Neligan and Lassey - [2012] FamCA 257

FAMILY COURT OF AUSTRALIA

NELIGAN & LASSEY

[2012] FamCA 257

FAMILY LAW - CHILDREN – parental responsibility - with whom a child shall live and spend time – with whom a child shall communicate with – injunction - parenting proceedings concerning two children aged six and seven - where the mother has been less than honest and forthright with the Court – where the mother is in a relationship with a person listed on the Child Protection Register – where mother’s partner has an extensive record of criminal convictions – finding the mother’s partner poses an unacceptable risk of harm to the children and mother – mother’s history of commencing relationships with violent partners - where the mother is unable or unwilling to protect herself or the children from exposure to violence and psychological harm – evidence of the children being settled and well cared for in the father’s care - presumption of equal shared parental responsibility rebutted – orders sole parental responsibility allocated to father – orders for children to live with the father – orders for children to have supervised identity contact with mother four times per year and weekly telephone contact – injunction restraining mother’s partner to make contact with children

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B

APPLICANT:

Mr Neligan

RESPONDENT:

Ms Lassey

FILE NUMBER:

PAC

2010

DATE DELIVERED:

18 April 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

2 & 3 April 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Bale Boshov Lawyers
Mr Brogan

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Mr Squires

Orders

That all prior parenting orders are hereby discharged.
That the father Mr Neligan have sole parental responsibility for the children D born … August 2004 and C born … October 2005 (“the children”).
That the children live with the father.
That the father and the mother keep each other advised in writing (including email and text) of a current contact address and current telephone number.
That the children spend time with the mother on not less than four occasions per year at a Contact Centre and at times agreed between the parents and failing agreement otherwise in April, July, October and January; provided that the time is supervised in a professional Contact Centre with each period to consist of the maximum number of hours which is allowed by the relevant Centre and which may be in Queensland, if the children are living there, on one occasion per year.
In order to facilitate Order 5 the father shall provide to the mother in writing:
(a)Within 12 weeks of the date of these Orders the names and contact details of all proposed Contact Centres in New South Wales and Queensland.
(b)Not less than four weeks before each proposed visit:
(i)the name of the nominated Centre;
(ii)the date, time and duration of the proposed visit
AND
(c)The mother shall respond to the father by telephone, email or in writing confirming her intention to spend time (or not) with the children on each nominated occasion not less than 14 days before the proposed visit.
(d)On any occasion when the father does not receive such confirmation from the mother he is authorised to cancel the visit without further reference to the mother.
(e)Each parent shall do all acts and things necessary to complete assessment and approval as is required for use of the Contact Centre(s) proposed.
(f)Each parent shall share equally in the costs of attendance on each occasion at the Contact Centre.
(g)Each parent shall personally bear the costs of travel to the nominated Contact Centre.
The mother may forward to the children at the contact address provided pursuant to Order 4 cards, letters, photographs and gifts and in that regard the father may read or examine same and need not pass any item to the child in question if unsuitable in his view.
The mother may telephone the children each week and failing agreement otherwise on Wednesday between 6.00 pm and 6.30 pm and the father shall assist the children to receive those calls.
In the event that the mother fails to telephone on two consecutive occasions without prior explanation to the father then the telephone calls may thereafter only be made by the mother in accordance with Order 10 herein.
The mother may telephone the children on Mother’s Day; Easter Sunday and on Christmas Eve between 6.00 pm and 6.30 pm on each of those days.
The mother is restrained from bringing the children or either of them into contact in person or by telephone with Mr K born … 1983.
Pursuant to s 68B(1) of the Family Law Act 1975 (Cth) Mr K born … 1983 is restrained from:
(a)Making contact with the children D born … August 2004 and C born … October 2005 or either of them in person, by telephone and by any other means;
AND
(b)Entering or remaining in a school which the children or either of them attend.
NOTING that this is an injunction for the personal protection of the children and either of them which may give rise to arrest by Police without warrant pursuant to Order 68C of the Family Law Act 1975 (Cth).
The Independent Children’s Lawyer shall:
13.1Provide a copy of these Orders and Reasons for Judgment to the Proper Officer of the following organisations:
13.1.1Department of Family and Community Services, New South Wales;
13.1.2Department of Communities (Child Safety Services), Queensland; and
13.1.3Office for Children, Youth & Family Support, Australian Capital Territory.
13.2Forward a copy of this Order to Mr K at the last known address in records produced by subpoena.
The father shall:
(a) Advise the mother in writing of the following:
(i)the name of the school(s) the children attend and any changes to enrolment;
(ii)serious illness and injury of the children or either of them and treatment undertaken.
(b)To the extent that it is necessary, authorise the schools attended by the children to provide to the mother at her own expense copies of school reports and school photographs.
(c)Provide the schools attended by the children with a copy of these Orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neligan & Lassey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 59 of 2010

Mr Neligan

Applicant

And

Ms Lassey

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This is a dispute between two parents aged 32 and 27. They have two children of their three year de facto relationship (2003 to 2006). Those children are D born in August 2004 (7) and C born in October 2005 (6). The children live with their father and his partner in a suburb of Newcastle. The mother has a child aged 11 months to Mr K whom she has known since she was a young teenager. He is a person with an extensive criminal history. He was released from prison early this year. Despite vehement denials by the mother of there being any ongoing relationship between herself and this man, there is evidence which I have accepted, that she has been living with him since his release.

