KEYWORTH & WINTHROP

[2019] FamCA 255

FAMILY COURT OF AUSTRALIA

KEYWORTH & WINTHROP [2019] FamCA 255

FAMILY LAW – CHILDREN – Undefended hearing – Where the mother disengaged from proceedings – Where issue of what risk the mother poses to the children, extent she poses a risk and means available to mitigate it – Where issue of whether the children would benefit from a relationship with the mother – Where court satisfied children will likely benefit from continuing a relationship with the mother – Where the children have been exposed to violence in the mother’s relationships – Where the court not satisfied the mother was accurate when reporting her childhood traumas – Where order for sole parental responsibility in favour of the father – Where order that the children live with the father – Where court not satisfied unsupervised time with the mother is in the children’s best interests – Where it is in the children’s best interests for a communication regime with the mother – Order permitting the mother to telephone the children once a week.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64D, 65DAA, 65DAC, 102QB
Evidence Act 1995 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692

APPLICANT: Ms Keyworth

RESPONDENT: Mr Winthrop

INDEPENDENT CHILDREN’S LAWYER: Mr Newman

FILE NUMBER: CSC 271 of 2017

DATE DELIVERED: 24 April 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 28 March 2019

REPRESENTATION

THE APPLICANT: No appearance

SOLICITORS FOR THE RESPONDENT: MK Family Law

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Newman Family Law

Orders

1. That all previous parenting orders in these proceedings are discharged.

2. That the father have sole responsibility for Y, born … 2006 and Z, born … 2007 (“the children”).

3. That the children live with the father.

4. That the mother communicate with the children by telephone, with the mother initiating such telephone call between 6.30pm and 7.00pm each Wednesday, with the father ensuring the children are available to take the call. The father is permitted to monitor the call and should the mother make any inappropriate comments concerning the father, his partner or family, then the father shall be at liberty to terminate such telephone communication.

5. That the father keep the mother advised of his current telephone number for the purpose of these orders.

6. That the mother is restrained from removing the children from the care of the father contrary to the terms of this order or from any person, place or institution (including school and day care) at which the children are placed by the father.

7. That the mother is restrained from attending at the children’s school or at any of the children’s extra-curricular activities.

8. The father may apply for a passport for the children Y, born in 2006 (male) and Z, born in 2007 (female) without first obtaining the consent of the mother and the passport is to issue notwithstanding that the mother has failed to sign all documents necessary to do so.

9. That the Independent Children’s Lawyer be forthwith discharged with the thanks of the Court.

10. That otherwise all extant applications stand dismissed and the matter is removed from the list of active pending cases.

11. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keyworth & Winthrop has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC271/2017

Ms Keyworth

Applicant

And

Mr Winthrop

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Although by her Initiating Application filed 24 April 2017, Ms Keyworth (“the mother”) sought a suite of parenting orders relating to the parties’ children, by email to the Independent Children's Lawyer dated 17 January 2019, she indicated that she intended to disengage from the proceedings, and said that “you won’t see or hear from me again.”  That was in the context of extant interim claims by both the mother and Mr Winthrop (“the father”) which, on 15 March 2019, I ordered be heard on 28 March 2019.  By that order I further provided that in the event that the mother failed to then appear, the father had liberty to seek to have the matter finally determined on an undefended basis on that day. 

2. True to her word, the mother did not appear on 28 March 2019, and therefore the matter proceeded on an undefended basis.  Frequently that may make the court’s task easier, however in this case it did not, and indeed made it somewhat more complicated.  In consequence, on 28 March 2019 at the conclusion of the hearing, I reserved my decision.  This is that decision and the reasons for it.

BACKGROUND FACTS

The father

1. The father was born in Victoria in 1983, and hence is presently 35 years of age.  It seems he grew up near Town A and completed grade 10 at school, and thereafter became a seasonal worker, working all around Australia.  It seems likely that it was at that stage of his life when, aged about 22, he commenced cohabitation with the mother in 2005.

