Milne and Moore & Anor
[2018] FamCA 796
•5 October 2018
FAMILY COURT OF AUSTRALIA
| MILNE & MOORE AND ANOR | [2018] FamCA 796 |
| FAMILY LAW – CHILDREN – Parenting – Where there are four siblings living together – Where the oldest child has a different father to the three younger children – Where there are three competing parenting proposals – Where there is a level of co-operation between the two fathers – Where the eldest subject child is ordered to live with her psychological father and spend substantial and significant time with the mother and with her biological father – Where the eldest child’s relationship with her biological father is likely to be lost if the child were to live with the mother – Where is it is imperative to maintain and foster relationships among siblings – Where all the children are ordered to live with the father of the three younger children and spend time with the mother – Where there are significant third parties involved in the parenting of the subject children in respective households – Where certain third parties pose an unacceptable risk to the children – Where the children make disclosures of sexual assault by a third party – Where the mother and maternal family are dismissive of this risk – Where the mother has impaired capacity to meet the needs of the children – Where the mother has a current relationship that poses significant risk to the children – Where two of the parties have a history of being indifferent to court orders – Where there has been prior involvement with the Department of Family and Community Services. FAMILY LAW – CHILDREN – Parental Responsibility – Where there are competing proposals for parental responsibility – where allocation of parental responsibility differs between oldest child and three younger children. |
| Family Law Act 1975 (Cth) s 60CC |
| Jones v Dunkel (1959) 101 CLR 298 M & M (1988) 166 CLR 69 |
| APPLICANT: | Ms Milne |
| FIRST RESPONDENT: | Mr Moore |
| SECOND RESPONDENT: | Mr Rutherford |
| INDEPENDENT CHILDREN’S LAWYER: | NLS Law |
| FILE NUMBER: | NCC | 2056 | of | 2016 |
| DATE DELIVERED: | 5 October 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 4-8; 12-14 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Toronto Legal |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Wilkinson |
| SOLICITOR FOR THE FIRST RESPONDENT: | Winder Lawyers |
| THE SECOND RESPONDENT: | Mr Rutherford representing himself |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Kearney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | NLS Law |
Orders
That all prior orders made in this Court and the Federal Circuit Court in relation to: C (“C”) born … 2005, D (“D”) born … 2007, E (“E”) born … 2012 and F (“F”) born … 2013 (“the children”) are discharged.
Parental Responsibility
C
2.1The first respondent father (Mr Moore), and the second respondent father (Mr Rutherford) shall have equal shared parental responsibility for all long term issues involving the care, supervision and welfare of C;
2.2That Mr Moore and Mr Rutherford shall keep the mother advised in writing (which includes text and email) of long term decisions taken in relation to matters including but not limited to enrolment at school, specialist medical attention and religious instruction involving C;
2.3Each party will immediately notify the other two parents, if during such times as C is living or spending time with him or her, the child becomes seriously ill, receives specialist medical treatment or is admitted to hospital.
D, E and F
2.4Mr Rutherford shall have sole parental responsibility for all long term matters involving the care, supervision and welfare of D, E and F;
2.5Mr Rutherford shall keep the mother advised in writing (which includes text and email) of long term decisions taken in relation to matters including but not limited to enrolment at school, specialist medical attention and religious instruction involving D, E and F;
2.6Mr Rutherford and the mother shall immediately notify the other if during such times as the children or any of them are living or spending time with him or her, any of the children becomes seriously ill, receives specialist medical treatment or is admitted to hospital.
Residence
The children shall live with Mr Rutherford.
Time
C’s Time with Mr Moore
Subject to condition in Order 5 C shall spend time with Mr Moore as follows:
4.1On the 1st, 4th and 7th weekend of each school term from 6.00 pm Friday until the commencement of school Monday or Tuesday if Monday is a Public Holiday;
4.2During each school term holiday at the end of Terms 1, 2 and 3 as advised by the school that C attends, from the conclusion of the last day she is required to attend school until 12.00 noon on the first Thursday of the holiday period;
4.3During each school holiday at the end of Term 4 as advised by the school that C attends, from 12.00 midday on 29 December until 12.00 noon on 12 January;
4.4On the Father’s Day weekend each year, from 6.00 pm Friday until the commencement of school the following Monday;
4.5At such other and/or additional times as may be agreed between Mr Rutherford and Mr Moore in writing provided such time does not interfere with the time that C will spend with her mother pursuant to these orders.
As a condition to C spending time with Mr Moore, Mr Moore is restrained pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) from:
5.1Bringing C or any other of the children into contact with Mr K Moore or permitting any third person to do so on his behalf;
5.2Allowing Mr K Moore to enter any place where C and any of the other children are present, or permitting any third person from allowing him to do so, including but not limited to the place where the four children or any of them may be spending time with Mr Moore.
Mr Moore shall, no later than 14 days from the date of these orders, provide to the Court, and to all other parties, an Undertaking from each of the following people to the effect that at any time when C or any of the other children are in the company of that person, they will not allow Mr K Moore to come into contact with the children or be contacted by the children for any reason:
a.Ms L Moore;
b.Mr M Moore;
c.Ms N.
Changeover
Changeovers shall occur at school or otherwise at O Park, Suburb P, or another location as agreed in writing between Mr Moore and Mr Rutherford (including but not limited to any venue where C is playing sport on Friday afternoons).
