Mantle & Chamberlain
[2022] FedCFamC1F 1003
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mantle & Chamberlain [2022] FedCFamC1F 1003
File number(s): PAC 3844 of 2021 Judgment of: HANNAM J Date of judgment: 16 December 2022 Catchwords: FAMILY LAW – Request to Intervene – Where it is possible or likely a court will find that orders proposing the children live with either parent would give rise to an unacceptable risk of harm – Where the children may currently be at an unacceptable risk of harm – Where the measures which ordinarily provide some protection for children who are the subject of family law proceedings have not operated effectively to protect these children – Where it appears likely that during the period the children were “under the eye” of both the Department and the Court they have been exposed to ongoing risks of harm and subjected to psychological and sexual abuse – Where the court child expert is unable to recommend that it is in the best interests of the children to live with either parent – Where the Secretary stated an intention to intervene but now requests additional time to undertake further assessment – Where there are concerns about the efficacy of any further interventions, support and risk assessment by the Department – Where it is requested that the Secretary urgently consider this request to intervene. Legislation: Family Law Act 1975 (Cth) ss 67Z, 67ZBA, 91B Division: Division 1 First Instance Number of paragraphs: 141 Date of last submission/s: 1 December 2022 Date of hearing In chambers Place: Parramatta Solicitor for the Applicant: Shelly Legal Solicitor for the Respondent: Williamson Isabella Lawyers & Public Notaries Solicitor for the Independent Children's Lawyer: Legal Aid Nsw Blacktown Family Law ORDERS
PAC 3844 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MANTLE
Applicant
AND: MS CHAMBERLAIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
16 December 2022
THE COURT ORDERS THAT:
1.Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Communities and Justice is requested to intervene in these proceedings.
2.In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.
3.Pursuant to Rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, leave is granted to the Secretary of the NSW Department of Communities and Justice, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.
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 Mantle & Chamberlain has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
Introduction
The parents (“the mother” and “the father”) are engaged in a dispute concerning the long term parenting arrangements for their three children (“the children”). The children are currently aged eight (“the parties’ older son”) and six (twins; “the parties’ daughter” and “the parties’ younger son”). The evidence (although untested at this stage) indicates that both the mother and the father have serious shortcomings in their parenting capacity and that there are risks present in each of their homes. It is at least a possibility that the Court may find at final hearing that both parents pose an unacceptable risk of harm to the children.
There is also real concern that the children are currently at an unacceptable risk of harm due to the circumstances of each household.
Finally, the usual protection provided to children who are the subject of family law proceedings though the obligations imposed upon parent litigants to inform the Court and other parties of relevant matters in relation to ongoing risks[1] and through the appointment of an Independent Children’s Lawyer (“ICL”) appear not be operating effectively in this case. In these proceedings it would appear that both parents have failed in their obligations to inform the other parent, the Court and the ICL of ongoing matters of risks to the children which of itself has placed these children at increased risk of ongoing harm.
[1] By filing of a notice in the prescribed form pursuant to ss 67Z and 67ZBA of the Family Law Act 1975 (“the Act”)
The proceedings were commenced by the father in July 2021 and in his Notice of Child Abuse Family Violence or Risk he alleged that both the parties’ daughter and the mother’s older daughter had been sexually abused by the mother’s partner (“Mr B”) and that the mother lacked the protective capacity to protect the children from harm including sexual harm in her home.
The proceedings were allocated to the Magellan program and an ICL was appointed in accordance with the Magellan protocol. A Magellan Report dated 2 September 2021 (“the first Magellan Report”) brought to light other concerns about potential risks of harm to the children in addition to the matters identified by the father in his Notice of Risk.
In December 2021 a registrar of the Court was informed that the parties had reached agreement about a final parenting arrangement for the children and orders reflecting that agreement were forwarded to the Court for consideration. The orders agreed to were forwarded to me as the Magellan Judge but I was not prepared to make them on the information available to me at that time which appeared to indicate that the greater risks of harm for the children were present in the mother’s care and the proposal was for the children to live primarily with her.
An arrangement in which the children live with the mother and spend time with the father each alternate weekend and for half school holidays was commenced in late 2021 without prior notice to the ICL and in the absence of court orders.
As will be explained later in these Reasons, after the new parenting arrangement was instituted one of the children is alleged to have been the victim of sexual abuse when living in the care of the mother but neither parent brought this matter to the attention of the ICL or the Court.
In April 2022 I ordered that a Family Report (“the Family Report”) be prepared by a Court Child Expert. The family were assessed by the Court Child Expert in May and June 2022.
In the Family Report, dated 15 September 2022 (released to the parties and ICL a short time later), the Court Child Expert identified further matters of concern in relation to risk of the children and was unable to recommend that it is in the best interests of the children to reside with either parent. The Court Child Expert recommended that the Secretary of the Department of Communities & Justice (“the Secretary” and “the Department”) intervene as the Court may find that there is no suitable carer for the children. As a result of the matters identified in the Family Report an update Magellan Report was ordered.
In a further Magellan Report dated 3 November 2022 (“the update Magellan Report”) yet further matters of risk in relation to the children were revealed. In that document the appropriate delegate at the Department indicated that the Secretary of the Department intended to intervene in the proceedings but the Secretary has not subsequently filed a Notice of Intervention.
At a court event a short time later, on 10 November 2022, an application was made by the ICL pursuant to s 91B of the Act that the Court request the Secretary to intervene in the proceedings. I indicated that I also considered it appropriate for such an order to be made and consequently the parties and the ICL were each provided with an opportunity to file evidence and short submissions in relation to the reasons for the request for intervention. It was indicated that the order requesting intervention would be made in chambers with short Reasons to be provided to the Secretary of the Department to assist in the decision to intervene. These are those Reasons.
background
The mother aged 36 and the father aged 32 met online in 2012 and began living together in 2013. At that time the mother had two children from a previous relationship, a daughter then aged 10 (“the mother’s older daughter”) and a son aged eight (“the mother’s other son”) (collectively “the mother’s older two children”).
The mother deposes that she separated from the father of her older two children (“the mother’s first former partner”) about 15 months prior to meeting the father. According to her recent affidavit the mother’s first former partner had been violent towards herself and her two older children throughout that relationship with him. The mother and her older two children had sought emergency accommodation for a period of six months in about 2006 and an Apprehended Domestic Violence Order (“ADVO”) was made against the mother’s first former partner for the protection of herself and those children. The mother deposes that when living in emergency accommodation it became apparent that her older daughter had been sexually abused by a female and this child’s behaviour had become oppositional and defiant which the mother found difficult to manage. After living in the emergency accommodation the mother remained in a relationship with her first former partner until 2011.
A few months later the mother formed a relationship with another partner (“the mother’s second former partner”). In 2012, the mother’s older daughter complained of having been sexually abused by this partner. This complaint was investigated and found to be substantiated by the Department and the mother’s second former partner was charged in relation to this complaint. According to the mother’s affidavit he was found not guilty after a defended hearing and she did not continue in a relationship with him.
The mother deposes that she and the father began living together in 2013. She says that around the time the parties’ older son was conceived the father began to engage in family violence, verbally abusing and acting in a controlling manner towards her and that fighting between the father and her older daughter also began to escalate.
The parties’ older son was born in 2014. At the time this child was a small infant the mother deposes to the father engaging in inappropriate conduct in the home such as masturbating while watching pornography to which the mother’s other son was exposed and to the father’s mental health difficulties and associated behaviour including the father taking medication prescribed for her older daughter.
According to the mother the parties separated shortly after the older son’s birth and from this time on their relationship was “on and off again” until final separation in 2017. At times when the parties reconciled and lived together the mother deposes to the father being aggressive and verbally abusive, controlling all the parties’ finances and lying and being dishonest about his whereabouts including on occasions when he spent time with other women.
The mother deposes to an incident in late 2015 when she was pregnant with the twins. According to the mother’s affidavit the father had an argument with the mother’s older daughter then aged 12 about this child’s phone usage in which the father took a knife from the kitchen, hit a computer causing it to smash and took the phone from this child’s hand and smashed it. She deposes that the father then held the knife to this child’s throat. Although the mother was present during this incident and told the father to “grow up” and that there was “no need” to hold a knife at the child’s throat the mother initially took no further action but deposes that the child “managed to get away” from the father. According to the mother’s affidavit she saw the father chase her daughter up the stairs and hold this child against the wall with his hand around her throat. The mother deposes that she intended to ring the police but the father wanted to discuss the incident. She says that she was unaware that the father still had the knife in his hand at the time and that he then “snapped” and pushed her up against the wall, holding the knife to her throat and threatening to take the children and kill her if she called the police. The mother deposes that she did contact police who arrested and charged the father and that he was subsequently convicted and an ADVO was made for the protection of the mother’s older daughter.
