OPUNUI & FILAU

[2020] FamCA 914

FAMILY COURT OF AUSTRALIA

OPUNUI & FILAU [2020] FamCA 914

FAMILY LAW – CHILDREN – Best interests of the children – Parental Responsibility – Where the Department formerly known as Family and Community Services (“the Department”) intervened in the proceedings – Where all parties consented to orders proposed by the Department at the final hearing providing that the mother hold sole parental responsibility for the children, that they live with the mother and spend limited time with the father – Where the potential risk factors posed by both parents are such that consideration must be given to whether the children will be exposed to an unacceptable risk of harm under the proposed arrangement – Where the father has physically assaulted the mother and each of the children in the past – Where the father has a long history of severe and heavy alcohol use and possible illicit substance use – Where finding is made that the father is at a high risk of perpetrating family violence in the future and there is particular concern if he misuses alcohol – Where risk of harm in the mother’s care concerns her capacity to identify and protect the children from potential risks posed by her former partner – Where the mother does not have sufficient capacity to protect the children from sexual abuse perpetrated by her former partner and risk of harm in this domain is assessed as unacceptably high – Where not proper to make orders proposed by the Department that would see the children live with a parent who poses an unacceptable risk of harm to them – Where the circumstances of this case demonstrate a disconnect or unsuitable fit of either State or Federal law for the children – Where the Department submitted that even if it was found that the children were exposed to an unacceptable risk of harm if orders were made as proposed, an order that the Minister hold parental responsibility for the children is not the appropriate “solution” – Where only alternative to orders proposed by the Department is an order that the Minister hold parental responsibility for the children – Orders made that the Minister hold parental responsibility for each of the children.   

FAMILY LAW – INJUNCTIONS – Order made restraining the father from causing or permitting the children or any one of them to live with him other than in accordance with a court order – Order made restraining the mother from bringing the children into contact with her former partner or permitting another person to bring the children into contact with him.

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D

Amador & Amador [2009] FamCAFC 196
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Johnson & Page (2007) FLC 93-344
M v M [1988] HCA 68; 166 CLR 69
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Opunui & Filau [2018] FamCA 501
Orwell & Watson [2008] FamCAFC 62
Ruth & Hutton [2011] FamCAFC 99
Oscar & Delaware; Oscar & Austen [2014] FamCAFC 32
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT: Ms Opunui

RESPONDENT: Ms Filau

INTERVENOR: Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER: Legal Aid

FILE NUMBER: PAC 1481 of 2014

DATE DELIVERED: 29 October 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13, 14, 15 & 17 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Abdelraheem

SOLICITOR FOR THE APPLICANT: Oumaru Kamara & Associates

COUNSEL FOR THE RESPONDENT: Ms Goodchild

SOLICITOR FOR THE RESPONDENT: Ark Law Lawyers

COUNSEL FOR THE INTERVENOR: Ms Eldershaw

SOLICITOR FOR THE INTERVENOR: Department of Family & Community Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr McConaghy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid

Orders

1. The Minister for Families, Communities and Disability Services has parental responsibility for Y born … 2010, X born … 2006 and Z born … 2004 (“the children”).

2. Pursuant to section 68B(1) of the Family Law Act 1975 (Cth) for the protection of the children the father is restrained from causing or permitting the children or any one of them to live with him other than in accordance with a court order.

3. Pursuant to section 68B(1) of the Family Law Act 1975 (Cth) for the protection of the children the mother is restrained from bringing the children or any one of them into contact with Mr B or permitting another person to bring the children into contact with Mr B.

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

1. These proceedings relate to the future parenting arrangements for three of the parties’ four children: two daughters aged 15 and 10 and a son aged 14 (“the children”). The parties were also in dispute as to the parenting arrangements for another daughter (“the oldest daughter”) but this child turned 18 prior to the final hearing.

2. In October 2015 final orders were made in the Federal Circuit Court 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. This arrangement remained in place until the oldest daughter alleged in late 2017 that the mother’s then partner had sexually assaulted her. Following this allegation the children lived in various arrangements and ultimately drew the attention of and intervention by the Department then known as Family and Community Services (“the Department”).

3. In May 2018 the father commenced proceedings to revisit the parenting arrangements seeking sole parental responsibility for the children and orders that they live with him. Due to the significant risk issues apparent in both households the Department was invited and accepted an invitation to intervene in the proceedings.

4. Both parties previously maintained in these proceedings that the other posed an unacceptable risk of harm to the children. At final hearing all parties consented to orders proposed by the Department which would see the children live with the mother, spend time with the father during the daytime each alternate Saturday and for the mother to have sole parental responsibility for the children.  

5. Although all parties and the Independent Children’s Lawyer (“ICL”) consented to the Department’s proposed orders, the potential risk factors posed by both parents (and in particular the mother with whom the children are to live under the proposed arrangement) are such that consideration must in my view be given to the question of whether the children will be exposed to an unacceptable risk of harm under the proposed arrangement. I am also required to determine whether orders agreed to by all parties are proper having regard to the paramount consideration being the best interests of the children. 

Background

1. The mother who is 39 and the father who is 45 are both from Country C.  They met in Australia when the father was visiting from his home country in 2000, began a relationship shortly thereafter and married in 2001.

2. The oldest daughter was born in 2001.

3. In July 2004 the father was charged with common assault arising from his involvement in an altercation.  According to police and court records when  a person came to break up the altercation the father punched him in the jaw with a clenched fist, causing him to fall to the ground.

4. In 2004 the parties’ second oldest child, also a daughter, (“the middle daughter”) was born.

5. In 2006 the parties’ only son (“the son”) was born.

6. In November 2006 the father pleaded guilty to the assault and was convicted and ordered to undertake 150 hours of Community Service.

7. In 2010 the mother gave birth to the youngest child, another daughter (“the youngest daughter”).

8. On 8 April 2013 the mother attended a local police station to report that the parties had been involved in an aggressive verbal argument at a relative’s home the previous day in which the father threatened to “bash” her and slapped her across the face with an open hand, connecting with her nose and mouth.  She alleged that the parties continued to argue and the father picked up a glass bottle and threatened to throw the bottle “in [her] face”. Later in the day when the parties were driving back to their home with the children in the car they became involved in another argument in which the father threatened the mother that if she did not “shut up” he would “stop the car and bash [her] in the street and run over [her]”.

9. The mother also reported that earlier on 8 April she had received a call from the father while she was at work telling her that if she did not come home he would “come to work and kill [her]”. The father continued to interrogate the mother about “rumours” he had heard about her and threatened that when she arrived home he was going to “rip [her] into pieces” and kill her. The father was also reported to have threatened to remove the children from school and leave the mother. Due to concerns for the safety of the children and herself, the mother collected the children from school and then went to report the incidents to police. Police obtained refuge accommodation for the mother and children and the incidents were reported by police to the Department in their capacity as mandatory reporters.

10. The police subsequently arrested and charged the father with common assault and two counts of stalking or intimidating the mother with intention to cause her to fear physical or mental harm. The father later pleaded guilty to these offences and was imprisoned for 24 days.

11. Although the parties dispute the date of separation it seems that this occurred at the latest around September 2013 when the father was placed in immigration detention where he remained until March 2014.

12. At some point prior to or during the father’s detention he commenced a relationship with his current partner (“the father’s partner”) who is nearly 20 years younger than he and at the time of the commencement of their relationship was about 20 years old.  Curiously, the father’s partner became pregnant with the father’s child during his immigration detention.

13. In April 2014 the father commenced parenting proceedings in the Federal Circuit Court in relation to the children.  Although he had been released from immigration detention by this stage his immigration status has remained somewhat precarious.  He has remained in Australia on a series of bridging visas and has not been granted permanent residency to date.

14. The father’s partner gave birth to her only child with the father (“the father’s other child”) in 2014. 

15. The father became disengaged in the parenting proceedings that he had initiated but the mother sought orders in relation to the children. In October 2015 final orders were made following an undefended hearing in the Federal Circuit Court providing that the mother have sole parental responsibility for the children, that they live with her and spend time with the father as agreed between the parties.

16. 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 these injuries and concerns for the welfare of the father’s other child.  The father’s partner and the father’s sister had 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 it and using it to inflict wounds to his partner’s chest, forearm and back.  Both the father’s partner and this witness refused to provide police with any further information or a statement. A provisional Apprehended Domestic Violence Order (“ADVO”) was issued against the father by police for the protection of his partner and their child.

17. The father was charged with reckless wounding of his partner arising from this event.  He 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. 

18. In May 2016 a final ADVO was made for the protection of the father’s partner and their child for a period of 12 months against the father with his consent without him making admissions about his conduct. This order included a restraint on the father approaching his partner or her premises within 12 hours of consuming alcohol or illicit drugs.

19. The mother began a relationship with another man from Country C (“the mother’s former partner”) and on an unknown date he moved into the mother’s household.  Together they had their first child in 2016.  In 2017 their second child was born.  These two children are collectively referred to as “the mother’s youngest children”.

20. In around late 2017 the oldest daughter who was almost 16 was seen by the mother to be crying.  When the mother asked her what was wrong the oldest daughter reported that “something big happened” and then revealed that the mother’s partner had indecently touched her.  The mother took the children and her two youngest children from the home overnight to a friend’s house.  Over the course of this evening numerous text messages and calls were made between the mother and her former partner. The next day they all returned home to live with the mother’s former partner.

21. A few days later the mother, her former partner, the father, the father’s partner and the children all went out to dinner together to celebrate the oldest daughter’s 16^th birthday.  From this time the oldest daughter moved to live with father.

22. From 8 to 14 December 2017 the mother travelled to her home country with the middle daughter and her youngest children.  She left the youngest daughter and the son with the father during her absence.  These children came back to live with the mother in her household with the mother’s former partner on her return.

23. On about 19 December 2017 the oldest daughter disclosed first to the father’s partner and later to the father that she had been sexually abused by the mother’s former partner.  The father then attended the mother’s home and demanded that the parties’ two other daughters come to live with him.  He then attended a police station with the oldest daughter to report the incident.

24. In about late December 2017 the mother also delivered the son to the father’s home and from this date the siblings lived together for a few months.  The whereabouts of the mother for the next few months is unclear as is the status of her relationship with her former partner.  These are matters to which I will return.

