Kitson and Black
[2014] FCCA 1332
•26 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KITSON & BLACK | [2014] FCCA 1332 |
| Catchwords: FAMILY LAW – Parenting dispute – father with significant criminal history – mother with significant mental health and drug issues – children living with father since August 2013 – psychological assessment of mother revealing significant risks – moderate risks with father – orders made as sought by Independent Children’s Lawyer. |
| Legislation: Children, Youth and Families Act 2005 (Vic) |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS KITSON |
| Respondent: | MR BLACK |
| File Number: | MLC 1308 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 3 and 4 February, 4 and 15 April 2014 |
| Date of Last Submission: | 15 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2014 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Mr Lovering |
| Solicitors for the Independent Children’s Lawyer: | McKean Park Lawyers |
ORDERS
That all previous parenting orders in relation to the children X born (omitted) 2004 and Y born (omitted) 2008 ("the children") be discharged.
That the mother and father have the equal shared parental responsibility for the children.
That the children live with the father.
That the Mother spend time with the children, supervised by a nominee of the Director of Community West Contact Centre (“the Contact Centre”) at such times as nominated by the Contact Centre and that each party:
(a)contact the Contact Centre within seven days and request an appointment for assessment for suitability for supervised contact;
(b)attend for assessment at the times and place appointed by the Contact Centre;
(c)attend any appointments made by the Contact Centre for supervised contact;
(d)ensure the children attend any appointments made by the Contact Centre for supervised contact;
(e)comply will all reasonable rules of the Contact Centre; and
(f)comply with all reasonable requests or directions of the staff of the Contact Centre.
That if after the assessment intake procedure the parties are accepted by the Contact Centre as suitable to facilitate supervised contact, the mother is to have contact with the children at time nominated by the Contact Centre and such contact is to occur when so nominated by the Director or her nominee.
That contact under order 5 herein is to be supervised by staff nominated by the Director of the Contact Centre and the mother pay the reasonable fees on each occasion of supervision.
That the father or his nominee deliver the children to and collect the children from the Contact Centre at times specified by the Director or her nominee and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.
That in the event that the parents are rejected at the intake procedure stage, the mother shall do all acts and things and pay all necessary expenses to pay for Ms M or her nominee to supervise contact on dates and times as stipulated by Ms M.
That the mother shall be responsible for the costs of such supervision.
That the contact referred to in order 5 herein is conditional upon the following:-
(a)the mother undertaking a drug detoxification course as recommended by the Family Consultant in these proceedings and at the conclusion of that course provide a Certificate of Completion;
(b)the mother promptly provide five random supervised drug screens when so requested by the Independent Children's Lawyer showing a “nil” or “not detected” result; and
(c)the Mother undertake a parenting course with Catholic Care in (omitted), as and when so directed by the Manager of the child inclusive POP Program as soon as practicable.
That failing compliance with any of the conditions referred to in orders 10(a) and 10(c) herein the mother’s contact shall forthwith be suspended.
That the father do all acts and things and sign all necessary documents to obtain a referral to a paediatric bulk billing Psychiatrist for the children to be therapeutically assessed and in addition that as soon as practicable the father attend his General Treating Medical Practitioner with the children to arrange for a Mental Health Program to be drawn up.
That the father be at liberty to provide the children's school, General Medical Practitioner, Psychologist and Psychiatrist with a sealed copy of any orders made by this Court together with a transcript of this Court's reasons for a decision.
That the mother be restrained from issuing further proceedings, unless she provides an affidavit from a Drug Rehabilitation Counsellor and/or a treating Psychiatrist nominated by Dr S.
That all extant applications be dismissed and removed from the List of Pending Cases.
That pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
NOTATION
The Court notes that the maternal grandparents wish to spend time with the children and recommends that the father enable this to occur.
IT IS NOTED that publication of this judgment under the pseudonym Kitson & Black is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1308 of 2013
| MS KITSON |
Applicant
And
| MR BLACK |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting dispute about the best interests of two children: X born (omitted) 2004 and Y born (omitted) 2008. The applicant mother seeks that the children live with her and spend time on a regular basis with the father. The respondent father seeks that he have sole parental responsibility, that the children live with him and spend supervised time with their mother. The Independent Children’s Lawyer seeks an order for joint parental responsibility and that the mother spend supervised time with the children, conditional upon her complying with preconditions as to drug screens and other matters.
Put in a very summary way, the father’s case, largely supported by the Independent Children’s Lawyer, is that the mother’s health, drug difficulties and interrelated incapacity to care for the children is so great that only supervised time is appropriate. The mother’s position is that she was the primary carer of the children until August 2013, and that while she acknowledges having some difficulties, the children’s best interests would be served by living with her and spending time with the father.
Although I am keenly conscious that my decision will deeply upset and disturb the mother, the position is regrettably all too clear. It is quite apparent that the mother is just not able to cope and that it is in the children’s best interests that the orders sought by the Independent Children’s Lawyer be made.
Agreed Facts
The mother was born on (omitted) 1983 and the father on (omitted) 1980. The parties appear to have been in a relationship from around about 2002 until either December 2012 or January 2013, depending on whose version of the events one accepts.
On any view, the relationship between the parents was extremely volatile and although the mother and father give different accounts as to the extent to which they lived together as a couple, there can be no doubt that these two volatile and immature people separated and re-partnered on at least a number of occasions.
As earlier indicated, X was born on (omitted) 2004 and Y on (omitted) 2008. X, it appears, was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) at a young age, but the father has struggled to accept the diagnosis. It appears that X was prescribed and took Ritalin for a short period of time, but the parents ceased this treatment, because they felt it made X a zombie. They do not appear thereafter to have pursued the question of X’s further treatment.
The father, on any view of the matter, has an extensive criminal history, although it should be noted that he says it is all long ago, before the birth of the children. The objective evidence may not fully support that proposition.
Although the parties have attempted to self-exculpate to an extent, there is no serious doubt that the relationship between the parents was characterised by family violence from time to time. This violence included an assault by the father on the mother in mid-2011 (the father’s Affidavit, filed 1 March 2013, admits that his hand hit her face).
It is also clear, taking the evidence as a whole, that both the parents have used corporal punishment on the children from time to time.