The parties’ twins were born in 2016. It is apparent that at this time officers of the Department were concerned about the welfare of all of the mother’s children including the infant twins and a couple of weeks after she and the newborn infants came home from hospital caseworkers attended at the family home at a time when the father and the parties’ older son were not present. The mother deposes that prior to the caseworkers’ arrival on that day in “a fit of rage” the father grabbed the parties’ older son around his neck leaving a hand mark and then left the house, taking this child with him as he did not want the caseworkers to see the marks on the son’s neck.
Although the mother provides details about the father’s violent conduct in her affidavit for the purposes of this litigation, when interviewed by caseworkers around the time of these events both she and the father minimised the seriousness of the father’s conduct and explained it as being related to his mental health difficulties and medication at the time. There is no record of the caseworkers being informed of the father’s behaviour at the time of the last mentioned home visit. Caseworkers gained the impression that the parents had addressed the concerns held at the time though it is recorded that the Department’s assessment of risk was “high” based on historical concerns.
According to the mother’s affidavit in early 2016 she and the father decided to move to a new area away from Sydney. The mother deposes to events that occurred on an occasion when she was looking for a house for the family and stayed away with friends in that area together with the parties’ three children and her other son, leaving her older daughter in the care of the father. The mother says that when she returned home she observed bruises and scratches on the side of her older daughter’s face and that the daughter reported the father smashing her phone and computer, and slamming her head into a brick wall causing the injuries in an apparent effort to discipline her in relation to her behaviour. The mother says that when she asked the father about what had occurred he claimed that it was an accident. According to her affidavit the mother intended to contact police to report the breach of the ADVO then in place including for her older daughter’s protection but claims that the father threatened that if she called police he would leave with the children and she would never see them again.
According to the mother’s affidavit after the parties had reconciled and were once again living together when the twins were a few months old, the father continued to engage in masturbation and watching pornography in the lounge room of the family home in the presence of the children. The mother deposes that the father excused his behaviour on the basis that he had a “sex addiction”. She also deposes to other concerning conduct engaged in by the father including swearing and yelling at the children when he was having difficulty with their behaviour, on one occasion shaking and yelling in her other son’s face and exposing his penis to this child.
According to the mother’s affidavit there was a further incident in mid-2016 when the father became engaged in an argument with her older daughter then aged about 13 about this child’s internet usage in the presence of all of the children and some other children in the home at the time. The mother deposes to the father verbally abusing her daughter and to the daughter running upstairs. The mother claims that this child was about to jump out her window and the mother pulled her back causing the child to hurt her shoulder. The mother took this child to hospital where they waited for a few hours but ultimately came home before this child was seen.
When the parties’ younger son was an infant he was diagnosed with a genetic syndrome and in early 2017 underwent a surgical procedure. The condition also affects this child’s cognitive development, eyesight and hearing. Since birth, the child has attended upon a hospital and numerous other health care providers to meet his needs related to this condition.
The mother deposes to regularly having arguments with the father prior to final separation concerning his behaviour including his infidelity and masturbation in the family home which she says the father claimed was due to his “sex addiction”. She says that arguments about this behaviour continued and that the parties separated and reconciled on many occasions until final separation in October 2017.
The mother’s account of the final incident that caused the parties to separate is unclear. She deposes that her older daughter (then aged 14) was “kicked out” of the house by the father and also to the father grabbing the parties’ older son (then aged three) around the throat and lifting him up in an apparent effort to prevent her other son cuddling this child. In relation to this last mentioned incident, the mother deposes that she grabbed the father around the throat and threatened that she would go to the police if he ever touched any of her children in that manner again but did not report the father’s conduct to police at the time. The Department was however made aware of this incident.
The mother deposes that upon final separation the parents came to an arrangement where the children were to live with her and spend each alternate weekend with the father who had moved to live with the paternal grandparents in Sydney. She deposes that when the children returned to her care after spending time with the father they acted aggressively and reported to her on numerous occasions that the father and paternal grandfather had sworn at them and said that they “won’t be welcome to come back up there” if they were naughty and threatened to physically harm the mother’s other son if he was “mean” to the parties’ daughter again.
In late 2017 the mother commenced a relationship with Mr B and moved together with her five children to live with him and his four children in mid-2018.
In mid-2019, the mother’s older daughter disclosed to police that Mr B had been sexually abusing her on most nights since late 2018 when she was aged 15. It appears that initially neither the mother nor the father believed that this child was truthful when making this complaint. The mother told caseworkers assessing the risk to the children at the time that she believed her older daughter was lying as this child had multiple mental health diagnoses and was likely making the allegations up as a way of seeking attention. At this time the mother was also informed by caseworkers that the Department were aware of Mr B having previously sexually assaulted another child. The mother told caseworkers that she was aware of this allegation, but maintained that it did not happen and Mr B was not found guilty of any offence. It is recorded in the Magellan Report that the caseworker informed the mother that the absence of a conviction does not mean the assault did not occur.
Mr B was arrested and charged with multiple sexual offences against the mother’s older daughter shortly after the complaint was first made and was initially refused bail in respect of the charges. He was subsequently convicted and served a term of imprisonment. When Mr B was first arrested arrangements had been made for the mother’s older daughter to live with friends and she subsequently moved to live with her father. Arrangements were made for the younger children to remain in the maternal grandmother’s home. In these circumstances it was considered that there were no immediate safety concerns for the children. However, the Department subsequently assessed that the risk to all of the mother’s children was “high’.
In late 2019 Mr B was released on bail and began attending the home in which the mother lived with the children on a daily basis. A notification was made to the Department about these circumstances which triggered a further risk assessment. In late 2019 the mother reported to a caseworker who attended the home that she did not believe Mr B had harmed any child and did not believe that he posed a risk to her children. The Department formulated a safety plan with the mother in which it was agreed that Mr B was to be supervised whenever he was in contact with the children and he was not to reside in the home.
In early 2020, upon receiving advice from the Department, the mother moved with the children to another home but continued to be in a relationship with Mr B. The mother deposes that she did not believe her older daughter’s disclosure due to this child’s history of mental health difficulties and as she considered this child’s other complaints of sexual abuse by her second former partner to have been unfounded. The mother also claims to have been unaware at the time that Mr B had also allegedly sexually assaulted another child but this is contradicted by Departmental records which indicate that she was aware about this matter in mid-2019 but claimed then that it was untrue.
During the period that the mother remained in a relationship with Mr B, four of the mother’s children remained living with her (together with Mr B’s four children for a short period.) The mother’s older daughter, the victim of the sexual assault had left the mother’s care at the time she made the complaint to police in mid-2019. It is not clear when (or whether) the mother’s relationship with Mr B finally ended as there is conflicting information about this matter including in statements made by the mother herself.
According to Departmental records, in mid-2020 a notification was made about the mother’s ongoing contact with Mr B and belief about his innocence. It is also recorded that the parties’ older son disclosed that the mother had physically disciplined him by smacking him with an implement and on one occasion this resulted in a visible bruise. At around this time the father apparently agreed to care for the children for a couple of weeks seemingly due to his concerns regarding the mother facilitating the children having contact with Mr B.
According to the first Magellan Report, in late 2020, after there had been considerable ongoing casework undertaken with the family, a further risk re-assessment on the mother’s household was carried out. At this time caseworkers noted that the mother appeared to be planning a life away from Mr B and was playing a larger role in her older daughter’s life which is recorded as not having occurred since mid-2019. As a result of ongoing monitoring of the mother’s progress, it was determined that Departmental officers would cease working with the family at this time.
Almost immediately after casework with the mother and her children ceased, reports continued to be made to the Department about concerns regarding the children’s ongoing contact with Mr B with the approval of the mother. One report in late 2020 raised specific concerns regarding Mr B playing “cops and robbers” with the parties’ daughter, a game which reportedly involved Mr B tying this child up.
