Minshall and Clayton and Anor

FAMILY COURT OF AUSTRALIA

MINSHALL & CLAYTON AND ANOR

[2019] FamCA 388

FAMILY LAW – CHILDREN – where the eldest child has a different father to the two youngest children – where both fathers are respondents in these proceedings – where orders are made for the children to live with their respective biological fathers – where a change of residence is necessary to achieve the physical and emotional safety of the children – where the mother shall spend no time with the children for a period before progressing to supervised time followed by unsupervised weekend time – where the mother has had significant involvement with the Department of Family and Community Services and the M Centre Program – where the parties have been involved in previous proceedings in relation to the children – where proceedings were recommenced by one of the respondent fathers due to the mother unilaterally ceasing time – where orders are made that are inconsistent with an Apprehended Domestic Violence Order – where the father pleaded guilty to assaulting one of the children – where the question is whether a father who pleaded guilty to assaulting the child can have the child living with him – where the father denies assaulting the child and stated he pleaded guilty to avoid the child giving evidence – where there is no history of the father violently punishing the children – where the children are violent and uncontained in the mother’s household – where the children have been chronically emotionally maltreated in the mother’s household – where the welfare of the children are at stake – where the children have been exposed to abuse and family violence in the mother’s household – where the children have all suffered psychological harm in the mother’s household – where the mother has an impaired capacity to meet the needs of the children - where both fathers present as loving and concerned parents – where the primary focus of this matter is safety.
FAMILY LAW – CHILDREN – Parental Responsibility – where the fathers will each have sole parental responsibility for their respective biological child/children – where previous final orders provided that the mother have equal shared parental responsibility with the respective fathers – where the mother has not acted in accordance with this order and has not consulted or included either of the fathers in long term decisions made in relation to the children – where the diagnosis and medications of each of the children needs to be reviewed – where the parent with whom the child lives should have sole parental responsibility.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Minshall

FIRST RESPONDENT:

Mr Clayton

SECOND RESPONDENT:

Mr Wilkie

INDEPENDENT CHILDREN’S LAWYER:

Jennifer Blundell & Associates

FILE NUMBER:

NCC

2014

DATE DELIVERED:

19 June 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

7 - 10 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Boyd

SOLICITOR FOR THE APPLICANT:

Virginia Taylor Partners

COUNSEL FOR THE FIRST RESPONDENT:

Mr Murray

SOLICITOR FOR THE FIRST

RESPONDENT:

Toronto Legal

COUNSEL FOR THE SECOND

RESPONDENT

Mr Brady

SOLICITOR FOR THE SECOND

RESPONDENT

Winder Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ticehurst

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Blundell & Associates

Orders

That all prior parenting orders made in the Federal Circuit Court and in this Court in relation to:
·X born … 2009 (“X”);
·Y born … 2011 (“Y”);
·Z born … 2014 (“Z”);
together known as “the children”, be discharged.

That Mr Wilkie (the father of X) have sole parental responsibility for X.
That X live with Mr Wilkie.

Assessment of X

That Mr Wilkie arrange as soon as practicable a paediatric assessment of X to assess whether her current diagnosis continues to remain relevant and whether or not ongoing medication is required.
That Mr Wilkie has leave to provide to the paediatrician who assesses X:
5.1A copy of the assessment of Ms B, clinical psychologist, L Centre dated 15 January 2018;[1]
[1] Exhibit 9
5.2 A copy of the Family Report dated 17 September 2018;
5.3A copy of these orders and reasons for judgment.
That Mr Wilkie shall:
6.1.Advise the mother of the date and time of the paediatric assessment for X;
6.2.Provide the name, address and contact details of the mother to the proposed paediatrician;
6.3.Authorise the paediatrician to provide to the mother copies of any reports generated in relation to X.

Y and Z

That Mr Clayton have sole parental responsibility for Y and Z.
That Y and Z live with Mr Clayton NOTING pursuant to Section 68P(2) of the Family Law Act 1975 that this order as it relates to Y is inconsistent with an existing family violence order for his protection from the father.
That Mr Clayton arrange as soon as practical an assessment by a child psychiatrist of Y and Z to assess whether the current diagnosis for each of the children continues to remain relevant and whether or not ongoing medication is required.
That Mr Clayton has leave to provide to the child psychiatrist who assesses Y and Z:
10.1.   A copy of the APLAS Report for Z dated 20 March 2018;[2]
[2] Exhibit 7
10.2.Copy of Summary Psychology Report for Y dated 22 November 2015;[3]
[3] Exhibit 15
10.3.Statement of Dr C dated 3 May 2017 in respect of Y;[4]
[4] Exhibit 25
10.4.   A copy of the Family Report dated 17 September 2018;
10.5.   A copy of these orders and reasons for judgment.
That Mr Clayton shall:
11.1.Advise the mother of the date and time of the child psychiatrist appointments for Y and Z;
11.2.Provide the name, address and contact details of the mother to the proposed child psychiatrist;
11.3.Authorise the child psychiatrist to provide to the mother copies of any reports generated in relation to Y and Z.

Time and communication

That the children spend time with the mother as follows:
12.1.For a period of twelve weeks there shall be no time and communication between the children and the mother;
12.2.Thereafter, and until the commencement of the school year in 2020, on each alternate weekend in a contact centre for two hours;
12.3.Commencing from the first weekend of the school year in 2020:

For X

12.3.1.On Saturday from 10.00 am to 5.00 pm on one occasion in each calendar month;
12.3.2.X spend time with the mother on one weekend in four from 9.00 am Saturday to 5.00 pm Sunday to coincide with Y and Z spending time with the mother;

For Y and Z

12.3.3.That Y and Z spend each alternate weekend with the mother (to coincide with X spending time with the mother) from Friday after school until before school Monday, with the mother to collect the children from and return the children to school;
12.3.4.That X spend time with Y and Z in the home of Mr Clayton as agreed between the two fathers but in any event for not less than one occasion per calendar month.

