PEL and NAL - [2006] FMCAfam 594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PEL & NAL

[2006] FMCAfam 594

FAMILY LAW – Children – removal from long term carer – risk of harm – physical and verbal abuse – exposure to family violence – disclosure by child to family consultant – child fearing violent parental retribution.

COSTS – Application by Independent Children's Lawyer.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 117(2A)

B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755

Applicant:

PEL

Respondent:

NAL

File number:

NCM1of 2005

Judgment of:

Halligan FM

Hearing date:

19 October 2006

Date of last submission:

19 October 2006

Delivered at:

Parramatta

Delivered on:

19 October 2006

REPRESENTATION

Solicitors for the Applicant:

Father In Person

Solicitors for the Respondent:

No Appearance

Counsel for the ICL

Ms Gillies

Solicitors for the ICL

Slater and Gordon

ORDERS

The parties and the Independent children’s lawyer have leave to inspect documents produced on subpoena by B Public School and G Public School and the documents produced by G Local Court.
That the children, namely:
(a)BRL-L (female) born 20 September 1994; and
(b)AGL-L (female) born 14 March 1997,
live with the father.
The father have sole parental responsibility for making decisions concerning the care, welfare and development of the children.
The mother spend time with the children on two occasions with those times being appointed and supervised by a family consultant of the Family Court of Australia at Parramatta pursuant to section 65L of the Family Law Act.
The parties are restrained from denigrating each other in the presence or hearing of the children and shall use their best endeavours to remove the children from the presence of any other person who is denigrating the other parent in the presence of the children.
The father is restrained from using Cannabis during periods that the children are living with him.
The mother is restrained from allowing Mr H to come into contact with the children.
The parties are to complete the intake procedures for supervised sessions to occur between the mother and the children and their half-siblings with:
(a)Centacare Campbelltown; and
(b)Penrith Contact Centre
within fourteen (14) days of these orders.
The children shall communicate with the mother by telephone in accordance with their wishes and the father is at liberty to terminate any such call at his discretion.
The father shall use his best endeavours to provide a telephone to the children to allow them to communicate with the mother.
The father shall attend a parenting course as nominated by the Independent Children’s Lawyer.
The father shall take both children to a general practitioner for a general health check up and shall follow up on any referrals or recommended treatments made by the general practitioner.
Pursuant to s.62G the family consultant supervising the time the mother spends with the children under order 4, shall prepare a report in relation to interaction between the mother and the children during that time and any concerns for the children’s welfare which may arise from that interaction if the children were to spend time with the mother either supervised at a contact centre or unsupervised having regard to the family report exhibit A.
The matter is listed for mention at 9.30am on 15 December 2006.
Both parties and the Independent Children’s Lawyer may apply to re-list the matter in the meantime on 7 days notice.
The Independent Children’s Lawyer’s costs application is dismissed.
The Independent Children’s Lawyer shall cause the mother to be personally served with a sealed copy of these orders as soon as possible.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

NCM1 of 2005

PEL

Applicant

And

NAL

Respondent

REASONS FOR JUDGMENT

(As Corrected)

