Opunui and Filau

FAMILY COURT OF AUSTRALIA

OPUNUI & FILAU

[2018] FamCA 501

FAMILY LAW – CHILDREN – Interim parenting – Parental responsibility – Magellan identified – Best interests of the child – Unacceptable risk of harm posed by both parents – Where significant weight attached to considerations of protecting children from harm and parental capacity – Minister reluctant to accept parental responsibility for the children – Order made for parental responsibility to be held by the Minister on an interim basis.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D

Goode & Goode (2006) FLC 93-286
Deiter & Deiter [2011] FamCAFC 82
SS & AH [2010] FamCAFC 13
George & George [2013] FamCAFC 182

APPLICANT:

Ms Opunui

RESPONDENT:

Ms Filau

INTERVENOR:

Director General, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

FILE NUMBER:

PAC

1481

2014

DATE DELIVERED:

4 July 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

19 June 2018, 2 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mahony Family Lawyers
SOLICITOR FOR THE RESPONDENT:	Ark Law Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Morley

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

Orders

The Minister of the Department of Family and Community Services hold parental responsibility for each of the children subject to these proceedings until further order.
The children are to reside as directed by the Secretary of the Department of Family and Community Services or appropriate delegate for the Secretary.

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 Opunui & Filau 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 PARRAMATTA

FILE NUMBER: PAC 1481 of 2014

Ms Opunui

Applicant

And

Ms Filau

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern four children between the ages of seven and 16 whose parents separated after a 12 year relationship. Parenting orders were made in the Federal Circuit Court in October 2015 providing that the mother have sole parental responsibility for the children who were to live with her and spend time with the father as agreed between the parties.
In about December 2017 in circumstances which are in dispute all four children went to live with the father. After a number of months in circumstances which are also somewhat in dispute, the oldest child, a daughter aged 16 and the parties’ only son aged 12 remained living with the father while the parties’ other daughters who are aged 13 and seven were returned by the father to live with the mother. The father then commenced proceedings to revisit the parenting arrangements.
Competing interim parenting applications were listed before me on 19 June 2018. The father sought sole parental responsibility for each of the children and that all of them live with him. He proposed on an interim basis that the youngest three children spend time with their mother each alternate Saturday from 9am to 5pm and that the oldest child spend time with the mother in accordance with that child’s wishes. The father also sought an order that the mother be restrained from bringing the children into contact with Mr B (“Mr B”) who until recent times had been the mother’s partner.
The mother sought interim orders in the same terms as the current orders in relation to parental responsibility, that is that she have sole parental responsibility for the children and that the three younger children live with her. She proposes that these children spend time with the father at a supervised contact centre. She sought an order that the oldest child live with the father in accordance with the child’s wishes and spend time with the mother each Saturday from 10am to 4pm and other orders including drug testing for the father.
At the interim hearing it was contended by each of the parents that the other parent poses an unacceptable risk of harm to the children.
On 19 June 2018 when the interim proceedings were listed for hearing the Independent Children’s Lawyer (“ICL”) relied upon a case outline in which she contended that the children are at an unacceptable risk of harm in the care of each of the parents. The ICL requested that the Secretary of the Department of Family and Community Services (“the Department” or “Community Services”) who had previously declined to intervene in the proceedings at the request of the court be invited again to intervene in the proceedings.
On the basis of matters which are not in dispute between the parties I was of the view that it was likely I may also assess the level of risk to the children in the care of each of the parents as unacceptable. For this reason I was also minded to give Department an opportunity to reconsider the invitation to intervene in the proceedings.
The proceedings were adjourned at the request of a legal officer from the Department Community Services. The Department then reassessed its position to intervene in the proceedings.
On 2 July 2018 Counsel appeared on behalf of the Secretary of the Department (“the Secretary”) and proposed a number of orders which were agreed to by the parties including an order that the Secretary intervene in the proceedings. The Secretary did not however seek an order that parental responsibility for the children be allocated to the Minister of the Department (“the Minister”) and sought an adjournment for at least one month for the purposes of further assessment in relation to the children and their circumstances.
I indicated to the parties on 2 July 2018 that following the interim hearing on 19 June 2018 I was of the view that each of the parents poses an unacceptable risk of harm to the children if orders were made as sought by each of them and that in those circumstances I may not be minded to adjourn the proceedings without making an order with respect to parental responsibility and the children’s living arrangements.
After a short adjournment the ICL then sought leave to make an oral application that parental responsibility for the children be allocated on an interim basis to the Minister. Such leave was granted and the application was made.
The mother did not oppose the court making an order for parental responsibility of the children to be allocated to the Minister on an interim basis. The order was however opposed by both Counsel for the Secretary and the father.
Later on 2 July 2018 I made the orders that the parties consented to and also ordered that the Minister have parental responsibility for the children and that the children live as directed by the Secretary or relevant delegate of the Secretary until further order.
These reasons deal with the interim orders that were not consented to and include my assessment in relation to the risks in each of the parent’s households.

