the mother and children be permitted to remain living in Town V and that the final hearing be adjourned for a minimum of six months. The mother’s failure to provide the information outlined in the above order is significant and has been an ongoing issue that did not assist the mother’s case. It appears from Exhibit E, being the NSW Department of Education records, that even at the time of the mother making the interim application seeking to remain in Town V she was in the process of moving to Town EE, as X was enrolled at QQ School (in Town RR near Town V) until 5 July 2018 and enrolled at Town EE Public School from 30 July 2018. Unfortunately as will be referred to in various parts of these reasons, the mother providing misinformation to the Court is not isolated. It is troubling that she would make that application when she was clearly in the process of a significant relocation away from Town V.
The father filed an amended application in a case on 31 July 2018 seeking a recovery order for the children.
On 7 August 2018 I made orders in summary:
a)adjourning the father’s application in a case to the final hearing;
b)ordering the parties to attend upon Ms Z for a private family report at the father’s expense;
c)orders pursuant to s.69ZW and s.91B of the Family Law Act directed to DHHS Victoria and the Department of Family and Community Services New South Wales (“FACS”); and
d)a request for the Children’s Court of Victoria file to be produced.
On 21 September 2018 the final hearing was due to begin. The mother did not attend. I ordered that the mother attend in person on 26 September 2018 and for the final hearing to commence on that occasion. I observe that the mother had not complied with the orders referred to at paragraphs 25 and 26.
On 26 September 2018 the final hearing was due to begin again. The mother again failed to attend on this occasion. I made the following orders:
a)vacating the final hearing and listing the matter for final hearing on 25 and 31 October, 1, 2, 7, 8 and 9 November 2018;
b)requiring the mother to attend in person for each day of the final hearing and if the mother seeks to be excused she must provide an affidavit by her treating specialist, and said specialist must be available to give evidence;
c)consent orders for the parties to engage the P Contact Centre for Children NSW supervised contact service and orders for the father to spend two supervised visits with the children with a report to be produced before the final hearing; and
d)a notation that the Court may order the children to be produced during the final hearing.
On 23 October 2018 consent orders were made in Chambers adjourning the matter to 31 October 2018. On 31 October 2018 the mother failed to attend again. I made orders refusing the mother’s application to give evidence by telephone or video link and gave brief reasons. I also ordered the mother to attend the final hearing in person on 7, 8 and 9 November 2018 and ordered that in the event she did not attend that leave be granted to the father and Independent Children’s Lawyer to proceed on an undefended basis. As I observed in those reasons, the medical evidence filed on the mother’s behalf did not support her application.
On 7 November 2018 the mother did not attend the hearing. I made orders striking out the mother’s initiating application as amended and granted leave to the Independent Children’s Lawyer and the father to proceed undefended.
The mother has been present for part of the trial. She has been represented by Counsel throughout the final hearing period who has cross-examined witnesses and made submissions on the mother’s instructions. Both the mother and the father were extensively cross-examined over several days.
The mother’s Counsel emphasised the surgeries the mother has had on her leg and the risk that her leg was to be amputated and very much sought to convey the impression that all of this is beyond her control and that the mother’s failure to comply with orders was due to the extenuating factors and not deliberate non-compliance on her part.
During the course of the trial the mother filed three appeals. The first two appeals did not proceed. Due to the nature of the appeals the trial did not resume until after the appeals were finalised.
The Full Family Court dismissed the mother’s appeal on 7 June 2019. The Full Court noted that the appellant indicated she intended to bring an application in a case to seek leave to reopen and have the matter heard on a defended basis. The appellant was expected to file the application within a few days of the order being made. The mother filed her application in a case to reopen the matter on 2 August 2019.
What was apparent and what has not been properly explained was that the mother filed medical evidence for the appeal that should have been obtained and filed in support of her application to adjourn the final hearing in 2018.
The matter was subsequently listed for a continuation of the final hearing on 14 October 2019 to proceed on a defended basis. I made orders for the parties to file and serve any further material they sought to rely on at the final hearing on or before 7 October 2019.
The trial continued on 14, 15 and 16 October 2019, and 20, 21 and 22 January 2020. The parties were then required to file written submissions, the last of which was filed on 6 April 2020.
