Petrarch and Strozzi and Ors

[2018] FamCA 638

FAMILY COURT OF AUSTRALIA

PETRARCH & STROZZI AND ORS [2018] FamCA 638

FAMILY LAW – CHILDREN – Best Interests – Where the Department of Family and Community Services has intervened – Where there are allegations the father has perpetrated family violence against the mother and the children – Where there are allegations the father has sexually and physically abused the children – Where both parents have serious deficiencies in their parenting capacity – Where the children are particularly vulnerable – Where the children’s mental health is of concern – Where each of the children appears to have a strong relationship with the maternal grandmother – Where the maternal grandmother, the mother and the children have been victims of the father’s violent and controlling behaviour – Where the Department permitted the children to live in the care of the father – Where the children’s concerning circumstances appear to have changed little following the Department’s involvement –Where the father poses an unacceptable risk of harm to the children – Where the Department should hold parental responsibility for the children – Where the father should be restrained from allowing the children to live with or have contact with him – Where the goal is for the maternal grandmother to ultimately hold parental responsibility for the children and for all four children to live with her – Where the goal is for the mother to spend time with all four children – Orders made.

Evidence Act 1995 (Cth) ss 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC, 68B, 68C

Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Orwell & Watson [2008] FamCAFC 62
Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32
Ruth & Hutton [2011] FamCAFC 99
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT: Ms Petrarch

RESPONDENT: Mr Strozzi

SECOND RESPONDENT:	Ms A Petrarch
INTERVENOR:	Secretary, Department of Family and Community Services NSW

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law  

FILE NUMBER: PAC 5215 of 2015

DATE DELIVERED: 23 August 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 11, 14-18, 23 May & 1 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sperling

SOLICITOR FOR THE APPLICANT: John Spence & Associates

THE FIRST RESPONDENT:	Mr Strozzi in person
SOLICITOR FOR THE SECOND RESPONDENT:	Ms Hernandez of Forshaw Lawyers

COUNSEL FOR THE INTERVENOR: Mr Anderson

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office   

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hayward of Legal Aid NSW Parramatta Family Law

Orders

1. That the Minister for Family and Community Services (“the Minister”) shall have sole parental responsibility for the children W born … 2002, X born … 2003, Y born … 2007 and Z born … 2009 (“the children”) for a period of 24 months from the date of these Orders.

2. Following the expiry of the 24 month period in Order (1), the maternal grandmother, Ms A Petrarch (“the maternal grandmother”) shall have sole parental responsibility for X and Z.

3. Following the expiry of the 24 month period in Order (1), in the event that Y is living with the maternal grandmother, the maternal grandmother shall have sole parental responsibility for Y and in the event that Y is not living with the maternal grandmother, the Minister shall retain parental responsibility for Y until the age of 18 years.

4. Following the expiry of the 24 month period in Order (1), the Minister shall retain parental responsibility for W until the age of 18 years.

5. That during such periods that the Minister holds parental responsibility for any child, any decisions relating to that exercise of parental responsibility shall be made in consultation with the maternal grandmother and the mother.

6. That upon allocation of parental responsibility to the maternal grandmother, any decisions made by the maternal grandmother relating to that exercise of parental responsibility shall be made in consultation with the mother.

7. That W and Y shall live with such person as directed by the Minister or her delegate.

8. That X and Z shall live with the maternal grandmother.

9. That X and Z shall spend time with the mother as follows:

   (a)       during the period that the Minister holds parental responsibility for X and Z at such times as approved by the Minister or her delegate and as set out in a contact schedule to be prepared in consultation between the Minister or her delegate, the maternal grandmother and the mother; and

   (b)       upon parental responsibility being allocated to the maternal grandmother in accordance with Order (2), as follows:

   (i)each alternate weekend from after school Friday until 4pm Sunday;

   (ii)for the first half of each NSW school holiday period;

   (iii)on Mother’s Day from 9am to 4pm; and

   (iv)such other times as agreed between the mother and the maternal grandmother.

10. That in the event that Y lives with the maternal grandmother, he shall also spend time with the mother in accordance with Order (9).

11. That W shall spend time with the maternal grandmother, the mother, X, Y and Z as directed by the Minister or her delegate.

12. That the children shall have no contact with the father.

13. That the father shall be restrained from having any form of contact with the mother and the maternal grandmother from the date of these Orders.

14. That pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father is hereby restrained from contacting, approaching or receiving communication in any form from the children, or facilitating any of the children having contact with him or requesting or permitting any other person to make contact with any of the children on his behalf.

15. That Order (14) is an order for personal protection of the children to which a power of arrest without warrant attaches pursuant to the provisions of s 68C of the Act.

16. That in relation to the care of any child under the parental responsibility of the Minister pursuant to these Orders, the maternal grandmother and the mother shall follow the reasonable direction of the Minister or her delegate in relation to (but not limited to) the following matters:

    (a)       allowing the Minister or her delegate to enter the residence where any of the children reside for random visits (to the extent that they are legally able);

    (b)       allowing the Minister or her delegate to enter the residence where any of the children spend time for random visits (to the extent that they are legally able);

    (c)       arranging for the Minister or her delegate to meet with the children at reasonable times as requested;

    (d)       participating in Family Therapy as arranged by the Minister or her delegate and facilitating the involvement of the children in such Family Therapy; and

    (e)       accepting all reasonable referrals to intervention and support services arranged by the Minister or her delegate and participating with those services as required from time to time.

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 Petrarch & Strozzi 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 5215 of 2015

Ms Petrarch

Applicant

And

Mr Strozzi

First Respondent

And

Ms A Petrarch
Second respondent

And

Secretary, Department of Family and Community Services
Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The four children of Ms Petrarch (“the mother”) and Mr Strozzi (“the father”) aged between 15 and eight (“the children”) have significant developmental damage as a result of problems and risks within each of the households in which they have been raised. 

2. At the commencement of a final parenting hearing the Minister of the Department of Family and Community Services (“Community Services” or “the Department”) held parental responsibility for each of the children.  Up until the fourth day of the hearing the oldest child was living with the father.  Two of the other children were living with the maternal grandmother and one of the children was residing in out of home care.  In the course of the final hearing the oldest child also moved to live with the maternal grandmother.

3. Each of the parties, being the parents, the maternal grandmother, Community Services and the Independent Children’s Lawyer (“the ICL”), propose different arrangements in relation to the children.  All of the parties other than the father contend that the father poses an unacceptable risk of harm to the children and seek orders that will see him have little or no contact with the children. 