Procedural history

This dispute has narrowed and changed since the relevant documents were first filed. Final consent orders were made on 7 January 2010 in the Family Court. Those orders provided for:
·equal shared parental responsibility,
·residence with the mother;
·time with the father on alternate weekends, holidays and special times;
·exchange of relevant information;
·non-denigration orders;
·the use of a communication book; and
·weekly telephone calls for the benefit of the children and both parents.
On 30 July 2010 the father made an application in the Federal Magistrates Court for residence of the children.
Interim orders were made on 6 October 2010 by a Federal Magistrate transferring residence of the children to their father.
It was on that day that the mother filed her Response seeking orders on a final and interim basis that the children continue to live with her and that they spend supervised time only with their father. The mother also filed a Notice of Abuse on that day alleging that the father had both physically and sexually assaulted the children and had physically assaulted her.
On 9 May 2011 the father filed an Amended Initiating Application. He sought orders as follows:
1.      That the children live with him.
2.      That they spend time with their mother on alternate weekends, Mother’s Day, at Christmas and other times as agreed in writing.
3.      That there be weekly telephone contact with the mother.
4.      That the mother be restrained from allowing the children to come into contact with Mr K.
5.      Provision for exchange of relevant information.
6.      Non-denigration orders.
The mother did not amend her Response, although her stated position changed over time. She represented herself.
By 2 April 2012, the first day of final hearing, the positions were as follows:
The father:
·Sole parental responsibility.
·Residence with him.
·Mother to spend time with the children at a Contact Centre for two hours once per month, or per quarter if the children moved from New South Wales.
·A weekly telephone call to the mother.
·That the mother be restrained from allowing the children to come into contact with Mr K in person or by phone.
·Exchange of relevant information.
·Non-denigration orders.
The mother:
·Conceded residence to the father.
·Sought regular unsupervised contact with the children.
By the conclusion of the two day hearing the relative positions had changed again:
The father:
·Sole parental responsibility.
·Residence with himself.
·Two hours supervised contact between the children and their mother four times per year.
·No order in relation to telephone contact.
The mother:
·Shared parental responsibility.
·Telephone contact twice per week and on special occasions.
·The right to send photographs, letters, gifts and cards to the children.
·As much contact as possible.

The evidence

The father, Mr Neligan

The father relied on three affidavits as follows:
(a)Affidavit of the father sworn 21 July 2010 filed 30 July 2010.
(b)
Affidavit of the father sworn 6 September 2011 filed

7 September 2011.
(c)
Affidavit of the father sworn 2 April 2012 filed in Court on

2 April 2012.
The third affidavit contained updating evidence by the father of the possibility of a transfer for him to Town A, Queensland. The evidence is that the father was waiting the outcome of these proceedings before making an application for an employment position in Town A with a very high probability of successful employment. The father and in due course his partner Ms W, both gave evidence that they saw benefits for themselves and the children in the move to Queensland.
The father committed himself to paying for the children to travel to Sydney to see their mother in a supervised setting once per month, if he was required to do so.
After hearing the mother’s evidence, the father’s position changed, for reasons unrelated to the cost of travel. The father agreed that his main concern was the possibility of contact between his children and Mr K. Indeed, the fresh application in July 2010 was based on the father’s fears about

Mr K and his impact on the welfare of the children. His fears had greatly escalated after he learned from material produced in response to a subpoena to New South Wales police, that Mr K was listed on the Child Protection Register and that both children had previously been left by the mother in the sole care of this man. It was primarily for that reason that the children were moved to live with their father pursuant to the orders of

6 October 2010. Despite the restraint in those orders on the mother bringing the children into contact with Mr K, the father continued to be concerned for the safety of his children.
In his second affidavit[1], the father relates a conversation with his son D as follows:
[1] Affidavit of Father sworn 06/09/2011, par 14
[D]:     I saw [Mr K] at the shops.
On another occasion:
[D]:     We stayed at poppy GG’s house.
[Father]:                   Who’s poppy GG?
[D]:     You know [Mr K’s] dad.
I spoke to [the mother] about this and she said: Oh yeah. That’s [Mr K’s] mum and dad’s house.
Father:You know that you are not to put the children into any threat such as at [Mr K’s] parents’ house. Who knows? He could just turn up there.
[Mother]:No he won’t. His parents don’t like him and besides I’m good friends with his sister. Can’t I have friends?
On 28 July 2011 further orders were made suspending the orders for unsupervised time between the children and their mother. Thereafter, the children did not spend time with their mother for several months.
The mother had been representing that her relationship with Mr K was over and that she herself was making every effort to ensure that the children were kept away from Mr K. In fact Mr K is the father of the mother’s youngest child, B born in April 2011. Subpoenaed material produced by E Hospital revealed a document where the mother had nominated Mr K as the mother’s partner and as the father of her new born child. In her oral evidence the mother denied being the author of the document.
After the orders were suspended in July 2011, the children did have telephone contact with their mother.
At around the time of his birthday in August 2011, D spoke to his mother and subsequently reported to his father that “[Mr K] had been there.”[2] At that time the father said this:
I genuinely believe that [D] fears [Mr K]. I do not know the basis of this apart from what appears in the family report.
[2] Affidavit of Father sworn 06/09/2011, par 17
The father went on to express a fear that not only was the mother still in contact with Mr K, but was perhaps living with him.
There had been an incident reported by the father to police in Newcastle on