25. The police completed their investigation into the complaints concerning the mother’s former partner by the end of January 2018 and had made a decision to charge him with indecent assault of the oldest daughter.  They were however unable to locate either the mother or her former partner and ultimately a warrant issued for his arrest for the offence of indecent assault of a person under the age of 16. 

26. In March 2018 the father’s partner contacted police following an argument between she and the father in which it was reported that the father had taken her keys to prevent her from leaving. When the police attended they spoke to the father and his partner who then left to stay at her parents’ place for the night.

27. On 9 May 2018 the mother contacted police to report her children as “missing” after she contacted the youngest daughter’s school and was informed that this child had not attended school that day. The mother reported that there had been an incident between herself and her partner in December 2017 and as a result she allowed the children to live with the father but had recently made contact with the middle daughter at her school and found out that this child wanted to return to live with her but the father was not allowing this to occur.

28. As the children were meant to be living with the mother pursuant to the parenting orders then in place, police assisted in having the middle daughter and youngest daughter returned to the mother’s care.  The oldest daughter and son remained living with the father. 

29. A few days later police received a call from the father’s partner who reported that she and the father had been involved in a verbal argument. When police arrived both denied any physical altercation and police did not observe any evidence to suggest an assault had occurred.

30. On 14 May 2018 the Department received a Risk of Significant Harm report that the middle and youngest daughters had been physically abused by the father when they lived with him.  After these children returned to live with the mother they made reports of the father’s behaviour when they had lived in his household.

31. The father commenced proceedings on 17 May 2018 seeking orders that he have sole parental responsibility for the children and that the children live with him. He also filed a Notice of Child Abuse alleging that the oldest child had disclosed being sexually abused by the mother’s former partner and that all children had disclosed violence between the mother and her former partner.

32. The following day the proceedings were identified as within the Magellan protocol[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

33. On 24 May 2018 orders were made with the consent of the parties restraining the mother from bringing the children into contact with her former partner.  These orders were subsequently amended to also restrain her from permitting the children to the brought into contact with him.

34. On 29 May 2018 the parties attended upon a family consultant for the purposes of the Child Responsive Program.

35. On 30 May 2018 the Child Responsive Program Memorandum was released to the parties and an order was made inviting the Department 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. 

36. On 13 June 2018 a Magellan Report was provided to the Court by the Department setting out the Department’s involvement with the family.  In this report it was indicated that the Department had decided not to intervene in the proceedings and did not intend to appear on 19 June 2018 when the hearing in relation to interim parenting orders was listed.

37. On 19 June 2018 a departmental caseworker attended the court event by phone at the request of the Court and indicated to the Court that the Department were reconsidering the invitation to intervene. A further invitation was made that the Department intervene in the proceedings and the hearing in relation to interim orders was adjourned.

38. Departmental caseworkers then interviewed each of the children, the father and his partner and the mother and carried out an assessment of risk to the children in each parent’s care. 

1. When the youngest daughter was interviewed this child stated that there was “nothing” she didn’t like about her mother and that she didn’t like the father treating her differently to his other child. She also reported that the mother’s former partner no longer lived with them and had not done so since she had returned to the mother’s home. The youngest daughter explained that she thought the police were interested in the mother’s partner because the oldest daughter had “told police a lie”.

2. On 28 June 2018 caseworkers interviewed the mother. It is recorded that the mother reported that she did not know where her former partner was and that her relationship with him had ended in February 2018. The mother reported that “everything that comes out of [the oldest daughter’s] mouth is her dad’s word” and that the oldest daughter had apologised to her for “what she’s done and what she put us through”.

3. Following the interviews with the parties and children a caseworker assessed the middle daughter, youngest daughter and the mother’s youngest children as safe in the mother’s care and the oldest daughter, the son and the father’s other child as safe in the father’s care.

4. At the end of June 2018 the Department notified the Court of its intention to intervene in the proceedings.

5. A hearing took place on 2 July 2018 for determination of interim parenting applications made by the parties following the Department’s intervention. The ICL sought orders that the Minister of the Department have interim parental responsibility for the children due to concerns in relation to both parents. The mother did not oppose this order but both the Department and the father opposed this order being made. Following hearing orders were made as sought by the ICL that the Minister of the Department hold parental responsibility for each of the children and that the children reside as directed by the Secretary of the Department for reasons given in a judgment delivered on 4 July 2018[2] (“the interim judgment”).

   [2]Opunui & Filau [2018] FamCA 501.

6. In August 2018 a further Risk Assessment was undertaken by a caseworker in relation to the middle daughter, the youngest daughter and mother’s youngest children in the mother’s household and the risk level was assessed as “moderate”. A Risk Assessment of the oldest daughter, the son and father’s other child in the father’s care was considered to be “high”.  Despite the interim orders, the Secretary of the Department or his delegate did not ever give a direction as to where each of the children were to reside and appears generally to have supported the children’s own preferences in relation to where they each wished to live.

7. A Family Action Plan was developed by Departmental officers with the mother and the father separately in relation to the children. Each Family Action Plan included the family members participating in therapy known as “Functional Family Therapy” (“FFT”) to be delivered by an external agency. This therapy seems to have been considered by officers of the Department as the only intervention appropriate to address all of the family’s therapeutic needs including family violence in the father’s household.  It was also a component of the mother’s Plan that she inform the police and the Department if her former partner were to make contact with her.

8. There was monitoring by Departmental officers of the engagement of each parent in achieving the objectives set out in their respective Family Action Plans and the impact on the family of ongoing support. Only significant incidents and matters of concern arising from this ongoing involvement with the Department will be set out in this background.

9. In October 2018 the oldest daughter returned to live in the mother’s home. When a caseworker spoke to this child about this decision, she reported that her relationship with the father’s partner had broken down and that she felt safe in the mother’s home now that the mother had no contact with her former partner.

10. In November 2018 the oldest daughter requested a meeting with a Departmental caseworker at which this daughter said that she felt guilty about having made allegations against her mother’s former partner which were untrue and that she had been influenced in making the allegations by the father’s partner.  The caseworker reported this conversation to police who interviewed the oldest daughter in early December 2018 at a police station.  When interviewed the oldest daughter retracted her previous allegations against the mother’s former partner. Police subsequently revoked the warrant for the arrest of the mother’s former partner as it was considered that police no longer had sufficient evidence to establish the case against him.

11. On 11 December 2018 the parties attended upon a family consultant for the preparation of a Family Report.

12. On 21 December 2018 a caseworker made a home visit to the son at the father’s home. The son reported that he had recently spent time at his mother’s house with his sisters and that the mother’s former partner had been there.  The caseworker visited the daughters at the mother’s home and all reported that the mother’s partner had recently attended the home but as their mother was home at the time they did not feel unsafe.

13. In March 2019 the middle daughter was suspended from school for two weeks for physical violence and aggression towards another female student during which staff were injured. The oldest daughter was also involved in the argument resulting in the middle daughter’s suspension.

14. The middle daughter was interviewed by the school counsellor following her suspension. During the interview a further incident that occurred during the suspension period (dubbed “round 2” on social media) was discussed. It emerged in that discussion that a fight had taken place but was dispersed when the students heard police sirens. It is recorded in the School Counsellor Report that the middle daughter did not express remorse about the incident. It is also recorded that while the mother had attempted to stop the oldest daughter and middle daughter attending the planned site for “round 2”, she also said that she encourages the children to communicate openly and defend themselves if attacked. The school counsellor discussed safer ways to de-escalate conflict with the middle daughter and recommended that this child may benefit from accessing school counsellor support to develop positive conflict resolution strategies.

15. At a court event on 22 March 2019 an order was made requesting a report be provided by the service provider of FFT addressing matters relating to that therapy.  An expert (“the expert”) was also appointed at the same court event to provide an opinion in relation to family violence and effective interventions, if any, to address family violence.

16. A report containing the expert’s opinion (“the Expert Report”) dated 28 September 2019 was released to the parties on 1 October 2019. This is a matter to which I will return at some length but it suffices to say this stage that the expert held serious concerns about the likelihood of the father continuing to engage in family violence.

17. At a court event on 19 November 2019 it was noted that the Department was broadly of the view that significant progress had been made in relation to reducing the risk for the children in both households and that the Department questioned the need to continue to be involved in the proceedings.  I reiterated my concern that I may find both parents pose an unacceptable risk of harm to the children if the children or any of them were to live in either household. I also noted that a finding in relation to unacceptable risk may need to be made to frame proper final orders. Otherwise at this court event orders were made to prepare the matter for final hearing.

18. On Christmas Day 2019 an incident apparently fuelled by alcohol consumption occurred at the father’s home which resulted in police attending. It is recorded in police records that a violent argument erupted between the father and his brother on the street near the father’s home. Police observed a person to restrain the father’s brother to limit his movements while the father punched his brother several times with a closed fist. Police used capsicum spray to break up the fight. The brother was observed to have several injuries with bruising, bleeding and grazes to his chest, arms, shoulders and leg and a gash to his upper left eyebrow which later required stitches. The father was arrested and an ADVO was made against him for the protection of a person whose name is redacted though it may be assumed to be the brother.

19. Caseworkers from the Department interviewed the father about the Christmas Day incident at the end of January 2020. The father reported that he had removed his brother from the home as the brother had become verbally and physically abusive. The father indicated that he had consumed up to ten beers through the course of the day starting from the morning and continuing until the evening when the incident occurred but felt that he was not intoxicated at the time of the incident. The father told the caseworker that the youngest daughter was inside the home at the time of the incident and had not witnessed it.

20. A few days later the youngest daughter was interviewed by caseworkers. She confirmed that she had seen her father’s brother arguing with an aunty and observed the aunty slap him. She also observed the father and uncle leave the house and go down the street but did not see the fight between them.

21. On 2 March 2020 the oldest daughter contacted Police to report that the mother and her former partner were engaged in a physical fight at the mother’s home. When police attended the mother and former partner had left the premises and the house was in disarray.  Police could not discern whether the state of the house was due to the number of people at the home or because of the altercation.

22. On 10 June 2020 the father was granted a Bridging Visa permitting him to remain in Australia for six months.

The hearing

1. The final hearing took place over five days in July 2020.  None of the parties or the ICL required the expert for cross-examination and the Expert Report was admitted into evidence unchallenged. 

2. No party required the father or his partner for cross-examination and only the mother, Departmental officer and family consultant were cross-examined.