The children continued to spend weekend and holiday time with the father (who lived with the paternal grandparents) pursuant to the agreement between the parents, despite the mother’s complaints about the father’s conduct. Complaints were also made to the Department about the children’s wellbeing when with their paternal family including a complaint in late 2020 that the paternal grandmother had left the parties’ two younger children then aged four unattended in a carpark for approximately 30 minutes. It is recorded in the Magellan Report that the paternal grandmother agreed this had happened when police spoke to her, claiming that she had left the car to pay for parking but had then lost the car. Documents produced under subpoena from police indicate that the paternal grandmother also informed police that it was easier to leave the children in the car because the parties’ younger son’s behaviour could be “uncontrollable” at times.
In mid-2021 the father did not return the children to the mother’s care after they spent time with him as the parties’ daughter (then aged five) had disclosed to the paternal grandfather that Mr B encourages this child to kiss him on the lips, “whispers stuff in her ear” and said to her that (this activity) was “a secret”.
The father contacted police and the Department and the parties’ daughter was interviewed by members of JCPRP a short time later. During this interview the parties’ daughter disclosed that Mr B kissed her on multiple occasions on the mouth when the mother “goes to have a smoke” and this happened in “mummy’s room”. Further, the child disclosed that Mr B told her “don’t tell mummy it’s a secret” and that she felt “not good”, “didn’t like it” and did not want to see Mr B again. When interviewed, the parties’ daughter identified that she lived with the mother, her two brothers and Mr B. The parties’ older son was also interviewed by members of JCPRP and he stated that he had not seen Mr B kiss the parties’ daughter but was aware of this complaint as she had told him about it. The parties’ older son identified the same members of household as had been identified by the daughter, with the addition of the mother’s other son. The parties’ son also confirmed that the mother and Mr B share a bedroom.
A few days later in mid-2021 the parties’ daughter also disclosed to the paternal grandmother that the mother’s other son (then aged 16) had sexually abused her. A report was made to the Department stating that the daughter had reported “[the mother’s other son] has been licking my gina” and further stated “he taken me into his room, it hurts and I don’t like it”, “it happens mostly when mummy takes [the parties’ younger son] to an appointment”. In mid-2021 the daughter was interviewed by members of the JCPRP again and disclosed that “[the mother’s other son] always licks my gin-gin”, this occurs “in his room” (on his bed) and makes her scared. She also confirmed that the mother’s other son takes her pants off when this occurs.
In mid-2021 a two year final ADVO was made against Mr B and a provisional ADVO was also made against the mother’s other son restraining each of them from having any contact with the parties’ daughter.
In mid-2021 caseworkers from the Department attended the mother’s home where the mother was present with the maternal grandparents to discuss the disclosures made by the parties’ daughter. The mother denied then being in a relationship with Mr B. It was clear to caseworkers that the mother was aware of the allegations against Mr B involving both of her daughters and other children but maintained that she did not consider him to be a risk to her children stating that Mr B was “more important than any man” and that her relationship with him was “like nothing else”. The mother later confirmed she was in a de facto relationship with Mr B at this time but stated he is never left alone with the children as either herself or her other son are always present when he is around the children.
The mother told the caseworkers that she believed the allegation made by the parties’ daughter against Mr B (that he had kissed this child on numerous occasions and told her it was a secret) but continued to deny her older daughter’s allegations and showed no intention to end her relationship with Mr B. The maternal grandmother told caseworkers that she did not believe the parties’ daughter. Both the mother and maternal grandparents also did not believe the allegations of sexual abuse made by the parties’ daughter against the mother’s other son and said the daughter was lying when she made such allegations.
In mid-2021, the mother met with caseworkers and was informed that the Department considered that the children were safe in the father’s care. The Departmental caseworkers subsequently met with both parents separately in mid-2021 and informed them that the JCPRP investigation in relation to the allegations made by the parties’ daughter against Mr B were substantiated and that the Department at that time supported the children remaining in the father’s care. It was acknowledged that the parties were to take steps to obtain family law parenting orders. At this time, the Department substantiated the conduct of Mr B with respect to the parties’ daughter as “sexual abuse”, substantiated the risk of significant sexual abuse for the parties’ two sons and due to the mother’s past and ongoing relationship with Mr B determined that there was “very high risk” in the mother’s household. At that time the assessment of the allegations against the mother’s other son was ongoing and this child remained as a “person of interest” towards the parties’ daughter.
In mid-2021, the father enrolled the parties’ older son and their daughter at a school near his home. The mother and a group of her friends attended at the school and attempted to remove the children and later attended at the father’s home in an effort to see the parties’ younger son. School staff contacted a Departmental caseworker who spoke with the mother at the time and encouraged her to leave the children at school and in the father’s care while the JCPRP assessment was ongoing. It is recorded that the parties’ older son and daughter were visibly upset and confused about who they were going to live with him.
As at mid-2020 the Department determined that there was a “moderate” risk for the children in the father’s household and intended to close the then-current period of casework and assessment with the family.
The mother deposes that in mid-2021 she moved to another home and her other son moved to live with the maternal grandparents on a permanent basis. At this stage the children were continuing to live with the father. It appears from the contents of the mother’s affidavit that she continued to disbelieve the allegations made by the parties’ daughter against her other son as she deposes to a conversation in which she speaks with the parties’ daughter about what is “supposed to have happened”. According to the mother’s affidavit her disbelief is also based upon what she considers to be a lack of opportunity for this conduct to have occurred and as her daughter did not complain to her about it.
In July 2021 the father commenced these parenting proceedings and as recorded previously, filed a Notice of Risk. As the proceedings were allocated to the Magellan protocol, the Department provided the first Magellan Report to the Court in which many of the foregoing risks in relation to the children were identified. At that stage, the Secretary did not intend to intervene in the proceedings as the alleged risks concerning the children had been reported to the Department previously and had been assessed. It was noted, as is usual practice, that the Secretary was prepared to re-consider its position in relation to the proceedings in the event new information was received by the Department that suggests the children were at risk of significant harm or that the care arrangements for the children within the family changed. It is recorded in that Magellan Report at that time:
In the event the children are to return to live with [the mother] DCJ would be concerned regarding the risk of harm to the children due to the likelihood that [the mother] will resume her relationship with [Mr B] and [the mother’s other son] will potentially return to her household.
Events following the first Magellan Report
From mid- to late 2021 the children continued to live with the father and by agreement between the parents spent time with the mother in a public park each alternate weekend.
The mother deposes that in late 2021 the father informed her that the children missed her and it was too difficult for him to meet their needs so the parties agreed that the children would return to her care. In late 2021 the father returned the children to live with the mother pursuant to this agreement in the absence of orders providing for such arrangement but neither party informed the ICL of this change of arrangements until 10 days later.
After the children returned to live with the mother they spent time with the father each alternate weekend and for half of the school holidays.
Draft orders reflecting the parties’ agreement about the children’s parenting arrangements were not forwarded to the Court until the end of 2021, almost two months after the children had already moved to live with the mother.
Some of the potential risks to the children posed by each of the parents are readily apparent from the background to the dispute outlined above. Much of this information was known from the affidavits that had been filed by the parties and the first Magellan Report which had been available for a couple of months prior to the draft consent orders being provided to the Court. Due to these concerns I was not prepared to make the orders sought by the parties at the time as I could not be satisfied that the arrangement proposed (and that was in fact put in place by the parties themselves) was in the children’s best interests. For this reason I made orders for the preparation of a Family Report by a Court Child Expert (“the expert”).
The expert spoke to each of the parents to make arrangements for the assessment interviews on 17 May 2022. There were subsequently remote video interviews with each of the parents on 7 June 2022 and on 14 June 2022 each of the children was interviewed and observed with the mother.
Shortly after the parties attended upon the expert, the ICL caused to be filed a number of updating subpoena including to police and the Department and documents were produced in response between 14 and 26 July 2022. Although it was subsequently revealed in the updated Magellan Report that there had been numerous events relevant to the risk posed in each parents’ household to the children between June and July 2022, neither party informed the ICL of these events and many of the documents produced by the Department in response to the subpoena relating to this period were substantially redacted and/or are undated. Thus, it was not known by the ICL or the Court that during this period a number of reports were made to the Department in June and July 2022.