10 March 2011, where Mr K allegedly made rude gestures to the father and threatened him outside the Court on a day when the proceedings were before the Court.
Subsequently the mother conceded to the Family Consultant, Ms R, that Mr K was the father of her child B[3]:
She (the mother) smiled and said ‘I think we all know who it is, don’t we?’.
The mother then confirmed that Mr K was the father of her child.
[3] Report of Family Consultant 02/06/2011, par 39
The father was asked what would persuade him to allow the children to have unsupervised time with their mother. His answer was, “I’ve been misled a fair bit and its hard to trust.” Having heard all of the evidence, this response by the father can only be described as a restrained understatement.
The father mentioned in his oral evidence that the mother often missed placing calls to the children as she was entitled to do, between once or up to four times per month and that the children asked him why their mother had not called and were obviously disappointed. I formed the impression that the father is well engaged with his children, interested in them and concerned for their safety. He has operated on a policy of not intruding into their relationship with their mother, but has let them tell him whatever they wished. He has not asked questions.
During the hearing the mother confirmed episodes of violence between herself and Mr K during 2011, one of which involved a frightening level of violence and subsequent injury. This information about the level of violence between the mother and Mr K, apparently heightened concerns of the father about what his children had been exposed to in the past.
The father was a thoughtful witness. He expressed surprise when told that his children had mentioned missing their maternal grandparents. When asked whether the grandparents could come to the contact centre during supervised visits, his answer was, “Not straight away. The children need to re-establish a relationship with their mother before the crowds can come”.
I consider that the father does understand the significance of the relationship between the children and their mother and the feelings of loss they have experienced; first when there was a change of residence in October 2010 and even more so after July 2011, when face-to-face contact ceased entirely for many months.
The father was frank about the character of the relationship that he had had with the mother, he denied physical violence, but referred to “yelling and screaming matches.” He has completed a parenting course with Relationships Australia. Further he took up the recommendation of the Family Consultant[4] and has arranged for counselling for the children each Tuesday through their school. His comment was that this had helped D with his situation and how to deal with his feelings. He took both children for vision and hearing tests when they came into his care. A problem for D was identified with his vision, reportedly as a result of too much close focus on computer games.
[4] Report Family Consultant 02/06/2011, par 136
The father has arranged for the children to be involved in appropriate activities; dancing for C and cricket and soccer for D on a seasonal basis. He was careful to ensure that the time at the Contact Centre with the mother fitted in with the children’s activities.
The father was also, in my view, candid and frank about an incident which gave rise to the allegations of assault by the mother. He described having “zapped the kids” with an electric barbeque lighter. He said he had zapped the children on their fingers in a playful way which he soon realised had been a mistake. The children then started zapping each other. Ms W removed the lighter, put it on top of the fridge and I accept that that was the end of the incident. I consider that when the children repeated this story to their mother, it was used opportunistically as a criticism of the father and elaborated into being sexual in its intent, although the mother never really pursued this aspect of her allegations.
The father expressed his willingness to supervise contact between the children and the mother himself if it was necessary and offered that his partner would do the same if necessary.
The father’s evidence was first in time and he referred to perhaps there being two hours four times a year in a child friendly venue, “something secure with cameras”, such as McDonalds. He expressed the view that he would like to see the children spend time with their mother, provided it was supervised or at a facility.
The father described one incident which became significant at Christmas 2011. The father said that the mother rang to speak to the children on Christmas day. The telephone was passed to C who subsequently told Ms W that Mr K had come onto the line. I will refer to this incident further in these reasons. C is said to have reacted with shock and fear on this occasion. D also reported to his father, as recently as a month ago, that Mr K had spoken to him on the phone and that he had felt frightened.

The father said that once he had learned that there were other people speaking to the children he had put the phone calls on loud speaker. As was revealed by the evidence, there has been every opportunity for Mr K to speak to the children by phone when their mother makes contact. The fears of the father that the mother has not been candid about her relationship with Mr K have been entirely well founded. I am satisfied that the father has done everything in his power to protect the children and to shield them from harm, but yet to promote their relationship with their mother as best as was possible.

Ms W

Ms W relied on the following document:
·
Affidavit of Ms W sworn 6 September 2011 filed

7 September 2011.
Ms W is 30 years of age. She met the father in mid 2009 and they began living together about one year later. Four months later D and C came into the household as permanent members. Ms W took this in her stride and is now an important person in the lives of the children. Ms W is a manager for a large company and works full time. She has adjusted her working arrangements around being able to assist in the care of the children.
In her oral evidence Ms W expressed enthusiasm for the proposal to move to Town A in Queensland. She was optimistic about being able to work for her current employer in Queensland or else finding similar work. I accept her evidence that she would not work full time straight away and would allow time for the children to settle in to their new life.
Ms W referred affectionately to both children in her affidavit and in her oral evidence. She referred to two incidents of concern in relation to the children and Mr K. The first was on 19 August 2011.[5] When D was speaking to his mother on the mobile phone she says this:
[D] looked at us with a frightened look on his face and said ‘[Mr K’s] there’.
[5] Affidavit of Ms W sworn 06/09/2011, par 20
In her oral evidence she referred to Christmas Day when the family was staying with the father’s parents in Town F. She said C was sitting on her lap speaking on the phone to her mother. Ms W heard a male voice say, “Hello”. She then said this:
[C] tensed up on my legs, said ‘[Mr K’s] on the phone’ twice.
D also told her that he thought he had seen Mr K outside his school early last year (2011).
I was impressed with the evidence which Ms W gave about the children calling her mum, especially C. She said it had begun early in 2010 and at first she had ignored it. She did not want to pull C up. She spoke to the father about it. She reports that he responded that the children were obviously comfortable with calling her by that name, effectively not to worry. Ms W went on to say: “You just can’t say to a child you can’t call me mum” and spontaneously, “I love them to death”.
I accept that Ms W does love the children and is committed to their welfare and that she is not in any way trying to exclude the mother from the lives of the children. She is however doing everything that a mother does for children. She looks after them, takes them to school and collects them, helps to supervise their homework, feeds them, is engaged in their extra-curricular activities and supports them in their role with their mother.
There was expert evidence by the Family Consultant Ms R on this topic. Ms R expressed a strong view that the children should be redirected when they call Ms W mum and reminded that she was not their mother, that she was “[Ms W’s given name].” Both the father and Ms W heard this evidence. However, I do not propose to make any order which restricts their conduct in this regard. I am satisfied that Ms W and the father will be sensitive to the children’s needs, will not attempt to eliminate the children’s memory of the mother, or to confuse them about who their real mother is. However in circumstances where Ms W, as a step-mother, will be effectively raising them, I do not consider that there is any need for the Court to intervene in the parenting decisions made around this issue.