The mother

1. The mother was born in Victoria in 1983, and hence, like the father, is also presently 35 years of age.

2. The circumstances of her childhood are less than clear.  Ordinarily, that may not matter, but in this case it is relevant.

3. In the context of this litigation, the mother has consistently reported a particularly unfortunate childhood.  For instance, Dr B, a psychiatrist who examined her for the purposes of these proceedings, noted that “[the mother] is herself the victim of a tragic developmental history, which is the primary focus of clinical attention in this case.”  His report continued to detail that her parents separated when she was aged two, and that her mother was a habitual user of alcohol and drugs and never gave her any love, in relation to which Dr B concluded that her “childhood was therefore chaotic and berefted of any empathy and nurturing.”  He continued:

   [The mother] was the victim of childhood sexual abuse, physical abuse, emotional abuse and neglect.  [The mother’s] childhood was therefore extremely unsatisfactory, and she has contact with psychiatric services throughout her adult life…

4. However remarkably, the maternal grandmother, a business owner, filed an affidavit in support of the father in these proceedings.  In that affidavit, she detailed that she has conducted her business for the last 27 years, and utterly denies that the mother was the subject of any abuse, neglect or violence as a child.  For instance at paragraph 36 she says, in relation to Facebook posts in which the mother has alleged “that I have sold her on the street, fostered her out, sexually and physically abused her, force-fed her drugs and abandoned her.  None of this is true.”

5. She then went on to say that in consequence of the mother’s serial lying, the mother has lost contact with her siblings.  Further, although she maintains sporadic contact with the maternal grandmother, the mother is threatening and angry in those conversations, and it has now got to the point that she does not “really believe anything [the mother] says anymore.”

6. Also filed in support of the father’s position was an affidavit of the maternal grandmother’s partner, Mr M.  He detailed his involvement with the mother over the last 14 years, and in material respects endorses the evidence of the maternal grandmother.

7. As I shall later detail, the marked discrepancy between what the mother reports, and what those whom she alleges abused her report, is important because, as Dr B identified, her developmental history “is the primary focus of clinical attention in this case.”

8. At all events it appears as though the mother concluded schooling at year 12, and at around that time she moved in to live with a partner.  However it seems that he seriously assaulted her, and she suffered an acquired brain injury in that attack.  She reported to Dr B that “she suffers from PTSD and anxiety as a result of the assault” which occurred when she was about 19 to 20 years old.  She told Dr B she has issues with her short-term memory, particularly facial recognition.  Although it is unclear precisely when this assault occurred, it seems likely that was in 2004, prior to the parties commencing their relationship and cohabiting on 1 January 2005.

The relationship

1. On any view it appears as though the parties’ relationship was highly volatile.  The father says it that it was the mother who was violent and volatile, whereas the mother says it was the father.  Given that the father’s evidence was led before me and unchallenged, in an undefended hearing it seems to me I must accept his version, unless it is inherently improbable, or contradicted by independent or other evidence deserving of greater weight.

2. As to that, in the father’s affidavit filed 7 June 2017, he says that he “would regularly have to defend myself against the mother’s attacks.”  On one occasion the mother attacked him with a pool cue, on another occasion she attempted to run him over with a car, and other material speaks to a considerable history of violent behaviour.

3. It also appears as though the parties sporadically broke up and lived apart, but reunited.

4. The parties’ first child, Y, was born in 2006, and hence is presently 12 years of age; the second child, Z, was born in 2007, and hence is presently 11 years of age (“the children”).

5. In 2009 the mother had a stillbirth.  This inevitably considerably distressed her.

6. Although the parties eventually married in 2009, the marriage did not last long, and they separated on 30 June 2010.

Post-separation

1. Although it appears immediately after separation, the children lived with the mother, in early 2010 there was a domestic violence episode between the mother and her new partner, Mr D, which resulted in the mother being hospitalised.  The father collected the children from the police station, and they remained in his care.  The mother then commenced proceedings in the Federal Magistrates Court, however the father says that thereafter the mother “abandoned” the proceedings, and went to live in North Queensland with Mr D.