Order made in this Court inconsistent with a Family Violence (Apprehended Domestic Violence) Order made in the Local Court - Section 68P(2)(iii)

Order 8 herein is inconsistent with a current family violence order which is annexure “A” to these orders made in the Local Court on 26 July 2017 and varied on 7 September 2017. The order was made for a period of five years and expires on 25 July 2022.
Orders 7 and 8 herein provides for the child Y to live with Mr Clayton (his father) and for Mr Clayton to have sole parental responsibility for Y.
The Independent Children’s Lawyer shall:
15.1.Pursuant to s 68P(2)(iii) of the Family Law Act 1975 explain to Y and to the father that the family violence order for the protection of Y continues to provide that Mr Clayton must not:
(i)Assault or threaten him;
(ii)Stalk, harass or intimidate him; and
(iii)Intentionally or recklessly destroy or damage any property that belongs to, or is in the possession of Y; but does not restrain the father from approaching and contacting and caring for Y.
That the mother shall forthwith comply with the Order 1.9 (c) made by consent on 13 October 2016 and repeated here as follows:
16.1.Notify the registrar of Births Death and Marriages that:
1.Mr Wilkie is the father of X born … 2009;
2.Mr Clayton is the father of Z born … 2014;
16.2.And request that a birth certificate issue which includes the name of the father in respect of each child.
That in the event that a party fails to execute an instrument as directed by these orders a registrar of this Court pursuant to Section 106A of the Family Law Act 1975 may execute that instrument in the name of the person required to do so, and to do all acts and things necessary to give validity and operation to the instrument.

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 Minshall & Clayton 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: NCC 26 of 2014

Ms Minshall

Applicant

And

Mr Clayton

First Respondent

And

Mr Wilkie
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in respect of three children, a girl aged 10 (“X”), a boy aged seven (“Y”) and a boy aged five (“Z”).
The applicant is the mother of the three children.
The second respondent, Mr Wilkie, is the father of X.
The mother and Mr Wilkie commenced their relationship in 2008, and separated in mid-2009, shortly after the birth of X.
The first respondent, Mr Clayton, is the father of Y and Z. Mr Clayton has also been the psychological father of X.
The mother and Mr Clayton commenced their relationship in 2010. Their relationship over three years was punctuated by repeated separations. They separated on a final basis in June 2013.
The parties have been involved in previous proceedings in relation to the subject children.
There is currently an Apprehended Domestic Violence Order (“ADVO”) in place listing the father as the defendant and the child Y as the person in need of protection.

The Parties

The Applicant Mother

The mother is currently aged 30. She presently lives in Suburb N in a property owned by her sister. The household of the mother consists of herself, the three subject children and the four month old baby girl (“O”) born to the mother and an unknown/undisclosed father.
The maternal grandmother is aged 63. She lives in the granny flat at the back of the Suburb N property.
The maternal grandmother has been a foster carer for eight or nine years. She provides monthly respite care for two children, girls aged 11 and 10. Those children stay in the house for one weekend each month.
After ceasing work in July 2018, the mother is currently in receipt of Centrelink payments. She is occupied with the full time care of four children.

The First Respondent Father [Y and Z]

Mr Clayton is aged 30. He lives in Suburb P.
The household of Mr Clayton consists of himself, his partner Ms D aged 34 and her two children, a girl aged nine (“Q”) and a boy aged four (“R”). Those children see their own father by arrangement between their parents.
The father is working as a tradesman and is also working at Company E.

The Second Respondent Father [X]

Mr Wilkie is aged 33. He lives in Suburb S. His household consists of himself, his mother Ms E aged 59 and his step-father Mr F. Ms E and Mr F have been together for approximately 30 years. Mr F is a driver and is present in the home on average two nights per week.
The father is not currently working and is receiving the disability support pension arising from his diagnosis of Asperger’s Syndrome.
The father has another child from a subsequent relationship, T, aged seven. The father reports that he spends regular time with the child as agreed between himself and the mother of the child. There are no court orders in place.

Distance between households

The mother lives approximately 20-25 minutes away from each of the two fathers.
The respondent fathers live in close proximity to each other and are on good terms.

The Trial

The mother and each of the fathers were legally represented by solicitors and counsel.
The Independent Children’s Lawyer (“ICL”) was present in Court and had briefed counsel.
The matter was allocated four days of hearing time commencing 7 May 2019. The hearing was concluded within this time frame.
Judgment was thereafter reserved.

Evidence

The documents relied on in respect of the application were as follows:
The Applicant Mother - Ms Minshall
(a)Amended Initiating Application filed 3/12/2018 and further amended by a Minute of Proposed Final Orders dated 8/05/2019[5];
[5] Exhibit 8
(b)Affidavit of the mother filed 25/03/2019;
(c)Affidavit of the maternal grandmother, Ms T Minshall, filed 25/03/2019;
The First Respondent Father [Y and Z] - Mr Clayton
(d)Response filed 30/10/2017;
(e)Affidavit of the First Respondent father filed 9/04/2019;
(f)Affidavit of the First Respondent father’s partner Ms D filed 9/04/2019;
The Second Respondent Father [X] - Mr Wilkie
(g)Response filed 9/03/2018;
(h)Affidavit of the Second Respondent father filed 30/04/2019;
(i)Affidavit of the paternal grandmother (X), Ms E; filed 30/04/2019;
Report
(j)Family Report of Ms G dated 17/09/2018.

