MORTIMER & BEAUFOY

[2020] FamCA 367

FAMILY COURT OF AUSTRALIA

MORTIMER & BEAUFOY [2020] FamCA 367

FAMILY LAW – CHILDREN – Parenting – Where the father is not the biological father of the children – Where the children are unaware and the mother wishes for them to remain unaware for some time – Where the children do not share the same father – Where the children’s fathers are not parties to proceedings nor involved in the children’s lives.

FAMILY LAW – CHILDREN – Family violence – Where there are cross allegations of family violence by both parties towards each other and the children – Where there are unsubstantiated allegations that the father poses a risk of sexual harm to the younger child.

FAMILY LAW – CHILDREN – With whom the children shall live and spend time – Where the children currently reside with the mother – Where the elder child has not spent time with the father since September 2019 and the younger child, since October 2019 save as to interim orders for time made at the conclusion of trial – Where the mother seeks residence for both children – Where the mother changed her application during trial from no time and communication with the father to defined time – Where the father proposes the younger child live with him and spend time with the mother, and for the elder child to spend time with him at the child’s discretion – Where there are risks in both households; the father’s use of marijuana and the conduct of the mother being emotionally damaging – Where the mother poses a higher risk – Where the elder child expressed a view not to spend time with the father – Where the younger child reported no issues in either household – Ordered the elder child live with the mother and spend time with the father at the child’s discretion – Ordered the younger child live with the father and spend no time with the mother for three months and thereafter, time to increase incrementally from limited supervised time to unsupervised time each alternate Sunday. 

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother seeks sole parental responsibility for both children – Where the father seeks sole parental responsibility for the younger child – Where the presumption of equal shared parental responsibility is rebutted – Ordered sole parental responsibility for the elder child to the mother and sole parental responsibility for the younger child to the father.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B.
APPLICANT:	Ms Mortimer

RESPONDENT: Mr Beaufoy

INDEPENDENT CHILDREN’S LAWYER: Adams & Associates

FILE NUMBER: NCC 2136 of 2018

DATE DELIVERED: 15 May 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 22 – 24 January 2020; 16 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smith

SOLICITOR FOR THE APPLICANT: Law Society of NSW

COUNSEL FOR THE RESPONDENT: Mr Boyd

SOLICITOR FOR THE RESPONDENT: Schofield Muir Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams & Associates

Orders

1. That all prior parenting orders made in relation to the children X born … 2004 and Y born … 2009 are discharged.

X

1. That the mother have sole parental responsibility for X.

2. That X live with the mother.

3. That X spend time and communicate with the father in accordance with his wishes and by arrangement between himself and the father in consultation with the mother.

4. The mother shall keep the father informed of any serious accident, emergency or specialist medical advice/treatment for X.

Y

1. That the father have sole parental responsibility for Y.

2. That Y live with the father commencing forthwith.

3. That Y spend time with and communicate with the mother as follows:

   8.1For a period of three months Y shall spend no time with the mother;

   8.2Thereafter and commencing in mid-August 2020, on six occasions in total, being two hours on one day of each third weekend of a calendar month supervised by an agreed contact centre or private supervision service with the parties to share equally the costs associated with such time, or if COVID-19 restrictions mean that paid supervision is unavailable, then by a person nominated by the father and known to the mother;

   8.3Thereafter commencing in February 2021:

   8.3.1On alternate Sundays for a period of six weeks from 10.00 am to 12.00 noon;

   8.3.2Thereafter on alternate Sundays from 10.00 am to 2.00 pm for a period of six weeks;

   8.3.3Thereafter on alternate Sundays from 10.00 am to 6.00 pm.

4. In addition to the time in Order 8.3 above, Y will spend time with the mother for special occasions as follows:

   9.1On Y’s birthday commencing … 2021 and each year thereafter from after school to 8.00 pm if a school day and from 10.00 am to 2.00 pm if not a school day;

   9.2On X’s birthday being … each year from after school to 8.00 pm;

   9.3On Mother’s Day each year from 10.00 am to 6.00 pm;

   9.4On Good Friday and Easter Saturday each odd numbered year from 10.00 am to 6.00 pm each day and on Easter Sunday and Easter Monday each even numbered year from 10.00 am to 6.00 pm on each day;

   9.5On Christmas Day 2021 from 8.00 am to 2.00 pm and in each odd numbered year thereafter, and on Boxing Day in 2022 and each even numbered year thereafter from 10.00 am to 6.00 pm.

5. The mother’s time will be suspended at the following times:

   10.1Father’s Day each year;

   10.2On the father’s birthday each year;

   10.3Easter Sunday on odd numbered years;

   10.4Christmas Day in even numbered years.

6. Unless it is a school day all changeovers to facilitate the time above will take place at Suburb B McDonalds.

7. Each party will keep the other informed and advise as soon as practicable of any change to their residential address, mobile telephone numbers and email addresses.

8. The parties will communicate with each other via email or messenger or similar.

9. That if Y requires medication to be administered when spending time with the mother, the father must provide the medication to the mother in the original packaging along with written instructions as to the proper administration of the medication.

10. The father will keep the mother informed of any changes in Y’s medication, any new medical diagnosis and changes to any existing diagnosis and copies of any reports from medical practitioners provided to him.