Time for the children with the Mother
That subject to her compliance with Order 9 the mother shall spend time with the four children as follows:
8.1During each school term as advised by the pre-school and schools that each of the four children attend, on the 2nd, 5th and 8th weekends from 9.00 am to 5.00 pm on both Saturday and Sunday;
8.2With each of the children, until the conclusion of their primary school education, on each Thursday from the conclusion of school until 6.30 pm, provided that the children are not removed from the Q Town area for this period of time, noting that high school aged children may attend if they wish to do so;
8.3During each school holiday at the end of Terms 1, 2 and 3 as advised by the schools that the four children attend; from 9.00 am on the middle Saturday to 12.00 noon on the immediately following Monday, commencing from the end of Term 3 in 2018, on condition that the children spend overnight time in the home of the maternal great grandparents or in the home of such other maternal relative (known and agreed to by Mr Rutherford) as the mother advises is available for the children to stay in;
8.4During each school holiday at the end of Term 4, from 12.00 noon on 20 January until 12.00 noon on 24 January, provided that overnight time is in the home of the maternal great grandparents or in the home of such other maternal relative as the mother advises both Mr Rutherford and Mr Moore, is available for the children to stay in;
8.5On Mother’s Day each year from 9.00 am to 5.00 pm on that day;
8.6At such other times as may be agreed between the mother and Mr Rutherford in writing, provided such time does not interfere with the time that C would spend with Mr Moore.
As a condition to the mother spending time with the children, the mother is restrained pursuant to section 68B of the Act from permitting the four children or any of them from the following:
9.1Having any contact with Mr H, or permitting any third person from bringing the children into contact with him;
9.2Having any contact with Mr B Milne, or permitting any third person from bringing the children into contact with him;
9.3Permitting Mr H or Mr B Milne from entering any place where the four children or any of them are present or permitting any third person from allowing them to do so, including but not limited to the place where the four children or any of them may be spending time with the mother.
Changeover
Changeovers shall occur at R Town Police Station or such other location as is agreed in writing between the mother and Mr Rutherford (which may include electronic writing such as text). Changeovers will be effected by the children walking unescorted to and from their respective parent’s car.
The mother and Mr Rutherford are restrained, and an injunction is granted restraining each of them, during changeover from speaking to each other in a disrespectful, intimidating or insulting manner whilst in the presence, sight or earshot of the children or any of them. In the event that a third party associated with one of the parents behaves in such a manner, the mother and/or Mr Rutherford shall remove the children promptly from the presence of that person.
Communication
C with Mr Moore
12.1Mr Rutherford and Mr Moore shall permit C to make telephone calls to the other household at any reasonable time;
12.2Mr Rutherford shall permit and encourage C to contact Mr Moore on her birthday and on his.
The children with the Mother
13.1Mr Rutherford shall ensure that a call is made by the children each Wednesday between 6.30 pm and 7.00 pm to the mother or at other times as agreed in writing. To that end, Mr Rutherford shall ensure that the children are all afforded privacy, that is, the calls will not occur via loudspeaker and the adults shall not stay within earshot of the conversation unless specifically asked by the children or any of them to do so.
13.2Mr Rutherford shall permit and encourage all four children to contact the mother on her birthday and on each of their own birthdays.
Time at Christmas
Notwithstanding any other order, C will spend time with Mr Moore from:
14.15.00 pm on 24 December until 3.00 pm on 25 December in 2018;
14.25.00 pm on 24 December until 3.00 pm on 25 December in 2021.
Notwithstanding any other order, the four children will spend time with the mother as follows:
15.1From 10.00 am to 1.30 pm on 24 December in 2018;
15.2From 5.00 pm 24 December until 3.00 pm 25 December in 2019;
15.3From 10.00 am to 1.30 pm on 24 December in 2020;
15.4From 10.00 am to 1.30 pm on 24 December in 2021;
15.5From 5.00 pm 24 December until 3.00 pm 25 December in 2022;
15.6From 5.00 pm 24 December until 3.00 pm 25 December in 2023;
15.7From 10.00 am to 1.30 pm on 24 December in 2024;
15.8From 5.00 pm 24 December until 3.00 pm 25 December in 2025;
15.9From 10.00 am to 1.30pm on 24 December in each alternating even year thereafter;
15.10From 5.00 pm 24 December until 3.00 pm 25 December in each alternating odd year thereafter.
Notwithstanding any other, the four children will spend time with Mr Rutherford as follows:
16.1From 10.00 am to 1.30 pm on 24 December in 2019;
16.2From 5.00 pm 24 December until 3.00 pm 25 December in 2020;
16.3From 10.00 am to 1.30 pm on 24 December in 2022;
16.4From 10.00 am to 1.30 pm on 24 December in 2023;
16.5From 5.00 pm 24 December until 3.00 pm 25 December in 2024;
16.6From 10.00 am to 1.30 pm on 24 December in 2025;
16.7From 10.00 am to 1.30 pm on 24 December in each odd numbered year thereafter;
16.8From 5.00 pm 24 December until 3.00 pm 25 December in in each even numbered year thereafter.
Specific Issues
Noting that Ms I may continue to be included on the enrolment records as step-mother living with the children:
17.1Mr Rutherford is to forthwith do all acts and things to amend the enrolment records for C in order to identify Ms Milne as her mother and Mr Moore as her father, including by the provision a copy of her birth certificate to the high school;
17.2Mr Rutherford is to forthwith do all acts and things to alter the enrolment records of D and E to identify Ms Milne as the mother of each child including by the provision of a copy of her birth certificate to the school;
17.3In 2019 when F commences school Mr Rutherford is to ensure that Ms Milne is identified as her mother including by the provision of a copy of her birth certificate to the school;
17.4Mr Rutherford is to inform C’s high school that Mr Moore may be included as an emergency contact for C in the event Mr Rutherford or Ms I cannot be reached by the school staff.
The Independent Children’s Lawyer shall provide to the pre-school, primary school and high school which the children variously attend, a copy of these orders.
To the extent that it is necessary, Mr Rutherford shall authorise the school to release to Mr Moore and to Ms Milne, all documents which are provided to parents, relating to the welfare and progress of the children at school, together with invitations to attend school events and school newsletters and applications for school photographs.
Each of the parents, Mr Rutherford, Mr Moore and Ms Milne are permitted, subject to direction by schools otherwise, to attend any educational or extra- curricular activity to which parents are ordinarily invited to attend provided that the mother advises Mr Rutherford in writing in advance (including text) of her intention to attend.