Delivery of these reasons
At the end of the trial I told the parties that regardless of the outcome I would require the parties and the children to attend the Melbourne Registry for the delivery of these reasons as I wanted the orders explained to the children by a family consultant and the ICL.
Given the current restrictions in Melbourne due to COVID-19 this is impracticable. As a result, after liaising with Child Dispute Services I made orders in Chambers for the parties to bring the children to the Newcastle Registry. I directed the parties’ lawyers to attend via Microsoft Teams. This is not an ideal solution and involves significant travel and inconvenience for the parties and children but is the only way to ensure that the children and the parties have some supports to digest these reasons in what has been a challenging and difficult case for all involved.
There is no optimal outcome in this case. As I will explain in these reasons, after carefully considering all the evidence, I find that it is in the children’s best interests to place the children in their father’s care. I acknowledge that this will be distressing and traumatic in the short term for the children but I have to balance short term risks against long term risks to the children.
Issues in dispute
Broadly speaking, the three main issues that I must determine are as follows:
a)which party should have parental responsibility for the children;
b)with whom the children are to live; and
c)whether the children spend time and communicate with the other parent and under what circumstances.
The issues require me to assess the allegations of family violence, sexual abuse, emotional abuse and the risk to the children in both parties’ care. The ICL asks the Court to make a finding with respect to the sexual abuse allegations raised in this matter. These issues will be canvassed below.
The ICL prepared an extremely helpful case outline which outlines three possible outcomes with draft orders for each, being in summary:
a)In the event the father is an unacceptable risk to the children by reason of his mental health or allegations of sexual abuse, that the mother have sole parental responsibility, the children live with the mother and spend time with the father on six occasions each year supervised by P Contact Centre or such other nominated agency; or
b)In the event the court finds that the father is not an unacceptable risk to the children and that the mother is capable of providing for the emotional and intellectual needs of the children and that the mother’s attitudes towards the children and the responsibilities of parenthood include her willingness to facilitate the relationship between the children and their father; that parties have equal shared parental responsibility and the mother be permitted to relocate to NSW with the children and the children spend time with the father for 10 days in each of the school term holidays and three weeks during the Christmas school holidays; or
c)In the event the court finds that the father is not an unacceptable risk to the children and/or the mother is not capable of providing for the emotional and intellectual needs of the children and/or that the mother’s attitudes towards the children and the responsibilities of parenthood are not appropriate in all the circumstances, that the father have sole parental responsibility for the children that the children live with the father and spend time with the mother for 10 days during each of the school term holidays and for three weeks during the Christmas school holidays.
This well articulates the decisions the Court must make. By the end of the trial the ICL advocated for a fourth position of placing the children in the father’s care and the mother having professionally supervised time due to the mother being an unacceptable risk to the children, particularly with respect to emotional and psychological harm.
The mother’s case
The mother filed an initiating application on 12 August 2016 seeking sole parental responsibility of the children, for the children to live with her and to spend no time with the father.
When the mother saw the family report writer Ms Z (“Ms Z”) she told her that she proposed the father have supervised time, preferably in Sydney.
In her case outline the mother seeks that she and the children be permitted to remain living in NSW, that she have sole parental responsibility for the children, that the children live with her and that the father spend professionally supervised time with the children in Sydney on four occasions per year. She also seeks orders that she provide the father with a copy of the children’s school reports via post and that he be permitted to send the children letters, gifts and cards.
The mother changed her position significantly in her written submissions. She still seeks that she have sole parental responsibility for the children but with the father to be given the opportunity to provide input before she makes the decision. She also seeks that the children live with her and spend time with the father in Victoria and NSW supervised by the paternal aunt at her home when the time takes place in Victoria. This was not the mother’s position at trial and is contradictory to her evidence in chief and under cross-examination. I will discuss this further later in these reasons.
The mother relied on the following affidavits:
a)Affidavit of Ms F filed 25 July 2018;
b)Affidavit of Ms Jeffs filed 20 September 2018;
c)Affidavit of Ms Z filed 25 September 2018;
d)Affidavit of Dr AA filed 29 October 2018;
e)Affidavit of Ms Jeffs filed 30 October 2018;
f)Affidavit of Mr D filed 30 October 2018;
g)Affidavit of Dr BB filed 2 August 2019; and
h)Affidavit of Ms Jeffs filed 8 October 2019.