11. The parties will advise each other as soon as practicable of any serious accident or emergency concerning Y whilst she is in their respective care.

12. The father will provide to the mother at his expense copies of Y’s school reports and a school photograph each year.

13. The mother is restrained by injunction pursuant to s 68B of the Family Law Act 1975 (Cth) from any of the following:

    a.From administering any medication to Y be it prescribed medication, over the counter pain relief, herbal supplement or other forms of alternate medicine that is not provided to her by the father;

    b.From using physical discipline or allowing any third parties to do so;

    c.From attending at Y’s school without the written consent of the father;

    d.From denigrating the father or his partner Ms G in the presence or hearing of Y;

    e.From denigrating or name calling Y; and

    f.Bringing Y into contact with Mr C or allowing any third party to do so.

14. That the Independent Children’s Lawyer (“ICL”) meet with X and Y, together or individually at the discretion of the ICL, at a mutually convenient time and place to enable the ICL to explain these orders to the child/children and to answer any relevant questions he/she may have.

15. Each of the parents shall do all that is necessary to facilitate a meeting for the child in his/her care with the ICL.

16. The father may if he wishes provide a copy of these orders and reasons for judgment to Dr D, psychiatrist for Y.

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 Mortimer & Beaufoy 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 2136 of 2018

Ms Mortimer

Applicant

And

Mr Beaufoy

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders concerning two children, X a boy aged not quite 16 years and Y, a girl aged 10 years (“the children”) at date of trial.

2. The applicant is the mother of the children.

3. The respondent is not the biological father of the children, but he has been known to the children throughout their lives as their father. The children are unaware of their true paternity. Each has a different father whom they have not met.

4. The parties began a relationship in August 2003. The mother was pregnant when the parties began their relationship.

5. The parties had separated emotionally and physically by 2016. The relationship endured for 13 years with at least one period of separation.

6. The children currently live with the mother. X has not spent time with the father since September 2019 despite operative Court orders providing for time to take place. Y ceased spending time in October 2019 but resumed pursuant to interim orders made during the course of this trial.

The Parties

The Applicant Mother

1. The applicant mother is currently 35 years of age and is a homemaker. The mother lives in Suburb E, a suburb of the F region of NSW. She moved there in December 2019.

2. The mother is in a de facto relationship with Mr H aged 39. Mr H has no children of his own and has lived with the mother and the children since June 2018.

3. The mother’s household consists of herself, Mr H and the children.

The Respondent Father

1. The respondent father is currently 38 years of age and is employed as a tradesman. The father lives in Suburb B, a suburb of the F region of NSW.

2. The father is in a de facto relationship with Ms G aged 25 years. Ms G has no children of her own as yet but hopes to become a mother in time.

3. The father’s household consists of himself and Ms G.

The Trial

1. The trial was listed for three days commencing 22 January 2019.

2. The parties were each represented by solicitor and counsel.

3. The Independent Children’s Lawyer (“ICL”) had briefed counsel.

4. The trial did not conclude within the allocated days. The matter was adjourned for submissions to 16 April 2020 and was concluded on that day. Judgment was thereafter reserved.

5. Pending submissions and delivery of judgment, orders were made on 24 January 2020, at the end of the third day of trial.

6. Those orders provided, on an interim basis, for both children to live with the mother, for defined time between the younger child and the father, and for time as agreed between the elder child and the father.

The Applications

The Mother

1. By her Amended Initiating Application filed 29 October 2019 the mother proposed that both children live with her, that she have sole parental responsibility for them and that they spend no time with the father.

2. The other also proposed restraints on the father, designed to ensure that he did not come in contact with the children or herself to any extent.

3. On the third day of trial the position of the mother changed. A Minute of Order was handed up proposing that X spend time with the father as he wished and that Y spend alternate weekends from Friday after school until Monday before school.[1]

   [1] Exhibit 27.

The Father

1. By his Amended Response filed 28 November 2019, the father seeks final orders for both children.

2. In relation to X, the father proposes that the mother have sole parental responsibility, the child to live with the mother and to spend time with the father at the discretion of the child.

3. In relation to Y, the father seeks sole parental responsibility, the child to live with the father and spend no time with the mother for three months. Thereafter, the father seeks for the child’s time with the mother to progress incrementally from supervised to unsupervised.

The ICL

1. The ICL did not have a preliminary view, preferring to test the evidence before coming to any position.[2]

   [2] Exhibit 1.

2. In submissions the ICL advocated for a change of residence for Y, with an initial break from the mother and a gradual restoration of time building to whole days on alternate Sundays.[3]

   [3] Exhibit 28.

3. The ICL also brought forward thoughtful well defined proposals around use of medication and medical treatment for Y.

4. The ICL approved the agreement for X to remain living with the mother and spending time with the father in accordance with his own wishes.

The issues

Residence

Should Y remain living with her mother or should she move to live with her father?

1. The evidence supports a conclusion that Y would have a calmer, more settled life with the father who has a greater capacity to meet her emotional and psychological needs.

What is the level of risk in each household?

1. There is risk in both households, higher in terms of being more emotionally damaging in the household of the mother.

If Y remains living with her mother should there be orders for time and communication with the father? If so, what?

