Kavanagh & Kavanagh
[2023] FedCFamC1F 861
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kavanagh & Kavanagh [2023] FedCFamC1F 861
File number(s): NCC 2791 of 2018 Judgment of: SMITH J Date of judgment: 13 October 2023 Catchwords: FAMILY LAW - CHILDREN – Whether mother’s new partner presents a material risk of harm – whether mother’s presence ameliorates risk – whether risk unacceptable – new partner has extensive history of substance abuse and mental health issues associated with dysregulated behaviour, self-harm, family violence and criminality – in cross examination new partner admits to drinking more than nineteen drinks per day and poor mental health until six weeks prior to hearing – mother had not disclosed this - mother denies new partner presents any risk at all. Held: New partner presents risk of physical and psychological harm to children – mother’s presence does not ameliorate risk - risk unacceptable. By consent father to exercise sole parental responsibility with an obligation to consult, children to live with father, various standard restraints and orders to keep informed. Order: Pursuant to s68B mother restrained from allowing children any time, contact or communication with new partner – undertaking in same terms – mother’s unsupervised time conditional on ongoing compliance with injunction and undertaking – children’s time with mother as agreed between ICL and parties in event of a finding of unacceptable risk. Legislation: Evidence Act 1995 (Cth) ss 44, 140.
Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 60CG, 65AA 68B, 69ZT
Division: Division 1 First Instance Number of paragraphs: 210 Date of hearing: 7-10 August 2023 Place: Newcastle Counsel for the Applicant: Ms Hamilton Solicitor for the Applicant: Georgia Flynn Solicitor Counsel for the Respondent: Mr Teoh Solicitor for the Respondent: Lindeman Lawyers Solicitor Advocate for the Independent Children's Lawyer: Mr Squires Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 2791 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KAVANAGH
Applicant
AND: MS KAVANAGH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
BY CONSENT AND ON A FINAL BASIS IT IS ORDERED THAT:
1.All extant parenting orders be discharged.
PARENTAL RESPONSIBILITY
2.Mr Kavanagh born 1988 (“the Father”) shall have sole parental responsibility for the children X born 2013 and Y born 2015 (collectively referred to as “the children”).
3.For the purpose of exercising parental responsibility for the children, the Father shall consult with Ms Kavanagh born 1989 (“the Mother”) regarding decisions for the long‑term care, health, education, welfare and development of the child including, but not limited to:
(a)educational issues and schooling for the children, including decisions relating to schooling activities and the schools which the children shall attend; and
(b)medical issues and surgery, hospitalisation and medical treatment for any serious injury, illness, or condition.
4.For the purpose of Order 2 above, the Father shall consult with the Mother about decisions to be made as follows:
(a)The Father shall inform the Mother about the decision to be made;
(b)The Father shall make a genuine effort to consider any input made by the Mother and to reflect any views expressed by the Mother with respect to the determination to be made.
Children to live with father
5.The children shall live with the Father.
Telephone communication
6.The children shall have liberal telephone communication with the parent they are not living with/spending time with.
Restraints
7.That each parent is restrained from discussing the Court proceedings within the presence or hearing of the children and shall not allow any other person other than a Court Child Expert or the Independent Children’s Lawyer to do so.
8.That during the time the children are in the care of either parent, that parent shall:
(a)Not question the children about the personal life of the other parties; and
(b)Speak of the other party respectfully; and
(c)Will use their best endeavours not to expose the children to any other person denigrating or insulting the other party, either within the hearing or presence of the children or on social media platforms.
9.The parties are restrained from consuming illicit substances at any time that the children are in their care, or within 24 hours before the children come into their care.
10.The Father is restrained from encouraging the children to call his current partner, or any person other than the Mother, "mum" or "mummy".
11.The Mother and Father are each restrained from physically disciplining the children or either of them and shall do all things and acts necessary to ensure that no third party physically disciplines the children or either of them.
Exchange of information
12.The parties will keep each other informed of their telephone numbers, email addresses and residential addresses, and will notify each other within 24 hours of any change to those details.
13.Each party is required to notify the other within 24 hours of any of the following occurring:
(a)The attendance of the Police or Department of Communities and Justice at their residence;
(b)The interviewing of themselves, the children or any member of their household by the Police or Department of Communities and Justice;
(c)Any member of their household being arrested or charged with any offence;
(d)Having any child, including but not limited to the children, in their household removed by the Police or Department of Communities and Justice;
(e)Being named as the defendant or protected person in any ADVO or similar order for personal protection;
(f)Being admitted into a rehabilitation program; or
(g)They, or anyone in their household, being admitted into hospital as a result of a mental health or alcohol or drug related illness or injury.
Health and Education
14.That both parties be permitted to receive from any school, day-care, extra-curricular organisation, counselling or medical facility the children attend, any documents or information ordinarily provided to parents.
15.That both parties be permitted to attend any school, extra-curricular organisation or medical facility the children attend, for the purpose of any event, appointment or function ordinarily attended by parents.
16.That should the children suffer an injury or illness and require professional medical attention the party they are with will notify the other as soon as practicable, and provide them the details of the treating medical professionals.
Changeover
17.That changeover be facilitated as agreed between the parties and failing agreement at the children’s school when school is in session and by the parties or their nominees being known to the children meeting at McDonalds at D Shopping Centre, Town C.
ON A FINAL BASIS IT IS ORDERED THAT:
Restraint
18.Pursuant to 68B of the Family Law Act for the protection of X born 2013 and Y born 2015 (collectively referred to as “the children”) Ms Kavanagh born 1989 (“the Mother”) is restrained by injunction (“the injunction”) from:
(a)allowing or permitting the children, or either of them, to come into any form of contact, spend any time or to have any communication, with Mr B born 1989, including during telephone/video calls, and / or
(b)allowing or permitting the children to come within 300 metres of any home where she resides from time to time with Mr B.
Time with mother - conditional
19.As a condition precedent to being permitted to spend unsupervised time with the children the Mother shall enter into a written undertaking in the form attached to these Orders and file that undertaking with the Court (“the undertaking”). The undertaking is to be filed by 20 October 2023. Unsupervised time with the children on 21 October 2023, and thereafter, shall not take place until that undertaking is filed.
20.The children’s unsupervised time with, and communication with, the Mother pursuant to these Orders is conditional upon her ongoing compliance with the injunction in Order 18 and the undertaking in Order 19.
Time with Mother - if Mother complies with injunction and undertaking
21.Conditional upon the Mother’s compliance with the injunction in Order 18 and the Undertaking in Order 19, the children shall spend time with the Mother as agreed but failing agreement as follows:
(a)Commencing on 21 October 2023, each alternate weekend on both the Saturday and the Sunday from 9:00 am until 5:00 pm on each day.
22.The Father shall be at liberty to suspend the children’s time with the Mother pursuant to Order 21 (a) herein once each school holiday period in the event he wishes to travel outside the E Council area for the purpose of a holiday PROVIDED THAT:
(a)The Father gives the Mother at least fourteen days’ written notice of his intention to suspend her time with the children; and
(b)The Father gives the Mother a copy of the proposed itinerary and booking confirmations (if applicable).
Children’s birthdays - special occasion time
23.The children shall spend time with the parent they are not otherwise living with/spending time with on their respective birthdays as agreed and failing agreement between 4:00 pm and 6:00 pm.
Special occasion time with father
24.Notwithstanding any other Order herein, the children shall spend time with the Father on his birthday each year, as agreed and failing agreement between 4:00 pm and 6:00 pm.
25.Notwithstanding any other Order herein, the children shall spend time with the Father from 9:00 am until 5:00 pm on Father’s Day.
Special occasion time with mother
26.Notwithstanding any other Order herein, the children shall spend time with the Mother on her birthday, as agreed and failing agreement between 4:00 pm and 6:00 pm.
27.The children shall spend time with the Mother at Christmas as agreed and failing agreement as follows:
(a)In even years, the children shall spend time with the Mother from 9:00 am until 5:00pm on Christmas Eve;
(b)In odd years, the children shall spend time with Mother from 9:00 am until 5:00 pm on Christmas Day, however the mother may elect to spend Christmas Eve with the children in any odd year at her discretion so long as she gives the father 28 days written notice.
28.Notwithstanding any other Order herein, the children shall spend time with the Mother from 9:00 am until 5:00 pm Mother’s Day
Time with Mother - if Mother does not comply with injunction and undertaking
29.In the event the father forms the genuine belief that the Mother has breached the injunction in Order 18 the Father may give a written notice to the mother alleging that a breach or breaches have occurred (“the Notice”).
30.On the giving of the Notice all of the children’s unsupervised time and communication with the Mother pursuant to these Orders shall be suspended and the children shall only spend supervised time with the Mother in accordance with the following Orders.
31.On the giving of the notice the children shall spend supervised time with the Mother at F Counselling in Town C (“the Contact Centre”) at the first available opportunity, and thereafter at such regular times as the Centre can accommodate, but on not less than a fortnightly basis for a period of two (2) hours, unless unavailable, and for that purpose:
(a)within seven (7) days of the giving of the notice each parent shall do all acts and things and sign all documents reasonably necessary to undertake whatever reasonable intake procedures are required of them and thereafter adhere to the rules of the Contact Centre; and
(b)The parents shall share equally the costs of the Centre.
If mother disputes the alleged breach of the injunction and undertaking
32.If the Mother disputes the notice of breach of the injunction she may file an Application in a Proceeding to determine the alleged breach.
33.The children’s time with the mother shall be supervised at the Contact Centre until such time as the issue of the alleged breach of the injunction is determined.
Passport and International Travel
34.The Father, Mr Kavanagh born 1988, have sole parental responsibility in respect of the children, X born 2013, and Y born 2015, in respect of any application for a passport and in any travel outside the Commonwealth of Australia.