Restraints
Mr Moore, the mother and Mr Rutherford are restrained from:
a.Denigrating each other and/or any member of their respective households in the presence or earshot of the four children, or any of them or permitting any third person from doing so;
b.Discussing these proceedings with the four children, or any of them or permitting any third person from doing so;
c.Allowing access to, showing or reading any document prepared as a result of these proceedings to the four children, or any of them or permitting any third person from doing so;
d.Allowing access to, showing or reading any document prepared as a result of investigations carried out by the NSW Police or the NSW Department of Families and Community Services to the four children, or any of them or permitting any third person from doing so.
That the Registrar of the Family Court of Australia at Newcastle shall provide a copy of these orders and reasons for judgment to The Secretary, Department of Family and Community Servicers.
The Independent Children’s Lawyer is permitted to provide a copy of these orders and reasons for judgment directly to the four children’s relevant case workers employed by the NSW Department of Family and Community Services.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Milne & Moore and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC2056/2016
| Ms Milne |
Applicant
And
| Mr Moore |
First Respondent
And
Mr Rutherford
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications, by three parents, for parenting orders in respect of four children, girls aged 13, 11, five and four years at the date of trial. The children have all lived with Mr Rutherford, the biological father of the three younger children, since April 2016.
The Trial
This matter was allocated seven days for hearing.
During the course of the trial further documents were supplied in response to a subpoena which had been previously issued to the Department of Family and Community Services (“the Department”). Those documents in turn alerted the parties to the existence of JIRT interviews conducted with the two older subject children, with two children of the mother’s current partner, and with the mother herself and her partner Mr H.
Considerable trial time was lost whilst those audio visual documents were forwarded to the Court and then viewed.
Ultimately the matter was concluded within 8 days.
Representation
The applicant mother was represented throughout by her solicitor. Counsel had been briefed and appeared on the first day of trial. A grant of Legal Aid had not yet been made by commencement of trial. Counsel briefed withdrew on that account. The instructing solicitor then took on representation of the mother, understanding that his work might be entirely pro bono. That is greatly to his credit. On Thursday, the fourth day of trial, the Court was advised that Legal Aid had in fact been granted.
The first respondent father, Mr Moore, was represented by solicitor and counsel throughout. On the fourth day of the trial the Court was advised that a grant of Legal Aid had also just been confirmed. It is greatly to the credit of counsel that he embarked on the hearing knowing that not less than seven trial days may be pro bono.
The second respondent father, Mr Rutherford, represented himself during the trial. He has the residence and full-time care of all four subject children. He is the only parent in paid employment and probably would not have been eligible for Legal Aid. I am unaware as to whether he applied for Legal Aid.
Unfortunately evidence was, as a result of the circumstances set out above, deficient in some respects.
In the case of Mr Rutherford and his partner their affidavits provided scant information.
In the case of the mother, an affidavit by Mr H was filed without objection by the other parties, on the second day of trial.
In the case of Mr Moore, an affidavit by his mother Ms L Moore, the paternal grandmother of C, was filed on the sixth day of trial, on 12 June 2018, to no objection of the other parties.
The Independent Children’s Lawyer (“ICL”) briefed counsel and it was only through the determined efforts of those two practitioners that the existence of the JIRT documents was established and then that the audio visual tapes were in fact delivered to the Court.
The Department did not participate in the proceedings. The two older children had been the subject of notifications of neglect and abuse since their infancy. The Department considered the children safe in the care of Mr Rutherford.
The Parties
The Applicant Mother - Ms Milne
The applicant, Ms Milne is the mother of all of the subject children.
The mother is 32 years old. She presently lives in R Town on the mid-north coast of NSW in the home of her maternal grandparents. The household presently consists of herself, the maternal grandparents both aged 76, and G the 20 month old child of the mother and Mr H.
By way of income the mother receives Centrelink benefits for herself and G. The mother also cares for her grandparents and attends to the domestic work of that household.
There was a domestic relationship of less than two years between the mother and Mr Moore commencing in 2004.
The child of that relationship C was born in 2005. The parents separated when she was about six months old.
There was a defacto marriage relationship between the mother and Mr Rutherford for about ten years between 2006 and March 2016 with a relatively brief period of separation in 2011.
The three younger subject children were born in 2007, 2012 and 2013 respectively.
In late March 2016 separation occurred when the mother left the home with the four children.
The mother moved to live with Mr H in a crowded property occupied by Mr H’s sister, her partner and their children.
In April 2016 when the children spent time with Mr Rutherford for the first time after the separation of their parents, the two older girls raised complaints with him about Mr H’s treatment of themselves and the younger children. Mr Rutherford retained the children in his care.
Subsequently further complaints were raised by the children about sexual misconduct by Mr H.
Residence for all the children with Mr Rutherford was confirmed by interim order of this Court in February 2017 and has continued to date.
Despite her protestations that she has tried to break off the relationship between herself and Mr H, the mother is undoubtedly in a romantic relationship with him. She has been since at least the beginning of 2016, but likely earlier than that. The child of their partnership was born premature in 2016.
The mother lied about this partnership. She did so in an attempt to persuade the Court that there was little chance of the subject children being brought into contact with Mr H if they were restored to her care.
The mother denies that Mr H has molested or frightened any of her children. I have concluded for reasons included later in this document, that the mother was generally an unreliable witness.
I have also concluded that the mother loves the children and passionately wants them in her care. However, she is not protective of them. She declared as follows, “if it comes to choosing between my kids and a relationship, I’d choose the kids”. That is what she says but it is not what she has done. She has chosen Mr H and has lied about the status of the partnership. I consider that the children are not safe in her care for this and other reasons later referred to.
The home of the mother in R Town, is about 30 or 40 minutes drive from the home of the children in Q Town with Mr Rutherford.
The First Respondent Father - Mr Moore
The first respondent Mr Moore is the father of the subject child C.
Mr Moore is aged 36 years. He lives in the home of his parents in X Town in Northern NSW.
The household presently consists of the paternal grandparents of C, himself, his partner of ten months Ms N aged 33, and the paternal uncle Mr K Moore aged about 40 years.
