Knight & Knight (No 3)
[2022] FedCFamC1F 800
Federal Circuit and Family Court of Australia
(DIVISION 1)
Knight & Knight (No 3) [2022] FedCFamC1F 800
File number(s): WOC 256 of 2019 Judgment of: SCHONELL J Date of judgment: 19 October 2022 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the mother sought to spend time with the children – Where there is an unacceptable risk to the children in spending unsupervised time with the mother – Where the risk can be managed by supervised time – Interim orders made for supervised time. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC Cases cited: Knight & Knight (No 2) [2022] FedCFamC1F 799
Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 17 – 19 October 2022 Place: Wollongong Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Williamson Isabella Lawyers and Public Notaries The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Hopper Solicitor for the Second Respondent: Inner West Solicitors Counsel for the Intervener: Mr Anderson Solicitor for the Intervener: Crown Solicitor’s Office Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Rowley & Associates ORDERS
WOC 256 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B KNIGHT
Applicant
AND: MS C KNIGHT
First Respondent
MR MARSH
Second Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
19 OCTOBER 2022
THE COURT ORDERS THAT:
1.By consent, orders are made in accordance with the document headed “Terms of Settlement” as set out hereunder.
Parental Responsibility
1.That the Applicant Maternal Grandmother have Sole Parental Responsibility for the Children, [X] born […] 2017, (“[X]”) and [Y] (“Y”) born […] 2019 (“the Children”).
Residence
2.That the Children live with the Applicant Maternal Grandmother.
[X's] spend time with the Second Respondent Father:
3.That [X] shall spend time with the Second Respondent Father during school term as follows:
a.From the first weekend after the making of these Orders until 19 December 2022, on alternate Saturdays to take place in the [S Region] area:
i.For 4 hours on 21 October 2022, from 10.00am until 2.00pm.
ii.5 hours on 5 November 2022, from 10.00am until 3.00pm
iii.6 hours on 19 November 2022, from 10.00am until 4.00pm.
iv.And on 3 & 17 December 2022 for 7 hours from 10.00am until 5.00pm
The Changeover for the commencement and conclusion of the spend time set out in Order 3 (a) shall be the Applicant Maternal Grandmother’s home.
If by reason of default on the part of the Applicant Grandmother time does not occur on the dates specified above, it will occur for the same period on the following Saturday.
b.In the period 20 December 2022 until 27 January 2023, [X] shall spend time with the Father as follows:
i.From 10am on 26 December 2022 until 27 December 2022 at 5.00pm, with changeover for the commencement and conclusion of the spend time period to take place at the Applicant Maternal Grandmother’s home.
ii.From 10am on 6 January 2023 until 4.00 pm on 9 January 2023, with changeover for the commencement and conclusion of the spend time period to take place at [Suburb V] Service Centre on the East side of the motorway.
iii.From 10am on 20 January 2023 until 3.00 pm on 25 January 2023, with changeover for the commencement and conclusion of the spend time period to take place at [Suburb V] Service Centre on the East side of the motorway.
c. During school term, commencing in Term 1 in 2023:
i.For the two weekends every School Term, being the fourth and seventh weekends of each School Terms, commencing at Friday 5pm until the following Sunday at 4pm.
ii.If for whatever reason other than default on the part of the Second Respondent Father, the Second Respondent Father’s Spend Time on the fourth and seventh weekends of each School Term does not occur, [X] shall spend time with the Second Respondent Father on the next practicable weekend during School Term, after the weekend which the father was meant to spend time with [X].
iii.In Term 3 of each year, the Father’s time under Order 3ci will occur on the weekend of Fathers’ Day in lieu of the 4th weekend of that Term.
d.That [X] shall spend time with the Second Respondent Father during school holidays as follows:
For the year 2023:
i.For five nights during the first half of the school holidays after Terms 1 & 2 and for six nights during the first half of the school holidays after Term 3 being from the period from 10.00 am on the first Saturday of each school holiday until 4pm on the following Tuesday or Wednesday (in the Term 3 holidays).
ii.For 5 nights from 24 December 2023 at 3.00 pm until 29 December 2023 at 4pm
e. For the year 2024 and thereafter:
i.From 4.00 pm on the first and fourth Saturdays in January until 4.00 pm on the second and third Saturdays in January.
ii.For one half of the April, July and September school holidays commencing at 4 pm on the first Saturday of each school holiday period and concluding at 4 pm on the second Saturday of that holiday period.
iii.From 11.00 am Boxing Day until 11.00 am New Years Eve in even numbered years and from 3.00 pm Christmas Eve until 3.00 pm 29 December in odd numbered years.