2. In the Family Report prepared in those proceedings dated 8 October 2010, it is reported that the mother said that she had no intention of pursuing her application and would not be attending the hearing.  The proceedings were then determined on an undefended basis with orders being made on 12 November 2010.

3. Those orders stipulated that the children would live with the father, who would have sole parental responsibility for them, but provided for a communication and time regime between the mother and the children, initially supervised but, upon the mother complying with certain steps including seeking psychiatric assistance, move to unsupervised alternate weekends and half school holidays, together with special days.

4. Interestingly, in the Family Report of 8 October 2010, there appears to be no mention of the childhood traumas which the mother has more recently related to Dr B and the current Family Report writer.  However the 2010 writer did have access to “comprehensive personal and familial background material” which was produced on subpoena from the L Hospital, and concluded:

   While the writer is not qualified to formulate a diagnosis of [the mother’s] mental health state, the available information nevertheless raises very serious concerns about her capacity to provide the children with an emotionally and psychologically stable parent figure.

5. Post-separation, the father formed another relationship, to which a child, V was born in 2012.  She presently lives with her mother in Victoria, and the father does not have much contact with her.

6. The mother did not regularly take up the opportunities to communicate or spend time with the children under the 12 November 2010 orders.  Perhaps that was in part because, at some time which is unclear, she moved from North Queensland to Western Australia, and seemingly there formed a new relationship with a Mr N.  In early 2012, seemingly whilst she was in Western Australia, the mother gave birth to a son, X.  Apparently he presently resides with his paternal grandmother in Western Australia, although there are current proceedings on foot in the Family Court of Western Australia pertaining to him.

7. In his Family Report interview prepared for these proceedings, Y recalled remembering visiting his mother at her house some years ago.  The Family Report continues:

   He said his mother and her boyfriend had a fight and how his mother pushed her boyfriend out the window.  [Y] said the boyfriend stomped on her head and his mother was going in and out of consciousness.  He said the police came and remembers sitting in the front of the ambulance…

8. On another occasion, after returning from spending time with the mother, Z questioned the father as to whether his sugar cubes were drugs.  This caused the father to become concerned about the children’s potential exposure to drugs in the mother’s care. 

9. It appears as though the mother took the children to Luna Park in about 2014.  Later, in October 2015, the children spent two nights with her, which although it was supposed to be supervised, was not.  As it transpired that is the last occasion that the mother has spent time with the children.

10. The mother’s telephone communication with the children has been equally sporadic.  In his affidavit filed 7 June 2017, the father describes her contact as “very irregular” and went on to say that the children could wait six weeks in between calls from her.  The father says, and I accept, that on occasions during those telephone calls, the mother has raised adult concepts, and would say things to the children denigratory of himself and his partner.

11. The last phone call between the mother and the children was on 19 October 2016, being Z’s birthday.  The father says that after that he stopped facilitating telephone communication at the request of the children, because they became extremely distressed after the calls.  For instance, some short time prior to that, the mother had called Z “fat and unfit” in the course of the phone call.  On another occasion the mother asked someone nearby, during the course of her phone call, “could you buy me cigarettes?” which the children thought was directed towards them.

12. On other occasions the mother would cry during phone calls with the children.  Further, during those calls she has told the children variously that they have 17 siblings, and that they are of varying backgrounds.

13. The father says that towards the end of the phone calls the children were starting to get anxious before them.  He says that it got to the point where he was, in effect, forcing the children to talk to the mother.

14. Since 19 October 2016, the mother has occasionally sent presents to the children, and the father says that he and his partner video the children opening the presents, which vision he then sends to the mother.

15. In January 2015 the father met his present partner whilst he was still living in Victoria.  He commenced cohabitating with her in July 2015 and they relocated to City E in December 2015.  He says the mother was in full agreement to he and the children moving to City E.  As at the time of the hearing before me, both the father and his partner remain living in City E, where they are in full time employment.  By the time she filed an affidavit on 20 April 2017, the mother had moved to live in City F.  She was then studying a diploma course in accountancy.  Whilst in City F, she formed a relationship with a Mr G, to which relationship was born a child X, either in late 2017 or early 2018.