Mr Moore is unemployed and has been for at least five years. He last worked for a short period in 2012/2013. There was no explanation why Mr Moore has been unable to find paid employment since then. Mr Moore has three children from two prior relationships. Two of those children, S and T, were removed by state authorities into foster care. There is a third child, a boy U aged about four years whom Mr Moore apparently does not see at all. That child is said to live with his mother.
Mr Moore’s partner Ms N has three children from her prior marriage aged 13, 11 and six years. They are said to live with their father in V Town in western NSW. Ms N asserted that she has been refused time with her children but speaks to them by telephone. Her evidence was that she has engaged a solicitor who has applied for Legal Aid in order to commence Family Law proceedings. There is no other evidence as to why Ms N has been unable to see her children face to face for almost a year.
Mr Moore and Ms N are hoping to live independently of Mr Moore’s family but have not yet found or been accepted for rental accommodation.
The home of the Moore family in X Town is about one and a half to two hours drive from where C is presently living with the second respondent father Mr Rutherford in Q Town.
The Second Respondent Father - Mr Rutherford
The second respondent father Mr Rutherford is 42 years old. He is the father of the three younger subject children and lives in Q Town (200 kilometres from Newcastle inland from W Town).
Mr Rutherford is employed as a manager. The household consists of himself, his partner of about 18 months Ms I aged 47, the four subject children and Ms I’s two youngest children X, aged 15 and Y, aged 11. Ms I’s four older children, two daughters and two sons, live independently.
Mr Rutherford has three young adult sons from a prior marriage. They are Mr Z aged 21, Mr AA aged 20 and Mr BB aged 19; who live independently but who are in regular contact with their father and their younger siblings (the subject children). Ms I is at home and willingly takes a substantial, but not exclusive, role in the care of the children. Mr Rutherford is in employment but has cut back his working hours in order to be available to the children in the mornings and after school.
Former Parties – The Maternal Grandparents
The maternal grandparents, Ms A Milne (49 years) and Mr B Milne (62 years) were parties to the proceedings.
On 18 May 2018 a Notice of Discontinuance was filed by the maternal grandparents. They had been applicants for sole parental responsibility and residence for the four children. Neither of the maternal grandparents were put forward as witnesses in the mother’s case.
One aspect of this case is that the maternal step-grandfather was charged with serious criminal offences of sexual assault against the mother approximately 20 years ago. The Director of Private Prosecutions (“DPP”) made a decision not to proceed with the charges. The mother’s evidence in this case was that she had at that time lied about her stepfather having assaulted her. In those circumstances it might have been expected that the maternal step-grandfather would have given evidence for the mother.
The Applications
The Mother
The mother proposes that all the children live with her.
The younger children
The mother proposes that she have sole parental responsibility for the three younger children, and that they would spend alternate weekends from 9.00 am Saturday to 4.00 pm Sunday with Mr Rutherford.
C
The mother proposes that she share parental responsibility for C with Mr Moore and that C spend alternate weekends from 9.00 am Saturday to 4.00 pm Sunday with him in the home of his parents for at least the first nine months.
One intended consequence of this proposal is C would not see Mr Rutherford at all and that relationship would be terminated.
In my view this is a reflection of two things. One, the anger the mother feels towards Mr Rutherford for taking the children into his care in April 2016 and, two, the focus of the mother on biological connection.
The fact that Mr Rutherford has raised C, together with the mother from infancy, treating her as his own child, carries little significance for the mother.
The First Respondent Father - Mr Moore
Mr Moore proposes for C that she live with him and spends time with her mother each alternate weekend and half school holidays and with Mr Rutherford as agreed between the parties.
There is no restraint proposed on the mother bringing C in contact with Mr H, Mr K Moore or Mr B Milne, the maternal step-grandfather, or any other person.
The Second Respondent Father - Mr Rutherford
Mr Rutherford proposes that the four children live with him and that he have sole parental responsibility for them.
Subject to her having suitable accommodation, Mr Rutherford proposes that the mother spend each alternate weekend and half school holidays with the children.
There were no orders proposed for C to spend time with Mr Moore. I consider that this is a reflection of time having already successfully taken place for almost two years by agreement between Mr Rutherford and Mr Moore.
There has been a deterioration in the relationship between the two men since C was retained by the mother, with the co-operation of Mr Moore, in April 2018. Mr Rutherford made a successful application for a recovery order. Hostility between the parties, particularly between Mr Rutherford and the mother was aggravated by this episode.
In those circumstances orders will be necessary for C’s time with Mr Moore.
However, I consider the two men will be compliant with orders and may return to their previous amicable relationship at least to some extent.
There was no restraint proposed on the children coming into contact with any person, although by the conclusion of the proceedings Mr Rutherford had changed his position about that. He was proposing day time visits for the children with their mother, and for C with Mr Moore, and sole parental responsibility for all four children for himself.
However, in oral submissions at the conclusion of the case, Mr Rutherford altered his position confirming that he wanted C to have each third weekend with her father and for all four children to have each third weekend with their mother.
At that time I consider that Mr Rutherford was finding it difficult to take into account the implications of all the evidence he had heard about the children over the course of eight days in Court.
History of Relevant Events
The relationship between the mother and Mr Moore ended in November 2005. In February 2006 the maternal grandparents filed an application for parenting orders in respect of C.
A few months later the mother and Mr Rutherford began living together by which time C was about 14 months old. In 2007 D was born.
In June 2007 final consent orders were made in respect of C for the mother and Mr Moore to have equal shared parental responsibility and for C to live with the mother most of the time but to spend alternating weekends with Mr Moore and the maternal grandmother.
In 2011 there was a breakdown of the relationship between the mother and Mr Rutherford followed by a reconciliation on 2012. The third subject child E was born in 2012 and the fourth subject child F was born in 2013.
On 30 March 2016 Mr Rutherford and the mother separated in dramatic circumstances. Mr Rutherford learnt that the mother was pregnant and that the child could not be his. He directed the mother to leave the home, she said she would but that she would take the children and that was agreed.