The first of these reports outlined concerns that the parties’ daughter was being forced to withdraw her previous disclosures of sexual abuse by the mother’s other son. It was subsequently revealed that in mid-2022 the mother stated that she did not believe the previous disclosures made by the parties’ daughter of sexual abuse by Mr B and the mother’s other son. At this time, the children were reported as living with the mother and although the mother’s other son was residing with the maternal grandmother, the parties’ older son and daughter were having contact with the mother’s other son each day after school supervised by the mother and the maternal grandmother cared for the children on weekends while the mother worked. The parties’ daughter is reported at this stage as refusing to speak about why the parties’ older son resided with the maternal grandmother saying that she had previously told a lie about the mother’s other son touching her “private bits”. Having regard to the date on which these reports were made and the contents of the Family Report when it was made available, it appears that the notifier was the expert.
It was subsequently revealed in the update Magellan Report that in mid-2022 a report was made that the parties’ daughter disclosed that the mother’s other son continued to make her uncomfortable and she did not want to sleep over at the maternal grandmother’s home. It is recorded that the parties’ daughter stated that the mother’s other son always comes into her room at night, touches her private parts each time, that no one else is in the room and that she is unable to leave as he locks the door. The parties’ daughter reportedly told the mother’s other son to stop on each occasion and has also said the mother and maternal grandmother do not believe her.
It was subsequently revealed in the update Magellan Report that the last mentioned report caused a field response to be initiated by the JCPRP. It was noted at the time that an interim ADVO had been made against the mother’s other son for the protection of the parties’ daughter but it is apparent that this order did not appear to be providing such protection for the child. In mid-2022 the parties’ daughter participated in a JCPRP interview in which this child disclosed that earlier in 2022 when the parties’ older son had Covid-19 she stayed at the maternal grandmother’s home for eight nights and on each occasion the mother’s other son came into her bedroom, locked the door after the mother had gone to sleep and “touched my private bits – my ginny – vagina)”. This child reported that the touching made her feel uncomfortable and that the mother’s other son told her not to tell. She also reported that as she had told the mother and maternal grandmother what happened that the mother’s other son “is now in lots of trouble”.
It was also subsequently revealed in the update Magellan Report that on the same day, after the interview with the parties’ daughter, police spoke with the mother in relation to the ADVO and that the mother stated that she was not aware of it. The mother also informed the investigators that her other son does not come to her home when her daughter is there and agreed to ensure the ADVO would be enforced.
It was also subsequently revealed in the update Magellan Report that on the same day, Departmental caseworkers performed a home visit at the mother’s home. The mother reiterated that she had not been aware of the ADVO restraining her other son from having contact with the parties’ daughter and that she did not believe her other son had harmed the parties’ daughter. It came to light that the mother was not prepared to accept a referral for her daughter to see a counsellor at the time as she did not have time for further appointments. The mother also said that the maternal grandmother is her only support and it was noted that the maternal grandmother also does not believe that the mother’s other son had harmed the parties’ daughter.
It was also subsequently revealed in the update Magellan Report that the next day, the mother’s other son was arrested and charged with multiple sexual offences against a child and multiple counts of contravening a restriction in an ADVO. The mother’s other son is reported to have been granted bail on condition that he not be in contact with any child unless supervised by an adult, that he comply with the ADVO made for the protection of the parties’ daughter, that he reside with and spend each night at the home of the maternal grandmother, and not go near, contact, or attempt to contact the parties’ daughter.
It was also subsequently revealed in the update Magellan Report that about a week later, a caseworker spoke to the father by telephone to discuss the Departmental involvement and the recent disclosures of the parties’ daughter. The father is recorded as stating that the mother had already informed him of what had occurred, that he had previously had the children in his care in 2021 during the period of Departmental involvement but had returned the children to the mother in late 2021 as they were missing her too much and “going downhill”. It is recorded that the father said that he was concerned for his daughter given that the mother can be very protective of her other son and that the mother had previously done “silly things” and breached ADVOs. It is recorded that when the caseworker asked the father why he had not at that stage enquired about the wellbeing of his daughter, the father stated that he was supposed to see her and her siblings on the previous weekend but he had become unwell and wasn’t able to see them.
The update Magellan Report which was subsequently provided to the Court goes on to record that in mid-2022 caseworkers from the Department completed their assessment in relation to the children. Some particularly significant matters recorded in relation to that assessment include:
·In mid-2022 a JCPRP detective advised the Department that in the course of the mother providing a statement to police (presumably in relation to the prosecution of her other son) she stated that she did not believe that her other son had sexually assaulted the parties’ daughter;
·The parties’ daughter is reported to have stated to her teacher that she made a disclosure to her mum and that her “mum believes me”. This is recorded as a matter of particular concern when information provided through all other sources clearly indicates that the mother does not believe the child.
·The Department held ongoing concerns that if the bail conditions and ADVO imposed upon the mother’s other son were not adhered to the parties’ daughter would be at risk of sexual harm and this concern was heightened given the mother’s continuing disbelief of the daughter’s disclosures and as she had previously permitted contact to occur between the parties’ daughter and her other son despite the existence of a no-contact ADVO.
Notwithstanding these matters, it is recorded in the update Magellan Report that the outcome of the Department’s assessment as at August 2022 was that the children were “safe” with a “high” level of future risk with the children remaining in the mother’s care and that the reports of sexual abuse by the mother’s other son against the parties’ daughter was substantiated. It is also recorded that in September 2022 it was recommended that the mother engage in domestic violence family sexual assault service therapy so that she could understand the needs of the parties’ daughter and work towards her belief in this child’s disclosure to encourage her protective abilities.
In an affidavit recently filed by the ICL at the request of the Court, serious concerns were raised that none of the events set out in paragraphs [58] to [65] were brought to her attention by the parties and the parties did not file Notices as required by ss 67Z and 67ZBA of the Act. The Court is also gravely concerned that notwithstanding the provisions of the Act and arrangements in place for sharing information in relation to risks to children involved in family law proceedings, none of the foregoing information was provided to the Court or to the ICL. It is also concerning that the documents provided to the ICL in answer to subpoena (which also ought to have revealed at least some of the foregoing relevant information) were so heavily redacted that they were of only limited use in understanding the matters of risk for the children at the relevant time.
The Family Report
When interviewed in mid-2022, the mother told the expert that she works during school hours Monday to Friday and on one weekend per month and that the maternal grandmother cares for the children while she works on weekends if the children are not spending time with the father. The mother stated that she was not in a relationship and told the expert that her other son lived with the maternal grandmother but she was unaware where her older daughter lived which indicated to the expert that the two were estranged.
When interviewed, the mother reported that she had ceased contact with Mr B in mid-2021 (which is inconsistent with her statements to Departmental caseworkers a month later that she was then in a relationship with Mr B and that he was “more important than any other man”).
In the Family Report the expert sets out a history of the dispute and Departmental involvement with the family including the history set out in the first Magellan Report. This report identified 17 notifications being made to the Department, (11 of which were risk of serious harm reports) and four periods of allocation and assessment regarding the children. The expert also notes that further information is held by the Department regarding the mother’s two older children which is not included in the Magellan Report.
The expert also gleaned from information obtained under subpoena from the Department that there had been ongoing casework with the mother in 2006, 2009 and 2011 and that reports were substantiated in 2009 following the mother’s older daughter disclosing physical abuse perpetrated by the mother and in 2012 in relation to the mother’s older daughter being sexually abused by the mother’s second former partner.
The expert had regard to documents concerning the periods in which risk of serious harm reports were allocated for further assessment. These were in 2015 and 2016 in relation to the father’s violence against the mother’s older daughter for which he was convicted, in mid-2019 relating to the sexual abuse of the mother’s older daughter by Mr B and the assessment in late 2017 to late 2020 regarding Mr B’s ongoing contact with the children. It was observed that in late 2020 within days of the Department’s decision to cease working with the family, a report was made raising concerns regarding Mr B playing “cops and robbers” with the parties’ daughter including tying her up.
The final period of allocation and assessment by the Department noted by the expert was in mid-2021 following the reports of Mr B and the mother’s other son sexually abusing the parties’ daughter.
When asked by the expert what parenting arrangements he thought would be in the children’s best interests the father answered that this is a “tough question” but said “safety wise, I feel its best with me”. When interviewed the father queried whether he was “in trouble” and whether the children could be placed in foster care due to his decision to “take [the children] back” to the mother. He indicated that he decided to do this because the children “love their mother”, missed her when they lived with him and is the children’s “comfort”. He explained that the children being upset about their separation from the mother made him upset. He considered that the children who were at the time of interview then living with the mother were “going better” emotionally and “seemed happy”.