1. Y will move to live with the father.

If she moves to live with her father, what arrangements should be put in place for time and communication with her mother and brother (the elder child)?

1. Provision for spending time with the mother is made after a period of three months to enable Y to settle in the father’s household.

Should an order be made for X to spend time with the father, or live with the father?

1. X is presently opposed to spending time with the father. At almost 16 years of age and given his particular challenges, it would  be helpful to him not to force the issue with an order.

2. Given a choice and in circumstances where he might also enjoy visiting his sister in the father’s home, X may decide to restore his relationship with his father.

Parental responsibility

Are there reasonable grounds to believe that a parent has engaged in abuse of the children or either of them, or family violence, such that the presumption of equal shared responsibility does not apply?

1. The children did experience family violence in the home during the parties’ relationship.

Is the presumption of equal shared parental responsibility rebutted by evidence that satisfies the court that it would not be in the best interest of the child or children for the presumption to apply?

1. Yes the Court is satisfied that it is not in the best interest of either child for the presumption to apply. Quite properly the standing of the father was not raised.

If so, what allocation of parental responsibility should be made?

1. Each party should have sole parental responsibility for the child living with that parent.

Restraints

Should orders be made pursuant to s 68B of the Family Law Act 1975 (Cth) or otherwise for the protection of the children or the promotion of their welfare?

1. Yes. There is a need to promote Y’s welfare by ensuring that she receives consistent medical treatment.

Should orders be made for the protection of the mother from the father?

1. There is no evidence before me to justify the making of a protective order for the mother.

History of Relevant Events

The incident with Y and the maternal uncle

1. On 16 April 2016 there was an incident at the parties’ home which was a catalyst for the parties separating.

2. The story emerged during the cross-examination of the father. The mother was later recalled to give further evidence which confirmed the relevant incident taking place although there were disparities.

3. The maternal grandparents had been invited for a celebration of both their fiftieth birthdays. The mother’s sister and brother-in-law and their two children were also invited. They all travelled from J Town to attend.

4. During the day the father observed the sister’s partner, Mr C, touch Y on her genital area, his hands underneath the child’s pink skirt whilst straddling her, both face down on the ground. The father got out of his chair shoved Mr C to one side and told him to leave.

5. The father then took the child by the arm and walked her into the house. Inside the house the father says, and the mother denies, that he told her, in the presence of the other two women, what he had seen. The father wanted to report the matter to the police.

6. The father says and the mother at first denied that the maternal grandmother and aunt said the matter should be dealt with “in house”. The mother later conceded that her mother may have said that.

7. All the mother’s relatives packed up and left. On the evidence of the mother they did not tell her why and she did not ask. It seems unlikely.

8. The mother said she wanted to get information from her father and Mr C before deciding what to do. She accepted the version of events told to her by the two men by telephone on the Monday following in preference to what the father had told her. That was her decision.

9. The father accused the mother of conspiring with her family to cover up what had happened.

10. The matter was not reported to police by either parent. Each expressed regret about that in oral evidence. The mother agreed it had been a “bad call” not to.

11. I note that in 2018 the family consultant raised this incident with the mother who said that there was no evidence of her brother-in-law having touched Y inappropriately. She went on to say that the father seemed to have a fixation about Y being sexually assaulted “every male I [the mother] know or associate with were all paedophiles”.

12. The mother asserted to the family consultant that after the incident the mother spoke to Y about inappropriate touching and “started to monitor the father’s interactions.”[4]

    [4] Family Report 10/12/2018, para 146.

13. Considering the whole of the evidence I conclude that the mother in 2018 was wanting to persuade the family consultant that Y was not safe around the father and at the same time deflect attention from her own decision not to report the incident with failure to act due to a clash of loyalties about this incident.

14. Y herself, to the observation of both parents, did not appear to be worried by the events at the time. She was then aged about six and a half years.

15. I conclude that the father acted swiftly and protectively of the child in the moment. He too did not report the incident due to a clash of loyalties; he wanted to maintain the relationship with the mother.

16. There is insufficient evidence to find that the child was abused, that is not to say that she was not abused.

17. An order is made restraining the mother from permitting Y to be brought in contact with Mr C and from permitting third parties to do so.

After separation

1. The parties physically separated when the father moved out of the home in July 2016. The children were then aged 12 and six years.

2. The mother met a new partner online.

3. On 9 December 2016 a non-urgent Apprehended Domestic Violence Order (“ADVO”) was obtained by the mother for protection for herself from the father.[5] The grounds were “the victim informed police she holds fears for her safety and is worried the POI’s behaviour may escalate.”

   [5] Affidavit of the mother filed 10/12/2019, Annexure CM-9.

4. In March 2017, without reference to the father, the mother moved with the children to Victoria to live with the man she had recently met.

5. The parties engaged in telephone mediation and an agreement was reached that the father would commence spending time with the children in school holidays. The children spent a week with the father at Easter in 2017.

6. The mother decided to return to the F of NSW. The father provided financial assistance to the mother to return and she did so, staying in the father’s property for one month before she obtained independent accommodation.

1. The mother asserts that the younger child began to experience anxiety attacks, later being diagnosed with globalised anxiety disorder, following time with the father.