These published reasons have been settled and revised from the transcript of reasons given orally.
This is the hearing of parenting proceedings concerning two children, B born 20 September 1994 who is now aged 12 and A born 14 March 1997 who is aged 9 and a half. The matter today is proceeding in the absence of the mother. Before the Court are the father and the Independent Children's Lawyer and his counsel.
The mother, on the material before the Court, is clearly aware that this matter is listed today. She is not present. The circumstances behind that include that her solicitors ceased to act for her and a notice of ceasing to act was filed on 5 October. That is two weeks ago. That notice of ceasing to act clearly records that the matter is listed for hearing today. It incorrectly lists the time as 9.30 but that is immaterial.
Even though those solicitors therefore from that point ceased to act, they nonetheless wrote a letter to the Court on 6 October 2006, that is the very day after the filing of the notice of ceasing to act, indicating that despite them having recently filed the notice of ceasing to act, the mother had asked the solicitors to write to the Court and request that the dates of the final hearing be vacated and a new timetable set. It was also indicated that the solicitors writing on behalf of the mother had been contacted by another firm of solicitors in Bowral who represented that the mother had approached them to represent her. It was suggested that these solicitors would be in a position to represent the mother if the current hearing dates were vacated and a new timetable was set. No approach from this firm of solicitors apparently has been made to the Court and certainly no application has been made by them on the mother's behalf and they are not at present representing the mother before the Court today to make any such request.
In the circumstances and bearing in mind the very long history of this case and the matters in the evidence that I will come to, I am satisfied that this matter needs to be determined to the extent that it can today, and that it is in fact not in the children's best interests that there by further delay.
Some of the delay in this matter in the past has been caused or contributed to by the mother's serial failures to attend Court on various dates for various suggested reasons. They are usually revolving, as I understand it, around either assertions of her inability to afford to travel from G where she currently lives to Parramatta, the matter having been transferred from Newcastle to Parramatta on her application, or otherwise in relation to her childcare responsibilities.
In that regard, I should note that there are in fact four children who were until very recently in the mother's care, namely; the subject two children plus another two children that the mother has had to a subsequent partner, namely; MH born on 22 March 2001 and JH born on 19 January 2003.
The family report in this matter has been released in somewhat unusual circumstances. The Independent Children's Lawyer applied that it not be released through chambers to the parties and I observe that both parties at the present time are without lawyers. The Independent Children's Lawyer applied for orders that the family report be released in the first instance to the Independent Children's Lawyer, that the matter then be adjourned to a further date and both parties directed to attend, and in the mother's case that she be directed to bring B and A to Court and to place them in the childminding centre, and thus it was suggested that the children's welfare would be protected.
The reason for that application, which I granted when it was made ex parte, was that the family report to be released indicated serious grounds for real concern that the children's physical and emotional health was at real risk if they remained in the care of the mother, and further, that that risk, particularly of physical harm, may well be exacerbated if in fact the family report was released through chambers and made available to the mother in the usual way.
Pursuant to the orders that I made on that application, the matter came before me last Friday, 13 October. The mother did not attend. She had attempted to communicate with the Court to suggest that she simply was unable to come. Those communications were received from the Family Support Service the day before. She did not come and did not bring the children.
Again, for reasons which will become apparent shortly, I was satisfied that the evidence raised such serious concerns for the children's physical and emotional health that the clear status quo in the mother's favour up to that point had to be reversed and at that point it looked as though it could only be effectively reversed by the intervention of the police through a recovery order, and I therefore made orders that the children spend time continuously with the father until today and that a recovery order issue to achieve that result. I understand that later in the afternoon on the 13th the recovery order was executed and the children have been with the father ever since.
Even though the mother ultimately is not before the Court to present any evidence, I nonetheless do note that this matter has been marked during the course of its rather long and tortuous history in the Court by mutual allegations between the parties of domestic violence. Certainly, the mother has made allegations against the father of serious domestic violence when the parties were together and after. And there would appear to be some corroboration in admissions made by the father in the witness box today of certain incidents of violence against the mother at and shortly after the parties separated. There have also been allegations made in these proceedings against the father by the mother of drug taking and, as I understand it, drug dealing. The mother would appear to have the view that the father is an entirely unworthy character to be involved in the life of the children.
The father's case, as I understand it, is largely that the mother in fact has been involved in a relationship ever since the parties separated with Mr H, that Mr H is a violent drug taking individual, and that even though the mother herself has suggested that she and Mr H are not living together, that they in fact are. His case also is that in that violent relationship, the children are being exposed to family violence and that on the basis of other information now at hand that the children in fact have been physically abused by both the mother and Mr H, and that the mother and Mr H have exposed the children to drug taking and that certainly in relation to B, the child has been involved quite unreasonably in assuming what is largely an adult role within the household, including significant responsibilities in the care of her youngest half sibling J.
I acknowledge the matters raised by the mother in her material for completeness even though she is not here because, in my view, the Court needs to take account of the fact that based upon some of the material that is before the Court, it may be, whether for the reasons the mother has advanced in the past or perhaps for other reasons, that the mother genuinely is unable to attend Court today. Notwithstanding that, I am satisfied that this is a matter which I think the children's best interests dictates that I proceed to determine.
The law applicable to this case is found in Part VII, Family Law Act 1975. The court may make such parenting order as it thinks proper, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). In deciding whether to make a particular parenting order, the court must regard the child’s best interests as the paramount consideration (s.60CA), and must have regard to the objects of Part VII and the principles underlying it as set out in s.60B (B & B: Family Law Reform Act 1995, (1997) 21 Fam LR 676, (1997) FLC 92-755). In deciding where the child’s best interests lie, the court must have regard to the primary and additional considerations set out in s.60CC(2) and (3).