35.The Father be authorised to apply and forthwith obtain an Australian passport for the Children, X born 2013, and Y born 2015, so as to enable them to travel in and out of the Commonwealth of Australia.
36.The consent of the Mother, Ms Kavanagh born 1989, to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
37.The Father is to hold the Children’s passports.
38.Each Child and the Children be permitted to depart the Commonwealth of Australia with the Father.
Copy or orders to schools or medical providers
39.A copy of these Orders may be provided to any school a child or the children attend or to any medical service provider who treats either child and serves as an authority to provide information to either parent.
Copy to DCJ
40.A copy of these Orders and of the Reasons for Judgment are to be provided to the Department of Communities and Justice in relation to the Children and G.
Form of the Undertaking
I Ms Kavanagh Undertake to the Court not to allow or permit the children X born 2013 and Y born 2015, or either of them:
(a)to come into any form of contact, spend any time or to have any communication, with Mr B born 1989, including during telephone/video calls, or,
(b)to come within 300 metres of any home where I reside from time to time with Mr B.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kavanagh & Kavanagh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J:
INTRODUCTION
These proceedings concern the appropriate parenting orders for X born 2013 (aged 10) and Y born 2015 (aged almost 8) (“the children”) pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The children’s father is the applicant Mr Kavanagh (aged 34 years) and their mother the respondent Ms Kavanagh (aged 33 years). An Independent Children’s Lawyer (“ICL”) appeared to represent the children.
The parties started dating in their late teens. They married and commenced living together in 2009 when the mother was 19 and the father 20. X was born in 2013 and Y in 2015. The parties separated on a final basis on 16 May 2018. The mother alleges that the father engaged in family violence during the relationship and that this culminated in separation. The father denies he engaged in family violence and the alleged family violence events at separation.
Both parties re-partnered during 2018. The father commenced a relationship with Ms H (aged 36) at the end of 2018. They live together.
The mother re-partnered with Mr B (aged 34) in 2018. They commenced living together soon thereafter. The mother and Mr B have a child, G (aged 4). The mother, Mr B and G live together.
Mr B has a child from a previous relationship, J (aged 10). J spends time with them. J’s mother is Mr B’s former partner Ms K.
It is common ground that Mr B has a long history of poor mental health associated with substance abuse, self-harm, and convictions for criminal behaviour, including for family violence against Ms K.
While the mother and Mr B both deny any family violence within their relationship, their own evidence establishes family violence by Mr B against the mother within the definition of “family violence” in the Act.[1]
[1] See s 4AB of the Act.
The mother’s and Mr B’s evidence is to the effect that Mr B’s behaviours have changed since entering the relationship with the mother and he does not pose any risks of harm to the children. That factual contention was the central issue in contest in the proceeding.
At present, the children live with the father and spend time with the mother each alternate weekend from 10.00 am to 5.00 pm Saturday, and from 10.00 am to 5.00 pm Sunday.[2] They do not spend any overnight time with the mother as there is an injunction pursuant to s 68B of the Act prohibiting the mother from allowing the children to spend any time with, or to have any communication with, Mr B (“the s 68B injunction”). It is common ground that it is not practical for the children to spend overnight time with the mother so long as the s 68B injunction continues and she and G live with Mr B. A major question is whether the s 68B injunction should continue.
[2] Orders of 11 August 2021.
On the first day of the Trial, the parties and ICL agreed on a set of orders to resolve most issues.[3] These orders are intended to supersede all extant orders. They agreed the children should live with the father and that the father should exercise sole parental responsibility, subject to an obligation to consult with the mother.
[3] MFI 1 (Minute of consent order signed 7 August 2023). All of these orders were incorporated into the ICL’s final proposal (MFI 13) and are made by consent.
They also agreed: that the children should have liberal telephone communication with the parent they are not with; and, to certain standard restraints against discussion of proceedings with the children, questioning of the children, denigration of the other parent, and the use of illicit substances when the children are in their care; and, to certain standard orders around exchange of information and keeping each other informed of certain matters; and, that each parent should be able to receive information from schools or medical bodies; and that each parent should be able to attend school functions and medical appointments.
I indicated that I agreed with and would make those orders and the Trial proceeded on the outstanding issues only.
In closing oral submissions, the ICL also proposed a restraint on the father allowing the children to call anyone other than the mother “mum” or “mummy”, a restraint on physical discipline by either parent or any third party, and that changeovers be by agreement or otherwise through school or a local McDonalds. These proposals were all consented to by the parties.
I am satisfied that all these consent orders are in the best interests of the children and make those orders by consent.
THE MAIN ISSUES
The parties raised a variety of concerns about each other’s parenting capacities across the course of the proceedings. However, there were no submissions in closing that the children were at risk in the father’s care, nor in the mother’s care except due to the presence of Mr B.
The main issues for determination are: whether Mr B poses a material risk of physical and or psychological harm to the children; and, if so, whether the mother’s presence sufficiently ameliorates those risks; and, whether any risks as ameliorated are unacceptable; and, whether the s 68B injunction should be continued on a final basis.
The mother’s unshakeable evidence was that Mr B did not and does not pose any risk of harm, much less an unacceptable risk of harm, to the children.
The father and ICL submitted that Mr B poses a material risk of physical and or psychological harm to the children that would not be ameliorated by the mother’s presence, noting she denies Mr B presents any risk at all, and that the risks posed are unacceptable risks, and therefore, the s 68B injunction should continue on a final basis.
The alleged risks posed by Mr B include risks of psychological and physical harm by reason of exposure of the children to his demonstrated past behaviours, including acting in emotionally dysregulated and violent ways and committing acts of family violence and self-harm.
Historically, those behaviours are particularly associated with Mr B being affected by illicit drugs, by alcohol, or when suffering impaired mental health.
These risks were submitted to be current and ongoing given Mr B’s mental health and substance abuse impairments are not being treated. The submission was also founded on Mr B’s oral evidence that, although he no longer used illicit drugs, as recently as six weeks prior to the Trial he was consuming at least 19 alcoholic drinks a day. Mr B said he did not consider this an issue as he had significantly reduced, but not ceased, his alcohol consumption. Mr B showed no insight into why this level of recent alcohol abuse might pose risks to the children.
The mother’s Trial Affidavit was filed 15 August 2022. She gave oral evidence and was cross examined before Mr B. She gave evidence that she was aware of his substance abuse history. She said that Mr B no longer used illicit drugs. She did not address Mr B’s alcohol use. In her oral evidence, she maintained her position that Mr B did not pose any risk to the children. The omission of any reference to alcohol abuse, and the insistence that Mr B had posed and poses no risks to the children, goes to the mother’s credibility and the issue of her protective capacity.
The alleged risk also included the risk of physical abuse of the children. That submission was based on the incident in late 2019 in which Y injured himself, and X subsequently disclosed that Mr B had hurt Y.[4]
[4] Exhibit C. Note the disclosure was that “[Ms L]” hurt Y. The related allegation is that the mother and Mr B instructed the children to refer to Mr B as “[Ms L]” to hide ongoing breaches of the s 68B injunction.
The allegations made and the consequences that would flow from such findings are grave. If the s 68B injunction continues, it will significantly limit the children’s capacity to spend time with the mother. The applicable evidentiary standard is that in s 140(2) Evidence Act 1995 (Cth) (the “Evidence Act”).
The Court Child Expert’s[5] oral evidence, taken after Mr B’s evidence, was that Mr B posed an unacceptable risk of harm to the children and that the s 68B injunction should continue.
[5] The Court Child Expert Ms M.
For reasons set out below, I find that Mr B poses an unacceptable risk of both physical and psychological harm to the children, that the mother’s presence would not ameliorate those risks, that the risks are unacceptable, and that the children’s best interests require that the s 68B injunction continues. On that basis, the parties agreed that the current time with arrangements should continue, on condition that the mother continues to comply with the s 68B injunction.
RELEVANT HISTORY
After separation on 16 May 2018, the children lived with the mother. The father commenced these proceedings on 5 September 2018. On 20 November 2018, the Court made orders: for the children to live with the mother; and, to spend time with the father each Monday from 10.00 am to 4.30 pm, and each Friday from 4.30 pm to Saturday 4.30 pm; and, by consent, given Mr B’s criminal history, imposing on the mother a s 68B injunction that the “Mother be restrained from bringing the children into contact with [Mr B] in any form whatsoever”.[6]
[6] Orders of 20 November 2018, Order 6(a).
On 12 March 2020, following an interim hearing in the context of the events of late 2019 in which Y was injured, a Judge ordered the children live with the father and spend time with the mother each Sunday from 10.00 am to 5.00 pm, with that time to be supervised by the mother’s sister who was required to file an undertaking confirming that she would be present with the mother at all times and would not permit the children to come into contact with Mr B.
On 11 August 2021, the s 68B injunction was refined by further consent orders to state “…the mother is restrained by injunction from allowing or permitting the children to come into any form of contact or communication with her partner, [Mr B], including during telephone/video calls”.[7] The children’s time with the mother was ordered to be each alternate weekend from 10.00 am to 5.00 pm on Saturday and 10.00 am to 5.00 pm on Sunday. These orders continue. The father’s evidence was that he believed the s 68B injunction had been complied with after Y was injured.
[7] Orders of 11 August 2021, consent order 5.
The final hearing was held in person from 7 August 2023 to 10 August 2023. Both parties and the ICL were legally represented.
The Father provided a Court Book of 193 PDF pages (MFI 3). He relied upon or read:
(1)Amended Initiating Applicant filed 15 June 2022;
(2)Father’s Trial Affidavit filed 15 August 2022;
(3)Father’s Affidavit filed 15 November 2018;
(4)Affidavit of his partner, Ms H, filed 15 August 2022;
(5)Affidavit of the paternal grandmother, Ms N, filed 14 December 2022; and
(6)Case Outline filed 2 August 2023 (MFI 6).