2. In or around June 2018 the mother obtained an interim ADVO for the protection of herself and both children from the father. Her explanation for the basis for the protective order was that Y had come home “quiet and upset” about an incident of having to be helped out of the pool, whilst swimming during a contact visit with the father.[6] The mother states “I made a FACS report and they suggested no more contact and to get another ADVO”. That is certainly what the mother did.

   [6] Affidavit of the mother filed 10/12/2019, para 105.

3. There was no suggestion in her affidavit that the mother herself, or the children, were fearful as a result of the incident.

4. I cannot come to a finding about it but the timing of the ADVO is strongly suggestive of being a bolster for the application to this Court which came soon after.

Proceedings commence in the Family Court of Australia

1. On 16 July 2018 the mother commenced proceedings in this Court. In the unusual circumstance of these children, I consider that the application itself was an acknowledgement by the mother of the importance of the father, as a father, of the children.

2. She proposed sole parental responsibility for herself and residence, time with the father as deemed appropriate by the Court and restraints on the father.

3. A Notice of Risk was filed alleging:

   ·acts of violence by the father throughout the 13 years of the relationship;

   ·chronic long term drug use by the father;

   ·recent allegation of sexual abuse of the younger child by the father;

   ·younger child diagnosed with trauma induced psychosis;

   ·On 9 August 2018 the interim ADVO was resolved in the Local Court by the father giving Undertakings without admissions of wrong doing.

4. On 9 November 2018 the father filed a Response. He proposed equal shared parental responsibility, residence with the mother, and substantial time with himself.

5. A Notice of Risk was filed alleging:

   ·the children were at risk of harm and neglect in the mother’s care due to her volatile temper (from acquired brain injury);

   ·unwillingness to facilitate a relationship with father;

   ·parental alienation;

   ·lack of capacity of mother to provide care.

Family Report - December 2018

1. On 4 December 2018 the parties and children were observed and interviewed for a Family Report. The mother reported to the family consultant that in her view the father had been “grooming Y for many years”.[7] This was a grand accusation without reference to any particular behaviour.

   [7] Family Report dated 10/12/2018, para 144.

2. The basis for this conclusion appears to be “She reported that the father had always favoured Y”, “he gave Y everything and lots of affection. It was the complete opposite to what he did to me and X. I felt it was not right or normal”.

3. When asked by the family consultant if she believed that the father had sexually assaulted Y the mother’s response was melodramatic rather than considered “I wouldn’t put it past him. The way he’s spoken to her…”.[8]

   [8] Family Report dated 10/12/2018, para 192.

4. On 29 April 2019 interim orders were made which provided for the children to spend time with the father progressing incrementally each Sunday and after school Wednesday until 7.30 pm.

Updating Family Report - September 2019

1. On 8 September 2019 the children attended on the family consultant for interview and observations with the father for an Updating Report.

2. X reported that “things were going ‘terrible’ with his Dad.”[9] He was transparently angry with the father for not allowing him to walk home to his mother on the previous day. There was nothing good about his father and “he does not want to see his Dad at all.”[10]

   [9] Update Family Report dated 10/09/2019, para 31.

   [10] Update Family Report dated 10/09/2019, para 32.

3. X refused to be observed with his father “and his behaviour escalated to swearing and hitting the puppet theatre.” An observation was not undertaken.

4. Y is reported as being more relaxed and comfortable than she had been on prior observation. She reflected positively on both households. “She had no worries or concerns in either household.”[11] Her main concern was that her parents did not get along and did not talk to each other.

   [11] Update Family Report dated 10/09/2019, para 43.

5. Y eagerly participated in an observation with her father. She is reported as having greeted him and his partner “gleefully”. “Overall a close connected comfortable and relaxed relationship was observed” between the child and her father and stepmother.[12]

   [12] Update Family Report dated 10/09/2019, para 26.

6. Y was clear to say she wanted things to change. “She would like to see her dad for more extended time periods ‘make the weekends longer’ with sleepovers.”[13]

   [13] Update Family Report dated 10/09/2019, para 47.

7. On 10 September 2019 the Update Family Report was released.

8. On 11 September 2019 the elder child jumped out of the car that the father‘s partner was driving and suffered a broken collarbone and deep tissue damage. Following this, the child and the mother attended the police station. The child reported that he did not want to spend time with his father as he did not want to be yelled at, locked in the house and pinned down by the father anymore. The elder child stopped spending time with the father.

9. The evidence of the father’s partner was that X became agitated when he realised that they were not travelling home on the usual route and wanted to get out. By the time Ms G was able to ease out of traffic and stop X was opening the door and fell out. I accept that evidence.

10. On 20 September 2019 the mother decided to cease making the younger child available for time with the father based on her opinion that the child’s mental health declined rapidly after each visit.