4. All of the parties recognise that the maternal grandmother has played a particularly important role in the children’s lives and propose that this continue in varying ways.

5. The question for me to determine is which of the proposed arrangements is proper having regard to the best interests of the children as the paramount consideration. 

Background

The parties’ relationship

1. The mother who is 33 and the father who is 40 met in March 2001 when the mother was 16 and the father was 23.  At that time the father was on parole having recently been released from prison after serving a term of imprisonment for manslaughter.

2. Shortly after meeting, the parents began a relationship but did not ever live together for any length of time.  

3. In 2002 the parents had their first child, a daughter who is now 15 (“the oldest child”).

4. The parents had an on and off relationship which continued after the birth of the oldest child.  It was characterised by heated arguments and disputes and if the mother’s contentions are accepted by significant violence, coercion and control exercised by the father over the entire family.

5. The second child, also a daughter, (“the second daughter”) was born in 2003 and is now 14.

6. The third child, a son, (“the older boy”) was born in 2007 and is 11.

7. The youngest child, a second son, (“the youngest child”) was born in 2009 and was nine at the time of the final hearing.

8. The mother and maternal grandmother contend that the father was violent and controlling throughout the relationship.  They also allege that as the children grew up the father was violent and coercive towards them and denigrated the mother and influenced the children against her.  The father admits that he was violent to the mother on a few occasions but denies the allegations of long-standing and regular acts of violence towards her.  The father also does not dispute that on occasions he used physical discipline against the children but otherwise denies the contentions about violence towards them.  These allegations are central issues in the proceedings and are matters to which I will return.

9. On many occasions between 2002 and 2016 notifications were made to Community Services about risks of harm to the children posed by the parents including allegations that the father was violent towards the mother to which the children were exposed. Community Services investigated some of the complaints but did not take any formal action in relation to the family prior to being invited to intervene in these proceedings.

10. There were many occasions when the children were taken by the mother to be cared for by the maternal grandmother.  The youngest child has lived with the maternal grandmother all of his life.  The other children have spent significant time in the care of the maternal grandparents. 

11. In 2012 the father went to Queensland for about six months to live.  The mother claims that at this time the parents’ relationship came to an end.

12. After the father returned to Sydney from Queensland he spent time with the children under a very informal arrangement where he would generally see them at the maternal grandmother’s home.  The children’s behaviour from at least around this time began to become unsettled and oppositional. 

13. The mother also alleges that the father continued to be violent towards her in 2013 and 2014.  It also appears that at times the parents lived in the same home up until February 2014 when police charged the father with damaging property and extended an existing Apprehended Domestic Violence Order (ADVO) to include a restraint on him attending the mother’s home.  The father was subsequently convicted in relation to this offence. 

14. The mother also contends that the father has engaged in a pattern of aggression and violence to others in the community such as police and school staff.  These are also matters dealt with later in these Reasons. 

15. It is not entirely clear when the father contends that the parties separated but both appear to agree that the relationship was over by February 2014.

Events following separation

1. The mother contends that the children’s behaviour deteriorated further in 2015 when they began to spend more regular time with the father.  She also raises many concerns about the quality of care provided by the father which is a matter of dispute between the parties to which I will return.

2. The children’s circumstances since the beginning of 2015 were marked by significant instability as they regularly changed their living arrangements and their school attendance was poor.

3. In February (according to the father) or April 2015 (according to the mother) the older boy who was then seven moved to live with the father.  At this time the father was living in a town located about 100kms from the mother. 

4. In August 2015 the older boy spent some time in the care of the maternal grandmother. 

5. In about August 2015 the oldest child decided to live with her father also.  She was enrolled in a high school near her father’s home at some time after August 2015.  Her attendance at school both before and after the move was extremely inconsistent.

6. The mother commenced these parenting proceedings in October 2015.  By this time all of the children were behaving in an oppositional manner, at least when in the care of the mother and she was unable to control them.  

7. In February 2016 there was a physical incident between the mother and the second daughter in which that child assaulted the mother and required medical attention.

8. The family were assessed by a family consultant for the purposes of the Child Responsive Program on 5 February 2016.  A Memorandum by the family consultant dated 9 February 2016 (Exhibit 20) raised many matters of serious concern in relation to the children and indicated that the court may wish to invite Community Services to intervene in the proceedings.  The family consultant also raised concerns about making the Memorandum available to the parents prior to the completion of an investigation by Community Services and her recommendation in relation to release of the Memorandum was followed. 

9. At the time of the meeting with the family consultant the oldest child and the older boy lived with their father and the second daughter and youngest child lived approximately 100kms away with the maternal grandparents.  At that stage the mother had her own home but spent a great deal of her time at the maternal grandparents’ home and proposed that all four children live with the maternal grandparents, indicating that the maternal grandmother would be joining the proceedings.  The mother also appears to have re-partnered at around this time.

10. When first assessed by the family consultant the father proposed that whichever children wanted to live with him should do so but as he only had a two bedroom home at that stage he would need to apply for a larger home from the Department of Housing if all four children were to live with him.

11. All of the children indicated to the family consultant that they had been exposed to violence between their parents and two of them reported that the father was also violent towards the children.  The two older girls indicated that they had been involved in violent altercations with their mother.  Both parents told the family consultant that they were aware that the second daughter and older boy had seen a website showing sexual acts and the mother said she was aware that all of the children had acted sexually inappropriately with each other.  The family consultant was concerned about the behaviour and observations of the youngest child which she felt may indicate the need for further assessment by a child and adolescent expert in relation to hyperactivity and/or an attachment disorder. 

12. The family consultant made a report to Community Services in relation to the children’s exposure and experience of violence and pornography which led to an investigation by Community Services.  The family consultant indicated that the issues raised in the assessment required follow up by Community Services and described the nature of the allegations as “serious and significant” and also opined that “all four children will require therapeutic intervention”.

13. The matters of concern raised by the family consultant in February 2016 led to a Community Services investigation including referral to the Joint Investigation and Response team (“JIRT”)[1].  JIRT rejected three of the four referrals on the basis that there was no disclosure of sexual assault and no evidence of sexual assault.   The allegation of sexual harm posed by the second daughter to the older boy was investigated by JIRT. 

    [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

14. The older boy was interviewed by JIRT officers on 19 February 2016.  The daughters were also interviewed by JIRT.  The only disclosures that were similar to the matters that had been raised with the family consultant were the second daughter indicating that she and the older boy had watched some pornography on the mother’s computer from an internet site about four years previously.