When interviewed the mother considered that the then current parenting arrangements were in the children’s best interests mainly as this is “what they have done their whole life” and that they were in a routine in her care including a routine for the younger son to attend “his therapies” and the other children being involved in some extracurricular activities. The mother did not consider that the children had coped well during the period that they had lived primarily with the father. The mother indicated that the paternal household had no behavioural rules and that she believed that the father returned the children to her care because he could not cope with caring for them though she also identified that the father could see that the children were psychologically damaged by their separation from her. The mother described the children’s current emotional wellbeing in very positive terms.
When asked about family violence the father reported a pattern of verbal disputes between he and the mother. The father identified that while the mother “got upset” by the verbal abuse he perpetrated against her, there are no ongoing impacts on either parent due to verbal abuse.
In relation to this matter, the expert noted the following:
It is noted that in material obtained under subpoena from [medical practitioners] that [the father] is reported to have stated that he likes the “power” of scaring people and wants to feel “respected”, “feared”, “in control” and to “win arguments”. He is documented to have denied perpetrating physical violence but acknowledged being “mentally or verbally cruel” and often physically threatening. [The father] is documented as having described himself becoming enraged with very little provocation and feeling no control over this, in addition to expressing anger by smashing his hand on the table, including while children were present. He is also documented as wanting to dominate people and as having thoughts of harming himself, but no intention to follow through with such thoughts, and as having thoughts of harming other people, but did not think he would follow through with these thoughts.
Both parties when interviewed about the incident in which the father threatened the mother’s older daughter with a knife showed little understanding of the impact of this incident upon the children in the household including the mother’s older daughter. Although both parties gave differing versions of this incident, the father did not deny that he did “grab a knife” and stated that this action “possibly” caused the mother’s older daughter to feel fearful. On the mother’s version of events, in addition to smashing her daughter’s phone and damaging her laptop, the father threatened to “slit [this child]’s throat” before chasing her upstairs and when the mother intervened the father subsequently threatened her and her unborn twins with the knife. When the mother was asked about the impact of this incident on the children who were in the house she stated “I don’t know” and that they had “never really talked about it” but went on to report that the parties’ older son was “too young to fully understand what went on”. The mother also said that she didn’t think that this incident really had an effect on her older daughter other than “play on her mind a bit”. In relation to her own experience the mother reported that she was “scared” during the incident but also “knew” the father would not harm her. The mother also indicated that the father had threatened her with a knife on another occasion consistent with information obtained by the Department that there had been another notification in 2017 that the father had threatened to slit the mother’s throat.
In relation to family violence the mother also acknowledged she had pushed the father away “a fair few times” when he was being abusive towards the children and mainly her older daughter. The mother also reported that she had intervened when the father grabbed the parties’ older child by the shirt on one occasion and that there were other occasions where the father moved this child out of his way in a manner which caused bruising. The mother also reported the father telling her she would “never see the kids again” if she called the police to report his behaviour towards the children. The mother identified other controlling behaviours by the father such as not allowing her to go out unless she organised for someone to care for the children and expressed a belief to the expert that this was due to the father not being able to cope with the care of the children himself.
The father informed the expert of the circumstances in which he retained the children in mid-2021 and that the mother when informed of Mr B’s conduct towards the parties’ child immediately “defended” Mr B. The father identified his concerns that Mr B is still around or that he will come back, reporting that the mother had lied in the past about her contact with Mr B. While reporting that Mr B has had a number of charges against him regarding his sexual abuse of children and that none of these matters are believed by the mother’s family, the father also indicated that he is not certain that Mr B had abused the mother’s older daughter because in his view this child can be a liar and a manipulator. Although the father claimed to have allowed the police investigation and the court proceedings to run their course, it was noted by the expert that annexed to the mother’s affidavit is an affidavit purportedly filed by the father in the criminal prosecution of Mr B. In that affidavit in the father deposes to trusting Mr B to be around his children alone or with family and describes him as “a good dad a role model, not only for his family, but my children also”.
When asked, the mother said that she did not believe her older daughter’s account of sexual abuse by Mr B on the basis that this child had made numerous previous (unfounded) allegations of sexual abuse. The mother confirmed that Mr B was convicted of these offences against her daughter and incarcerated as a result and indicated that she gave evidence during the criminal proceedings in support of Mr B. The mother identified that her daughter called her and members of the extended maternal family “nothing but liars” in those proceedings which the mother explained “really drove the wedge into me”. The mother denied when asked that the criminal proceedings had any impact on her daughter’s life stating “she’s out living the best life”.
When asked about Mr B’s conduct towards the parties’ daughter the mother acknowledged that he had kissed her but indicated that this was benign as it occurred in the context of saying “goodnight”.
The father described the disclosure of the parties’ daughter that the mother’s other son had sexually abused her and said he did not feel comfortable with the children continuing to have contact with the mother’s other son. The father also reported that the mother gives him “her word” that the children will not be left alone with the son and that he gives the mother “the benefit of the doubt” in this respect. When asked whether he thought the mother is able to protect the children the father stated “in all honesty, I don’t know”.
The mother told the expert that the children reported to her that the paternal grandmother “told them to lie” in relation to the allegation that her other son had “allegedly touched [the parties’ daughter]” and had “bribed” the children to lie so that they could live primarily with the father. The mother reported that she told the parties’ daughter that “lying is not good” and that “you can get people into trouble”. The mother was firm in her belief that her other son had not abused the parties’ daughter, stating that her son was not ever left alone with the children. The expert noted that information obtained under subpoena from the Department included an interview with the mother in mid-2021 in which she said that the children are not left alone with Mr B and that any contact between them and Mr B is in the presence of herself or her other son.
The expert records that while the mother did not raise concerns during the assessment regarding the children being at risk of sexual harm in the father’s care, it is noted that her affidavit includes reference to the mother’s other son having been exposed to the father masturbating, the parties’ younger son playing with his genitals and making humping movements on furniture after spending time with the father and the parties’ daughter trying to touch the mother’s breasts and reporting that the paternal grandmother allows her to do this. The expert further noted that information obtained under subpoena from a general practitioner refers to the father having “issues” regarding his use of pornography and having a masturbation addiction, masturbating up to six times per day at one stage.
It is recorded in the Family Report that while the mother did not raise concerns during the assessment regarding the children being at risk of physical abuse perpetrated by the father, the expert notes that the mother in her affidavit deposes that the father grabbed the parties’ older child around the neck when the children were infants causing a mark, had shaken the parties’ younger son and lacks patience with the children and swears at them. The expert also records that information obtained under subpoena from the Department details the father having informed the Department that when the parties’ older son was one year old he “forced” this child into his car seat and used “too much force” causing a mark to this child. These records further detail that the paternal grandmother told the Department that during the period the children were living primarily with the father he required support to care for them.
Both parents provided similar accounts of the children’s personalities and interests and the mother raised no current concerns regarding their academic, social or emotional wellbeing. The father reported that he had no current concerns regarding these matters in respect of his sons but described emotional and behavioural disturbance for the parties’ daughter, including her “screaming and screaming and screaming”, including in people’s faces, and scratching her legs “constantly”. He reported that this child might “feel it’s my fault that I kept them for so long” or that she might “feel a bit uncomfortable” due to abuse perpetrated by Mr B and/or the mother’s other son.
Both parents reported that their younger son has been diagnosed with global developmental delay and indicated that this child has learning difficulties and is in a class at school that caters to children with additional needs.
When the parties’ older son was interviewed by the expert (at the age of eight years), he presented as cautious and considered, often pausing before answering and providing limited information in his narratives. This child seemed ambivalent about whether he considered his paternal grandparents as family. He described that the mother’s other son resides with his maternal grandparents but reported that he sees him “every day technically” because the parties’ younger son is dropped off by that child’s school transport service at the maternal grandparents’ home. The parties’ older son reported that the mother is present after school but his maternal grandmother is at work.
The parties’ older son stated that he spends “not very much” time with the father and described the father as “angry” “loud” and “crazy”. This child identified that he had chosen these descriptions because the father yells loudly in response to the children being “naughty” or when watching football and that he feels “annoyed” and “anxious” when the father yells. Although this child described the mother as “funny” “loving” and “crazy”, he also reported that the mother yells “a lot” because the parties’ daughter is misbehaving.
