MCCUTCHEON & RAFFERTY
[2019] FCCA 1585
•11 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCCUTCHEON & RAFFERTY | [2019] FCCA 1585 |
| Catchwords: FAMILY LAW – Bitter parenting dispute – pervasive allegations of violence by all relevant adults – father’s major concern being the alleged violence by the mother’s partner – both parents seeking residence – mother’s chaotic incapacity to organise her life – mother’s extraordinary presentation in court – Independent Children’s Lawyer supporting Father as primary carer and limited spend time required with mother – Orders made as sought by the Independent’s Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: Jones v Dunkel (1959) 101 CLR 298 Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR MCCUTCHEON |
| Respondent: | MS RAFFERTY |
| File Number: | DGC 150 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 7 and 8 March 2019 |
| Date of Last Submission: | 8 March 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 11 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dunlop |
| Solicitors for the Applicant: | Pentana Stanton Lawyers |
| Counsel for the Respondent: | Ms Juneja |
| Solicitors for the Respondent: | VM Family Laywers |
| Counsel for the Independent Children's Lawyer: | Mr Leeton |
| Solicitors for the Independent Children's Lawyer: | Dandenong Family Lawyers |
ORDERS
All previous orders be discharged.
The Applicant Father have sole parental responsibility for the children [X] born … 2010 and [Y] born … 2012 ("the children").
The children live with the Applicant Father.
The children spend time with the Respondent Mother as follows:
(a)During the school term on every third weekend from 5:30pm Friday until 5:00pm Sunday commencing 21 June 2019.
(b)For five consecutive nights during all school term holidays as agreed and failing agreement from 2:00pm on the first Saturday until 2:00pm on the following Thursday.
(c)During the long summer school holidays as follows:
(i)From the 24th December 2019 until the 7th of January 2020 and each alternate year thereafter where the December is an odd year;
(ii)From the 26th December 2020 until 9th January 2021 and each alternate year thereafter where the December is an even year.
(d)In the event Mother's Day falls on a weekend that the children are not spending time with their Mother pursuant to these orders, then from 5:30pm Friday until 5:00pm Sunday and such time to occur in lieu of the following spend time weekend.
(e)At all other times as agreed to by the parents.
That in the event Father's Day falls on a weekend the children are to spend time with their Mother pursuant to these orders, that time will not take place and the children will spend the time with the Respondent Mother on the following spend time weekend from 5:30pm Friday until 5:00pm Sunday.
That changeover occur at the Suburb A railway station in the platform one foyer, apart from Fridays referred to in 4(a) when it will occur at the police booth at Flinders Street railway station or other locations as agreed between the parents in writing.
The Mother is to ensure that the children are not to be in the presence of Mr B at any time.
The parents are restrained from consuming any illicit substances
24 hours before or during the time they spend with the children;
The parents, their servants or agents be restrained from physically disciplining the children;
The parents be restrained from denigrating, belittling or abusing the other parent in the presence or hearing of the children or knowingly allowing any other person to do so.
The Mother be at liberty to access all information from the children's schools including school reports, reports, school photos and access to the school portal.
The Mother be at liberty to attend the children's school functions such as sporting events, concerts and other events that parents normally attend.
That both parents are to advise each other of any significant medical treatment either child receives whilst in their care and provide the other parents with details of the treating medical practitioner including their name and contact telephone number.
The parents are to provide each other with their contact telephone numbers to be used to only discuss issues regarding the children including any medical emergency regarding the children.
The Father to advise the Mother in writing of any significant medical or educational decisions he intends to make regarding the children as soon as practicable. In the event the Father makes a decision regarding a significant medical or educational issue relating to the children, he will advise the Mother in writing within 48 hours. The written communication will include any medical report that may support the decision.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
The Independent Children's Lawyer be discharged.
Certify for advocacy.
NOTATION:
A.The time pursuant to sub-paragraph 4(a) will occur on the weekends commending the Fridays 21 June 2019, 2 August 2019, 23 August 2019, 13 September 2019, 25 October 2019, 15 November 2019, 6 December 2019 and resuming in that cycle the first term in 2020.
B.
The time pursuant to sub-paragraph 4(b) will occur on the Saturdays
29 June 2019, 21 September 2019 and on the first Saturday of the school term holidays in 2020 and each year thereafter.
C.The Mother is to text the Father on the day the Mother is to collect the children before 10:00am that day to confirm that the Mother will attend and the Father is to respond to the Mother's text and in default of the Mother's confirmation time will not occur.
IT IS NOTED that publication of this judgment under the pseudonym McCutcheon & Rafferty is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 150 of 2014
| MR MCCUTCHEON |
Applicant
And
| MS RAFFERTY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting dispute about the best interests of two children, [X], born … 2010 and [Y], born … 2012. The applicant father seeks that he have sole parental responsibility for the children, that the children live with him and that the children spend time with the mother as deemed fit by the Court. The mother seeks that the children live with her and spend alternate weekends with the father together with half school holidays. The Independent Children’s Lawyer seeks that the father have sole parental responsibility, the children live with the father and spend time with the mother each third weekend and five nights during all school term holidays and several weeks in the long summer holidays.
The primary focus of the father’s case is his conviction that the mother is either still in a relationship with Mr B and/or alternatively will permit Mr B, whom the father says is violent to the children, to be in the Childrens’ presence.
For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer, which include that the mother is to ensure the children do not remain in the presence of Mr B at any time. I have residual doubts as to whether she will comply with this order, but the mother needs to understand very clearly that any failure to comply is likely to lead to a total cession of her time.
Agreed or Uncontroversial Relevant Facts
The father was born on … 1978 and the mother on … 1991. When they first met the mother was only 15 or so years old and the father was 28. There was, and as I will explain there still is in a sense, a significant power imbalance between the parties. The mother moved in with the father and his mother in 2006 because her stepfather had previously abused her. Her father had also assaulted her, but the mother has at all times sought to minimise her own father’s assaults.
The mother lost a child at stillbirth on … 2007 when she was of course just turned 16. It is clear that the relationship in its early years infracted, and by a wide degree, laws relating to sexual relations with underage girls.
It is common cause that both the father and the mother have had episodes of significant mental ill health. The mother suffered postnatal depression after the birth of [Y], which led to the involvement for a time of the Department of Health and Human Services (“DHHS”).
Separation took place, according to the father (and this does not appear to be in dispute) when he was imprisoned for seven months on … 2013 for a number of driving offences. He did not see the children after his release in September 2013 until he bought Court proceedings in January 2014.
The father’s original affidavit filed 23 January 2014 deposes that the mother had entered into a relationship in … 2013 with Mr B. Given that the mother had a child with Mr B, [C], born … 2013, it is clear that she was in a relationship with him at the most of just a few weeks after separation from the father. She and Mr B have since had a child, [D] (whose name curiously is spelt in various different ways in the materials), born … 2015.
Although this is not an agreed matter, it should be noted that it is the mother’s position that she separated from Mr B in November 2017. As already indicated, the father takes vivid issue with this.
The Parties’ Affidavits
I have read carefully all the affidavits the parties have filed. I have gone back to the very inception of proceedings, not least because some of the matters deposed to would have been more fresh in the deponents’ minds, but also to get a full and clear picture of the way in which the matter has developed. I do not propose to paraphrase or traverse the affidavit material in any great detail, but there are some aspects of the affidavit material that are worthy of note.
In his first affidavit filed 23 January 2014 the father deposed to his incarceration and that he had not seen the children following his release.
At paragraph 10, he deposed as follows:
“One afternoon in or about March 2012 when [X] and I returned home after visiting the park, the Respondent Mother was in a state of distress. She told me she had found [Y] unconscious and not breathing and had stuck her fingers down his throat. Due to the fragile state the Respondent Mother was in, I called an ambulance for her. She was admitted to the psychiatric ward at the Suburb E hospital for an assessment.”
The Department then became involved and the mother was, it seems, kept in the psychiatric ward for a month.
The affidavit deposed to the commencement of the new relationship with Mr B in July 2013 and the subsequent lack of contact between the paternal grandmother and the mother and the children.
The paternal grandmother filed an affidavit on 15 July 2013. Leaving aside extraneous criticism of the mother as a parent, I note that she deposed to an unidentified male (clearly Mr B) telling her to, “Fuck off,” when she attended to collect the children and saying in respect of the boys, “They’re mine now.”
It should be noted that Mr B has at no times gone on affidavit to respond to any matters put against him.
The father’s further affidavit filed on 15 July 2014 fleshes out, so to speak, his driving offences. In 2007 he was suspended due to accumulation of demerit points for speeding offences. He was subsequently convicted of driving while suspended and further disqualified from holding a licence. In or about 2012 he was convicted of driving while disqualified and drink driving and released on a Community Based Order. He was later convicted of another count of driving while disqualified, which breached the Community Based Order and he was ultimately incarcerated in 2013.
He went on to depose to the circumstances of his 2012 drink driving offence. As he put it, he had gone to his sister’s wedding and consumed an excessive amount of alcohol. The next day he underestimated his reading and was caught for .010 millilitres per litre of blood. He then deposed:
“The Respondent Mother drove and was arrested for driving unlicensed.”
Although he deposes to his offence being “a source of considerable embarrassment and even shame” his description of his subsequent driving while disqualified is insouciant as to his non-compliance with the law.
The mother’s first Affidavit filed contemporaneously with her Response on 3 February 2015 details the relationship, the stillbirth and births of the children, as recorded already. She deposed to the father having had a mental health episode when [X] was about eight months old and being in a psychiatric ward for nearly a month. She deposed to what was plainly the incident in 2012 where [Y] ceased to breathe and subsequent involvement of DHHS.