Although the father says that there was a shared care arrangement while the parties lived together (and it should be noted that the extent to which they lived together is very much an issue on the mother’s material), it seems reasonably clear that he was in full-time employment throughout the relationship. Although he denies it, it seems far more probable than otherwise (even if not formally actually agreed) that the mother was the primary carer of the children until 2013.
The proceeding commenced with the mother’s Application filed 22 February 2013 seeking a recovery order and other parenting orders. This followed an over-holding by the father following changeover on 25 January 2013.
On 5 March 2013 Orders were made by consent which returned the children to the mother, although as early as 26 March 2013 the father was filing further affidavit material challenging the success of the Court ordered regime. The Orders made 5 March 2013 followed a s.11F Family Report by Ms G, which noted, inter alia, that X had ADHD but was not medicated, that both the children were immature for their age, that there had undoubtedly been family violence but that in Ms G’s opinion the children were not at immediate risk with either parent.
In August 2013 the mother lost her then accommodation and voluntarily returned the children to the care of their father. The father admits that the mother would have intended the children to revert to her care once she found further accommodation, but this has not occurred.
From about the beginning of 2013 until a point the subject of dispute, but certainly no earlier than about September or October 2013, the mother was in a relationship with Mr A. Mr A is a man of some considerable notoriety. A photograph of one of Mr A’s baby children holding a (omitted) has received very wide publicity.
In August 2013 the father re-partnered with Ms J, who now lives with him and has a relatively prominent role in the children’s lives.
The Affidavit Material of the Parties
I do not propose to go through the affidavits filed by the parents at any great length. For reasons which I hope will become apparent, it is neither appropriate nor necessary to do so.
The mother’s affidavit material paints a picture of significant ongoing family violence perpetrated by the father against her. She makes repeated assertions as to the father’s criminal history, which she asserts is effectively ongoing, involving the father in drug trafficking and contact with known criminals. The mother asserts that she was the primary care-giver of the children throughout the relationship, which she describes as on-again off-again, with very little time spent actually living under the same roof with the father.
The mother admits a history of depression, but I note that in her affidavit material (see trial Affidavit filed 30 January 2014, paragraph 28) she says that, “… I previous took Zoloft 100 mg per day. I take my medication every day as prescribed. My depression is controlled and I see my doctor when required.”
The mother admits a history of recreational drug use before the children were born and, at paragraph 29 of her trial Affidavit, “…sometimes when they were very young (but never when the children were in my care).” She went on to say that she no longer takes drugs and has not done so for some time.
The father’s affidavit material is similarly accusatory of the mother. On his version of the events, the parents lived together for more extended times than the mother asserts. He asserts that there was a shared care arrangement but, for reasons I have already set out, I do not accept this.
The father has much to say about the mother’s mental state, including her depression and her association with Mr A, a man of known criminal antecedents. The father accuses the mother of hitting the children and recites a long history of the inadequacies of the mother’s care of them and the frequent necessity for either himself or his mother to collect the children from school and otherwise assist in their care.
It will be noted that this brief recitation is necessarily a very broad paraphrase of the extensive materials the parties have filed. It is not necessary, as I have said, to deal with this in more detail.
The Family Report of Mr B dated 2 December 2013
Mr B noted the various difficulties that had attended the preparation of the report (page 4) and the differing narratives of the parents as to the nature of their relationship (page 4). Mr B noted that there had been a total of two Intervention Orders obtained against the father in the past by the police on behalf of the mother, and also the denials of the father of the allegations of violence made against him and his assertions that it was the mother who would initiate such events.
Mr B noted that he had some difficulty understanding the exact nature of the care arrangements for the children from November 2012 until January 2013, noting that both parents were vague in this regard and unable to recall specific events or dates when asked for clarification. I share that confusion also.
At paragraph 6, page 5 of his report Mr B noted:-
On the 23rd January 2013 Mr Black heard about a “siege” involving a Mr A, a member of the “(omitted)” bikie group. Ms Kitson was present with Mr A when the police conducted the raid on his home. It appears Ms Kitson was in a relationship with Mr A unbeknownst to Mr Black. Mr Black indicated that this was the first knowledge he had of his ex partner being in this relationship, and this event sparked their final separation. At this point in time Mr Black refused to hand the children back to their mother or for them to spend time with her, fearing for their safety.
Mr B noted that, notwithstanding the orders made for the children to be returned to their mother in March 2013, the mother had no alternative but to give the children back to the father when she lost her home in August 2013.
At paragraph 9, page 6 Mr B noted:-
In September 2013, Ms Kitson introduced the children to her boyfriend Mr A despite Mr Black ( as well as the ICL) making it clear that she was not to bring the children anywhere near him. This event in particular distressed Mr Black considerably as Mr A was raided in the past (2 years ago) by a police taskforce, and convicted of possession of explosives, firearms and other criminal offences.
Mr B noted the Orders made on 18 October 2013, which required the mother to have only supervised time with the children, and this was conditional on the mother providing drug screens to the Independent Children’s Lawyer, and suggested a suitable supervisor. These conditions not having been fulfilled, the father had only allowed telephone contact and one recent visit.
The relatively recent visit was the subject of disputed assertions by the parents.
Mr B paraphrased the assertions made by each of the parents against the other and those are, in my view, consistent with the broad paraphrase of the affidavit material I have set out above.
I note that when challenged about her drug use, the mother was “somewhat circumspect”. Mr B noted at page 11:-
Pressed on this issue Ms Kitson stated that it had been “2 to 3 years ago”, that she had used “speed” and that it had been a “one off” occasion.
When pressed about the father’s assertions as to the mother’s ill-health and associated incapacity to get out of bed, leading to X missing a lot of school, the mother was noted to be somewhat contradictory. Her answers, as recorded by Mr B at pages 11 to 12, would properly meet this description. Mr B noted at page 12:-
Asked for some clarification about her comment Ms Kitson stated that she had never been formally diagnosed with depression. Asked why she then had been prescribed with medication, she stated “that's what they gave me”. Ms Kitson was vague and contradictory regarding her depression and this writer was unable to get a complete understanding from her about this issue.