15. In about March 2016 the second daughter also moved to live with the father and her two siblings. 

16. The police investigation into the matter that had been raised with Community Services was closed as the older three children who were then living with the father were assessed as “safe” and it was concluded that no “safety interventions” were required with respect to the children in the father’s care.

17. The older boy was engaged in regular incidents of negative behaviour at his local school when living with his father throughout the entirety of his enrolment.  In March 2016 this child was suspended for a number of days for fighting with another child and for being aggressive towards a teacher.  When the father was called to the school to collect the child he was observed to smack the child in the school carpark.  The father admitted to hitting the child but denied causing bruises which the mother alleged she saw on 11 March 2016 when the parents agreed that the older boy would spend the four days of his suspension at the mother’s home. 

18. The mother contends that the father visited her on 14 March 2016 in an unsuccessful attempt to have the older boy returned to him and that he persistently made contact with her in which he was verbally aggressive and threatened her if anything happened to the child.  The mother says that the father also threatened to “grab” [the youngest child] if he could not “have” the older boy.  The mother contacted the youngest child’s school in case the father attended there and contacted police about the father’s threats.

1. On 29 March 2016 Community Services were invited to intervene in the proceedings and on 1 April 2016 the maternal grandmother was also joined as a party to the proceedings.  On the same date and I also dismissed an application by the father for an order that the older boy live with him.

Events after Community Services were allocated parental responsibility

1. On 8 April 2016 Community Services were joined to the proceedings and the Minister was allocated parental responsibility for the children.  Pursuant to a further order made on that day the children were to live as directed by the Secretary of the Department.  Despite this order the two daughters continued to live with the father although there was no direction by Community Services to that effect. 

2. Although Community Services were also to organise and facilitate the children’s time with each parent and the maternal grandparents the parties did not adhere to these directions and made their own arrangements independently of the Department. Officers of the Department seemed unable to prevent the parents making their own arrangements despite the orders of the Court.

3. Although the three older children continued to remain living with their father throughout 2016 the arrangement was very fluid and at times the father returned the older boy to live with his mother or maternal grandmother when the father experienced difficulties with the child’s behaviour. 

4. On an occasion in April 2016 when the two boys were living with their mother and/or maternal grandparents concerns were raised that the older boy who was 10 had sexually abused the youngest child.  Community Services negotiated a safety plan with the mother and maternal grandmother to keep the two boys apart.  The Community Services case worker assessed the older boy living with the mother and the youngest child living with the maternal grandmother as a safe arrangement. 

5. On 21 April 2016 Community Services made arrangements for the two older children who were then living with the father to spend time with their mother and maternal grandmother and the two younger children.  At the end of the contact event the older boy refused to return to the mother and maternal grandmother and was observed to be distraught as he wanted to return to live with the father.  The case worker made a decision to permit the older boy to return home with the father on that day and subsequently decided to allow this child to continue to live with his father.  This was permitted even though a risk assessment carried out the previous day assessed that the children were at a moderate risk of neglect and a high risk of abuse in the father’s care and despite the court having dismissed the father’s application for the child to live with him only three weeks earlier.

6. The two girls’ behaviour at school had also deteriorated when in the father’s care and they were suspended for a number of days in late May 2016 for physically assaulting a student who the girls alleged had been racist towards them.

7. From about May 2016 the second daughter advised Community Services that she wanted to live with the maternal grandmother.  Despite the second daughter also disclosing that the father had hit her Community Services did not at this stage approve the move as there were concerns that the children’s constant moving between family members was disruptive and destabilising.

8. The Community Services caseworker also had a number of other concerns about the father’s household including inadequate accommodation for the three children in his two bedroom home.  It was also known that the father used physical discipline on all of the children and that on at least one occasion an adult male friend of the father’s was staying at his home despite an agreement with Community Services that he would not have other people staying in his home.  There was also significant conflict between the siblings in the care of the father and behavioural difficulties with the children at school.  Notwithstanding these concerns and although the second daughter continued to express a desire to live with her mother or maternal grandmother over the ensuing months the Department did not approve the second daughter moving from the father’s care.

9. On 16 August 2016 Community Services received a call to the helpline reporting that the father had made a threat to punch the older boy and that the second daughter had disclosed that the father walks in on her when she is in the shower which made her feel uncomfortable.  Departmental records indicate that the following day the father denied that the children were at a risk of sexual abuse.  When the children were interviewed by Departmental officers on 24 August 2016 the second daughter reiterated that she wanted to “go home” to her Nan’s [house] and “hated everyone” in the father’s household.

10. Although the three older children mainly lived with their father throughout 2016 and 2017 there were a number of incidents that resulted in one or more of the children spending time in the maternal grandmother’s home. 

11. In April 2017 there was in incident when the father was visiting the maternal grandmother’s home in which the father struck the oldest child.  The oldest child subsequently stayed with the maternal grandmother for a few days and then returned to live with her father. 

12. On 8 May 2017 a court appointed child adolescent and family psychiatrist (“the expert”) interviewed family members over a full day.  At this stage the living arrangements for the second daughter are unclear.  The expert recorded that when he interviewed the family the oldest child and the older boy were living with the father and the second daughter was living with the mother during the week and spent weekends with the maternal grandparents who also had the youngest child in their care.  However, Community Services records indicate that in May 2017 when the case worker met with the father he had the three older children in his care. 

13. Between May and October 2017 Community Services made referrals to various agencies for the children and mother to receive therapeutic services.  None of the referrals were “accepted” by those agencies mainly because the long term arrangements for the children were not resolved.  There was also a referral made to an agency known as Connecting Families which is described as a mentoring program and although it was envisaged that mentoring would be provided to the children this did not occur. 

14. In October 2017 the father moved to a suburb in Sydney roughly mid-way between the mother’s home and the maternal grandmother’s home.  At around this time it appears that the second daughter returned to live at the maternal grandmother’s home.

15. The expert’s report was released on 19 December 2017 initially to the legal representatives and the ICL.  The Secretary of the Department was given leave to grant access to the report to any officer of the Department engaged with the family.  In accordance with the recommendations of the expert the report was next released to the mother and maternal grandmother and ultimately to the father. 