The parties’ daughter who was aged six years at the time of her interview initially presented to the expert as friendly and engaged easily in discussion but appeared far less forthcoming and confident when discussing her family. It is reported that this child appeared particularly withdrawn and guarded when discussing the allegations relating to the mother’s other son, her half-brother. When asked about members of her family, the parties’ daughter identified that the mother’s other son lives with her maternal grandmother and confirmed that she sees him “after school every time” when picking the parties’ younger son up after school. She reported that the mother is also present but that the maternal grandmother is at work. When asked why the mother’s other son lives with her maternal grandmother, this child stated “I don’t want to talk about it”. It is recorded that when she was asked how she feels when she sees the mother’s other son she looked down and appeared upset but identified that she felt “happy” as “he’s my brother”.
When the parties’ daughter was asked about her current arrangements she said she felt “ok” about them, reporting that she gets to have fun with both parents but that the father and the paternal grandfather “fight” which makes her feel “sad”.
When the parties’ daughter was asked about her experiences of living with the father it is recorded that she withdrew further and appeared reluctant to provide information. The following is then recorded:
[The parties’ daughter] initially denied that she knew why she lived with [the father] before stating that this was because “[the paternal grandmother] told me a lie about [the mother’s other son]” and “what [the mother’s other son] didn’t do”. When [the parties’ daughter] was asked about the ‘lie’, she paused for a lengthy period without making eye contact and while biting her lip before stating that the lie was “about [the mother’s other son] touched my private bits” and said that [the paternal grandmother] “told me that”. [The parties’ daughter] was asked if [the mother’s other son] touching her had happened and she shook her head in response but quickly looked away. [The parties’ daughter] was asked if anyone had made her feel uncomfortable and she identified “[Mr B]”, who “used to be my stepdad”, reporting that “he started kissing me” “on the lips” and that [the mother] had not been aware of this. She identified that this had occurred on more than one occasion and that [Mr B] had told her to “keep it as a secret”. [The parties’ daughter] stated that she told the police “because I needed to” and identified that she had not told [the mother] about [Mr B]’s behaviour because “[Mr B] was always around”. She stated that [the mother] is now aware that [Mr B] kissed her and she nodded when asked if [the mother] believes that it occurred. [The parties’ daughter] added that [the mother] “broke up with” [Mr B], which she [the parties’ daughter] feels “good” about.
The parties’ youngest son who was also six years at the time of his interview presented as a cheerful and sociable child who impressed the expert as earnestly trying to make himself understood. As the expert did not consistently understand this child’s speech virtually no information was able to be elicited from him.
Although an appointment had been made for the parents and children to attend an in-person appointment so that observations could be conducted, this was rescheduled by the mother as the children were unwell at the time. The father did not attend at the rescheduled appointment and advised via email that morning that he was unwell but a medical certificate which was requested had not been received at the time the report was written. The father did not provide contact details for the paternal grandparents as requested.
A further appointment was scheduled for the father, the paternal grandparents and the children. The father advised that neither of the paternal grandparents would be attending the assessment and although he was requested to attend the appointment without his parents, he did not attend and no further correspondence was received from him. Thus, only the mother was observed in her interactions with the children.
Court Child Expert's evaluation and recommendation
The expert recorded that the parties' older son and daughter indicated a preference to live with the mother and spend time with the father and identified that being unable to maintain a meaningful relationship with either parent would have an adverse impact on them. The younger son's view were not able to being meaningfully ascertained. The expert also records that the two children's views that were able to be ascertained were consistent with other information they provided during the interview regarding their experiences of each parent including exposure to conflict, if not family violence in the father's care.
The expert was only able to make limited comment in relation to the children's relationships with the father though it was her view that the older son and daughter's account of their experiences of the father were suggestive of established relationships with him and that they have similar relationships with each parent, but at times they experienced the father's behaviour as concerning. The expert also observed that it did not appear to be in dispute that each of the children have established relationships with the mother and were adversely impacted when they were unable to spend time with her and opined that if the children are unable to maintain a relationship with the mother they are likely to experience grief and loss which could manifest as emotional and behavioural difficulties.
It is also recorded in the Family Report that while each of the children provided limited information regarding the mother during interview, they provided generally positive accounts of their experiences with her and appeared comfortable interacting with her during observation.
The expert records that the mother demonstrated some capacity during observation to engage with the children in a child-focused manner but did not do this consistently and often ignored the children's attempts to seek her attention and her limited attempts to manage the older son's behaviour were ineffective. This raised concern for the expert about the older son's emotional wellbeing and the wellbeing of his siblings who may be adversely affected if this child's behaviour undermines their sense of safety and security in their home. The older son's behaviour during observation and the mother's account that this is typical behaviour for him suggests that this child's wellbeing is adversely impacted by his experiences which could include exposure to family violence resulting in him modelling aggressive behaviour as a form of expressing his emotions.
The expert identified one of the primary issues in the matter being the allegation that the parties' daughter was sexually harmed by Mr B and/or the mother's other son and accordingly whether the children are at an unacceptable risk of harm in the mother's care. So far as Mr B is concerned, it is reported that the mother acknowledged that he had kissed the parties' daughter but expressed a belief that this was not sexually harmful for this child. Although the expert opined that kissing a child on the lips could be considered non-abusive, there are elements of the child's account that are suggestive that Mr B's reported behaviour towards her was not in the relationship of typical carer-child affection. These include that the parties’ daughter indicated that Mr B's behaviour was unwanted and caused her to feel uncomfortable, that he was kissing her without the mother's knowledge and that he instructed this child to keep his behaviour a secret, being elements that the expert opined are "strongly suggestive of sexually harm (sic) behaviour".
The expert went on to express significant concerns given Mr B's history of perpetrating extra-familial child sexual abuse, that his behaviour towards the parties' daughter, even if not considered to be sexually abusive, was grooming behaviour which, as explained "occurs when a perpetrator utilises specific tactics to prime a child for future sexual abuse". The expert outlined such tactics utilised by perpetrators and concluded that significant concerns are raised that had Mr B had ongoing access to the parties' daughter, his sexually harmful behaviour would have continued and escalated, potentially to the extent of the sexual abuse such as he perpetrated against the mother's older daughter.
In her report, the expert identifies the risk for children having contact with a perpetrator of sexual abuse and other adverse impacts even if the perpetrator does not directly offend against the child. She outlines that these include poor role-modelling or confusing messaging to the child regarding personal and/or sexual boundaries resulting in the child developing problematic and potentially abusive schemas regarding sexual activity, exposing the child to developmentally sexually inappropriate contact and, if the child is aware of the abuse, the child developing a perception that the perpetrator's abuse is acceptable.
The expert raised a number of significant concerns arising from her assessment regarding the mother's capacity to protect the children from sexual harm including the mother's ongoing denial that Mr B sexually harmed her children when he has been convicted of sexually abusing her other daughter and as the Department substantiated the allegation of sexual abuse (kissing the parties' daughter) and the parties' daughter herself continues to disclose that Mr B kissing her made her uncomfortable. The mother facilitating contact between the children and Mr B after his arrest also raises significant concerns regarding the mother's capacity to protect the children from sexual harm, particularly as she did not comply or inadequately complied with any safety plan implemented to protect them. In the context of this dispute the expert opined that this would raise specific concerns regarding the mother's willingness to comply with protective or injunctive orders made in these proceedings.
When the expert assessed the family it was not evident whether the Department had substantiated the report that the mother's other son caused sexual harm to the parties' daughter. The expert records her significant concerns if it is determined that the children are at unacceptable risk of harm from the mother's other son regarding the mother's protective capacity. In particular, the mother maintained during the interview that her other son did not abuse the parties' daughter and that these allegations were fabricated by the paternal family and also appeared to minimise the reasons why her other son lives with the maternal grandmother.
The expert opined that if the mother's other son is determined to pose an unacceptable risk of harm to the children and the mother does not accept this, she is likely to continue to choose to parent the children in a manner that does not prioritise their safety or wellbeing including through facilitating contact between the children and her other son. Such contact could have an adverse impact on the psychological wellbeing of the parties' daughter including exacerbating trauma associated with abuse and inadequate supervision of this contact would place the children at ongoing risk of sexual harm. Such contact could also overtly or implicitly cause the children to perceive that the mother's other son does not pose a risk, thus potentially invalidating any lived experiences or normalising sexual abuse and inadequately responding to non-disclosure indicators of future sexual abuse.