Mr B noted, at pages 12 to 13, the father’s assertions about the mother’s incapacity to parent the children properly, including particularly their schooling. He noted the assertion that the mother would book the children into after-school care and not pick them up until 6.00 pm, despite the fact that she was not employed. He noted the alleged requests by the mother to the father and his mother to collect the children. The mother stated that whilst X did miss some school, it was not excessive. Mr B noted, at page 13, from subpoenaed material from X’s school, that in 2010 he was late on 18 days and absent on 35 days. In 2011 X was late on 21 days and absent on 32 days. In 2012 he was late on 26 days and absent on 64 days. In 2013 until 18 October, X was late on 31 days and absent for 5 days. As Mr B observed, “The above statistics are, in the view of this writer, quite significant and point to some serious issues regarding X’s school attendance record”.
Mr B traversed the competing assertions as to the mother’s care of the children, including their food and the problems of the inter-relationship with Mr A. Mr B noted, at page 15, that:-
Ms Kitson stated that she was no longer in a relationship with Mr A having ended their relationship 4 weeks ago. (Mr Black disputes this and insists that his ex partner is still involved with Mr A).
Mr B went on to say, at paragraph 15:-
Whilst the parents were interviewed separately, the general impression gained from their narrative was that their communication is at best very poor, they lack trust in each other, and their capacity to cooperate and interact is most likely severely compromised.
In his assessment of the adults, Mr B dealt first with the father. He noted that the father presented as settled in his demeanour and not prone to hyperbole. Mr B noted the difficulties that the father has with understanding words, and I note that when the father was assessed by Dr S, the father’s significant difficulties with reading were clearly identified.
The father stated that he had a routine for Y and X, and described these in a fashion that Mr B plainly found convincing.
In relation to the mother, Mr B’s report was much less laudatory. At paragraph 19, page 17 Mr B said:-
Ms Kitson presented as a slightly built woman who appeared to be emotionally labile, unsettled, anxious, at times voluble, and displayed emotions ranging from grief, to anger, incredulity and frustration. She was at times combative and quite openly angry and agitated. This was particularly evident when she was challenged (as any professional would during the course of an assessment). In this regard Ms Kitson did not appear to have a clear appreciation of what the assessment process entailed (despite attempts to explain this to her) and at times she commented that the process and this writer were biased and against her.
Further on in the paragraph Mr B continued:-
Ms Kitson's unsettled and emotionally labile presentation was further compounded by an inability to focus on issues, with a tendency to drift of a topic and have to be constantly re focussed. The picture and mood of Ms Kitson is perhaps best encapsulated by her tearful comment that “and I get this interview at a time when I'm in such a state and I haven't seen my children ...It's not fair I'm not prepared I'm upset”.
I note that at paragraph 20, page 17 Mr B recorded:-
She maintains that she terminated her relationship with Mr A approximately a month ago, however she firmly maintained that he did not pose a threat to the children, and that his past offences were irrelevant to his character as a person.
I would interpolate and point out that the mother conceded, in her Affidavit filed 30 January 2014, that on 18 October 2013 at Court she had said to the Independent Children’s Lawyer, “Why should I keep my children from Mr A?”, something she said in her later affidavit that she regretted saying.
Mr B recorded that a pivotal theme that emerged from the mother was that of the abuse she had suffered from the father. She also described another incident described in her affidavit material, whereby her ex-partner would bug her car by using GPS tracking devices and that he was still a drug dealer with connections to significant underworld people with an extensive police record (paragraph 21).
Mr B recorded, at paragraph 22, the mother’s concession that, to an extent, the father could meet the children’s physical and emotional needs, but the mother pointed out that the father works full-time and has help from his own mother and girlfriend to care for the children. She was concerned that the father would brainwash the children against her and that the children tell her they want to come home with her. For those reasons and the basis of her experiences with father and her belief that she was the primary carer, she strongly believed the children should be returned to her, given that she now had housing.
Mr B recorded his interviews with the children at pages 19 to 23 of his report. X said that his mother gets angry a lot (paragraph 24) and that he felt unsafe as a result. X said that his mother and father used to argue a lot and that he and his sister would go in the lounge room.
X spoke in approving terms of his experiences with his father and less satisfactory experiences with his mother (paragraph 25). At paragraph 26 X confirmed that his mother gets angry and hits the children, and X expressed a preference to remain living with his father and to spend time with his mother each alternate weekend and each Thursday after school, as this was “fair” (paragraph 27).
Y’s position was less clear, and she did not indicate a preference for living with either parent and was not sure about the issue (paragraph 30). Mr B observed each of the parents with the children and said at paragraph 33:-
In summary the noted interactions between the children and both parents did not indicate any behaviours that are indicative of the children experiencing emotional discomfort interacting with their respective parents and are consistent with the notion that throughout their lives both parents have had involvement with their children. However the emotional state of Ms Kitson (understandable and acceptable under the circumstances) may have placed the children in an emotionally compromised position whereby they felt that they had to comfort their mother. In tum Ms Kitson made no attempt to engage in play behaviour with the children. Given her highly emotional state, and the preceding circumstances whereby she had not seen or spent time with the children for some time, it would be disingenuous of this writer to make any assumptions about her capacity to engage with the children in a more light hearted and playful capacity. Further prolonged observations under less stressful circumstances would be required to reach any clear conclusions. In summary the children are comfortable and quite accepting of both their parents.
The evaluation made by Mr B is important and, notwithstanding its length, I propose to set it out in full.
At paragraph 34, page 23 and following, Mr B said:-
34. The parents in this matter appear to have been in a relationship characterised by a somewhat chaotic, disorganised and problematic dynamic affected most likely by domestic violence and drug and alcohol use. Each differs in terms of their perspective, and offers somewhat differing scenarios. This writer remains largely unsure as to where the reality lies with these parents. Nonetheless, from the somewhat nebulous, often incomplete and somewhat challenging presentation and circumstances of this matter the following conclusions are drawn.
35. The background of the father in terms of his criminal history and involvement in drug dealing suggests that there is a reasonably good likelihood that Mr Black more likely than not may have physically, verbally and emotionally abused his ex partner Ms Kitson during the course of their relationship. The general presentation of the mother also suggest that Ms Kitson may also have either instigated or in self defence or otherwise retaliated against Mr Black verbally and possibly physically.