The Respondent Mother provided a Court Book of 115 PDF pages (MFI 4). She relied upon or read:
(1)Amended Response to Initiating Application filed 24 June 2022;
(2)Mother’s Trial Affidavit filed 15 August 2022;
(3)Affidavit of her partner, Mr B, filed 29 June 2023;
(4)Affidavit of the maternal grandmother, Ms P, filed 25 September 2019; and
(5)Case outline filed 6 August 2023 (MFI 7).
The ICL provided:
(1)A Court Book part 1 of 219 PDF pages with copies of orders and the parties’ materials (MFI 8);
(2)A Court Book part 2 of 59 PDF pages (MFI 9) comprising of the Child Inclusive Memorandum dated 4 July 2019 (Ex ICL1) and the Family Report dated 12 November 2020 (Ex ICL2) prepared by Family Consultant Ms M;
(3)A Tender Bundle (MFI 10) from which various documents were tendered into evidence; and
(4)Case outline filed 4 August 2023 (MFI 11).
Various other documents were provided and tendered throughout the hearing. These will be referred to as necessary.
The father, the paternal grandmother, the mother, Mr B, the maternal grandmother, and the expert were required for cross examination. Ms H was not required for cross examination.
MR B
The father said he became concerned about the children’s welfare when he found out that the mother had moved out of her parents’ house and commenced a relationship with Mr B, who he learned had a history of substance abuse and criminality.
The potential risk Mr B posed to the children was identified as the father’s primary concern at the Child Inclusive Conference (“CIC”) conducted by the then Family Consultant, now Court Child Expert, Ms M (“the expert”) on 4 July 2019.[8] It remained a major issue throughout the proceedings. It was a focus of the Family Report dated 12 November 2020.[9] It was the major focus of this Trial.
[8] Exhibit ICL 1; The Child Inclusive Conference Memorandum.
[9] Exhibit ICL2; The Family Report.
Mental health, substance abuse and related issues
Mr B had a childhood impacted by trauma. Mr B told the expert he commenced abusing drugs and alcohol when he was 13 and stealing and engaging in criminal conduct while still an adolescent.[10] The expert noted a prior affidavit by Mr B filed 9 March 2020, not before me, which referred to a history of depression, anxiety and complex trauma for which he was receiving treatment in August 2019.[11]
[10] Ibid at [108]-[110].
[11] Ibid at [192],[194]-[197].
In his Trial Affidavit, Mr B acknowledged that he was convicted in 2013 for drug-related offences, sentenced to a term in prison and was on parole for a period. While on parole, he said he was tested for illicit substances and did not test positive. He also addressed the detection of cannabis in his body whilst driving in late 2021, but did not address the many other events identified in the Family Report.
Having reviewed the subpoenaed material, and after speaking with Mr B, the expert concluded that Mr B “tended to minimise his criminal history” and “lacked insight into the relationship between his substance abuse, mental health and criminal history”.[12]
[12] Ibid at [110].
Mr B told the expert that he had not engaged in any criminal conduct since he commenced his relationship with the mother, however, the expert noted various activities after mid-2018 which caused her concern about whether Mr B’s behaviours had in fact changed.[13]
[13] Ibid at [112] and [217].
In his Trial Affidavit, Mr B said that he “had previous issues with the use of [illicit substances]; this is no longer the case”.[14] Mr B did not specifically mention alcohol in his affidavit. He said that since May 2019 he had been working with “various organisations” to ensure that he remained free from addiction and to develop systems to manage stress.[15]
[14] Mr B’s Trial Affidavit at [7].
[15] Ibid at [13].
He identified Community Corrections, the Region Q Local Health Network, “a psychologist”, R Organisation, a general practitioner at S Medical Centre, and also at T Medical Service, and F Counselling as the organisations he had been, or was, engaged with.[16] He annexed documents “detailing the above”. Included in these documents was a mental health plan dated June 2023.
[16] Ibid at [13] and Annexure ‘A’.
Mr B referred to the charge of driving with an illicit substance present in his system (cannabis) in late 2021 as “a lapse in judgement on my behalf and I am disappointed in myself noting the work that I undertook in relation to drug use as set out above. I have remained abstinent since this relapse”.[17]
[17] Ibid at [18].
Mr B provided a letter, dated September 2019, from a family case worker from Brighter Futures (R Organisation) stating that Mr B and the mother “signed in to” the program in mid-2019 and were “engaged in” the program.[18] In cross examination, he said he had not completed the program as he was working. He included a Triple P online positive parenting program certificate. However, the certificate annexed to his Trial Affidavit was in the mother’s name. He said he was not sure if he had completed the Triple P course. He provided a letter, dated August 2021, from a facilitator at F Counselling stating that he had “attended” the “Respectful Man program” twice. He said he had attended one of the 10 face-to-face sessions in 2020. He said he attended three out of the 10 online sessions in 2021. He said in oral evidence he was not able to complete these courses as he was working.
[18] Ibid at [13] and Annexure ‘A’.
The Mental Health Plan, dated June 2023, was from Dr U, a GP. It referred to two “problem/diagnosis”.[19] The first was “depression” and the goal was to reduce symptoms using CBT and medication with a three-month review. The second was “ETOH dependence”. Mr B confirmed “ETOH” referred to alcohol. The goal in relation to alcohol was “reducing down” with medications with a one-month review. There was no evidence of Mr B attending the one‑month review. There was no other evidence of recent or current treatment for either mental health or substance use issues. I return to this elsewhere.
[19] Ibid at Annexure ‘B’.
Mr B was cross examined on his history as recorded in various police and Court records.[20]
[20] See Exhibit ICL8, NSW Criminal history – bail report as at May 2019, and as at October 2019, in MFI 10 at pp 5-12 and pp 61-71, and as at September 2021 in MFI 10 at pp 244-252, and various COPS events and fact sheets tended as part of Exhibit ICL8, and see also Exhibit ICL 4, COPS event late 2019.
In oral evidence, he agreed that he pleaded guilty and was convicted in 2007, at age 17, of offences including knowingly contravene a prohibition order and received a bond.[21] The prohibition order was for the protection of his former partner Ms K, J’s mother. In cross examination, he said that although he pleaded guilty, he had not breached the order. He said Ms K lied because she was engaged in substance abuse. He then said they were both involved in substance abuse, and they were both at fault. This evidence was not persuasive that Mr B did not breach the prohibition order to which offence he pleaded guilty. His unwillingness to accept responsibility was not consistent with his evidence that he has changed and now accepted responsibility for his past behaviours. I am satisfied and find he was minimising his responsibility for breaching an order for the protection of his former partner.
[21] Exhibit ICL8; MFI 10 at pg 6.
In oral evidence, Mr B agreed that in 2014 he had been convicted of drug-related offences and that he was incarcerated.[22] He agreed he was a drug addict at that time. He said he “only” supplied two people. He minimised culpability by saying he just “helped a friend out”.
[22] Ibid at pp 30, 62.
In 2014, Mr B was questioned by police in relation to an assault on Ms K.[23] In cross examination, Mr B was taken to the police “Fact Sheet” for the incident.[24] The Fact Sheet set out Ms K’s allegations that Mr B was a drug addict, and that after a dispute in which Mr B was smashing tiles and yelling abuse at Ms K, including yelling in her face and waving his arms while J was in Ms K’s arms:[25]
At this point the accused [Mr B] has grabbed victim [Ms K] throat with his right hand and started squeezing tightly. This caused the victim [Ms K] to instant feel pain as it immediately took her breath away. Accused [Mr B] has released his grip after a few seconds and victim [Ms K] has walked out of the bedroom and outside.
[23] Ibid at pp 27-29.
[24] Ibid at pp 75-77.
[25] Ibid at pg 76.
Mr B agreed these were the facts to which he plead guilty and for which he was sentenced.
In cross examination, Mr B agreed that he had an aggression issue at that time. He agreed he had violently hit a wall, and that he had told police he hit the wall so he wouldn’t hit Ms K. Mr B would not concede that at that time he could not control his emotions. He said he could control his emotions at that time. Mr B position was that hitting the wall in his former partner’s presence, rather than hitting his former partner, involved the exercise of self-control. Mr B did not demonstrate any insight into the impact striking a wall in anger might have on another person who was present when such behaviour occurred.
Mr B agreed that he pleaded guilty to the allegation of strangulation and was imprisoned.[26] However, he denied he had grabbed Ms K by the throat or tried to strangle her.
[26] Ibid at pg 8.
Later in his evidence, Mr B said that when charged with minor offences his attitude was to plead guilty to just get it out of the way. This was his explanation for denying the truth of allegations to which he pleaded guilty. I do not find that evidence persuasive. In any event, the allegation of strangulation was not a minor offence.
I give weight to the contemporaneous admission and conviction for attempted strangulation. I find that Mr B falsely denied his attempted strangulation of a prior domestic partner to minimise the extent of his prior family violence behaviours. That false denial was not consistent with, or persuasive of, Mr B’s evidence before me that whilst he formerly had problems he has changed and now recognises the problematic nature of his past behaviours and accepts responsibility for his conduct.
Mr B agreed that when angry during his relationship with the mother he would take his anger out on furniture and windows. However, he said he had not done that for about two and a half to three years. He conceded that prior to that time this behaviour was “frequent”. Mr B’s evidence made it clear that he did not consider this behaviour family violence as the mother was not struck. He did not appear to have given any thought to the impact of these behaviours on the mother, or anyone else present such as G, J, or the children.
Mr B agreed that he was convicted of a drug-related offence in 2016, [27] and of another offence in 2017.[28]
[27] Ibid at pg 24.
[28] Ibid at pg10.
In 2018, Mr B agreed he sent naked pictures of himself to a female. He said he pleaded not guilty to the charge as that complainant had asked him for the naked pictures.[29] He told the expert that “I was drunk, so I sent it”.[30] For present purposes, in the absence of a conviction or other evidence, I accept Mr B’s explanation. I take this into account as an example of Mr B’s behaviours when intoxicated.