Background

The mother who is 37 and the father who is 43 are both from Country C. They began a relationship in 2000 shortly after the father arrived in Australia from Country C. The parties married in 2001.
The parties’ oldest child, a daughter, was born in 2001 and is now 16. The second child, also a daughter, was born in 2003 and is now 13. The parties’ third child, a son”, was born in 2006 and is now 12. The youngest child, a daughter aged seven was born in 2010. They will be collectively referred to as “the children”.
Very little is known about the family prior to separation other than matters which are in dispute between the parties.
In 2012 or 2013 the parties separated on a final basis.
On 7 April 2013 there was a violent incident between the parents. The following account is taken from a Statement of Facts tendered to a Local Court when sentencing the father in relation to charges he faced arising from this event. The incident began with an argument in which both parties were verbally aggressive towards one another but escalated when the father slapped the mother in the face using an open hand connecting with her nose and mouth. The father then picked up a glass bottle and threatened to throw it in the mother’s face and walked towards her. The following day when the mother was at work the father contacted the mother by telephone and demanded that she come home immediately. He said that if she did not come home he would “come to [her] work and kill [her]” .The father repeated his demands that the mother come home and then threatened that when she arrived home he was going to “rip [her] into pieces” and kill her.
The father was charged with assaulting the mother and two counts of intimidating her with intent to cause her to fear physical or mental harm. The father subsequently pleaded guilty to these offences and was imprisoned for 24 days. An apprehended domestic violence order (“ADVO”) was made against the father for the protection of the mother for a period of 12 months.
Sometime following his conviction and term of imprisonment the father was taken into immigration detention until March 2014.
Before he was taken into immigration detention the father began a relationship with his current partner (“the father’s partner”) who is the niece of the mother and nearly 20 years younger than the father. The father’s partner who has an extensive history of violent offending as a juvenile was about 20 years old when she began a relationship with the father.
In April 2014 the father commenced parenting proceedings in the Federal Circuit Court in relation to the children.
In 2014 the father’s partner gave birth to a child of her relationship with the father.
The father disengaged from the parenting proceedings he had initiated. On 9 October 2015 a judge of the Federal Circuit Court made final orders on an undefended basis providing that the mother have sole parental responsibility for the children and that they live with her and spend time with the father as agreed between the parties.
On 31 January 2016 the father’s partner presented to a hospital with two serious wounds to both sides of her chest requiring 14 stitches and five stitches respectively, a wound to her right forearm requiring five stitches and abrasions to her upper back. According to police records police were contacted by a social worker at the hospital in relation to injuries to the father’s partner and concerns for the welfare of her young child. The father’s partner and the father’s sister told police that on the previous night the two of them and the father were drinking and became involved in a verbal argument. The father’s sister reported seeing the father and his partner pushing each other and the father then grabbing a glass, smashing the glass and using it to inflict wounds to his partner’s chest forearm and back. However, both the father’s partner and the witness refused to provide police with any formal information or statements.
Other police records indicate that on the same night passers-by in a vehicle (who turned out to be Federal police officers) had also seen the father intoxicated and aggressive and gave assistance in dealing with the father until state police arrived on the scene.
An application for an ADVO made by police on behalf of the father’s partner indicate that on the day following the incident the father’s partner described the incident as “an argument” and informed police “I don’t want to tell you how it happened. If I needed your help I would have called you. Let’s drop it” and then hung up the phone.
The father was charged with reckless wounding of his partner and an ADVO against him was also sought for her protection. The father pleaded not guilty to the charge and it was fixed for hearing. Court records indicate that on the day of the hearing in May 2016 the charge was withdrawn. A final ADVO was made for the protection of the father’s partner and their child with the consent of the father “without admissions” on the same day for a period of 12 months. This order included a restraint on the father approaching his partner or her premises within 12 hours of consuming alcohol or illicit drugs.
The mother began a relationship with Mr B at an unknown time and had the first of Mr B’s children in 2016.
In 2017 the second child of the mother’s relationship with Mr B was born.
At “the end of November” 2017 the parties’ oldest child who was almost 16 was seen to be crying by her mother. When the mother asked her what was wrong the child reported that “something big happened” and revealed that Mr B had indecently touched her approximately two months previously. Although it is not entirely clear the mother appears to suggest in her affidavit that on the same date the child made this disclosure she made a decision to separate from her partner and that she did not return to live with him from this time. However elsewhere in her affidavit the mother says that she left her ex-partner in February 2018.