The mother went to stay with Mr H in his sister’s home. The household consisted of Mr H, the mother, the four subject children, Mr H’s sister, her partner and their children. The household was cramped, and on any view of the evidence, the children did not enjoy the period of time that followed.
After about a fortnight the children spent the weekend with Mr Rutherford after which he declined to return the children to the mother’s care. All four children have remained living in the Rutherford household since that time.
On 9 August 2016 the mother filed an Initiating Application in the Federal Circuit Court together with a Notice of Risk. That Notice of Risk identified that there had been allegations of child abuse raised by Mr Rutherford of which the mother was aware. Without specifics of the allegation having been disclosed, the mother reported that she had contacted the Department and reported those allegations having been raised.
On 30 August 2016 the matter was transferred to this Court. The notations to the order making the transfer were that:
A.The mother was in a relationship with [Mr H];
B.[Mr Rutherford] alleged the children [C] and [D] had been sexually abused while in the mother’s care and that there may have been a JIRT investigation;
C.That the children currently lived with [Mr Rutherford];
D.That the maternal grandparents lived in [CC Town].
On 27 September 2016 the maternal grandparents filed a Response seeking parental responsibility for all four children, that the children live with them and that they spend time every third weekend with the mother, every third weekend with Mr Moore in the case of C and every third weekend with Mr Rutherford in respect of all four children.
In 2016 G, the child of the mother and Mr H was born.
On 5 October 2016 D made disclosures about Mr H’s conduct towards her.[1]
[1] Exhibit 7
Later that month the house in which Mr Rutherford and all the children were living burnt to the ground.
On 10 October 2016 departmental officers interviewed two of Mr H’s children DD and EE. Those interviews were entirely positive by each girl about their father’s conduct, no complaints were raised and statements were made that Mr H had been kind to the other children [the subject children].
Children and Parents Issues Assessment (CAPIA)
On 18 November 2016 all parties and the children were seen for a Children and Parents Issues Assessment. Noted in that assessment is that the 2007 Court orders for C to live with her mother and spend time with Mr Moore and her maternal grandmother had apparently been followed for a few months then abandoned.
The mother told the Family Consultant that C had spent alternate weekends with Mr Moore for nine years from the 2007 orders until March 2016.
Mr Moore did not agree. He asserted that he had tried to follow the Court orders but the mother had continually refused to allow C to spend time with him. He eventually accepted that the only way he could see the child was to spend a few hours every now and then at the home of the mother and Mr Rutherford.
Mr Rutherford who was present for the observation confirmed that version of events. I accept it was so.
The oral evidence before me also confirmed that the only time that C regularly spent alternate weekends with Mr Moore was after the separation of Mr Rutherford and the mother by arrangement between the two men, all prior orders having been discharged. It is one example of many of the mother being dishonest when she considered a particular answer would assist her case.
The parties all agreed that in December 2015 the maternal grandmother had arranged with the mother for C to spend a few days with her whilst the maternal grandparents were living in Queensland.
The maternal grandmother then retained the child intending to enrol her at school in Queensland. After what the Family Consultant describes as repeated and escalated demands by the mother and Mr Rutherford that C be returned to them,[2] the maternal grandmother returned the child in January 2016.
[2] Children and Parents Issues Assessment dated 18/11/2016, par 6
Mr Rutherford advised that C had, since those events, been terrified that the maternal grandparents would again take and retain her.
During the assessment the mother was asked about her relationship with Mr H. She reported that “she has never been in a relationship with [Mr H]”. She went so far as to deny that there had ever been a sexual relationship between herself and Mr H whilst acknowledging that he was the father of her youngest child. Ultimately, she came to the statement that there was a friendship between them with occasional sexual intimacy.
The mother also stated to the Family Consultant that over the whole of the ten years that she lived with Mr Rutherford that they were also never in a relationship and were “only friends with benefits but that Jamie wanted more.”[3] Such a statement may be an honest explanation, but is more likely a dishonest cover story for the fact that the mother received sole parent Centrelink benefits throughout the period of 2005 until March 2016.
[3] Children and Parents Issues Assessment dated 18/11/2016, par 21
The recommendations arising from the assessment included a recommendation that arrangements be made as a matter of urgency for the children to spend time with their mother, that at least on an interim basis all parties be restrained from having any contact with Mr H and from speaking to the children about him. A recommendation was made that Mr Rutherford not permit the children to refer to Ms I or anyone else as “mum” or similar.
Maternal grandparents press for residence
On 1 December 2016 the maternal grandparents filed an Amended Response continuing to seek equal shared parental responsibility and residence of all four children and further that the children move to live with them on an interim basis.
On 9 December 2016 interim orders were made for the children to spend time with the maternal grandmother on each alternate Saturday from 10.00 am to 2.00 pm.
Without admission, by him, the maternal step-grandfather was restrained from spending time with the children. A notation to those orders included notes of Department of Family and Community Service communicating via the ICL that information about Mr H and about criminal records in relation to the maternal step-grandfather should be put before the court.
Interviews by the Department of Family and Community Services
On 12 December 2016 the mother was interviewed by the Department. She stated that she did not believe the allegations of sexual abuse of D and C by Mr H.
When challenged about that she said “the kids were never out of her sight”. That is a phrase that the mother used more than once in her oral evidence and when pressed, committed to the position that the children were physically always with her, literally never out of her sight. She would not concede that it was an irrational statement.
I infer that at least on this occasion the mother made the statement in a manner protective of Mr H. I am confirmed in that view by the fact that the mother went on to say to the departmental officer that she did not believe that Mr H would do such a thing “as he is a nice person.”[4] At the time of the interview the mother was staying with her maternal grandmother three or four nights a week and then with Mr H and his family for the balance of the nights each week. She was sleeping in the lounge and G was with her.
[4] Exhibit 6
On 16 December 2016 the same department officer attended the H household. The officer noted that in a four bedroom house there would be eleven people sleeping on those nights when the mother and G were present in the household. The description of the property was as follows: “The [H] home was cluttered in every living area with either toys and clothing and also boxes with no contents. The home is not assessed as being a reasonable environment for the six children living there as every room was very cramped”.