[29] Ibid at pp 20, 72-74.
[30] Exhibit ICL2; The Family Report at [116].
Mr B also denied the far more serious allegation that in 2018 he had entered a neighbour’s premises, restrained her and then fled when she struggled and became free.[31] This was at the same time he was commencing his relationship with the mother. Mr B claimed he and the complainant in that matter were in a consensual sexual relationship. He also told the expert that the complainant and the woman he had texted naked pictures earlier in 2018 were friends and suggested they had tried to frame him.[32] There was no prosecution and no evidence and, therefore, no weight can be given to this alleged sexual assault.
[31] Exhibit ICL 8; MFI 10 at pp 21-22.
[32] Exhibit ICL2; The Family Report at [117].
Mr B agreed that he was caught with cannabis plants at his mother’s home in 2018 when police attended to execute an outstanding warrant.[33] He agreed that he was still using cannabis at that time.[34] He agreed that he was arrested for breach of bail.
[33] Exhibit ICL8; MFI 10 at pg 21.
[34] Ibid.
There was evidence before the Court of text messages from Mr B to the mother in late 2018. These indicated that he had deliberately cut himself. They included pictures showing, for example, bloody cuts.[35] The conversation between the mother and Mr B included text messages from her asking Mr B why he cut himself and Mr B stating “Fuck you idk no moor im done u think im joken” and the mother’s response “Where the fuck r u [Mr B] and wat did u cut it on this time i told u i will give u $20 u don’t listen too me this wouldnt of happened if u just took the money” (sic).[36] In cross examination, the mother’s evidence was that Mr B had sent pictures of this kind on about six to seven occasions. Mr B did not dispute that in his oral evidence.
[35] The Father’s Affidavit sworn 15 November 2018 at Annexure ‘G’, Annexure ‘K’ and Annexure ‘O’.
[36] Ibid at Annexure ‘O’.
This evidence was consistent with the mother’s statements to the expert at the Child Inclusive Conference (‘CIC’) on 4 July 2019 that she “denied any issues of family violence in her relationship with [Mr B], however, said that he continues to threaten to kill himself if she leaves the relationship”.[37] Neither the mother nor Mr B considered him cutting himself, sending the mother bloody pictures, and threatening suicide if she left him to be acts of family violence either at that time nor at Trial. That was consistent with Mr B’s oral evidence that self-harm and violent behaviours not specifically directed at others only affected him. The mother did concede to the expert at the CIC that this was not a healthy relationship dynamic.
[37] Exhibit ICL1; The Child Inclusive Conference Memorandum “under heading “[Mr B]” (sic).
Mr B was asked about an incident in early 2019 in which he allegedly had a fight with his brother in the presence of the mother and the children. Police attended on a call from a third party. The police recorded that the mother “did not want to speak with Police and was unwilling to give Police any further information”.[38] In cross examination, Mr B denied that this had occurred. This event was relied upon by the father as evidence of a breach of the injunction and the exposure of the children to family violence. Given the absence of other evidence, no weight can be given to this police incident report.
[38] Exhibit ICL8; MFI 10 at pg 41.
In early 2019, when in a relationship with the mother, Mr B met a woman who he let in his car. The police event record described this complainant’s history as asking Mr B to take her to buy an illicit drug, engaging in consensual sexual acts with Mr B, and the woman later alleging Mr B engaged in non-consensual sex while she was unconscious, before forcing her from the car.[39]
[39] Ibid at pp 17-18.
Mr B told the police he had met the complainant to help her get an illicit drug. The expert said that when asked about this incident, Mr B “confirmed that the incident occurred as he reported it to police”, in which he conceded a consensual sexual encounter and also that he was assisting the woman to access an illicit drug. He confirmed his understanding that the police issued an AVO for the woman's protection.[40]
[40] Exhibit ICL2; The Family Report at [115].
In cross examination, Mr B agreed to the consensual sexual relations and that he had taken the woman somewhere so she could try and buy an illicit drug. The behaviour in helping an addict search out a drug to purchase was not consistent with the picture Mr B sought to paint of himself from mid-2018, when he commenced his relationship with the mother, as a person no longer associated with illicit substances.
In mid-2019, there was an argument between Mr B and the mother in their car. The argument started in a public carpark and continued after they arrived outside Mr B’s mother’s house. Neighbours called police due to the noise, including the sound of smashing glass. Police attended and obtained video evidence of Mr B leaning against the car while the mother and the children were sitting inside.[41] Police recorded that Mr B “was sweating profusely whilst speaking with Police, pacing back and forth, yelling repeatedly and speaking rapidly. Police formed the opinion that the accused was under the influence of a drug”.[42] The mother was recorded to have “explained how the accused occasionally has violent outbursts such as this and could not be sure if he had taken any prohibited drugs”.[43] The mother told police that Mr B “accidentally punched” the windscreen and refused to provide a statement.[44] The police took out a provisional ADVO against Mr B for the protection of the mother.[45] This ADVO did not prohibit them from having contact or living together.
[41] Exhibit ICL8; MFI 10 pp 32, 49-60.
[42] Ibid at pp 32 and 51.
[43] Ibid.
[44] Ibid at pg 51.
[45] Ibid at pp 78-83.
Mr B admitted in cross examination that he had punched the front windscreen of the vehicle causing it to crack. Mr B and the mother both denied the children were present when he smashed the windscreen. The mother’s oral evidence was that the children were placed in the damaged car by the maternal grandmother only after Mr B smashed the windscreen, but before the police arrived, leading police to record the children in the car with her. As pointed out to her by me while she was giving oral evidence, the mother’s evidence on this issue included so many internal inconsistencies it was fanciful.
In cross examination, Mr B said that he was angry when he hit the windscreen. When taken to the police description of his presentation he denied he was taking illicit substances, but said he was not taking his medications. He said he had gone off his medications at that time but now realises he needs them. He said he had “a breakdown” out the front of his mother’s house. He said he was anxious and aggressive when off his medications but denied this was “towards” anyone else, and said it was directed only “towards myself”.
This was one of many occasions where Mr B made it clear in his oral evidence that he did not consider other people, such as the mother or the children, were negatively impacted by being exposed to his violent and dysregulated behaviours. That was consistent with his, and the mother’s, stated view that his self-harming, sending bloody pictures, and threatening to suicide if the mother left him was not family violence and Mr B’s evidence that his self-harm, hitting furniture, striking walls, yelling and similar behaviours only adversely affected him, so long as no-one else was physically struck.
Mr B’s evidence demonstrated a concerning lack of insight into the effects of his violent and emotionally dysregulated behaviours on others unless they were physically struck. The mother demonstrated the same concerning lack of insight.
I also note that it is clear from the police material that Mr B was still acting in an aggressive and agitated manner while the police were present, and the children and mother were in the car. Therefore, even on the mother’s and Mr B’s fanciful evidence, the children were placed with the mother when she was in the damaged car and Mr B was behaving as described by the police. Even on their evidence, the children were subjected to his aggressive and agitated behaviours and to the scene involving the police attending and dealing with Mr B.[46]
[46] Ibid at pp 50-51.
I am comfortably satisfied that both the mother and Mr B intentionally sought to mislead the Court as to the circumstances surrounding this event to avoid a finding of a breach of the injunction and a specific finding that the children had been subjected to this event of family violence by virtue of their exposure to Mr B’s breakdown and violent outburst, whether it was induced by substance abuse or as a result of his untreated mental health issues.
As noted, Mr B gave a history of abusing drugs and alcohol from age thirteen.[47] In cross examination, Mr B said that he had last used an illicit drug about four, five or six years earlier, which was before he met the mother. I note that he accepted he helped a woman try to obtain the drug, but maintained that he had not used the drug since knowing the mother.
[47] Exhibit ICL2; The Family Report at [110], [194].
Mr B said in cross examination that in late 2021 he had cannabis in his system when pulled over and tested by police when driving, but said it was an isolated “relapse”.
In respect of substance misuse treatment, Mr B said in his oral evidence that there should be some records of drug and alcohol counselling from his past. No such evidence is before the Court.
Mr B was then cross examined on his Mental Health Plan from Dr U GP dated June 2023, attached to his affidavit, and particularly the diagnosis of alcohol dependence and the goal of reducing it down.[48] That consultation took place approximately six weeks prior to Trial.
[48] Mr B’s Trial Affidavit at Annexure ‘B’.
Mr B said he sought help because whenever he drank it would “blur” his brain and he would not know what he was doing. He said he would start drinking in the morning “pretty much” as soon as he woke. He said he wanted to reduce his drinking because he got depressed, anxious, and had thoughts of self-harm when drinking. He said he would “drink to forget” as he was under a lot of stress and did not want to think about anything, including his past. When asked if he was aggressive when drinking, he said “not really aggressive, just aggressive towards myself”. This was another example of his evidence that his aggressive behaviours did not impact on anyone else.
In further cross examination he said he had always had some degree of alcohol dependency, but said it worsened in late 2021 after he ceased using cannabis when he returned a positive result whilst driving. He conceded that he effectively swapped alcohol for cannabis after the positive roadside police test while driving. That was not consistent with his evidence that the detected use in late 2021 was a one-off lapse.
Mr B was asked how much he was drinking prior to seeking help from Dr U in June 2023. Mr B volunteered he was drinking nineteen drinks, “if not more”, every day. He said he had reduced that to two drinks a night, because he was told going cold turkey would be bad for him. He said he then reduced his consumption again. He conceded, when pressed, that he still drinks alcohol. He said it is now only one or two drinks per week.