She deposed to the unsatisfactory nature of the father’s conduct as a parent and his assault upon her on the occasion of [Y]’s cessation of breathing and deposed to satisfaction at the end of the relationship. She deposed at paragraph 27:
“… every thing was good I met a guy called Mr B and he met the boys and they loved him we took them to the park all the time.”
She deposed to the existence of Mr B’s daughter and the fact that she got along well with the children. She put her version of the events where the paternal grandmother turned up, which do not in terms deny the rudeness of Mr B. She deposed to the birth of her two children with Mr B.
Importantly, she stated at paragraphs 35-36 the following as to an incident involving Mr B on 26 June 2014. Relevantly, she asserted:
“35. … We got into a physical altercation where he restrained me and I scratched him behind his ear. When we physically separate, I woke [Y] and [X] up and told Mr B that I was going.
36. I was getting their shoes on and Mr B said words to the effect of, “Don’t listen to your mum she is being silly, it’s cold outside.” I wanted to go – I was looking for my cards that were in the walk in wardrobe and I was sitting and then Mr B came in. He came up towards my face and I pushed him away and he head butted me on my forehead and then he lent in to try and kiss me and say he loved me. I bit him on the lip and made him bleed and he moved out of the way.”
Unsurprisingly, the mother then departed the property, but the police attended and an Intervention Order was applied for. The Intervention Order did not ultimately proceed. At paragraph 42 the mother deposed:
“DHS eventually returned their assessment and were OK with Mr B come home. Mr B is doing the men’s behaviour change program. As far as I am aware, DHS had no concerns about Mr B and how we care for the children and say we are good parents.”
The mother when on to depose as to the unsatisfactory nature of time spent by the children with the father and various other complaints.
The mother’s next Affidavit filed 11 June 2015 includes an explanation for a negative drug screen result and otherwise had some complaints about the children in the care of the father. It does not otherwise take the matter further.
It should be noted that on 22 June 2015 Judge Jones made final orders by which the children were to live with the mother and spend alternate weekends and half school holidays with the father.
The current tranche of proceedings were commenced by the father’s Initiating Application filed 27 September 2016. At that stage he gave his occupation as tradesman. It was filed in the context of a contemporaneous Contravention Application.
The Affidavit asserts that on 16 September 2016 he collected the children. At paragraphs 7 – 9 he deposed:
“7. When I collected the children, I noticed that [X] had a black eye. When I asked [X] how this happened, he refused to tell me. I was extremely concerned about this and was even more concerned as to why the respondent had not notified me of same.
8. The children disclosed to me that the Respondent’s partner, Mr B had been physically punishing them on occasions where they had been misbehaving.
9. The children disclosed that Mr B would twist their ears when they were being naughty, and that he would lock them in a dark cupboard whenever they were misbehaving.”
At paragraph 11 he continued:
“The children have further disclosed that on occasions, Mr B has physically grabbed the back of their heads and smashed their foreheads together. The children have told me that this would occur whenever they were naughty and that Mr B would do this regularly. [X] disclosed to me that Mr B would also pull him by his hair regularly. [X] became very upset when telling me this.”
The father went on to depose to the Department’s involvement.
His Affidavit goes on to support his Contravention Application and I note that part of his complaints was the mother’s lateness for the spend time to occur or her non-attendance altogether.
The mother’s Response sought a Recovery Order (the father having over-held the children) and her Affidavit in support noted the existence of [F], who was then 10 years of age (her date of birth is not denoted).
At paragraph 6 of the Affidavit the mother deposed:
“THAT throughout my relationship with Mr McCutcheon he was verbally and physically abusive towards me. There were occasions where he would hit and push me. He would yell in my face and raise his fists threatening to punch me.”
I note that the children were described as calling Mr B “Daddy Mr B” and that at paragraph 8:
“… The boys see Mr B as a father figure. However I make it clear to them that Mr McCutcheon is their father.”
At paragraph 10 the mother deposed to issues on 16 September 2016 as follows:
“… At around 7.30pm I received a call from Mr McCutcheon. He asked me ‘what’s this about Mr B dragging [Y] and [X] on the ground.’ I said I wouldn’t let anyone do that to them and Mr B had not done this. He said ‘that’s not what they say’ and then he said ‘you’re fucking dead cunt’ and hung up the phone.”
As a result of this abuse the police were contacted and took out an Intervention Order against the father. She went on to depose to the falseness of the allegations made against Mr B and Mr McCutcheon’s jealousy of Mr B.
At paragraph 16 she deposed:
“THAT on the weekend the boys spent with Mr McCutcheon prior to the school holidays, [X] returned home with a puffy left eye and a slight purple mark underneath. I asked the boys what happened and they told me that had been silly at dad’s house and that [Y] had hit [X]. Over the next few days a nasty bruise developed around [X]’s eye. Mr McCutcheon has said to me, ‘they are just boys being boys.’ When the boys went to Mr McCutcheon’s on Friday 16 September 2016 [X] still had a bruise around his eye. Mr McCutcheon did not ask any questions about [X]’s eye when he collected the boys for school holidays.”
The mother deposed to [X] doing well at school and deposed to the father’s reluctance to have the children do schoolwork in his care. She deposed that in her household discipline by her and Mr B was timeout just in the hallway outside their room.
I note that with the Notice of Risk filed by the mother contemporaneously with her Response the mother answered “No” to the question:
“Do you allege that a child to whom the proceedings relate has been abused by a party to proceedings or any other person who is relevant to the proceedings?”
The particulars of harm allege risk of abuse to a child, which the mother marked “Yes” include the withholding of the children, numerous threats to take the children from the mother by the father and threats to harm the mother. Noteworthily, it does not denote any actual assaults.
The matter was back before the Court on 8 March 2017 and one of the orders made on that day was that Mr B not attend handover. Changeovers were to occur at Berry Street.
The Affidavit of the father filed on 6 September 2017 deposed that he was the working as a tradesman at Employer on a casual basis. He went on to depose to the mother’s lateness at changeovers. He refers to Mr B assaulting him using swearwords every time he came to collect or return the children. He did, however, depose that Mr B was more recently complying with the order not to attend made 8 March 2017. He deposed to difficulties with telephone time with the mother degrading him in the background.
At paragraph 16 the father deposed, following a number of other concerns:
“On one occasion, [Y] said that when Ms Rafferty threw a knife, there was blood but he was not sure whether it was Ms Rafferty’s or Mr B’s. I asked where he and [X] were at that time. He told me, “kitchen and bedroom”.”
Ms G filed an Affidavit on 11 April 2018. She is a Case Manager at the Family Services Program at Berry Street. Her report disclosed that she had been providing outreach home visits to the mother at her Suburb H address from the period of mid-December 2017 until April 2018 and that the mother had engaged well. She stated:
“… In my discussions with Ms Rafferty she has demonstrated her ability to reflect on her current situation and it is my understanding that Ms Rafferty has been having regular appointments with clinical psychologist Mr J. Ms Rafferty has made some positive changes this year towards providing for the needs of her children, including enrolling her 4 year old daughter in kindergarten, beginning the process of enrolling her 2 year old in childcare, and I believe she is assessing dental care for her two younger children.”
Ms G was not required for cross-examination. I note that it was Ms G’s view that Mr B is not living with the mother because she would have seen his belongings there.
The mother’s next Affidavit filed 24 May 2018 notes that there had been no information provided to her in relation to the diagnosis and treatment of the children. She noted that supervised visits started on November 2017. She was seeking that her time be unsupervised. She deposed to six sessions with Mr J, including counselling about the family violence she had experienced.
The father’s next Affidavit was filed on 23 May 2018. He deposed that the children had improved their behaviour significantly since living with him. He deposed to the children being well settled in his home and their enrolment at School K.
The father went on to say that he had recently had [X] assessed by a specialist, Dr L, who had diagnosed Dyslexia.
The father went on to depose to complaints made by the mother to Victoria Police, which he described as harassment, including a threat to kill her over the telephone and lastly that he had raped her, all of which he denied. He deposed in paragraph 26:
“I believe these actions have been motivated by a vindictive desire to ‘get back at me’ and to generate something to be used against me in these proceedings.”
I note that the Affidavit annexures M2 and M3 respectively notes from Psychologist Clinic showing that [X] had participated in seven sessions and that [Y] had participated in seven sessions, both by 10 April 2018.
Annexure M3 is a note from [Y]’s teacher, which suggests he is doing well at school and a further note from [X]’s teacher, which suggests that:
“Though he has academic difficulties, [X] tends to be quite happy when at school. [X] appears emotionally stable, even when he faces challenges academically or socially.”
I note that in annexure M4, a report from Dr L Speech Pathologist and Special Education Teacher, at page 32/44 of the Affidavit:
“[X]’s results are spread between low achievement and above average potential ability. He has high oral language skill and low written skills, reflective of his dyslexia.
An Affidavit was filed by Ms M of the Berry Street Children’s Contact Service on 29 May 2018. I note that in respect of the proposed visit on 6 January 2018:
“… The writer advised that the visit was cancelled as [X] had croup and [Y] was unwell. Ms Rafferty advised the worker that croup was “nothing” and Mr McCutcheon should still bring the boys to the visit. Ms Rafferty advised that [X] just needs an asthma pump when he has croup. Ms Rafferty expressed her frustration at not seeing [X] for his birthday.”