4.That for the purpose of Changeover, except as noted in Orders 3(a) and 3(b) (i) above, shall unless otherwise agreed, always occur at the [Suburb V Service Centre] on the East side of the motorway.
Communication Orders involving [X] and the Second Respondent Father
5.[X] shall have electronic communication with the Applicant Grandmother and the Second Respondent Father by Skype, FaceTime, Zoom or Telephone; with such communication to be initiated by the party with whom [X] is not then spending time on Mondays between 4.30 pm and 5.30 pm and the party with whom [X] is then spending time is to facilitate communication and ensure that [X] is available to communicate with the other party at those times.
The children’s communication with the First Respondent Mother
6.The Applicant Maternal Grandmother shall ensure that the Children have electronic communication with the First Respondent Mother on Wednesdays between 4.30 pm and 5.30 pm.
Notification Orders
7.That the Applicant Maternal Grandmother and the Second Respondent Father shall ensure that they keep the other party informed as soon as it is reasonably practical of:
(i)Contact details including email address and telephone numbers.
(ii)Any medical problems or illnesses suffered by [X] whilst in her care.
(iii)Any medications that have been prescribed for [X].
(iv)Any specialist medical appointments involving [X].
(v)Any significant social, school or religious functions which [X] is to attend.
(vi)The details of any sporting body(ies) in which [X] is involved.
(vii)[X’s] residential address and particulars of others who may reside with [X].
(viii)Any other important matter relevant to the welfare of [X].
Such notification may be facilitated by the Applicant Maternal Grandmother providing forthwith where relevant, written authority to such relevant medical provider, school or sporting body
8.That the Applicant Maternal Grandmother shall provide to the Second Respondent Father full particulars of any medical practitioner, health service provider or medical institution attended by [X] and provide any authority or direction necessary to enable to the other parent to obtain all necessary information concerning [X].
9.That the Applicant Maternal Grandmother shall ensure that she keeps the First Respondent Mother informed as soon as it is reasonably practical of:
a.Any medical problems or illnesses suffered by the Children whilst in her care.
b.Any medications that have been prescribed for the Children.
c.Any specialist medical appointments involving the Children.
d.Any significant social, school or religious functions which the Children is to attend.
e.The details of any sporting body(ies) that the Children are involved in.
f.[X’s] residential address and particulars of others who may reside with the Children.
g.Any other important matter relevant to the welfare of the Children.
Such notification may be facilitated by the Applicant Maternal Grandmother providing forthwith where relevant, written authority to such relevant medical provider, school or sporting body
10.That the Applicant Maternal Grandmother shall provide to the First Respondent Mother full particulars of any medical practitioner, health service provider or institution attended by the Children and provide any authority or direction necessary to enable to the other parent to obtain all necessary information concerning the Children.
11.That the Second Respondent Father is entitled to attend all events involving the Children including, but not limited to:
i.Sporting fixtures.
ii.Extracurricular activities that allow for parent attendance or participation.
iii.School functions and events that allow for parental attendance or participation.
12.That both parents be permitted to liaise directly with the Children’s school and sporting bodies (when relevant) to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the Children’s progress and, if necessary, the Applicant Maternal Grandmother will authorise the school to provide such documents and information to the parents.
13.That all parties are restrained from criticising another party in the presence or hearing of a child or in a manner likely to come to the attention of a child.
14.That all parties must enrol in a Parenting after Separation course within three months and must complete that course.
The Children’s Spend Time with the First Respondent Mother
That until further Order and by way an interim Order:
15.That the Children shall spend time with the First Respondent Mother for 1.5 hours every alternate weekend, to be supervised by either [T Service] or another supervising organisation as agreed, with times and the day of the weekend to be as agreed and subject to the requirements of [T Service] or another supervising organisation as agreed.
16.That the First Respondent Mother be responsible for arranging and funding [T Service] or another supervising organisation as agreed.
17.That the Second Respondent Father be restrained from bringing [X] into contact with the First Respondent Mother.
2.The Secretary, Department of Communities and Justice, be removed as a party to the proceedings.
3.The matter is listed for compliance check before me at 9.30 am on Friday, 21 July 2023 via Teams.
4.The hearing is adjourned part-heard before me for two days commencing on Monday, 2 November 2023 in the Sydney Registry.
5.Liberty is granted to all parties to restore the matter before me on seven days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Knight & Knight has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
The parties to their credit were able to enter into final orders in relation to parental responsibility and live with orders in favour of the maternal grandmother and final orders in relation to time between X and his father. The parties also reached agreement in relation to interim orders for the children’s time with the mother.