The expert opined that while the parties' daughter did not disclose sexual abuse perpetrated by the mother's other son during interview and denied that he had abused her, this child's presentation during this discussion was of concern and suggested that, at the least, she is adversely psychologically affected by dispute concerning this issue. The expert did also identify the parties' daughter being at risk of psychological harm in the father's care if the allegations she previously made were false (and generated by the father’s family). However, observations of the daughter’s body language, affect and presentation when discussing the mother's other son and when disclosing abuse perpetrated by Mr B suggested to the expert that the child's denial of sexual abuse by the mother's other son is not accurate.
The mother's explanation that her other son could not have sexually abused the parties' daughter because he did not have the opportunity appeared to the expert to be inconsistent with information that the mother is reported to have shared with the Department in mid-2021. At that time the mother said that her other son had a role in supervising the children's contact with Mr B at times. The expert identified concerns if the mother previously provided false information to the Department and failed to protect the children adequately from the risk posed by Mr B. The expert also identified that if the account documented by the Department is accurate then significant concerns are raised that the mother either deliberately provided false information about contact between her other son and the parties' daughter during the assessment (and thus prioritised her other son above the daughter) or that the mother lacks insight into the possibility that her other son perpetrated abuse against the parties' daughter when supervising Mr B’s contact with the children.
The expert also raised concern about the mother questioning the parties' daughter about her truthfulness in relation to the allegation against her other son and informing the parties' daughter that she could get people into trouble (by lying). If as the mother maintained, the daughter's disclosures regarding the mother's other son were prompted by the paternal grandmother, the mother's account of her discussion with the daughter raises concerns that she has little understanding of the psychological pressure likely to have been experienced by the daughter that led to her disclosure and the mother's potential contribution to psychological abuse of this child by involving her in the conflict. The expert opined that if there is veracity to the allegation against the mother's older son then the mother's messaging to her daughter that she is lying and that the other son will get in trouble is likely to be confusing for the daughter and places the burden of guilt on this child for any adverse impacts upon the mother's other son and the mother which would be considered psychologically abusive.
The expert also reported that the fact that the parties’ daughter had not made disclosures to the mother about abuse by the mother’s other son is likely to indicate that this child perceives that the mother does not believe her and is not willing to protect her from further abuse from her other son. The expert opined that the child’s perception would be consistent with the mother’s presentation during her assessment. The expert opined that it is possible the parties’ daughter has learnt through lived experience that her disclosures are not effective in protecting her from abuse and are associated with negative outcomes (such as ceasing contact with the mother) and is therefore reluctant to make further disclosures. The expert opined that it is also possible that the daughter has been coerced to retract her previous accurate disclosures of abuse which would also be psychologically abusive. The expert concluded:
Irrespective of the reason if [the parties’ daughter] is at risk of sexual abuse perpetrated by [the mother’s other son] [the parties’ daughter] being unwilling to disclose abuse to either [the mother] or other persons, including in forensic or statutory interviews increases her vulnerability to further abuse and to adverse impacts associated with child sexual abuse, particularly if the perpetrator is aware that [the parties’ daughter] will not make a disclosure.
The expert then sets out the range of short-term and long-term adverse impacts of child sexual abuse in some detail. The expert records her significant concern if the parties’ daughter has been sexually harmed by Mr B and/or the mother’s other son about the mother’s capacity to appropriately respond to any adverse impacts on the parties’ daughter, thus increasing the likelihood of enduring impacts for this child. The expert expressed great concern about the mother’s lack of insight into the association between any difficulties for the parties’ daughter and this child’s lived experiences.
The expert expressed similar concern about the mother’s narrative regarding her older daughter whom the expert describes as “a young woman who appears to have had a number of adverse and potentially traumatising childhood experiences”. The expert recorded that the mother lacked empathy and insight into the potential impact of this child’s experiences on her psychological wellbeing and behaviour which raised significant concerns regarding the mother’s ability to appropriately respond to difficulties experienced by the children and her ability to meet their psychological needs. The expert opined that the mother’s negative perceptions of her other daughter adversely affected her willingness to protect the parties’ children from risk of sexual harm posed by Mr B following the other daughter’s disclosure of abuse.
In relation to all of the foregoing matters concerning the mother, the expert concluded :
On the basis of information available to this assessment, with particular consideration of concerns regarding the children being at risk of sexual harm in [the mother]’s care, her capacity to protect the children from harm, and her ability to appropriately respond to any adverse impacts on the children associated with harm in her care, it cannot be recommended that the children living primarily with her is in their best interests….
So far as the father is concerned, the expert evaluated that his account of the concerns he holds regarding the children’s safety and wellbeing in the mother’s care and his apparent lack of certainty regarding the mother’s lack of capacity to protect the children from the risks he identified, raises significant concerns regarding his decision to return the children to live with the mother in late 2021 and regarding his willingness to agree for this arrangement to continue on a final basis. The expert opined that this apparent incongruence between the father’s reported concerns and his behaviour raises concerns that he either does not hold genuine concerns regarding the children being at risk of harm in the mother’s care, that he lacks insight into the potential adverse impacts on children if they are at risk in the mother’s care, or that he has limited capacity to prioritise the children’s needs above his own.
It is recorded by the expert that the father identified that his decision to return the children to the mother was due to concerns regarding their psychological wellbeing and behaviour and that he attributed their reported emotional and behaviour disturbance to their separation from the mother.
It is recorded that the father also reported ongoing concerns regarding the children’s emotional wellbeing and indicated that this has been exacerbated since their return to live with the mother. The expert opined that given that the parties’ older son and daughter are reported (and the oldest son was observed) to exhibit ongoing emotional and behavioural disturbance, it appears highly likely that this is due to a combination of factors and was not only related to the abrupt change in their living arrangement and separation from their mother in mid-2021.
The expert identified the adverse impact on the children of their lived experience including being the victims of sexual abuse and exposure to family violence, shortcomings in each of the parents’ abilities to meet their needs and the caregiving environment provided in each parent’s care. The expert reported that the father demonstrated little understanding of these matters and opined that his choice to return the children to the mother’s care rather than seek support for himself or the children if he was unable to meet the children’s needs raises significant concerns about his ability to prioritise the children’s needs above his own and regarding his ability to provide adequate care for them.
The expert also made adverse comments about the father choosing to not attend the in-person appointment for the parent-child observations session or facilitate the paternal grandparents participating in the assessment with respect to his commitment to the children. The expert opined that the unavailability of the paternal grandparents which was said to have precluded the father’s own attendance may be indicative that he is reliant on the paternal grandparents to support him in the care of the children. The expert was unable to make comment on the willingness of the paternal grandparents to provide this support if the children were to live primarily with the father and concluded that the paternal grandparents not supporting such arrangement would appear to be an impediment to it. The expert was also unable to assess the capacity of the paternal grandparents to provide any necessary support to the father and to the appropriateness of such an arrangement having regard to any risk of harm.
According to the Family Report the father’s account of the children’s distress upon separation from the mother when they lived with him had an adverse impact on his own emotional wellbeing which appeared in part to motivate him to return the children to the mother. This raised further concerns regarding the father’s ability to prioritise the children’s needs above his own.
The expert documented her overall impression that the father appears to have limited capacity to identify and meet the children’s needs and that assuming primary care of the children overwhelmed his parenting capacity resulting in him relinquishing care of the children to the mother with limited regard for their safety or wellbeing.
The expert sets out in her report the concerns that arise for the children’s safety and wellbeing if the father’s parenting capacity is overwhelmed including the adverse impact on his psychological wellbeing which increases the risk he will perpetrate physical or psychological abuse against the children or that the children will be exposed to family violence he perpetrates against others. The expert considered the father’s account of his conviction in relation to conduct towards the mother’s older daughter suggested that his psychological wellbeing was a significant contributing factor to his offending.
The expert explained that a parent who is significantly emotionally dysregulated and perpetrates episodic incidents of violence is likely to pose a risk of physical abuse to their child and is likely to have parenting deficits. Such deficits include a limited ability to provide a predictable and stable caregiving environment that affords a child a sense of safety and security and supports the child’s development and wellbeing. She summarised that “it is highly likely that a child would experience a significantly emotionally dysregulated parent as chaotic, unpredictable and frightening, which is likely to have an adverse impact on the child’s wellbeing, including placing a child at an increased risk of psychological and/or behavioural difficulties”.
With respect to family violence the expert expressed concern about the incident which related to the father’s conviction and observed that a parent making a threat to harm while holding a weapon is indicative of family violence with a higher risk of lethality than the father’s account implied.