The mother, Ms Lassey

The mother relied on the following documents:
1.        Affidavit of the mother affirmed 5 October 2010; and
2.        Affidavit of the mother affirmed 25 October 2011 filed


31 October 2011.
The approach of the mother to this hearing was remarkable. She attended on the first day late and with her 11 month old daughter, the child of her relationship with Mr K. She had no one with her who could assist with the care of the child. Emergency arrangements were made for the child to be cared for in Court facilities. The mother had brought none of the relevant documents to Court, not so much as a pen and paper. It could not be the case that the mother did not understand what would be required. As stated there is an extensive history of litigation in the matter. The children had been moved into the care of the father on 6 October 2010. Accordingly for 18 months, the mother had been aware of a final hearing to determine where the children would live on a final basis and what the arrangements would be for their care and best interests.
On 14 January 2011 the order was made for the matter to proceed in this Court pursuant to Div 12A of the Family Law Act 1975 (Cth) (“the Act”).
On 10 March 2011 by consent, an order was made for the preparation of a family report. On that same day provision was made for the mother who has been self-representing throughout these proceedings, to inspect documents produced by JIRT with the assistance and presence of a solicitor from a community legal centre.[6] It was noted at that time that the mother was expecting a child in June 2011. The mother advised the Court that she did not know who the father of her child was.
[6] Order 2 made 10/03/2011
On 19 July 2011 the order which formed part of the orders made by the Federal Magistrates Court on 6 October 2010, for time to be spent by the children with their mother, was suspended.
On 28 July 2011 the matter was listed for final hearing. The mother’s mother and step-father were present at Court indicating an interest to being joined to the proceedings as parties. Provision was made for them to do so with a note that if they did not become parties, the Court would assume that they would be witnesses in the case of their daughter, the respondent mother[7].
[7] Order 2 made 28/07/2011
A copy of the Child and Parent Intake Assessment and first report by the Family Consultant was provided to the maternal grandparents at that time. An order was made for the mother to spend time with the children supervised at a contact centre, with provision for private supervision provided the supervisor was aware of the risks of the children being bought into contact with Mr K[8].
[8] Order 7 and Notation par 8 made 28/07/2011
On 20 September 2011 the mother appeared unrepresented. She had not filed an Amended Response, she had not filed an affidavit, her parents had not become parties and had not filed affidavits in support of her application. The matter was adjourned on the application of the mother with the father’s costs reserved and provision was made for the matter to proceed undefended if the mother had not filed her material by 31 October 2011.
On 31 October 2011 the mother filed her own affidavit.
On 8 December 2011 the matter was listed before me and set down for final hearing for two days commencing on 2 April 2012. The mother was given leave to produce evidence of any courses of education she had undertaken pursuant to the specific recommendations of the Family Consultant in her report released on 2 June 2011. On that date the children had not seen their mother since the orders for contact were suspended in July. The mother had not proposed anybody as a supervisor and was inclined to attribute blame to the Contact Centre for not returning her calls. An order was made for the preparation of an updating family report.
On 15 February 2012 the updating report was released. The recommendations in that report could be expected to have given rise to both concern and activity by the mother. Those recommendations included sole parental responsibility for the father and the possibility of identity contact only, if the Court could not be satisfied that the mother would protect the children generally, and in particular from Mr K. However she came unprepared and had not read any of the subpoenaed material.
The oral evidence of the mother was that she was living in Canberra with her father, that she was staying with him to look after him because of his ill-health and that she returned to Sydney each weekend to work in a shop from 5.00 pm to 10.00 pm on Friday and from 5.00 pm to 9.00 pm on Saturday. She would then return to Canberra by car. Her baby daughter travelled with her.
From the outset of her oral evidence, the mother denied having any relationship with Mr K, “I don’t have one (a relationship)”. She said that she had last seen Mr K before Christmas, that he had contacted her a couple of times from gaol, but that she had not seen him since. The evidence established that Mr K was in gaol from 10 September 2011 until the end of January 2012. The reason for his incarceration was as a result of a most serious assault on the mother.
The proposition was put to the mother that she had been going to the gaol to visit Mr K. She said that was incorrect. Her evidence in her second affidavit was as follows[9]:
I agree that the children should live with the father. I also agree that the children should be safe. [Mr K] is the father of my youngest child and I do allow him to have contact with his daughter. [Mr K] is in [gaol], all contact is supervised.
[9] Affidavit of Mother sworn 25/10/2011, par 24
When the apparently uncontroversial proposition was put to the mother that she had taken B to the gaol to visit Mr K she denied it, “I never did.” She was reminded of what she had said in her affidavit. She said she could not remember what she had said in her affidavit.
This was the beginning of a pattern in the mother’s evidence. She denied the truth of several statements made in her own affidavits. She denied having made statements attributed to her in the family report, for instance, in the second report the mother denied that she had told Ms R that she took the child B to the gaol to visit her father and she denied that it was her view that taking B to see her father in that way was the right thing to do.[10] Her response to being taken to this passage was simply to say, “She’s wrong, I didn’t say that, that’s not something I would say to her”.
[10] Family Report 15/02/2012, par 34
The mother was reminded that she had left C in the care of Mr K during the time that she lived with him, after separation from the father. When asked whether it had been appropriate to leave C with him, the mother said: “It wouldn’t have been if he had gone on the register for a sexual offence.” It was common ground that Mr K is on the Child Protection Register. The mother appeared quite scornful about Mr K being on the register.
The criminal record of Mr K was in evidence.[11] He was charged with sexual assault as a young person just under the age of 16 years, the assault being on his six year old sister. This was in 1999. The mother apparently took exception to the idea that the reason why Mr K had been put on the Child Protection Register did not directly relate to a sexual assault. It is difficult to comprehend why the mother took that stand, given that she had seen the criminal record, which extends to 16 pages and contains many offences of assault, intimidation, stalking, violence and other anti-social conduct. She was defensive of Mr K, despite denying having any relationship with him (other than the inescapable fact that he had fathered her child born in April 2011).
[11] Exhibit ‘3’
The mother denied “having been in a relationship” with Mr K when she was 13 or 14 years old in 1998 to 1999: “Well someone’s got it wrong.” She later conceded that she had been a member of Mr K’s household at that time on the basis of being his girlfriend.
The mother was questioned about a violent incident in 2001 when Mr K had attacked and threatened his sister, had threatened the mother with a knife and dragged her out of the house. She agreed that Mr K had threatened over the telephone to kill her in 2010. An incident in 2003 where Mr K is reported to have stalked the mother, grabbed her and dragged her towards train tracks, the mother asserted she did not remember.
The mother was again asked about the time she left her young daughter C with Mr K. Her response was, “I thought he’d changed a bit or so he said.” It was a compelling example of an observation made by the Family Consultant in her report of 15 February 2012.[12] Ms R said this:
It is of great concern that the mother continued to visit [Mr K] at [gaol] after he assaulted her in October 2011.
It is the Family Consultant’s view that the mother has very little understanding of family violence and coupled with her ten year history of reconciling with [Mr K], there is a strong possibility that the mother will continue her relationship with him and/or allow [Mr K] to have access to their daughter because she feels ‘it’s the right thing to do’, rather than prioritising the needs and safety of the children above trying to [meet] the needs of [Mr K].
Ms R went on to say:[13]
If the mother does move home (as reported by her) and is able to keep her address private from [Mr K], then this will provide a level of safety for the children. If [Mr K] breaches the current AVO and the mother demonstrates an ability to follow through by reporting the breach to police, then this may show that the mother has some capacity to protect the children.
[12] Updated family report 15/02/2012, par 67
[13] Updated family report 15/02/2012, par 68
The mother in fact moved to Canberra and attempted to persuade the Court that she had not had any contact with Mr K since he left prison and had no relationship with him. There was evidence which I accept, that in fact Mr K was living with her in her father’s home in Canberra and that she quite deliberately concealed that fact from the Court, including from