To provide some context to the orders that I propose to make in relation to the children’s time with their mother in circumstances where I will be making interim orders, I deliver the following reasons.
I have earlier delivered ex tempore reasons in this matter in Knight & Knight (No 2) [2022] FedCFamC1F 799. I incorporate the following from those reasons in this judgment.
1.These are proceedings in relation to two children, X born in 2017 who is currently aged five and a half years and Y born in 2019 who is currently aged three and a half years. Both children currently reside with their maternal grandmother. On 31 July 2020, the Department of Community and Justice (“the Department”) assumed the children into their care pursuant to the Children and Young Persons (Care and Protection Act) 1998 (NSW).
2.The parties to the litigation were the maternal grandmother, with whom the children currently reside; their mother; Mr Marsh who is X’s father; Mr Clifton who is described as the psychological father of Y; Mr Roberts, the biological father of Y; the Department; and the Independent Children’s Lawyer (“the ICL”).
3.On 19 May 2022, the Court made orders and directions setting the matter down for trial, directing the filing of affidavits and amended applications and responses and made, in the case of the mother, Mr Marsh, Mr Clifton and Mr Roberts, orders pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). As it was, neither the mother, Mr Clifton or Mr Roberts, availed themselves of the opportunity to obtain legal representation. Mr Marsh for his part, however, did, and he was represented at the hearing by counsel.
4.Mr Roberts, the biological father of Y, is presently incarcerated at a correctional facility. His earliest release date is mid-2023. He appeared on the first morning of the trial by way of electronic link and after discussions with the ICL, indicated that he did not wish to seek any orders and sought leave to withdraw. With the consent of all parties such leave was granted and Mr Roberts took no further part in the proceedings.
5.Mr Clifton and the mother were in a relationship for some years. That relationship started prior to the birth of Y and seemed to end in or about mid-2020. Mr Clifton is recorded on Y’s birth certificate as her father. It was for a time an issue as to whether he was her biological father. Testing has established that he is not and that Mr Roberts is her father.
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15.The maternal grandmother relied upon the following documents:
(1) Amended Initiating Application filed 13 October 2021;
(2) Affidavit of maternal grandmother filed 8 September 2022; and
(3) Affidavit of Mr D filed 8 September 2022.
16.The maternal grandmother was cross-examined. Mr D was not cross-examined by any party.
17.The Department relied upon a Response and affidavits of Ms E filed 5 October 2022 and Ms F filed 12 October 2022. Neither of these witnesses were required for cross-examination except by the mother who asked some questions of Ms F.
18.Mr Marsh relied upon an affidavit filed 12 October 2022. He was cross-examined by all parties with the exception of the mother.
19.Mr Clifton and the mother produced handwritten statements.
20.A Family Report dated 28 July 2021 was prepared by the Court Child Expert, Ms G. The Child Court Expert was cross-examined by all parties.
21.I have read all of the material relied upon including the exhibits.
22.In the course of the mother’s interviews with the Court Child Expert, the Court Child Expert recorded as follows:
54.[Ms C Knight] denied that alcohol is, or has been, a problem for her. She acknowledged previous use of illicit drugs and said that she was introduced to these by [Mr Clifton] during their relationship. She said that she was caught driving under the influence of illicit drugs when she “took the rap” for [Mr Clifton] when they were both using methamphetamine. She said that [Mr Clifton] would sell drugs and is involved with criminal influences, stating that she has witnessed people with guns visit his home. She said that [Mr Clifton] would use marijuana daily and methamphetamine about once per week. She denies that she is using any drugs currently.