16. However the mother is no longer in a relationship with Mr G, and she told the Family Report writer in August 2018 that there was a current domestic violence order between them.  The mother further told the Family Report writer that the Department of Child Safety have been involved with X, and were apparently in agreement with the arrangement which prevails between her and the Mr G, under which he sees X once a fortnight. 

17. As at the time of the hearing before me, the 2010 orders remained operative, save that by order made by Judge Willis on 10 August 2017, the November 2010 orders in relation to supervised time were suspended, and it was further ordered that “any time the mother spends with the children should be supervised only by a professional and not by family or friends.”  Her Honour then directed that the parties do things necessary to complete intake at the Relationships Australia City E.  I do not understand that either party has complied with that order, and certainly the mother has not spent supervised time with the children other than in the course of the Family Report interviews.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

1. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

2. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

3. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

4. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

THE ISSUES

1. There are essentially two issues which this litigation gives rise to, which are, as is often the case, in fact the primary considerations under s 60CC(3). The first is what risk the mother poses to the children, and to the extent that she does pose a risk, what means are available to mitigate it; the second is would the children benefit from a relationship with her.

ISSUE 1 – RISK POSED TO THE CHILDREN BY THE MOTHER

1. The father conceded to the Family Report writer that the mother has never physically hurt the children.  Although I am satisfied that she has been violent towards the father during the course of the relationship, and may have inferentially threatened to have violence perpetrated upon him post-separation, there is no suggestion that her antipathy towards the father is translated onto the children.  Therefore I am satisfied that the mother does not pose a direct risk of physical harm to the children.

2. However the mother has a long history of being involved in domestically violent relationships, and I am far from satisfied that she has shielded the children from exposure to that violence.  Particularly there is a troubling recollection of Y, of the mother throwing a partner through a window, and that partner then stomping on her head to the point of rendering her near unconscious.  For whatever reason, the mother seems to involve herself in domestically violent relationships, or at least involves herself in relationships which become domestic violent.  The profound and long lived effects of children’s exposure to family violence is a matter of which I am prepared to take judicial notice.

3. Whilst the mother’s history of involvement in domestically violent relationships predicts she is likely to continue down that path, however regrettable, it is here that her diagnosis by Dr B looms large.  Specifically he made a diagnosis of “complex post-traumatic stress disorder (arising as a result of childhood trauma and subsequent physically abusive relationships).”  Obviously a significant aspect of that is her developmental history, which as I have observed, Dr B noted was “the primary focus of clinical attention in this case.”  A little later he said that:

   [The mother] was the victim of childhood sexual abuse, physical abuse, emotional abuse and neglect.  [The mother’s] childhood was therefore extremely unsatisfactory, and she has had contact with psychiatric services throughout her adult life…

4. A little later again he said:

   [The mother] .. informed me that she attempts to self-manage her symptoms of dysphoria, intent feelings of emptiness, frantic efforts to avoid abandonment, chronically unstable sense of self, affective lability, and transient dissociative episodes by means of self-medicating with cannabis…

   [The mother] also practices meditation, yoga and prided herself on her creativity.  In this regard, she writes, draws, plays guitar and has published poetry on the website Poetry.com, where she informed me that she was “third in the world” at one point regarding popularity.

5. Dr B then concluded:

   It is my recommendation that [the mother’s] requests to have phone/electronic contact with her children should be granted since she is deeply effected by their loss and appears to have nothing but their best interests at heart.  She is the victim of tragedy and is to be commended for her psychological status, resilience, determination and motivation.  She is now employing every adaptive tool at her disposal to overcome her chronic symptoms of low sense of self caused by her adverse developmental factors. 

6. Ordinarily such an opinion would be compelling, but as has been seen, I am not satisfied that the factual basis which underpins it, namely that the mother was indeed subject to adverse developmental factors of the kind she claims, is established.