Ms R in her interview for the second report.
There is a current Apprehended Violence Order (AVO) in place for the protection of the mother from Mr K.[14] However, far from the mother reporting a breach of this Apprehended Domestic Violence Order (ADVO), she simply resumed her relationship with Mr K when he was released from gaol. The strong possibility identified by Ms R of the relationship continuing, was soundly based. It was in fact continuing at the time of the interview.
[14] Exhibit ‘6’ – AVO dated 13/07/2011 (12 months duration)
The mother was asked about the incident she alleged occurred in May 2010, which gave rise to the Notice of Abuse she filed identifying sexual and physical abuse by the father on the children. This incident is set out in the first affidavit.[15] On her evidence in her affidavit, the mother was at work when she was called by Mr K and a friend, Ms G, who were at home apparently looking after the two children. The information said to have been supplied was second hand hearsay on what the children are said to have reported. The children were subsequently interviewed by the JIRT team and no further action was taken. The mother was asked why there was no supporting affidavit by Ms G, her response was: “I wasn’t talking to her (Ms G) by that time.” I am satisfied that an incident of play that was reported by the children was used by the mother with the assistance of Mr K, as an excuse for reporting misconduct and withholding the children from time with their father.
[15] Affidavit of Mother sworn 05/10/2010, pars 12-26
The assessment of the Family Consultant is that D has been traumatised by Mr K and the violence between him and the mother. Both children have reported physical abuse by Mr K and terror at being present during scenes of violence.[16] I note that D reports the following[17]:
[Mr K] told us we had to keep it (the smacking) a secret but I couldn’t. I came out with it.
[16] Family Report dated 02/06/2011, pars 69-72 inclusive
[17] Family Report dated 02/06/2011, par 70
I am unable to make a positive finding about it, but it does seem likely that one reason the mother wished to suspend time between the children and their father was to avoid the children reporting on the violence in her household inflicted by Mr K, both on her and the children.
The mother was taken to inconsistencies in her own evidence. For instance in her first affidavit,[18] the mother set out her routine whilst living with the children and Mr K:
Our day starts by [Mr K] taking [D] off to school at about 8.30 am to 8.45 am. [C] will generally get up a bit later and I will stay at home to make sure she is attended for when she gets up.
[18] Affidavit of Mother sworn 05/10/2010, par 36
In her later affidavit she says this:[19]
I did ask [Mr K] to mind [C] while I was a short distance away at the doctors with [D]. [D] has never been alone with [Mr K].
[19] Affidavit of Mother sworn 25/10/2011, par 13
The proposition was put to the mother that her evidence was entirely inconsistent, her response “to an extent I suppose” was as close as the mother ever came to a concession.
The mother was taken to her inconsistent statements about the paternity of the child B.[20]
[20] Affidavit of Mother sworn 25/10/2011, par 16
The father had referred to the suspension of orders for the mother to see the children and then said this:
This was as a result of an oral application made by my solicitor based on subpoena material produced by [E Hospital] indicating from their records that [the mother] had nominated [Mr K] as her partner and that he had been present with her at various times at the hospital in relation to their new born child [B].
The mother responded:[21]
I agree that I nominated [Mr K] as the father of my new born child, he is. [Mr K] attended the hospital on admission and did not attend thereafter. On the one occasion I did leave the hospital, I was in the company of a friend’s partner [Mr S]. I am aware that the hospital records indicate that I left with my partner. This is not correct. It was [Mr S].
[21] Affidavit of Mother sworn 25/10/2011, par 16
The mother then agreed that she had told the Court in response to my question on 10 March 2011, that she didn’t know who the father of the child was. In her oral evidence, she said that it had taken awhile “to figure it out.” Likewise, in relation to records at H Hospital, the mother was shown a form where Mr K’s name was filled in on 28 April 2011 as her partner. The mother said that he had filled out the form and she could not explain why he had done that.
On 3 May 2011 there was a hospital record where her partner was recorded as “[given name] [surname]”, with the same mobile number as Mr K. The mother was asked to explain that. She said she had no idea. The proposition was put to her that the given name was the name of her own brother and the surname was the surname of Mr K’s sister. The mother did not respond other than with, “I don’t know, I can’t explain.” She could not explain who the recorded name was. The statement in the records that “baby going home with dad”, the mother explained that that was her dad, “my step-father.”
The mother’s evidence on these issues was patently false. I had the very strong impression that she was struggling to reconcile previous statements in whatever way might gain her an advantage in the proceedings. She conceded that when she had told the Family Consultant in June 2011, that she did not think that Mr K even knew that their child had been born, that that statement was wrong. The next matter that the mother was taken to was her assertion in her affidavit:[22]
[Mr K] did not stay over at my residence but did visit his daughter on two occasions, there was no inappropriate behaviour by [Mr K].
[22] Affidavit of Mother sworn 25/10/2011, par 25