I note at page 12 Ms M recorded:
“[X] asked his mother why she had said things about his Dad that meant his Dad had to go to court. Ms Rafferty did not answer, [X] asked again. The writer advised [X] that this is for the adults to discuss. Ms Rafferty told [X] that his Dad should not be talking to him about court. [X] asked his mother another two times why she had done this and each time the writer asked him not to talk about this and the mother did not respond. Ms Rafferty walked past the writer when the children were not looking and mouthed, “Intervention Order.””
Overall, the reports show an appropriate and good relationship between the mother, the children and [C] and [D].
The mother filed a further affidavit on 2 November 2018. At paragraph 7, she deposed:
“On 22 June 2018 after I had collected the children, [X] told me that he had been put in “time out” by the Father. I asked him why this had happened and [X] told me that the Father had seen [F] at the bus stop with me on 10 June 2018 when I returned the children to Berry Street. [X] said that the Father told him that Mr B is still living with me as a result of seeing [F] there. [X] told me that he told the Father that Mr B does not live with me anymore and that [X] and [Y] do not see Mr B. [X] told me the Father said that he was “fucking lying” and that he would “put me in time out longer than 30 minutes if you keep fucking lying”.”
At paragraph 11, the mother deposed:
“Also on 4 August 2018 [X] told me that the Father had made him cry because he told him “you’re fucking Mum don’t love you, she doesn’t fucking love any of us. She fucking loves Mr B.””
At paragraph 14, the mother deposed:
“On 31 August 2018 [X] told me that he had started taking medicine for ADHD. This is the first time I that I became aware that [X] is being medicated. After [X] had told me about the medicine [Y] told me that [X] does not like it and that the Father has to crash it up sometimes to get him to take it. [X] told me that he does not like it because it makes him “feel weird”. He also said to me that he did not understand why he needed to take it as he had never taken it before.”
The mother went on to depose, despite several requests, she had not as at the date of that letter in November been told anything about [X]’s medication, diagnosis or medical practitioners.
The mother said that [X] was calmer when he was not taking his medicine. She deposed to a deterioration in [X]’s performance at school during primary school. [X]’s school report was annexed.
While some of [X]’s scores leave something to be desired, I note the general comment at page 25 of 25 of the school report.
“[X] bubbles over with enthusiasm, especially when talking about his passions and interests. He is learning to listen carefully, however, he fails to finish independent assignments and lacks independence. [X] is disorganised and needs to improve self-discipline. [X] is too easily distracted, however, he is maturing. He volunteers often in class, has a good sense of humour and enjoys the stories we read. [X] gets along well with other children, playing well in the yard and rarely having any issues. He has great potential and when he learns to consistently work independently, it will be a joy to see his growth.”
The mother’s Trial Affidavit, filed 6 February 2019, is, unsurprisingly, largely a repeat of her earlier materials. She deposed that her relationship with Mr B ended in November 2017 and that they have not lived together since and that she is not currently in a relationship. At paragraph 12, she deposed:
“[C] and [D] live with me. They spend time with Mr B by agreement with me. Mr B’s mother collects them from my house and takes them to her house to see Mr B. Mr B comes to my house on alternate Wednesdays and spend a couple of hours with them. If the children were to be present at my house on Wednesdays, Mr B would not attend.”
The mother deposed a close relationship between the children and [C] and [D].
I note that the mother deposed at paragraph 39 to the assault allegedly a few months after [Y] was born, where the father grabbed her hair and pushed her head against the arm of the couch. She went on to depose that the father would yell in her face and raise his fist, threatening to punch her. At paragraph 41, the mother deposed:
“Mr McCutcheon would tell me that no one else would ever love me. He would call me names such as whore, skank. He would tell me I was a slut because I had been pregnant when I was so young.”
I note that the mother complained that notwithstanding Court orders, she had not been given details of the children’s treatment with Psychology Clinic.
Otherwise, generally the Affidavit is a repeat of earlier materials.
The father’s Trial Affidavit was filed on 15 February 2019. Like that of the mother, it is to a considerable extent a repeat of earlier materials. I note that at paragraph 11, the father deposes to collecting the children on 26 October 2018, and [X] saying to him that he was yelled at all the weekend by his mother and Mr B and blamed for everything that [C] and [D] had been doing. He deposed that [Y] had been in trouble all weekend, and when the father asked if Mr B was there every weekend, he replied, “Yeah.” When the father asked if they were still arguing with each other like before, both children said “yes”, but [Y] added, “But they didn’t throw stuff like before”.
The father went on to depose that the children had also mentioned that [F] had been at the residence at the same time as they had, which would only occur if Mr B was there.
The father went on to depose at paragraph 17:
“In 2017, Mr B was charged with assault of police, being drunk in public place and hindering police. He has also been convicted for possession of drugs of dependence including cannabis, amphetamine and ICE. Therefore, it is not safe nor it is in the best interests of the child to be exposed to Mr B’s presence.”
The Affidavit went on to detail the report made by Dr N, a paediatrician at Town O Hospital who is assisting [X] with his ADHD. Annexure M-3 is a letter from Dr N, which found that [X] was “highly suggestive of ADHD”. He went on to recommend starting dexamphetamine stimulant medication to help [X] with his hyperactivity and concentration. Dr N noted that he had warned the father this might cause appetite suppression, sleep difficulties and possibly affect [X]’s mood. This letter was dated 30 July 2018 and a follow-up in two months’ time.
The father’s attitude to the proceeding is well illustrated by paragraph 38, where he said:
“I struggle to believe it is in the children’s best interest to maintain some contact with their Mother because of the exposure to family violence, the Mother’s inability to exclude Mr B completely or at least not have him there when [X] and [Y] are there, and that the children are therefore not safe, and their development is negatively affected. They have been through so much and have now settled into a much better place. If they continue to have long periods of time back in the same environment this will undo where they are now at.”
The father went on to make significant complaint of the mother’s lateness and non-attendance at Berry Street.
The Family Report of Ms P dated 9 July 2017
The report noted that Ms Rafferty did not attend for interview despite Ms P’s best efforts. Ms P noted that both parties had been admitted to psychiatric care in the past, the father in 2007 and the mother in 2012. She noted that the father, following a road trauma in 2003, had become a heroin user.
At paragraph 5, the report noted:
“Mr McCutcheon denied family violence alleged by Ms Rafferty. He said they argued but that he was not violent. He said that Ms Rafferty was chatting on the internet “to other guys” and that she was with other men while he was at work. He alleged that Ms Rafferty had been chatting to her current partner Mr B on the computer while he and Ms Rafferty were still together.”
The father vehemently denied any violence against the mother. He repeated his allegations already made in his Affidavit of Mr B’s alleged assaults upon the children.
Ms P noted that the father had failed to attend the section 11F conference in 2016, owing to a confusion with dates.
Relevantly, the reported noted at paragraph 24:
“Mr McCutcheon said that when he met Ms Rafferty she told him she was aged 19 years, but that she was 16 years and he did not discover that until 18 months later. He described that she was “in trouble” and she was being abused by her mother’s boyfriend. He said she was “severely bashed” and he “choked her so badly her eyes went bloodshot”. Mr McCutcheon said he went round to her mother’s home and “sorted him out”. He said he “hit him a couple of times”.”
At paragraph 31, in describing her telephone interview with Ms Rafferty, Ms P wrote:
“Ms Rafferty spoke in a rambling manner on 16 June 2017. She sounded possibly substance affected. She insisted that she was ill and she was unable to attend the interview with the children.”
Given Ms Rafferty’s non-attendance, Ms P was unable to make an evaluation or make any recommendations.
The Family Report of Ms P dated 2 October 2017
I have, of course, had regard to the entirety of this report, which I have read more than once. The following extracts are, however, in my view, pertinent.
At paragraph 4, the report noted:
“Ms Rafferty provided information at the interview that was consistent with Mr McCutcheon’s previous account of how they met and lived together. She said the relationship ended because Mr McCutcheon was “cheating” on her on social media and she alleged she found a number of other women’s phone numbers in his phone. She said they argued about those things. She expressed the opinion that Mr McCutcheon is a good father and she did not have safety concerns for the children in his care.”
I note that the mother said she was in the process of obtaining a drivers licence and that she was in a relationship with Mr B, who lived with her and the children.
At paragraph 12, Ms Rafferty proposed the children live with her and spend time with Mr McCutcheon pursuant to the then-extant orders, including changeovers to continue at Berry Street indefinitely.
The mother was 40 minutes late to the interview. At paragraph 17, the report noted:
“Ms Rafferty said her parents are still living and they separated when she was aged 4 years. She said her mother had an affair. She said she and her two younger siblings were placed in “foster care” until she was about 6 years. She then lived with her father until she was 14 or 15 years of age. Ms Rafferty said her father “bashed me” when she was aged 12 years and police became involved. However, she said she was left with her father because she did not want to be put into out of home care again. She also said she “didn’t think my Dad wanted to do it” (that is assault her).”
At paragraph 19, the report noted:
“Ms Rafferty said she left home when she was aged 14 or 15 years and lived with friends and her mother for a time, until she met Mr McCutcheon. She left her father’s home because of physical violence towards her. She described Mr McCutcheon as “a nice person” and that he helped her “get away” from her mother’s “boyfriend” who raped her.”
At paragraphs 22-24, the report noted:
“22. In relation to Ms Rafferty’s relationship with Mr B, she denied that he was violent towards her and said there was mutual violence. She said the Department of Health and Human Services (“DHHS”) became involved and that Mr B was not allowed to live with her for a period of time. Ms Rafferty said DHHS have remained involved and that they have no concerns about Mr B living with her now.