11. This observation of the mother is entirely inconsistent with the observation of the child by the family consultant just days before.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Mother - Ms Mortimer

   (a)Amended Initiating Application filed 29/10/2019;

   (b)Affidavit of the mother filed 10/12/2019;

   (c)Affidavit of the mother (paragraphs 4-6 only) filed 20/09/2019;

   (d)Affidavit of Mr H filed 10/12/2019;

   The Respondent Father- Mr Beaufoy

   (e)Amended Response filed 28/11/2019;

   (f)Notice of Risk filed 9/11/2018;

   (g)Affidavit of the father filed 06/01/2020;

   (h)Affidavit of Ms G filed 06/01/2020;

   Reports

   (a)Magellan Report dated 25/09/2018;

   (b)(Magellan) Family Report dated 10/12/2018;

   (c)Update (Magellan) Family Report dated 10/09/2019;

Oral Evidence

The Mother

1. Having heard the evidence of the mother I am satisfied that she loves the children and tries to do the best she can for them.

2. However I cannot accept everything she says. There are three factors which lead me to the conclusion that the mother will be untruthful.

3. First, the mother has a tendency to be melodramatic, in combination with the habit of using medical rather than factual language to describe the behaviour of the children. The children have been taken to very many medical practitioners and counsellors during their lives and the language of medicine and therapeutic counselling is the language used by the mother.

4. For instance the mother referred to Y being taken by the father “to two different police stations when Y was mentally unstable and having a meltdown”.[14] The mother gave, as an explanation for ceasing to comply with Court orders for contact between Y and her father, “due to the rapid decline with her mental health after each visit.” Referring to an incident where X had jumped or stepped out of a car whilst it was moving “X now has panic attacks when he thinks he sees their cars”.[15]

   [14] Affidavit of the mother filed 10/12/2019, para 25.

   [15] Affidavit of the mother filed 10/12/2019, para 59.

5. The mother told the family consultant in December 2018 that “Y had been diagnosed with complex trauma psychosis and anxiety disorder”. There is no evidence before me of such a diagnosis at that time. Subsequently a psychiatrist has reported as an ‘impression’ that the child had a severe anxiety disorder in the context of high levels of acrimony between her parents.[16]

   [16] Affidavit of the mother filed 10/12/2019, Annexure CM-6.

6. Second, the mother concedes being untruthful in earlier affidavits about the paternity of X. Despite her evidence to the contrary in those affidavits she at all times knew the name of the father of the child and had, had a relationship with him.

7. Third, the mother denied in the witness box having read the Family Report or knowing that Y had made positive statements about her relationship with the father.

8. Yet on 27 September 2019 when this matter was before the Court, the mother was present in Court with her Counsel. The updated Family Report was discussed and the comment was made by me that the family consultant reported “Y enjoys a comfortable and affectionate relationship with her father”. Counsel for the mother noted that the mother had reservations about that.[17]

   [17] Exhibit 29 - Extract of Transcript of Proceedings dated 27/09/2019, 30-35.

Mr H – the mother’s partner

1. Mr H presented as a supportive partner to the mother. He has not met the father and has accepted without reservation what the mother has said about him. For instance he accepted that the mother had reason to be fearful about the father knowing where she lived and agreed to move house for that reason.

2. Mr H does not have children of his own. It is likely that he does not understand that children take time to adjust to a new step-parent, nor that they can feel resentful of being disciplined by a step-parent.

3. One example is Y saying to her mother “I hate you. I don’t want to live with you”. Mr H described that speech as “really rude”. With good intentions he went into the child’s room to challenge her behaviour. That she then locked herself in the bathroom was seen by him to be a sign of the mental health problems which he believes she has.

The Father

1. My impression is that the father has been a steady presence in the life of the mother and he has been genuinely fond of her and loves both children.

2. He readily acknowledged a great many verbal arguments over the years and some “pushing and shoving”. He conceded that the children may have seen some of that and had certainly heard raised voices.

3. He also conceded making disparaging remarks about the mother’s family to her and sometimes about her.

4. He strongly denied any physical violence such as throwing things or attempting to strangle the mother. I am inclined to accept the father’s evidence about that. Partly because he was a much more straightforward and consistent witness than the mother. I also take into account that the mother moved to live with the father after she returned from a short-lived relationship in Victoria post-separation. The father offered assistance and the mother willingly accepted. She then moved out again without any difficulty.

5. Consistent with his overall candour the father conceded that he smokes marijuana and has done so for 18 years. He smokes at the same time and for the same short period (15 minutes) every day. In his own view he does so for therapeutic reasons. First, to control anxiety. The father had an extremely traumatic childhood, and became a ward of the State. He also uses it to ease the pain of headaches caused by an enlarged pituitary gland.[18]

   [18] Family Report dated 10/12/2018, para 93-101.

6. Counsel for the father conceded that the Court would have reservations about this drug use by the father, whilst submitting that his ability to work consistently should be taken into account.

7. The father has not smoked with the children in his care and I accept he would not do so during future periods of time with one or both of them. He asserted that if Y came to live with him he would give up smoking. I accept he has that intention but cannot accept that such a change could so easily be made and sustained. The father did not say that he had given up in anticipation of Y living with him.

8. He denied driving after drug use and proposed that he would rely on his partner or call the mother if there was an emergency when he had been smoking.

9. It could hardly be described as satisfactory. The best outcome would be that the father gave up use of an illicit drug, but with medical assistance to manage the conditions, both physical and psychological for which cannabis is currently used.