The mother was taken to two incidents, one on 4 July 2011 and one on

10 September 2011, where police records revealed the following:
On 4 July 2011 police notes state that the parties had been in a domestic relationship for 14 months, that [Mr K] had squeezed and twisted the mother’s arm and said to her in the presence of others in the club where the incident took place, ‘I don’t give a fuck who’s around.” He was unsteady on his feet and apparently had had six to eight alcoholic drinks. [B] was being minded the mother said at a friend’s address 7 to 10 klms away. She asserted that the friend and the friend’s mother had minded [B] from about midday until 8.30 pm. When the mother returned to the property to collect [B], the father [Mr K] was present. The police were called, there was an AVO which endures.
On 10 September 2011 at Town Z, police records note “The parties have been in a domestic relationship for 18 months.” This is consistent with an earlier report. The mother had attempted to enter her own home for her purse to go shopping. Mr K and their child B were in the home.
I quote from the facts sheet[23] as follows:
The accused ([Mr K]) was very angry. He opened the front door, reached out his left arm and grabbed the victim (the mother) by the hair on the right side. The accused dragged the victim through the door into the house and about two metres further towards the lounge. The accused let go of the victim’s hair and hit the victim to the left side of her face with a half closed right fist causing the victim pain. The accused punched the victim with a fist to the right side of her head then punched the victim twice to the front left rib cage. This caused the victim to keel over and fall to the floor. The accused stomped on the outside of the victim’s right foot causing immediate pain and swelling while the victim was laying on the ground. The accused then stopped the assault. Throughout this incident the accused was in a rage and the victim feared for her safety and the safety of the infant. The victim managed to get out to her car at the front of the premises and contact 000. The accused saw the victim was on the phone and has picked up the infant, taken her to his vehicle […], a red Nissan […], and driven from the location. Police were alerted to this incident and attended the address, the victim was taken to hospital by Ambulance for treatment of her injuries, which were all soft tissue injuries. Police patrolled the area for the accused vehicle and sighted it leaving the [M Hospital] where it was stopped and the accused was placed under arrest.
[23] Exhibit ‘11’
After having been cross-examined about these two incidents, the proposition was put to the mother that her statement that there had been no inappropriate behaviour by Mr K was wrong. Her response, “I suppose there was on one occasion (pause) out of two.” This was a reference to the mother’s stated view that there was no inappropriate behaviour towards the child B.
This evidence and the mother’s response, is at the heart of the problem in this case. The mother was desperately defensive of Mr K and his drunken violent behaviour. The child B was clearly at a high level of risk during this incident and immediately after it, when her father immediately after such a violent attack, drove off with her in his car. It does not seem too strong a statement to say that B’s life was at risk at that point. That the mother did not take the opportunity to acknowledge the risk, acknowledge the harm and also acknowledge the ongoing relationship, put an end to the possibility of the Court reposing any confidence in the mother’s ability to protect the children in question and to put the interest of any of her children first.
The pattern continued in every way. The mother was asked about a record from Probation and Parole dated 4 January 2011, where it is noted that she had accompanied Mr K to a Probation and Parole meeting. She said, “No, I don’t think so.” Shown the entry where it says “accompanied by his partner [the mother’s given name]”, her response was, “I must have if he’s put it down.” She said the reason she went along was because Mr K had asked her to. Apparently Probation and Parole had asked him to ask me to go, “someone rang me.” The mother agreed that she had not said anything to the person who had rung her about the relationship having broken down and that there would be no apparent reason why she would accompany Mr K. It is quite clear the relationship was ongoing.
On 11 September 2011, the day or the day after Mr K was incarcerated in gaol, there was a questionnaire giving the mother’s name as the de facto partner. Again her response was, “I can’t control what he writes, I don’t know why he’d do that”.
The mother was unable to explain why the police repeatedly made contact with Mr K through 2011 at his Sydney Suburb J address and that there was no one ever there. She was unable to explain why in July he was present showing his new baby daughter to others. She continued to deny the relationship, to deny contact, to deny knowledge.
On another topic the mother conceded that there had been a relationship with another man, Mr N, who had also gone to gaol and who had made threats towards her from gaol. When asked why he had gone to gaol the mother said she did not remember.
There was significant evidence by the Department of Family and Community Services about the safety of B. There was concern that B was not safe at the mother’s residence and that she had been left with Mr K’s sister. This is the sister who Mr K had assaulted when she was six years old. She is now 20. The mother denied any knowledge of Mr K’s sister’s history of self-harm and drug use, although she had known her since she was five years old.
An order was prepared for the removal of B, although the Department did not in fact remove the child, for reasons which are not entirely clear, but relate, at least to some extent, to the mother’s assurances that she was no longer in a relationship with B’s father.
The mother gave evidence about the incident of the Christmas phone call. She said that she was not able to ring the children on that occasion because she was in hospital with her father. This is inconsistent with the evidence ultimately given by her father, which I will come to later in these reasons.
The mother continued to be dismissive about the dangerous risk that