23. In relation to Mr McCutcheon’s concerns about [Y]’s fear of returning home, she said “there was a big fight”, between herself and Mr B. She said she picked up a “toy knife” off the ground and threw it at Mr B. She said “[Y] was scared”, but that the Court would “see” (the truth).
24. Ms Rafferty was asked why Mr B did not attend because she had indicated during the phone conversation about the appointment that he would attend to assist her. She said he did not want to come and that he does not attend the changeovers and does not want to be involved.”
[X] was interviewed. He was relieved that he did not need to answer questions if he did not wish to do so. He said that Mr B did not do anything to discipline him because he is not there anymore but believes he was living at a friend’s home.
At paragraph 33, the report noted:
“[X] said that there had been a fight and that his mother threw a “plastic knife” at Mr B. He said [Y] had been scared.”
At paragraph 36, the report noted:
“When asked what was good about Mr B, [X] said he did not want to answer that question. When asked what was not so good he said, “that he went to his friend’s house”.”
[Y] was also interviewed. At paragraphs 42-44, the report noted:
“42. [Y] said something good about Mr B was that “he’s at work”. [Y] said Mr B lives with them. He also lets them play with “Lego”. [Y] said there was nothing “not so good” about Mr B.
43. [Y] confirmed the children are disciplined with time out at both parties’ homes.
44. [Y] said of the incident where a “knife” was thrown, that it was a “paper knife” and that he was “not scared” and that he just went to his bedroom. He seemed keen to move on from that question without describing anything further.”
At paragraph 49, the report observed:
“The children were observed to assist their half siblings and to be affectionate towards them. [Y] kissed [D] and tried to soothe him because he said [D] was crying while his mother was being interviewed. He hugged [C] good bye when he was leaving with Mr McCutcheon. [X] also helped attend to his half siblings and was less affectionate.”
At paragraphs 51-53, the report noted LEAP results:
“51. Leap returned two recent records for Mr McCutcheon in … 2016 he was charged with “make a threat to kill” which was struckout/withdrawn at the Suburb Q Magistrates Court. In … 2016 he was convicted with possess cannabis at the Suburb R Magistrates Court, and fined $200. He received a custodial sentence of seven months from the Suburb A Magistrates Court in … 2013, for a number of driving offences and breaching previous orders made in relation to driving offences.
52. LEAP results indicated Mr B had been charged in … 2017 with assault police, drunk in a public place and hinder police. He was convicted at the Suburb Q Magistrates Court and the matter adjourned to … 2018, with a payment to be made to the Vic Police Blue Ribbon Charity.
53. There were previous convictions prior to and during 2009 for possession of drugs and dependence (cannabis, amphetamine and not named).”
The DHHS subpoenaed documents identified “not named” as ICE.
At paragraph 54, the report continued:
“Mr B was named as the respondent and AFM in other relationships prior to Ms Rafferty. He was also named as the respondent and Ms Rafferty the Affected Family Member in an IVO on 16 June 2014. There was a Family Violence incident report whereby Ms Rafferty was the AFM and two children were present, and Mr B was the Perpetrator on 12 May 2017. The police report indicates there had been previous family violence incidents and that Ms Rafferty had made a statement of “no complaint” after being choked by Mr B in an argument about payment of rent. Ms Rafferty excused the behaviour of Mr B saying he was tired and did not have a job.”
Ms P traversed the DHHS reports. At paragraph 58, she noted:
“It was noted that [Y] disclosed to his teacher on 6 June 2017 that his mother “threw a knife at his “Daddy” [Mr B]”. It was noted that “Daddy went into the other room and the blood stopped”. It is further noted that [Y] described the incident to the DHHS note writer and his teacher on two separate occasions. [Y] described that both adults threw knives at each other. It was further noted that [X]’s behaviour at school can be an indicator of exposure to protective concerns.”
In the “Evaluation” section, Ms P noted the difficulties that the mother had in attending appointments with the four children, having no drivers licence.
At paragraph 64, Ms P noted a number of the difficulties that the mother appeared to be having. She noted the children appeared to have a neutral to warm relationship with her, and it was notable that Mr B did not attend after the mother had confirmed he would attend to assist her. At paragraphs 65-69, Ms P observed:
“65. There are also concerns that Ms Rafferty lacked comprehension of how a family of origin history of abuse might negatively impact one’s parenting precisely because it has not been reflected upon and processed, and that one has preferred to try to forget what occurred. One of the criteria for trauma symptoms is avoidance of thinking about the traumatic events. There is a possibility that she may replicate that way of coping with the children encouraging them to “forget” arguments, verbal violence and perhaps other violent behaviours. She seemed dismissive of [Y]’s fearfulness, for example, when she and Mr B argued. She was also dismissive about accessing professional assistance in relation to therapy for herself and that is concerning because it may translate into a failure to seek that kind of support for the children when/if they need it.
66. At this Family Report interview the children’s accounts of the incident where a knife or knives were thrown in their mother’s home seemed rehearsed. [Y] struggled to recall what kind of knife and said it was “paper”. Ms Rafferty and [X] agreed [Y] was fearful, and that seems inconsistent with the knife being either a toy, plastic or paper. There are concerns [Y] may now deny being fearful because he has come under some pressure about his response at the time. Not being able to express ones fears openly can contribute to the development of psychological problems in both childhood and later life. The current reporting was not consistent with [Y] reporting to two different professionals soon after the incident allegedly occurred. He was again interviewed by a different professional in his home where his mother and stepfather were at home if not in the same room that the interview occurred. It seems most likely that [Y], who is described by DHHS and his school as quiet and well behaved, was indeed distressed and it also seems likely that he and [X] have been present when family violence has occurred between their mother and Mr B in the past.
67. While it is understandable that Ms Rafferty may fear the children being removed from her by DHHS given her past experiences, she described Mr McCutcheon as a good person and father, unlike her own father who was abusive. She seemed unable to focus on the children’s best interests in terms of opportunities Mr McCutcheon may offer the children. It appears that she prefers to meet her own needs by keeping the children with her when she struggles, rather than having them live in an environment with their father where there is no family violence occurring, and where they are more likely to get the individual care and attention that may assist them to overcome the effects of witnessing the violence in their mother’s home.
68. Ms Rafferty emphasised the children’s relationships with the younger half siblings and while those are important relationships, they are not more important than their relationship with their father, or their best interests in relation to reduction of risks.
69. Ms Rafferty’s capacity to be protective of the children seems poor given she described that she excused her father’s behaviour towards herself as a child when he was violent. There are concerns she may be normalised to controlling and violent behaviours from a partner, and that may have been the reason she separated from Mr Rafferty.”
Ms P went on to say in paragraph 69:
“… Ms Rafferty seemed to demonstrate a pattern of protecting Mr B such that she withdrew charges against him after family violence and there is little confidence her report to DHHS that things were going well with him is accurate. The concerns that Ms Rafferty may not have learned how to be protective stem from her attitude about counselling and accessing professional services either for herself or the children. She indicated at the Family Report interview that she works with the children’s school to address issues, but the DHHS notes suggest otherwise.”
At paragraphs 74-75, the report noted:
“74. Mr McCutcheon impressed as more focused on the children’s best interests in so far as he appeared to have complied with Orders, and to have raised concerns about the level of protection Ms Rafferty offers the children when she is in a relationship whereby family violence occurs. Ms Rafferty made no claims that Mr McCutcheon was controlling. Mr McCutcheon and the children appeared to enjoy a warm and close relationship. There is some confidence that Mr McCutcheon would support the children to have a meaningful relationship with their mother and half siblings should they be in his care primarily.
75. [X] expressed a preference to live with his mother when asked what he wished for generally, but not when asked who would be upset about the hypothetical arrangements. It appeared he may have been prepared for interview and specifically to express a wish about with whom he should live. Since that is not a question I ask children he used the three wishes general questions to say something about with whom he wished to live. The children were aware their mother would be most upset if they live with their father. Curiously they did not say they would be upset. In my opinion the children’s expression of wishes about living with their parents cannot be relied upon due to the strong possibility they were prepared for interview.”
Ms P went on to recommend that the children live with their father and spend professionally supervised time with the mother for at least six months in order to settle into the arrangement without coming from pressure in the mother’s home. There were various ancillary recommendations as to the children’s wellbeing.
The evidence given at Court
What follows, with the exception of the mother’s evidence, is taken from my notes. Self-evidently, it is not a transcript but records aspects of the evidence that struck me as being significant.
Counsel for the applicant father opened the case in some detail. I note that the time for Berry Street changeover will come to an end most likely in April 2019. The father’s position is that if the mother is still in a relationship with Mr B, time should be supervised, or there should be time in a public place on one Sunday in three. The father requires confirmation from the mother a few days before. He seeks that the mother give him her address because she has failed to do so. There should be extra time in school holidays and for special occasions.
The father was called and adopted his Affidavits as true and correct.
Under cross-examination by counsel for the mother, the father conceded the children had lived with the mother from 2013 to 2015. It was put to him that there were no concerns on the Department’s part in 2016. He said he had called into the Suburb S DHHS. There was an Intervention Order against Mr B. The issue has been resolved.
The Department had interviewed the children multiple times. When asked about the interview with [X] on 2 September 2016, Mr McCutcheon said [X] was interviewed at home as well as school. This happened when he withheld the children. He did not agree that [X] has said that if there was trouble, he had a timeout, with no family violence. He was aware what the DHHS findings were. He was aware they had closed the report. He did not know if there was current involvement.