In her affidavit filed on 21 September 2018 the mother says that she was in a casual relationship with the father between 2008 and 2010. In this affidavit she states that DHHS do not currently hold any concerns for the children in her care and that DHHS advised her against allowing the children to have any contact with the father.
The mother alleges that both parties used cannabis and ICE during the relationship and that the father was abusive and controlling, however, as she was a victim of domestic violence she continued to return to him and subject herself and the children to the violence as she was unable to break the cycle. This is a common struggle. The mother says that the father has spent time in prison and in the CC Psychiatric Ward in Town DD.
The mother says that the father harassed her after separation by texting her numerous times a day, consistently requesting the police to conduct welfare checks on the children and making false reports to DHHS about the mother mistreating the children. The mother recounts an incident whereby the father removed X from her care during the night when she was approximately two and a half years old. She said that she and a friend found the father hiding in the neighbour’s bushes with X and she was able to corner him and grab X back. She says the father was punching her in the back. She says that after her and a friend called the police, he fled. She says that X is still traumatised from this incident.
In her affidavit filed 21 September 2018 the mother repeated her fears about the father and said that he exhibits sexualised behaviour in front of herself and the children by masturbating on the couch and also by requesting the mother to dress the children in inappropriate, sexualised clothes. She says that the father has assaulted her with a vacuum pole and also held her down and burnt her cheek with a cigarette. She says her mother also witnessed the father masturbating on the couch in front of the children on several occasions.
In her affidavit filed 21 September 2018 the mother admits that she has not been forthcoming to the Court about her relationship with Mr D.
The dates the mother refers to in her affidavit are obviously wrong. The mother fell off her horse on 31 March 2015 sustaining serious injuries to her leg. She has required multiple surgeries since then to save it. It is not disputed that the mother’s accident occurred before the assault which caused DHHS to remove the children from her care again. The assault by Mr D against the mother and children took place on 30 May 2015. The Children’s Court made orders on 17 June 2015 restraining Mr D from coming into contact with the children and restraining the mother, father and Mr D from committing physical or verbal violence against the children.
One of the difficulties in this case has been the inconsistencies with respect to various dates in the parties’ affidavits and oral evidence which has led to confusion at times by counsel in the transcript. This has required me to carefully study the exhibits to clarify these dates. It was clear that the parties and their supporting witnesses had difficulties recalling dates which is not unusual. However the inconsistencies in the mother’s and Mr D’s evidence in particular goes beyond a poor recall of dates as will be discussed in more detail later in these reasons.
The mother says Mr D is remorseful about the assault on the mother and children that led to the consequent intervention order (“IVO”) and DHHS removing the children from her care, but that he has made positive changes to his life.
In an updated affidavit filed 8 October 2019 the mother says that the children are living with her and Mr D and are doing well. She says they are settled in Town EE, NSW and are supported by a worker from FF Youth. She wishes to remain living in Town EE, NSW. She discloses that DHHS placed B in her care in December 2018 as he was not attending school and had drug and alcohol issues. He has been seeing a drug and alcohol counsellor.
The father’s case
When these proceedings began in 2016 the father initially sought orders that the parties have equal shared parental responsibility, that the children spend time with him at the S Contact Service for a period of six consecutive occasions and then for the children to spend time with him on weekends, school holidays and at other times as may be agreed between the parties. Appropriately, the father sought orders that provided for a gradual reintroduction to the children as he had not seen either of them for at least a year at that time.
As the proceedings progressed, the father became increasingly concerned about the mother’s ability to care for the children. The father filed an amended response on 17 September 2018 seeking sole parental responsibility for the children, that the children live with him and that the children spend time with the mother as the Court deems appropriate.
In his case outline the father seeks that he be granted sole parental responsibility for the children, that they live with him and that the children spend time and communicate with the mother as agreed upon in writing.
In his written submissions the father seeks orders for the children to live with him and for the mother to have supervised time. He seeks sole parental responsibility for the children. He largely adopts the orders sought by the ICL.