10. The Court is conscious of the fact that the drug is now prescribed in some situations such as that of the father.

11. The father was impressive when discussing the children. He spoke of staying calm and redirecting and of talking to the children not reacting to their behaviour. He was insightful about Y probably telling both parents what she thought they wanted to hear.

12. He had reflected on separation of the siblings and expressed the opinion that although he would willingly have both of them he thought that if it were to be Y only, she would thrive.

13. The father referred to a degree of abuse of Y by X. School records include a form[19], filled in by the mother in June 2015, about how X got attention at home:

    … will start an argument with younger sister at times with hitting her.

    X was also described by the mother in this way, if his routine was disrupted:

    … yells screams throws objects cries runs into room or back yard.

    [19] Exhibit 18.

14. X has no doubt been a difficult child for the parties to manage. Y has probably suffered as a result.

Ms G – the father’s partner

1. Ms G impressed as an open and thoughtful person.

2. She confirmed knowledge of the father’s drug use, accepted it as his choice, but probably would prefer it did not happen, “I don’t associate myself with it.”

3. I accept that Ms G is supportive of the application by the father and is independently fond of the children herself.

4. She described with considerable insight the event when X left her car by getting out before she could stop.

5. She also described the routine she had developed for Y returning to her mother which helped the child to regulate her own feelings.

6. I consider that Ms G has a great deal to offer both children and would not undermine the relationship with the mother if Y was living in her household.

The Family Consultant

1. The family consultant expressed the view that Y could successfully move to live with the father but not both children.

2. Her main concerns was the focus of the mother on the mental health of Y in the sense that she interpreted her behaviour as evidence of mental illness. She was also concerned that Y was being scape-goated in the mother’s household.

3. The family consultant stressed that Y had missed seeing the father and that if she moved to live with him she should be given the chance to stabilise in the father’s home before there was any conversation at all about identity

The Law

1. 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.

2. 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.

3. 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.

4. 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.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Section 60CC (3) 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

1. X is almost 16 years. There appears to be no dispute between the parties that in 2009 X was diagnosed by Dr K with Autism Spectrum Disorder and intellectual impairment. The father also reports Attention Deficit Disorder being diagnosed. The documentary diagnosis is not before the Court. X was then five years old.

2. The family consultant records that the mother reported the diagnosis being made in 2006, when X was two years old. It could have been an error of reporting or recording.

3. The oral evidence of the mother is that the Autism diagnosis for X may be reviewed.

4. X was bullied when he started school and was transferred, on the advocacy of the father, to L School for children with special needs. He has continued at that school other than for a period in 2017 when the mother had moved with the children to Victoria.

5. In 2013 there was reports of neglect arising from “both parents struggling to manage their children’s challenging behaviours.”[20] Both children had speech impairments not being dealt with.

   [20] Family Report dated 10/12/2018, para 49.

6. X became angry and upset with his father in September 2019 over a minor issue. Events followed which magnified X’s distress and he has resisted spending time with the father since. The mother has supported his resistance and sees no value to the relationship being repaired and restored.

7. Y is ten. She loves her father but has had to hide her feelings.

8. The mother has not in recent years supported Y’s relationship with the father although during the course of this trial the mother changed her position about that from no time at all with protective orders, to alternate weekends.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. Both children have had their most important relationship with the parties, the mother and the man they know as their father. That continues to be the case.

2. The relationship between the mother and her extended family was adversely affected by the events in 2016 involving the maternal aunt’s partner Mr C and Y.

3. It will be a matter for the mother to allow Y to spend time with the extended family other than Mr C if the family members will tolerate that.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. Both parties are very much engaged with the children. The mother has fluctuated between treating the children as exclusively hers but also wanting the father’s involvement.

2. The mother has not contended with the paternity issue for either child. The father has not gone against her wish to deal with that “in due course” although he has always held the view that the truth should be told.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. Both parties have financially contributed to the needs of the children. The father has not been legally obliged to do so but he acts consistently with his commitment to the children.

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

1. It will be a big life change for Y to live with her father. She will miss her mother and brother. However she will have the opportunity to be more at ease due to no longer concealing her feelings.

2. Y has a good relationship with both her father and his partner who is both kind and intuitive.

3. Y is likely to feel some relief from being challenged, even disciplined by the mother’s partner, who acts on his wish to support the mother but with little insight into his impact on the children.

4. Y will also benefit by having her situation in relation to prescribed medicine such as Catapress re-assessed and reviewed. The father would be well advised to consult Dr D and provide to her, his knowledge of the child as well as permitting the child to speak as freely as she wishes.

5. An order will be made for the treating psychiatrist for Y to have a copy of these orders and reasons.

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

1. There are limitations to the capacity of each parent to meet the needs of the children.

2. The father “self-medicates” to use his description, with marijuana most afternoons. He was frank about it and set out his pattern of use with some particularity. He has used the drug for about twenty years with occasional periods of abstinence when he has given up.

3. The father conceded that although he is capable of abstaining for periods of days or even months he relapses.

4. The father acknowledged that his capacity to meet needs especially urgent needs of a young child would be impaired when he was affected by the drug, that he is at risk of losing his driver’s licence if he did drive affected and that obtaining the drug could expose the children to the criminality of its use through sellers or the arrival of police at the home.