The father said he was aware that the mother says her relationship with Mr B ended in November 2017. She claims that Mr B does not live with her. She claims the children have not seen Mr B. He had not read the report from Ms G. He did not accept her evidence. [C] is five, and [D] is three. He is not aware what time Mr B spends with them. He disagrees because of what he has been told by his children. He does not even have the mother’s address. He does not accept the denials of family violence. There has been no physical or verbal abuse when there has been changeover.
He did not accept that there had been family violence in the relationship. He had never physically or verbally abused the mother. On one occasion, the mother had been very erratic. She thought [Y] had stopped breathing. She was trying to grab him out of his arms. She stuck her fingers down the child’s throat, and he vomited. He got physical at that point. He was trying to get the child dressed. He told the mother the child was fine.
They had arguments, but there was nothing physical. He denied calling the mother a “slut and a skank.” The mother’s application for an Intervention Order was because Court was not going well for her. He had agreed to the Intervention Order. It was not good. He had poor counsel. He should never have agreed. A further application in November 2017 had not proceeded.
The mother had attended all the supervised time ordered in November 2017. [C] and [D] had come, too. The children were happy to see their mother. There is a good relation between [C] and [D] and [X] and [Y]. There is not a good relationship with [F]. He is not aware that [F] lives with the mother. [F] comes to changeover.
The mother was at Court today with Mr B’s mother. [X] tells him he is blamed for everything in their household.
When questioned about asking [X] about Court at the Contact Centre, the father said he made a mistake. He had mentioned Court as he walking out the door. He said something like he was dealing with lies. He should not have said it. He was not sure what impact this might have on [X].
The father conceded there had been unsupervised time with the mother since May 2018. [X] does not enjoy it. He had said in October that this was the worst weekend of his life. He had told him that Mr B was at the house. He said the mother did not take them anywhere or do anything (although he conceded he had not put this in his Affidavit material). His concern comes from family violence. Mr B is having contact with the children.
The father described as “ridiculous” the assertion that he would put [X] in timeout for not saying what he wanted. He did say words to the effect, “I’m trying to teach to you to tell the truth, and your mother is teaching you to lie.”
I would interpolate at this point and say it is quite clear the father was putting [X] under pressure to give him the answers about Mr B’s presence at the home that he himself wanted.
He said the children were being told to lie to him about Mr B. He said the children know where he stands about Mr B. He does not tell the children that the mother does not care for [C] and [D]. He asked if the children were there every weekend. After a couple of occasions, [X] and [Y] had volunteered the information to him. They said they only went shopping with the mother and Mr B. The father said he did not understand why there was a problem with him questioning the children about Mr B.
Once again, I would interpolate that the father’s answers about this were prevaricating, insightless and self-righteous. When it was put to him that the children tell him what he wants to hear, the father’s answer portrayed no insight whatever. He said that he only questioned the children when they bring it up. He had not seen Mr B with the children since November 2017. He was not aware that [X] felt lonely in his household. The teachers have assured him that there is no bullying at school. He is not sure where [X] comes into it because it was [Y] who said he was being bullied. He then went on, gratuitously, to criticise the mother for failing to contact the school.
The father said he would rather there be supervised contact. He conceded there might be benefit in seeing their half-siblings. The children would not miss their mother. They were happy to see the mother for six months supervised time. He said it had been proven that the situation was there. The children do not miss their siblings.
Tellingly, the father said if his children missed their half-siblings, he would console them, but he did not indicate he would actually facilitate time with them. When asked how the children are affected by Mr B, the father said it was the way he treats Ms Rafferty. There is pages of police and DHHS evidence. He referred to the abuse he received at the house. The aggression was on Mr B’s side from the start.
The children behave well and are doing well at school. He said (and more than once) his concerns were because of the family violence (of Mr B).
The father was aware of a Court order that he provide medical information to the mother. He said he told the mother about Ms T. This was the only information he got from the psychologist. He had been to every session. Ms T told him there would be no detailed report. When it was put to him that the mother was not aware of [X]’s medication, the father responded it was a very small amount of medication. He had not contacted the mother by email about this. This was another mistake.
I interpolate that the father’s questions about his compliance or, more accurately, non-compliance with the order to keep the mother informed about medical conditions was extremely evasive.
The father was further cross-examined about [X]’s cessation of his medication. The issue was too big for [X], and he had told his solicitor. He had told Berry Street. [X] is only medicated during school days. The father professed not to understand what the issue was. [X] was not affected at school.
When taken to the letter of Dr N and the possible effects of the drug, the father said the drug does not affect [X]’s sleep or mood as far as he saw. He did not understand why the child was not medicated when with the mother. He did not agree there were no problems at School U. He said he had discussed [X]’s possible ADHD with the mother. Back then he could speak to her. Communications subsequently stopped. He had tried. He wanted a short trial of the drug. He conceded it was a mistake not to inform the mother about the start of the drug.
He was not aware of the children’s grades at School U. There were no problems at school with him. Suburb U is a multicultural area, with many children who did not speak English. He kept up with school at Suburb U. [X] would read a book to him and struggle. He does not want the children to undertake schoolwork on weekends but had eventually agreed. The tenor of his evidence was that he felt that the mother was trying to get at him about this issue. He reads with [X] anyway.
When asked whether [X] had a hearing impairment the father said he had fluid on an ear drum. His hearing was perfect. He had seen a specialist. He had not informed the mother of the hearing problem. He did not know why. In the future she would be the first to hear.
When questioned about drug use in the past having led to the CCO it was around the time stuff happened in the house with [Y]. He got a phone call to say that [Y] was dead and went home. He had been doing community work on a Sunday. He is on a methadone program. He had screen tests in prison and afterwards and does not use cannabis. He had stupidly agreed to buy some for a friend.
When asked why there had been no contact between the mother and the children on the immediately preceding weekend the father said he had been advised by his doctor not to drive because of sunstroke. He had been landscaping all week. There was nobody else at home to do the driving (the net effect was that the mother missed another birthday).
Under cross examination by Counsel for the Independent Children’s Lawyer the father said that Mr B was living with the mother. It was a big issue. There is still contact with Mr B. He wants to know her address for his peace of mind. He is not told where the children are going. The children already told him that Mr B lives there. He did not consent to the spend time regime in December. The children say that the mother and Mr B are still arguing. He does not agree that it is important that the children spend time with the mother. Time should be supervised personally. He was not sure what supervision might be available.
When asked what would happen if the Court found that the mother was not in a relationship with Mr B the father said he would not be able to trust the mother. He has been ordered not to be around the children but he is still there.
He was asked about the number of sessions undertaken with Ms V. He said there were no more than seven. He said they were ordered to go to sessions and that was that. [X] is hyperactive but they have to manage his behaviour.
The father has only just started work. His boss is semi-retired. His starts are at 8.00am and his mother takes the children to school.
The evidence of the mother
The mother was called. She did not wish to disclose her address. She is not employed. She adopted her affidavits as true and correct. It should be noted that the mother was several hours late to the commencement of the hearing. The Court was informed this arose out of a misunderstanding on her part.
Under cross-examination by Counsel for the father, the mother said she discovered [X] was not taking drugs in May 2018. She asked questions. She was concerned. She realised that there were problems with ADHD but there were no problems at school. She had spoken to the school who had no concerns. [X] saw counsellor, Mr W, on Tuesday and Thursday. This was the school counsellor. At the start of prep for [Y] there were four sessions.
When questioned about the 11F Report of Mr X, the mother denied saying that she would organise to speak to a psychologist.
I have not traversed Mr X’s report but it is quite clear that the mother did say this to Mr X as Mr X recorded it clearly.
The mother said that Mr B was violent. There was an Intervention Order. This was only once in 2013 when [C] was born. They had had an argument about rent. She conceded that this may have been the incident in mid-2014. She ripped his top. They got into a fight. It was a tussle.
I would interpolate and say that the mother’s evidence on this point was plainly seeking to diminish what was obviously a very significant incident.
The mother conceded that she had a difficult upbringing in respect of her father. She had no luck with her mother either.
The children were in the house in July 2014. She made a statement to Police. She did not want Mr B charged. She said that she was as bad as he was.
I should interpolate and say that the mother’s answers were given under extraordinary pressure of speech. She has a tendency additionally to mumble and although it appeared that Counsel with whom she was directly engaged could understand her, I was largely unable to follow her answers. The mother said she would focus on the children. She has separated from Mr B but has no problems with him. She has no time to see the psychologist because she is busy with the children. She did not see why the children might need counselling. If I understood her correctly [F] sees her father every second week. She has a learner’s licence but cannot drive. Mr B has a driver’s licence. She has to pay $400 per week rent. She had told her lawyer when she moved she did not want the abusive father in her life. She did not want her around her house. She disputed being late to Berry Street.
She was very much in the habit of answering questions with questions.
The mother was asked about correspondence in 2016. She said she had to get [X] to school. [X] has ADHD. There were delays getting to school because she did not want to drag him there. She lives in Suburb H and has lots of support. She never leaves the children with Mr B. Her sister could help her. She will be 26 this year. She has a hearing impairment but is in employment. Her brother stays the night. She does not see Mr B at all. His mother collects the children. She talks to Mr B on the phone. She has a good relationship with Mr B. She would rather not have him there than not see [X] and [Y]. Mr B comes on Wednesday night after work and she goes shopping. She has no problem with Mr B coming to her house.