36. There is little doubt from the narrative of the children that they were present or nearby and witnessed or heard the altercations between their parents. As such it is reasonable to assume that these children have over the years been exposed to domestic violence. The long term effects for children of such exposure is well known and poses a significant developmental risk to them both now and in the future.
37. The presentation of the mother is quite problematic. It is alleged that she has suffered from long term depression, has used drugs in the past and may be doing so now, and has formed a relationship with a person that has a significant criminal background and convictions for drug and weapons offences. Ms Kitson presented as emotionally labile, unsettled, nervous and anxious. One must take into account that if her experiences during the course of her relationship with Mr Black are correct, and to a degree they most likely are, she has been affected by the violence perpetrated upon her. Compounding these issues is the fact that as any mother, there is no doubt that she loves her children and misses them dearly. Not having her children with her, as well as the pressures and stresses of the current legal proceedings all combine to affect her in an adverse manner. However, her noted affect and behaviours cannot be fully accounted for by these factors and stressors. Her answers were at times evasive, and lacked detail or logic. This was particularly so in reference to her use of drugs, and her emotional health. In reference to her relationship with Mr A and the view that his actions and past background do not pose a threat to the welfare of the children shows a complete lack of insight on what constitutes "normality" and the capacity of someone with Mr A's background and history to be an appropriate person for the children to be exposed to. In summary, the presentation of Ms Kitson at this point in time precludes the option of recommending that the children are placed back in her care. When the evidence is tested, and there is significant and compelling evidence to indicate that Ms Kitson does not have issues with drug use, has no mental health or personality disorder and has addressed the issues relating to Mr A, then the option to return the children to her care may perhaps be considered.
38. In relation to the parenting of the children, whilst there was no clear evidence to suggest that Ms Kitson would, or had, wilfully abused the children, one must assume by her narrative that she has had great difficulty controlling and imposing limits on them. X has had a diagnosis of ADHD in the past, was medicated for this, yet it would appear that BOTH parents chose to take X off his medication. This decision and the fact that neither parent appears to have followed up on this issue is concerning. The brief observation and assessment of X suggests that he can be a boisterous and active child. As such one can imagine him posing a challenging and difficult set of behaviours for his mother at certain times with Ms Kitson unable to effectively deal with these issues and behaviours. There is also no doubt whatsoever that her capacity to ensure that X attended school on a regular basis was highly compromised. Thus, these occurrences would all tend to support a hypothesis that Ms Kitson’s parenting of the children may have been compromised as a result of several overarching factors, such as domestic violence possibly compounded by depression, use of illicit drugs and alcohol and poor parenting skills.
39. Mr Black appears to have a colourful criminal history. It is alleged that he may still in fact be associating with people that are involved in criminal activities. If there was conclusive evidence to indicate that Mr Black has perpetrated domestic violence on Ms Kitson, then this shows a distinct lack of insight on the part of Mr Black and a lack of respect and decency not only towards the mother of his children but also towards the children themselves. If Mr Black is prone towards a violent personality, it is likely that he may continue in this vein with his current partner, thus exposing the children to further violence and risk. If all the allegations of abuse, violence stalking and controlling coercive violence by Mr Black towards Ms Kitson were proven, there may be a compelling case to return the children to the care of their mother. However this course of action may be contraindicated if Ms Kitson poses a threat to the children by way of her behaviours relating to her mental health, drug use and association with people that threaten the safety and stability of the children. Thus one encounters the classic “Catch 22” scenario, whereby one has “a problematic situation for which the only solution is denied by a circumstance inherent in the problem,”.
40. From a parenting perspective, Mr Black appears to have achieved a level of stability for the children that may not have existed whilst they were in the care of their mother. This is evidenced by the children's narrative, overall presentation and what appears to be a reasonable and comparatively better school attendance record for X. Mr Black also appears to have resources at his disposal that allow him to care for the children given he is in full time employment, that is his mother who lives in very close proximity to him, and his girlfriend Ms J.
41. There was no doubt from the observations conducted that both children love and value their parents. Whilst X appeared to have a preference to continue living with his father, a reverse scenario did not appear to particularly disturb him. Y appeared non committal, however there is no doubt that she misses her mother. Both children would welcome more time with their mother. In this instance the views and wishes of the children are inconclusive. Their level of maturity is also such that any views and expressed wishes should not be given any significant weight by the Court.
42. Notwithstanding any future findings that the Court may make however, with the current information available to this writer, the observations made of all the parties and the limitations affected by circumstances in this matter, this writer believes that the children at this point in time should remain in the care of their father, and spend supervised time with their mother. This time should be conditional upon Ms Kitson providing clear supervised drug screens on time and when requested by the ICL, and not exposing the children to Mr A or other people likely to adversely affect the physical and emotional wellbeing of the children.
The Reports of Dr S
Dr S saw each parent for the purposes of a psychological evaluation. His report in respect of the mother is dated 17 December 2013, following an assessment on 11 December 2013. There were difficulties in obtaining the report on the father, arising out of fees issues, if I understand the matter correctly.
It is not necessary to refer to the report on the mother in detail, but I note the following set of findings at paragraph 17, page 7:-
Ms Kitson has little insight into her own difficulties. She presented with a clear picture of personality problems, with borderline features. In particular the following are present:
a. Marked impulsivity with respect to behaviour;
b. Consistent mood fluctuation in particular with depression;
c. History of problematic relationships with substance use;
d Presence of substance use;
e. Self destructive behaviour such as developing a relationship with a known offender in the context of Family Court issues;
f. Black and white (dichotomous cognitive functioning)
g.Insight: Ms Kitson presents with little insight into her own psychological difficulties. For example in relation to her ex-partner Mr A, she reported that he is not a bad person but has not chosen a good path.
At paragraph 18 Dr S observed, having conducted the Family Strengths and Needs Assessment (“FSNA”) test, that:-
With respect to family strengths and needs, Ms Kitson has substantial needs in a variety of different areas and children in her care at this point, are at High risk.