Sometime between 24 and 26 November 2017 the oldest child contacted the father sounding distressed and asked if she could come and live with him.
In late 2017 the mother, Mr B and their two children, the father, his partner, her mother and the children went out together to celebrate the oldest daughter’s 16^th birthday. The oldest child moved to live with the father on this date and has not returned to the mother’s care.
From 8 to 14 December 2017 the mother travelled to Country C with her second daughter from the relationship with the father and her two youngest children. She left the oldest child, youngest daughter and the son with the father.
On 17 December 2017 by agreement between the parents the parties’ second and youngest daughters went to live with the father.
On 19 December 2017 the oldest child went with her father and his partner to a police station to report the alleged sexual abuse perpetrated by Mr B. As I understand it the ensuing investigation into this allegation is ongoing. Documents in relation to this investigation have been sought pursuant to s69ZW of the Family Law Act 1975 (Cth) but were not available at the date of the interim hearing.
About one week later the mother attended with her uncle at the father’s home though there is a dispute between the parties about the purpose of this visit. The mother contends that she and her uncle wanted to ask the oldest child for “forgiveness” while the father maintains that the mother asked the father to discontinue the complaint against Mr B in exchange for the mother agreeing to the father having “full custody of the kids”.
On 29 December 2017 the mother delivered the parties’ son to the father’s home and says that she wanted to look for alternate accommodation for herself and the younger children. The father says that the mother told him that she was leaving to Queensland “for good” and that he did not hear from her for many months afterwards.
Despite the parties’ separation and the allegations made concerning the care of the children by each of the parents, the parties and their children and current partners and children from those relationships continued to associate socially with one another to some extent. On 2 January 2018 for example everyone had a barbecue together.
The mother says that at some unspecified time she confronted Mr B about the allegations made by the oldest child and that Mr B said the child was lying. The mother says that her relationship with Mr B deteriorated after this time and that they separated in early February 2018.
On 20 April 2018 the father and his partner came to the attention of police and were given a move on direction after advising police that they had been at a particular location, known to the police for the supply of cannabis, “to buy some weed”.
On 2 or 3 May 2018 the mother attended at the children’s school, though there is a dispute between the parties as to the purpose for her attendance.
On 9 May 2018 in circumstances which are in dispute the parties’ second daughter and youngest child were returned by the father’s partner to the care of the mother.
The mother changed the school enrolment of her two younger daughters after they came into her care but for reasons which are not explained the second daughter did not attend school at all for a period of two weeks.
On 12 May 2018 the mother met with the oldest child at a shopping centre and they had a conversation and smoked cigarettes together.
On 17 May 2018 the father commenced these parenting proceedings seeking in particular a recovery order in relation to the parties’ two daughters who are living with the mother.
At a court event on 24 May 2018 various orders were made with the consent of the parties including that the mother be restrained from bringing the children into contact with Mr B and that both parties be restrained from using physical discipline.
The matter was identified as within the Magellan protocol on 18 May 2017.[1]
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 29 May 2018 the parties and children met with a family consultant for the purpose of the Child Responsive Program. The family consultant expressed the view that there were very significant allegations in relation to family violence and child safety in this matter and opined that it is possible that neither parent represents a suitable carer for the children and that if the court holds such concerns then it may assist if Community Services are invited to intervene in the proceedings.
On 30 May 2018 the Child Responsive Program Memorandum was released to the parties and the ICL and the Department was invited to intervene in the proceedings. It was noted on the court orders that the court may find that there is an unacceptable risk of harm to the children in both households at the interim hearing fixed for 19 June 2018.
By letter dated 13 June 2018 Community Services declined to intervene in the proceedings and also declined to send a legal representative to attend the interim hearing on 19 June 2018 which had also been requested by the court.
At the interim hearing on 19 June 2018 a representative of Community Services agreed at the request of the court to attend by telephone and informed the court that the Department was reconsidering the invitation to intervene.
All parties made brief submissions and relied on a written Outline of Case and then the proceedings were adjourned.
On 2 July 2018 there was further court event due to the intervention of the Secretary. As indicated earlier certain orders were agreed to by all parties. The father and Secretary opposed the ICL’s application that parental responsibility for the children be allocated to the Minister and that they live as directed by the Secretary’s delegate.