Mr B did not accept that he would have posed any risks to the children when drinking 19 drinks per day. Mr B denied he had an alcohol dependency, because he was now on medication and had, in the previous six weeks, substantially reduced his drinking. He said he had not gone to rehabilitation since seeing Dr U as he did not consider that he needed to, as evidenced by his success in reducing his drinking prior to Trial. He said he had spoken with people about seeking help but had not seen anyone because of the impact of these proceedings. However, because of the stress of these proceedings, he said he was considering seeking further assistance.
Mr B appeared very proud that he had managed to reduce his usage of alcohol from 19 plus drinks a day down to one or two per week in the six-week period prior to trial. It was clear he had no insight into why that level of alcohol usage, and his own descriptions of his capacity and behaviours when drinking, meant that he would, or might in future, pose a risk to the children when drinking at that level. He clearly had no insight into why there was concern being expressed that he was drinking at that level up until six weeks prior to Trial given his recent reduction and stated that he did not understand why he was not being given “credit” for the progress he has made, for example, for no longer using illicit drugs.
As I indicated to Mr B during that evidence, while he should be given credit for the work he has done to improve his life and address his issues, the case is not about rewarding or punishing either of the parents or him, but about determining and prioritising the best interests of the children.
The mother must have been aware of Mr B drinking as described by Mr B. She did not mention it in her affidavit nor when giving oral evidence about his behaviours.
Y’s injury
A substantial portion of the Trial dealt with the Y’s injury in late 2019, which was relevant to a number of different issues including:
(i)Whether the mother was breaching the injunction up to that date in late 2019; and
(ii)Whether the mother, and Mr B, instructed the children to refer to Mr B as “Ms L” to hide the breaches of the injunction; and
(iii)Whether Mr B was present when Y was injured; and if so,
(iv)Whether Mr B actions caused or contributed to Y getting injured; and if so,
(v)Whether Mr B intentionally harmed Y.
Did the mother breach the injunction
The injunction was made by consent on 20 November 2018. The father’s evidence was that prior to November 2018 the children frequently referred to “Mr B” but stopped mentioning “Mr B” from November 2018 and then then started to regularly mention “Ms L”. The father said that:[49]
53. On one occasion, I said to [X] “Is mum’s friend [Ms L] a girl or a boy?”
[X] responded “A boy”.
[X] had previously told me that [Ms L] was big and tall “taller than you daddy”.
I said: “Does he have another name, [Mr B]?”
[X] responded “You can’t say [Mr B]. You have to say [Ms L], or you will go to gaol”.
(Emphasis in Original)
[49] The Father’s Trial Affidavit at [52]-[53].
The paternal grandmother gave evidence that after November 2018 “the children kept on talking about a person named ‘[Ms L]’, who was apparently with their mother all the time” and said “you will get in big trouble and go to gaol if you say [Mr B]”.[50]
[50] The Paternal Grandmother’s Affidavit at [9].
At the CIC the father told the expert he believed the mother was breaching the injunction and having the children refer to Mr B as “Ms L” to hide their contact with him. The mother denied this, but said the children had regular contact with J who the mother “looks after sometimes”.[51]
[51] Exhibit ICL1; The Child Inclusive Conference Memorandum at pg 2.
The mother and Mr B’s evidence was that the children had not been instructed to call Mr B “Ms L”, and that the children had not spent time with Mr B since the injunction was ordered.[52]
[52] Mr B’s Affidavit at [8] and [12].
The injury
Y was injured in late 2019, just after the mother and Mr B had moved into a new house.
On the following day, the mother and maternal grandmother took Y to see Dr V GP. Dr V treated Y’s injury.
The mother’s history was recorded by Dr V as:[53]
running around house yesterday, playing with brother fell […], from standing height, immediate pain […], no concern of injury elsewhere, no loss of consiciousness (sic), upset for next hour, swelling++ […] since, protecting [injured area] since, […]....
[53] Exhibit ICL8; MFI 10 pg 270.
That contemporaneous history was consistent with the mother’s evidence at Trial.
The mother and Mr B’s evidence was that Mr B was not present and had not pushed Y down the stairs or done anything to cause Y’s injury.[54]
[54] Mr B’s Affidavit at [11].
The maternal grandmother’s evidence[55] was that she was with the mother and the children on the afternoon and evening of the incident and that between 5.00 pm–5.30 pm she heard Y cry out. She followed the mother to see the children. Y said he had hurt himself. She said that Y and X had been “mucking around” running around the lounge. Y settled and she left at approximately 6.00 pm–6.30 pm.[56] She said Mr B was not present when she was there.[57] She said that she would not protect Mr B if he had hurt either of the children. She said she was concerned the children had been told to make up the allegation by the father.[58]
[55] The Maternal Grandmother’s Affidavit filed 25 September 2019.
[56] Ibid at [3]-[6].
[57] Ibid at [9].
[58] Ibid at [19].
The maternal grandmother, whose evidence was to the effect that she would know if Mr B posed a risk, also did not mention that until 6 weeks prior to Trial he was consuming alcohol to the extent disclosed and acting in the ways he described. It is not clear whether she did not, in fact, have sufficient contact with Mr B to actually know whether or not he posed a risk, or if she too was concealing the issue. Either way, it raises issues of credibility with her evidence.
The children’s statements to the father and paternal grandmother
The paternal grandmother said that when she collected the children a few days later Y was visibly injured. The mother told her there had been an accident but did not explain how it occurred. The paternal grandmother took the children to see the father at the business which the paternal grandmother owned and where the father worked.
The paternal grandmother said as she was taking the children home, she asked Y what happened and Y said “I will tell you the truth nanny. I am not allowed to tell daddy, but I will tell you. [Ms L] hurt [Y]”. She said X had told her that “[h]e grabbed his arm and leg and threw him on the lounge, he hurt his nose too”.[59] I note that this first disclosure is not the same as the later disclosure of Y being pushed down the stairs.
[59] The Paternal Grandmother’s Affidavit at [10]-[13].
Hospital records
The father took the children to W Hospital that same day.[60] The father says he advised the medical practitioner of his concerns that Mr B may have hurt Y.[61]
[60] The Father’s Trial Affidavit at [64]-[65].
[61] Ibid at [67].
The hospital notes state the mechanism of injury was unclear “however these types of [injuries] in children are usually seen when they fall […]”. There were no other injuries identified.[62] The injury mechanism is consistent with Y falling as he ran around as described by the mother.
[62] Exhibit ICL8; MFI 10 at pg 300.
The hospital notes included various statements such as “[Y] stated “[Ms L] pushed me down the stairs””.[63] However, the source of information was often unstated and unclear. Those notes were created after the father had expressed that concern to the hospital staff. Further, Y may have been unintentionally led by medical practitioners to confirm something they had been told by the father. For example, under the type written heading “Presenting History from Child or Young Person when relevant” the handwritten record states: “[Ms L] pushed me down the stairs” when asked is this how you hurt [yourself], [Y] nods his head in agreement”.[64]
[63] Ibid at pg 281.
[64] Ibid at pg 285.
There is, however, an entry under “General Notes” recording:[65]
O/E During my examination [Y] stated to me: “I was thrown down the steep stairs by [Ms L]. [Ms L] has also the name [Mr B]”. He then shwed (sic) me with his hand how steep the angle of the stairway was.
[65] Ibid at pg 322.
This was a direct disclosure. However, it referred to Y being thrown down the stairs. That was inconsistent with X’s earlier disclosure to the paternal grandmother that Y was thrown onto a lounge, which was the disclosure that started the inquiries.
Police interviews
The police were notified because of the disclosures at the hospital. Both children, the mother, the father, and the paternal grandmother were interviewed by police. The police also conducted further enquiries, including of the mother’s and Mr B’s neighbours.
The ERISP transcripts were tendered for all these interviews. The audio-visual record was tendered for each child` and was watched by me. There is one element of the X’s recording which relevantly differs from the transcript as raised by the ICL in submissions, as noted below.
X was interviewed by police in late 2019.[66] In the context of being asked if he knew what the truth was, he said “you might go to gaol”,[67] and when asked why you might go to gaol X said “you might say a swear word” and continued “[a]nd my mum say swear word, and my dad say swear word … [o]h, no, not my, not, [Ms L] ..... say swear word”.[68] When asked what happened to Y he said “and he fell over, and, and, and … and then, and [Ms L] hurt him”[69] and “he’s hurt [Y] in the new house”.[70] When asked “[a]nd who’s [Ms L]?” he said “…we have to call him [Ms L]”, and when asked why he said “you’re not allowed to call him that” and said that “mum” told him he had to “call him [Ms L]”.[71] He was asked if Ms L was a boy, which was leading but not inappropriate in the context of X’s repeated use of the pronoun “him” to refer to “[Ms L]”. X said “yeah, and he’s a boy”.[72] When asked his real name X said “his name is [Ms L], and he’s a boy” and said he saw “[Ms L]” and “his daughter” because Ms L “sleeps in my house a lot” and “he sleep at our house a lot…and he’s not … allowed”.[73]
[66] Exhibit C; MFI 10 at pg 91.
[67] Ibid at pg 96.
[68] Ibid at pp 96-97.
[69] Ibid at pg 103.
[70] Ibid.
[71] Ibid.
[72] Ibid at pp 103-104.
[73] Ibid at pp 104.
On listening to the recording, I accept, as submitted by the ICL and the father, that at about 10.30 am X refers to “[Ms L]” and “[J] his daughter”, rather than just “[Ms L]” and “his daughter” as recorded in the ERISP transcript.
I find that X’s statement to police makes it clear that Ms L was the name used by X to refer to Mr B. However, X also first said that Y “fell over”, which is consistent with the mother’s evidence. He said “and then [Ms L] hurt him”, suggesting he was referring to something which occurred after the fall. There was no reference to Y being thrown onto a lounge as allegedly reported to the paternal grandmother.
Y was also interviewed by police but disclosed nothing.[74]
[74] Exhibit D; MFI10 at pg 109.