At paragraphs 20 to 24, page 11 Dr S observed:-
20 Ms Kitson is a 30 year old woman psychologically evaluated in relation to Family Court matters. A parental risk evaluation was undertaken. She is a woman who has grown up under abusive and neglectful childhood experiences. She has had difficulties with emotional functioning since childhood. She has used substances significantly in her adult years. Her relationships have been typified by violence. After her relationship to the father of the children which is reported to have been violent, she then developed a relationship with an individual with a significant history of offending. She has had some antidepressant treatment but no formal long term psychological treatment, to address the personality issues inherent in her difficulties.
21 Ms Kitson was diagnosed with Borderline Personality Disorder and has had problems associated with substance abuse in the past. It is likely that substance abuse remains an ongoing issue.
22 With respect to Family Court issues, this evaluation via the FSNA identified significant risk for children in her care, with likely deficits in a variety of different areas as identified in this assessment, particularly within the area of mental health, substances and relationships. She has low insight into her own difficulties and presented as very dependent on relationships with individuals with their own problems.
23 Ongoing risk is related to Ms Kitson’s own parenting, exposure of the children to her relationship and her substances abuse, and the conflict with her ex-partner.
24 Ms Kitson requires intensive psychological treatment to address her personality issues over the next 1 to 2 years, and intensive substances abuse treatment over the same time. If she parents on her own, the risks are Ms J than if she remains with her current partner.
The psychological evaluation of the father is dated 12 February 2014, following an assessment on 10 February 2014.
Dr S noted at paragraph 4, page 5 that the father “presents as a man who has had literary problems”.
Dr S noted the father’s account of the relationship at pages 5 to 6 and observed at paragraph 12:-
In summary there was a picture of a chaotic relationship with issues of jealousy and violence as well as drug problems.
Dr S noted, at paragraph 17 and 18, the father’s history of criminal activity, and noted at paragraph 18:-
Mr Black more recently has had a charge for importing weapons, which he described as security batons. His account was that they were to be used on a show car and he was unaware that he needed a licence for them.
As with the mother, Dr S conducted a FSNA test and this rated the risk level as moderate.
At paragraph 28, in his conclusions, Dr S observed:-
Collateral information in this matter may provide some light which would add substance to the claims made by Mr Black. Nevertheless his presentation is of a man with some tendency towards emotional stability despite the accounts identified in this report. There is no identifiable personality or other mental health difficulty. He appears to take a generally protective attitude towards the children, although this attitude contrasts with the past history of domestic violence. Although Mr Black portrayed this issue as being related to his ex-partner’s instability and volatility, there was no indication that he had actively attempted to resolve or end the relationship because of this issue, and as such, his account must be questioned. His preparedness to remain in a chaotic relationship, irrespective of the relative contributions to the chaos, suggests that his account is likely to have minimised his contribution to the family processes, and it is difficult to accept his accounts therefore at face value. His current circumstances appear to be more stable. Clearly there are significant allegations against him. It may be left to the Court to determine the nature or veracity of these allegations. Obviously, if the central allegations against him of his ex-partner can be validated, especially related to domestic violence and substances, the results of this evaluation would be altered. Based on this evaluation and the context of the Family Court proceedings including the information obtained through collateral sources, it would appear that Mr Black presents with some ability to care for the children.
The Department of Human Services Report dated 31 May 2013 (tendered as exhibit R1 on 18 October 2013)
This report was prepared pursuant to ss.67Z and 67ZBZ of the Family Law Act 1975 (Cth) (“the Act”).
A first child protection report made on 2 November 2011 was assessed as having been maliciously motivated. The case was closed at intake.
A second child protection report was made on 19 November 2012. The report says:-
The subsequent investigation into this report revealed that there had been a history of family violence perpetrated by FA Mr. Black against Ms Kitson, often in the presence and/or hearing of both children. Mr. Black was alleged to have attended Ms. Kitson’s workplace and physically abuseed (sic) her manager, causing Ms. Kitson to lose her job. The children were not present during this altercation.
The report noted that the children were returned to the mother’s care thereafter, and the children were not assessed at risk of significant harm, and the case was closed at intake.
The bulk of the report relates to protective concerns following a child protection report received on 6 March 2013. This, essentially, had asserted that the mother abuses, and swears at, and denigrates the children, and smacks them, and that they were exposed to illicit drugs. The writer interviewed X on 27 May 2013, and X made disclosures of being sworn at, yelled at, hit and drug use by the mother. Y had little to say other than that the mother “yells at us”.
I note that in an interview with the mother, also on 27 May 2013, she “agreed that she took recreational drugs, including amphetamines, until about two years ago” (ie, 2011). She vehemently denied using drugs since.
The assessments made by the writer were that the mother did yell at the children frequently, but “While this type of verbal abuse poses the risk of long-term negative impacts on the children, it does not constitute ‘significant harm’ as described in the Children Youth & Families Act 2005. It is my view that this risk will be mitigated by (i) the resolution of the current Family Court custody dispute, and (ii) Ms. Kitson successfully engaging with a family violence support service.”
The report accepted that both parents used corporal discipline upon the children, but “it is highly unlikely that the corporal punishment by either parent is serious enough to constitute ‘significant harm’. Further, I expect that both parents are less likely to use this type of discipline once the stresses of the current custody dispute is resolved, and both parents have engaged in an appropriate support service.”
The report writer found that the evidence for the allegation about drug use was equivocal. The report found that the allegation that X was left unsupervised for extended periods was not made out, and that any exposure to cigarette smoke in the vehicle was not a child protection issue in the circumstances.
The report went on to state at page 6:-
There are several low-level protective risks confronting this family, which I will now discuss separately.
Firstly, I consider it highly likely that X - and to a lesser extent Y - have been coached in how to respond to questions from Child Protection. X's answers were, in my opinion, atypical of a child of his age, were too specific, repeated too often, and volunteered too readily, and cannot therefore be considered spontaneous or reliable. His comments, especially his earlier allegations about his mother hitting both children, sounded as if they were learnt almost by rote. He immediately volunteered information that was highly critical of his mother, whereas most children in my experience take some time to establish trust with an interviewer before disclosing such information. The vast majority of his comments were highly slanted towards his father's perspective of events, and highly negative about his mother. This points to the possibility that both children are being used to influence the outcome of the Court proceedings, an action that is almost certain to have negative impacts on the long-term wellbeing of the children.