Brief History of Relevant Events

First proceedings: Federal Circuit Court of Australia

On 8 January 2014 Mr Clayton commenced proceedings in the Federal Circuit Court of Australia (“FCC”).
On or about 14 January 2014 the mother was served with his application.
The mother then obtained, with the agreement of the father “without admission”, an interim ADVO, listing the father as the defendant.
It is apparent the mother reacted to the parenting application by obtaining the protective order.
It is an agreed fact that no complaint had been made by the mother about Mr Clayton to police or any other third party in authority prior to that date.
After obtaining the interim ADVO the mother then refused to allow the two subject children to spend time with Mr Clayton at all.

FCC interim orders – 24 February 2014

On 24 February 2014 interim orders were made by consent which provided for X and Y to live with the mother, for Y to spend time with Mr Clayton each Thursday from 12.00 noon to 2.00 pm supervised by the maternal and paternal grandmothers.
In 2014 the third subject child, Z, was born, the second child of the mother and Mr Clayton.

FCC interim orders - 9 April 2014

On 9 April 2014 further interim orders were made by consent in the FCC which provided for Y and X to spend time with Mr Clayton every Monday and Wednesday and for the infant Z to spend time with the father for the last thirty minutes of his time with Y.
X was also ordered to commence spending time with her natural father Mr Wilkie at Contact Centre U.

FCC interim orders - 19 April 2014

On 19 April 2014 further interim orders were made by consent with regards to Christmas time between Mr Clayton and the three subject children and further time between Mr Wilkie and X.

New relationship for Mr Clayton

In November 2015 Mr Clayton commenced a relationship with Ms D. That relationship is ongoing.

Diagnoses for Y

On 22 November 2015 Y (then aged four) was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), combined type, with inattention and hyperactive impulsive concerns contributing to poor emotional regulation. The child was also diagnosed with Oppositional Defiance Disorder (“ODD”).

Transfer to Family Court of Australia – 24 November 2015

On 24 November 2015 further interim consent orders were made in the FCC regarding the children spending time with both fathers.
X commenced spending time with Mr Wilkie supervised by Mr Clayton.
The notations indicate that the mother made allegations that Y was exhibiting sexualised behaviour and that Mr Clayton had inappropriately touched Y in a sexualised manner.
The matter was transferred to the Family Court of Australia, with consideration requested to the matter being placed in the Magellan protocol.
On 15 December 2015 the decision was taken not to place the matter in the Magellan protocol.

Final parenting orders [X] - 12 October 2016

On 12 October 2016 final orders were made by consent in relation to X, between the mother and Mr Wilkie.[6] These orders provided for X to live with the mother, for the mother to have sole parental responsibility and for X to spend time with Mr Wilkie on alternate weekends.
[6] Family Court of Australia order dated 12/10/2016

Final parenting orders [Y and Z] – 13 October 2016

On 13 October 2016 final orders were made by consent in relation to Y and Z.[7]
[7] Family Court of Australia order dated 13/10/2016
These orders provided for Y and Z to live with the mother, the mother and Mr Clayton to have shared parental responsibility, and for X and Y to spend time with Mr Clayton on alternate weekends with a gradual progression of time between Z and the father.
A notation was made at the end of these orders that stated that the parties and Independent Children’s Lawyer submitted that family violence allegations had been made, but the parties accept that the children are no longer at risk of harm in the care of any party.

Events after final orders

From October 2016 to April 2017 the mother reports that the children presented with unexplained bruising after spending time with Mr Clayton. Her oral evidence was that she suspected assault or neglectful supervision.
In early 2017 the mother probably contacted the Child Support Agency to advise that the orders for time were no longer being followed.
Mr Clayton alleges that it was the mother who unilaterally was starting to not comply with the orders.

Assault on Y - April 2017

This issue is an important one, referred to later in these reasons.
Mr Clayton pleaded guilty to an assault charge in respect of Y arising from an incident in April 2017 where the father is said to have grabbed the child and squeezed him round the neck. He was convicted in accordance with his plea of guilty. There is an AVO in place for the protection of Y from his father for five years [expires July 2022].[8]
[8] Affidavit of Mr Clayton filed 09/04/2019 Annexure ‘D’

Proceedings re-commence in FCC

On 19 September 2017 the mother filed a fresh application in the FCC.
Her application proposed sole parental responsibility for herself for the three children, residence with herself and a restraint on Mr Clayton coming within certain distances of the children.

Transfer from FCC to Family Court of Australia

On 21 November 2017 the application was again transferred to this Court on the basis that final orders had so recently been made.
On 10 July 2018 interim orders were made by consent.
These orders provided for:
·X to spend time with her father each weekend as well as time in the school holidays;
·X and Z to spend time with Mr Clayton at Contact Centre U;
·No orders were made in relation to Y.

Family Report

On 11 September 2018 the parties attended upon the Family Consultant for the purposes of interviews for the preparation of the Family Report.
The Family Consultant considered that the predominant risks were abuse and neglect in the home of the mother and risk of physical abuse in the home of the father given his conviction for the assault on Y.[9]
[9] Family Report dated 17/09/2018 par 59

The recommendations in the report were that:[10]
·X move to live with her father;
·The Court consider the competing risks of leaving the two other subject children with the mother or moving them to live with their father.
[10] Family Report dated 17/09/2018 pars 222-234
On 9 November 2018 trial directions were made listing the matter for final hearing in May 2019. The mother was pregnant with the child of an unidentified father.
In December 2018 the mother and children moved to Suburb N to live with the maternal grandmother, in a house owned by the maternal aunt.
In early 2019 the mother gave birth to her fourth child, a girl, O. The mother states that the father of the child is unknown to her as the child was conceived by casual encounter.
On 2 March 2019 Z and X commenced spending time with Mr Clayton at Contact Centre U in accordance with the interim orders made eight months previously.
The two visits which actually took place were reported to be positive and enjoyable for the children until the visit prior to this trial. Z lashed out at a worker, punching her twice.
Visits were terminated by the centre.[11]