3. Although the father had previously sought orders that would see at least one of the children live with him, he consented to the Department’s proposal that all of the children live with the mother and spend eight hours with him during the day only each alternate Saturday and on Father’s Day as well as other orders including various restraints on his conduct such as consuming alcohol when the children are with him and using physical discipline. 

4. In the course of the proceedings at numerous court events I had also raised concerns about the parties (including the Department) permitting the children to in effect determine their own arrangements including where they should live.  I noted that the son at the time of final hearing continued to live with the father as he had done for at least the past two years notwithstanding the risks that all parties appeared to have acknowledged were posed by the father if any of the children were to live with him.  For this reason I raised the possibility of a restraint upon the father permitting the children or any of them living in his home.  The Department then adopted such a proposal as part of its regime of orders to which each of the parties consented. 

5. It was then noted that as the father consented to all of the Department’s proposal including this restraint the Minister in exercise of parental responsibility (pursuant to interim orders) proposed to arrange for the son to move from the father’s home to live with the mother as soon as practicable. 

6. Judgment was reserved on 17 July 2020 to a date to be advised.

Matters requiring resolution

1. As indicated, the Secretary of the Department (“the Secretary”) proposes and all parties and the ICL consent to orders that would see the mother hold sole parental responsibility for the children and the children live with her and spend time during the day with the father on each alternate Saturday and Father’s Day.  The Secretary’s proposal also includes orders that the parents comply with directions of the Secretary or his delegate relating to the care, welfare and development of the children for 12 months (“the supervision order”) and that each parent be subject to restraints in relation to their own conduct and exposing the children to the conduct of others, including any contact with the mother’s former partner.

2. Rather than make the orders proposed by the Department on the basis that they are consented to by all parties, I am of the view that I must be satisfied that the proposed orders are proper having regard to the best interests of the children as the paramount consideration. In particular, given the significant concerns about the children’s welfare which caused me to invite the Department to intervene in the proceedings and which was (unusually in my experience) taken up by the Department, I consider that I am required to make findings and an assessment of the risk if any posed to the children if such orders were made.

THE FATHER

Family Violence

1. The most weighty matter to consider in relation to the father is family violence.  In accordance with the principles in Amador & Amador[3] findings in relation to abuse or violence between the parties should be made if “they are available and necessary to determine what is in the best interests of the child”[4].

   [3] [2009] FamCAFC 196.

   [4] Ibid [96].

2. The Full Court in Amador (supra) went on to say at [96]:

   It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse and sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.

3. In addition to the provisions of sections 60CC(2)(b), 60CC (3)(f)(i)(j) and (m) which are referred to in Amador (supra) as matters which may be significantly impacted by findings that a party has assaulted another party[5] in these proceedings there are a number of specific contentions about matters relating to the children’s best interests that depend upon findings as to family violence.

   [5] Ibid [88].

4. In particular, the unchallenged opinion of the expert in relation to family violence depends upon the findings as to this matter. 

5. Neither party addresses the issue of family violence said to have been perpetrated by the father in any extensive way in their respective affidavits.  The father is effectively silent as to this matter and the mother sets out the circumstances of one particular incident of family violence only in a less detailed way than she has appeared to have done in previous affidavits.  For this reason information in relation to such incidents must also be gleaned from other sources.

6. The first specific instance of family violence said to have been perpetrated by the father against the mother occurred in April 2013.  At that time after the mother attended a police station and made reports about the father’s conduct on two consecutive days the father was charged and convicted for various domestic violence offences. 

7. Records from the Local Court where these criminal proceedings were heard indicate that the father who was legally represented pleaded guilty to two offences, of assault and intimidation with respect to his conduct on 7 April 2013 and a further count of intimidation relating to his conduct the following day. 

8. So far as the offences on the first day are concerned, the Statement of Facts tendered upon sentence are consistent with the reports made to police that the father threatened to bash the mother and slapped her across the face with an open hand, connecting with her nose and mouth causing her head to fall back and then picked up a glass bottle and threatened to throw it in her face.  On the following day the father threatened to kill and harm the mother and demanded that she come home from work. 

9. The Local Court records reveal that at each of the three court events in the criminal proceedings the father was legally represented.  The record also reveals that he initially pleaded not guilty and that the Statement of Facts tendered to the court had been amended and parts redacted from it.  In these circumstances I infer that the father did receive legal advice and that there was some negotiation about the facts which formed the basis of his guilty plea.

10. The father deposes in his trial affidavit in these proceedings to there being “no current issues of violence and abuse” (emphasis added) from which it may be inferred that he concedes there were “issues of violence and abuse” in the past.  Otherwise he does not address the issue of family violence at all in his affidavit and in particular does not deny the allegations made by the mother in the past about his violent and controlling behaviour or seek to traverse the facts in relation to the offences of which he has been convicted.

11. In all of the foregoing circumstances I am satisfied that the father was violent towards the mother as set out in the Statement of Facts in the Local Court. 

12. Although the mother deposes to no other specific events relating to the father’s violence when the relationship was intact in her affidavit, this does not mean that there were no further instances of violence.  For reasons which are unknown her affidavit is silent in all respects in relation to this period. 

13. In making findings in relation to the father’s alleged violence I attach some weight to the mother’s report when first interviewed by a family consultant in May 2018 for the purposes of the Child Responsive Program that the father had been physically violent towards her during the relationship but that she had not reported any such matters to police or sought medical attention for any injuries. 

14. Further, when interviewed by the family consultant in December 2018 for the purposes of a Family Report the father reported that there had been physical violence between him and the mother but although he could not recall any details he did not think that he had caused her any physical injuries.  During the same assessment the mother reported previously feeling concerned for her safety from the father as he was very controlling such as by limiting her social engagements with friends, had threatened to kill her in the presence of the children and had slapped and punched her but had not caused injuries. 

15. The mother also confirmed under cross-examination that there was family violence in her relationship with the father.

16. Having regard to the foregoing I am satisfied to the requisite standard that the father physically assaulted the mother during the incident in April 2013 and on other occasions and engaged in threatening and controlling behaviour towards the mother as she alleged to the family consultant but cannot make any further specific findings about that conduct.

Physical Abuse of the children

1. The next matter to consider in relation to the father is physical abuse of the children.  Although as previously noted the test to be applied where there are allegations of physical abuse against a child is “unacceptable risk”[6], I also have regard to the authorities concerning the inter-relationship between being satisfied that the alleged harmful acts occurred and a finding of unacceptable risk. 

   [6]M v M [1988] HCA 68; 166 CLR 69.

2. In Johnson & Page[7] the Full Court considered the authorities in relation to “unacceptable risk”[8] including W & W (Abuse Allegations: Unacceptable Risk)[9], where the Full Court noted at [111]:

   We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.

   [7] (2007) FLC 93-344.

   [8] The principles encapsulating “unacceptable risk” of sexual abuse and the standard of proof have been extended to other forms of abuse. See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware; Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).

   [9] (2005) FLC 93–235.

1. I am satisfied to the appropriate standard[10] that the father has physically abused each of the children for the following reasons. 

   [10]Evidence Act 1995 (Cth) s 140(2).

2. First, as noted in the background about one week before the father commenced these proceedings in May 2018 the middle and youngest daughters had moved from his household and returned to live with the mother.  The mother deposes to each of these daughters making serious complaints about the father’s abusive conduct towards them.  In particular, she deposes to the youngest child reporting an incident around the time of the father’s birthday in which she had damaged an iPad and that the father “whipped her on the face with a broom stick” and “hit her on the face with the inner part of his closed fist causing her to fall and cut her hand with a glass on the grass”.  The child reported to the mother that when she got up the father “took her inside and started punching her upper body with a closed fist”.  This child then said that both she and the son asked their father to stop which caused the father to start punching the son.  The middle daughter told the mother that the son was bruised “all over his stomach” as a result. 

3. According to the mother’s affidavit the middle daughter reported to her that when the father found out that his partner had taken the daughters out drinking the father hit the middle daughter with a steel pole.  The mother was not challenged about any of this evidence under cross-examination. 

4. In her affidavit the case work manager at the Department deposes to a risk of harm report of 14 May 2018 raising concerns that these two daughters were being physically abused by the father. 

5. When interviewed by a family consultant for the purposes of the Child Responsive Program later in the same month the middle daughter reported that she felt 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.  Although this child clarified that the father had not hit her she alleged that he had recently “bashed” the youngest daughter and the son.  This daughter also spoke at that interview in positive terms about her relationship with the son and said that it had surprised her when he had decided to remain living with the father and reported that she thought the son was too scared of their father to leave. 

6. The youngest child (aged almost eight when interviewed) reported to the family consultant in May 2018 that she is scared of her father because the previous month, she had dropped and damaged an iPad and in response the father had become angry and hit her on the face with closed fists causing marks and also hit her with a stick. 

7. Following the second request by the Court for the Department to intervene in the proceedings in June 2018 various assessments were made of the children’s safety in the care of each of the parents.  When the son was interviewed by caseworkers he denied that the father hit him and the youngest daughter and claimed that it was the mother who hit him and his siblings as punishment.  When interviewed the father also denied physically disciplining the children.  The youngest daughter when interviewed repeated her allegation that in April the father had physically assaulted her and the son.  She stated that the father had hit her with a broom stick and punched her on the arms and face after she dropped an iPad and had hit the son when he intervened.  According to departmental records referred to in the caseworker’s affidavit, on 2 July 2018 it was concluded by Departmental officers that the father had likely used physical discipline on this occasion.

8. At a further home visit by caseworkers on 9 August 2018 the middle daughter reported that she had seen her father hit the oldest daughter when he gets angry and also reported being physically disciplined by the father’s partner. 

9. At the interview for the Family Report in December 2018 the oldest daughter reported that the father has hit the youngest daughter and son.  She said there was an occasion when the father hit the youngest daughter with a belt and that she (the oldest daughter) jumped on the father which resulted in her getting a “hiding”.  She added that the father had thrown her at a wall, breaking it and that she is scared of the father when he is angry.  She also reported her concern for the son who she said was scared and said that the father hit the son when she lived with them and called him insulting names.  The middle daughter reported that the father hit her siblings.  The son reported that the father did not hit him any more and last hit him “a couple of months” ago.  This child reported that the father used to hit him with his hand and did not use a belt but denied feeling scared of the father.  The youngest daughter reported once again that the father hit and punched her and had hit her with things in the house such as a broom and that he had also punched the son in his stomach, back and leg.  She reported that the father no longer hits her and thought that this was because of the involvement of the Department. 