Secondly, the ongoing acrimony between the parents, with its associated legal action and financial pressures, is having a significant impact on Ms. Kitson’s level of stress and anxiety. She is considerably isolated, and is attempting to deal with all of these matters essentially alone, and this is having an impact on her parenting. She readily concedes that she yells at the children more than she considers appropriate, and has sought professional help to improve this. The effects of her stress level on the wellbeing of the children are clearly observable, and will only be reduced if she engages with appropriate professional support.
Thirdly, significant family violence has been perpetrated by Mr. Black in the presence and hearing of one or both of the children. The long-term negative impacts of family violence are well-known, and include an increased risk of the children suffering depression, isolation, failed relationships and other dysfunctional behaviours. Complicating this is Ms. Kitson’s new relationship with Mr. A, another male with a history of family violence. While there is no reason to disbelieve her assertion that Mr. A has had no contact with her children, this may change if the relationship continues. There remains a real risk, therefore, that the children might again be exposed to family violence, especially if Mr. A fails to deal with his violence and anger issues.
The report went on to say that, nonetheless, none of the allegations satisfied the criteria of significant harm or unacceptable risk as mandated in the Children, Youth and Families Act 2005 (Vic) and made suggestions whereby the parents could access assistance to cope with their difficulties. The report concluded:-
Further, I have concluded that this report is primarily driven by custody motivations, and not by genuine child protection concerns. Accordingly, I respectfully recommend that this case is closed, and that no legal intervention is pursued. It is my assessment that X and Y are not a risk of significant harm in their current circumstances.
The Evidence given at Court
The Evidence of the Mother
As with the affidavit material, I do not propose to traverse this at great length. That is because in this case, in the ultimate, it is the evidence of the independent professionals that has particular force. That does not mean, however, that I have not had proper and careful regard to the evidence given orally. What follows concentrates on particular aspects of the evidence given.
The mother, who had indicated that she was not prepared to proceed as she thought she would be represented, was called first and cross-examined at some length by the father. It is not profitable to record over much of what emerged, as the questions involved assertions which the mother very naturally denied.
I note that the mother conceded that she had taken the children to see Mr A, notwithstanding the reservations so clearly expressed by not only the father, but the Independent Children’s Lawyer also. The mother was cross-examined about why it was that she had the children in after-school care till 6.00 pm, even though she did not herself work. Her answers were to the general effect that she had some appointments outside school hours with such people as social workers, doctors and psychologists. These answers were, frankly, unbelievable. They did not explain adequately at all, in my view, why it was necessary for the children to be in regular after-school care when the mother was not working.
The mother conceded that there were a number of occasions when the father had to collect the children at 6.00 pm from after-school care, although, she disputed the amount asserted by the father. When the father asked, “Where were you?” (on these occasions), I have to say that the mother really did not provide any answer at all. The father put a number of questions to the mother about her relationship with Mr A. She denied meeting him through drugs, but said they met through friends. She did, however, confirm that she was at Mr A’s house when it was raided in January 2013, and that there had been a stand-off of about one hour at that time. She still thought it was appropriate that the children meet Mr A, notwithstanding this siege.
Under cross-examination by the Independent Children’s Lawyer, the mother repeated her assertions that the children had been in after- school care because of various doctors’, psychological and tax appointments and the like. I repeat that these answers are totally unbelievable.
When questioned about the children’s schooling, it became apparent that the mother really was unable to remember which school the children had been at or, with any precision, when.
The mother was cross-examined about exhibit ICL1, a report from Ms K, psychologist. Ms K had conducted an intellectual assessment of X, with consideration of an ADD diagnosis, as a result of a referral by the Independent Children’s Lawyer. The conclusion at paragraph 21 was:-
According to the results of the Intellectual Assessment completed by X, there is a clear indication that he has learning difficulties. There is also support for a provisional diagnosis of ADD. Collaborative evidence would need to be provided from a classroom assessment for a final diagnosis. It should be kept in mind, however, that the results may have been somewhat affected by the problems in the home.
The report recommended that a considerable amount of attention be put in place to assist X’s learning and concentration difficulties and also recommended that he return to his paediatrician for assistance. The mother confirmed that she had not followed up on these recommendations, but said she had a lot to do.
The mother was further cross-examined about her relationship with Mr A. She said the relationship commenced in January 2013 and finished at the end of October or the start of November. She was unable to recall the last date she saw Mr A, but did say she had seen him this year at his property, but could not say if it was in the last week. It was put to her that she had seen him since the previous Court date. She was unable to recall. Her answers about all of these matters were, in my view, utterly unconvincing.
She confirmed that she had seen Mr A the week after New Year’s Eve and may have seen him more than once. She said she saw him a handful of times in January, when collecting belongings. She had taken the children to Mr A’s home during the period August to October 2013 and this was a bad decision. She was unable to say when her last Facebook contact with Mr A occurred, but it might have been the last week. She denied, however, being in a relationship with him.
The mother was cross-examined about the time she had spent with the children pursuant to Court orders, but was unable to give any explanation why she had not seen the children on the various weekends that she had missed.
She was cross-examined about an occasion when she had a significant argument with her own mother in the presence of the children. She was unable to remember what it was about. The children were not in the room, but probably heard it.
The mother was taken to the school records showing the enormous amount of times that X had been late or missed school. She conceded that if this was correct, it was not good. It was put to her that no time had been missed since the children were living with their father, but replied that that’s what he says. She confirmed she had not rung the school herself to check.
The mother was cross-examined extensively by counsel for the Independent Children’s Lawyer about her failure to comply with drug screens, evidenced in the materials tendered by the Independent Children’s Lawyer. Her answers were, in my view, extremely evasive and unconvincing.
When cross-examined about her mental health, the mother said she took Zoloft for a couple of years, but had not seen anybody for depression as yet. She said she was depressed at the moment and relies upon social workers. I note that the mother’s assertion, in her trial Affidavit, that her depression is controlled with the assistance of her doctor is plainly untrue.
The mother said she is now better. She has her own home and the father is out of her life. She is not presently working and would find it very difficult to maintain a job. She said that not having the children was breaking her apart.
When asked what she had done to enrol in a parenting program she said she had rung but they had not rung back yet. She has not undertaken a parenting course.