The father relied upon the following documents:
a)Affidavit of Mr Marshall filed 21 September 2016 – paragraphs 1-4, 6-8, 12, 15, 17 and 19.
b)Affidavit of Dr M filed 3 July 2017.
c)Affidavit of Dr M filed 4 August 2017;
d)Affidavit of Mr Marshall filed 31 July 2018;
e)Amended Response filed 17 September 2018;
f)Affidavit of Mr Marshall filed 17 September 2018;
g)Affidavit of Ms E filed 17 September 2018
h)Affidavit of Ms Z filed 25 September 2018;
i)Affidavit of Mr Marshall filed 30 October 2018;
j)Affidavit of Dr N filed 30 October 2018;
k)Affidavit of Ms HH filed 30 October 2018.
The father’s case is that the parties commenced a relationship in 2008 and finally separated in December 2014. The father disagrees with the mother’s case that the relationship ended in 2010.
The father says that whilst they never lived together full-time, they spent most days together and switched between staying overnight at his house and the mother’s house. He says he was significantly involved in the children’s care. He described himself as their main caregiver. He says he also assisted with the mother’s other children and said he often took all the children to his mother’s house on weekends for lunch.
In his affidavit filed on 21 September 2016 the father concedes that the parties’ relationship was characterised by domestic violence and drug use. He claims that the mother used methamphetamines. He says he never used methamphetamines but did occasionally smoke marijuana. The father significantly minimised his drug use during this period. His reference to only smoking marijuana occasionally is clearly an understatement given his concessions during cross-examination about suffering a drug-induced psychosis.
The father claims that the mother would assault him when she was taking drugs and when he refused to give her money for drugs. He says that he sometimes assaulted her in self-defence. The father also claims that the mother drank to excess on most days.
In the same affidavit the father responds to the mother’s allegations with respect to the father’s mental health issues and sexual abuse of the children. The father disputes suffering from schizophrenia though says he has spent some time in hospital for health issues largely because of the stress associated with ongoing proceedings and not being able to see his children. He also denies any form of sexualised behaviour towards the children. He says the mother only raised the sexual abuse allegations against him after he raised allegations that the mother’s older daughter C sexually abused X.
In his affidavit filed on 17 September 2018 the father says that the mother has failed to comply with orders and has refused to facilitate his relationship with the children. He is concerned about the mother’s ability to properly care for the children not only because of her physical incapacity but also her inability to provide for their emotional and intellectual needs given her history of significant drug use and neglect of the children.
In his further affidavit filed on 30 October 2018 the father says he is aware that the mother has frequently moved the children to remote areas in NSW and is in a relationship with Mr D despite his violent history against the mother and the children.
The father’s concerns were heightened during the proceedings by the mother’s ongoing non-compliance with court orders and failure to provide information about the children’s care, whereabouts, who they were residing with and the state of the mother’s own health.
The father says he is not a risk to the children. He denies ever abusing the children and raises the concern that the mother has influenced the children, particularly X, to believe that the father sexually abused her and that he is unsafe.
The father is also a carer for his brother who lives in community housing under a community treatment order. His brother lives alone and he sees the father most days. The father takes him shopping and keeps him company. A mental health worker visits his brother once a fortnight and he sees a specialist once a month and his GP. The father said his brother’s mental health worker calls him once a fortnight and he speaks to his case manager. He also helps his brother with his finances.
When the trial began the paternal grandmother was living at the JJ Aged Care Facility in Suburb KK. The father was her guardian, was her power of attorney and her main carer. He managed her financial and health decisions. At the time the father was cross-examined his mother was transitioning into a nursing home. He had his mother’s medical power of attorney and his mother had cancer. Sadly, she died during the course of the trial, never reconnecting with two of her grandchildren.
The father relies on the psychiatric assessment of him and the evidence of his psychiatrist, Dr N, to support his case. He submits that he does not currently have any mental health issues limiting his parenting capacity.
The father says he can provide the children with a stable home environment. He says the mother has not been either able or willing to do this over a number of years.
The ICL’s position
The ICL proffers that the father should have sole parental responsibility for the children, that the children live with him and spend time and communicate with the mother (commencing after a three month moratorium) on the first Sunday of March, June, September and December each year, with the time to be professionally supervised. If the mother returns to Victoria she could have more frequent supervised time. She also includes a detailed order setting out conditions she says the mother should meet before bringing further proceedings.