55.[Ms C Knight] spoke of experiencing significant family violence during the relationship with [Mr Clifton]. She said that she remains fearful of him and is opposed to his having any ongoing contact with the children. She said that she remains haunted by experiences with [Mr Clifton] and the exposure of the children to the violence, citing an example of [X] coming with a towel to assist her to clean up blood after an assault on her face by [Mr Clifton]. [Ms C Knight] stated that she initially thought the relationship with [Mr Clifton] offered her stability and the chance to avoid jumping from refuge to refuge, but there was escalating control and violence as the relationship progressed. She estimated the police attended the home fifty times during the relationship. She said that she was not allowed out of the home to the shops, not allowed to talk to men or have online apps like Facebook, and that her bank and any social media has since been “hacked” by [Mr Clifton]. She said that [Mr Clifton] would threaten and manipulate her, for example to drive him to obtain drugs or to engage in sexual and other activity she did not want to do, and she knew if she resisted she would be “bashed”. She said that she was not permitted to have contact with her family and [Mr Clifton] would prevent [X] from spending time with [Ms C Knight]
56.[Ms C Knight] acknowledged that there were times she would violently resist [Mr Clifton] and hit back. She said that she has suffered injuries from him, including a split lip and chipped tooth. She said that [Mr Clifton] would be violent to [X], smacking him on the bottom or back of the head, stating [Mr Clifton] “used to belt [X]” and taunt him to telephone his father, [Mr Marsh], who he referred to as “slippery dip Dad”. She said that [X] is, as a result, “terrified of [Mr Clifton]” and, even now, will become distressed if he overhears his name. She said that while she tried to protect the children at times from experiencing the violence, by having [R] take them to another room or anticipating and avoiding conflict where she could, [X] saw much of “what [Mr Clifton] did to me”. In her recounting of the alleged violence, [Ms C Knight] appeared tearful and distressed. She seemed reluctant to expand on her account. It appeared to the writer that there was much more detail that [Ms C Knight] perhaps found too difficult to disclose.
57.[Ms C Knight] said that, in addition to direct harm from [Mr Clifton] himself, she is worried about the children inadvertently being caught up in violence because of the criminal connections [Mr Clifton] has. She said that she is fearful that one of the drug dealers [Mr Clifton] allegedly associates with may become upset with him and want retribution and be unbothered whether small children are there. Furthermore, [Ms C Knight] stated that there is no benefit to [Y] in having contact with [Mr Clifton]. She believes this is confusing to [Y] as she needs to focus on building a relationship with her biological father and his family. [Ms C Knight] said that she was forced by [Mr Clifton] to say that [Y] was his child but she knew that this was not possible because of the conception dates. She said that she felt pressure from [Mr Clifton] to recreate a sense of a fantasy family and she considers that, in some ways, he saw her as a replacement for [R’s] mother who had passed away. She said that [Mr Clifton] appeared motivated to have occasional “family outings” where he was keen to “make it look like a happy family”. Beneath the surface, she said that he was often abusive and uninvolved, would rarely assist with [Y]’s care and would yell at [Ms C Knight] to stop [Y] crying. She said that she worries about his older daughter, [R], who she has heard is rebelling, making Tik Tok videos, vaping and self-harming and has been banned from a local shopping mall for shoplifting. [Ms C Knight] said that she feels helpless to support [R].
58.[Ms C Knight] spoke of her own exposure to family violence as a child, describing graphic incidents of this. She said that involvement with [Mr Clifton] has been triggering for both herself and her mother and they remain very fearful of [Mr Clifton]. She spoke with some frustration, stating that she lost care of the children because of her relationship with [Mr Clifton], and she cannot understand how he is now being supported to remain involved with [Y]. She spoke of the psychological damage to the children and the wider family were [Mr Clifton] to continue to be involved. She said that [Mr Clifton] having time with [Y] will “mentally and emotionally break me”.
23 The Court Child Expert observed in relation to Mr Clifton the following:
120.[Mr Clifton’s] position is complex. It is established that he is not [Y]’s biological father, but he claims that he is an important psychological figure to her, having been in her life substantially during her first year. He spoke fondly of [Y] and he appears motivated to be involved in her life and to have her involved with [R]. [Mr Clifton] appears to have an affinity with [Y] and it seems she represents an important part of his family. It may also be that he is sensitive to the loss of this relationship having formed a bond with her, and having already experienced the loss of a relationship with a partner’s child in the past, when his connection with stepchild [H] was ruptured. [Mr Clifton] argues that he poses no risk, and only benefit, to [Y]. Generally, children benefit from having involved and interested carers in their life and this can be enriching and foster a strong sense of connection and continuity. However, [Mr Clifton’s] time and involvement with [Y] is very strongly opposed by the maternal family. The mother, maternal grandmother and [Mr Marsh] all indicated in their screening that they have some fears of him. It is reported that [X] also has fears.