Oral Evidence

[11] Exhibit 5

The Mother – Ms Minshall

The mother appeared tired and unable to answer many of the questions asked of her. She has a four month old baby being breast fed. Her presentation was consistent with natural fatigue in those circumstances.
Nevertheless the mother was able to answer some questions directly with certainty, yes/no or a factual statement.
She appeared to answer “not sure” when she was uncertain of the significance of her potential answer. Examples are as follows:
The mother conceded that she had been in the habit of swearing at the children (at them, not merely in front of them) but said she had stopped doing so:
Q.When did you stop?
A.Not sure… Last year, year before?
Later in cross-examination the mother was taken to comments of the case manager from the M Centre in November 2017 about the level of negativity of the mother and maternal grandmother, “yelling, swearing and hitting” with reference to the children.
The mother was asked whether she had behaved that way:
Q. Yelling, swearing and hitting?
A. Not sure…not all the time…sometimes.
The mother agreed that when she stated in an affidavit in 2017 that she had stopped smacking the children that was not true, she had not stopped.
Q.Why should you be trusted (to comply with an order to that effect)?
B.I don’t know. Not sure.
I conclude that the mother was being deliberately evasive on such occasions.
Another matter of some significance is the limited level of understanding the mother has for written information.
The mother confirmed that she can read, but acknowledged that she often did not understand the meaning of what she read and the meaning of particular words. The real problem for the mother is that she has read or at least skimmed through Court documents, including affidavits and the Family Report, without understanding what was being conveyed.
The mother knows what orders she is seeking and has apparently put her head down to get through these proceedings, hoping for the best.
It was also revealed that the mother had the same limited knowledge of recommendations in various reports written about the children. Detailed advice about interventions for the children were a surprise to the mother in the witness box.
In the same dogged way she has pursued “the paperwork” with a paediatrician and the NDIS and Centrelink in order to get diagnoses, prescriptions for medication and a carers pension without comprehending the bigger picture about the emotional needs of the children.
The assessment of the Family Consultant, with which I agree, is that the subject children have been “chronically emotionally maltreated” in the mother’s household.[12]
[12] Family Report dated 17/09/2018 par 216
It may be that the mother parents the children in much the same way as she gave evidence, that is getting through the events of the day without actually focusing on the experience of the children.

The Maternal Grandmother - Ms T Minshall

The maternal grandmother clearly has more authority over the children than the mother. For instance she agreed that Z could be violent and would kick, punch and hit for no reason. When asked if the child tried that with her, the maternal grandmother answered “tries it” in a way that suggested he did not succeed.
Interestingly, she said that Z was a normal child until age three years, but after that he had to be managed with a combination of medication and access to his iPad, telephone and games.
Z turned three in March 2017. Thereafter his father moved out of his life as a result of the events with Y. Mr Clayton said he believed all the children thrived on the outdoor activities and family experience provided in his household.
It is likely given those two pieces of evidence that Z reacted adversely to losing contact with his father and revealed it through his behaviour.
The maternal grandmother referred to Z “carrying on like he does” [being violent and swearing] was managed by the mother giving him his medication, giving him his iPad and then sending him to his room.
The maternal grandmother agreed with the suggestion that he might feel rewarded for bad behaviour.
The maternal grandmother described the child as swearing, kicking, punching the other children and laughing at the same time, in his “play up moods”.
This little boy takes drugs every day, Catapres and Ritalin, in varying doses. The mother and maternal grandmother “can’t take him places” because of his behaviour.
X too was described by her grandmother as a child who would kick, punch and slap if anyone upset her.
The evidence of X’s paternal grandmother accords with the child having been emotionally dysregulated, eating with her hands and swearing fluidly.
I conclude that such behaviour has been accepted by the mother as normal.

The First Respondent Father - Mr Clayton

Mr Clayton loves all three children and wanted to have them live with him. He regards X as a daughter. He is however content for her to live with her own father whom he trusts, if that is what the Court determines.
Mr Clayton pleaded guilty to assaulting Y and there is an AVO in place for Y’s protection from his father. The father denies that he did in fact assault the child. His explanation is that he pleaded guilty to protect the child from having to give evidence.
From the Facts[13] the event pleaded to were as follows and took place in the home of the father:
On the morning of Monday 3^rd April 2017 the victim was at the home of the accused. The victim was in the hallway of the home banging on the bedroom door of one of the other children with a pillow.
The accused came from his bedroom into the hallway where he grabbed the victim around the throat with his hands choking (sic) him. The victim stated “Dad picked me up by the neck”. The victim stated the accused said “stop your friggin running up and down the hallway” The victim stated, then “he just dropped me and he went back into Ms D’s room to go to sleep
[13] Exhibit 22
The father should not be simply accepted on a different story having pleaded guilty to those facts.
It may be as he says that he did not deal with the child that way.
There is evidence of a fight between the two boys on the previous day where Z had his hands round Y’s throat and had to be pulled off his brother by the father.
Assuming that the assault did take place as described, the question is could a father who put his hand round the child’s throat and lifted him up by it, leaving a mark, have the child living with him?
I consider that the answer is yes. There is no history of violent punishment of children by the father. The children are conceded by the mother to be violent and uncontained with each other, and with her, in her household.
The incident as described is serious but not such as would end the relationship between father and son. The father was a shift worker and would have been asleep on Monday morning.
Further, if the father did commit the assault he protected the boy from giving evidence which is to his credit as a parent. Of course, if he did not commit the offence, it is even more to his credit.
The father otherwise presented as a concerned and loving parent. He is worried about the levels of medication the children take. He is interested to review diagnoses.
As to discipline, his approach is to let the children know of little rewards and acknowledgements of good behaviour with what he described as really good results.