The ICL called the following witnesses to give evidence:
a)Ms Z, the family consultant;
b)Ms J, acting senior child protection practitioner at DHHS;
c)Dr M, psychiatrist at LL Clinic;
d)Ms K, manager case work at the FACS at Town MM;
e)Detective Senior Constable Ms NN, Suburb OO SOCIT;
f)Detective Senior Constable Ms PP, Suburb OO SOCIT; and
g)Ms L, child protection worker at FACS at Town MM.
Comments on the evidence
The amount of material in this matter is extremely voluminous. The parties relied upon multiple affidavits and affidavits of witnesses, evidence was given over 15 days, 45 exhibits were tendered and lengthy submissions were filed.
I have carefully considered the evidence and submissions. Due to the volume of material before the Court, I do not propose to address every piece of evidence and each submission made, however in reaching my decision I have considered all of the evidence and submissions.
In Vismay & Shaw [2014] FamCAFC 124 the Full Court of the Family Court stated at paragraph 45:
It is well accepted that a judge is not required to advert to every piece of evidence or every submission made in the course of the reasons per Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; U v U (2002) 211 CLR 238 at [80], per Gummow and Callinan JJ . The purpose of giving reasons for decision is to enable the parties to understand how the orders and decision were arrived at.
In the appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at paragraphs 28 and 29:
Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
DHHS and FACS
The responses and inaction from FACS have been truly disappointing throughout these proceedings. The failure of DHHS to follow through with the mother’s ongoing failure to comply with the Children’s Court orders is also of concern. The shortcomings and failures the Court must comment on is directed to systemic issues rather than the individuals involved. It highlights the barriers to information sharing and the difficulties that arise due to child protection laws being state based and family law being federally based.
I will discuss the evidence from DHHS and FACS at some length as whilst much of it is historical it informs the current risk concerns I must assess.
Ms J
Ms J, a DHHS worker, was involved with the family from 2015 to 2016 during the Children’s Court proceedings. Primarily her involvement was with the mother and the children. She only met the father in person on one occasion but had spoken to him on the phone.
Ms J confirmed that there was a case note on 30 October 2018 on her system that notes that the mother had since moved to NSW and that reports have been made to FACS, who have indicated that they would not be intervening in the proceedings. She said that based on those notes that there was no contact from FACS to DHHS.
Ms J was unaware of the specific services DHHS would make available to the father in Town DD in the event the children are ordered to live with him. She guessed that the services they could refer the father to would be around family parenting services, for example, intensive parenting services that offer 12 week intensive reunification programs. She said in conjunction with the reunification program, the children are worked with individually.
When asked why with all the issues that were still occurring (no psychologist appointments, no play therapy, no contact with the father), that the family preservation order (“FPO”) was allowed to lapse, Ms J said that there were not significant protective concerns that warranted ongoing child protection at that time. If that were the case then one wonders about the reason behind seeking those types of orders at all. It is clear from the number of court appearances (about 40 in total) in the Children’s Court and the reports prepared by DHHS that significant resources were devoted to this family that ceased once the risk was less acute. Of course this is to be seen in the context of limited resources and high demand. However, looking at this material from a distance it is hard to see how DHHS could have been satisfied that the protective concerns had been properly addressed.
Ms K
Ms K is a Manager Case Worker at the Town MM FACS office, who is involved in sorting and assessing matters that come in from the helpline. She was subpoenaed by the ICL to give evidence and was cross-examined on 27 November 2018. Town EE is within the Town MM child protection catchment area.
Ms K initially refused to answer questions as she was not comfortable continuing with the questions and wanted to obtain legal advice. It was pointed out to Ms K that she was subpoenaed to give evidence and that this would delay the trial. She proceeded with her evidence.
She answered questions from the ICL’s Counsel explaining the FACS process. The standard procedure is that an initial assessment is conducted by the helpline to determine whether reports should be forwarded to the local office. In this matter, the Town V office had previously had information referred to it, which is consistent with where the mother and children were first living in NSW. The FACS records, which are marked exhibit GG, note that there is an incomplete triage record at the Town V office. Ms K gave evidence that she would have had access to reports given to the Town V office that had occurred earlier in the year.