Mr K has represented to all three of her children. She was certainly dismissive about the assault in March 1999 by Mr K of his six year old sister. Having read the details of the assault,[24] she conceded that “that’s what was written down.” Details which included Mr K forcing his sisters hand onto his penis and causing her to stroke it. The mother said that she had heard something of this story from Mr K’s older sister, that she had asked his mother, his younger sister the victim of this assault, and Mr K himself and had been told that nothing had happened, that his younger sister had lied, “the whole thing was a pack of lies.” The mother appeared to find the story amusing. She clearly saw no future danger to C or the baby B, or if she did, she was not prepared to concede it in any way such was the intensity of her defence of Mr K. She repeatedly said that she “couldn’t remember” many of the things that were put to her, including quite a vicious attack on her by Mr K in the early stages of their relationship, when she was a teenager and he held a knife to her throat. “I can’t remember there’s a lot I can’t remember.”
[24] Exhibit ‘2’
It may be that the mother has been so traumatised over the last 10 to 15 years that she is unable to remember specific events. It may be that she remembers quite clearly and denied remembering because it did not assist her to acknowledge it. I am unable to accept anything the mother said without corroborative material.
By the end of her evidence, the mother did say that she understood why the Court would have concerns about her ability to protect children from any of her violent partners. Even in respect of this concession, I am not confident that it was anything other than a decision that that was the right thing to say in the moment.
At the conclusion of the mother’s evidence I asked the mother whether she was prepared to provide telephone numbers for her mother and step-father in Sydney and her father in Canberra, to the Independent Children’s Lawyer so that those persons could be asked to give evidence. She said she was. In fact the mother was unprepared to give the phone number for her father in Canberra. When directed to do so she did provide the number and Mr Lassey was contacted on the Court’s own motion to give evidence.

Mr Lassey

Mr Lassey is the maternal grandfather. His evidence was that his daughter and granddaughter B had been living with him since Christmas time and had done so continuously until Thursday, 29 March 2012, when she “went up to Sydney to get ready for this Court case.”
Mr Lassey reported that he had been told by his daughter that the reason she had come down to stay with him was that she wanted to get away from Sydney, she had had enough of it. He had been expecting her on Boxing Day but she arrived on Christmas Day 2011 in the evening, about tea time. To the best of Mr Lassey’s knowledge she had taken no trips back to Sydney throughout that period and had had no paid employment since Christmas.

Mr Lassey described a variety of painful health difficulties. He is an amputee, suffers from sleep apnoea, suffers from “bad lungs due to smoking” and has recently had surgery in hospital for his ankle. He was hospitalised between 13 and 26 March 2012.
Mr Lassey’s belief was that his daughter had come to stay with him permanently. This was the preliminary evidence of Mr Lassey in response to questions by me.
He was then questioned by the solicitor for the father and said that he was in regular contact with his daughter prior to her moving to live with him, by phone calls and text messages at least five times a week, usually every day. He said he had had very little contact with Mr K in 2011 and that he tried not to pry into his daughter’s business.
Mr Lassey was then asked questions by Counsel for the Independent Children’s Lawyer. When asked whether he had met Mr K,

Mr Lassey said he had seen him last Thursday (29 March 2012) because he had come to the house and stayed a couple of days; that he had been to the house before. In fact that it had been Mr K who had brought his daughter and granddaughter to his house on Christmas Day and that he had stayed thereafter until last Thursday.
Mr Lassey was asked about Christmas evening. He said that his daughter had placed a call to the children, that he had left the room and left her alone to do so as he didn’t want to eavesdrop on her. He was unable to say where “[Mr K] and [B] were.” He expressed the view that his daughter did not see her older children D and C often enough anyway and he didn’t want to intrude himself into the short time that she had with them on the phone.
Mr Lassey said that he was expecting the mother and Mr K to be back with him the following day, i.e. 4 April 2012. He didn’t know whether Mr K would continue to stay or might go back to Sydney. He described him as quiet, gentlemanly, “he doesn’t cause any trouble is quite good, I can’t fault him.” Mr Lassey conceded that he knew Mr K had been in gaol several months ago, he wasn’t sure why and “I don’t poke my nose into their business”.
Having given that evidence to me, Mr Lassey was then questioned again about his recollection of Christmas night. He conceded that his memory could be faulty and he was now not sure whether Mr K had been present on Christmas night or not. In answer to a question from counsel for the Independent Children’s Lawyer that it could have been the Australia Day long weekend, he agreed.
I formed the impression that Mr Lassey was an honest witness, who had made a genuine attempt to assist the Court. He was asked to do so without any prior notice at all. He had nothing to gain by giving the evidence that he did. At the conclusion of his evidence and when the telephone call to Canberra had been terminated, Ms Lassey who had declined the opportunity to ask her father any questions while he was on the line, expressed the view that her father was old and confused, asking me to infer that I could not rely on his evidence. The mother displayed frustration and anger whilst remaining polite, whilst she expressed this view.
I accept the evidence of Mr Lassey which enabled me to come to the conclusion that the mother had been deliberately lying about the state of her relationship with Mr K, that in fact she had been living with him in her father’s home since his release from gaol in January 2012 and had made every effort to avoid disclosing that fact to the Court.
During the course of her evidence, I had asked the mother why it was that there was no relationship between herself and Mr K, given that she had visited him in gaol and had taken B to visit him in gaol (noting that during the course of these proceedings she denied having taken B). The mother said there was nothing different other than he had been released from gaol. When asked whether she was misrepresenting the relationship in order to achieve unsupervised time with her two older children, her response was revealing: “That’s not the sole purpose I don’t want the involvement of services for [B].” The subsequent evidence of her father was consistent with this statement.
There is evidence of an order prepared in May 2011 by the Department of Family and Community Services for the removal of B. Clearly, the mother fears losing the care of her youngest child. I consider that it was for that reason in addition to wanting unsupervised time with D and C, that the mother lied and misrepresented the position about her relationship with Mr K.