10. The mother reported at this assessment that the father previously would “beat” the son and youngest daughter.  She also said that the father had previously given the children “a hiding” which she considered to be more severe than being smacked and had caused bruises to the children, particularly the son and youngest daughter. 

11. When interviewed for the purposes of the Family Report the father denied physically assaulting the children but said that he had slapped them with his hand and with a belt on the bottom.  He claimed not to have caused the children injuries and said that the last time he physically disciplined them was in 2017. At the time of the assessment interview he claimed to understand that he “cannot” (presumably meaning he is not permitted to) physically discipline the children. 

12. When interviewed for the Family Report the father’s partner denied that she had hit the children with a belt or that the father had done so but did report that the father had disciplined the children in the past and that she had explained to him that he cannot do that in Australia.  The father’s partner explained that in the parents’ home country physical punishment is a common and accepted way of disciplining children. 

13. Although the family consultant accepts that findings of fact are a matter for the Court she noted in her Family Report that the discrepancy between the accounts of the father and his partner raise concerns about whether excessive physical discipline may at that time still be present in the father’s household.  She expressed the view that the physical discipline that was reported by the youngest daughter to her and the son if accurate “would be considered excessive and harmful to the children who experienced it, and also to those who witnessed it”.

14. The father does not address the issue of violence or abuse towards any of the children in his affidavit.  He deposes only that “there is (sic) no current issues of violence and abuse or potential abuse towards any of the children” (emphasis added) from which I draw the inference that there may have been such violence and abuse towards the children in the past.

15. Although the affidavit of the father’s partner includes a heading “History of Violence” she does not depose to any matters of violence or even the issue of physical discipline in the father’s household.  She does depose that “there is no issues of risk in relation to the children as far as we are aware” (sic). 

16. I am satisfied to the requisite standard that the father physically disciplined his children up until at least December 2018 as there is unchallenged evidence that his youngest two daughters reported his physical assaults to the mother in about May 2018 and gave consistent accounts on a number of occasions to officers of the Department and also on two occasions to a family consultant.  Information given by the oldest daughter and son is also consistent with the father having physically abused the children by way of discipline previously but claiming by December 2018 that he no longer engaged in this behaviour. The children’s claims are consistent with the mother’s reports given to the family consultant of the father’s pattern of behaviour and the father’s admissions to the family consultant that he had previously slapped the children with his hand and with a belt on the bottom together with reports by he and his partner to the family consultant although they had come to understand that this form of punishment was not acceptable in Australia it was commonplace and regarded as acceptable within their culture.

THE MOTHER

1. The matter of greatest significance in relation to any risk of harm to the children in the mother’s care concerns her capacity to identify the potential risks posed by her former partner to the children and protect them from such risks.  Such an assessment requires findings in relation to the mother’s conduct. 

2. Some of the circumstances surrounding the oldest daughter’s allegations against the mother’s former partner which appear to be undisputed are set out in the background. Documents which provide a more detailed account of the allegations made by the oldest daughter and the mother’s response and subsequent actions were produced on subpoena.

3. In particular two statements made by the oldest daughter when she was 16 and 17 respectively are included in the police Brief of Evidence which forms part of the documents produced on subpoena and tendered in the proceedings[11]. 

   [11] Exhibit 14.

4. In her first statement given to police (“the first police statement”) the oldest daughter deposes to four relevant incidents. The first was when she was 13 years old. This daughter deposes that on that occasion the mother’s former partner came into the bedroom that she was sharing with her sisters and the children of her mother’s friend and that she awoke up to see him lying down next to her middle sister who was asleep on a mattress on the floor.  She deposes that it was “really dark” and when she started moving around he got up and left without saying anything to her.  The oldest daughter next deposes to the mother’s partner coming into her bedroom on three occasions in 2017.  On the first occasion this daughter says he simply opened the door and walked back out and on the second occasion in early 2017 he came in and sat on the end of the bed near her and “was playing with my legs”.  The oldest daughter deposes that when she said that she was going to call or text her mother he said “oh ok” and walked out of the room. 

5. The oldest daughter describes in her first police statement the last occasion that the mother’s former partner came into her bedroom in October or November 2017 when she woke up to find him sitting next to her on the step beside her bed and touching her leg with his hand which made her wake up.  She felt him kiss her on the shoulder, shrugged her shoulder and then sat up in bed with her legs straight out in front of her. She deposes that the mother’s former partner was touching her on the lower part of her leg and eventually went higher touching “my rude part”, moved his hand inside her underwear and touched her vagina saying to her “I want to eat your vagina”.  She deposes that she pushed his hand away and asked him what he was doing and he kissed her on the shoulder. She says that she got out of bed and went outside and sat in the kitchen where another family member was cooking. 

6. The oldest daughter then deposes to going into the lounge room and sitting on a sofa and that the mother’s former partner sat opposite her and said again “I want to eat your vagina”. She says that when her mother came home she said to her mother “if you are going to go somewhere, wake me up and tell me, don’t leave me at home alone, he came into my room”. The oldest daughter deposes that she did not tell her mother anything more about what happened with the mother’s former partner then because she was scared about what may happen. The oldest daughter deposes to staying home from school that day to help her mother look after the younger children and that the mother then bought a lock for the bedroom door. 

7. As has been noted the parties’ respective trial affidavits provide limited information in relation to some of the salient matters.  In particular the mother’s affidavit only contains a few paragraphs concerning the allegations made by the oldest daughter about the mother’s former partner and her response to those allegations.

8. The mother deposes to first becoming aware of the sexual abuse allegations “in the end of November 2017” on an occasion when the oldest daughter started crying as they were walking in the park. 

9. In her affidavit the mother makes no reference to any conversation with the oldest daughter at her home in October or November 2017 in which when the oldest daughter requested that the mother not leave her alone at home with the mother’s former partner as he had come into her room or to buying a lock for the bedroom door.  In her police statement the mother does depose to buying a lock for the oldest daughter’s bedroom door although she says that this was for a different reason. 

10. According to the oldest daughter’s first police statement a couple of days after this last incident she and the mother were fighting as the daughter  wanted to move out of the mother’s house and live with her father. This child deposes in her first police statement that when they were at a park (on an undated subsequent occasion) the mother asked her why she wanted to move and that is when she told the mother that the mother’s partner had “touched” her. 

11. The mother deposes to this discussion in the park in her trial affidavit.  According to the mother when she saw the oldest daughter crying and asked what was wrong the oldest daughter said words to the effect of “something big happened”.  She then deposes that she repeatedly asked the oldest daughter to explain what had happened and that the oldest daughter said that her ex-partner “had touched her”.  She deposes to asking the oldest daughter what she meant by touching and whether “he inserted a finger inside her” and that the daughter replied “he only touched me outside”. The mother then deposes to taking all the children from the home and going on a train ride to clear her head about what had been reported to her. The mother also deposes at this stage that the oldest daughter was encouraging her to take her youngest children back to her former partner “as they need a father” but the mother did not agree to this and instead she and all the children spent the night at a friend’s home.

12. According to the oldest daughter’s first police statement the mother took all of the children to stay with a friend and throughout the night at the friend’s house the mother was having conversations by text message with her former partner.  This child deposes that the mother showed her one message in which the mother asked him “did you touch her or not?” to which he answered “yeah I did, can you come home so we can talk about it”.  This child deposes that they went back home the following day and that although she was supposed to move to live with her father the mother’s partner asked her to stay for one more night to celebrate her birthday.  The child deposes that she did stay and that after a celebration dinner the following night she left to stay at her father’s home. 

13. In her police statement the mother deposes that in late November or early December 2017 she had an argument with her former partner and as a result took the children to a park where she had a conversation with the oldest daughter who started crying and told her that “something big happened”. When the mother asked what had happened the oldest daughter said that her former partner had “touched me on my private part”, “about a month ago”.  This child reported that it happened when the mother dropped the children to school and the mother’s former partner came into her room.  The oldest daughter reported that it began with the mother’s partner “patting my arm” and that he only touched her “on the outside”. The mother says in that statement that she then contacted her partner by telephone, told him that the oldest daughter had reported he had “touched her on her private parts” and asked him whether it was true.  She says that he denied that it was true and requested that the oldest daughter be put on the phone but the daughter refused and said she was not going back to the house.  The mother deposes that she and the children went to stay at a friend’s house.

14. According to the mother’s police statement she continued to talk to her former partner about what had happened (throughout the evening) but the former partner continued to deny the allegations. 

15. Although she does not refer to this in her affidavit police records indicate that the mother provided her telephone to police on 4 January 2017.

16. According to the mother’s affidavit the first conversation in which the oldest daughter told her of the sexual abuse was “in end of November 2017”.  According to the mother’s police statement on the same day after the disclosure she had an ongoing conversation with her former partner.  A transcript of a phone text message interchange on 27 November 2017 commencing shortly before 5.00 pm forms part of the police Brief of Evidence contained in Exhibit 14.  Some of the text messages are in English and there is also a translation where a foreign language is used. 

17. Some of the text message interchange is consistent with the mother’s version in her police statement such as that she repeatedly asked her former partner whether the oldest daughter’s reports of “what happened” were “true”, that the former partner requested to speak to the oldest daughter on the phone but that the daughter refused to do so and the mother repeated the child’s statements that she “was not going back to the house”. 

18. The transcript of the messages also includes the following message sent from the mother’s former partner’s phone:

    What [nickname of oldest daughter] tells you is true.

19. There are then a number of text messages in which the mother tells her former partner that the oldest daughter didn’t want to speak to him, was scared of him and would run away if “we are going to return home”.  There is then the following interchange:

    Mother’s former partner: Get the phone I will speak to her

    Mother: Tell me the truth, what you did to [oldest daughter] and why she didn’t want to come back home.

    Mother’s former partner: Hun, please I am so sorry for everything please come home.

20. There is no dispute that on 3 December 2017 the mother, her former partner and all of the mother’s children together with the father, his partner, and other family members went out to dinner together to celebrate the oldest daughter’s 16^th birthday and that after that event the oldest daughter moved to live with the father.