The mother’s interview did not disclose any relevant inconsistencies in her evidence.
The father’s interview merely repeated other statements.
The paternal grandmother was also interviewed by police on the same day.[75] She was asked whether she had any conversations with the children.[76] Her interview answers were very confused. In her interview she told police that X told her that he was not allowed to tell the father the truth but that “[Mr B], [Mr B], hurt um [Y’s] arm and his nose”.[77] The paternal grandmother was cross examined on her interview, and in particular on the question and her answer as it is recorded at Q/A:69 of her ERISP.[78] Part of her answer stated:
… And um, and I said, well what happened? Didn't you have any, and he's just like um, just like oh, like they're trying to, we were runnin' around and, and then um, and then, then he said, [X] was, [X], [X] um, what'd he say? I was trying to blame [X] somehow and then [X’s] really burst into tears and broken his heart, he's like, I did not, you're lying [Y], I did not, uh, and so he's really upset so I just stopped and drove. …
[75] Exhibit F; MFI10 at pg 163.
[76] Ibid at pg 173.
[77] Ibid at pg 174.
[78] Ibid at pg 173.
The paternal grandmother was cross examined to whether she intended to convey that Y had said he was injured when running around, as the mother alleged, and that Y had blamed X, but that this upset X, and because of that Y had then blamed Mr B instead? She was not able to shed any light upon what had been said to her or what she had meant to convey in her interview answer. The paternal grandmother’s police interview does not assist.
The neighbours
Mr B and the mother were cross examined on two witness statements taken by police when investigating the incident. These were from her neighbour Mr Z[79] (68) and his son Mr AA (44).[80] Mr B and the mother accepted these were their neighbours. The neighbours were not called nor made available for cross examination.[81]
[79] Exhibit ICL8; MFI10 at pg 223.
[80] Exhibit ICL8.
[81] Note s 44 Evidence Act 1995 (Cth) did not apply by reason of s 69ZT of the Act. This material was admitted subject to weight in that context.
Mr Z identified the mother as his neighbour and said that around 7 pm on the day of the incident he opened the door to the mother. She said to him she had locked herself out. She asked if her partner could go through the back. The man who was with her went through the house to the back.[82]
[82] Exhibit ICL8, MFI10 at pp 224-225.
Mr AA said he often stayed at his father’s house. Around 7.00 pm–7.30 pm on that day his father answered the door, and he heard a woman ask if her partner could come through as she had locked herself out. He saw a male go through the house. Around a week later, he had a conversation with that same man who agreed he was “Mr B”. They had a conversation in which he mentioned he had been there when Mr B had walked through.
The mother and Mr B denied in oral evidence he was present on the eventing of the incident or that Mr B went through the neighbouring residence that evening.
Although the neighbours’ evidence was not able to be tested, there is no reason suggested why these neighbours would have lied to police about an innocuous event of granting the mother and Mr B access through their house so they could gain access at the back. Weighing all of the material, I accept these statements as establishing that Mr B was at, and entered, the house he shares with the mother through the neighbours’ backyard at around 7.00 pm–7.30 pm on the day of the incident. That was an evening on which the children were with the mother pursuant to the Orders.
Other evidence of breach of the injunction
The father’s evidence was that in early 2019 police spoke with his brother about someone getting into the boot of the mother’s car around one week prior. The inference was that Mr B was hiding in the mother’s car to obtain access to the home where the children were residing without being seen.[83] The police material raises questions about what occurred, but in the absence of further evidence no weight can be given to this alleged incident.
[83] The Father’s Trial Affidavit at [47]; Exhibit ICL 8; MFI 10 pp 14-16.
Summary and conclusion – injunction and injury
I accept the father’s and paternal grandmother’s evidence that there were ongoing references to “Ms L” by the children after the injunction was introduced. X’s statements to police about Ms L confirm that he was referring to Mr B as Ms L. I find that the mother and Mr B instructed the children to refer to Mr B as “Ms L”. I find that this was to attempt to hide breaches of the injunction as that is the only rational explanation for giving the children that instruction.
I find that the mother was breaching the injunction between November 2018 and the date of Y’s injury, as evidenced by the need to instruct the children to refer to Mr B as Ms L and the events of mid-2019 when I find the children were in the car when Mr B smashed the windscreen and witnessed his violent and dysregulated behaviours.
The expert raised the impact of the children’s psychological wellbeing of exposure to parental denigration and age-inappropriate information about the dispute.[84] Being required to lie to the father by calling Mr B “Ms L” is an example of the children being subjected to inappropriate stresses and involved in the dispute.
[84] Exhibit ICL1; The Child Inclusive Conference Memorandum at pg 1.
The mother’s decision to breach the injunction and expose the children to Mr B is evidence of the mother’s failure to appreciate the risks Mr B posed, and her prioritising or Mr B’s needs above those of the children.
The father gave evidence that the children stopped referring to “Ms L” after Y was injured and the investigation commenced. It was common ground in closing submissions that the mother had not regularly breached the injunction after Y was injured. All parties’ submissions proceeded on the basis that the mother would, probably, comply with the s 68B injunction in future.
The fact that the mother was breaching the injunction is evidence that Mr B might have been present when Y was injured. However, it is not evidence that he was, nor that he caused the injury, intentionally or otherwise.
Given that the injury was consistent with a fall while running, which is a common childhood event and injury, the inconsistent versions of events involving being Y either thrown onto a lounge or pushed down stairs, X’s statement to police that Y fell over and then Ms L (Mr B) hurt Y, the possibility that Y blamed Mr B rather than blaming X because X was upset when blamed, and the relevant evidentiary standard under s140(2) of the Evidence Act, I do not consider the evidence establishes that Mr B caused Y’s injury. Accordingly, I give this incident no weight in considering the issue of risks posed by Mr B.
The expert
In the Family Report the expert considered the risk issues associated with Mr B mental health and substance abuse issue separately to the incident with Y. The expert said:[85]
217. If the Court cannot determine that [Mr B] caused the injury, there would still appear to be sufficient concerns in this matter to suggest that [Mr B] poses an unacceptable risk to the children. The family consultant appreciates that [Mr B] has had a traumatic upbringing and wants his life to take a better path. However, the notion that [Mr B’s] association with drugs, crime and violence is far behind him is completely inconsistent with the collateral material. It is the view of the family consultant that the [Mr B] currently poses an unacceptable risk to the children, and that the injunction prohibiting his contact with the children must remain; irrespective of whether he is found to have caused the injury to [Y].
[85] Exhibit ICL 2; The Family Report at [217].
The expert gave oral evidence. She was informed of Mr B’s evidence, and in particular his evidence regarding drinking and the absence of treatment for substance use or his mental health. The expert was asked to provide an opinion on the risks Mr B might pose assuming there was no finding that Mr B injured Y.
The expert highlighted her concern that as recently as six weeks earlier, Mr B was engaged in significant alcohol abuse and describing significant mental health concerns and aggression towards himself. She said that his recent reduction, but not cessation, in drinking was not something she would place any weight on given his long history of substance abuse, particularly in the absence of any formal long-term rehabilitation to address the underlying causes of his substance abuse and dependency. She said that a long-term formal rehabilitation program would be required with evidence of extended recovery, together with a detailed relapse program, before she would consider his substance abuse issues adequately addressed.
The expert also expressed concern about Mr B’s evidence of associated poor mental health in the absence of any recent, current, or planned future treatment.
The expert maintained her opinion, expressed in her report, that Mr B “lacked insight into the relationship between his substance abuse, mental health and criminal history”.[86]
[86] Ibid at [110].
The expert expressed the opinion that Mr B poses a material and unacceptable risk of physical and psychological harm to the children as a consequence of his untreated substance abuse, mental health problems, and demonstrated dysregulated behaviours, including aggression towards himself which he did not believe impacted on anyone else.
THE MOTHER
Child Inclusive conference
At the child inclusive conference in July 2019, the mother acknowledged Mr B had a history of cannabis and other drug abuse, a criminal history for drug-related offences and for breach of bail for which he received custodial sentences. She denied any knowledge of a history of violence. She conceded Mr B had a history of mental health issues and had previously self‑harmed when she tried to end the relationship. She said Mr B had made positive changes. She said he did not pose any risk to herself or the children. She denied any family violence against herself “however, said that he continues to threaten to kill himself if she leaves the relationship. She acknowledged that this is an unhealthy dynamic”.[87] She was pregnant, “extremely distressed” when identifying her very difficult position, was medicated and seeking support and expressed significant concerns about her mental health if the proceedings did not go her way.
[87] Exhibit ICL 1; Child Inclusive Memorandum at pg 2.
The mother’s failure to recognise Mr B sending her bloody pictures of his acts of self-harm and threats of suicide if she left the relationship as involving a form of manipulative coercive family violence at that time is consistent with her ongoing position that Mr B actions do not pose a risk to anyone but himself and of her prioritising Mr B’s needs over her own and the children’s needs.
Family Report
The expert said the mother presented at the interviews on 7 October 2020 as “somewhat vulnerable”. The expert expressed the opinion that the mother “may experience a lack of confidence, learned helplessness, and exhibits a dependent relational style, likely influenced by how she was parented and the unhealthy nature of her adult relationship”.[88]
[88] Exhibit ICL2; The Family Report at [43].
The mother told the expert that when she started her relationship, she was aware of Mr B’s criminal background, felt sorry for his difficult childhood and hard life, “gave him the chance” and has stood by him because he told her no one else ever had.[89]
[89] Ibid at [51].
The expert said the mother appeared to struggle to appreciate the complex nature of the issues introduced by the presence of Mr B and that her approach to the issues was “limited, unsophisticated and lacked child-focus”. The expert said the mother had difficulty shifting her “black-and-white focus to consider the possibility that … there may be genuine risks associated with [Mr B]”. The expert said that when presented with information about Mr B from subpoenas the mother’s willingness to think critically about her relationship with Mr B was limited to possible infidelity by Mr B and not to potential risks of actual harm to the children, or herself “associated with the broad range of concerns”.[90]
[90] Ibid at [40]-[42].