On this occasion Mr H denied that he had been the perpetrator of sexual abuse on D.
D had asserted in her interview that Mr H had come into the room which she was sharing with four other children in April 2016, had removed the towel that she was wearing after her shower and had touched the top of her genitals.
Mr H gave a version “where he came to the door and the children were walking over his laptop so he walked in and took it.” I infer for Mr H to remember that particular incident that there must have been something which caused upset for the child on the day. Mr H went on to deny physical abuse in relation to picking the children up [a reference to the two younger children] “by the throats” saying this did not happen. The mother denied Mr H touched the children or smacked them.[5]
[5] Exhibit 14
On the next day, the mother and Mr H attended a H family celebration together.[6] Documents put forward into evidence about that occasion referred to Mr H and the mother as partners.
[6] Reasons for Judgment dated 8/02/2017
Risk Assessment by the Department of Family and Community Services
On 30 December 2016 there was a Family Risk Assessment Report prepared in relation to the four subject children. The risk level for neglect was assessed as high, the risk level for abuse was assessed as moderate.[7]
[7] Exhibit 11
Included in the report was the historical references to the neglect of C and D as infants as follows:
There have been at least 11 reports since 2006 for [C] and 9 reports for [D] in relation to inadequate shelter, excessive discipline and general neglect and health issues in relation to inadequate clothing, on-going issue with head lice etc.
File note on 13 July 2007 in relation to [Dr FF] from [the hospital] being very concerned about [D] who had not presented at hospital for check-ups for past couple of weeks and [Ms Milne] said she could not attend because [D] was unwell and had diarrhoea, [Ms Milne] claims that the doctor advised her not to give [D] milk, only water. As a result of this [D] has lost 400 gms (10% of her body weight). It was noted that when [Ms Milne] took [D] in for a check-up she was extremely filthy. [Ms Milne] told staff that she did not have money for formula, bread or milk. Hospital staff at the time were very fearful that [D] was a severe risk of dying.
This historical assessment raises one of the puzzling aspects of this matter. There are several occasions where the children are presented as dirty, neglected and unfed and where the mother has said she did not have money for food. This is despite receiving Centrelink benefits for the children from the time that C was born and also the fact that Mr Rutherford was employed in full-time work. One of the mother’s complaints was that Mr Rutherford was working and was unable to assist her with the care of the children.
It is to the discredit of Mr Rutherford that he did not either see, or saw and did not act on, the fact that the two older children were regularly neglected and their health put at risk.
Nevertheless it was an agreed fact that the mother operated the finances of the family, that Mr Rutherford gave her the money, she paid the bills and generally bought the food. Why in those circumstances the mother complained that she did not have enough money for formula, bread and milk for C and D as infants is unexplained. Something was drawing money out of the family away from the needs of the children.
There are allegations of drug abuse by both the mother and Mr Rutherford. In particular that Mr Rutherford smoked marijuana and that the mother used Ice. Both denied drug use, however, it is clear that at least in the early years, family life was chaotic and neglectful, especially for the two older children.
Also of significance in that report was the following reference to Mr H:
[Mr H] (sic) [a reference to Mr H] has been named in a number of reports as being the perpetrator of physical violence toward different partners’ children and his own children, none of these have been substantiated, however, observations of a recent home visit, and police witness interviews with the children named above, indicated that the children did not disclose any harm by [Mr H] (sic) or [Ms Milne] and did not present as being afraid of [Mr H] (sic) or [Ms Milne].[8]
There is a history of domestic violence in each home that [Mr H] (sic) has lived in with different partners who have all had children, however, “there are no reports of domestic violence between any adult household members in the past 12 months”.[9]
[8] Exhibit 11
[9] Ibid
On this occasion in December 2016 the children were screened to have a neglect scored risk level of high and an abuse scored risk level of moderate.[10]
[10] Ibid
It is likely that the mother was doing the best she could but lacked the skills involved in the care and nurturing of children. That is not a criticism of the mother but a reflection on her own life experience.
Mr Rutherford applies for residence - Interim Hearing
On 7 February 2017 Mr Rutherford filed his Response asking for all the children to live with him and for sole parental responsibility. He also proposed time with the mother each alternate weekend from 10.00 am to 4.00 pm each Saturday and Sunday. In the event that the mother obtained suitable accommodation, then from 10.00 am Saturday to 4.00 pm Sunday and half the school holidays.
On 8 February 2017 interim orders were made after a hearing and reasons given. The orders were for the children to live with Mr Rutherford and spend time with the mother supervised on alternate Sundays by either a person agreed to by Mr Rutherford and the mother or at a supervised contact centre. The parties were restrained from permitting the children coming into contact with the maternal step-grandfather and Mr H.
In mid-2017 Mr Moore was given the opportunity to file an Amended Response and the parties were referred for the preparation of a Family Report. Notations to the orders on that occasion included the notation “FACS is no longer involved with the mother and Mr H and their child G, JIRT investigation closed and allegations regarding Mr H unsubstantiated. FACS deem children safe in the care of Mr Rutherford.”
Family Report
On 24 October 2017 a Family Report was released. The central recommendations were that the four children should be kept together unless there were extraordinary circumstances, and that the children should continue to live predominately with Mr Rutherford unless there was a finding of unacceptable risk of harm. There was a recommendation that C, unless there was an unacceptable risk of harm in doing so, should spend significant and substantial time with her father Mr Moore.
In that report[11] there was an observation which became the subject of considerable cross-examination.
[11] Family Report dated 24/10/2017, par 44
The Family Consultant noted that Mr Rutherford had told him that he had always been very open with his children regarding adult conflicts and Family Court proceedings. He had explained that he had told his three adult sons when they were children in his care, “everything about their mother and allowed them to choose when and if they wished to have a relationship with her”. Having heard the evidence of Mr Rutherford, I have no doubt that there was open discussions between him and his three sons.
However, the situation was that the mother of those boys had formed a new association and she and her new partner did not wish to have anything to do with the children. I accept that Mr Rutherford arranged one meeting with the maternal grandparents of the three boys and that thereafter the mother again confirmed that she did not “want anything to do with them”.