16. Although the detail of the expert’s report will be dealt with later in these Reasons, at this stage it suffices to say that the expert was of the opinion that each of the children had experienced significant developmental damage as a result of the problems and risks within the family and parenting system.  He also concluded that the issue of family violence was central to an understanding of the family and his recommendations.  Overall he was of the view that the father had been the perpetrator of a long standing and serious pattern of family violence towards the mother, the maternal grandmother and the children and that this was continuing at the time of his assessment.  The expert was also of the opinion that each of the children suffered from psychiatric disorders and opined that as at the date of his report (December 2017) there was a substantial risk of physical abuse of the children in the care of the father.  He also made observations of the children’s neglect in the care of their mother and expressed concern about the risk that the children posed to one another.  In general he recommended that subject to various conditions the children should all be moved to live with the maternal grandmother but recognised problems with the feasibility of moving the oldest child when that child was so significantly aligned with the father.

17. As the expert expressed concern that the children were at an unacceptable risk of harm in the father’s care but there may be practical and logistical difficulties in removing them from his care, orders were made that the children be brought to Child Dispute Services at the court on 18 January 2018.  Although the relevant officer of the Department decided that the two children then living with the father were to be removed from his care, case workers and employees of an external agency engaged by the Department who were present at the court were unable to have the oldest child and older boy comply with their direction.  The children threatened to harm one another, the case workers and the ICL if arrangements were not made in accordance with their wishes.  Accordingly the oldest child and older boy returned to live with the father.

18. On 8 February 2018 the proceedings were fixed for final hearing for five days in May 2018.

19. In January and February 2018 the maternal grandmother and mother experienced difficulties with both the second daughter and the youngest child including refusal to attend school and escalating poor behaviour at school.

20. It was also reported to Community Services that the older boy’s disruptive and aggressive behaviour at school had escalated and that the father was assaulting the child in an effort to discipline him.  There were further reports that the oldest child was clashing with the father who was being threatening towards her and that child placed herself from time to time with the maternal grandmother or the mother.

21. In February 2018 the older boy took a lighter and a knife to school and made threats to school staff and fellow students and to damage school property.  He attempted to set the principal’s desk alight and spat in a staff member’s face.  Police were contacted and the child was taken to a police station and spent some time in the cells.  The child was not charged but taken to a hospital for a mental health assessment and following medical assessment and clearance was discharged.  The older boy was then placed into a motel by Community Services and it was proposed that he remain in that “placement” for at least three months to allow for his behaviour to stabilise.  The older boy has been monitored in this placement by an external agency contracted for this purpose by the Department.

22. On 4 April 2018 in the course of a telephone conversation between the second daughter and the father, the father threatened to “bash” this child.  This threat was reported to police and an ADVO was obtained by police for the protection of the second daughter. 

23. On about 15 April 2018 the second daughter made further allegations against the father that he had behaved sexually inappropriately with her when she previously lived in his home, had watched her in the shower at this time and had made sexually inappropriate remarks towards the older boy that the boy repeated to others.

24. On 17 April 2018 the Department received a call to the helpline reporting that the father had contacted the second daughter and encouraged her to revoke the ADVO. It was also reported that the same daughter was also having a sexual relationship with an older man.  Both the allegations in relation to the father’s alleged sexually inappropriate conduct and the second daughter’s sexual relationship with an older man were the subject of a Departmental and JIRT enquiry which was still pending at the time of the final hearing. 

25. On 28 April 2018 the second daughter was seen at the Emergency Department at B Hospital where she had presented having taken an intentional overdose of her usual medications.  A psychiatric assessment was performed and she was deemed to be at low risk and not admitted and taken back to the maternal grandmother’s home. 

26. On 4 May 2018 the youngest child was taken by ambulance to B Hospital following an episode during which he had become aggressive and violent towards his mother.  The mother felt that medication that had recently been prescribed for the child had triggered his worsening behaviour although the doctors were concerned about his current social stressors also being a trigger.  The child was sedated and settled and discharged home. 

27. Just prior to the commencement of the hearing which was scheduled for 7 May 2018 an adult maternal uncle who was severely handicapped and cared for by the maternal grandparents passed away.  For this reason the final hearing did not proceed on the days on which it had originally been fixed and was adjourned to commence on Friday 11 May 2018.

The final hearing

1. On the first day of the final hearing the expert was cross-examined.  As earlier touched upon the expert was of the view that the oldest child who was then living with the father was at an unacceptable risk of harm in that situation.  The expert had also always been concerned about the father’s reaction to the content and recommendations of his report in that the specific narrative of the children given to the expert may cause the father to act in a coercive, aggressive or retributive way towards them.  The expert was concerned particularly about the way in which the father may react towards the oldest child and the oldest boy “in a bid for their partisan loyalty” and it had been the expert’s recommendation that both of these children be removed from the father’s care when the report was first released.  When the expert gave his oral evidence the older boy was then living in a motel while the oldest child remained in the father’s care. 

2. The father was cross-examined from the afternoon of 16 May 2018, the fourth day of the trial. I was aware from earlier evidence that on that day the oldest child was spending time with the other siblings and it was anticipated that she would be returning with the siblings to the maternal grandmother’s home before returning to the father’s home in the evening.  As the cross-examination of the father related to some of the matters that the oldest child had reported to the expert and to others and in light of the expert’s evidence about the risk of harm posed by the father I made an order restraining the father from contacting or approaching or receiving communication in any form from any of the children or facilitating any of the children having contact with him or requesting or permitting any other person to make contact with any of them on his behalf.  With the consent of the parties I also discharged previous orders in relation to the oldest child’s living arrangements and ordered that she live as directed by the delegate of the Secretary of the Department at any place other than with the father and restrained the Secretary from permitting the oldest child to live with the father, spend time with the father or communicate with the father. 

3. When the final hearing was completed on 31 May 2018 I understood that the parties’ two daughters and youngest child were living with the maternal grandmother pursuant to a direction given by the delegate of the Secretary of the Department and the older boy remained in a motel. 

The Areas of Dispute

Is the father a perpetrator of family violence?

1. It is central in the proceedings and a matter that assumed significant weight in the expert’s opinion that the father is alleged to be the perpetrator of long-standing and significant family violence.  Although the expert is of the opinion that it is likely the father has perpetrated serious violence over many years and framed his final recommendations on this basis, factual findings as to this issue must be made by me.

2. According to the mother’s affidavit the father has behaved in a violent and controlling manner towards her and the children throughout the relationship and for some period following separation and she remains fearful of him.  She contends that the children’s behaviour must be seen in this context.  She also contends that the father poses an unacceptable risk of harm to the children on this basis and that his behaviour demonstrates significant inadequacies in his parenting capacity.