Under s.61DA, it is prima facie in children's best interests that their parents equally share parental responsibility for them. That is a presumption that does not apply in some circumstances and may be rebutted in others. If the court intends to make an equal shared parental responsibility order, or if such an order exists and is not to be discharged, the court must consider making an order that the children spend equal time with the parents, and if it does not intend making such an order, must consider making an order that the children spend substantial and significant time with each parent (s.65DAA).
The evidence in this matter satisfies me that these children have both been abused by the mother and Mr H and on a long term and ongoing basis have been and are being exposed to domestic violence in the mother's household. In relation to the presumption that equal shared parental responsibility is in the children's best interests, I note that under the provisions of s.61DA(2):
This presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child who at the time was a member of the parent's family or that other person's family or family violence.
I have just said I am satisfied that both these limbs of sub-s.(2) are satisfied in this case and therefore the presumption does not apply.
The reason I am so satisfied is based largely on three aspects of the evidence and they all largely draw on the same source, the children.
Firstly, in the family report it is indicated that B presented as initially unsure, uneasy and guarded in the interview situation. She sought reassurance from the author of the family report that her disclosures would not be revealed to the mother. The author of the family report indicates that whilst she could not assure B of this, she did tell B that she would do her utmost to protect the child from the consequences she fears.
The child indicated that she had spoken to the Independent Children's Lawyer earlier in the day and was afraid that the walls of his office were not soundproof enough and that her mother may have heard her. Accordingly to the family report, para.25 and following, this is what B disclosed and I quote:
25. B gave an account of her average day which involves getting up in the morning, making her bed and that of her brother, preparing breakfast and lunch for her siblings and taking her younger siblings to pre-school. In the afternoons except for Monday and Wednesday when she attends PCYC she said that her jobs are hanging the washing on the line, changing the kitty litter, picking up the dog droppings and helping her mother with the vacuuming.
26. B described her life in both households. She stated that her mother's household is comprised of her mother, Mr H, A and her half siblings Mia and Jack. She indicated that she was under instructions from her mother to say that Mr H does not live with them. When she is with her mother she said that she enjoys watching television, playing on the computer and playing with her brothers and sisters. She stated that she is often unhappy in her mother's household for a number of reasons which she disclosed but prefixed with a fear that she would, 'get flogged if they find out'. She appeared extremely distressed as she spoke about her experiences in her mother's household and sobbed uncontrollably. She listed that her mother and Mr H refer to her and her sister with words such as 'idiots, bitches, Dumbo the elephant and big ears'. She also said that they, 'yells at us, tells us off when we don't do the right thing', and threatened that, 'they will knock my head off my shoulders and punch me out', if, ' I don't do what they say'. B also stated that she had been, 'hit, kicked and punched by her mother and Mr H', and referred to an incident which she said was, 'really bad', when Mr H rubbed a soiled nappy in her face and after she began to cry he said to her, 'shut up you cry baby'. She mentioned that in the previous week her mother, 'punched A in the head and kicked her'. B stated that she has also seen family violence between her mother and Mr H and feels, 'scared that he will hurt Mum'.
27. It is B's view that she is expected to act like an adult in her mother's household and is reprimanded if she does not rise to the occasion. She feels as if her mother gives her half siblings preferential treatment and became distressed when she disclosed that she is unable to bring any gifts home from visits with her father because Mr H and her mother threaten that they will smash them unless there is one for every child.
28. B stated that her visits with her father are a relief for her and referred to how she cannot have any privacy in her telephone calls with her father because her mother is listening and, 'makes notes in a book'. She said her father treats her, ' like a 12 year old', and they have fun together such as, 'going to the pool, shopping, seeing aunts and uncles and grandma and pop, helping Dad cleaning up and making breakfast and lunch'. B stated that when she visits her father, 'everything is good, Dad doesn't hit us and says try better next time when they make mistakes'.
29. When I asked B what she hoped could happen in her family she said, 'I just wish I could live with Dad and do sport'. She mentioned that she was under pressure from her mother who had given her directives to tell Mr Whelan (the Independent Children's Lawyer) that she only wanted to see her father on a monthly basis to which B said, 'I couldn't live with that'. B listed that one of her fears should she live with her father is that she will not be able to sleep because her mother and Mr H will drive past at night.
According to the family report, B indicated that she had spoken to her father, grandparents and some adult friends in G about her unhappiness and in fact she indicated that she had been “grounded”, in her terms, for visiting a woman friend of her mother's who had become something of an emotional support to B.
The reporter indicates that B said that she was happy to be leaving with her father on the day of the interview with the report writer because otherwise her mother would “ask me all questions about what she had told me and Mr Whelan”.
B also disclosed to the report writer that both the mother and Mr H smoke marijuana and that the children are sent to their room when that happens. The child repeated a number of times to the report writer that she was fearful of the consequences if her disclosures to the report writer were revealed to the mother.
A being somewhat younger appeared to be somewhat less forthright, although she too made certain troubling disclosures to the report writer. She too indicated that the household includes Mr H, it having been the mother's position as I understand it for some time that she and Mr H were living separately. That is certainly what she indicated to the report writer.
A too indicated that she did not like it when she gets hit by her mother when she is naughty and she too reported that her mother calls her names. In comparison she said that it was fun with her father and he did not hit them, however she did indicate that she did not like it when the father called the mother “a nutcase”.
The child reported to the report writer that she was due to have an operation and that the mother was not proposing to tell the father because she did not want a fight at the hospital. The child, as did her elder sister, referred in the interview to having witnessed the mother punch her father in the head and rip his shirt. This appears to be a reference to an incident reported by the father and recorded in exhibit B, the relevant parts of the police record, as having occurred at a contact changeover on 31 July 2005.
The report writer observed that A seemed concerned to be seen as fair in disclosing her views and in fact indicated that she would like to live with her mother for two weeks and with her father for two weeks. She said that that would be fair because she would get to spend the same time with each parent.