The Evidence of Mr T
Mr T is the partner of the maternal grandmother. It is not necessary to traverse his evidence in any great detail. He did give evidence about the fight between the mother and the maternal grandmother on 18 January 2014. The maternal grandmother was threatening to call the police when Mr T walked into the room. Y, the mother and Mr J (an uncle of the two children in this case) were crying. The relationship between the mother and the maternal grandmother is at times volatile.
I should paraphrase and make it clear that Mr T is clearly a supportive parent to the mother, and a person who would do his level best to assist both her and the children in any way required.
The Evidence of Ms F
Mr F is the maternal grandmother. She deposed to the good relationship that X and Y have with her children Mr J and Mr C, who are of a similar age to X.
Ms F conceded that her relationship with the mother is sometimes volatile.
It is sufficient to repeat, as with Mr T, that she impressed me as a thoroughly honest witness who would do everything in her power to assist the mother and the children.
The Evidence of the Father
The father was cross-examined by counsel for the Independent Children’s Lawyer about X’s ADHD. He confirmed that although there was a diagnosis when X was about three years of age, he did not accept this diagnosis. X had been put on Ritalin, but not for long (a month or two), and his parents decided that it was inappropriate to continue it. The father said that they did not think it was necessary to see another paediatrician.
The father was cross-examined about a suicide note prepared by X and found on 8 January 2014 on his bedroom door. The father had rung the Independent Children’s Lawyer, but had not told the mother about it.
It emerged that X had been assessed and found to be at low risk and had benefited from spending a night with his grandmother with whom he is apparently very close.
The father conceded that X’s ADHD perhaps needed to be reassessed and said he would not oppose such reassessment.
When cross-examined about his violence towards the mother and the Intervention Orders that had arisen from it, the father conceded that he had smashed her car window with his fist on an occasion when she was sitting in the car. He said this was not family violence. This was the case notwithstanding that the window was on the side where the mother was sitting and the glass had hit her and the police had “showed up”. He said he had to consent to something, which was why there was an Intervention Order.
The second Intervention Order followed a fight with a colleague at the mother’s workplace.
The father also agreed that in 2011 or 2012 he had hit the mother in the face. He said she was on the phone and he listened to her doing a drug deal. He grabbed the phone and her lip was split. He conceded the mother probably sought medical treatment, but said this was not needed.
The father indicated that he had no mental health issues at all and did not agree that it was important he attend Dr S. His appointment was due for 10 February 2014 (this evidence being given on 4 February 2014) and said he would not go unless he was ordered to do so.
In response to questions about the mother’s relationship with her children, the father had a habit of answering questions with questions and was strongly accusatory of the mother.
I note that the father did admit that annexure K3 to the wife’s trial Affidavit was, indeed, posted on his Facebook. This very disturbing image, which clearly shows a man assassinating a woman by shooting her and making her fall off a cliff, was the subject of no contrition or insight by the father whatsoever. He had absolutely no apparent idea as to how an image like this might affect her.
The father was cross-examined extensively by the mother but, as with his cross-examination of her, much of this involved simple disagreements between them. I note that he conceded there had been altercations in front of the children, although, he asserted that the mother was the instigator and attacker.
The father was cross-examined about attending a parenting course and a men’s behavioural course. He said he had not attended the former and said he was still waiting for the latter. His answers in this regard, in my view, were thoroughly unconvincing.
I note the father said he had done the drug screens that were required of him.
Given the opportunity, as it were, to re-examine himself, the father relevantly stated that he would take X to assessment for ADHD and would address the issue if it was diagnosed.
The Evidence of Ms S
It should be noted that in paragraph 18 of her Affidavit filed 17 May 2013, Ms S the paternal grandmother deposed that on 29 January 2013:-
…I sat Y on the toilet for her first ever time. This was 3 weeks before her fifth birthday. Y is now capable of attending to her toileting needs without assistance.
This assertion was not the subject of challenge, and it would seem to me that not only does the paternal grandmother clearly have a very close relationship with X, but the success of the toilet training of Y would seem to be properly placed with her.
In evidence-in-chief the paternal grandmother gave what I found to be believable evidence about her strong bond with Y and the assistance she both now provides and has provided in the past with the children. I note that the children now do their homework if the paternal grandmother is the one that takes them home, and that there is an established routine.
I note, further, that according to the paternal grandmother the father has been in a relationship with Ms J since 5 August 2013 and that each of them help with the drop-off and pick-ups from school. The paternal grandmother conceded that the father would struggle without her assistance and that of Ms J.
The paternal grandmother remembered the diagnosis of X with ADHD when he was about three years of age. She said the mother took it seriously, but the father did not, because he did not believe it.
The Evidence of Ms J
Ms J is the partner of the father and they have been in a relationship since August 2013, although, they have known each other for two years.
Ms J said the children were very unsettled when they first came into the father’s care, and there were numerous tantrums during the day. The children are now more settled, with a set routine and less tantrums. She had taken time off over the school holidays to assist and does drop-off and pick-up at school and keeps regular contact with the children. She said that she has a very strong bond with the children.
Under cross-examination by counsel for the Independent Children’s Lawyer, she confirmed that the children were with the father from 4 August 2013 onwards, and that she moved in with him in the last three to four months, ie, just before Christmas. She had not met the children before she started her relationship.
She started doing the school drop-off within a couple of weeks of the relationship and certainly by the end of August 2013. The paternal grandmother also does so. She had changed workplaces to make things easier. She confirmed that she drops off the children to school two to three times a week, and the paternal grandmother does so if not her. She said she helped the father institute a regime and that while Y was very unsettled at the start of the relationship, she settled down.
I note that Ms J was well able to name the children’s teachers both for this year and last year, and it is quite clear that she takes an active and very proper interest in the children’s homework and school activities. She said that the children were comfortable with her.
Ms J said that she had never seen the children with the mother, but had heard X say to a friend that he did not really care for his mother, in late August 2013. To her credit, Ms J said she knew that that is not what X really feels.
The Evidence of Mr B
Mr B was made available for cross-examination but, in my view, nothing of any moment emerged from it. Mr B answered all questions put to him courteously and responsively. His evidence was not really the subject of challenge and, in any event, I should make it clear that I accept it.