The records of the FACS helpline assessment dated 24 September 2018 refer to emails and attachments received which included the family report. It notes the concerns raised in the family report about the restrictions on the mother’s mobility and capacity to care for the children as a result of her injury and the requirement for several operations however, says that there was insufficient information that the mother’s capacity to care for the children was seriously compromised.
Of course, one of the great challenges and a source of enormous frustration in this matter is that the person who had all that information was the mother, but she was not forthcoming with information and worse, at times actively deceived the Court and others. The records also refer to the involvement of Mr D assisting in providing care and supervision for the children and that it appeared that he was willing to do so in the future. It refers to a history of violence perpetrated by Mr D against the mother in 2015 but again says there was insufficient information about that assault and that there were no records of any subsequent incidents of violence. Consequently the thresholds for risk were not met.
Ms K is part of the decision-making team in the Town MM office. She confirmed in her oral evidence that the reports regarding this family were assessed at a weekly case allocation meeting of the Town MM office and were assessed against the other reported cases that week being week 35 of 2018. She confirmed that at their meeting it was determined that there were other children at greater risk than the children in this matter. She could not recall how many cases were allocated to Town MM in that week. I certainly accept that all child protection departments have the challenge of needing to prioritise cases with limited resources.
Ms K conceded that despite numerous notifications, no investigation has been conducted in relation to X or Y.
Ms K was unable to recall if any contact had been made with DHHS in Victoria. She was asked if it would have been good practice to discuss the case with DHHS. What was clear from her answers is that she was not in the position of making the decision as to whether or not to take further action as that would have been a decision made by the manager(s) in the office. She was not able to say whether they had the other documents provided by the Court, including the documents from the Children’s Court proceedings and DHHS, or if they had been considered.
The ICL’s Counsel asked Ms K to check the records to clarify which documents they had available at the time of the weekly allocation meeting. She was able to confirm that the material they had were affidavits from the mother and father. She then said she misunderstood an earlier question and that they would not have read these documents, including the family report, as a group. She was unable to recall whether at the meeting they were aware that Y had gone missing overnight and that X had been to four different schools in NSW since 20 November 2017. In response to the ICL’s Counsel asking whether these pieces of information would have impacted their decision to investigate, Ms K said that they would have considered all the information.
It was very apparent that Ms K was in a difficult position as she was not one of the ultimate decision-makers in the office but she was the one being asked to explain why the FACS did not investigate and to clarify what information they did and did not consider. She said that the ultimate decision-maker at the Town MM office with respect to whether or not an investigation occurs is Mr SS. Mr SS was not called to give evidence.
I was left with a very unclear impression of exactly what documents FACS did and did not consider. It is clear that despite the considerable efforts of the Court and the ICL to bring the concerns to FACS’ attention and supply information, FACS did not consider much of that material:
ICL’s COUNSEL: Because ultimately at this point in time, as the independent children's lawyer, I have to tell you I'm extremely concerned about Family and Community Services' lack of investigation into this matter and I want you to comment on this particular point. There is a family report that was provided to the department [sic] which recommended that investigations be undertaken and they haven't. There is at least a six-year history of involvement of the mother and these children with the Department of Health and Human Services Victoria. The stepfather, who has been living with these children for, on any version of events, about three years, has pled guilty to a serious assault of the mother and the two children. The child Y went missing overnight in February 2018. The child X has been to four schools in New South Wales in the last 12 months. And the mother has a serious medical condition requiring multiple surgeries and time away from the home when the children are left in the care of people other than her, including her mother and her partner, who I previously referred to. In those circumstances, can you please explain to this court why there has been no investigation by the Department of Family and Community Services New South Wales?
MS K: So as I indicated earlier, the mother was assessed by a weekly allocation team and it's due to competing priority of no capacity to allocate.
ICL’S COUNSEL: So you're saying that due to circumstances beyond your control, the Department of Family and Community Services New South Wales has insufficient workers to allocate investigations into this family? Is that what you're saying?
MS K: I'm saying when we had this report, we did not have capacity at that time to allocate the matter for ongoing case work.