3. In M v M[2] the High Court said when discussing allegations of sexual abuse at [23] – [25]:

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….

   …The courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   [2] (1988) 166 CLR 69; [1988] HCA 68.

4. In M v M (supra), the High Court also said at [18]:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

5. In Johnson & Page[3]  the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.

   [3] [2007] FamCA 1235 at [72].

6. The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[4] and will be applied when determining the allegations issue of physical abuse and family violence in this matter.

   [4] See e.g. 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).

7. I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk.  One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[5], 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.

   [5] (2005) FLC 93–235.

Alleged physical abuse of the mother

1. In her trial affidavit the mother deposes to the father’s violent behaviour generally and also gives details of many specific instances of violence towards herself and the children both before and after separation. 

2. The mother deposes that the first specific event occurred at some time in 2001.  She says that on this occasion she called the police in relation to a violent incident but when police arrived she was too distressed and scared to speak to them and told them to leave. 

3. Under cross examination the mother said that she could not remember whether a police record which indicates that police attended at the father’s home on 29 November 2001 (Exhibit 6) related to this incident. 

4. The father makes no reference in his affidavit to any incident between the parties which involved police in 2001.

5. Under cross-examination in relation to the police record of an attendance at his home on 29 November 2001, the father said that this was one of the two occasions when he had hit the mother with an open hand to the face. 

1. Although the mother does not make reference in her affidavit to an incident in June 2002 (when she was about five months pregnant with the oldest child) she agreed under cross-examination that there was an occasion at this time when police attended the father’s home and saw her on the doorstep, upset and crying.  She recalled that the father told the police to leave and was aggressive towards them.  The mother said that the father had hit her on that occasion but if she “dobbed” (or informed the police what had happened) he may have been returned to jail, as he was on parole.  She agreed with the police record that she was sobbing and crying uncontrollably and that police were concerned that the father had caused stress to her and her unborn child.    

2. The father does not depose to any incident that resulted in police action in June 2002 but agreed under cross-examination that at around this time police did attend at his home.  Initially, the father claimed to have little memory of the incident but he subsequently agreed that he told police to “fuck off”.  He denied being aggressive and that he challenged the police to fight him and said to this extent the police record was not correct.  He agreed that the mother was crying and sobbing uncontrollably on this occasion and said he remembered telling the mother to come in, telling the police to leave them alone and shutting the door.

3. According to the mother’s affidavit there was another instance on an unspecified date in 2003 when the father threatened to kill her with a knife.  She also deposes that about this time officers from the Department had some contact with her and the father about reports that had been made about the father.

4. Community Services records indicate that on 27 May 2003 a notifier reported that the father had threatened to kill the mother and had held a knife to her throat, had bashed her while she was holding the oldest child [who was then 7 months old] and that the mother had bruises all over her body. 

5. Departmental records also indicate that officers interviewed the mother, the maternal grandmother and the father the following day with the oldest child (who was a baby) present.  The record indicates that the mother was observed to have bruising to her left cheek which she reported had occurred accidentally when a T.V. fell on her when she was adjusting a shelf.  It is noteworthy that the mother’s description of this event has been incorrectly summarised in some other documents (such as the expert’s report) as the mother reporting that a shelf fell on her.  It is also noted in this record that the maternal grandmother and the mother did “not speak” and “just smiled” during the interview.  The record indicates that the father reported that arguments arise when the mother does not let him leave the home with the child and hides his car keys provoking him to yell at her.  According to the Community Services record the officer from the Department advised the mother “that she was behaving like a teenager trying to provoke a person, who clearly had the ability to lose his temper”.  It is recorded “she was told quite clearly that she is not to lock him in and hide his keys when he wants to leave the home and let off steam”.

6. Under cross-examination the maternal grandmother could recall the occasion when she was interviewed by Departmental officers in May 2003 and said that the mother had a black eye and a small bruise on her face.  The father did not challenge the maternal grandmother about these observations or the mother about her evidence concerning this incident.

7. The father makes no reference to any incident in May 2003 in his affidavit and under cross-examination denied that he assaulted the mother and threatened to kill her with a knife.  The father says that there was an occasion when he observed a shelf fall on the mother when he was “trying to leave”.  He could proffer no explanation about how this occurred other than to say the mother had barricaded his way when he was leaving the house.  Although he said he could remember seeing the shelf falling and hitting the mother on the face he was unable to explain in a coherent fashion how the shelf had fallen. 

8. Records of Community Services indicate that in October 2003 and November 2003 staff from the hospital reported concerns about risks of harm to the unborn and later newborn second daughter associated with neglect in the mother’s care and the mother being physically harmed by the father.

9. The mother next deposes that following the second daughter’s birth in 2003 she and the father became involved in an argument in which the father became very angry and kicked her in the stomach which was particularly painful as she had a caesarean section and had surgical staples in her stomach.  The mother says she suffered from extensive bruising following this assault. 

10. The father does not depose to any incident at all following the second daughter’s birth and did not challenge the mother about this matter under cross-examination.  When the father was cross-examined he simply denied that the incident had happened at all and said that the mother was lying. 

11. The mother next deposes to another event in 2003 at a paternal aunt’s house when she says the father who was highly intoxicated engaged with her in an argument regarding his gambling and lack of money.  In the course of this argument the mother says that the father picked up a brick from the garden and hit her on the back of her head.  She says she suffered from a lesion and was taken by the father to a hospital where she advised staff that she “got jumped by someone” because she was afraid to report what had happened as the father had accompanied her to the hospital. 

12. According to the father’s affidavit the incident which involved the throwing of a brick at his sister’s home occurred in November 2004.  The father says that he was involved at that time in a relationship with a person named Ms C and that the mother would not leave he and Ms C alone and continued to “hassle” him even though they had separated.  He said that Ms C told the mother over the phone to “leave us alone” and then the mother arrived at his sister’s home uninvited and “started throwing punches” at Ms C in the presence of his family and friends.  The father deposes that his sister then told the mother to leave but she refused to do so and then she punched him on the cheek.  The father says he and Ms C then left and as they did the mother kicked the front bumper of his car and “tried throwing a brick” at he and Ms C.  The father denies throwing a brick at the mother’s head and says that the mother is lying as to this matter. 

13. In relation to this incident the father deposes that his sister, Ms C and other friends witnessed this incident and “can vouch for” his version of the events but none of these witnesses were called in the proceedings.