The report writer understandably, from what I have just quoted, assessed that there were real concerns in relation to these children potentially being at risk. She writes:
41. This assessment raises some serious questions, however, about the extent to which the children are at risk in that household (namely the mother's) on several counts and which cumulatively pose even greater concerns. Firstly, there is the issue of violence perpetrated by both their mother and Mr H. While she says he is no longer her partner and he was not present on the day of the assessment, this does not seem to be supported by the children's disclosures. There was no documentation on the file of documents to support the veracity of the father's allegations, however if they are correct they are of concern in terms of risk for all the children in the household. Secondly, this assessment was unable to ascertain a clear picture of the mother's current mental health status, however on the day of the assessment there were some concerns about her presentation which warrant further investigation. Thirdly, the extent of drug use in her household is unclear. Fourthly, there are indications from both the children's disclosures and the behaviour observed on the day of the assessment that the children are under considerable emotional duress from their mother and are subject to emotional manipulation which is undermining of their father. Finally, the older child B also seems to be elevated into a pseudo adult role and is being expected to perform care duties for her siblings and to protect her mother in ways that seem to be excessive for her age. These factors raise alert about the safety of the children in their mother's household and begs the question of whether their development is likely to be compromised if the status quo is allowed to continue.
42. Mr L, the father, presented as committed and concerned for the children's welfare although he remains untested as the primary care giving parent. He nonetheless seems to be proposing arrangements that would secure the children's stable and safe care and is also not adverse to the children having a relationship with their mother if they can be assured safety.
The matters that go to the question about the mother's mental state being raised as an issue flow from observations that were made at para.17 of the report as follows, and I quote:
Ms Lewin, the mother, presented as flighty, disjointed and erratic and at times inappropriate in her affect. It was quite difficult to obtain a cohesive account of her past and current life situations from her.
The Independent Children's Lawyer was able to obtain an affidavit from the apparently now former friend of the mother who was referred to by B as being something of an emotional support to her formerly in G, the person B said that she had been “grounded” for visiting. The person's name is SN.
The matters that are covered in the affidavit of Ms N tend to support much of what the children said to the report writer. Certainly Ms N indicates that she has observed both Mr H and the mother in their interaction with the children. She said that when she first met the two they were using both speed and marijuana. She said that both of them, to her understanding and at her urging, eventually stopped using for about nine months. But she then noticed them get back into the drug taking and says that she has directly observed each of them taking marijuana and speed again.
She says that she has concerns for the welfare of the girls. She says that as a result of her observations of the children with Mr H and the mother there is rarely food in the cupboards, and the children do not seem to have the barest necessities. She has seen that whilst it appears that there is not enough money in the house to provide adequately for the children, she has seen Mr H bring home a DVD player and surround sound system. There is of course a presumption in that that it was purchased. It is also said that there seems to be enough money for their purchase of drugs but not for the provision of the necessities for the children.
Ms N says that she has personally observed both Mr H and the mother physically hit each of B and A. She said she saw this happen at various times from about late 2004 or early 2005 which is about the time the mother moved to G, up until about May or June 2006 when her association with the mother ceased. She says that she has seen the mother hit both B and A with the back of her hand across the face and she has seen the mother pull each of the children by their hair.
She says she has seen Mr H hit both B and A in 2005 and in the early months of 2006. She says she has seen and heard the mother scream at the girls. She says that whilst as a parent she may understand that some times a parent may raise his or her voice to children, she describes this as being different from anything she has ever seen as the mother really screams. She says she has heard both the mother and Mr H verbally abuse the girls and has heard each of them describe the girls as “little bastards”, “fucking sluts”, “fucking cunts”, and “fucking dogs”. She says she has seen the mother scream into the girls' faces