ICL’S COUNSEL: Given the information you have received right now, would you consider or is it appropriate for you to raise at your weekly meeting whether or not there should be an investigation into this family?
MS K: I would consider that appropriate to do a review.
ICL’S COUNSEL: But a review, of course, does not guarantee any investigation of this family, does it?
MS K: That's correct.
Throughout her oral evidence Ms K attempted to deflect any responsibility on FACS’ behalf as to the potential issues surrounding the mother. Her evidence is demonstrative of how little weight FACS placed on the significant risks to the children despite the significant efforts to bring these concerns to its attention.
Ms L
Ms L is a child protection worker with FACS. She was subpoenaed by the ICL to give evidence on 17 January 2019. It was very clear from her cross-examination that the only information she had been given prior to her assessment was a report dated 8 August 2018, which forms part of exhibit GG.
Ms L of FACS completed a risk report on the children on 3 January 2019, marked exhibit LL. Ms L was only required to conduct a safety assessment by visiting the mother on two occasions. During cross-examination, Ms L conceded that she only had the mother’s and Mr D’s version of events, had not contacted the father, and had only counted the number of reports made to DHHS but had not read the DHHS material.[1] It is difficult to see how she could have conducted a proper safety assessment in circumstances where despite my Chambers providing several of the DHHS documents to FACS[2], no one considered much of the material and no one contacted DHHS.
[1] Transcript 17 January 2019, page 15.
[2] FACS asked Chambers to stop sending further material. It is highly unusual for Chambers to take this action. One wonders what more could have been done to bring the serious concerns the Court had to its attention.
I must consider what orders will be the least detrimental to the girls, that is the “least worst” outcome. It is impossible to make orders that will achieve an optimal outcome for these girls. I acknowledge that there is a risk of emotional and psychological harm to the girls in removing them from their primary carer, as well as their siblings, and placing them with their father who they barely know and who is untested as a parent. There is a risk that this arrangement will not work. Almost certainly the girls will experience distress, grief and trauma in the short-term and maybe in the mid to longer term as well.
What makes this case so difficult is the fact that both options involve risk to the children’s emotional and psychological wellbeing. It is not about punishing the mother. It has been necessary to traverse the mother’s conduct because of its relevance to my assessment of the children’s best interests.
I also acknowledge that the father is an untested parent. I accept that the father has prepared as best he can for the children to come into his care but how he and the children cope once this occurs is an unknown. The father does have the support of his sister who has parenting experience, but the children do not know her either. This change also results in X and Y being separated from their older siblings and will require them to change schools, which for X in particular may be challenging.
What I have been impressed by with respect to the father is the fact that he has persisted in his quest to have a relationship with his children, out of concern for their welfare over a number of years in stressful circumstances. He has seen delay after delay in these proceedings and experienced a number of blockages in his way. He has seen the mother repeatedly fail to comply with orders which have contributed significantly not only to the delay but also the result that the children will be placed in his care without any transition or opportunity to build up his relationship with them. He has depleted his financial resources and grieved for his mother. Throughout all of this he has complied with Court orders, has attended every Court event and has maintained a quiet demeanour in Court even when distressing accusations have been made against him. He has not shown any sign of being mentally unwell.
The father has also demonstrated his willingness and pro-activeness in seeking out assistance and ways to show he is not a danger to the children and to improve his parenting skills, gain supports for his own distress and worry for the children and to prepare for the children coming into his care should he be successful in his application. The steps he has taken have been outlined previously. One of the orders the father seeks is that he take the children to family counselling with G Family Services in conjunction with Dr H or another psychologist nominated by the ICL. This shows an understanding of the importance of obtaining the right counselling interventions. The ICL will remain appointed for 12 months in order to provide this assistance. The ICL in this matter has shown an exemplary dedication to representing the children’s best interests and I was considerably assisted by both her thorough and careful preparation and her Counsel’s advocacy at trial.
I am satisfied that the children will be at an unacceptable risk if left in the mother’s care for the reasons I have outlined. The mother has not shown a willingness or capacity to comply with orders that would enable the children to be introduced to the father slowly. I have no confidence that the mother would comply with the orders she seeks in her submissions. Those orders are contrary to her evidence and I suspect that she only seeks those orders in a last attempt to avoid this outcome.