14. Questions by the father put to the mother under cross-examination in relation to this incident placed it has having occurred in late 2003 consistent with the mother’s case.  The mother denied that she was angry on that occasion, that she threw punches at the person Ms C and that she punched the father in the face.  The mother also denied that she picked up a brick and threw it towards the father’s car or that she kicked the bumper bar of the car. 

15. It appears to be common ground between the parties that in late 2004 or early 2005 the father moved to a town about 100km from the mother and maternal grandparents’ homes.  It appears that the mother visited the father at his home and took the children to see him from time to time. 

16. Although the mother does not depose to any specific incidents in 2004 she was cross-examined about an occasion in July of that year when police were called following an argument between the parties in a main street.  The mother did not recall the specific incident but when asked whether it was true that she did not want police to obtain an apprehended domestic violence order (ADVO) she confirmed that at the time she was in fear of her safety and for the safety of the children and that she did on occasion call police but did not “follow through” [by seeking an ADVO or having the father charged].

17. There was another incident in March 2005 which neither parent refers to in their respective affidavits when police attended at the main street in the town where the father was then living after he had been asked to leave a hotel where he had been abusive and had smashed a window.  The mother who was with the father remembered that the father said threatening things to police, took his shirt off and wanted to fight with police and that she felt frightened at the time.  Under cross-examination the father agreed that he had become angry at the owner of the hotel and was pretty sure he had punched the window.  He could not recall what he said to police but conceded that he could have said [threatening things] to them.

18. Although the mother does not refer to this in her affidavit Community Services records indicate that on 22 July 2005 a report was made to the Department of the father being violent towards the mother.  It was reported that on this occasion the mother had sworn at the father as he had gambled $500 from her bank account and the father arrived at the maternal grandmother’s home where the parents were living “enraged” “had started punching [the mother]” in the presence of the children and threatened to kill the mother.  It was also reported that the mother didn’t want the father to leave, was obsessed with him would do anything to be with him and refused to allow the maternal grandmother to call the police when the father was violent.  A senior Departmental staff member wrote “this matter is extremely concerning” and marked the case “for allocation” though there is no indication that the Department took any further action.

19. Under cross-examination the maternal grandmother said that she recalled some of this incident.  In particular she recalled that it happened in the presence of the two children but said she had no recollection of calling the Department.  The maternal grandmother confirmed that during this incident she saw the father punch the mother and heard him say “I could kill you, you bitch”.  She also confirmed that the mother did stop her from calling police sometimes because the mother had a fear that the father would take the children.  The maternal grandmother said that she herself had heard the father threaten to put the children in a car and crash it.

20. When asked about this incident under cross-examination the father said the incident didn’t happen or he did not recall it. 

21. It is the mother’s case that the father is threatening and violent in other contexts as well as in the home.

22. The mother was asked under cross examination by the Department’s counsel about an incident in January 2005 when a person complained to police about an approach made to him in a motor vehicle by the mother, the father and another person.  Police records indicate that the complainant was in a hysterical state and alleged that the father walked up to him and put a black hand gun up to his head.  He said he reported that he was able to drive away but that the people including the father and mother were following him in his car and he was frightened for his life.  When police attended they assessed the victim as delusional but when they stopped the vehicle in which the parents and other person were located a large kitchen knife and bow and arrow were seized.  It is recorded that while searching this vehicle the father and mother were abusive towards police.

23. The mother recalled the incident and agreed that the father had threatened this person.  She agreed that when police were called to the scene the father said words to the effect of “don’t tell me what to do I’ve been in jail for murder”.

24. Under cross-examination the father agreed that there was an incident involving himself and another person on a train in about August 2005.  The father said that this incident started when a girl tried to pick a fight with the mother and he stood up and was going to break it up when another man started picking a fight with him.  He said that this man threw a punch at his face and he grabbed him and pinned him to the ground underneath the train seat and that out of nowhere police arrived and broke the fight up.  The father was shown police records contained within the documents produced by Community Services on subpoena which suggest that the mother was not present during that incident but the father insisted that she was.  The father said that his actions were appropriate to defend himself and the mother.

25. The mother also deposes generally to there being numerous occasions during the relationship when the father put his hands around her neck and choked her and that on three occasions she lost consciousness.  She deposes that the father would slap her across the face to cause her to regain consciousness.

26. The mother deposes in her affidavit that the father “gave [her] numerous black eyes”.  She clarified in her oral evidence that the black eyes were caused by the father punching her to the face.   

27. The mother deposes to a particular instance in which the father punched her to the face causing extensive bruising following an argument about the father’s gambling on 16 January 2006. 

28. The maternal grandmother deposes that 2006 was “a particularly bad year”.  She says that in around January the mother came to the maternal great grandmother’s home and she observed that the mother had a black eye and bruising on her cheek and that the mother told her the father had punched her during an argument.

29. The father gives no version of this incident in his affidavit and under cross-examination said that he did not punch the mother to her face that day but that something else happened.  He gave oral evidence that on that day one of the mother’s friends and that friend’s boyfriend were having an argument and somehow in the course of the incident the mother was hit in the face and pushed down the stairs by the friend’s boyfriend.  The father said that he went to the mother’s aid after the incident but they did not report it to police and he could not recall whether she was taken to a doctor.

30. The father did not suggest to the mother under cross-examination that the event that caused her to have extensive bruising to her face at about this time occurred in the manner he describes.

31. The mother deposes to a further incident a few weeks later on 10 February 2006 when she and the father were arguing about the father spending her money on gambling and the father got into his vehicle and stuck his tongue out at her.  The mother says she put her hands through the window and punched the father and he came out of the vehicle and punched her several times in her face causing “extensive bleeding”.  The mother says the incident occurred in the street and that her mother, the maternal grandmother and the children were all present.

32. The maternal grandmother deposes to receiving a call from the mother in February 2006 and the mother requesting that she have the oldest child for a few nights.  The maternal grandmother says she could hear the mother crying and the father yelling in the background but the mother did not tell her what had happened. 

33. The maternal grandmother also deposes to another incident in about February 2006 when the parents were arguing about money and the father became enraged.  She says that during this argument the mother “ended up on her knees” and the father “was trying to punch her in the face” resulting in the mother who had braces on her teeth at the time receiving a small cut inside her mouth.  The maternal grandmother deposes that this incident occurred in the presence of the two children who were “hugging each other”.  She says that she tried to pull the father off the mother and that he let the mother go.  She deposes that the father then grabbed his guitar, walked outside and smashed it on the unfinished driveway.