The mother told the expert that she thought the father was on a crusade to take the children from her and that his allegations were malicious.[91]
[91] Ibid at [49].
Mr B identified that mother as his primary support. The expert said he “spoke about the mother in a way which was indicative of an unhealthy dependence on her”.[92] In the context of the evidence that Mr B has repeatedly self-harmed and sent pictures of the injuries and had threatened to end his life if the mother left him, the expert considered this was likely to place considerable pressure on the mother.
[92] Ibid at [109].
The mother’s evidence
The mother consistently denied in cross examination that Mr B posed any risk to the children. She was cross examined before Mr B. She gave evidence that he was not using illicit drugs. The mother lives with Mr B. She must have known that he swapped cannabis for alcohol in late 2021, that he would start drinking in the morning “pretty much” as soon as he woke, was drinking nineteen drinks, “if not more”, every day, got depressed, anxious, had thoughts of self-harm, and got “aggressive towards” himself when drinking until as recently as six weeks before Trial.
None of this was disclosed in her Trial Affidavit. In her oral evidence, she consistently and vigorously maintained that Mr B was no longer affected by substance abuse or mental health issues and repeatedly stated that he did not pose any risk of harm to the children.
I find that the mother was aware of all these matters and intentionally did not disclose them to the Court to protect Mr B and with the objective of misleading the Court so that I would not know the true state of Mr B’s ongoing alcohol abuse. This is such a significant matter on which to mislead the Court that I must treat all of her evidence was caution.
The expert
In oral evidence the expert expressed great sympathy for the mother. However, given her failure to inform the Court of the true position about Mr B’s alcohol abuse and mental health, the expert stated that she believed the mother prioritised and would continue to prioritise Mr B’s interests over the children’s interests.
For that reason, she did not consider the mother’s presence would provide a protective factor nor adequately ameliorate the risks posed to the children through direct exposure to, or communication with, Mr B.
I accept and agree with the expert’s opinion. I find that the mother has limited protective capacity and is likely to prioritise Mr B’s interests over the children’s interests.
The expert considered the children would benefit from a meaningful relationship with the mother so long as it could occur in the absence of Mr B. On that basis, she supported the current time arrangement so long as the s 68B injunction continues, provided the Court is satisfied the mother is likely to comply with the injunction.
Given the relationship dynamic between the mother and Mr B, and the fact that Mr B wants to spend time with the children and that the mother prioritises Mr B’s interests over the children’s, the expert considered that any time the mother spends with the children should not be at a residence she shares with Mr B. The expert gave evidence that if the children are at their shared residence the mother will be placed under ongoing pressure to allow Mr B to spend time with the children, which is what he repeatedly stated he wants to do. The need to require Mr B to depart their shared house for most of the daytime every second week was also likely to put the mother in a position of stress in relation to Mr B.
CLOSING SUBMISSIONS AND PROPOSAL
Father and ICL’s closing submissions and proposals
At the conclusion of the hearing, the father and the ICL made similar submissions that Mr B poses an unacceptable risk of harm to the children.
The risk was submitted to arise from Mr B’s extensive and ongoing history of substance abuse and poor mental health, his prior use of self-harm used as a coercive mechanism to control the mother and to stop her leaving, his prior criminality leading to incarceration, his serious physical family violence against his prior partner, and his physical family violence against the mother through coercive control and his conceded violent behaviours to which the mother and children were exposed.
The risk was submitted to be current and ongoing in circumstances where Mr B denied that his history meant he posed any risk while at the same time, candidly, admitting that as recently as six weeks prior to the final hearing he had sought medical help for daily alcohol use of 19, or more, alcoholic drinks a day associated with poor mental health and behaviour which he described as aggression towards himself but which he said included striking walls and other similar conduct such as occurred in mid-2029 which would, or could, cause psychological, and potentially physical, harm to the children, whether intended or not.
The mother consistently denied during oral evidence that Mr B posed any risk to the children. She was unwilling to accept that any of the identified factors meant that Mr B might pose a risk to the children. The mother did not disclose in her affidavit, or during oral evidence, that Mr B was abusing alcohol, suffering poor mental health and acting aggressively as recently as six weeks earlier. It was submitted her presence did not ameliorate the risks that she denied existed.
It was submitted that the mother had prioritised Mr B’s interests over the children’s by allowing the children to spend time with Mr B between 20 November 2018 and late 2019 in contravention of the s 68B injunction.
The father’s and ICL’s submissions were that I would give significant weight to the expert’s oral opinion and find, regardless of how Y was injured, that Mr B poses an unacceptable risk of harm.
Y suffered an injury at home in late 2019. The father and ICL submitted that the evidence established Mr B was present, was involved, and even if intention could not be established, that this evidence either separately justified a finding of unacceptable risk, or further supported a finding of unacceptable risk in light of the other risk evidence. As noted elsewhere I give no weight to this event.
The ICL’s proposal,[93] with which the father substantially agreed in closing oral submissions rather than pressing his own proposal,[94] was that the s 68B injunction should continue.
[93] MFI 13; ICL’s Minute of Order.
[94] MFI 12; Father’s Minute of Order.
The children’s time with the mother was proposed to be conditional on the mother complying with the s 68B injunction and filing an undertaking in similar terms. On the basis that the mother did comply, the children would spend time with the mother as agreed or, failing agreement, continue to spend time with her alternate Saturdays and Sundays from 9.00 am to 5.00 pm. The existing injunction would be varied by requiring that the time occur outside the home the mother shares with Mr B as recommended by the expert. The ICL proposed provision for special occasions for each parent. The time with the mother on special occasions was also conditional on the mother’s ongoing compliance with the s 68B injunction.
The ICL proposed that if the father believes the mother is not complying with the s 68B injunction, the father would be permitted to give the mother written notice of the alleged breach and the children’s time with her would then be terminated, and instead take place at a supervision centre for at least two hours per fortnight. The ICL proposed that the parents share such supervision cost equally. The father did not agree with the cost aspect of the ICL’s proposal, on the basis that he would be bearing most of the cost of raising the children. As it is a matter of the children’s interests, I find the costs should be shared equally.
The conditional nature of the proposal was intended to avoid the need for future litigation if the mother does not comply with the injunction. While it would avoid the need for a future redetermination of the entire matter, it is possible that it would require a hearing to determine whether or not there had been non-compliance with the s 68B injunction, if in contest. This was submitted to be the lesser risk for future litigation.
Mother’s closing submissions and proposal
The mother’s closing submission, consistent with her unshakeable oral evidence, was that Mr B’s history, including his conceded alcohol abuse up to six weeks earlier, would not lead to a conclusion that he poses any current or future risk to the children. The mother submitted that Mr B is a changed man, and these historical issues are now under control.
The mother submitted, that Mr B was not present when Y was injured so that no weight could be given to this event in assessing risk. Further, she maintained her case that she had not breached the injunction not to allow the children to spend time with Mr B.
The mother submitted that as Mr B does not pose any material risk of harm and so no injunction is required. She proposed the children spend alternate weekends and half school holidays with her.[95]
[95] MFI 2; Mother’s Minute of Order at 1.1.
In the alternative, the mother submitted that if an injunction is considered necessary, she would comply with the injunction. On that basis, she accepted the ICL’s proposal for time with the children. The mother asked to Court to record that she accepted limited time with the children in this situation only because compliance with the injunction would not be practicable beyond the current hours given that she lives with Mr B and G.
DOES MR B POSE AN UNACCEPTABLE RISK OF HARM?
I find that Mr B has untreated substance abuse and mental health issues which impair his ability to control his behaviours.
I accept the expert’s opinion and find that his reducing his alcohol use from 19 drinks per day to a few drinks per week in the six-week period leading up to a Trial is not evidence that these issues are now under control.
Mr B has no insight into the nature and severity of his presently untreated mental health and substance abuse issues, and no insight into the impact of his behaviours on others, repeatedly denying that anyone was harmed by his aggressive conduct other than himself.
While I do not think Mr B would intentionally harm the children when not abusing alcohol or other substances and not having poor mental health, the types of conduct described by police in the incident where he smashed the car windscreen in mid-2019 and when he attempted to strangle Ms K, his conduct in self-harming and using that behaviour to coerce the mother, and his own evidence of similar conduct in smashing walls and acting aggressively, all potentially expose the children to the risk of serious psychological and physical harm by witnessing and potentially being the subjects of his uncontrolled behaviours when affected by substances or impaired mental health.
I am comfortably satisfied and find that Mr B poses a material risk of both physical and psychological harm to the children by reason of his untreated substance abuse and mental health conditions, compounded by his lack of insight into the impact his violent and dysregulated behaviours have on others.
I find the mother’s failure to disclose his recent alcohol abuse and denial that Mr B poses any risk of harm to the children, despite the clear evidence to the contrary, establishes that the mother prioritises Mr B’s needs over the children’s needs, has limited insight into the nature and extent of the risks he poses, and means that her presence would not ameliorate the risks posed by Mr B.
I find that the psychological and physical risks to the children of spending any time, or having any communication, with Mr B, even with the mother present, are unacceptable.
Accordingly, I find that if the children are to spend any time or have any communication with the mother, it must be in the absence of Mr B.
I find that the children have a meaningful relationship with the mother. I find, as submitted by all parties, that the children will benefit from continuing to have a meaningful relationship with the mother in future, so long as it is safe for them to do so.
I find that the mother repeatedly breached the s 68B injunction up until late 2019, and that the mother and Mr B encouraged the children to call Mr B “Ms L” to hide that fact. I find, as submitted by all parties, that the mother ceased breaching the injunction some-time after that and is likely to continue complying with a s 68B injunction in future. However, I accept the opinion of the expert and find any time the children spend with the mother should not be at any residence she shares with Mr B in order to reduce the pressure on the mother, and to reduce the risk of a future breach of a s 68B injunction.