The report goes on to say that Mr Rutherford had allowed C and D to read the Family Court documents including the reasons for judgment document and allowed the children to read text messages between himself and various other parties.
I do not accept that Mr Rutherford gave the documents to the children to read, however, I do accept that he was casual in his approach to keeping such documents away from the children and probably did not see any particular harm in the older children looking at them. His oral evidence was that he kept a folder of family law documents, which was confirmed later by his partner Ms I, and that the “children had got into it”.
On 10 November 2017 as part of the trial directions, an order was made directed at Mr Rutherford that he be restrained from allowing the children to read documents relating to the proceedings and use his best efforts to restrain his partner from showing such documents to the children. There is no evidence that after that order was made that Mr Rutherford allowed the children, or any of them, to read Court documents.
Allegations of abuse perpetrated by Mr K Moore
On 4 January 2018 JIRT interviews were undertaken with C, D and Y, Ms I’s daughter. The three children have all made complaints about the conduct of Mr K Moore, the paternal uncle of C.[12] D gave detailed evidence about the uncle playing a “truth and dare” game with them which involved them being forced to pull down their pants and pull up their tops whilst he looked at them.
[12] Exhibit 39
She also gave detailed evidence of an even more serious complaint where she was called into the uncle’s bedroom whereupon he put his hand down her pants and into her genitals, then performing digital penetration and took her hand and forced it into his pants where her hand had contact with his genitals. She described this incident as having taken place with just the two of them alone in the room, “It was just me, [Y] went home the day before”.
Y and C were also interviewed. C, consistent with evidence of and about her personality, said very little other than acknowledging that she did not feel safe with Mr K Moore. I note that in the opening question: “Do you know it’s important to tell the truth? C said, “No”. I considered it was from C’s perspective quite a significant statement to say that she did not feel safe around Uncle K, hence the question “Do you feel safe around Uncle [K]?” Answer, “No”. “How would seeing Uncle [K] make you feel?” Answer, “unsafe”.
Y gave similar evidence to D about the truth and dare game. She said she had kept her eyes closed so she would not see anything in relation to the other girls. She also said that she did not feel safe around Uncle K and appeared to be embarrassed and distressed throughout the interview. She said the first person she talked to about events in the Moore household was her brother’s partner Ms GG and that is consistent with the evidence of Mr Rutherford.
D’s allegations were substantiated by JIRT but a decision was taken not to proceed to charges being laid.
I consider that the Moore family had discussions after the visit of the JIRT team to their home and took steps to ensure that Mr K Moore would not be present when the children came to visit.
Mr K Moore did not provide an affidavit and was not available to answer questions. In those circumstances, I do consider, in accordance with the authority in Jones v Dunkel (1959) 101 CLR 298 that the reason he was not called was that his evidence would not have assisted the case of his brother, Mr Moore.
I do consider that there is an unacceptable risk to C and the other children if they are in the unsupervised care of Mr K Moore.
I also accept that the paternal grandmother Ms L Moore has been vigilant about C and her sisters in the home and I accept her evidence that she feared that Mr K, having been sexually abused himself as a boy, may become a perpetrator in adulthood. He is a man with an intellectual limitation and is said to suffer from crippling anxiety.
It is appropriate that C and her sisters not be brought into contact with Mr K Moore at any time in the future.
Disclosure by D
In April 2018 D told her mother about the abuse of her by Mr K Moore at a contact visit. The mother agreed in evidence that D, by telling her this information, may have been asking for her help.
The mother did not tell the police or Mr Rutherford. What she did was to ask Mr Moore to deliver C to the maternal family and on 28 April 2018 that is exactly what happened. C went to stay with her maternal aunt and it was not until 21 May 2018, after C was brought to Court (rather than being recovered by the police pursuant to a recovery order), that C returned to the home of Mr Rutherford. She had not attended school. She had regular daily contact with her mother and probably her maternal grandmother.
Maternal grandparents withdraw from proceedings
On 18 May 2018, the day that C was returned to her father at this Court, the maternal grandparents filed a Notice of Discontinuance and withdrew from the proceedings. My impression was that the maternal grandmother did not support the decision of the mother to facilitate the return of C.
Neither of the maternal grandparents provided affidavits in support of the mother in her attempts to have the children returned to her care.
THE LAW – SECTION 60CC
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
The relationship between Mr Rutherford and the mother is at a very low point. Both agree that they cannot speak to each other. Mr Rutherford wants nothing more to do with the mother. The mother is offended and incensed by the children having lived with Mr Rutherford for the past two years.
The prospect of conversation around long term issues of care and welfare of the children between these two parents is nil. The risk of the children being drawn into partisan positions over issues such as school, medical attention and extra-curricular activities is very high. Accordingly, for the three younger children sole parental responsibility should rest with Mr Rutherford.
That is not to say that the mother should not be involved in the lives of the children to the extent of receiving information about them from the school and attending events when it is appropriate for parents to attend.
In relation to C, there has been a good relationship between Mr Rutherford and Mr Moore. I accept Mr Rutherford evidence that he had felt that the mother was wrong to exclude Mr Moore from C’s life in the way that she largely did between 2007 orders and 2016. I am confirmed in this view by the fact that Mr Rutherford implemented alternate weekend time for C with Mr Moore and his parents after the children came into his care.
I consider that the two men, even if their friendly relationship is not restored, are capable of discussing important matters for C, and, Mr Moore is keen to do so. Fortunately, she is already established in a high school which she enjoys, her health is good and there appears to be no conflict about religious instruction.
C’s two fathers are capable of sharing parental responsibility for her.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
All four children have meaningful relationships with their mother and with Mr Rutherford. C also has such a relationship with her father Mr Moore. Balanced against the benefit of maintaining those parental relationships is the mandated obligation to give greater weight to the protection of the children from harm through subjection or exposure to abuse, neglect or family violence.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
There is no doubt that the children have been harmed by exposure to physical and emotional neglect. They love their mother, however she has not been able to meet their needs at times.