The law & discussion

The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].
[2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
In applying the law to the facts, the Court must uphold the relevant Objects and Principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s65D(1), subject to certain sections a court may make such parenting order as it thinks proper.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Section 61DA provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the court considers that it would not be appropriate. For reasons I will come to it will be clear that the presumption does not apply in this case.
In Deiter & Deiter, the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
The proceedings between the parties are at a very early stage having been commenced in May 2018. The interim orders sought by each of the parents are likely to be in place for many months at least or even for years having regard to the delays prevailing in this registry.
The application made by the ICL that the Minister have parental responsibility for the children and that the children live as directed by the Secretary has only been sought on a short term interim basis until further order. The proceedings have been adjourned until a date to be fixed after late September 2018 when a report in relation to the oldest child’s complaint concerning the sexual abuse allegedly perpetrated by Mr B is to be provided by police. The interim order sought by the ICL will continue throughout this adjourned period.
Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may have some regard to the matters in dispute. In SS & AH[3], their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[3] [2010] FamCAFC 13
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[4], a decision of the Full Court citing Deiter & Deiter[5]).
[4] [2013] FamCAFC 182
[5] [2011] FamCAFC 82
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

Assessment of risk as alleged by each parent

It is the father’s case with which the ICL agrees that the mother poses an unacceptable risk of harm to the children on a number of basis as follows.

Risks of harm posed by the mother’s partner

As I understand it the father contends that the mother continues to be in a relationship with Mr B who poses a risk of harm to the children on the basis that he sexually abused the oldest child. It is also contended that Mr B was violent towards the mother to which the children were exposed. It is also the case of the father with which the ICL agrees that the mother has demonstrated her inability to protect the children from the risks posed by Mr B which is itself a risk factor associated with the mother.
The mother’s case in relation to the risk posed by Mr B and her alleged inability to protect her children is unclear. It appears that in general she contends that she is no longer in a relationship with Mr B and says he will therefore no longer come in contact with the children or that the restraint on contact with Mr B provides adequate protection for the children. However there are conflicting accounts within the mother’s evidence of her separation from Mr B which are relevant to both the risk of harm posed by him and her own alleged inability to protect her children.
The mother’s position in relation to the truth of the allegations of sexual harm also appear to be contradictory. The tenor of the affidavit upon which she relies in the interim hearing is that the oldest child first disclosed to her that Mr B had sexually abused her at the end of November 2017. At one paragraph in her affidavit the mother says that she then told the oldest child that the family “are not going back” [to Mr B]. The mother also deposes to attending with her uncle upon the oldest child at the father’s home on about 17 December 2017 and asking for her daughter’s “forgiveness”. The mother further says that she confronted Mr B about the allegations, that Mr B told her that the child was lying and denied the accusations and that since the time of this conversation their relationship deteriorated and they separated in early February 2018. All of the foregoing appears to suggest that the mother did believe the oldest child’s allegation of sexual abuse at the hands of Mr B.
However, when interviewed in late May 2018 for the purposes of the Child Responsive Program the mother told the family consultant that she did not believe that Mr B had sexually abused the oldest child.
It is the father’s case that the oldest child disclosed the sexual abuse to his partner and the child reported that when she told the mother the mother advised her to “just be strong and don’t tell your dad”. According to the father’s partner the oldest child disclosed that Mr B had come into her bedroom on four occasions and touched her on two of them including digitally penetrating her.
The father also contends that after he spoke to the oldest child and confirmed the disclosures he attended at the mother’s home and took the other two daughters from the mother’s care on the basis that he did not want them to be sexually abused as well. He says that he told the mother that he would go to the police and that would solve everything but the mother told him that the oldest child was lying about the whole event.
The father also deposes that about one week later in mid-December when the mother came to his home with her uncle the mother proposed that if he dropped the charges (sic) against Mr B she would give him “full custody” of the children. The father deposes that the mother’s uncle was pleading with him to agree to “the deal” but he refused to do it because of the abuse to the oldest child.
It is not possible at this interim stage to make any findings in relation to whether Mr B sexually abused the oldest child or the mother’s response or to determine with precision how long the mother remained in a relationship with Mr B after the allegation was made.
However, it is highly relevant for the purposes of the interim application that according to the mother’s own evidence the child disclosed to her as early as late November 2017 that Mr B had sexually abused her. On her own case the mother remained in a relationship with Mr B for at least the following three months including at times when all of the children or later her two daughters continued to live with her. There is no evidence to suggest that the mother took any steps to have the complaint against her then partner investigated or took any steps to protect her other children from him.
Given the likely impact that any sexual abuse by the mother’s previous partner would have upon the mother’s other children if it were to have occurred I consider it a grave failure of the mother to have taken no steps to protect these children from further contact with Mr B for at least three months and possibly longer.
It is contended that Mr B also poses a risk of perpetrating family violence against the mother to which the children may be exposed. This is not a matter in dispute as the mother reported to the family consultant when interviewed in May 2018 that Mr B had behaved in a controlling and violent manner and had physically assaulted her on a number of occasions some of which had been witnessed by the children. She reported that one of the children had asked her earlier this year about injuries caused to her face which were occasioned by Mr B slapping her on the face after he became upset about her going out with members of her family.