21. Although the father’s partner provides very little detail concerning the oldest daughter’s allegations of sexual abuse in her affidavit in these proceedings she made a detailed statement to police about the matter on 13 March 2018.  In that statement she deposes that the oldest daughter first raised the possibility of moving to live with the father in the course of a telephone conversation on 24 November 2017 due to the child’s reports of “dramas going on at home with my mum”.  At that stage the mother had told the father’s partner that the reason the oldest daughter wanted to come and stay with them was due to a dispute she and the oldest daughter were having in relation to the oldest daughter’s boyfriend.  This version of events is broadly consistent with the mother’s affidavit.  

22. It is also common ground that between 8 December and 14 December 2017 the mother travelled to her home country for a funeral and took the middle daughter and her youngest children with her and that the youngest child and the son stayed with the father during this period.  There is no dispute that after the mother returned from her home country all of the children other than the oldest daughter returned to live with the mother again.

1. In her police statement the mother also deposes that after she returned to Australia on 15 December 2017 in the course of a conversation with her former partner they got into an argument.  She then deposes:

   During this conversation [my partner] asked me if it would be ok for us to sleep with my daughters or sisters together.  I said “what do you mean sleep?” [he] said “sleep?” I said “there is so many different meanings for sleep like sexual or sleep?  Are you normal? They are teenage girls, why would you even breathe that question? On every level that is not right”. [He] said “ok”.

2. The mother’s trial affidavit does not refer to any such conversation with her former partner following her return from overseas.

3. The father’s partner deposes in her police statement (in Exhibit 14) that about a week after the oldest daughter came to live in the father’s home the oldest daughter received a message from the woman with whom the daughter and mother had stayed on the evening of the disclosure to the mother.  She deposes that the message included the words “I hope your ok (sic).  What happened to you was so wrong and it shouldn’t have happened to anyone”.  According to the father’s partner this prompted a conversation in which this child revealed that she had been sexually abused by the mother’s former partner.

4. The father’s partner deposes in her police statement that a couple of days later, on 17 December 2017 when the oldest child was away from the house she took the opportunity to tell the father what the child had reported.

5. The father’s partner does not depose to the terms of that disclosure in her affidavit in these proceedings.

6. The father provides no other information in his affidavit other than the older daughter disclosed to his partner “that she was molested” by the mother’s former partner. 

7. There appears to be no dispute that after the father’s partner told him about the oldest daughter’s allegations they together went to the mother’s home and contacted her by telephone and demanded that she speak to him about the children.  The father deposes that the mother refused to come and speak to him in person and said over the phone “was it in relation to what [the oldest daughter] told you?  It was all lies”. The mother denies in her affidavit that she told the father that the allegations were lies. According to the father’s affidavit he then threatened to call the police if the mother did not release the remaining female children from her house which caused the mother to allow the other daughters out of the house and they thereafter went to live with him.

8. The father and his partner then reported the oldest daughter’s allegations to police and a police investigation began.

9. Documents produced by NSW Police record that the oldest daughter informed the father about the alleged sexual abuse on 19 December 2017 and that the daughter and father attended at a police station on the same date to report the incident. 

10. In her trial affidavit the mother deposes that she became aware (at an unspecified time) that the oldest daughter had told the father about the sexual abuse allegations.  She says that she told the father that they needed to discuss the matter but that he did not agree and demanded that she agree to their daughters living with him “until everything is done”. 

11. The mother also deposes that “during this time” (though no date is specified) she and her uncle “went to the father’s house to ask [the oldest daughter] for forgiveness and that the oldest daughter responded by saying “fuck your forgiveness” and then “walked off”.  The mother deposes that she then delivered the son to the father’s house because she wanted all the children to be together.  According to her trial affidavit her intention at that time was to place the children in the care of the father as she was “look[ing] for another accommodation for myself and my younger children”.

12. In her trial affidavit the mother does not depose to whether she believed the oldest daughter’s allegations at the time nor is the state of her relationship with her former partner following the disclosure clarified.  Rather, she deposes to confronting her ex-partner about the allegations at an unspecified time and to him stating that the daughter was lying and denying the truth of her allegations.  She deposes that their relationship “deteriorated since then” (with no time frame being specified) and that the two of them separated in early in February 2018. 

13. The oldest daughter had been interviewed by police and provided her first statement on 3 January 2017.  The mother provided a statement to police the following day and her mobile phone was seized for examination apparently in relation to text message interchanges and phone calls between her and her former partner on the evening following the oldest daughter’s first disclosure.  The mother does not depose to any of these matters in her trial affidavit but they are apparent from police records. 

14. Although the mother’s affidavit is silent about any further matters relating to the sexual abuse allegations and/or her relationship with her former partner other than that the relationship deteriorated and that they separated in early February 2018 the following version events can be gleaned from police records tendered in the proceedings.

15. According to the police statement of the father’s partner about a week before school started (presumably at around the end of January 2018) the mother attended at the father’s household with her uncle (“the mother’s uncle”) and her youngest children and delivered the son to their home.  She says the mother said goodbye to all of the children and the mother told her that she was “disappearing”. 

16. In his police statement the father also deposes to the mother attending at his home with the mother’s uncle in January 2018 and that the uncle asked him to “drop the charges” against the mother’s former partner.  According to that statement about a week later the mother and uncle came to his home again, dropped off the son, said goodbye to the other children and said “we are moving to Queensland”. In his trial affidavit the father deposes to the son coming to live with him on 29 December 2017. 

17. Police records tendered in the proceedings indicate that on 30 January 2018 police attended at the mother’s home to arrest her former partner for indecent assault but both of them had moved from that address and were unable to be located. Another record indicates that the mother’s cousin advised police that during the first two weeks of January 2018 she allowed the mother to live with her but when she heard that police were looking for the mother and her former partner she asked them to leave.

18. Police records indicate that the mother’s cousin also provided police with the phone number of her father (the mother’s uncle).  Police records dated 26 March 2018 indicate that the mother’s uncle confirmed that he had attended the father’s home to deliver the son and had recently assisted the mother/former partner with moving furniture to a new location. 

19. It is recorded by police that two days after speaking with the mother’s uncle on 28 March 2018 police received information about the mother’s whereabouts from a person who also provided police with a current phone number for the mother.

20. Police records also indicate that on 2 April 2018 the mother presented herself at a police station and participated in a conversation in relation to the whereabouts of herself and her former partner over the previous two months and her lack of contact with police.  The mother told police that she had been residing at rented premises with her two youngest children and claimed not to have any awareness of the location of her former partner.  She was told that he was wanted by police and a warrant would be issued for his arrest if he was not located.  It is then recorded that the mother told police that her former partner was residing with his relatives in Brisbane, had recently dropped in to see his children and that the relationship between the two was over and they had gone their separate ways.

21. Police also record that on the following day 3 April 2018 the mother told police that her former partner told her he was waiting for legal advice before handing himself into police. 

22. Notes of an interview between a Departmental caseworker and the son on 26 June 2018 include the following:

    Question:      How long since you’ve seen mum?

    Answer:        Jan or Feb this year.  Not sure.  Three or four months maybe.

    Question:      Where?

    Answer:        Was staying with mum and her partner in [name of suburb]

    [The] police came looking for her partner.  Mum told me not to tell them he was in the room. 

    Question:      Where?

    Answer:        [illegible].  Then [Suburb D] apartment (cousin [named]).

    Question:      When?

    Answer:After NY roughly Jan.  Last time I saw mum she said she was moving to QLD.  Dropped me off at my dads. 

    Question:      Why mum tell you not to say?

    Answer:        Didn’t want police to take him.

    Question:      Why?

    Answer:        What he did to my sis-step dad touched sis.

    Told mum, [oldest daughter] told me she told mum.  Mum said don’t say anything.

23. It is common ground between the parties that in May 2018 the mother attended at the youngest daughter’s school as in the course of recent contact with the children she understood that at least some of them wanted to return to live with her. Police were informed of the orders then in place which provided for the children to live with the mother and assisted in having the middle daughter and youngest daughter returned to the mother’s care while the oldest daughter and son remained living with the father.

24. The tenor of the father’s affidavit is that at that time (May 2018) he continued to believe that the oldest daughter had told the truth about the sexual abuse by the mother’s partner. This is consistent with the orders sought when he initiated proceedings a short time later that the children all live with him, that he have sole parental responsibility for them and that the mother be restrained from permitting the children to come into contact with her former partner.

25. Under cross-examination the mother confirmed that she was aware that there had been orders made in May 2018 restraining her from bringing the children into contact with her former partner or permitting them to be brought into contact with him. When asked whether the former partner had ever come to her home the mother denied that this had ever occurred.  When further questioned about this matter the mother said that at one point in time she and the Departmental caseworker “had come to an arrangement that if [the mother’s former partner] was to be surrounded around the kids that my kids would be supervised at all time”.  The mother then appeared to suggest that this arrangement had been made prior to the caseworker knowing about the court order.  The mother then said that although she understood the order had been made in May 2018 “it didn’t come across [her] mind” to bring that order to the attention of the caseworker. 

26. The mother ultimately confirmed under cross-examination that even though the order was in place restraining that contact she and the caseworker reached an agreement that if the mother’s former partner was present for a family celebration he could still come in contact with the children so long as they were supervised.

27. The relevant officer from the Department who had case management responsibility for the children confirmed under cross-examination that she was aware of the orders restraining the mother from permitting anyone to bring the children into contact with her former partner made in May 2018. This Departmental officer was also aware of an agreement between the mother and caseworker that the children could come into contact with the mother’s former partner so long as that contact was supervised. 

28. As set out in the background the mother does not challenge the following matters recorded in Departmental records:

    ·When interviewed by Departmental caseworkers in June 2018 the youngest daughter reported that the mother’s former partner no longer lived with them and explained that she thought the police were interested in him because the oldest daughter had “told police a lie” and that the mother’s former partner had “never done anything to her”.

    ·When interviewed by Departmental caseworkers on 28 June 2018 the mother reported that she did not know where her former partner was and that “everything that comes out of [the oldest daughter’s] mouth is her dad’s word” and that the oldest daughter had apologised to her for “what she’s done and what she’s put us through”. 

29. The mother deposes in her trial affidavit that (inferentially from about May/June 2018) over the following months the relationship between she and the oldest daughter started improving and that from about September 2018 the oldest daughter returned to living with her and “travelling between her father’s and my house regularly”. 