5. The father suffered through an abusive and traumatic childhood including periods of time in State care. He may have underestimated the damage done to him and the need to address the historical matters which have given rise to daily self-medication.

6. There is another basis, namely a painful medical condition of the father.

7. The father is routinely affected by marijuana, from his perspective in a positive way, in the early evening after work. He is in his own view more relaxed .Risk associated with being less responsive or available is ameliorated by the presence of the father’s partner.

8. The mother regards Y as a child suffering mental illness. The medical practitioners including a child and adolescent psychiatrist, Dr D, of course rely on the information given to them by Y and the mother. Y is medicated to modify her mood and behaviour.

9. On 13 January 2020 the mother told the psychiatrist that Y had stopped seeing her father last year and had been “much more settled with no agitation or aggression.”

10. After seeing Y alone the psychiatrist noted “Y alone says she likes visiting her father denies feeling scared with him”.[21]

    [21] Exhibit 15.

11. In June 2018 the mother took Y to M Hospital for “mental health concerns”.[22] No abnormalities or even any problem was identified.

    [22] Exhibit 17.

12. There is a real and serious risk that the mother interprets the child’s reactions to herself and Mr H as evidence of behavioural disorder and mental illness when it may be that she is actually feeling unhappy, misses her father resents her stepfather and suffers a bit of rough treatment from her brother.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The identity of the father of each of the children is as follows:

The Child X

1. The birth certificate of the elder child is blank in respect to details of a father. In the course of this litigation the mother has given conflicting evidence about X’s paternity.

2. In an earlier affidavit[23] the mother told a story which was untrue about falling pregnant after a sexual encounter with a man she had not met before and whose name she could not remember.

   [23] Affidavit of the mother filed 3/09/2018, para 4.

3. In her oral evidence the mother conceded that the story was fabricated “My Mum and I decided to tell that story.”

4. In her trial affidavit the mother asserted that the father is Mr N a man with whom she had not had contact since 2003.

5. That story was partially true. The mother had been living with Mr N in a de-facto relationship.

6. The father asserted that when he started living with the mother in 2004 X was a few weeks old. He did not  know who the father of the child was, but was told by the mother that the name of the father was “Mr O” that he was “cognitively impaired” and that the mother had applied for an AVO for protection from him.

7. The significance of this evidence is not the untruthfulness of the mother in these proceedings, but the fact that the mother has been unwilling to tell X about his biological identity and has given the issue of his ignorance about that very little thought.

8. When challenged with the inevitability of X seeing his Birth certificate, blank as to his father, that he would wonder why, the mother was dismissive “haven’t thought about it.”

9. When pressed about how the mother thought X would react the mother said:

   He’ll be confused and upset, he’ll have questions that is why I’ll need professional guidance about it.

10. At trial X was not quite 16 years old. The mother has been content to let him believe that the father is his biological father knowing that he will find out that he is not.

11. The elder child is diagnosed with Autism and an intellectual disability. He does not enjoy unexpected events or changes to predictable routines. He is likely to feel upset with both parties over this issue.

The Child Y

1. The birth certificate[24] of the younger child records the father of the child as Mr P with an address in Country R. This man also known as Mr Q, and to the mother as “Mr S”, is apparently from Country T living in Country R. The mother met Mr S on the internet during a period of separation from the father and travelled to Country R to meet him. The child was conceived early in 2009.

   [24] Exhibit 5.

2. The combined evidence of the parties[25] strongly suggests that the mother intended to marry this man and to assist him to obtain a visa for travel to Australia.

   [25] Exhibits 10 & 11.

3. Those things did not happen. The mother asserts that she has not seen or had contact with Mr S since 2011.

4. Again the mother has not been candid with the child.

5. A photograph of Y was tendered into evidence.[26] The mother agreed that she looks like a child of Country T heritage.

   [26] Exhibit 9.

6. She also conceded that the child had asked about her looks. The mother told her that she was “like Grandad” [the maternal grandfather] who “darkens in the sun””.

7. The opportunity to introduce the truth of her paternity was not taken up.

8. This fact sits uncomfortably with the evidence of the mother that “It took me a year to get his [Mr S’s] signature on the birth record.” If the mother regarded it as so important to have the name of Y’s biological father on her birth certificate it is hard to understand why she has not told the child anything about it.

9. The younger child was said by the mother to have been diagnosed with globalised anxiety disorder and to suffer from significant mental health issues. There was no affidavit from any of the medical practitioners and counsellors treating/providing therapy to the children. The medical reports available about Y did not reveal a diagnosis.

10. Whatever the emotional state of Y, she will not be assisted by “finding out” that her biological father is a different person to the man she knows as her father.

11. During the relationship the father had told the mother that in his view the children should be told about their fathers but the mother’s response was “in due course”.

12. I conclude, having considered her conduct with both children, that the mother is reactive to events and dramatizes them.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. It is particularly important that X understands that he is welcome in the father’s home and that his wish not to presently spend time with the father has been respected by him. X has not been abandoned or rejected by his father.

2. The mother has come to see Y as a problem child with a multitude of medical issues. That is not to say that the mother does not love Y nor does it mean that she did not want to have Y living with her.