Her partner was a frightening and abusive presence in their life for the short period they lived in the same household with him. The mother opted to take the children with her at the time of the separation because she loves them and wanted them close by, but did not give any apparent consideration to their physical needs in terms of accommodation, or their emotional needs in terms of being included in a household of adults and children whom they did not know.
The two older girls revealed to Mr Rutherford and their older half-brothers in April 2016 that Mr H was rough with them and the younger children, that he picked E up by the throat, that he demanded to be present when they undressed, and that he yelled at all of them.
In the face of these complaints Mr Rutherford acted protectively and kept the children in his care. He should not be criticized for having done so. The evidence supports a finding that the children have done well in the care of Mr Rutherford, ably assisted by his partner Ms I. Their attendance record at school is excellent, there are routines for getting to and from school, the children are well fed, properly clothed and supported in their learning and extra-curricular activities.
D revealed that Mr Moore’s brother had molested C, herself and Y while they were visiting Mr Moore. Mr Moore gave oral evidence that he did not believe that there had been any wrong-doing by his brother. That was before the parties had the opportunity to watch the interviews of all the children by the JIRT team in January 2018. I am not in a position to know whether he entertained doubt about his brother’s conduct thereafter. Certainly he was willing to ensure that C was no longer brought in contact with her uncle. Mr Moore is a loving father to C but family loyalty and dependence on his family for accommodation is a balancing factor.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children have been observed twice since the current application commenced in August 2016. On 18 November 2016 all parties and the children attended for the CAPIA, they were then aged 11, nine, four and three. The children were spoken to by the Family Consultant as a group altogether briefly and in a general manner. As a considered and a deliberate decision the views of the children were not canvassed. The Family Consultant asked whether there were any questions. D asked when could they see their mother, she said that she wanted to see her but not with Mr H anymore. C was asked and her response was the same.[13]
[13] Children and Parents Issues Assessment dated 18/11/2016, par 36
In September 2017 the children and all parties were interviewed for a Family Report. The older children freely revealed the extent to which they had been told about Court proceedings.
C aged 12 years five months at date of interview
C has had a disrupted education. She was at the date of trial, half way through her first year at high school. She has had genetic testing which revealed minor chromosomal abnormalities. She was observed by the Family Consultant to be developmentally within age appropriate parameters.
There was a reference in the material to C being diagnosed with an intellectual delay. There is no document which explains that assessment. C was noted to be cautious with her responses and “keen to avoid saying anything that would get anyone in trouble.”
C expressed the view to the Family Consultant that Mr H was “rude” and that she had not liked Mr H since the first day that she had met him because of the way he talks to her.[14] She was happy to spend overnight time with her mother provided that “[Mr H] (sic) was not there.”[15]
[14] Family Report dated 24/10/2017, par 92
[15] Family Report dated 24/10/2017, par 93
She wanted more time with her father Mr Moore. This is consistent with the evidence of Mr Moore that C enjoyed her alternate weekend visits especially contact with her paternal grandparents and also the greyhounds in which the family has an interest.
C did not want overnight time with her maternal grandparents although that may have related to the sale of their home (in CC Town) which was known to her. It was probably the case that she was resistant to visiting their new house because it was in Queensland where she had been retained by her grandparents in December 2015.
C was asked if Mr H had ever hurt her, she responded as she had to prior questions with “don’t know”, however, she was clear to say when she was asked directly that she gave that answer because she “did not want to talk about it”. C did express a view about where she wanted to live and who she wanted to spend time with. She is reported to have indicated “a clear and strong preference to live predominantly with [Mr Rutherford] and to spend the next most time with her father [Mr Moore], and then equally with her mother and maternal grandmother.”
C’s views are astute. Her stated views align with the evidence about the ability of each of the adults identified, and those omitted, to meet her needs. I give them considerable weight.
If that is the case, since there is no evidence of the mother having had any support or therapeutic assistance whatsoever since that incident, then she has struggled alone, particularly with reference to the attitude of her own mother in the matter.
Conclusion
The children are loved by the mother but have experienced neglect and abuse in her care. In particular by being brought into contact with Mr H.
The mother has vengeful feelings towards Mr Rutherford for having kept the children in his care, which would undermine the relationships of the children with him if they lived with the mother.
The children have been safe and well cared for in the home of Mr Rutherford and Ms I for more than two years. I am satisfied that there is a risk of an adverse impact on the children of being removed from that household.
I am satisfied that Mr Rutherford has the capacity to meet their needs including their emotional need to maintain their relationship with their mother, and in C’s case with her biological father and family.
I accept the view of the Family Consultant that the four girls should live together as a sibling group.
That is one consideration, but not the only one, for concluding that C should not move to live with her father Mr Moore. C’s own clearly stated view is another.
Orders
The ICL proposed that the children continue to live with Mr Rutherford and spend time with Mr Moore and the mother in a way that balanced their need for those relationships to continue against the stability of their live in the Rutherford/Ms I’s household. The evidence fully supports that proposal.
The ICL prepared a helpful Minute of Orders in support of that position.
I have largely adopted the orders proposed with some exceptions set out below.
Provision for all adults to spend time with the children on their birthdays addresses the need of the adults to see the children. The children can celebrate with their parents, both on their birthdays and on the days when they see them closest to the event. Accordingly no orders have been made.
I have also adopted the proposal that the children see their mother on Thursdays from after school until dinner time but only continuing until each child finishes primary school.
Significantly the ICL sought restraining orders on the use of the term “mum” by the children. The Family Consultant gave evidence that it was unhelpful to children and confusing if they called persons other than their biological parent by the name “mum” or “dad”. As a general proposition I agree.
I am satisfied that these children are not confused. They know exactly who their biological parents are and who their psychological parents are. I consider that an order compelling Mr Rutherford and Ms I to direct the children not to call them by any particular name would not assist them in circumstances where they are clear about those relationships. Accordingly those orders have not been made.
Orders are accordingly.
I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 October 2018.
Associate:
Date: 5 October 2018