30. When the oldest daughter was interviewed by a Departmental officer on 10 October 2018 about her decision to return to live in the mother’s home this child reported that her relationship with the father’s partner had broken down and that she felt safe in the mother’s home now that the mother had no contact with her former partner.

31. The mother says nothing further in her affidavit about the sexual abuse allegations other than that the oldest daughter “dropped the charges” and “said that nothing has happened in relation to the alleged sexual abuse allegations”.  She gives very limited evidence in relation to her own state of belief about the allegations, her ongoing actions, or her relationship or any interaction with her former partner.  Her only evidence is the following statement:

    I fully understand and am aware of the risks of harm issues that the children were exposed to especially with the allegations were made (sic) against my ex-partner

32. The mother also deposes to having a civil, but not romantic, relationship with her former partner and that she meets with him in public in order for him to spend time with her youngest children.

33. An email from the Departmental caseworker dated 29 November 2018 to police records that the oldest daughter informed the caseworker that she wished to retract the statement previously made about the mother’s former partner.

34. Police records indicate that on 4 December 2018 the oldest daughter attended at a police station with the Departmental caseworker and told police that the statement she had provided on 2 January 2018 was “made up” and never happened.  It is recorded that this child was spoken to at length about whether she was feeling pressured to say that she had made up the complaint. The oldest daughter is recorded as saying that she lied because her father and his partner continuously raised complaints about the mother’s behaviour towards the father which made the child “angry” and “so I just did what [the father’s partner] and dad wanted me to do”.  This child also stated that she had to tell the truth because she was feeling bad. 

35. The second police statement made by the oldest daughter on 4 December 2018 identifies particular paragraphs in her first police statement of 2 January 2018 as untrue. The oldest daughter does not depose in her second police statement that the entirety of her first police statement was untrue, only those paragraphs that relate to the fourth and most serious incident described in her first statement concerning the conduct of the mother’s partner. In particular the oldest daughter does not nominate as untrue the paragraphs in her first statement that the mother’s former partner entered her bedroom on an occasion early in 2017, sat on the end of her bed and played with her legs (and left when this child said she was going to call or text her mother). 

36. At least one of the paragraphs that the oldest daughter identifies as being untrue appears to contain some evidence that is not disputed in the proceedings to be true. For example, one of the statements in her first police statement that the oldest daughter says is untrue is that after she told her mother about the sexual abuse allegations in late November 2017 the mother was communicating with the mother’s former partner using their mobile phones and that the messages included conversation about the child’s allegations. This is consistent with the mother’s own evidence and the records of those conversations extracted from the mother’s phone which form part of the police Brief of Evidence.  It would appear that the oldest daughter also did not intend to deny that she had reported the sexual abuse complaints to her mother but intended to convey that the content of the complaints was untrue.

37. As a result of the oldest daughter’s second police statement in which she retracted the earlier allegations police decided to withdraw the warrant for the arrest of the mother’s partner and associated charges. It is also recorded however that police did not to take further action against the oldest daughter for lying in her statement because “it cannot be said for certain that this has not occurred or that the child has not been pressured by anyone to come to police and say it is made up”.

38. In December 2018, about one week after the oldest daughter had retraced most of the allegations against the mother’s former partner the family met with a family consultant for the purposes of an assessment for a Family Report.  At this stage the oldest daughter had been living with the mother and her younger siblings for a couple of months and only the son was living in the father’s household.  The following is an extract from the family consultant’s report:

    [The mother] said that she has since told [the oldest daughter] that she has “put me and my babies through hell for a year”.  [The mother] considers that [the oldest daughter], [the father] and [the father’s partner] were the reason that her relationship with [her former partner] ended and both she and [the oldest daughter] have cried together over this.  [The mother] said that she has told [the oldest daughter] that she forgives her for making the allegations.

    [The mother] said that all charges against [her former partner] have now been dropped and police have advised her that they cannot stop [the mother’s former partner] coming to see [the mother’s] youngest children.  [The mother] said that there has been recent occasion when [her former partner] came to her house to see [the mother’s youngest children] and [the oldest daughter] was present.  She said that, on this occasion [the oldest daughter] said sorry to [the mother’s former partner].  [The mother] stated that she does not know if she will resume her relationship with [her former partner] in the future.

39. Police records indicate that on 27 February 2019 the charge against the mother’s former partner was withdrawn and subsequently the warrant for his arrest was revoked.

40. In relation to more recent matters concerning the mother and her former partner the mother was cross examined about an incident which was not addressed in her affidavit but came to light in police records. 

41. The relevant police record indicates that at 9.45 pm on 1 March 2020 the oldest daughter contacted police “stating that her mother and step father were having a physical fight”.  It is recorded that when police arrived at 10.25 pm this daughter and her boyfriend came out to police saying “it’s all just a misunderstanding”.  The record indicates that police checked the house and found two young children and several teenagers at the premises which were generally in disarray and that it “was difficult to tell if that was their standard living conditions due to a high number of people living in the premises or because of an altercation”.  It is recorded that the oldest daughter stated that the mother and the mother’s former partner had got into an argument but had since left the location together.  The record also indicates that the oldest daughter told police that she was in her room and only heard yelling and things moving but had not seen anything. When asked about why she had reported that they were physically fighting the daughter was unable to provide an answer. The police record also indicates that the oldest daughter gave police the contact details for the mother and her former partner but neither was able to be contacted though such contact was attempted. It is further recorded that police attended the premises at about 4.30 am the following morning in an attempt to locate the mother and her former partner and that the oldest daughter was woken and reported that the mother and her former partner had not returned and no one at the home had been in contact with them. 

1. Having regard to the gravity of the impact of child sexual abuse, if it were to occur in the future, I am satisfied that the mother’s former partner poses a risk of harm to the children on this basis.

2. The question then arises as to whether that risk of harm is mitigated such that it cannot be considered as unacceptably high. In this regard the mother’s protective capacity and her likely compliance with any injunction restraining her from exposing the children to her former partner must be closely considered.

The mother’s protective capacity as indicated by her response to the disclosure

1. For the reasons given I am satisfied that the mother was sceptical about the truth of the oldest daughter’s allegations when first made notwithstanding the existence of other evidence including the text messages sent by the mother’s partner a few hours after the disclosure and his conversation a couple of weeks later which the mother considered “on every level.not right”. 

2. As previously explained I am also satisfied that the mother prioritised her own relationship with her former partner over protection of her children and that this relationship continued even on her own evidence for about three months after the oldest child’s disclosure.

3. The mother also remained at least in contact with her former partner after she was aware that police were investigating the allegations and subsequently looking for him.

4. Written submissions on behalf of the Department, the ICL and the mother all attach particular weight to the fact that the mother ended her relationship with her former partner in February 2018 and each submits that this is a matter that bodes well with respect to the mother’s protective capacity and mitigation of the risk of sexual harm posed by the mother’s former partner.

5. The family consultant was asked under cross-examination about whether the mother’s decision to end her relationship with her former partner was indicative of her taking protective action. The family consultant explained that her understanding about the reasons for the separation included the stress related to this allegation. She did not understand that the mother separated from her former partner “completely in reaction to the allegations, given that she didn’t believe they were accurate anyway”. This witness agreed that she understood that the separation was more associated with a false allegation having been made and the stress that arose in the relationship as a result of the false allegation rather than indicating that the mother had behaved protectively because the allegation was true or possibly true. I accept this evidence and for this reason do not accept that the mother’s evidence about her separation necessarily bodes well with respect to her capacity to protect the children from harm arising from potential sexual abuse.

The mother’s ongoing protective capacity- the apology

1. I have found that the mother remained of the view for many months after she recommenced being involved in the children’s lives (from May 2018) that the oldest daughter was lying in relation to the sexual abuse allegations, held this child responsible for the breakdown of her relationship with her former partner and for putting the whole family “through hell for a year” and owed her former partner an apology. 

2. Each of the parties other than the father also relies in their respective written submissions heavily upon the mother’s statements to Departmental officers and in particular in June 2018 that she and her former partner had decided to “go our own way” and her assertion at that time that this had happened already as the relationship had ended in February 2018.

3. It is contended that the mother’s statements at this time that she was unsure who was telling the truth but wanted to have a relationship with all of her children is demonstrative of the mother’s capacity to prioritise her relationship with her children.

4. When cross examined about her opinion concerning the mother’s statements about separation from her former partner at this time, the family consultant said the following:

   It’s part of a sign.  It is not complete, because the other concern I had was that she allowed [the mother’s former partner] – and I’m not 100 per cent sure of the timeline – to be there when [the oldest daughter] was there, [the oldest daughter] apologised to him, she had had conversations that [the oldest daughter] had put her and her – and the younger two children through hell.  Those kinds of examples that she provided to me as to how she dealt with that incident gave me cause for concern because I think initial shock about allegations is one thing, but then after a period of time when the attitudes of disbelief are still being shared with the child, and the child is having had exposure to [the mother’s former partner] and apologised, those actions bring down the protective capacity.

5. Overall, the family consultant remained critical of the fact that the mother did not believe the oldest daughter’s allegations and this criticism was the case whether the sexual assault had or had not occurred.

6. Under cross-examination by the mother’s counsel it was suggested to the family consultant that if the allegations against the mother’s partner were not actually true and that the oldest daughter had been influenced in making them that it would be appropriate for the oldest daughter to apologise to the mother’s former partner.  The family consultant did not agree and opined that if the father and his partner had made up the allegations then the people who should be apologising are the father and his partner.

7. In each of the written submissions of the parties there is a great deal of emphasis placed on the mother’s engagement in FFT which the Department, the mother and ICL each submit demonstrates significant improvements in relation to the mother’s capacity to protect her children from this domain of harm.

8. Under cross-examination the family consultant did not agree that this therapy provided the mother with “protective skills” but was rather focused on providing education to the mother about improving communication, coping, emotional regulation and being able to identify problems and progress in a problem-solving manner to address those problems without there being significant conflict.  The family consultant explained that addressing protective capacity would be a further step and in particular involves being able to put the foundation for building that capacity into action.  The family consultant demonstrated that she had a good understanding of FFT and opined that that form of therapy could possibly not deal with all of the complexities for this family.