121.It is alleged that [Mr Clifton] has perpetrated serious family violence and that this violence was integral to the removal of the children from their mother’s care. There are reports that [Mr Clifton] was physically abusive to [X] and [Ms C Knight], neglectful and placed the children at physical and emotional harm. [Mr Clifton] denies these claims but there appeared to be little depth or reflection in his account during interview. While [Mr Clifton’s] behaviour was appropriate in interview, there is evidence that, in other contexts he has behaved in an aggressive manner, such as with DCJ. The potential risks of [Y] having time are that, if the maternal family’s account is accurate, she may be exposed to possible family violence and abuse, drug use and criminal behaviour. There is also the risk that she could be used as ongoing tool by [Mr Clifton] to exercise coercion and control over her mother. In addition, there is concern that this relationship may create confusion and distress for [Y], particularly given the maternal family’s lack of support for the connection, their apparent fear of [Mr Clifton], their anxiety about time, as well as confusion for [Y] in terms of her identity and relationships. [Y] would be placed at the centre of likely ongoing conflict, as she will have differing information and guidance about who her father is. It was concerning that even her name appears disputed, and how it is pronounced. This seems symbolic of the different meanings and environments she would likely have to navigate were she continue to have ongoing time and contact with [Mr Clifton]. DCJ have advised that they would be unable to support anything other than supervised time between [Y] and [Mr Clifton]. Long term supervision can be onerous, confusing and difficult for children, especially if the time is controversial or unsupported by the primary carer/s.
122.Whether in fact [Mr Clifton] is an important attachment or “psychological figure” is also disputed. [Mr Clifton] argues that he was significantly involved in [Y]’s care and “raised” her, while the maternal family report that he has had minimal contact in the past year and was absent at times during her first year of life. They state that, rather than him being a secure base and positive caregiver to [Y], he was, at best, an inattentive carer and at worst an abusive one. If the maternal family’s account is accurate, it is difficult to reconcile what the benefit would be of [Y] maintaining contact and a relationship with [Mr Clifton]. If as [Ms C Knight] claims, she lost care of the children because of her relationship with [Mr Clifton] and the violence he allegedly perpetrated, it seems incomprehensible that he should continue to be involved. If the Court finds that there is on-going risk posed by [Mr Clifton] and finds veracity in the claims of the maternal family, there may be benefit in the Court considering possible injunctions. Even if [Mr Clifton’s] account is accurate and he does not pose risk in any of the areas alleged, it is difficult to see how [Y] would be free to enjoy her relationship with him, given the context and concerns raised.
123.It is not possible within this assessment to comment on the appropriateness of [Y] having a relationship with her biological father, [Mr Roberts]. While it is important generally for children to know their background and this is important for their sense of identity and being in the world, there is a sense of the maternal family grasping on to the prospect of an alternative father figure to [Mr Clifton], to perhaps lend weight to his not being involved. The maternal family seem committed to facilitating a relationship with [Mr Roberts’] family. While it is hoped that this can be a positive for [Y], she can ill afford to have further disruption and negative influences in her life.
The mother sought orders for time with her two children. She recognised that at this stage she was not able to care for them full time, albeit she expressed a hope that in the future she would be able to resume their full time care as well as parental responsibility.
Whilst the mother sought orders for unsupervised time, she recognised that such an arrangement was unlikely. In the alternative, she proposed time at least once a week for one and a half hours but with increases over time.
The Child Court Expert prepared a comprehensive report. I accept her observations, opinions and recommendations. I note the following from that report:
113.[X] and [Y] present as active and engaging young children. They have significant vulnerability and appear to have a history of disruption and trauma. The challenge for the Court appears to be to safeguard the developmental gains they have made and to ensure that any future arrangements for them are safe and build on their stability. Due to their difficult histories, the children require high level, positive and attentive caregiving and protection from further risk or disruption.
114.It would appear that [X] and [Y] may have some family history of mental health/ behavioural difficulties and they appear to have a complex history of intergenerational trauma and attachment difficulties. There have been disruptions to their caregiving at a critical time in their development, that is in the prenatal and 0-3 year period. At a time when children ideally require stable, predictable, warm and attuned caregiving, it appears that they may have been exposed to instability and inconsistent caregiving as well as experiences which may have been frightening. Such experiences occurring at this sensitive time of development are particularly challenging for children as their brains are only developing and are negatively impacted by these experiences. Traumatic experience can cause the child’s nervous system to be flooded with stress hormones, causing a fight/ flight/ freeze response. Coinciding with these traumatic events the children were of ages when attachments are typically being formed, optimally forming trusting and responsive relationships which will then be a model for future relationships and interactions. For [X] and [Y] there appears to be some indication that there may have been difficulties with the children’s attachment formation. In the absence of safe, predictable and consistent caregiving it seems that [X] may have developed some disorganised behaviour, with the maternal family describing him behaving violently, self-harming and being fearful. Likewise it seems [Y] may have been displaying some avoidant behaviours. The maternal family’s account of [Y] appearing blank, doll like and not displaying emotion, indicate that the children may have experienced attachment difficulties and have developed some maladaptive coping mechanisms.