Ms R, Family Consultant

Ms R has prepared three documents in relation to the family:
1.        Children and Parents Issues Assessment dated 10 November 2010.
2.        Family Report dated 2 June 2011.
3.        Family Report dated 15 February 2012.
Ms R was told that the mother had in her oral evidence, denied saying that she took B to visit Mr K in gaol and denied doing so.

Ms R was asked whether she had misunderstood this point. Her response was that the questions asked by her were all around information that the mother took B to the prison and Ms R’s own inquiry, “Why would you do that”, the mother had responded, “Because he’s her father and it’s right.” I have no doubt that the mother did make those statements to Ms R and further, no doubt that she did take the child B to visit Mr K in gaol, not simply because he was B’s father, but also because she intended to resume the relationship when he was released from prison.
Ms R was told about the evidence that Mr K had in fact been staying in Canberra with the mother and B. Unsurprisingly she confirmed that complete supervision would therefore be required around D and C.
In her first family report, Ms R had gone to considerable details to set out the services that she considered the mother needed to access to develop some insight about family violence and her own situation.[25] Ms R included the address and phone number for each of the three recommended services, being Service 1 family support (for support and assistance), Service 2 (for psychosocial education specifically in relation to family violence and its impact on children) and Service 3 sexual assault service (in helping her to understand the dynamics and strategies used by perpetrators).
[25] Family Report 02/06/2011, pars 138, 139, 140
The mother had not accessed those services at all. At first she gave evidence of repeated attempts to telephone the first two services, constantly leaving messages with no one ringing back and in respect of the third service, she said she had engaged with counselling between July/August 2011 to about November 2011, at which time the service told her there was nothing more they needed to do for her and it ceased.
When confronted with her own evidence in her second affidavit,[26] to the effect that on 25 October 2011 she was still waiting to be placed on their waiting list, the mother conceded that she had not had any counselling and that her immediately previous evidence had been a lie.
[26] Affidavit of Mother sworn 25/10/2011, par 30
When Ms R was made aware of the fact that the mother had not accessed any of the services and had lied about engaging with one of them, she expressed the view that there was no value in the mother engaging in any service if she did so under pressure. I accept that view.
There is abundant evidence of the mother having experienced serious violence at the hands, not only of Mr K, but of other partners with whom she has had brief relationships. One, who was gaoled for an unknown offence, threatened her from within the prison. At 14 she was living in the home of

Mr K and was clearly unprotected by her family or his at that time. However the mother has made a choice to ignore the advice about her need for education in relation to violence and sexual abuse. She has also made a choice to lie to and mislead the Court on more than one occasion. She has the benefit of a final Apprehended Domestic Violence Order which does not expire until July 2012 and is choosing to live with the person against whom she is said to need protection. The inescapable conclusion is that she is unable to protect herself and her children.
Accordingly, I conclude that there is no basis for optimism about any future time when the children could spend unsupervised time with their mother.

Further evidence

The Independent Children’s Lawyer was unable to make contact with the maternal grandmother and step-grandfather. The numbers provided by the mother apparently were not answered during repeated attempts. When asked to do so, the mother said that she had attempted to contact her parents but had been unable to do so. Her evidence had been that her step-father had travelled from Sydney the previous night, arriving in Newcastle about 8.00 pm or

9.00 pm and had taken B back to the property in Sydney, leaving the mother alone in a hotel room. This evidence seems highly unlikely.
I also do not accept that grandparents caring for their 11 month old grand-daughter would be unavailable to be contacted by their daughter. I infer that the mother could have contacted either or both of her parents to make them available as witnesses, but chose not to. On balance I consider it is likely that the child B remained in the Newcastle area, quite possibly with

Mr K.

Application of the law

Parental responsibility

The father seeks sole parental responsibility, the mother equal shared parent responsibility with the father.
Parental responsibility means all the duties, power, responsibilities and authority which by law parents have in relation to children. In this matter the children have been living with their father for 18 months and he has been responsible for all of their care and for all of their needs financial, emotional and psychological. The mother pays some child support as assessed, but it is a modest amount. There is no doubt that the mother was the children’s primary carer from their birth until October 2010. I accept that she has a genuine interest in them and love and affection for them. In the most recent report of Ms R, her observations of the mother and children reflect strong relationships despite extended separation.[27] I quote those observations here:
In observation between the children and the mother the children were excited to see the mother and their half-sister [B]. The children immediately engaged the mother in play and the mother was only too happy to be directed by the children. [D] in particular vied for the mother’s attention and kept in close proximity to her. [C] was happy to move around the room playing with the assortment of toys, but continued to engage the mother in conversation. The mother asked the children about their return to school and what their teacher’s names were. The children were eager to tell the mother about school and [D] continued to tell her about his intention to play soccer this year.
[27] Family Report 15/02/2012, pars 60-63