9. In final written submissions the Department placed significant weight on improvements in family functioning through undertaking FFT and submits that the family consultant’s lack of knowledge about the theoretical framework of FFT (and particularly the version of that model incorporating values and beliefs of Country C people provided to this family) diminishes the weight that should be attached to the family consultant’s opinion concerning the limited benefits of FFT in relation to the mother’s protective capacity and her concerns in relation to this matter.

10. In my view the evidence establishes that the benefits of FFT provided to this family (or the mother in particular as it appeared to the expert that the father had not retained any understanding of FFT) are important matters in relation to the mother’s parenting capacity to which I will return. The benefits also appear very relevant to improvements in the sibling relationships but are not a matter of great significance in relation to the mother’s protective capacity.

11. In this regard I am assisted by the evidence of the expert which was not challenged and in particular the following description of FFT:

    FFT is a well-established family treatment model, based on combining elements of behavioural management techniques and (initially) systems theory.  There are two dominant approaches, pioneered in the 1980’s to assist families in developing better communication and control over behaviour.  In recent versions of the therapy the systems based component is focused on altering cognitive beliefs about behaviour.  [[23]]

    …The use of FFT as part of a suite of programs, developed initially to deal with problems of families with difficult adolescents in the child welfare sector has been a process ongoing over the last 15 years. [[24]]

    …There seems little doubt that FFT is a validated treatment that has been showed to be efficacious in various studies for dealing with problem behaviours in young people [[25]]

    [23] References included in original.

    [24] References included in original.

    [25] References included in original.

12. This description of the FFT treatment model is consistent with the notes of various sessions provided to this family contained in documents produced on subpoena. The overall tenor of the therapy sessions was introducing skills related to solving problems in communication, emotional management and behaviour.  The written submissions of the Department which include significant detail in relation to the FFT sessions do not identify any particular session that targeted towards the mother’s protective or reflective capacity. Although one of the sessions is clearly relevant to building the mother’s capacity in relation to keeping the children safe from exposure to domestic violence in future relationships, nothing is identified as directly relevant to the issue of protection from harm associated with sexual abuse. 

13. The family consultant was also asked whether she agreed that the mother’s compliance and co-operation with departmental caseworkers and allowing them into her home and to have access to children as they wish bodes well for her protective capacity.  The family consultant gave the following answer:

    No, I don’t think I would connect the two things. I think it might show that the mother is likely to comply with directions, that the Department be involved and the Department have access, and she’s likely to be co-operative with them and not – not be difficult to engage or refuse to follow their directions. I think her being unrestrictive with the Department’s officers shows that, those things. Whether that equals protective capacity or whether that equals to increase her protective capacity, I don’t know that I could – one thing is necessarily related to the other.

14. The witness later said the following in relation to the same issue:

    …She may continue to engage with the Department, but for me to have confidence about protective capacity, I would want to see that over the – she may have engaged well, and she may be happy to have the Department involved, but I would want to see evidence of change. That’s what will lead me to think that her – she has – she is able to be reflective, she’s able to improve. I would want to see change in attitudes, in school attendance, in sibling relationships, and all those sorts of things or suggestions of heading in the direction of change.

15. The tenor of the ICL’s submissions in relation to mitigating the risk of harm associated with the sexual abuse allegations attaches weight not only to the FFT but to the scaffolding provided in the proposed orders by way of supervision for 12 months. It is also contended that the mother gave frank and candid evidence under cross-examination to her own detriment and that the Departmental officer gave oral evidence that the mother had been open and truthful in her engagements with the Department and had demonstrated reflective parenting capacities and had put her children’s wishes above her own. 

16. In relation to the last mentioned matter I attach more weight to the opinion of the family consultant than to the opinion of the Departmental officer who is “Manager; Casework”. This officer does not appear to have had extensive personal dealings with the mother and her role was to manage the various caseworkers who had responsibility for the children. Her affidavit is mainly based on accessing Departmental records. This officer did not have access to the wide range of information accessed by the family consultant nor does it appear that she has the same level of expertise and experience as the family consultant.

17. Although the family consultant did agree that there were a number of positive indications in relation to the mother’s protective capacity, overall the tenor of her evidence was that she had concerns about that matter.

The mother’s compliance with orders restraining her from contact with former partner

1. Overall, the tenor of the submissions made by the mother, ICL and Department is that I should accept the mother’s evidence that she has generally complied with the restraint on bringing the children into contact with her former partner and is likely to do so in the future. Associated contentions include that the mother ended her relationship with her former partner in February 2018 and has taken various steps such as not revealing her address to him and that in these circumstances any risk posed by the mother’s former partner may be mitigated by the continuation of such a restraint which forms part of the agreed proposal.

2. For the reasons given earlier I am not satisfied that there was only one occasion on which the children were brought into contact with the mother’s former partner. A close examination of the mother’s evidence reveals that she did not bring the restraint to the attention of the Departmental caseworker when it was made in May 2018 as this did not occur to her. Subsequently, after the officer became aware of the restraint (most likely it would appear when the Department intervened in the proceedings) the case manager and mother reached an agreement that the mother’s former partner could be in attendance at family events so long as the mother herself supervised any such contact. The reasons for this agreement between the mother and the Departmental case officer which is contrary to the court orders has never been explained and is not addressed in any submissions.

3. I am satisfied as explained that all of the children came into contact with the mother’s former partner as recently as December 2018 and that at around this time the oldest daughter apologised to the mother’s former partner for making the allegations against him. I do not have the same confidence as the parties that the children’s knowledge of “the rules” about having no contact with the mother’s former partner provides the protection they assert as the children and possibly the mother’s understanding of those “rules” seems to be that the mother’s former partner is not permitted to come to the home and be in their presence unsupervised.

4. I have some concern about the accuracy of the mother’s evidence concerning the current state of her relationship with her former partner. As explained, I accept that she was ambivalent when interviewed by the family consultant about this matter for the purposes of the Family Report.  Her former partner is also the father of her two youngest children and as recently as March 2020 she was engaged on her own evidence in a loud argument with him near her home. This argument was sufficiently concerning for the oldest daughter to contact police for assistance and I cannot disregard the police record which indicates that this daughter complained that the mother and her former partner were involved in a physical altercation which occurred at the home.

5. In all of the foregoing circumstances and attaching particular weight to the evidence of the family consultant and my various findings as explained, I cannot be satisfied that the mother has sufficient capacity to protect her children from sexual abuse when in her care in the future. The specific risk posed by the mother’s former partner in this regard is in my view not sufficiently mitigated by the proposed orders.  Having regard to the likely impact of harm arising from any sexual abuse experienced by the children in the future if that were to occur, I assess the risk of harm in the mother’s care in this domain as unacceptably high.

Additional considerations: s 60CC(3)

1. Although in my view the need to protect the children from harm is so significant that my findings in relation to that matter are effectively determinative, I must also consider relevant additional considerations when determining the best interests of the children.

Views of the children and factors underlying those views

1. The views of the children about their future parenting arrangements are set out in the Family Report.  The family consultant was not cross-examined about this matter. 

2. The middle child expressed to the family consultant the clear view that she wished to remain living with the mother.  She presented to the family consultant as likely to be compliant with whatever arrangements are put in place for her.  Given this child’s age and her developmental stage the family consultant recommended that weight be placed on her views but also noted that there are significant risk issues which may take priority over this child’s views.

3. The son presented to the family consultant as a friendly boy who gave the impression that he did not want to speak negatively about his family members.  The family consultant said that notwithstanding that the son’s wish to live with his father may be influenced by cultural expectations, weight could be attached to that wish. However, the acknowledgement by the father and all parties that the level or risk is so high in the father’s household that it would not be in the child’s best interest to live with him is such that I do not attach weight to the view of this child about his living arrangements.  The family consultant also said that this child raised no concerns about his relationship with the mother and siblings and appeared likely to be a compliant child who may follow whatever arrangements are made for him by adults too much difficulty.

4. The youngest daughter expressed a preference to live with the mother but was desirous of a relationship with both parents while having some concerns about her safety with the father.  Given this child’s age and apparent developmental stage and noting that there are risk issues which may take priority over her views, the family consultant did not recommend that significant weight be attached to her views.

5. In relation to the each of the children I consider it appropriate to prioritise the matters of significant risk in each household over their views.

Nature of the children’s relationship with each parent and other significant persons

1. According to the family consultant as set out in the Family Report the children appear to have a familiar relationships with the father and his partner.  The family consultant was not challenged on this assessment or her observation that the father did not engage much with the children during observation, that none of the children appeared to be particularly close or warm towards him and he did not appear warm towards any of them.

2. The children’s relationships with the mother based on the observations session appeared to the family consultant be more warm and interactive than with the father. The mother was also observed to be more engaged with the children and responsive to them and their activities. 

3. All of the children reported to the family consultant when interviewed for the purposes of the Family Report that they had positive relationships with each other which appeared to be different to the way in which the children had presented during the Child Responsive Program interviews about six months previously. 

4. The oldest daughter who was interviewed on both occasions indicated that her negative views about her siblings on the first occasion was a result of the influence of the father’s partner. I cannot make a positive finding about this matter (noting that none of the parties wished to cross-examine the father or his partner) and I note that the family by this stage had begun to engage in FFT. I consider it likely that the improvements in the children’s relationships with one another is in part attributable to the benefits from FFT. 

1. The children also appeared to currently have positive relationships with their half siblings in each household though they considered that the father’s other child is treated differently to them and they perceive that child is favoured. The family consultant considered it possible that this will affect their relationships with that child and the father and his partner. 

2. The family consultant was not challenged under cross-examination in relation to her opinions concerning the children’s relationships. For this reason I accept her opinions which are in any event consistent with the other evidence in relation to those matters.

3. It is a matter of significance in my view that the proposal of the Department agreed to by the parties would see the children living together with the parent to whom they are most emotionally attached and to two of their half siblings and this clearly favours that arrangement. 

4. Any alternate arrangement that may potentially come about if the Minister were given parental responsibility for the children was only considered in a general manner as it is not the proposal of the Department to remove the children from the care of the mother even if an order were made for the Minister to have parental responsibility for them.