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118.The children’s mother presents as very vulnerable. [Ms C Knight] appeared reflective in interview and openly stated that she lacks stability herself and is, therefore, unable to provide such stability to her children. She appears to have multilayered and longstanding issues with her mental health and a pattern of unstable relationships and living arrangements. [Ms C Knight] is reported to have been unpredictable, unable to act in a child focused manner or care for the children for a consistent period of time without respite. She acknowledged herself that she is simply unable to manage the care of the children, especially [X’s] behaviours, and this was demonstrated even during a brief period of observation. With time, intervention and supports, her involvement may be able to increase over time, but for the foreseeable future supervision appears to be required. Safeguards suggested by [Ms B Knight], such as drug testing and restrictions on partners seem appropriate. There are also allegations that she has been directly abusive / neglectful of the children. While some of her account spoke of actions she took to be protective, it seems that the children have likely been exposed to significant violence and [Ms C Knight] reports difficulty keeping herself, let alone the children, safe.
119.[Ms C Knight] gave an account of experiencing coercive controlling family violence from [Mr Clifton], although it is noted that this is denied by him. She reported that this has impacted significantly on her mental health and on that of her mother. Both women appear to have a history of trauma and, therefore, a vulnerability to further traumatic experiences, which can have a cumulative effect. [Ms C Knight] and [Ms B Knight] spoke of contact with [Mr Clifton] being detrimental to their mental health as well as to [X’s] sense of safety and wellbeing. They each described being fearful of [Mr Clifton]. The impact on these caregivers needs to be carefully considered by the Court, independently of any benefit there could be for [Y] in having [Mr Clifton] involved. It may be that the damage to [Ms B Knight’s] capacity as a main carer may impact more significantly on [Y] than any potential benefit she could get from time.
The Child Court Expert in cross-examination identified that the historical harm to the children in the mother’s care included her past history of lack of stability in her relationships and housing, drug use, mental health problems, lifestyle issues and matters going to her judgment and capacity to parent. Her recommendation in her oral evidence was that the mother’s time should occur on a supervised basis. Supervision should be conducted by a professional organisation.
Her opinion was that it was too early to consider unsupervised time and a movement to unsupervised time should not occur until the mother has been drug free for a minimum of a year. She said the mother needs to demonstrate stability in her relationships and lifestyle and a commitment to regular time with her children. She needs to have undergone a psychiatric assessment and have no further involvement with the police or the Department. She identified that supervised time was not a long term option for the children. She was of the view that the Court should consider making interim orders.
The mother in her cross-examination acknowledged that in the past the children had not been safe in her care by virtue of exposure to drug use and family violence. The mother asserted that she had been drug free for all of this year. I find that her last drug use appeared to have been in about October last year.
The mother has a troubling history of drug use with periods of abstinence followed by resumption of use. By any measure, it could not be confidently asserted that her drug use is a problem that will not re-emerge.
The mother denied to the Child Court Expert that she had ever had a problem with alcohol. I note the evidence of Ms F as follows:
107. On 30 May 2022, [X] was assessed by the [S Region Health Service]. The service recorded [X’s] diagnoses were: Foetal Alcohol Spectrum Disorder and Attention Deficit Hyperactivity Disorder. The service also reported that [X] had “variable cognitive abilities” and “adverse childhood experiences”.
The maternal grandmother gave evidence of an incident involving X which occurred on early 2022. Exhibits to Ms F’s affidavit record a ROSH report of that event as follows:
They were parked on the rooftop parking. [Ms B Knight] had a doctor’s appointment with [X] and [Ms C Knight] went shopping. At about 1:30pm, they met back at the car park. [X] and [Y] were in their car seats in the back seat of the car, [Ms C Knight] was sitting in the front passenger seat charging her phone and waiting for [Ms B Knight] to drop her off at a pub where she was staying the night. [Ms B Knight] was finishing a cigarette and as she turned around [X] hit [Ms C Knight] over the head with a toy to get her attention. [Ms B Knight] leaned into the car to buckle [X] up and tell him not to do that when [Ms C Knight] lunged from the front seat into the back and grabbed X[’s] cheeks with her two hands and pulled him right up to her face. [X] cried out, “Mummy, it hurts!” [Ms C Knight] then made a closed fist and [Ms B Knight] put herself in between [X] and [Ms C Knight] to effectively block [Ms C Knight] from punching [X] in the face. [Ms B Knight] said the force of the punch was enough to hurt her and it scared her that [Ms C Knight] meant to close-fist punch [X] in the face. [X] had red nail marks on both cheeks from when [Ms C Knight] grabbed them.