I find that the children’s best interests require there to be a s 68B injunction restraining the mother from permitting the children to spend any time or to have any communication with Mr B.
On that basis, I find that the children should spend time and communicate with the mother, as proposed by the ICL in closing submissions.
The father adopted the ICL’s proposed orders in closing submissions, except as to the costs of supervision if required where the father submitted the mother should solely bear those costs. In relation to the issue of costs of supervision, I accept the ICL’s submission that, as the question is the children’s best interests, those costs should be shared.
While the mother’s primary position was that an injunction was not required, in the alternative the mother agreed with the ICL’s final proposal. The mother emphasised in closing submissions that her agreement was not because she did not want more time with the children, but was because more time would not be practicable given she lives with Mr B and G.
The questions of whether or not Mr B posed an unacceptable risk and the s 68B injunction should continue was the primary issue in dispute and the parties and ICL agreed upon the appropriate orders should those findings be made. However, in coming to this conclusion I note I have taken into account the primary and additional considerations in s 60CC, as required by the Act, elsewhere in these reasons.
PARENTAL RESPONSIBILTY
The parties agreed that the father should have sole parental responsibility subject to an obligation to consult. That was consistent with the expert’s opinion that the parties sharing parental responsibility would be problematic due to the history of parental conflict and recommendation that sole parental responsibility be allocated to the parent the children live with.[96]
[96] Exhibit ICL2; The Family Report at [223], [225].
Given the conflict between the parties and the findings I have made, I find it is in the children’s best interests that the father has sole parental responsibility. I consider that an obligation to consult will also benefit the children by keeping the mother actively involved in the decision-making process. I will make this order.
CHILDREN’S BEST INTERESTS
The paramount consideration is the child’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC. The two primary considerations, in order of weight, are firstly the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and secondly the benefits to a child of having a meaningful relationship with both parents.
Given my finding that Mr B poses an unacceptable risk of both psychological and physical harm to the children, and the importance of protecting them from that harm, and that the parties and ICL agree on what the orders should be in the event of that finding, the other considerations have less impact on the orders. Nevertheless, I am required to and have turned my mind to the other s 60CC factors.
The ICL, parties and expert all agree that the children will benefit from a meaningful relationship with the mother in the absence of Mr B’s presence. That meaningful relationship has been maintained under the current orders and is capable of being maintained under the ICL’s proposed orders, which the mother accepts on my findings.
The children’s views are not stated in the Family Report. The ICL stated in written submissions that they had met with the children prior to the final hearing, but the ICL did not offer any statement of the children’s views.[97] Given the children’s ages and the risk issues associated with Mr B, I am satisfied that this is not an impediment to the determination of the proceedings.
[97] MFI11 at pg 9.
The ICL submitted, and I accept, that the children enjoy close relationships on both sides of the family, including in particular with both grandmothers and also Ms H. The children have also spent time with their half-sibling G. They have not, or should not have, been having any relationship with Mr B since the s 68B injunction. The proposed orders will allow the children to continue their relationship with the father, the mother and the extended paternal and maternal families, excluding only Mr B.
Both parents have taken the opportunity to participate in making decisions about major long‑term issues in relation to the children, and to spend time with and to communicate with the children to the extent permitted by interim orders.
No relevant submissions were made about the extent to which each of the children’s parents has fulfilled, or failed to fulfil, their obligations to maintain the children.
The proposed orders substantially continue the existing situation which has been in place for some years. The orders mean that the children’s time with the mother will necessarily remain restricted. While the children will be able to maintain a meaningful relationship with the mother, their relationship with her will, in the long run, necessarily be different to that which might have existed were more frequent time with her feasible. That is an unfortunate but necessary side effect of the need to protect the children from Mr B to which factor I give significant weight.
There are no issues of practical difficulty or expense.
There is no issue with the father’s capacity to provide for the needs of the children, including emotional and intellectual needs. The mother’s lack of protective capacity, and decision to prioritise Mr B’s needs over the children’s needs, has been discussed elsewhere. That discussion encompasses the issues of the mother’s lifestyle, maturity, attitudes to the children and to the responsibilities of parenthood. No relevant issues arise with the father on these matters.
X was diagnosed with Autism Spectrum Disorder at age three. He exhibited delayed language requiring “[…] support with social communication and […] support with restrictive and repetitive behaviours”.[98] The diagnosis was confirmed in late 2019 with moderate support and speech therapy required. At that time there were “high levels of anxiety” and indications of inattention and hyperactivity with recommendations for psychological treatment.[99] X is in receipt of NDIS funding. He attends speech therapy with Ms BB and psychological sessions with Ms CC weekly.[100] These factors do not affect the need to protect him from Mr B, which is independent of any personal characteristic of X or Y.
[98] Exhibit ICL2; The Family Report at [200] citing an assessment at 5 May 2017.
[99] Ibid at [201].
[100] The Father’s Trial Affidavit at [135].
The question of family violence is discussed elsewhere and s 60CG has been taken into account.
The children are not of Aboriginal or Torres Strait Islander descent.
The history of prior breaches of the s 68B injunction, and the involvement of the children in trying to hide those breaches by instructing them to refer to Mr B as “Ms L”, means that the Court must consider the possibility that the mother will breach the s 68B injunction in future. The question is how best to address that risk.
There are no orders which I can make that allow the children to spend time with the mother, but which do not involve the risk of further proceedings. I consider it in the children’s best interests that the risk of further proceedings, likely to arise if the father forms the belief that the mother is again breaching the s 68B injunction, be taken rather than terminating their relationship with the mother now to avoid entirely the risk of any future contact with Mr B.
The ICL proposed that to reduce the ambit of any future litigation the mother’s time with the children should be conditional on her compliance with the s 68B injunction. The orders would then provide a mechanism for time to continue on a supervised basis indefinitely if the mother failed to comply. That proposal would allow the children to continue spending time with the mother. The parents accepted that proposal in those circumstances.
Long term supervised time is not generally beneficial. However, noting that it is not the mother who directly poses a risk, the meaningful relationship the children have with the mother, and the detriment to them in the termination of that relationship, I consider it to be in the children’s best interests to continue long term supervised time with the mother if she does not comply with the injunction.
To address the situation which might arise if the father believes the mother has breached the injunction, but the mother denies any such breach, I consider it appropriate to include an order that facilitates the mother filing an Application in a Proceeding to determine any factual dispute concerning a breach of the s 68B injunction, while allowing supervised time to continue until the issue is determined. If that occurs and the matter comes before the Court then the question of what should occur on an interim basis would be then be a matter for the judicial officer seized of the matter.
ORDERS
I make the consent orders outlined at the start of this judgment.
Mr B presents an unacceptable risk of harm to the children of spending any time with him. That risk extends to audio-visual communications given his history of dysregulated behaviours. Their physical and psychological safety requires that they spend no time, and have no communication, Mr B. The mother has previously breached the s 68B injunction. Her presence provides the children with no protection against the risks posed by Mr B.
The parties and ICL want the children to maintain their meaningful relationship with the mother. The only way that can occur is if I make orders that the s 68B injunction continue. In addition, the final orders should include an injunction requiring the mother not to allow the children within 300 metres of any residence she shares with Mr B. The mother accepted that proposal if I made a finding of unacceptable risk. I will make that injunction.
The ICL submitted the mother should also be required to file an undertaking in similar terms. The mother did not oppose that order, if I found Mr B was an unacceptable risk. I will require her to file this Undertaking in the following form, within one month.
I [Ms Kavanagh] Undertake to the Court not to allow or permit the children [X] born […] 2013 and [Y] born […] 2015, or either of them:
(a)to come into any form of contact, spend any time or to have any communication, with [Mr B] born […] 1989, including during telephone/video calls, or,
(b)to come within 300 metres of any home where I reside from time to time with [Mr B].
The ICL submitted that the children’s safety requires that their unsupervised time with the mother be conditional on the mother’s ongoing compliance with the s 68B injunction and the undertaking. The mother did not specifically oppose that order. Given my findings as to the risks Mr B poses. I accept that submission.
The ICL made submissions on the power a parenting order conditional on compliance with another order, and that there is power to order that the children’s unsupervised time with the mother be conditional on her ongoing compliance with the injunction. I am satisfied that the children’s best interests are served by such a condition.
If the mother again breaches the injunction and exposes to the children to Mr B, the risks involved in that exposure mean that it will not be in their best interests to continue to have unsupervised time with her. I find that this order will also give rise to the least likelihood of future litigation around what should happen if the mother breaches the injunction, although it will not exclude it as there may be litigation around whether or not she breaches the injunction.
As submitted by the ICL, I will include orders providing a mechanism for the father to give written notice if he alleges the mother is breaching the injunction, and to put in place supervised time in those circumstances. I will also include a provision allowing the mother to file an Application in a Proceeding to dispute the breach if she says that the notice is given without basis. The supervised time will continue until that is determined, subject to any order of the Court hearing that application.
The ICL and parties agreed that in the event I made the findings I have made, and in the circumstances of an ongoing s 68B injunction, the children’s time with the mother should continue on the present basis as more time is not practicable. I was asked to align the orders so that the alternating weekends continue and will do that.
I make orders for the proposed special occasions for both the mother and the father, noting that the children’s time with the mother on special occasions shall also be conditional on compliance with the s 68B injunction.
I make the standard passport order for the children, allowing the father to hold the passports and to remove the children from Australia. Given the risk issues involved and limited time the children have with the mother, no such order can apply to her without the father’s prior written consent.
Given my findings concerning the risks Mr B poses, a copy of these Reasons will be given to the Department of Communities and Justice with particular reference to G.
I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 13 October 2023
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