The First Respondent Father’s Partner - Ms D

The father’s partner supports his application to have the children live with him.
She is willing to have her two young children grow up with the two subject children. She described the children as “good with me” and is clearly fond of them.
She has seen Y hitting and kicking his mother, swearing at her in an adult way. Ms D does not approve of that behaviour at all.
The mother has sworn at Ms D in a threatening way.[14]
[14] Affidavit of Ms D filed 9/04/2019 par 33
I conclude that Ms D was a truthful witness and a committed partner. Her evidence was that she did not see the father hurt Y on the day and in the way alleged and did not believe he had. She saw marks on the child’s neck but attributed them to the physical attack on him by Z (over a contested ball of Blu-Tack).
I am confident that she would not have ignored an assault by the father on Y or any of the children.

The Second Respondent Father - Mr Wilkie

The father impressed as a quiet peaceful man. He has Asperger Syndrome. He functions well as a parent. He has another younger child with Global Developmental Delay. She attends a special school. He is on very good terms with the mother of that child.
The father does not approve of corporal punishment for children. The father states that the mother and maternal grandmother advised him to smack X if she “stepped out of line”. He has not done so.
He has felt uncertain about Mr Clayton since he pleaded guilty to an assault on Y, “He may have done it. I can’t say. It did cause concern.”
The father has also felt worried about his daughter telling him she could not sleep because her “Mum had given her too much medication.” He was medicated for a year or more himself as a child for ADHD, a diagnosis which was subsequently reviewed and medication ceased.
The father and his mother are interested in a paediatric review for X. I noted the warmth of the father’s positive response to whether he would allow the mother to attend medical assessments and appointments for the child, “She can. Of course she can.”
I conclude that the father is a loving, concerned parent who would provide a safe environment for X.

The paternal grandmother - Ms E

X’s grandmother is very much attuned to the situation of the child. She described her as “smart, funny very keen to learn but lacking self-worth.”
It is of great concern to the paternal grandmother that X will say in a despondent way “I’m just feral.”
I conclude that the paternal grandmother listens to X, helps her and has quietly modified her behaviour. The child has learned to eat with a knife and fork, she has learned to express herself without swearing. She is less angry.
Ms E has nine other young grandchildren and immerses X in the activities of the family.
I conclude that there are substantial benefits to X living with her father in the home of her paternal grandmother.

The Law

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

All parties agreed that the parent with whom a child lived should have sole parental responsibility for that child.
By current 2016 orders the mother and Mr Wilkie have equal shared parental responsibility for X. The mother has not consulted with him about long term decisions or at all.
The mother did not include him in the assessment of X where she was diagnosed as having ADHD. Mr Wilkie has been rebuffed by the school when he has asked for school reports
The mother has not rectified the birth certificate for X by including the name of X’s father nor has she used the name.
By current 2016 orders the mother and Mr Clayton had equal shared parental responsibility for Y and Z. There was no consultation.
The mother did not include Mr Clayton in recent assessments by a paediatrician for both children where both were diagnosed with several disorders and prescribed drugs including Ritalin and Catapres.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

The three children have lived with the mother all their lives. She loves them. They love her but are probably angry with her.
After the separation of the mother and Mr Wilkie the mother saw no value in a relationship between him and the child of that relationship, X. The mother introduced the child to Mr Clayton as her father.
After the separation of the mother and Mr Clayton in mid-2013 the mother saw little value in the relationship between X, Y and Z continuing with Mr Clayton. Since the events of April 2017 the mother has been opposed to the connection entirely.
Court orders made in 2014 and since have kept relationships alive.
There is a profound benefit to the children in having meaningful relationships with Mr Clayton and for X with Mr Wilkie. The two fathers are committed parents and attuned to the needs of the children.
Mr Wilkie represents a place of safety for X.
Mr Clayton offers a place of comparative safety for Y and Z.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

This consideration is of greater significance. The welfare of these children is at stake.
In the household of the mother all three children have been exposed to abuse and family violence and have suffered psychological harm.
The mother has hit, smacked and kicked the children. She has sworn at them in an angry and abusive way, ”f… off”, “p… off. She has abused them with demeaning language “you’re feral”, “you’re a filthy pig”.
X explained to her paternal grandmother that the children have not used cutlery to eat in the mother’s home because Y stabs them with knives and forks.
Until very recently, late 2018, the children stayed up late at night playing games and using their iPads. There was no enforced bed time. X takes prescription medication on school days to keep her awake during the day.
Probably the mother has told the children about the contents of affidavits relied on in this trial. Certainly she has not told the children that their respective fathers love them and want to see them.
In her oral evidence the Family Consultant stated firmly that the children have suffered cumulative emotional harm in the care of the mother.
Even more firmly, the Family Consultant stated that the safety of each child was the main issue, taking priority over sibling relationships and arrangements for time.
I accept the opinions of the Family Consultant in both respects.
If things continue the way they are the children will continue to underachieve at school, have low self-esteem and display behaviour which will lead to trouble for themselves and others.