5. There was some general evidence about the approach that would be taken if such an order were made and the Minister in exercise of parental responsibility were to remove the children from the mother’s care. Such an arrangement would see the children likely separated from one another.  While this would be unfortunate and difficult for the children it remains unlikely that they will be removed from the mother’s care unless there was an immediate risk to  their wellbeing in which case the need to protect them from harm would be prioritised.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

1. It would appear on the limited available evidence that the parents were involved in joint decision making when the relationship was intact.  Following separation the father also initiated parenting proceedings but did not follow through with them with the result that orders were made in October 2015 that the mother have sole parental responsibility for the children, that they live with her and spend time with the father as agreed between the parties.

2. It is apparent that the children did spend time with the father generally by agreement between the parties and there were no changes to this arrangement until December 2017 when the father effectively demanded that the parties’ female children live with him following the sexual abuse allegation.  He did not commence any proceedings to vary the parenting arrangement at the time. 

3. The mother effectively relinquished the care of the son to the father shortly thereafter and was not involved in decision making or seeing the children for the following five to six months although she appears to have had some limited email and text message communication with them. The father then commenced proceedings seeking orders for sole parental responsibility and that the children live with him.

4. Due to significant concerns about risks in both households the Department intervened in the proceedings in the following month and from 2 July 2018 have held parental responsibility for the children. 

5. In summary while each of the parents have clearly wanted to be involved in the children’s lives they have been inconsistent and to some extent unreliable in relation to participating in long term decision making and spending time with or communicating with the children.

6. It would appear that each of the parents has financially supported the children when in their care and there is no evidence that either parent paid child support at a time when the children or any of them were living in the sole care of the other parent.  This is not a particularly weighty matter in these proceedings.

Likely effect of change in the children’s circumstances

1. If orders are made as sought by the Department there will be effectively no change in the circumstances of each of the parties’ daughters.  It is also likely that by the time this judgment is delivered the son will also be living with the mother (given the statement by the Department concerning the Department’s intentions).  This is a move that will also not bring about significant change given that the son had been spending extended time in the mother’s house and there will be no necessity for this child to change schools.

2. As I have found that there is an unacceptable risk of harm to the children if they are to live with the mother then the only possible alternate order is for the Minister to have parental responsibility for the children which will result in the children living as directed by the appropriate delegate within the Department.  It seems likely the delegate will direct that they all remain living with the mother.

3. As previously noted it is not the intention of the Minister to move the children from the current arrangement in which they live with their mother.  If the Minister did decide to move the children from the mother’s care this would likely result in a separation of the siblings from one another which raises risks for the children having regard to their relationships as previously discussed.  I am unable to make any other findings about the likely effect of a change in circumstances where such a matter is largely hypothetical.  

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. This is not a weighty matter in these proceedings.  In the event orders are made as sought by all parties and the children live with the mother and spend time with the father on one day each alternate weekend, there is no evidence to suggest that there would be any practical difficulty or significant expense arising from that arrangement.

2. Alternatively if orders are made that would see the children reside and spend time with the non-residential parent as directed there is no evidence to suggest that practical difficulty or significant expense would arise. 

Capacity of each parent and any other person to provide for the children’s needs

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

1. The family consultant raised a number of matters relevant to the capacity of each parent to provide for the children’s needs and in relation to the responsibilities of parenthood demonstrated by each parent.

2. Many of these matters such as exposure of the children to family violence in each household has been discussed earlier in these Reasons.

3. The family consultant was not challenged about the following impact on the children arising from exposure to coercive-controlling violence which I have found was utilised by the father in his relationship with the mother and in his current relationship:

   Exposure to coercive-controlling family violence in known to have a detrimental impact on children, including on their physical safety and psychological wellbeing. Furthermore, family violence of this nature can be associated with parenting deficits including inappropriate use of authority and/or coercive discipline methods which can escalate to physical abuse, a limited capacity to identify and meet the child’s needs, a limited capacity to separate a child’s needs from the perpetrators own needs and a limited capacity to tolerate age appropriate behaviour.

4. It is submitted on the father’s behalf that he has effectively addressed concerns about his parenting by participating in various programs including in particular the Family Action Plan and FFT facilitated by the Department. Notwithstanding the positive reports about the father’s engagement in FFT, I accept the opinion of the expert that was not challenged that FFT is not an appropriate form of therapy in relation to family violence and in any event the father when interviewed by the expert despite having completed this therapy had no knowledge about it. Further, I accept the opinion of the expert that none of the other interventions in which the father says he has engaged in relation to family violence (set out in submissions) have had any effect and the father remains at a high risk of reoffending and thus concerns about impairments in his parenting capacity remain.

5. The family consultant also opined that children who witness family violence may be more likely to experience mental health issues including anxiety and depression and they may have disturbances to their sleep and appetite. She also referred to the risks that the children may develop maladaptive conflict resolution skills and may be more likely to engage in risk taking and that their relationships with the perpetrating parent and victim parent may be negatively impacted in both the short and long term. Of significance in this regard the family consultant was not challenged in relation to the following opinion:

   It appears that these children have witnessed family violence and/or significant conflict and aggression and it is likely that this has negatively impacted them in a lasting manner. These children presented as having a somewhat minimising attitude towards family violence particularly when [the middle daughter] referred to violence as having occurred only once or when [the son] said that the bruise was not that big. It may be the case that these children have become accustomed to violence and it has been normalised for them as a way that adults relate to each other in intimate relationships or as a way to dominate someone, and/or as an acceptable way to resolve a conflict.

6. In my view it remains a matter of significant concern that although the family have clearly received some education and beneficial information about the use of violence and coercion, as recently as March 2019 the middle daughter was suspended from school for physical violence and aggression towards another female student in which staff were injured and that the oldest daughter was involved in this argument.  Both daughters also had some involvement in a further incident that was thwarted by police and the middle daughter did not express remorse about the incident.  Although it is recorded in school counsellor notes that while the mother had attempted to stop these two daughters from attending at the further incident it is noted that she encourages the children to “defend themselves if attacked”.

7. Documents produced under subpoena indicate that all of the children have had a history, in the words of the family consultant, “concerning levels of absenteeism” from school. This has occurred at times when the children have been living with the mother or the father. As opined by the family consultant, it is important for the children’s development that they attend school daily except with a reasonable excuse and appropriate school attendance (or knowledge of and following up truanting issues if they are present) is an important responsibility of parenthood.

8. The father’s pattern of alcohol consumption and possible illicit substance use is not only relevant to the issue of family violence as discussed earlier but as explained by the family consultant is known to have a detrimental impact on parenting. In relation to these matters, the family consultant said the following:

   [Parental substance misuse] reduces the likelihood that a parent would be able to identify a child’s needs, provide consistent sensitive and attuned care and increases the risk of a child being exposed to physical abuse and neglect. A parent’s availability to their child also decreases with substance use and children can experience the parent as inconsistent, confusing or frightening.

   It would appear that the alcohol misuse, at the minimum, has been a factor in a significant instance of family violence. If [the father] has ceased misusing alcohol this would be considered a positive change and likely to improve his parenting and his relationships… If the Court finds that [the father] has not ceased misusing alcohol, it is likely this will increase the risks associated with family violence, and also possibly excessive physical discipline of the children.

9. The issue of the mother’s capacity in relation to protecting her children from the harms associated with sexual abuse and prioritising her own needs for a relationship over the need to protect the children from harm (even if that occurred for only a matter of months) are matters that I have dealt with at length earlier in these Reasons.

10. There is considerable overlap between impairments in each parents’ capacity to meet the needs of the children and exposure of the children to unacceptable risks of harm in the care of each of the parents.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

1. The children are from Country C and the culture and traditions of that heritage appear to have permeated many aspects of the manner in which they have been raised. The benefits that they may receive from being raised in this context will continue under the orders proposed by the Department and agreed by the parties.

2. In my view, the children will also continue to have connections with their culture and heritage in the event that orders are made for the Minister to hold parental responsibility for them. As discussed earlier in these Reasons, if the Minister were to exercise parental responsibility for the children this would occur in accordance with the relevant state legislation. One of the principles for administration under the state legislation deals specifically with such issues[26].

   [26] Section 9 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that “in all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child and young person and, if relevant, those with parental responsibility for the child or young person”.

Family violence

1. The issue of family violence assumed great significance in these proceedings and has been dealt with at length earlier in this judgment.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. In my view, this is not a weighty factor in these proceedings.

Any other relevant fact or circumstance

1. Each of the parties appears to recognise that the only alternative to the orders proposed by the Department is an order that the Minister have parental responsibility for the children. No party promotes such an order as one which is proper or in the best interests of the children.

2. Counsel for the Department in particular went further and submitted that the scaffolding in place in the proposed suite of orders (particularly the 12 month supervision order and the various restraints) would provide an even greater level of support for the children and safety net for the mother to assist her in consolidating her protective and parenting capacity than the only alternative arrangement under which the Minister would hold parental responsibility. Counsel for the Department also attached significant weight in advancing its proposal to the legislative context in which any parental responsibility allocated to the Minister would operate. Counsel went so far as to submit that if I were to find that the children were exposed to an unacceptable risk of harm if orders were made as proposed, then the appropriate “solution” would not be an order of parental responsibility to the Minister as a result of the disconnection between Federal and State child-related laws.

3. While the circumstances of this case demonstrate the disconnect or the unsuitable fit of either State or Federal law for these children I do not consider it proper to make orders that will bring about an arrangement whereby the children are to live with a parent who I have found poses an unacceptable risk of harm to them.

Conclusion

1. For all of the foregoing reasons I am not satisfied that it is proper having regard to the best interests of the children for orders to be made as proposed by the Department and agreed by the other parties. For the reasons given and discussed at length I consider it proper to make an order that the Minister have parental responsibility for each of the children. Although counsel for the Department submitted that if such orders were made I make no other parenting orders, counsel appeared to concede that it still may be appropriate to make some of the restraints contemplated.

2. I am of the view that the restraint upon the father permitting the children or any of them from living with him other than in accordance with a court order is appropriate and such an order been agreed to by him. This will safeguard against the possibility that any relevant person may consider it appropriate to effectively allow the children or any one of them to live in the household of their choosing which would not be in their best interests given the very high level of risk posed by the father.

3. So far as restraints upon the mother are concerned, given the particular risk associated with her former partner, I consider it appropriate to make an order restraining her from bringing the children into contact with her former partner or allowing that to occur.

4. For all of the foregoing reasons, I make all of the orders set out at the forefront of these reasons for Judgment.

I certify that the preceding three hundred and eighty four (384) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 29 October 2020.

Associate: 

Date:  29 October 2020