The expert also had regard to the documented account of the father’s reported behaviour in the documents produced on subpoena from the medical practitioner related to therapy he had received, including reports that the father chose to behave in a way to engender fear and wanted to dominate and control others. The expert reports that these documents are inconsistent with the father’s account during the interview of family violence which suggests that he either minimised his family violence during the assessment or provided an inaccurate account of his behaviour and cognitions during therapy. If the father did provide inaccurate information during therapy the expert identified concerns regarding his willingness to meaningfully engage in psychological intervention.
While the expert conceded that the information obtained under subpoena from the medical practitioner is yet to be tested in court, she observed that the cognitions and behaviours detailed in that material are consistent with cognitive distortions associated with a person choosing to perpetrate family violence. These cognitions and behaviours also suggest to the expert (as does the mother’s account) a pattern of family violence perpetrated by the father against her and her children that is coercive and controlling which raises further concerns regarding the children at risk of harm in his care. The expert documents the parenting deficits that are associated with violence of this type that can pose a risk of harm to a child in addition to the adverse impacts on a child associated with exposure to family violence.
In summary, so far as the circumstances for the children in the father’s care are concerned, the expert was also unable to recommend that the children living primarily with him is in their best interests.
Having regard to the significant identified risk factors associated with each parent and significant concerns regarding each of the parents’ abilities to meet the children’s needs, the expert was unable to recommend it as being in the children’s best interests to live primarily with either parent. The expert assessed that there is no suitable carer for the children and as such recommended that consideration be given to inviting the Department to intervene in the proceedings.
Events following the release of the Family Report
The Family Report dated 15 September 2022 was released to the parties a few days later. It is to be remembered that at this stage there had been numerous other significant matters that had occurred at around the time of the expert’s assessment and following, of which the Court and ICL were unaware. These include the ongoing denial by the mother of the veracity of the disclosures made by the parties’ daughter about the mother’s other son, the arrest of the mother’s other son for sexual abuse of the parties’ daughter and breach of the ADVO and the father’s ongoing acquiescence to the children remaining in the mother’s care.
Even though the ICL was not aware at that stage of the additional foregoing matters of concern in relation to the children’s wellbeing, the ICL arranged a joint conference call on 30 September 2022 after the Family Report was released to discuss the expert’s views and recommendations. The ICL then wrote to each of the parties’ legal representatives seeking further information in relation to the parties’ position with respect to the children’s parenting arrangement and also in an effort to obtain information about interviews of the children by the Department, police or the Child Abuse Squad. No information was provided by the mother’s legal representative with respect to the last mentioned matter and the father denied through his lawyer’s response knowledge of some relevant matters, which appears to be contradicted by other information.
It also became apparent from the update Magellan Report (which had not been prepared at this stage) that there were reported ongoing concerns about the children’s wellbeing including in a report on 26 September 2022 that the children were exposed to verbal domestic violence between the parents when they were spending time with the father.
It was subsequently revealed that in late 2022 the parties’ older son and daughter were interviewed by caseworkers at their school. The parties’ older son disclosed that his mother told him that his father and paternal grandfather “fight” and as a result she was not permitting the children to spend time with the father. This child also reported that the father now had a new partner and that he and his siblings visit them every second week and during the school holidays and sleeps on the lounge at his home. This child also reported that he frequently falls off the top bunk where he sleeps at his mother’s home and this his mother “yells sometimes” and that this yelling is mainly directed at the parties’ daughter. The parties’ older son also reportedly told caseworkers that the mother said that the parties’ daughter “lies”, that this lying got the mother’s other son “in trouble and sent him to jail” and also reported that the mother told him that her other daughter lies.
It is recorded that the parties’ daughter when interviewed also told caseworkers that the father lives with a new partner and reported that it was hard for her to sleep at night in all households. The daughter also spoke about getting “shy” when the mother yells and stated that she needs to be silent. When talking about the mother’s other son, the daughter is recorded to have begun rocking on her chair and vigorously drawing and stated that she “can’t remember” the last time she saw him. It was also subsequently recorded that the parties’ younger son was also interviewed at the time and reported how he and his siblings “fight” and that when he and his brother get in trouble at the mother’s home they have to go to their room but when the parties’ daughter gets in trouble “mum is so angry”. This child also reported that the mother’s other son “hurt me” and it appears that he also reported the mother’s other son hurt his brother and in this context referred to “bed” and “big bed”.
The update Magellan Report also revealed that on the same day in late 2022 each of the parents were interviewed. It is recorded relevantly that the mother said at that time that she had a “good” relationship with her other son and sees him when the children are at the father’s home or at school. She also stated that on the preceding Sunday the parties’ older son wanted to show her other son his football trophy so they drove to the maternal grandmother’s home and she and the parties’ daughter waited in the car across the road. The mother stated that the children all “love their brother” [in an apparent reference to her other son]. The mother reported that she and the father have a positive co-parenting relationship.
In his interview the father reported that the relationship between he and the paternal grandparents was “toxic” and spoke of “snapping” and “yelling” at the paternal grandfather. The father also reported being in a new relationship for three months and that when the children spend time in his new home they sleep on the lounge.
On 23 September 2022 when the Family Report was released to the parties by the Court, the Court requested an updated Magellan Report. The update Magellan report dated 3 November 2022 advised the Court for the first time of information in relation to the notifications made from June 2022 concerning the children, and the subsequent involvement of the Department with the family. At that stage, under the heading of “the Secretary’s position” it is recorded that the Department proposed intervening as a party to the proceedings which in my view is entirely appropriate given all of the recent circumstances.
Despite recording the intention to intervene the Secretary had not intervened to date and counsel who appeared amicus from the Department at a court event on 10 November 2022 advised that interventions support and risk assessments are continuing.
Discussion and request to intervene
The foregoing facts and circumstances give rise to the following serious concerns for the Court:
·It is possible or even likely that at final hearing a court will find that orders proposing that the children live with either of the parents would give rise to an unacceptable risk of harm for the children;
·On the available (albeit untested) evidence the children may be currently at an unacceptable risk of harm in the care of the mother and spending time with the father under the parenting arrangement agreed to by the parties and not sanctioned by the court through orders;
·The measures which may ordinarily provide some protection for the children who are the subject of family law proceedings, through the obligations cast on parent litigants and the role of the ICL have not operated effectively to protect these children from harm in these proceedings. It appears likely that during the period in which the children were “under the eye” of both the Department and the Court that they have been exposed to ongoing risks of harm, and in the case of the parties’ daughter subjected to abuse.
There is a long history of concerns in relation to the mother’s care of all of her children clearly documented in both Magellan Reports. Extensive casework undertaken by the Department over the years appears to have been ineffective in reducing the harm posed by both parents to the children. Serious matters of concern have been identified by the expert in the Family Report in relation to the care of both parents, and there is disturbing evidence of the ongoing risks of harm and actual harm experienced by the children since the initiation of these proceedings.
In all of these circumstances the Court was unsurprised that the Secretary indicated an intention to intervene in the proceedings in the update Magellan Report dated 3 November 2022. It is of grave concern that despite this stated intention and despite all of the foregoing information being known to the Department over a lengthy period of time that additional time to undertake further assessment was requested by the Department before reconsidering it would appear to intervene in the proceedings.
The ICL also confirms that she is unable on the available evidence to submit to the Court that the children would not be at an unacceptable risk of harm in either parent’s care. The ICL also holds concerns about the efficacy of any further interventions, support and risk assessments by the Department where the presently available evidence suggest that the mother’s failure to act protectively in particular in relation to the occurrence of and risk of sexual abuse is highly unlikely to change. Similar concerns are raised to the father as identified in the Family Report where he elected to return the children to the mother’s primary care in the absence of any requirement to do so while he continues to express the view that he has concerns about the mother’s protective capacity. The ICL reiterates the parties’ failure pursuant to s 67Z and 67ZBA of the Act to disclose information known to them which has directly contributed to the current position of the ICL.
I accept the submission of the ICL that in the circumstances of this case the Court cannot be confident that the parties will ensure that all relevant information related to the wellbeing of the children will be raised with all parties, the ICL and the Court in a timely manner notwithstanding the legislative requirement to do so. In these circumstances it appears that the only way in which the Court will be informed in a timely fashion of all matters relevant to the ongoing risk and wellbeing of the children is through intervention of the Secretary of the Department.
For all of the foregoing reasons, it is requested that the Secretary urgently consider this request and take steps as soon as practicable to intervene in these parenting proceedings.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 16 December 2022
0
0
0