7. That then causes me to gravely doubt the diagnosis of Dr B.  In the context of an undefended hearing, unfortunately that doubt is unable to be clarified by cross-examination of him.  However as I indicated to the parties during the course of the hearing, I would expect that if the mother’s presentation (as recorded by Dr B in his report under “mental state examination”) is not to be attributed to adverse developmental factors, then presumably it must be attributable to something else.  I would expect that looming large in the options might lie personality traits or disorders, or even, since the mother claims to be the victim of such, an acquired brain injury.  This seems, at least to my mind, to be consistent with the concerns which the Family Report writer in 2010 had, and particularly the “very serious concerns about her capacity to provide the children with an emotionally and psychologically stable parental figure” which the writer voiced.

8. All of that points to a somewhat ill-defined risk of harm which the mother may pose to the children arising from whatever personality issues, psychiatric illness, or brain injury, she may be suffering from. Inevitably when faced with such an ill-defined risk, a court will incline towards gauging it and managing it in a conservative way, which favours the safety of the children, as indeed, is required by s 60CC(2A).

9. It cannot be overlooked that the mother has four living children, only one of whom is presently in her care.  Whilst there may be many explanations for that situation which are benign, one would have to say that, to some degree, informs the magnitude of the risk which, whatever it is that the mother suffers from, she poses to her children.

ISSUE 2 – WOULD CHILDREN BENEFIT FROM A RELATIONSHIP WITH THE MOTHER

1. Again in the context of an undefended hearing, there was no cross-examination of the family consultant in relation to this issue.  However I am well satisfied that as a general starting point, children benefit from having a relationship with both of their parents, providing that they experience it in a way which is safe and protects them from harm.

2. There are two interesting and perhaps unusual aspects to this case.  The first is that, notwithstanding Y’s recollection of violent assault of the mother by a former partner, both of the children told the Family Report writer that they miss their mother, love her, and think about her.  Both said that they wished to have a relationship with her; both identified that they have never been scared of their mother.  Indeed Y told the Family Report writer that he had gone onto Google to search for his mother, and had saved some photos of her on a USB stick so that he could remember what she looks like.  He had also read some of her poetry that was available online. 

3. Plainly the children are yearning a relationship with their mother and I am satisfied that against that background, they are likely to derive some benefit from having one.

4. The second unusual aspect of this case is that the father freely concedes that he has, in effect, warned the children of their mother.  At [73] the following is reported by the Family Report writer:

   73. [Y] said he last spoke to his mother about two years ago.  He said she started saying “weird stuff” and said his father began listening to the conversations.  Following on, [Y] said his father told him “Listen son, I better tell you the truth about your mother.”  [Y] reported he was told his mother is a drug addict, that she’s violent most of the time, and said his father showed his scars when she attacked him where she tried to cut him on the stomach with a pool cue.  [Y] said “If she is (violent and a drug addict), I wouldn’t know, I’ve never seen.”  He said [Z] was crying when she overheard her father telling [Y], and started getting scared.

5. A little later at [80] the Family Report writer continued:

   80. [Y] said he would like to have a relationship with his mother, however did not think it would be good for his father.  When asked if he has ever been afraid of his mother, [Y] said he’s never been scared, only when his Dad panics.  He further added he believes his father is fearful their mother will assault [Ms J] and scream at his father.

6. This was emphasised to the children even on the very day of the Family Report interviews, when unexpectedly, the father, who had the children in his care, saw the mother.  Y told the Family Report writer that his father said “quick get in here” and they went another way.  The writer continued “Y stated he got scared, and was worried she would abuse them and did not want his mother upset if she saw them.  He said his father was looking out for their mother during the interview break and was worried for Y at the time.”  All of this confirms that it is not the children who are directly fearful of the mother, but rather the father, perhaps unsurprisingly given the mother’s history of erratic behaviour and violent assault of him.

7. However the point is that notwithstanding the children’s knowledge of their father’s fear of the mother, and his attempts to warn them away from her, they still wish to have a relationship with her.  To my mind that depth of feeling speaks to what may well be a need in them to have a relationship with her.

8. I am therefore satisfied that, providing it can be undertaken in a secure and safe way, the children are likely to derive benefit from re-kindling and continuing their relationship with the mother.