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

X said she wanted to live with her mother and spend time with her father. She conceded that if Z was visiting Mr Clayton she would go too.
Y was clear to say that that he did not wish to spend any time with his father and would not feel good if his siblings did.
Z was difficult to engage. The assessment by a psychologist in a report referred to by the Family Consultant was that Z’s behaviour was predominantly due to chaos at home and inconsistent, even unsafe parenting. Not as had been suggested developmental problems. He expressed the view that the mother had a personality disorder.[15]
[15] Family Report dated 17/09/2018 par 193
The mother made a complaint about the psychologist to the service he worked for. This response at least suggests that the mother is more comfortable with something being wrong with the child than something being wrong with her parenting.
Z’s limited responses were “I don’t know” about what he liked to play with Mum, and “I love my Dad”.
This matter is primarily about safety and in those circumstances the responses of all the children although informative can to no extent be determinative.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

It will be a huge change for the children to move away from their mother. They will change schools, lose friends but perhaps make new ones.
Further, they will no longer be a group of siblings together. They will however see each other regularly.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The mother appears to have an impaired capacity to meet the needs of the children. She loves them, that is not the issue.
She makes decisions based on her own immediate feelings and reactions. She does not reflect or ask for assistance. Her judgment about how to go about making decisions is poor.
One clear example of this is the acceptance of Z into an ED (Emotional Disturbance) class. When the letter of acceptance came “someone” told the mother that such classes were for “naughty children to get them out of the way” so she rejected the offer.
Another is her view that workers from the M Centre “stabbed her in the back” by keeping an accurate written record of what they observed in the home of the mother, during the period that the mother was part of their supportive program.
The observations, which follow, are consistent with the opinion of the Family Consultant that the children have suffered cumulative emotional harm.

Assessment by FACS of mother’s household; the M Centre engagement

On 24 November 2015 a Department of Family and Community Services (“FACS”) investigation occurred due to an alleged bite mark on X by the father. This was not substantiated as medical personnel could not determine exactly that it was a bite mark and the child had consistently provided another explanation for the injury.