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

1. The mother has in the past claimed that in 2004 the father began perpetrating family violence. The mother alleged that, throughout their relationship, the father has thrown a lawnmower and has used knives as a fear tactic.

2. The father alleges throughout the relationship the mother perpetrated family violence towards him by throwing kitchen mugs and plates, hitting him and pushing him.

3. The father states Y disclosed that she does not feel safe in the mother’s care and is visibly distraught upon returning to the mother’s care.

4. The family consultant reported allegations by the mother of the father being physically abusive to the children and using drugs while caring for them and in their presence. The elder child reported to having sustained injuries due to physical abuse whereby the father grabbed him around the neck and dragged him along the floor. As well, it was reported that the father has punched the elder child in the stomach and face.

5. In November 2016 the mother states the father took the elder child’s Xbox remote, stating if the child wanted it back he needed to spend time with the father. When the children attended the father’s house, the father hit the elder child in the stomach (in a friendly manner). The elder child responded by punching the father and the father began to punch the child in the head. The younger child witnessed this event and hid behind the mother.

6. On 9 January 2017 an ADVO was made on a final basis to protect the mother from the father.

7. In March 2017, the mother and children relocated to Victoria where they remained for seven months.

8. On 9 January 2018, the final ADVO protecting the mother from the father expired. The mother applied for a further ADVO protecting herself and the children. The father consented to the ADVO being made, without admissions. Immediately following this, the mother ceased making the children available for time with the father.

9. On 4 April 2018 a Risk of Significant Harm (“ROSH”) report was received by the Department of Communities and Justice in relation to excessive discipline, medical neglect, risk of sexual abuse and psychological harm by the father.

10. On 6 April 2018 a ROSH report was made alleging severe family violence towards the mother including strangulation, whereby the father was incredibly violent and would escalate if he was unable to access the children.

11. On 28 July 2019 the mother states that the children were in the father’s care. The younger child had an episode and did not want to be returned to the mother as she feared for her safety and wanted to go to the police. The father took the child to the police station. The mother attended the police station and the police asked to come and assess the house as the child claimed abuse and neglect. The father also reported to the police that the elder child was entering the younger child’s room and touching her inappropriately. The police attended the mother’s house and reported no actionable concerns.

12. There is no doubt that the relationship between the parties was volatile with verbal abuse and attack, challenge and retaliation. There was also interdependence and shared love and concern for the two children.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. An order for change of residence will allow Y to maintain her relationship with the mother and her brother.

2. If the children remain living with the mother as they have, history suggests that time with the father will cease as it so often has.

Any other fact or circumstance that the court thinks is relevant

1. The father concedes that he is a user of marijuana. It is likely he will continue to be and orders are made on the worst case assumption that he will. The father asserts that he uses the drug medicinally and it provides good relief.

2. The father maintains employment and a personal relationship. He has concealed his drug use from the children.

3. Nevertheless the drug is an illicit drug which has attendant criminal consequences arising from its use and source.

Primary Considerations

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

Sexual Abuse of Y

1. On 10 June 2018 the younger child was admitted to hospital following an incident of self-harm. The child disclosed to a social worker that the father touched her private parts with his fingers underneath her clothes. The child reported that this had happened before.

2. On 27 June 2018 a JIRT interview was conducted with the child. The child made no clear disclosures, stated that nobody touched her private parts and that the father’s body touched her private parts but did not want to talk about it further as it made her sad.

3. On 13 September 2018 a JIRT interview was conducted with the father and Ms G. The father denied all allegations and stated he believes the child is being coached by the mother.

4. The investigation concluded and the allegations were not substantiated.

5. On 21 July 2019 Y disclosed to Ms G that the mother told the child to tell the hospital that the father raped her.

6. On Christmas 2017, the younger child disclosed that the father put slime on her thigh and private parts while she was having a bath. In his Affidavit, the father states he had made the child a slime bath at her request and scooped up a handful and put it over her shoulders. The father denies any abuse. It was alleged that the father would go into the bathroom with the younger child. The family consultant reports the younger child did not need assistance in the bathroom. The father explained to the family consultant that he was ‘checking for insects’.

7. The child is reported by the mother to be experiencing regular panic attacks in relation to the father and fears he will sneak into her room and steal her. It seems possible that Y has said something like that to her mother, but unlikely that the child was genuinely fearful that such a thing would happen.

Parental Responsibility

1. On behalf of the father it is submitted that whichever parent a child or both children live with, that parent should have sole parental responsibility. The very poor level of communication, worsening in the view of the family consultant, is the main reason for the submission. I accept that submission. An order for sole parental responsibility is made for each party with respect to the child in his/her care.

Conclusion

1. Orders are made for a change of residence for Y to live with the father.

2. There is some risk associated with the use by the father of marijuana as discussed in these reasons.

3. That risk is outweighed by the benefit which the father can deliver by providing a more emotionally stable life for Y and a release from being treated as a child disabled by mental health problems.

4. An order has been made for the children to have these orders explained to them by the ICL. It is particularly important that X understands that his father wants to see him and that he will be a welcome visitor in the father’s home and that both children understand that their relationship as siblings will continue.

5. Orders are made accordingly.

I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 15 May 2020.

Associate: 

Date:  15 May 2020