SECTION 60CC CONSIDERATIONS

1. I have already addressed both of the primary considerations and some of the additional considerations. However by reference to the additional considerations I further comment as follows.

2. Both children have expressed a desire to have some form of relationship with the mother.  The children are of an age where their wishes should be given weight.  Moreover, I am mindful that those wishes have been expressed notwithstanding the warnings about the mother given to them by the father.

3. Although I have not dealt with it in any great detail in these reasons thus far, the interaction between the mother and the children on the day of the Family Report interviews was entirely positive.  Whatever reservations the children had were dispelled by their experience on the day.  For instance Y reported “that went better than I thought” and Z said “you know how we talked about phone contact, well I want phone contact now.”  Both children expressed they wanted to have contact with their mother.  I give those wishes real weight.

4. Plainly criticism can be levelled at the mother for failing to take up the opportunities to communicate with the children, and for not undertaking the prerequisites to spending time, and particularly unsupervised time, with them.  She appears to prioritise aspects of her own life over the children, of which her move to North Queensland in 2010 must stand as a high watermark example.

5. I do not know whether the mother is liable to pay child support, but it seems unlikely.

6. The mother’s capacity to provide for the needs of the children is significantly in doubt in this case.

7. The mother claims to be an aboriginal, and hence the children also.  However it appears as though the mother has been unable to establish a definitive link to aboriginality, and certainly does not appear to practice any part of aboriginal culture.

8. There has been extensive family violence involving the mother, both in the course of the parties’ relationship, and in the mother’s previous and subsequent relationships.  There have been family violence orders between the parties, and the mother seems to have had a number of family violence orders in relation to other parties, in which she has been the protected person.  The inference which I draw from all of that is that the mother is prone to violence herself, prone to relationships which have domestic violence as a characteristic, and that is likely to continue.

9. Plainly it would be preferable to make an order likely to not lead to further litigation.  However in the unique circumstances of this case, that may not be possible.

PARENTAL RESPONSIBILITY

1. Plainly, given my findings in relation to family violence, the presumption of equal shared parental responsibility does not apply.  Further, having abandoned the prosecution of her application, the mother has, by default, lost any practical opportunity for this issue to be considered in detail. 

1. The father has had sole parental responsibility since 2010.  The concerns which I have in relation to the mother and her capacity inevitably cast doubt upon what benefit the children would obtain from her having any involvement in decision making relating to them, noting that she has had no such involvement for most of their lives.

2. I am well satisfied that there should be an order for sole parental responsibility in favour of the father, and will so order.

WITH WHOM SHOULD CHILDREN LIVE

1. In her Initiating Application the mother herself proposed that the children live with the father.  They have done so for most of their lives, and the Family Report is glowing in relation to his capacity to provide a caring and nurturing environment for them.  Plainly it is in the children’s best interests that they continue to live in the arrangement which has prevailed since 2010.  There will be an order that the children live with the father.

TIME AND COMMUNICATION WITH MOTHER

1. This is the nub of this case.  When the hearing commenced, the father was seeking no contact orders, however ultimately he conceded that communication was appropriate.

2. Likewise when the hearing commenced, the Independent Children's Lawyer was seeking orders permitting supervised time to occur, but by the end, the Independent Children's Lawyer had indicated that he did not press for such orders, but rather also sought orders in relation to communication.

3. The centre of the difficulty in this case is the mother, and particularly whatever it is that ails her.  I am far from satisfied that it is post-traumatic stress disorder caused by adverse developmental factors, as Dr B opined.  I say that because I am not satisfied that the mother was being truthful, or at least accurate, in her reporting of those adverse childhood traumas to Dr B.  The affidavit of the maternal grandmother in this regard, is compelling.