On 2 September 2016 FACS conducted a safety assessment following reports identifying concerns in relation to the mother’s parenting of Y and Y’s extreme behaviour and violence. The children were deemed to be safe.
On 26 September 2016 the M Centre commenced involvement with the mother.
On 18 November 2016 an M Centre worker noted that the mother became angry at Y and called him a “filthy pig” for drinking straight from a milk carton. The mother concedes she did.
On 16 January 2017 an M Centre worker reported that the mother was presenting as fatigued due to the children’s demands and frustrated when they acted out seeking her attention. She was also reported as having issues with authority and discipline. The worker noted that the mother has made some attempts to implement positive strategies and noted love between the mother and all children.
On 17 February 2017 the mother seemed down during a visit with the M Centre and seemed easily frustrated with the children and yelled at them.
On 15 June 2017 the M Centre noted that the mother became impatient at Z when he was seeking attention and yelled at him, resulting in the child becoming defiant and telling the mother to “fuck off”. The mother then had difficulty in responding and yelled at the child. The mother is reported to have spoken negatively about the children and had difficulty identifying any positives or things that were working well.[16]
[16] Family Report dated 17/09/2018 par 151
On 20 June 2017 the M Centre conducted a risk reassessment and stated that limited progress had occurred. The report stated that the mother has struggled with full time care of the children since the incident between Y and his father, and was becoming increasingly negative towards them, responding with hollow threats and has been observed by the school to hit and swear at the children.[17]
[17] Family Report dated 17/09/2018 par 152
On 23 June 2017 an M Centre caseworker observed the mother being negative in her language towards Y and called him a “little shit”.[18]
[18] Family Report dated 17/09/2018 par 153
On 13 July 2017 an M Centre caseworker observed that the mother would become frustrated with Z and would smack him and use an angry tone, resulting in the child becoming upset and swearing at the mother when he was not getting what he wanted.[19]
[19] Family Report dated 17/09/2018 par 154
On 10 August 2017 whilst an M Centre caseworker was visiting the family, Z kicked the worker, the mother then became angry and smacked him on the nappy, and the child ran away giggling. It was reported that the child told the mother to “fuck off” when he was told to do something he did not want to do.[20]
[20] Family Report dated 17/09/2018 par 155
On 16 August 2017 the M Centre noted that there was stress and discord in the family relations in the home, and that this was impacting on the children’s sense of security and wellbeing. The mother is reported to be having difficulty managing the children’s behaviour and that conflicts between the children generally escalated to physical violence and aggression. Y is said to have an anxious attachment to the mother.[21]
[21] Family Report dated 17/09/2018 par 156
On 5 September 2017 the M Centre noted that the mother was reactive and yells at the children a lot.[22]
[22] Family Report dated 17/09/2018 par 157
On 29 September 2017 the M Centre noted that when Z was unsettled and ignoring the mother, she became angry and tried to physically grab the child. This resulted in Z yelling at the mother telling her to go away, as well as spitting on her.[23]
[23] Family Report dated 17/09/2018 par 158
On 30 October 2017 the M Centre discussed with the mother the stress that Y feels when she threatens to call the police on him.[24]
[24] Family Report dated 17/09/2018 par 159
On 31 October 2017 whilst visiting the mother, the M Centre noted that throughout the visit the mother was yelling at the children, especially Z.[25]
[25] Family Report dated 17/09/2018 par 160
On 7 November 2017 the M Centre noted that they had concerns about the mother’s threats towards Y about calling the police if he did not behave, and questioned whether his behaviour was environmental.[26]
[26] Family Report dated 17/09/2018 par 161
On 9 November 2017 M Centre workers stated that the mother showed them a video of Z becoming distressed when an action was given, with her videoing his behaviour. It was reported the mother spoke in predominantly negative terms about the children referring to him as feral and speaking of their behaviours as out of control.[27]
[27] Family Report dated 17/09/2018 par 162
On 14 November 2017 the M Centre noted that the mother was short on patience and that she took the children to a school event and it was a nightmare.[28]
[28] Family Report dated 17/09/2018 par 163
On 20 November 2017 the M Centre stated that were really worried about the children following on from their visit with the mother last week and the level of negativity directed towards the children and the negative attention they are receiving.[29]
[29] Family Report dated 17/09/2018 par 164
On 23 November 2017 the M Centre noted that they observed the maternal grandmother calling Y a cheat and other insults while they attended the home.[30]
[30] Family Report dated 17/09/2018 par 165
On 14 December 2017 the M Centre noted that the mother was preoccupied with the issue that X could potentially have Aspergers.[31]
[31] Family Report dated 17/09/2018 par 166
In February 2018 the mother was involved in a JIRT investigation in relation to her partner at the time Mr H and his child J, then aged 18 months. The mother states she had met Mr H on the internet and had met him twice in Sydney, without any children present, before he came to stay with her for two weeks.[32]
[32] Family Report dated 17/09/2018 par 66
The mother alleges that during the time Mr H and J were staying J knocked her teeth on the porta-cot and the mother urged Mr H to take the child to hospital to get her mouth checked out. This resulted in the staff at the Hospital K making a mandatory report to FACS. Mr H and J stayed a few days after the incident, however the mother states she has not seen him since that date, and that since this event FACS have attended her house and undertaken an inspection.[33]
[33] Affidavit of Ms Minshall filed 25/03/2019 pars 68-70
On 12 February 2018 the school reported that Y presented as “dazed” on most days however on this date presented at school as though intoxicated. The child is alleged to have told the school that he had taken three tablets that morning, he was lethargic and kept looking as if he was going to fall asleep. The mother was reported to have “acted blasé” about the incident.[34]
[34] Family Report dated 17/09/2018 par 169
On 19 February 2018 the school made a mandatory report to FACS with the main concern “‘physical abuse’ - head was recently shaved (sic) suspected medication overdose – sent home from school.”[35] The school reported that Y appeared at school with a large egg on his head to the left side of his temple, he had a cut on right side of his head and under right eye had a nick, it had been bleeding and he had what looked like a black eye. No injuries had been seen by school on the Friday prior. The child originally told the school that Z threw tongs at him, he then changed his story to say that he ran into a pole, and then further changed his story again stating that he did not know. Y reportedly told his teacher’s aide that police had been at his house and taken his mother’s partner away. The child was reported to have a few spots of chewing gum in his hair. It was reported to FACS that the mother did not have a lot of control over the children, and that the mother had presented a few weeks prior with marks on her neck that the children said were “hickies”. The FACS report also stated that there have been occasions where the mother has sent the children to school without lunch and has rang the school a few times sounding drunk or under the influence.[36]
[35] Family Report dated 17/09/2018 par 169
[36] Family Report dated 17/09/2018 par 169
The mother stated that on 19 February 2018 she took X to an appointment during school hours and while she was there she received a call from the school that Y was sick. He was then picked up by the maternal grandmother.
The mother alleges that earlier that morning she had a haircut, and Y wanted a haircut as well. The child found a pair of clippers and cut chunks out of his hair. The mother states she thought it was funny and even took a few photographs, but knew she had to shave his whole head. The mother states that the allegation made by the school that Y had overdosed on medication and that his head was shaved to avoid detection was untrue, the mother states the first time she found out about this incident was through the subpoena material.[37]
[37] Affidavit of Ms Minshall filed 25/03/2019 pars 112-114
The mother did not recall there being an ‘egg’ on his head, although he did have a scratch on his head from where Z threw some tongs at him. The mother states that as a result of this incident, FACS attended her home and undertook a home visit.[38]
[38] Affidavit of Ms Minshall filed 25/03/2019 par 115
On 29 March 2018 the mother and maternal grandmother are alleged to have informed an occupational therapist from M Centre visiting the family that they needed to tell their side of the story, in relation to the recent FACS report. She stated that the FACS investigation had impacted upon her credibility in the Family Court proceedings, as she had heard some of the M Centre records in Court which stated that the mother and maternal grandmother swear at the children. The mother is reported to have told the M Centre that she felt like her caseworker had “stabbed her in the back,” and she did not trust her anymore. The occupational therapist kept trying to leave, however the mother is alleged to have followed her as she left the house, repeating that her caseworker had stabbed her in the back, and kept asking whether the occupational therapist would stab her in the back too.[39]
[39] Family Report dated 17/09/2018, par 170
On 10 May 2018 an M Centre interaction stated that Y and X had both been suspended from ‘Out of School Hours’ (“OOSH”) care; X for being disrespectful and Y for not coping on the bus. The mother is reported to be annoyed and blamed staff for the children’s behaviours. The children were then reported to have been expelled from OOSH.[40]
[40] Family Report dated 17/09/2018 par 171
On 28 June 2018 the M Centre reported that the mother stated she was spending more time at the maternal grandmother’s house and that she was losing hours at work due to the fact that the children were unable to attend OOSH.[41]
[41] Family Report dated 17/09/2018 par 174
The mother ceased employment outside the home in July 2018.
On 3 August 2018 the mother was exited from the M Centre program. A letter was sent to the mother noting that her case plan goals were achieved. It was stated that the mother was able to advocate for the children’s needs and had been able to implement parenting strategies.[42]
[42] Family Report dated 17/09/2018 par 174
I conclude that this letter was written in a spirit of positive optimism to encourage the mother rather than as an accurate reflection of what had been achieved in terms of more effective parenting.
Nevertheless, it created a false impression of the level of engagement by the mother with the service and the extent of improvement in her parenting methods.