Having considered all the evidence in this matter, a careful consideration of the best interests of X and Y is for them to be able to have a relationship with their mother.
The mother’s time with the children must see the mother being professionally supervised.
It is then necessary to consider what orders should be made for the mother to spend time with the children. In order for the father and children to have the opportunity to build their relationship there must be an order that the mother and the maternal family do not come into contact with the children for a period of time.
Many Full Court authorities discuss the reasons why final orders for permitting only supervised time should be avoided where possible.[53] In this case it is not possible to make orders for the mother to have anything but professionally supervised time based on the evidence before me. The ICL’s Counsel has drafted a detailed order in her written submissions as follows:
[53] Moose & Moose (2008) FLC 93-375; TF & JF & Children’s Representative (2005) FLC 93-227; Slater & Wright (2013) 48 Fam LR 573; Gorman & Huffman [2016] FamCAFC 174.
250. The Mother may initiate Family Dispute Resolution prior to bringing any further proceedings to consider the establishment of other time arrangements between the children and herself upon:
a. Serving the Father with a report from an appropriately qualified clinical psychologist, as nominated by the Independent Children’s Lawyer, who has regularly and consistently treated the Mother for a period of no less than 24 months to address:
i. The Mother’s attitude towards the Father and understanding and accepting that the Father has not perpetrated childhood sexual abuse on the children;
ii. The Mother’s attitude towards the Father’s mental health issues and accepting that the Father is not suffering from any active mental health issues;
iii. The Mother’s role in perpetrating emotional harm against the children;
iv. The Mother’s lack of insight into the impact of her behaviours and attitudes on the children;
v. Her awareness of her attitudes and behaviours surrounding her lies and the impact of her lies upon other people including the Father and children;
vi. Her acceptance of the children’s living arrangements in the care of the Father;
vii. Her understanding of the reasons for the requirement of supervision of her time with the children;
viii. Consistent and current attendance at counselling; and
ix. Co-operation with and progress towards the therapeutic goals of that therapy;
b. Provided always that the clinical psychologist is served with and reads, prior to the commencement of therapy, a copy of these Orders and Reasons for Judgment.
Whilst that order provides considerable guidance about the issues the mother needs to address in order for there to be a consideration of different parenting orders which is very helpful, the proposed order goes too far. There is no evidence before me that a period of two years is required in order for counselling for the mother to successfully address the issues of concern. In reality it is unknown as to whether or not the mother will engage and that it will be successful. However, there should be a period of time before the mother can bring proceedings as it is not in the children’s interests for there to be continuous litigation. If the mother does bring a further application she will need to address the risk issues discussed in these Reasons.
I will make an order restraining Mr D coming into contact with the children.
I will also make orders facilitating electronic communication between the mother and the children which is to be supervised by the father.
I will also make orders to cater for the possibility of the mother relocating closer to where the children live.
It is apparent that the mother has had difficulties developing trust in her relationships with adults and with her own mother and she has had difficulties with alcohol and drugs. I also acknowledge that the mother has been significantly hampered by the serious injury to her leg. It is also clear that her physical health has significantly improved. The mother has suffered significant trauma. Her own experiences of sexual abuse may well inform her attitudes and beliefs about the father rather than that it being a deliberate campaign based on lies. As Ms Z stated, her recommendations are the same in either instance. I do not need to determine which it is, as in either case, the risk to the children has been established.
The risks to the children in the mother’s care are cumulative, having occurred over many years. The impact of the various traumas on the girls is unknown. It would be naive to think the girls will not be traumatised in the short-term. In the father’s care the girls will get the right type of counselling assistance they need to be given the best chance. It will be of enormous benefit to the family that the ICL is willing to remain involved in this case for 12 months, unfunded. The ICL has been diligent and thorough throughout these proceedings and she and her Counsel have been of considerable assistance in this drawn out complex case.
Nevertheless, X and Y have a right to be cared for and kept safe in both parents’ care. I have attempted to craft orders that will ensure that they retain that right into adulthood.
I certify that the preceding seven hundred and sixty-one (761) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 28 October 2020
[50] Transcript 8 November 2018, page 167.
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