Parenting concerns and alleged neglect in the mother’s household

Although the father contends that he did not have any concerns about the care of the children when his relationship with the mother was intact it is his case that his children have not been appropriately cared for following separation.
The father contends that after the children came into his care they complained to him that when they were still living with their mother there was an occasion where they didn’t eat for three days and that generally the only food available would be left overs and takeaway.
In addition to the concerns raised about providing the children with inadequate food the father also contends that the children’s school attendance was poor when they were living with the mother and this is supported to some extent by records from the school produced under subpoena. The father also alleges that the 13 year old and seven year old daughters told him that they missed school as the mother was at work and they were required to care for their younger infant half siblings though this is a matter that cannot be resolved at an interim hearing.
In relation to the mother’s capacity to care for the children appropriately I note that she does not dispute that she provided cigarettes to her oldest child on the one occasion she spent time with her in May 2018. I also note that the mother proposes to have five of her children including two infants live with her in a two bedroom apartment. It is also recorded in police documents produced under subpoena that when police inspected the mother’s home in May 2018 in connection with the mother’s attempt to have the children returned to her care they observed the home to be “very messy with no beds only mattresses on the floor”.
It is also the father’s case that the mother effectively abandoned the children for a number of months. The parties agree that all four children were permitted to reside with the father at various stages in November and December 2017. There is also no dispute that the mother did not attempt to contact the children or spend any time with them for a period of five months until May 2018 except to send a threatening message to the oldest child in March 2018 that she had arranged for “bikies” to attend at the child’s school to “bash” her and put her in hospital for “running her mouth”. The father contends that the mother was living in Queensland during this time and that she moved there so that Mr B could evade police and authorities who it appears were looking for him at the time. The mother does not deny that she was living in Queensland at this time and agrees that she sent the threatening message to the oldest child via social media.
Although there are a number of matters in dispute between the parties I am of the view that on the basis of the undisputed evidence the children would be at an unacceptable risk of harm in the care of their mother if the current orders are not discharged as she seeks for the following reasons.
The mother agrees that she has been the victim of serious family violence at the hands of the father and Mr B to which the children were exposed. Although the mother contends that the father poses an unacceptable risk of harm to the children due to his violence she agreed that he could care for three of the children for eight days when she went to Country C in December and for all of the children during the five months when she does not dispute that she lived in Queensland.
Further, the mother says that the oldest child informed her about the allegations of sexual abuse by Mr B in November 2017 and at the time she appeared to accept the veracity of these complaints but did not separate from Mr B for at least three months. By May 2018 when interviewed by the family consultant the mother also appeared to no longer believe the truth of these allegations.
There are also some concerning matters relating to the mother’s parenting capacity including the physical circumstances of her home which appears to be overcrowded and that she had not been able to adequately ensure the children’s attendance at school when they were in her care. She also does not dispute that she engaged in smoking with the older child or that she sent threatening messages to that child for the purpose of scaring her.
I have regard to the severity of the impact of family violence to which the children have been undoubtedly exposed when in the mother’s care in the past and of the mother’s neglect of the children by leaving them in the care of her violent ex-husband and sending threatening messages. These are matters that on balance there is a real risk will continue in the future. On this basis I assess the risk of psychological harm to the children in the mother’s care as unacceptable.

Risk factors in the father’s household

It is the mother’s case which is supported by the ICL that the children are at an unacceptable risk of harm living in the father’s household.