The mother wakes up at 7.00am and gets ready. They leave at 8.30am or earlier. There have been no arguments with Mr B and they do not yell at one another. When it was put to her that the police attended her premises on 6 May 2017 at 6.30am the mother said her brother and sister-in-law were arguing. She is not taking any medication or taking any drugs. She sees the psychologist. In 2014 there was a two year Intervention Order taken out. Mr B was charged and she was there. [Y] should have counselling and the mother could not see why the school has not arranged it. The children are not well looked after by the father. Their clothes are too small. She said the father controlled her and abused her. She denied hating him. [C] is very happy at school. She applied for an Intervention order against the father in November 2017 because of the way he treats her. He had abused her at the school. The last session with the psychologist was in May 2018. The children have had no time with Mr B since the orders. There is no need for him to come to her house. The children have a good relationship with Mr B. Mr B lived with her but also lived with his mother. He moved out in November 2018. She does not argue with [F] and does not argue with Mr B.
She had read Ms P’s report. Ms P was not nice. She was judging her and she does not like it. Ms P was very nasty to her. She asked why she might need help. She is upset because the kids have been taken away. She did not see [Y] last weekend. She should not have to travel to Town K because the father did not travel for her. She asked rhetorically why she should travel for him. She was not willing to try medication.
As with the father she denied asking questions and said that the children tell her things. They do not talk about the father at all.
Under cross-examination by Counsel for the Independent Children’s Lawyer the mother was asked questions about Dr N’s letter. She said she never saw it. She would not support medication for [X]. It had made him violent but this stopped when the medication stopped.
Mr B had been physically violent to her in 2014 but it was mutual violence. She had thrown a toy knife at Mr B and there was no blood. She went on to suggest that the father had made this suggestion to [Y]. She had separated from Mr B around November 2017. She did not want a relationship with a man if it would affect her relationship with her children. There was no point having a relationship in these circumstances and Mr B understood this. He moved to his mother but the children stayed with her.
She has spent time with the boys from 27 December 2018 to 10 January 2019. This had been good although the children were hyper over Christmas. They stayed at home or went to the park. When asked if she had gone anywhere much she said she walked. They went to the cinema. They caught the bus which is close to her house. They had been nowhere in a car. She could borrow a car from family members. [C] and [D] are with her but spent time with Mr B after 10 January 2019.
The mother contacted the school when the children changed last year. She spoke with the receptionist about getting reports. They said to use the internet. She would like to see the children’s reports. She did not talk to the children about this. She had said nothing about why they were going to Ms P. She denied preparing the children for their interview with Ms P. She repeated that the children had no knowledge of why they were going.
The evidence of Ms P
Ms P adopted her reports which were tended as exhibits.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms P confirmed that the mother had said that violence by Mr B was not a problem. She said it was equal. Ms P opined that if there was mutual violence, this gave rise to concerns about the mother’s capacity to protect the children. The same would be true if it was family violence by Mr B alone. Mutual violence could include yelling and very intense arguing. Recent research suggests evidence about arguing which leads to a resolution is not problematic, but the incident here was not resolved. The mother may have been minimising the violence.
Ms P was questioned about what should occur if the mother was still in a relationship with Mr B. Ms P said that if there was an intimate relationship and Mr B was spending time at the home, this was a problem. If the mother and Mr B were only in contact through their parental relationship because of their children, then maybe not.
Counsel traversed the disclosures allegedly made by the children to the father that Mr B was there, and Ms P opined that it would be a concern if this was so regarding the mother’s capacity to care for the children.
Ms P confirmed that the children had been coached. She was concerned that the mother had no real insight about the purpose of the proceedings, which was to assess the risk to the children. She was prioritising her own needs and her relationship with Mr B. The mother had an abusive father and stepfather and suffered trauma, maybe complex trauma. This can have an effect upon the development of the brain. Also, when under stress because of similar events, it is possible that decision-making and thinking about the future and planning for the future may be compromised. It also affects the way you respond to domestic violence.
The children have been with the father since October 2017. There have been 11 supervised visits at Berry Street, which went well. Then there was unsupervised time from 13 May 2018. There is a strong bond between the mother and children and also between the children and [C] and [D].
When questioned about Dr N’s recommendation for [X], supported by [X]’s teacher, given that the father wanted to restart and the mother opposed on the basis the child was doing better off it, Ms P said some parents do take issue with medication for ADHD. Usually, this is discussed with a paediatrician. Ms P would be concerned if professional advice was not followed.
Ms P did not see that she would change her recommendations. Any treatment of the mother would need to be very lengthy. Medicare only funds 10 sessions a year, which would not be enough. Some organisations like Centacare or trauma-specific organisations might be more appropriate. What the mother is suffering from is post-traumatic stress disorder. She had not had the impression that the mother had a personality disorder.
Under cross-examination by counsel for the father, Ms P said that her view about the mother’s relationship with Mr B would depend upon the mother’s insight into family violence. If the children were to live with the mother, she would be disorganised. She would not present the children, nor to spend time with their father nor attend on time. Children get disappointed in these circumstances. She had the impression overall that the mother wants to be independent, and that could include excluding the father. Supervised time is usually limited. It could happen if there was somebody trusted who could attend the mother’s home. If time was ordered unsupervised, Ms P’s concern was still about the mother’s attendance. She would be concerned if changeovers were not supervised as the mother is likely to be late or not attend. This is distressing for the children. If the father did all the driving, there could be less time. The mother refuses to give the father her address. If under stress, the mother would be chaotic in how she presents and her thoughts also. PTSD does not ameliorate over time. Sufferers remain hypervigilant. It can be triggered by raised voices or threat or being in Court. It can be very disorganised. The mother cannot get the children to school or even the family report interviews on time. She was often late at changeovers. Time is important for a child with ADHD.
When asked about time in a public place, Ms P said there will be a lot of driving, one hour 20 minutes each way. She was not sure that this would be of benefit to the children in the long term. Saturday to Sunday for one day a month with the removal of Mr B might be appropriate. She had expected to see Mr B. She was concerned the mother had no support person at the interview. The father happened to attend and looked after all four children. The mother had expressed no concerns with the children in the father’s care.
Under cross-examination by counsel for the mother, Ms P conceded that the supervised time between November 2017 and April 2018 had all been good. Unsupervised time was okay except for Mr B. The boys are very affectionate with their half-siblings. Ms P conceded reducing the time the mother spent with the children would change the sibling dynamic. They are not living together. It is preferable that there be time more than once a month. A Contact Centre is very limiting, and home is better.
When it was put to her that the mother had separated from Mr B in 2017 and that the father was encouraging the children to report Mr B as present, Ms P said the children would benefit from protective behaviour training, such as reporting to someone at school, for example. Aggression can be an indicator of grief and might result from a change of residence. She had read that the mother had acted on the recommendations, and this was good. Ms P was concerned at the father’s attitude to the mother’s time. The mother’s behaviour was disorganised. The children had not explicitly said that there were no problems in returning to the mother.
Final submissions for the Independent Children’s Lawyer
Counsel commenced with the issue of parental responsibility. It was submitted that the mother is strongly independent and has a siege mentality. There is a lack of punctuality. She failed to attend the first family report. She has minimised violence throughout her life and particularly between herself and Mr B, whom she said were mutually violent. She does not understand the impact on the children. There were real questions as to her credibility and her denials about her relationship with Mr B. It was submitted that her demeanour was evasive and unconvincing and that she is indeed continuing in a relationship with Mr B. Weight should be given to the fact that the boys indicate that Mr B is present during the time they spend with their mother. He is a regular visitor to the mother.
The father concedes that the time between 27 December 2018 and
10 January 2019, despite the abuse he received from the mother and
Mr B, was nonetheless fine time. It was submitted the father should have sole parental responsibility as the mother has been oppositional throughout. ADHD medication is needed, and it was the father who had got a report from the paediatrician. The father says that [X] improved with the medication, but the mother does still not recognise that this is appropriate. It was submitted there should be a further updated paediatric assessment about [X]’s medication and behaviour in general. [X] has a heightened need for structure because of his ADHD and dyslexia.
Counsel pointed to the fact that the mother has not involved Mr B in the proceeding at all. He is not on affidavit and did not attend the Family Report interview. The children have been with the father since October 2017, and time has proceeded well. The father is supportive of the relationship with the mother and provided for the block of time in the Christmas holidays.
Counsel submitted that there should be one weekend in three with the mother. The distance from Suburb H to Town K is 115 kilometres or an hour and a half drive. This will effect a reduction in time, but there is a need to protect the children from domestic violence. The mother does not have insight about family violence.
Counsel submitted there should be five nights in the school holidays and two weeks in the long summer holidays. This balances the relationship between the children and the mother and stepsiblings against the risk. The mother will not drive, and this is not likely to change. Changeover should not be at a police station. There should also be an order that if the mother was more than half an hour late, the time should cease.
Submissions of counsel for the father
The father seeks orders in his Outline of Case. There should be no contact with Mr B. All time should be supervised. It was a matter of weighing up the primary considerations of the benefits to the children from having a relationship with both parents against the risk of family violence.
The children are nine and seven and have had an eventful upbringing. Both parents have had psychiatric admissions. The father was in gaol, and there were no visits during that time. He had to seek an Information Order in order to progress his proceeding. The allegations against Mr B are of serious family violence. The mother has continued in that relationship despite the many notifications to DHHS. The mother was late or simply failed to attend at all for the father’s times with the children.
Most of the allegations are about Mr B. Mr B is not on affidavit. The mother still talks with Mr B regularly, and he attends on Wednesdays so the mother can go shopping. The mother has no understanding of family violence, and the mother’s Affidavit in February did not deny a relationship with Mr B. She had not told anybody that she was moving house. The father was delivering the children to the mother’s house, and there is no evidence he attended improperly.