4. Between the parties that appeared before me, it was conceded that there should be a communication regime ordered, accepting that the mother may not avail herself of it.  I am well satisfied that such orders are in the children’s best interests.  Particularly the children want to have a relationship with the mother, to the point where Y, even before meeting his mother in the Family Report interviews, had gone searching online for information about her.  After the interviews Z specifically said that she wished to have telephone time with her mother.  Because I am satisfied that the children would benefit from a relationship with their mother, and because I am satisfied that whatever risks the mother poses, sufficient protections can be applied to telephone communication (for instance permitting the father to terminate the call if inappropriate communication occurs) such orders are in the children’s best interests.

5. There is another reason which, to my mind, is equally compelling as to why a communication regime should be ordered.  That is because, since Y has already demonstrated his propensity and capacity to do so, he will likely seek his mother out himself behind his father’s back, if there is not an official line of communication.  Indeed it was this, when I pointed it out to the solicitor for the father during the course of the hearing, that seems to have motivated the father to concede that a communication regime is appropriate.  The prospect of Y, and later Z, establishing surreptitious communication with the mother could potentially be disastrous, given her tendency to denigrate the father and his partner, and to present them with what appears, on all the evidence, to be false information in relation to their lineage.

6. There will therefore be orders permitting the mother to telephone the children once a week, with the father having liberty to listen in to those conversations and to terminate the call if they become inappropriate.  There will also need to be the ancillary orders as to the father maintaining the currency of his phone contact details with the mother.

7. The question then is whether any order beyond that can be made.  There are so many imponderables.  The mother may not avail herself of the communication regime, in which case it is impossible to contemplate orders for her spending time with the children.  Similarly, although the mother may take up the opportunity for communication, it may not prove successful, particularly given that in the past she has only sporadically maintained contact with the children.  Further, there is the prospect that the mother may regularly introduce inappropriate topics, or resort to crying again.  None of that would suggest that orders for even supervised time could presently be responsibly contemplated.

8. On one view that would speak to only interim orders being pronounced at this time, but given that the mother has abandoned the proceedings, as she did before in 2010, the prospect of her further engaging in them is remote.  Therefore I am not persuaded that this is a case where interim orders are appropriate.

9. The unfortunate consequence of only making orders for communication is that, if it proves that the mother avails herself of the opportunity to communicate with the children, and if that proves successful, then unless the parties can agree a regime of supervised time, there will need to be further litigation.  That obviously would be most unfortunate, as it would mean that the parties would have been litigating in relation to the children for much of their lives.

10. The Independent Children's Lawyer in his Case Outline contemplated that upon “successful” communication for 12 months, supervised time should commence.  However of course the difficulty is knowing what “successful” means, and in any event, devising a regime for supervised time thereafter.  As the Independent Children's Lawyer’s proffered orders themselves contemplated, it would need to be by agreement between the parties.  That is the effect of making no order for supervised time in any event.

11. A number of preconditions would need to be made prior to even supervised time commencing.  For instance, the mother would need to demonstrate that she was unlikely to be under the influence of marijuana (which she admitted regularly using to Dr B) at the time of spending any such time with the children.  There would need to be Contact Centre intake procedures undertaken, which although ordered in 2017, does not appear to have been complied with by either party.  There is further difficulty in that, although the mother is apparently presently living in City F, her history would suggest that is not likely to be permanent, and hence the frequency of any supervised visits cannot be gauged.  There are simply too many variables to even start down the path of facilitating supervised time at this point.

12. Therefore, in the unfortunate circumstances of this case, I am not presently satisfied that orders for supervised time are in the best interests of the children, and, axiomatically, orders for unsupervised time are plainly not in their best interests either.  The ill-defined risk which the mother poses to the children could not possibly allow such an outcome to be seriously contemplated at this stage.

13. There will therefore only be orders facilitating communication between the mother and the children.

OTHER ORDERS

1. I am satisfied that the orders sought by the father in relation to restraints upon the mother removing the children from his care or their school should be made, and orders in relation to passports and international travel should be made.

2. Ultimately the father did not press the relief which he sought under s 64D(2), namely that the orders can only be varied by subsequent order of the court, or under s 102QB restraining the mother from commencing further proceedings without leave first obtained. There will therefore not be orders in relation to either of those two matters.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 April 2019.

Associate:

Date: 24 April 2019