Father’s violence

On the uncontested evidence before the court the father has a significant criminal history for matters of violence including a conviction in November 2006 for an assault in July 2004 for which he was sentenced to 150 hours of Community Service and a conviction for assaulting the mother and two counts of intimidating her with intent to cause her to fear harm for which he received a term of imprisonment in May 2013. These last offences also resulted in an ADVO being made for the protection of the mother against the father for a period of 12 months.
The father gives no account of his conduct in relation to any of his convictions in his affidavit. The father claims that he pleaded guilty to the offences against the mother without proper advice or an interpreter being provided and denies an allegation that he broke her nose. However, the court records indicate that the father who was legally represented on all three occasions that these criminal matters were before the court initially pleaded not guilty to the offences. There is also no suggestion that he agreed (incorrectly or otherwise) to having broken the mother’s nose. The statement of facts tendered to the court in relation to the offences against the mother has been amended and parts redacted from which I infer there was some negotiation about the facts to which he was prepared to plead guilty. According to the facts the father slapped the mother to the face connecting with her nose and mouth using his right open hand which he does not deny in his affidavit.
It is also a matter of significant concern to which I attach weight that the father was arrested for an extremely serious matter of violence against his current partner in 2016. The charges were withdrawn which is consistent with the police record that neither the father’s partner nor his sister who was a witness were prepared to provide police with a formal statement. However, this does not mean that this court would not find that he did commit this very serious act of personal violence especially as the father makes no mention at all of this event in his affidavit even though he was charged and an ADVO was made for the protection of his partner and their child as a result of it.
It is also noteworthy in my view that in March and as recently as May this year the father’s partner has contacted police in relation to the father’s conduct. Although neither incident led to changes against the father on one occasion it was reported that the father pushed his partner in the course of an argument and on the other occasion it was reported that the father took his partner’s keys to prevent her from leaving their home in the course of an argument.
If all of the allegations in relation the father’s conduct against his partner were to be accepted, particularly in light of his earlier convictions the father’s actions would bear all of the hallmarks of a coercive and controlling perpetrator of family violence.

Physical abuse of the children

The other allegations in relation to the father’s violence that he has been violent towards at least two of the children when they were living with him and against his other infant child are unable to be resolved at this interim hearing. However, the second daughter who is 13 told the family consultant when interviewed for the Child Responsive Program that she feels scared with her father because of the way he “comes at her” when he is angry and that she fears that he will “bash” her. This child clarified to the family consultant that the father had not previously hit her though he had recently bashed the youngest child and her brother. The youngest child also told the family consultant that she is scared of her father because in [April 2018] she had dropped and damaged an IPad and that the father had become angry and hit her on the face with closed fists and also with a stick which had left marks on her face afterwards.
There is also some concern about violence between the siblings which is said to have occurred most recently when they were all living together in the father’s household. The second daughter reported to the family consultant difficulties in her relationship with the oldest child and said that the oldest child and her friends confronted her at school and that she had become frightened and gone to the office and run away from school. The second child reported that she did not feel comfortable being near her oldest sister and that in the child care room at the court the oldest child threatened to falsely report to police that her brother was abusing her. The son also indicated to the family consultant some tensions in his relationship with his elder sister.

Parenting capacity of the father and his partner

The mother also raises a number of issues in relation to the father’s partner. She alleges that the children reported to her that the father’s partner had encouraged them to steal when living in that household, had encouraged one of the daughter’s to shave her genital area, had purchased cigarettes for the oldest child and had encouraged the children to lie to their father about her [the partner]’s whereabouts.
There are also concerns raised about the physical circumstances in the father’s home including overcrowding and that the children sleep on the floor in the lounge room which are also unable to be resolved at this interim hearing.
Moreover, it is alleged that the father’s partner has been the victim of one extremely serious incident of personal violence at the hands of the father. The father’s partner was not prepared to provide assistance to police in relation to this incident even though they were concerned about her infant child who was present at the time. Against this background and as there is some suggestion that the father’s coercive behaviour at least is continuing there are concerns that there is no protective ally for the children in the father’s household.
I am concerned that given the father’s partner’s own history of violence and her reluctance to assist when she appears to have been the victim of serious violence, violence has been normalised in relation to her own behaviour and in her personal relationship with the father. Quite apart from the absence of a protective adult in the father’s household the father’s partner poses a risk herself to the children in relation to this apparent normalisation of violence.

Drug and alcohol use

The mother also raised concerns about alcohol and drug use by the father and his partner. The father denies drug and alcohol use in his household. Although this is a matter that is unable to be resolved on an interim basis I note that police records in relation to the father when he was charged with malicious wounding of his partner in January 2016 indicate that the father was well intoxicated contrary to his claims of being a non-drinker due to his Mormon faith. It was also a condition of the ADVO to which he consented that he be restrained from approaching his partner within 12 hours of using alcohol or illicit drugs.
As noted there are a number of allegations about risks in the father’s household which cannot be resolved on an interim basis. However, the father has a history of violence including convictions for offending against the mother.
The allegations entailed in the discontinued charge of particularly serious violence against his partner in January 2016 and the father’s failure to provide any account of incidents that led to him being convicted or charged in my view raise the risk of the children being exposed to violence in his household as unacceptable.
In addition particularly having regard to the children’s disclosures to the family consultant I am of the view that there is an unacceptable risk that the father will be violent towards the children if they are to live in his household as he seeks and that there is no protective adult in that household.