[X] was crying hysterically in the backseat. [Ms B Knight] told [Ms C Knight] to get back in her seat and tried to comfort [X].
[Ms C Knight] refused to get out of the car. [Ms B Knight] told [Ms C Knight that she would drop her back at her accommodation and report her. Then [Ms C Knight] started verbally abusing [X], telling him that she hates him and “You will never see the baby (referring to Unborn)” and “I don’t ever want to see you again.” [X] was crying hysterically and saying, “Nanny, I’m hurt!” and “mummy hates me”. [Ms C Knight] had said to [X], “I hate you”. [X] was crying and saying, “Nanny, it’s my fault.” [Ms C Knight] said to [Y],
“I love you baby girl” which made [X] cry even more hysterically. [Ms B Knight] told [Ms C Knight] to shut up because she was upsetting [X] even further. [Ms C Knight] said to [X], “That’s right I hate you and if it wasn’t for nanny I would have hit you again!” When they arrived at the pub where [Ms C Knight] was staying, she got out and walked over to [Y’s] side of the car and said again, “I love you baby girl”. [X] was crying again and said “What about me?” and [Ms C Knight] said to him, “I don’t ever want to see you again.” [Ms C Knight] was near [X’s] side of the car and was yelling, “I don’t ever want to see you again. I hate you, I don’t care about you!” [Ms B Knight] got in the car and left at this point. [Ms B Knight] has an audio recording of all of this.
The mother [Ms C Knight] was interviewed at [M Service] [in mid 2022] and stated that she pushed [X] into seat and showed CW how she put in back in. She said that she had video proof that she did not hurt [X].
[Ms C Knight’s] account varies from the account from [Ms B Knight], however it appears that [Ms B Knight’s] account more closely aligns with [X’s] version of events.
(Affidavit of Ms F filed 12 October 2022, p. 102–103)
X reports to Ms F in a home visit on 12 May 2022 the following:
…
[X] sat next to CW and said:
“Mummy pushed me back in my robot and pushed my face”
[Ms B Knight] removed other siblings out of the room.
CW [Ms F] ask [X] about what he said before
[X]
“Mummy does not like me, she hates me, me know friends with mummy anymore”
[X] explain his toy hit mummy in the head with a toy.
CW [Ms F] asked how mummy pushed you and [X] showed CW that Mummy placed hands on his chest and pushed back.
[X] said that Nan told him that Mummy hit Nan.
“When she pushed me, she yelled in my face”
CW asked [X] if Mummy touched his face, [X] said “No”
“Mummy said she don’t love me, Mummy didn’t say sorry. I want her to with [Mr Clifton] to bash her up”
CW [Ms F] asked [X] if he asked Mum to stop,
“Yes, but mummy didn’t stop”
[X] said Mummy has a car without a licence nad “gunch”?
CW [Ms F] ask [X] to draw – see attached
[X] said that “when Nanny tried to stop mummy, mummy hit her”
[X] did not know where [Ms C Knight] hit [Ms B Knight].
CW [Ms F] ask if [X] would to see Mummy
[X] said “No” “I don’t want to because she hit me”
[X] said he would safe to see Mummy only if Nanny or poppy was there
“When Mummy yelled it was loud and hurt my ears”
[Y]
CW [Ms F] tell [Y] what we spoke with [X] about saying
[Y]
“Mummy hurt me, on my eye”
“Mummy was happy then mad at [X]”
“Mummy got mad and hit him in the eye”
CW [Ms F] as if Mummy had loud voice or small voice. [Y] said “Yes”
CW [Ms F] ask [Y] if she wants ask us or tell us anything
[Y] told us that she likes us
(As per the original)
(Affidavit of Ms F filed 12 October 2022, p. 65–67)
The mother denies the interaction occurred in early 2022 as reported by the maternal grandmother. An audio recording of part of the incident was tendered in evidence. It supported some but not all of what was said by the maternal grandmother. At this stage, I decline to make any findings about what happened in early 2022.
Applicable Law
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in children’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of children.
Primary and additional considerations
In applying the primary considerations, the benefit to the children of having a meaningful relationship with both of the parents is subservient to the need to protect the children from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 FamLR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 FamLR 439). All parties would contend that what they propose meets the criteria of a meaningful relationship at this stage.
As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the children from risk and harm than to the benefit of the children having a meaningful relationship with their parents.