The Evidence of Dr S
Dr S was called to give evidence on 15 April 2014, following the parties’ final submissions on 4 April 2014, because the mother requested that he be made available. I note that under cross-examination by the mother, Dr S said that he considered a personality inventory for both parties, but had not used it on either parent, because the father was literacy challenged. He was not aware of the DHS report.
He confirmed that his evaluation took into account the circumstances of the children.
The mother put it to Dr S that she had been nervous during the consultation, but Dr S said the mother’s behaviour was way beyond normal anxiety. He confirmed that the FSNA is a risk instrument, not a diagnosis.
Dr S noted that he had taken the mother’s account of the relationship. He said whether it was correct remained to be seen. He said the relationship was characterised by violence but could not say to what extent. He said that violent relationships have negative effects on victims, and violence would have a very negative effect upon the mother.
Findings about the Facts
I would open with some very brief observations about the credit of the witnesses. The mother was, I regret to say, a very unimpressive witness. She was clearly labile throughout almost the entirety of the proceeding, and certainly the Court makes every proper concession to the enormously difficult experience the mother has found the trial process to be. Nonetheless, the mother’s answers, which I have set out in some detail above, showed a number of dramatically inconsistent and inadequate replies.
She was, as I have said, evasive and unresponsive and, indeed, in some circumstances utterly failed to answer questions put to her.
The father’s evidence was given with a greater degree of conviction, although, he was by no means entirely satisfactory either.
Taking the materials as a whole, it is clear beyond doubt that the father inflicted significant domestic violence on the mother over a protracted period of time. He admitted an assault in 2011, although, in a fashion characteristic with his evidence generally, he sought to explain it away. I have no doubt, equally, that the mother’s use of drugs has been far more extensive than she has been prepared to admit. Even on her own concessions, she was using drugs till 2011 and, given her fragile personality and failure to conduct drug screens, I can certainly not be satisfied that she is still not using drugs.
The father’s criminal past remains not entirely clear. He is happy to concede a string of convictions as a younger man. He has also been recently convicted and, once again, seeks to explain it away. In the ultimate the evidence does not go far enough, however, to accept the conclusion advanced by the mother that he is still actively involved in criminal activities and associates with crime figures.
The father has re-partnered with Ms J, who struck me as being an excellent if, inevitably, somewhat partisan witness.
It is clear beyond doubt that through, in large part, the good offices of the paternal grandmother and Ms J, the children have settled down very significantly, and Y has been toilet-trained and no longer wishes to sleep with her parents.
The children are now doing well at school. This contrasts with an unsatisfactory history while in the mother’s care.
The mother has suffered from depression for extended periods of time, but does not appear to me to be taking any active steps to achieve appropriate regulation and treatment. This may well explain her lamentable incapacity to ensure X attended school. The mother’s explanations are utterly unconvincing, and this is also the case in relation to why they were placed in after-school care when the mother was unemployed. The enormous absences and latenesses that X suffered could only have a detrimental effect on his progress at school, and the mother’s incapacity to deal with this or to satisfactorily explain it speaks for itself.
The mother’s lack of insight is further illustrated by her relationship with Mr A. People are, of course, free to fall in love with whomsoever they may wish, but it is staggering that the mother, having been present at what amounted to a siege at Mr A’s home shortly after the commencement of their relationship, would have continued it and felt it appropriate to, in effect, justify Mr A’s character and bring her children into contact with him. The point is so glaring that it is not necessary to emphasise it further.
Conclusions as to the Issues in the Case
The statutory pathway has been set out, despite some statutory amendment, by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65]. In the context of this case, however, while having due regard to the matters the Full Court set out, it is not appropriate to set it out in full. That is because the conclusions to this case are regrettably simple.
While I fully accept that the mother has the assistance of her own mother and Mr T, both of whom, as the Independent Children’s Lawyer submitted, are thoroughly decent people who would do their level best for the mother and for her children, the fact is that the preponderance of professional opinion accords so completely with the evidence given by the parties and the other witnesses, that the conclusion is inevitable.
This is a case in which, plainly, the presumption as to equal shared parental responsibility could well be set aside on the footing that there has been family violence, and there is a need to protect the children from the risk of psychological and physical harm. Dr S has assessed the mother as being at a high level of risk and the father moderate.
This is a case in which, notwithstanding this, the Independent Children’s Lawyer submitted that an order for equal shared parental responsibility was appropriate.
Little was said in submissions as to why this might be so. In my opinion, the presumption should be applied, because if it is not, the father will simply continue yet further to excise the mother from the children’s lives. As the Independent Children’s Lawyer submitted, the father’s bitterness towards the mother is palpable and his refusal to do a parenting course speaks for itself. The children do love their mother and will benefit from having a relationship with her if that can be safely achieved. Notwithstanding all the concerns that one might have about her as a mother, she dearly loves her children, and she ought to have the role prescribed by the statute, notwithstanding that there are so many qualifications. I note that the family violence, as I find, was inflicted by the father on the mother and not, as he says, the other way around.
Notwithstanding the application of the presumption, it is clear that this is not a case in which equal time can be contemplated nor, indeed, at this stage, can substantial and significant time. The mother’s weaknesses are just too great.
The reports of Mr B and Dr S, I regret to say, are fatal to the position for which the mother contends. Her lack of insight in asking that the children return to her care is really just part of her overall difficulties, but it is a very significant one.
In the context of this particular case it is not appropriate to traverse the matters in s.60CC of the Act seriatim. The reality is that until and unless the mother can address her difficulties with drugs and her health generally, it is inevitable that the children should not be exposed to the risks that time with her would give rise to.
I note the submission of the Independent Children’s Lawyer that the maternal grandparents would welcome time with the children, and I will make a notation to the effect that time with them should be encouraged.
Otherwise, it is entirely clear that all the orders that the Independent Children’s Lawyer seeks are appropriate. In the context of the matters I have set out in these reasons for judgment, it is unnecessary to deal with each of them individually. It is self-evident that they are orders in the children’s best interests.
I have prepared orders to give effect to these conclusions but, as is my usual practice, will give the parties an opportunity to study them, in case there are any additional matters they may wish to raise.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 26 June 2014
Key Legal Topics
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Family Law
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