“I hate your fucking guts”.
She said she sought to assist the mother to learn different ways of dealing with the children but it would seem that those efforts were unsuccessful.
She says that she has seen the mother with bruising on her face and when she has asked the mother about it, the mother has said that Mr H hit her. She says that when B comes home from school she has heard her mother greet her with the words “B, there is washing on the line to come in”, or “B, you didn't take out the garbage”.
She says there are no cuddles or kisses for the girls when they come in. B is simply made to work. She said that she has seen Mr H physically kick B and A up the backside.
The disclosures by the children and the evidence from Ms N is the basis upon which I find that these children have been physically, verbally, psychologically and emotionally abused by both the mother and Mr H. To the extent that that abuse has been from Mr H, it has occurred in circumstances where there is no evidence that the mother has sought to protect these children at all.
It also satisfies me that there is consistent domestic violence within the household of which these children formed a part until last Friday, between the mother and Mr H. This finding is also supported by the parts of the subpoenaed records from the New South Wales police service which are exhibit B.
In these circumstances the evidence clearly raises as a very strong issue the second of the two primary considerations relevant to the welfare of these children. The first of those primary considerations of course is the benefit to the child of having a meaningful relationship with both of the child's parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Whether or not a healthy, meaningful relationship is possible between these children and their mother is something which on the evidence as it currently stands has to be called into question. It would seem that these children are abused in various senses by their mother and by her partner where the mother does not seek to protect them. It seems that certainly B is required by the mother to perform roles within the household which are rightly hers, not Bs, and which to a large extent deny B her childhood.
It would seem that while both girls clearly love their mother and it would seem at the moment are missing her, nonetheless the mother/daughter relationship is quite dysfunctional. These children have been in the mother's primary care from birth. On the other hand, the father has had only spasmodic and intermittent involvement with these children since the parties separated some six or so years ago, albeit in circumstances where he suggests and I am satisfied it to be the fact, this was because the mother has failed to comply with Court orders. There was a hiatus in his time with the children from when the mother moved to G in around Christmas 2004 until as recently as August this year. It is also the fact that the longest time that the father has had the children in his care is about two weeks.
In those circumstances, it is perhaps not surprising that dysfunctional though the relationship might be in many respects between mother and daughters, and despite the abuse of these children by the mother and her partner, they nonetheless love her and miss her. However, the children must be protected from harm.
Turning to the additional considerations that are relevant in this particular matter under s.60CC(3), the views of the children are significant, particularly B’s very clear wish to live with the father and not the mother.
A's views that she might spend equal time with each parent, in my view, bearing in mind her considerably younger age, need to be treated with some caution. There is certainly some indication that they do not accord with what B said the two of them had been told to convey as their wishes to the family reporter by the mother. But I am concerned that the child at such a young age, under the guise of suggesting she wished to be fair, is perhaps adopting something of a care role for her own mother. Or again it could be that she felt this was as far as she could go in expressing a view contrary to the mother's instructions without unacceptably severe consequences for her from the mother. I also cannot ignore the prospect or possibility, particularly with A having been in the sole care of the mother for the vast bulk of her life, that there may be some fear if she cuts off all connection with her mother as to her future care and nurturing. That is not to suggest that she does not have a good relationship with the father, but simply that she might not have at her age any clear concept of a viable alternative despite her relationship with her father.
In any event, the children's views must give way when the evidence of the risk of physical or psychological harm from abuse and exposure to family violence is as serious as it is in this case.
I have already touched indirectly on the nature of the relationship of the children with each of the parents. I am satisfied that each child loves each parent but the reality here is that B has had enough. For A she perhaps has not got to that point or for the other reason that I have just mentioned there may be some reasons for not giving full weight to her views. I am certainly satisfied that these children, despite the mother's negative attitudes towards the father and despite the mother apparently doing a lot, if not all she could, to hinder a relationship between the girls and the father, do have a good relationship with him.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent is a live issue in this case. I am satisfied that the mother has sought to hinder the children's relationship with the father. I am also satisfied that the father has been insensitive to his actions on occasions, so far as their impact upon the children's relationship with their mother is concerned, and I have already mentioned A's comments about her being troubled by the way that the father describes the mother in her presence on occasions. The father acknowledged in the witness box today the inappropriateness of that. Even though he does not change his view of the mother, he certainly suggests in the witness box that he appreciates the need to, on some occasions, keep his views to himself or at least away from the hearing of the children.
The next relevant factor is the effect of any changes in the children's circumstances upon them. Clearly, there must be a significant change for these children under the proposals that are being put and in fact under the order that I made on a temporary basis last Friday. The children have been in the sole care, as between these two parents, of the mother for a considerable period of time. They have been taken away from the only primary carer that I am satisfied A has seriously known and that B has known for the majority of her recollectable life.
In those circumstances, there must clearly be some sense of loss by these children from having been taken out of their home. There must also be some sense of loss to these children from now being away from their younger half siblings and I anticipate that it is possible, although interestingly it has not been mentioned anywhere in the evidence today, that B may be feeling some concerns for the welfare especially of J for whom she apparently fulfilled a significant care role. These are clearly matters that would in isolation argue against a reversal of the care arrangements that applied up until last Friday.