The mother’s presentation when giving evidence was concerning. She answered questions with questions. It was submitted the Court should prefer the evidence of Mr McCutcheon. The children need stability and need both parents. When time is supervised, the children are coping better. The father is concerned about family violence between the mother and Mr B will continue. The mother sought a psychologist for six sessions, but there is no report. She may have PTSD. There should be no changeovers at school on Friday. The mother was positive about the father to Ms P.
Submissions of counsel for the mother
Counsel confirmed that the lady accompanying the mother to Court on both days was Mr B’s mother. She tendered orders sought, which I marked as 1. The father’s actions show his non-support of the mother’s relationship with the children. He had failed to give information to the mother about professionals. He had exposed the children to physical abuse during the relationship and psychological abuse. He had discussed legal issues with [X] and told the children the mother tells lies. He asks questions about Mr B.
The mother was the primary carer until November 2017. There is a close relationship between all four siblings. The mother acknowledges there is a close relationship with the father and his family. She has ended her relationship with Mr B and is just parenting his two children. Her lack of punctuality could be resolved by changeover nearer to her home. She has to take the two children to changeover. Since late 2016, there have been no DHHS reports of violence. There are no concerns for the welfare of the children since that time. The mother accepts the family report recommendations as to her own mental health and is undertaking treatment.
Some brief findings about the credit of the witnesses
I will commence with Ms P. Ms P was a professional giving evidence within her area of expertise. Completely contrary to the mother’s assertions, I formed no impression whatever that she was antagonistic towards the mother or had been nasty to her. She had simply prepared her report in a professional way. Ms P’s answers were composed, even-handed and direct. She was clearly telling the truth. I accept the force of her evidence in its entirety.
The father struck me as being extremely intense. I have already commented on some aspects of his evidence that were unsatisfactory. I do not accept his wholesale denies of family violence. As earlier indicated, his answers were on occasion as prevaricating as they were self-righteous. He was gratuitously critical of the mother, and he repeated again and again his concerns about the family violence perpetrated by Mr B. It is clear that he detests Mr B and is, to an extent, obsessed about him. It is his position that Mr B, as it were, took advantage of his incarceration to take the wife and the children away from him. Mr B appears, I should say, to have shared this view in telling the paternal grandmother that the children were now his.
The father, as indicated, was on occasions evasive, and I approach his evidence with a measure of caution.
Whatever reservations I have about the father, however, pale into insignificance almost against the extraordinary behaviour of the mother. It is always regrettable to have to make remarks critical of parties or witnesses, but there is simply no avoiding it in this instance. The mother, when sitting with Mr B’s mother, presented in the most extraordinary way. She sat slouched in her chair, chewing gum (something I did not move to stop as I felt it would distract us from the course of the proceeding) and burst into tears when anything was said that she thought was against her interests. Her affect was curiously childish. She had all the appearance of sulky adolescence.
When she gave her evidence, the pressure of speech was truly remarkable. Her evidence was chaotic and all over the place so that I have had to order transcript even fully to understand it. She answered questions with rhetorical questions of her own. Her description of the May 2017 incident was wholly unbelievable. She was unresponsively critical of the father. A number of her answers appear to me to be more characterisable as extensive rants. She made it clear that she hates Court, and I have no doubt that is true. Her emotions were florid and overblown. Like the father, she denied coaching the children. It is clear that both of them have done so. She sought at all times to minimise any violence by Mr B. She was a poor historian indeed.
Findings about the facts
This relationship commenced when the mother was 15 and the father was 28. He says he did not know her age, but I do not believe him. On any view of the matter, it was a controlling relationship in which there would have been a massive power imbalance. The mother was really a severely traumatised child (she was in year 9 when she was first impregnated) as a result of the dreadful assaults upon her by her father and, even worse, the sexual assault by her stepfather.
I fully accept the weight of Ms P’s evidence, which is entirely consistent with everything the mother said in any event, as to her tendency to minimise and normalise family violence as a result of her earlier experiences. She has never worked through these experiences with any professional assistance and appears to be resistant to doing so.
During the relationship, there is no question in my mind that the father did yell at and abuse the mother. She may well have retaliated to an extent. It is clear that there was some sort of physical altercation on the occasion when [Y] was thought by the mother to have died. It is noteworthy, however, that the end result of that was that the mother was immured in a restricted psychiatric ward for a month. This suggests to me that the father’s version of events is more probably accurate than that of the mother. Nonetheless, I have no doubt that he would have assaulted the mother on that occasion. As he said, he did get physical at some point.
I do not accept that the father was otherwise physically abusive to the mother. I do not accept the mother’s more recent inventions in this regard. Nonetheless, I do entirely accept that the father was controlling and abusive. Amazingly, given that he himself had commenced sexual relations with this woman who was so young in age, he threw this in her teeth from time to time by accusing her of being a slut, a skank and the like. It is truly appalling conduct.
The father was, of course, subsequently gaoled. The tenor of his materials is to minimise his responsibility. The various things he did that ended up in his incarceration were seriously antisocial in their nature, including driving without a licence.
Mr B entered on the scene almost immediately following the departure into gaol of the father. The mother was, effectively, pleased to be out of the relationship, as she said in one of her affidavits. The mother is not a person of such mature personality that she thinks very much before she makes life-changing decisions. The relationship with Mr B must have started almost instantly upon the imprisonment of the father, and she got herself pregnant almost straight away. She gave birth in late 2013.
Despite the mother’s endeavours to deny or minimise Mr B’s conduct, there is once again no possible question that Mr B has been seriously violent to her over time. I do not accept her minimisation or denials at all. Mr B has not been called to give evidence, and that is a point which, in the circumstances, properly gives rise to a Jones v Dunkel point. Furthermore, Mr B’s behaviour towards the paternal grandmother, accepting that she was not called but equally was not required for cross-examination, speaks for itself.
When the father got out of gaol, it is scarcely surprising that he and Mr B did not get along. The father is a man by no means averse to physical violence, such as when he beat up the mother’s stepfather. I have no doubt that he and Mr B addressed each other aggressively and in the most foul language.
There is no doubt in my mind that the incident which the mother describes as mutual violence was violence perpetrated by Mr B on her. It was violence perpetrated, despite her denials, in the presence of the children. This is clear from what the children told the DHHS.
Furthermore, [Y]’s disclosure of the knife-throwing incident and its sequelae, despite subsequent retractions, is plainly, in my view, made out. The mother’s lack of insight in seeking to deny this very serious incident and its obvious effects upon [Y] are a major source of concern.
Ultimately, the father has withheld the children because of his concerns about Mr B. There is no doubt in my mind that he has made it very clear to the children what his attitude to Mr B is, as he conceded in the witness box. Contrary to his denials, I think he has made it quite plain to the children and in particular [X] that he wants to hear that Mr B is still seeing the children. He badgered [X] until he got the answer that he wants.
Equally, I fully accept that the father has told the children that their mother lies to them (he admitted as much), and I have no doubt that he has also told the children, as the mother asserts, that she does not love them but loves Mr B. The father remains insanely jealous of Mr B.
Nonetheless and to his credit, the father has facilitated time with the mother pursuant to Court orders, both supervised and unsupervised. The supervised time went generally well, but the mother’s lack of driving licence, (which I accept is likely to be ongoing), her feckless incapacity to get from one place to another on time, present significant logistical difficulties in the spend-time regime actually occurring as it should. I accept Ms P’s evidence that these occasions where the mother is either late or does not turn up must be deeply distressing to the children.
Each of these parents loathes the other, and the prospects of their behaving in a sensible, rational, adult way in the future, in my view, are virtually nil.
Having made these findings, I turn to the statutory pathway. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
The Independent Children’s Lawyer submits that, realistically, the father must have sole parental responsibility. The children will be in his predominant care if the Independent Children’s Lawyer’s submissions are accepted. I should indicate now that they are.
The mother is opposed to medication for [X], notwithstanding the recommendations of the paediatrician. Indeed, as I understood her evidence, there is nothing that would be likely to make her change that view. While Ms P very properly conceded that the mother’s narrative that [X] got worse when he was on the medication and better when he was not needs to be put into the equation with the paediatrician, the mother’s adamantine refusal to contemplate medication is very telling. Indeed, if I understood the mother’s rants correctly, she effectively asserted that she knew better than any doctor would what was best for [X]. This speaks for itself.
The children are going to remain in the predominant care of the father, and I am going to order that he have sole parental responsibility but that he notify the mother in respect of any major forthcoming decisions.
This is important because the evidence shows beyond any question that the father has lamentably failed to keep the mother so informed in the past. His trite observations on more than once occasion that this was a mistake and he would be better in the future are not ones I readily accept. He regards the mother with contempt and anger. He does not understand his obligations in respect of parental responsibility.
Notwithstanding these difficulties, however, there is simply no practical alternative to sole parental responsibility for the father. This is all the more so since he and the mother are unable in an almost puerile way to communicate in any kind of cooperative or sensible fashion. This brings us to the spend-time regime and the primary and additional considerations
Section 60CC(2) – the primary considerations
Everyone agrees in principle that it is entirely desirable that [X] and [Y] have a meaningful relationship with each of their parents. Counsel for the Independent Children’s Lawyer pointed, however, to the need to protect the children from the risk of violence or abuse. This matter obviously requires greater weight (section 60CC(2A)).
Given that I have found family violence by, in effect, all three parents but most particularly by Mr B, this is a matter that requires considerable weight.