Conclusion-risk of harm in each parent’s care

For the foregoing reasons I am of the view that having regard to the undisputed facts and weighing the probabilities of allegations made by both parties and from the evidence relied upon by the ICL there are unacceptable risks posed to the children if they are to reside in the care of either of their parents. The level of risk arises from the likelihood that the harmful events will occur in both parents households and the impact that it will have upon the children if it were to occur. Neither parent proposes any means to mitigate the risks to these children in circumstances where they arise in the care of both parents.
The only proposal to mitigate the risks to these children in these circumstances is that made by the ICL, though proposing orders that the Minister hold parental responsibility for the children and determine where they shall live.

Determination of the competing proposals

The Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

The primary considerations: s 60CC(2)

The primary considerations, which are contained in s 60CC(2), are:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
In circumstances where upon weighing the probabilities of competing claims and the likely impact on the children I assess the risk in the care of each parent as unacceptable the most significant matter is the need to protect the children from harm.
For the reasons given I am of the view that the children will not be protected from physical or psychological harm from being subjected to or exposed to abuse and neglect in either parent’s households.
The only application under consideration that would that would provide some protection for the children is the short-term interim application of the ICL that the Minister hold parental responsibility for the children. In these circumstances the benefits of a meaningful relationship with both parents does not assume great significance.
None of the parties made submissions concerning the benefit to the children in having a meaningful relationship with each of their parents in these interim proceedings where the need to protect the children from harm is such a significant factor.

The additional consideration: s 60CC(3)

Views expressed by the children and any factors relevant to weight to be given to those views

The views of the children to a proposal that the Department hold parental responsibility are unknown. The oldest child who is 16 however has expressed a clear view that she wishes to remain living with her father as does the parties’ 12 year old son who also lives with his father.
It is not known whether the Minister in exercise of her parental responsibility will take steps to direct that the children reside at a place other than in the care of either parent. It may be expected however that the relevant decision maker will attach weight to the assessment of a judge of a superior court that the children are at an unacceptable risk of harm if any or all of them were to continue living with either the mother or the father.
Despite the age of the oldest child and the strength of the views of both children living with the father I am of the view that in circumstances where that parent poses such a high level of risk to the children their views should not be given any weight. It is also hoped that the Secretary will give little weight to the children’s views in these circumstances where the need for protection from harm is so great.

The nature of the relationship of the child with each of the child’s parents, and other persons

An assessment of the nature of the relationship of each of the children with each parent has not been made.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the child

Following separation the children initially lived with their mother and it would appear that she made all relevant major decisions. Although it is not entirely clear it appears that the father had limited involvement in the children’s lives for at least a year following separation as he spent some time in custody and some time in immigration detention.
Although the father commenced parenting proceedings in April 2014 he was not diligent in pursuing them and ultimately parenting orders were made in October 2015 in his absence.
It is also unclear how much time the father spent with the children after the orders were made, or the extent to which he communicated with them and his participated in decision-making about them.
The father was certainly willing to have the oldest child live with him from about December 2017 and for at least five months he cared for all the children during this period when the mother effectively abandoned them.

Likely effect of any change in the children’s circumstances

It is difficult to speculate about this matter as the intentions of Community Services are unknown.
One of the submissions made on behalf of the Secretary was that at this stage the relevant officer in the Department does not share my assessment of the level of risk posed by each parent and on that basis it is unlikely that the children would be directed to reside at any place other than their current residence.
However, it is anticipated that when this judgement is read and due weight given to the opinions expressed that the relevant officer may direct that the children reside somewhere other than at their current homes. It is likely that such a direction will be met with expressed discontent by the two children currently living with their father and there is a real possibility that the children will also express resistance. However, this is a matter that I am confident the officers of the Department will manage given their expertise in dealing with children who are unhappy with decisions made about their living arrangements.
In circumstances where the most weighty consideration is the need to protect the children from harm I do not attach significant weight to this matter.

Practical difficulty and expense of a child spending time with and communicating with a parent

The proposal of the mother is that the three younger children spend time with the father under supervision at a contact centre which would involve some expense.
Under the proposal of the ICL the delegate of the Secretary will determine all matters associated with parental responsibility including the circumstances in which the children will spend time with each parent and whether the time is required to be supervised to mitigate the risk of harm posed by that parent. Ordinarily Community Services makes the necessary arrangements and bears the costs associated with such supervision. It can be assumed there would be no practical difficulties in the children spending time with either parent, if the Minister were to hold parental responsibility for the children.

Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs

Attitude to the children and responsibilities of parenthood demonstrated by each parent

For the reasons given earlier I am of the view that both parents have demonstrated serious inadequacies in their respective capacity to provide for many of the children’s needs and have demonstrated a very poor attitude to the responsibilities of parenthood.
The mother failed to protect her children from the harms associated with exposure to domestic violence by two partners including the father. She effectively abandoned the children for five months and allowed them to be cared for by her violent ex-husband and his partner who also had a significant history of violence.
The father’s use of violence and controlling behaviours in at least his intimate relationship with the mother to which the children were exposed amounts to a grave departure from the standards of a responsible parent.
For the reasons given it is also likely that the father has used excessive physical discipline which may properly be characterised as abusive parenting upon at least two of the children.
The mother’s continued relationship with a man who has been accused of sexually assaulting the oldest child for at least three months after she was aware of that allegation and exposing her other daughters to the ongoing risk posed by this partner also demonstrates significantly impaired capacity and a particularly poor attitude to the responsibilities of parenthood.
Although it may be observed that the father has been responsible in taking on the care of the children when the mother failed to protect them from harm, due to his work hours much of the practical parenting in the father’s household is carried out by his partner about whom I have a number of concerns and members of his wife’s family about whom nothing is known.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

The children are of from Country C heritage and experience Country C cultural traditions in each household. This is not a weighty factor in this interim application.

Family violence

This is one of the most salient features of this interim parenting application. Although the father provides an explanation for the circumstances in which he came to plead guilty to his offences against the mother he does not provide any account of his conduct in his affidavit, and does not deny the facts as set out in the Statement of Facts tendered to the court when he was sentenced to a term of imprisonment.
The father also does not set out any version of events that lead to him being charged in relation to an extremely serious assault upon his partner and a final ADVO being made against him for the protection of his partner and their young child. The father’s partner also does not refer to this event in her affidavit.
As discussed earlier in this judgement, having regard to the nature of the evidence concerning this alleged event including statements given to police at the time and the nature of the victim’s injury, there are reasonable prospects of a court finding on the balance of probabilities that the father inflicted a serious injury upon his partner on that occasion.
Neither the father nor his partner depose to the circumstances in which police were called following arguments between them on two occasions this year.
Having regard to all of the evidence including the statements of the children to the family consultant there are also reasonable prospects of the court finding that the father has a pattern of behaving in a violent and coercive manner towards intimate partners including his current partner and that his current partner has limited or no capacity to protect children in the father’s household from exposure to or being subjected to family violence.

Any other fact or circumstances the Court thinks relevant

In my view the reluctance of the Secretary of the Department to agree to assuming parental responsibility for the children in circumstances where the court has assessed on all of the evidence that each of the parents proposes an unacceptable risk of harm to the children is a relevant fact in these proceedings.
It is submitted on behalf of the Secretary that the reason for this reluctance is that the relevant officer within the Department, presumably a caseworker or casework manager has formed a different view to the court in relation to the risk posed by each of the parents. I have concerns that this assessment may relate at least in part to the available resources allocated to vulnerable children and what is often described as the “competing priorities” for those resources.
Further, both the Counsel for the Secretary and the lawyer assisting the father on a duty basis on 2 July placed weight on the practicalities of making arrangements for a 16 year old girl and 12-year-old boy when those arrangements are contrary to the wishes of those children. While I accept that real issues of practicability are likely to arise in these circumstances they are outweighed by the need to protect all children from harm including children who express strong wishes.
In my view there is no alternative other than to allocate parental responsibility for the children to the Secretary in circumstances where the only two people putting themselves forward to take on that responsibility have each been assessed as posing an unacceptable risk of harm to these children. It is difficult to imagine a clearer case for allocating parental responsibility to the Secretary.

Conclusion

The decision concerning parental responsibility and the living arrangements for these children must be made on the basis that the paramount consideration is the children’s best interests. While issues such as the practicability of the proposed orders and the views of a 16 year old attach some weight the most weighty factor and the one which determines this application is the need to protect the children from harm.
In circumstances where I have found that the only two available caregivers and potential responsible adults for these children both pose an unacceptable risk of harm to them there is no other appropriate order that meets the children’s best interests on an interim basis other than the order proposed by the ICL.
For the foregoing reasons I made the orders in accordance with the proposal of the ICL.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 4 July 2018

Associate:

Date: 4 July 2018

[2018] FamCA 501

4 July 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Standing