On the other hand, a likely effect of the change by placing the children in the primary care of the father is that these children would be removed from an abusive household and that they will be removed from the opportunity to suffer further physical abuse from the mother and her partner and further psychological harm by being exposed to further family violence. Ultimately, I am satisfied that the need to protect these children and therefore that positive effect of change is far greater than the significant negative effect upon the children of them having been uprooted from the home they have known for such a long time and being separated from their half siblings.
The next relevant matter is the practical difficulty and expense of effecting the children spending time with and communicating with, in this case, on the father's proposal the mother, and if I left the situation as it previously existed with the father. The mother in the past, as I say, has advanced various reasons for contact as ordered by the Court not occurring. As I understand it, according to the father, she has peremptorily and unilaterally moved from S down to G and frustrated the contact orders he had up to that point, simply informing him that he needed to go and get new orders.
Clearly, the geography in this case is a relevant consideration. Frequent contact is going to be difficult because of the amount of travel involved, whichever parent the children may live with. The mother may have some greater difficulty in meeting costs of travel than the father in one sense. However, the practical difficulties will not be made any less or any more on whichever of the two alternatives are available to the Court today that is the children primarily living with the mother or primarily living with the father. Therefore, I take the view that this consideration is neutral.
The next relevant consideration is the capacity of each of the parents to meet the children's needs including their emotional and intellectual needs. It would seem that in the past the father has exposed these children to family violence. There are, as I understand it, admitted incidents at and not long after separation. However, the evidence does not satisfy me that there has been anything like the protracted continual incidents of arguments and violence between the mother and Mr H that these children have been exposed to since about 1999 or 2000.
The police records in relation to this certainly go back some considerable of time and, despite the mother seeking to assert to a number of people that she does not now live with Mr H, and has not lived with him for some time, tend to confirm that she continues to do so and is unwilling or perhaps unable to bring that relationship to an end.
I am concerned, therefore, that the mother, whether she appreciates the adverse effects of this family violence upon the children or not, is unable to meet these children's need to be protected from the psychological harm that family violence causes. On the one hand the mother has complained in the past long and loud about the adverse effect upon the children of the family violence by the father. Yet as I say, almost since these parties separated she has been in a relationship, a violent one, with Mr H. In those circumstances, I in fact find that the mother is aware and conscious of the damage to children of being exposed to domestic violence. She alleges that very risk and harm to the children from the father's alleged violent actions in the past. She cannot have her cake and eat it too. The father's alleged violence was detrimental to the children. Mr H's is too.
I take account also of the fact that according to the family report, B has commented on the inability to speak freely with the father on the phone because the mother eaves drops and makes notes, and I take account of each of these parties' negative speaking and denigration of the other in the presence of the children. That too speaks of an insensitivity of both of them to the needs of these children, that is to have to the greatest extent possible a positive and worthwhile relationship fostered with the other parent. If that relationship is not forthcoming it needs to be the result of the parent with whom the relationship is to be had, not because of denigration of that parent by the other parent. On balance, I am satisfied that this consideration fairly strongly favours the father.
In relation to the next consideration, the maturity, sex, lifestyle and background of the children and the children's parents, I simply note the respective ages of the children that I have referred to and the fact that in circumstances here B at her age is entitled to have her views given considerable weight prima facie and A to some lesser extent.
There are no issues of Aboriginality or Torres Strait Islander heritage raised in this matter.
The next relevant consideration is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. In considering this, and also in considering the willingness and ability of each of the parents to foster a relationship with the other parent, I am required by sub-ss.60CC(4) and (4A) to have regard to the prior behaviour of the parties and particularly since separation. I repeat the observations that I have already made relevant to this particular consideration and I am satisfied that the mother has actively sought to frustrate a relationship between the father and the children and that demonstrates a poor attitude to the children and her responsibilities as a parent. The father to some lesser extent is warranting of some censure on the basis of his bad mouthing the mother or speaking ill of her in the hearing of the children. The exposure of the children to family violence already referred to is also here relevant. On balance, I am satisfied this consideration weighs in the father's favour.
The remaining two relevant considerations revolve around family violence and I have said enough about that already.
There appear to be only two options available. First, to leave the current situation in place as covered by the orders which have the children living with the mother and seeing the father on alternate weekends, an arrangement which has been problematic in the extreme in the past and has only been operating regularly in the recent past since August. Second, the arrangement proposed by the Independent Children's Lawyer and supported by the father, that the children live with the father, that the father have sole parental responsibility for the children, and that the mother spend time with the children on two occasions with those times being appointed and supervised by a family consultant of the Family Court under s.65L of the Family Law Act. After those two periods, it is proposed that a report be prepared by the supervisor for the Court as to the course of those two occasions. Otherwise, the Independent Children's Lawyer proposes that each of the parties be restrained from denigrating the other in the presence or hearing of the children and doing their best to stop others from doing so, that the father be restrained from using cannabis during periods the children are with him, that the mother be restrained from allowing Mr H to come into contact with the children, and in anticipation of the possibility that the matter may move on from here to some supervised time with the mother, that the parties complete intake procedures with both Centrecare Campbelltown and the Penrith Contact Centre to get on the waiting list.