If the child is an Aboriginal child or a Torres Strait Islander child

The only evidence on this topic came from the unchallenged evidence of Mr Clayton.[43]
[43] Affidavit of Mr Clayton filed 9/04/2019 pars 32-40
The mother has been estranged from her father since the separation of the maternal grandparents long ago.
The maternal grandfather is an indigenous man who lives in an aboriginal community in Town W. In 2011 Mr Clayton located the maternal grandfather, contacted him and arranged for the mother to meet up with him. That meeting took place in Northern Queensland in April 2013. X and Y were present.
Although the meeting went well and the mother and her father exchanged contact details the maternal grandmother was unhappy about it and made the relationship a matter of choice for the mother between herself and the maternal grandfather.
Accordingly, the mother could identify as an aboriginal woman if she chose to but there is no evidence before me as to whether she does to any extent.
Relevantly there is no evidence of whether the three subject children, who could also identify as aboriginal, know of their indigenous cultural background and what their connection to country is.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

On 3 April 2017 a report was made to FACS by a mandatory reporter following a disclosure that Y had made to his support teacher.
It was reported that Y told his classroom teacher that he had been at his father’s that week. It is an agreed fact that he was.
Unprompted, the child is alleged to have informed the reporter that last night his father did not sleep and was really angry and had grabbed him around the neck and squeezed so tight that he could not breathe. When the child was asked how long for, Y is alleged to have responded with “for a very long time.”[44] Y was observed to have marks around his neck that were about seven centimetres long, with a rash caused by friction with little red dots. There was also another red mark under his chin that was red and noticeable and about four cm, the reporter states that it looked like the mark of a thumb and pointed finger. Following the disclosures Y did not want to talk about the incident anymore. It was further reported that when Mr Clayton arrived to collect the children, he was grumpy and irate.[45]
[44] Family Report dated 17/09/2018 par 140
[45] Family Report dated 17/09/2018 par 140
The mother stated that after school that day, the father came around to her house to collect some shorts for X. The mother alleged that when she went outside to the father’s car to say hello to the children, she saw Y sitting in the back seat of the car and noticed the red marks around his neck.
The mother alleges that when she asked Y “What’s happened to your neck mate?” the father quickly responded “It’s a rash.” The mother alleges that Y then stated to her “No it’s not Mum, it’s where Dad grabbed me by the throat this morning”.[46]
[46] Affidavit of Ms Minshall filed 25/03/2019 par 25
The father is then alleged to have reversed the car and driven off. The mother then attended Suburb BB Police Station to report the matter. That evening the mother received a telephone call from a FACS social worker informing her that they had removed Y from the father’s care and he was in hospital, and that X was at home with the father’s partner. After X was returned to the mother’s care at midnight, the mother then attended the hospital to visit Y.[47]
[47] Affidavit of Ms Minshall filed 25/03/2019 pars 23-32; Family Report dated 17/09/2018 par 141
At the hospital Y underwent a medical examination. It was reported that Y informed the medical officer that the bruises occurred as a result of his father grabbing him by the throat. It was concluded that:
Given the history provided, in the absence of any other explanation, inflicted injury (as described by the child) should be considered the likely cause for the child’s neck bruising. (the child) Had no other suspicious injuries.[48]
[48] Family Report dated 17/09/2018 par 142
The father was alleged to have been interviewed by the Child Abuse Squad and denied causing the injury, stating that he had only noticed it when the mother drew attention to it. It was noted that at this stage the father did not provide an alternative explanation to the injury.[49]
[49] Family Report dated 17/09/2018 par 143
At the time of his interviews for the purposes of the Family Report, the father denied assaulting Y and informed the Family Consultant that it was not possible for him to have assaulted the child in the manner alleged without the step-mother witnessing it. He states that the only plausible explanation for the injury was caused by Z climbing on top of Y while he was laying down and trying to choke him while getting some Blu-Tack, resulting in Z pulling on Y’s shirt causing a friction burn. He stated he did not give police this version of events because he was in shock.[50]
[50] Family Report dated 17/09/2018 par 81
The evidence of the father’s partner in this trial is consistent with that explanation.
On 6 April 2017 Y was interviewed by JIRT. FACS records state that when Y was asked about the mark on his neck, he is reported to have said “Dad picked me up by my neck.” The matter was investigated and substantiated and Mr Clayton was recorded as a person causing harm to Y.[51]
[51] Family Report dated 17/09/2018 par 26
The father was then charged with assault and causing actual bodily harm.
Time between Mr Clayton and the children thereafter ceased.
On 26 July 2017 a final ADVO was put in place for the protection of Y for a period of five years.
On 7 September 2017 the father pleaded guilty to the charges against Y. The father received a 12 month section nine bond and had to pay $500.
The father denies assaulting Y, and states that he pleaded guilty to the charge to avoid Y having to testify in Court.[52]
[52] Affidavit Mr Clayton filed 09/04/19 pars 50-51

Any other fact or circumstance that the court thinks is relevant

This is a case about the welfare of children, their physical and emotional wellbeing.
Intervention by the M Centre program delivered some respite for the mother and the children but that has now ended. Far from being open to further assistance the mother is angry with the M Centre and suspicious of FACS.
The two fathers and their extended families can provide a safer environment.
A review of diagnoses will determine the need for ongoing medication. There is at least a possibility that medication is presently a means of behavioural modification without adequate supervision.

Conclusion

Orders are made for X to live with her father and for Z and Y to live with their father. Each of the two fathers will assume sole parental responsibility for the child and children living with each of them respectively.
After a period of 12 weeks, time with their mother will resume. For about six months that time will be supervised in a contact centre. The period of no time and communication for 12 weeks followed by supervised time is necessary in my view for the children to adjust to their new arrangements and also to be protected from the likely distress and anger of the mother about the change of residence.
It is important that the three children maintain their bond as sister and brothers. They also have an infant half-sister in the home of the mother. For that reason orders for time into the future are directed to the children being together at the home of the mother fortnightly and together at the home of Mr Clayton at least once per month.
In the unusual situation of a child being placed into the care of a parent who has been convicted of an assault on that child, provision has been made for the inconsistency between the State protective order and these orders to be explained to the child and the father.
I am satisfied that the safety of the children both physical and emotional is best met by the orders for change of residence as set out above.
Orders are made accordingly.

I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 June 2019

Associate:

Date: 19 June 2019

[2019] FamCA 388

19 June 2019

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