The risks of harm to these children are referred to above. I am satisfied that there is at present an unacceptable risk to the children of spending unsupervised time with their mother. I am not satisfied that the risk is so unacceptable that the children should be denied a relationship with their mother. I am satisfied that the risk can be managed by supervised time in the form of the orders that are proposed.
I will now consider such of the additional considerations as are relevant.
There is no evidence of the views of the children. Even if there were, given their age it would carry no weight.
The children have not seen their mother since March of this year. In the report of the Child Court Expert, she reported on the children’s interaction with the maternal family:
100.The maternal family had elected to wait in the safe room and, at the commencement of the assessment day, when greeted by the writer, the children were observed to be interacting closely with the adults. [X] sat close to [Mr D] reading a “Bluey” book and [Y] was playing Connect 4 on a small table with [Ms U]. In a formal observation of the maternal grandmother’s household, the children seemed engaged and settled. The adults balanced their attention amongst the children and appeared positively focused on them.
101.During formal observation, initially there were two distinct play areas. [Y] appeared drawn to the whiteboard with [R] and [Ms U], and [X] sorting through figures with [Mr D] and [Ms Knight]. There appeared a calm and slow pace to the play. [Y] appeared to seek close proximity to [Ms U] and climbed on her and, at one stage, was positioned on [Ms U’s] lap as they drew figures on the board. [X] appeared to gravitate to [Mr D] and showed various figures to him with much eye contact and conversation, with the two working cooperatively to set up groupings of different animals. There was relaxed discussion amongst the adults about the play, with [Mr D] and [Ms B Knight] commenting that [X’s] voice had changed and his speech was clearer. [Ms B Knight] seemed attentive to the children, encouraging [X] to drink and keep his throat moist after the surgery and not to run in the room and to be gentle. [Ms B Knight] also made links to other activities in the play, such as commenting to the children about animals they had seen during visits to the zoo.
102.As the play progressed, the group joined together in one activity and [Ms B Knight] encouraged them to see “who can build the biggest tower”. [Ms B Knight] and [Y] worked together while [Mr D] and [X] worked as a team with [X] smiling broadly during the task. [Ms B Knight] encouraged the children to share and praised their efforts. The group had made creative and impressive figures and [R] made a colourful animal construction. [X] then went on to create a houseboat with some assistance. The children were drawn to a toy telephone and, when asked who was on the phone, [X] responded “Mummy!”. When [Y] began swinging the telephone around, [Ms B Knight] redirected her. When a brief separation from the grandparents was arranged, [Y] reacted minimally, remaining with [Ms U], while [X] hugged his grandmother farewell and required some reassurance about her return. The children were cooperative with requests to pack away the toys.
I accept that the children had a relationship with their mother. It is essential for their future psychological development that they re-establish a relationship with their mother provided that it is safe.
Section 60CC(3)(d) of the Act requires the Court to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the child’s parents. The children have been separated from their mother since March of this year. The orders as proposed will resume time between the mother and the children.
Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of maintaining time and communicating with their parents. The orders as proposed by the parties and the Court Child Expert will require professional supervision. That comes at a cost which will be met by the mother. In light of the evidence, it is an unfortunate but inevitable cost.
Of considerable focus for the purposes of these proceedings is a consideration of the factors identified in s 60CC(3)(f) and s 60CC(3)(i), calling into focus the insight and capacity of the mother to place the children’s needs above her own. At this stage, there are limitations in the mother’s capacity to provide for the needs of the children.
Conclusion
There is no issue that the maternal grandmother have sole parental responsibility in relation to the children and that the children should live with her.
In light of the allegations of risk, the only possible proposal for time between the children and the mother is that it occur on a supervised basis. I am also of the view that orders should be made on an interim basis.
These children are very young and it is essential to their emotional development and psychological health that they have a relationship with their mother. Supervision is not a long term option. The recommendations of the Court Child Expert as to what needs to be done to move to unsupervised time have been set out earlier in these reasons. I hope that the mother reflects on what is required.
The mother has commendably commenced on that path. She needs, however, to stay the course. I propose to make the interim orders bringing the matter back before me for two days in November next year. Between now and then, it is very much for the mother to demonstrate that she has both the insight and desire to be the best mother she can be for X and Y. I hope that she can.
It would be remiss of me not to observe that the maternal grandmother has done a commendable job in caring for these two very vulnerable children. Without her presence in their life, the prospects for them would be dire. I hope that whatever the problems in the past between the mother and the maternal grandmother can, if not resolve, at least lead to a truce for the benefit of X and Y.
I propose to make the orders proposed by the parties.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 19 October 2022
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