34. The maternal grandmother deposes to another incident in around early 2006 when she says that she heard the mother and father arguing in her lounge room where they had spent the night and when she went into the room she saw the father pushing the mother’s face into the mattress and choking her.  The maternal grandmother deposes to trying to pull the father off the mother but says that she was not strong enough so she grabbed the father’s pony tail and pulled it.  The maternal grandmother says the father then moved one hand away from the mother and grabbed her by her nightie in the chest area and as he did the mother was able to get out from under his grip.  She deposes that the mother yelled at him “that’s my mum” and that the father let go of her. 

35. It was not entirely clear how many occasions of violence perpetrated by the father in the early months of 2006 are alleged by the mother and maternal grandmother though it appears that there were at least three separate incidents.  Under cross-examination the father said he had no recollection of any of the incidents deposed to by the mother at this time but denied ever punching her on any occasion. 

36. According to the father’s affidavit there was an incident which he dates as occurring in October 2006 which bears some resemblance to two incidents deposed to by the mother and maternal grandmother. He says on this occasion he told the mother he was leaving and didn’t want to live in the maternal grandmother’s home anymore.  The father deposes that he got into his car and while reversing the mother smashed the window on the driver’s side and that fragments of glass cut his temple.  He says that the mother removed the car keys and ran into the house.  The father chased the mother which he believed made her scared and she hid behind the front door.  He then pushed the door open causing it to hit the mother in the face.  The mother then ran into the hallway and dropped the keys by accident and then assumed a cowering position.  The father says that the maternal grandmother then came running and there was blood on the floor from the mother’s mouth hitting the door.  The maternal grandmother grabbed his hair which he says “almost ripped his scalp”.  The father deposes that he pushed the maternal grandmother out of the way the mother yelled loudly “you hit my mum” and he then left the home. 

37. According to the father’s affidavit a week later he and the mother had another argument at the maternal grandmother’s home about him wanting to leave and the mother wanting them to move back to her mother’s home.  The father deposes that although the mother barricaded the door he was able to get to the garage and grab some of his clothes in garbage bags and his guitar.  He says he and the mother then engaged in a tug-a-war over his guitar which caused him to become “fed up and [he] smashed the guitar on the driveway”.

38. Under cross-examination the maternal grandmother confirmed her version of events in which she says the father was violent towards the mother in her presence.  She also confirmed that she had heard the father use abusive language towards the mother in a very loud and very aggressive tone.  The maternal grandmother also confirmed that she could remember at least one occasion when the father threatened to kill the mother in her presence.  She also said that she had advised the mother to leave the father due to his violence but the mother was fearful that if she said anything “she would cop it at home” and that the father had also threatened to take the children.  The maternal grandmother says that she had heard the father say that he would take the children away and that she believed he would be able to carry through with threats as “the kids would [of their own accord] go with him”.

39. The next specific incident of violence referred to in the mother’s affidavit allegedly occurred on 20 September 2006.  The mother deposes that she and the father were arguing about the father’s gambling and fact they had no money and the father became really agitated and stabbed her in the back with a knife causing a wound about 2 cm deep.  The mother deposes that she did not report this incident to anyone at the time other than her mother. 

1. The maternal grandmother also gives evidence about this incident and deposes that she saw a wound on the mother on 21 September 2006.  The maternal grandmother describes the wound as being about half an inch to an inch long and located on the mother’s upper back and that there was a lot of blood.  The maternal grandmother says that she advised the mother to go to a doctor but the mother did not listen to her and she formed the impression that the mother was scared to do so.

2. In his affidavit the father denied that this event occurred in September 2006.  He does not specifically deny stabbing the mother on any occasion but says he remembered an occasion when the mother threatened to hurt herself with a knife.  Although the father did not cross-examine the maternal grandmother at all, when asked about this incident under cross-examination he asserted that she and the mother were lying.

3. The maternal grandmother also deposes that in late 2006 there was an occasion when the mother who was living with her and the father were engaged in an argument over the phone.  She says that she heard the father yell the words “if you don’t shut up I will come over and punch you, I don’t care if you are pregnant” which caused the mother to become upset and hang up. 

4. The maternal grandmother next deposes to an incident in 2007 when the family were once again living in her home a short time before the birth of the older boy ( mid 2007) when she saw the father punch the family’s pet dog to the head.  The father denies that he did this.

5. The mother deposes to an incident in 2007 in which she was holding the door to stop the father from hitting her.  She says that the father aggressively pushed the door back at her causing a large haematoma on her forehead and bruising to her eyes.  She says that on this occasion she went to a hospital and advised staff that someone had assaulted her by pushing a door but denied it was the father.  The mother also deposes to police attending the house after this assault and that she did not speak to them about what had happened. 

6. Police records indicate that on 6 March 2007 the mother claims to have been at home when she answered a knock on the front door and saw a male person not known to her on the door step who persistently asked her to allow him into the house which she refused.  It is recorded that the mother claimed this person kicked the door while she attempted to shut it which caused the door to slam in her face.  It is recorded that the mother attended her local general practitioner the next day and was observed with a haematoma on her forehead and bruising around both eyes.  The mother was also observed at a hospital (six months pregnant with her third child) where she attended with abdominal pain and was seen to have “two black eyes” which she says she received when someone tried to get through the door and hit her in the face. 

7. Under cross-examination the father agreed that he caused the mother to suffer black eyes on that occasion and explained that he kicked the door which hit the mother in the face and that she then threw a mug at him and cut him in the leg.

8. Although the mother’s affidavit seems to suggest that a hospital attendance in June 2007 related to this incident it was clarified under cross-examination that there was a further incident on 29 June 2007 when the mother presented at a hospital and according to the hospital records this attendance related to her having a black eye. 

9. Police records of 29 June 2007 indicate that on this day the mother and father were talking and drinking together and both became well affected by alcohol.  They started arguing and continued their argument in the maternal grandparents’ home where they and the parties’ three oldest children were located.  It is recorded that the father approached the mother and attempted to punch a nearby wall but struck the mother directly in her left eye causing immediate pain and swelling.  The maternal grandmother contacted police as she had heard the argument and heard the mother screaming after being punched.  The records indicate that police attended a short time later and saw that the mother’s left eye was so swollen that it was “almost closed over” and was “dark blue and watery”. The mother initially refused to give police any details and although police attempted to speak with the father he was asleep in a bedroom and could not be raised.  The mother then told police that she had a verbal argument with the father who punched her “in error” and added that she had no fears for her safety and did not want any further police action.  Police had doubts about the mother’s version and decided to apply for an ADVO on her behalf because of the reported history of violence.