I am satisfied that the children's best interests require that they must live with the father. To leave them with the mother, in my view, is to expose these children to quite an unacceptable risk of physical, psychological and emotional harm. There is in fact a risk of that from unsupervised contact. There is even a risk of that from contact that might be supervised at a contact centre.
The author of the family report was cross-examined by the Independent Children's Lawyer, particularly in relation to the author of the family report's observations of the mother's demeanour and affect when she saw her, and the mother's demeanour and affect in a phone conversation with the Independent Children's Lawyer this morning, details of which he gave in oral evidence to me. It flowed from the expression of some concern that the mother's mental health might need to be assessed that is raised in the family report.
The author of the family report in cross-examination today expressed the view that she had real concerns about the welfare of the children if there was to be at least initially any time spent by these children with the mother other than in a highly controlled and professionally controlled environment. She suggested that in her view what was required was the presence of an appropriately qualified professional person, such as a family consultant, to very carefully regulate and monitor the interaction between the mother and the children, and to be in a position to appreciate the risks and if they materialised to act quickly to protect the children from the risk of harm if the mother sought to inappropriately interact with the children.
I have already indicated what the author of the family report observed in relation to the mother's affect when interviewed, namely, she was flighty, disjointed, erratic, at times inappropriate in her affect and had difficulty providing a cohesive account of past and current life situations. The Independent Children's Lawyer gave evidence of having called the mother, in fact at my request, when she was not present at Court today at 10 o'clock. The purpose of the call was to see whether or not she was intending to come to court but had been delayed on the way.
The evidence of Mr Whelan is that the phone call took about six and a half minutes. He says after he initially introduced himself and sought to identify the purpose of the call, thereafter he had very great difficulty getting a word. He said in fact that during that six and a half minute phone call, he only managed to get in a few sentences. The rest of the time the mother was talking.
He said that the mother was swearing a lot. On occasions she was incoherent. She was rambling. On occasions she was screaming and screeching and the things she said swung from current things to things occurring years ago. He said that she was quite abusive and incoherent. She was disjointed. She was erratic. Her language was peppered with frequent profanity and in quite an inappropriate way would, in a series of sentences but not in all sentences, repeat his name several times.
During the phone call this morning Mr Whelan said that at one point the mother made some comment suggesting she was at that time waiting for the mental health to come around. This too is further support for some concerns in relation to the mother's stability. It is certainly consistent with what the father says his experiences of the mother have been. It is consistent with the mother's affect and presentation at the interview for the family report. The phone call this morning would seem to be consistent with the mother's affect and behaviour on various occasions when the police have been called to domestic disturbances in her various households, as indicated by the police records in exhibit B.
The author of the family report expressed the view that the mother might understandably initially feel hurt, rejected and angry at the matters that the children had disclosed, particularly as they appear to be directly against her wishes. She expressed some concern, bearing in mind the mother's presentation to her and to Mr Whelan this morning, that to simply put the mother and the children together to spend time, even in a supervised setting in a contact centre, may expose these children to a risk of harm by the mother quite inappropriately talking to them, or at them perhaps. It might not necessarily simply be the mother attacking the children for going against her. It might simply be the mother speaking to the children in relation to inappropriate matters or in an inappropriate and alarming way. Certainly if the mother were unable to control herself sufficiently so that she was speaking in the ways that she did to Mr Whelan this morning, then there would be a clear concern for the welfare of the children in having that type of interaction with her.
This is perhaps a somewhat unusual result but in my view the result in this case that is required to ensure that the best interests of these children is protected and promoted is to make the order as proposed by the Independent Children's Lawyer. There needs to be some opportunity for these children to get back a relationship, or to resume the relationship, with their mother, but that opportunity needs to be highly controlled in a way to ensure the children's safety and welfare.