Section 60CC(3)(a) – the additional considerations
Only [X] has expressed from time to time some views about what he may wish. These views have been advanced only tentatively. I accept Ms P’s view that given the clear coaching by both parents, the children’s views should be given no weight in these particular circumstances.
Section 60CC(3)(b)
The children have a warm relationship with each of their parents. Although Ms P in her report described a relationship between the mother and children as warm to neutral, if I understood her evidence, which I should emphasise again seemed to me to be entirely fair to the mother, it is accepted that the children have a good relationship with her. They unquestionably have a good relationship with Mr McCutcheon. What is open to considerable doubt is the nature of the relationship between the children and Mr B.
Although the mother says the children have a good relationship with
Mr B, I have the strongest doubts that that is so. She has not called Mr B to say so nor made him available to Ms P for interview. [Y] has expressed fear arising out of the incident where the knife was thrown, and the fact is that the evidence does not go far enough for me to be able to accept that Mr B has a good relationship with the children.
What is clear, however, is that both boys have a very close and loving and indeed supportive relationship with their two half-siblings. It is clear that they love them dearly.
Section 60CC(3)(c)
The father has undoubtedly participated in making decisions about major long-term issues in relation to the children. He has, furthermore, at all times sought to spend time and communicate with them.
The mother’s capacity to participate in making long-term decisions has not been that great, not least because the father has rigorously excluded her from decisions about the medical conditions said to afflict [X] in particular. Nonetheless, as earlier indicated, the mother’s adamantine rejection of the notion that there could be any basis upon which [X] might require medication to assist with his ADHD suggests a failure properly to participate in such matters. As with the father, she has at all times sought the children live with her.
Section 60CC(3)(ca)
The father has by no means always fulfilled his obligation to maintain the children. He was in jail for a period of time, during which, self-evidently, he did nothing. Furthermore, he has not paid Child Support.
The mother has, when the children have been in her care, plainly maintained the children sufficiently, although I note that the DHHS reports from time to time have spoken of environmental concerns. Given the mother’s chaotic presentation in Court, reflective as I have no doubt of chaotic incapacity to organise her affairs generally, her capacity to maintain the children’s wellbeing is open to some question.
Section 60CC(3)(d)
The children have now been living in the primary care of the father for over a year. It is whatever else one may say a reasonably settled environment. While [X]’s performance at school could be better, this is not surprising given his ADHD and dyslexia. Any change to this bedrock circumstances must be open to significant question.
Conversely however, the continuation of the current spend time regime will necessarily, as Ms P said, impact on the relationship between [X] and [Y] and their half-siblings. This is an important consideration, but as Ms P observed, it is not more important than their relationship with their father. It is a matter however to be borne but steadily in mind.
I further note that when living with their father the children are more likely to have a continuing relationship with his mother, who appears to be somebody who is very fond of them. The mother would not foment such relationship.
Section 60CC(3)(e)
This is an important matter. The parents live over an hour and a half or so apart from one another and the mother is quite unable to drive and will remain so. She is not good at organising herself for public transport and the transportation issues that arise from this are self-evident. Furthermore, given the mother’s no doubt straightened financial circumstances (she made no more than oblique reference to these at any point in her materials or evidence in the Court) travelling costs is likely to be a significant hindrance.
Section 60CC(3)(f)
The father is in my view able to provide for the children’s needs in a general way. His hatred of Mr B and his interrelated paranoia of Mr B’s relationship with mother are significant inhibitors however in the way he conducts himself. While at one level of analysis his desire to know where the mother lives is reasonable, and her refusal relies upon an exaggerated assertion to his violence, the fact is that I think he would be spying on the mother if he could. This is indicative of an incapacity on the father’s part to put the children’s needs before his detestation of Mr B and his dislike of the mother. He should have involved the mother in or at the very least have notified her more fully and candidly than he did, of what he was doing about [X]’s health difficulties from time to time. Leaving this aside however, the children appear to be well cared for in his care. I reject the mother’s assertions of inappropriate clothing and the like.
The mother regrettably is much less able to provide for the needs of the children. The conditioned approach she has to family violence is deeply concerning and likely to be ongoing. According to Ms P whose evidence, I accept, while she dearly loves the children, her capacity to get them to school on time is extremely questionable. She simply has the gravest difficulties organising any aspect of her life. This necessarily impacts upon her capacity to provide for the children’s wellbeing. Her blithe rejection of the necessity or even possibility of the necessity of medication for [X] suggests a significant deficit. Her own misfortunes and they are indeed grave ones impact significantly her capacity to provide emotional and intellectual needs of the children.
Section 60CC(3)(g)
The father’s maturity did not strike me as being any issue in the proceeding. He is a man now of some 41 years. He struck me as being reasonably mature for his age although his response to Mr B has a somewhat immature aspect to it. His lifestyle and background are by no means free of criticism. He has had a thoroughly anti-social approach to his interrelationship with motor vehicles which has led to his incarceration. He has had drug issues in the past and appears still to be on methadone. Nonetheless the fact is the children have been in his care completely unremarkably for well over a year.
I have already commented upon the mother’s presentation. She presents as incredibly immature. Her lifestyle and background, which are matters for sympathy rather than criticism, nonetheless are extraordinarily difficult. I have gravest of doubts whether she will be able to avoid further inappropriate relationships should she make a further relationship. She is a seriously harmed individual suffering from Post-Traumatic Stress Disorder which she sees no need to address. To do that would be a long and difficult process on any view. These qualities necessarily impact upon her capacity as a parent.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
This is an important matter but in the unusual circumstances of this case the attitude to the children and to the responsibilities of parenthood have already been addressed. Each of these parents love their children but in the mother’s case as Ms P pointed out there is a strong sense of dependence on the children to fulfil her own needs.
Section 60CC(3)(j)
Both the father and Mr B have perpetrated family violence within the meaning of the definition of section 4AB of the Family Law Act 1975 (Cth). In the father’s case this has involved one incidence of actual assault but this was when the mother was sectioned for a month. Nonetheless he has clearly engaged in family violence by yelling abuse at her and in the most unpleasant terms.
Mr B comes across from the materials as a whole as a violent individual. He has been overheard yelling in the background during a phone call to the mother. He violently assaulted her in the incident when his garment was torn. I have no doubt that he is a person given to family violence both in terms of physical assault and verbal abuse.
Nonetheless I also think that the mother is well capable of family violence in the sense of yelling and abuse. She presented in court as highly combative.
Section 60CC(3)(k)
There are family violence orders all over this case both historically and even now presently if I understand the matter correctly. In the peculiar circumstances of the case however they add little if anything to the extant picture.
Section 60CC(3)(l)
It is plainly preferable to make final orders to bring this regrettably long lasting trauma to an end. The children above all need an end to it.
Section 60CC(3)(m)
This brings us to the final, critical but unavoidable matter. What is in truth the nature of the mother’s relation with Mr B and does he commit acts of violence against the children.
To take the latter aspect of the matter first, I do not accept the appalling conduct alleged by the father. The disclosures made by the children and most particularly [X] have undoubtedly followed a sustained process of questioning designed to achieve that outcome. It is more probable than otherwise however that the children are apprehensive of or scared about Mr B. [Y] made disclosures of fear of the incident when the mother threw a knife at him connected with Mr B and these are very real to him. Whatever he may have done in the past, and it is not possible to make findings with absolute certainty as to the extent of any physical discipline used by Mr B, he is certainly a man with sufficient temper to make the possibility of violence a very real one. For this reason he is not to be brought into contact with the children at all.
The question then becomes what is the true nature of the mother’s relationship with Mr B. It is clear that she likes him. It is clear that she has minimised at all times his family violence in the past. It is clear equally that she has to have a co-parenting relationship with him as their two children live predominantly in the mother’s care. As I find the mother would probably would very much like to be continuing in a relationship with Mr B but she is terrified that if she does so the children will be taken from her. This is an accurate perception. Were it to be proven that she is still allowing Mr B into contact with the children then they would indeed by likely to be taken entirely from her and her time excised.
In the end however I am not persuaded that the mother is permitting Mr B to see the children. One aspect of her otherwise chaotic and disorganised evidence that emerged with I think some clarity is that the mother has got it into her head (something that is plainly difficult for her in a general way) that if she allows Mr B to see the children then she will not see them herself. I think that this fear of negative consequence is great enough to overcome the mother’s otherwise inclination to ignore the Court’s orders and/or resume her relationship with Mr B. The father’s fears are in my view at the very least exaggerated.
It will be apparent from the terms of this section of the judgment that I retain a residual sense of unease about the nature of the mother’s true relationship with Mr B. It is nowhere near the state of intimacy that the father’s fears give rise to. Those are reflective rather of his ongoing hatred of Mr B and disdain for the mother.
I suspect that the mother is more involved with Mr B than she concedes and would like to be more involved again but I do find that she is not permitting Mr B to see the children. The children’s disclosures to this effect reflect the father’s questioning.
Conclusion
Balancing all these matters up is not an easy matter. Counsel for the Independent Children’s Lawyers submitted that one weekend in three was a good calibration so to speak of the desirability of the children seeing their mother and their step-siblings against the inherent risks the mother’s continuing ambivalence gives rise to. In the end, and having I hope traversed sufficiently the enormous scope of the materials in this proceeding, I think the Independent Children’s Lawyer’s submission is exactly right. The best interests of these children will be served by living with their father and spending time with the mother as proposed by the Independent Children’s Lawyer. I have drawn draft orders giving effect to these conclusions.
I certify that the preceding two hundred and twenty-nine (229) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 11 June 2019
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