I am satisfied that initially time the mother spends with the children needs to be in a highly controlled and controlling environment. Two sessions in my view would be the absolute minimum before the Court could consider proceeding to any further options for the children spending time with the mother with equanimity. Proceeding in the way that the Independent Children's Lawyer proposes will provide the opportunity for there to be a qualified professional present who is trained and able to appreciate risks of harm to children and will be in a position, with backup if necessary, to ensure the children's safety and to be able to terminate any involvement or interaction between the mother and the children if the children's interests are being prejudiced.
The duration of that interaction is not specified and again I am satisfied that that is appropriate. To some extent, the duration, perhaps unusually, should be determined by the family consultant limited by only two factors. The time availability of the family consultant on the particular occasion having regard to the comfort level of the children in the particular setting.
By providing an opportunity for the matter to be brought back after that, with a report from the supervisor as to the interaction between the mother and the children that has been observed and any concerns for the children's welfare which might arise from that observed interaction if the children were to spend time with the mother either supervised at a contact centre or unsupervised, will better enable the Court to assess what, if any, further orders thereafter are appropriate to facilitate the relationship safely between the mother and the children.
As I say, it is clearly prima facie not in these children's interests and it will ultimately be quite detrimental to them to lose their relationship with their mother, or even to have it substantially interrupted. I am satisfied that the ongoing risk of physical, emotional and psychological harm to these children from the physical abuse that they have suffered and from the exposure to family violence that they have experienced is in fact even greater.
An application for the Independent Children's Lawyer's costs has been made seeking each party pay $3250 being half of the Independent Children's Lawyer's costs. Prima facie, each party bears his or her own costs but apart from that the applicant for a costs order bears the onus of proof of demonstrating why an order should be made. The Court must have regard to the relevant considerations under s.117(2A) in deciding that issue.
In this particular case, it is conceded on behalf of the Independent Children's Lawyer that whilst the father is in employment he now has the two children in his care and he has had to incur some expenditure on fairly short notice in providing for them. That has included at the very least and most immediately fresh bedding and school uniforms for them.
He has been paying child support consistently for the children whilst they have been with the mother. As I understand it, the mother's material suggests she is in receipt of a Centrelink benefit. It may even be on one view of the evidence that she is receiving one that she is not entitled to. But be that as it may, in those circumstances and where she currently retains the care of another two young children, I am satisfied that it would be unlikely that the father would be receiving any child support from the mother in anything other than a token amount.
In the circumstances, I am not satisfied that a costs order should be made. The father certainly opposed it and indicated that if one was made he would need time to pay. There is nothing otherwise that has been submitted on behalf of the Independent Children's Lawyer to support the costs order, and I am not satisfied one should be made against the father.
Similarly, I am not satisfied one should not be made against the mother because as I have already alluded to, she retains the care of two young children and is apparently in receipt of Centrelink benefits. In the circumstances I am not prepared to make the costs order sought.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 6 November 2006

CORRECTION

Paragraph 13 should now read.

The father's case, as I understand it, is largely that the mother in fact has been involved in a relationship ever since the parties separated with Mr H, that Mr H is a violent drug-taking individual, and that even though the mother herself has suggested that she and Mr H are not living together, that they in fact are. His case also is that in that violent relationship, the children are being exposed to family violence and that on the basis of other information now at hand that the children in fact have been physically abused by both the mother and Mr H, and that the mother and Mr H have exposed the children to drug-taking and that certainly in relation to B, the child has been involved quite unreasonably in assuming what is largely an adult role within the household, including significant responsibilities in the care of her youngest half-sibling J.