10. The mother was cross-examined about police records in relation to this incident.  She agreed that police wanted to take action because of her injury but she did not want any further action to be taken and said that she was scared of the repercussions if the father went to gaol.

11. Records from a Local Court indicate that an ADVO was sought by police on behalf of the mother in relation to this incident. In the grounds of the application it is noted that the mother refused to assist police and when she was told that an ADVO was to be sought she told police that she and the father would not bother attending court.  Court records indicate that the mother and father both attended court in relation to the application but that it was withdrawn as there were “no fears” held by the mother about the father.

12. The affidavits of the mother and maternal grandmother are silent in relation to any incidents between late 2007 and February 2012.

13. Although the mother does not depose to any further incidents of violence in her affidavit she was cross-examined about some other matters which came to light in documents produced in answer to a subpoena. 

14. One such incident resulted in police attendance at the mother’s home on 25 February 2012.  It is recorded that when police attended their home the parents reported being involved in a verbal argument and the mother alleged that the father followed her into the bedroom, pushed her down to the ground, grabbed her around the neck and chest and “choked and squeezed”.  She asked the father to let go of her and the oldest child walked into the room and also told the father to let go of her.  The police records indicate that although the mother told police this version of events she refused to sign a statement saying that she needed the father’s car [to go to a funeral the following day] and also needed the money. 

15. The police records indicate that the police also spoke to the oldest child who reported seeing her mother on the floor looking up at her father standing a few metres away. 

16. According to the police records the father was interviewed and gave a similar version about the verbal argument but claimed that he walked into the bedroom and the mother followed him and then blocked the door and would not allow him to leave.  He said that as she would not let him pass he physically moved her away from the door and left in his car.  Neither parent was arrested following this incident.

17. Under cross-examination the mother did not recall this incident. 

18. Community Services records indicate that in May 2012 there were two notifications in relation to domestic violence, one of which proceeded to the secondary assessment stage.  Further detailed records in relation to these notifications were not tendered in the proceedings.

Physical abuse of the children

1. Community Services records also indicate that there was a further notification made in August 2012.  One of the documents relied upon in the proceedings (Exhibit 22) summarises this notification as an allegation that the father regularly hit the children with a stick (bamboo cane-like implement) on the bare back and bottom and that the oldest child disclosed that the three oldest children had been bruised as a result.  There was also an allegation that the father grabbed the older boy by the shoulder and whacked him with an open hand five times on the back and shoulder and that the mother was present and didn’t intervene. 

2. Many of the allegations of family violence said to have been perpetrated by the father after 2012 when the mother says the parents separated relate to the children rather than the mother.

3. Both the mother and the maternal grandmother depose to the father using very harsh discipline against the children.  In addition to a general description that the father slapped the children very hard and required them to sit in a corner, poked them in the head and flicked them as forms of discipline the maternal grandmother also makes a number of specific allegations of violence perpetrated by the father towards the children in her affidavit.  

4. The maternal grandmother deposes that on a number of occasions in around 2012 when the youngest child was about three the father yelled at the child who then ran and hid behind the maternal grandmother.  According to her affidavit this made the father angry and he dragged the child away from the maternal grandmother and slapped the child with force on the side of his leg.  She says that on another occasion at this time the father picked the youngest child up and threw him across the room and that she had to wait until the father had left the room to comfort the child.

Allegations of the father’s ongoing violence after separation

1. Although the mother claims that she and the father separated in 2012 it appears that during some periods of time after the separation she and the father did live together and on some occasions she alleges that the father assaulted her. 

2. The mother deposes to an occasion in late 2013 where she says the father punched her several times on her abdomen and that she reported the incident to police but declined to make a statement.

3. Police records indicate that on 16 August 2013 the mother and father became involved in an argument when travelling in their car.  It is recorded that the mother began to struggle with the father and he pulled the car over to the side of the road and got out of the car.  She also got out and the altercation became physical with the mother reporting that the father punched her at least six times to the abdomen.  It is recorded that this was seen by an independent witness who provided a statement to police.  The mother and father then drove to the police station to resolve the matter.  The mother declined to make a statement in relation to the matter though indicated that she held fears about what may occur in the future.  As a result the police obtained a provisional ADVO for her protection. 

4. On 28 August 2013 after the ADVO had been made the mother contacted police and told them that she had lied when making the initial complaint and that she was the main instigator in the incident.  The police continued to seek a final ADVO on the mother’s behalf.  Ultimately, the father consented to the making of a final ADVO which remained in place until August 2014.

5. Although the mother does not give detail of this incident in her affidavit, police and court records indicate that there was an incident in February 2014 when the father was charged with damaging property and the ADVO in place for the protection of the mother was extended.  Police records indicate that on this occasion the mother and father were engaged in an argument at their home, that the father began to pack his bags and the mother continued to argue with him.  The father pushed a door closed, the mother opened it and the father punched the door with his fist causing a hole.  The father admitted to police who were called to the home that he punched the door and caused the damage and police sought a variation to the ADVO to include an order restraining the father from entering the home and damaging property. 

6. The father appears to agree in his affidavit that an incident in February 2014 was the cause for final separation between him and the mother. He did not dispute the court records that indicated that he pleaded guilty to a charge of damaging property and was convicted and fined in relation to that incident. However, he describes quite a different incident which was the catalyst for the final separation. 

7. According to the father he made a decision on that day to separate finally from the mother and the mother continuously prevented him from leaving by barricading the door and trying to unpack his goods.  Although the sequence of events is not entirely clear the father deposes that he and the mother were arguing in the car and she tried to kill them both by grabbing onto the steering wheel and aiming it at the oncoming traffic and would not let go even when he “jabbed her on the leg”.  It appears that the father in his affidavit is describing the event previously referred to which according to police records occurred in August 2013. 

8. Further notifications were made to the Department in September 2013 in relation to physical abuse and on three occasions in February 2014 in relation to exposure to domestic violence. Nothing further is known about these notifications. 

9. Records of the Department indicate that three notifications were made in March, April and May of 2015 in relation to alleged risks of harm towards the children which were treated by the Department as justifying a secondary assessment.

10. The notification in March 2015 related to risk of sexual harm/injury , and in April the notification concerned educational neglect and habitual absence. In August 2015 there was a notification of physical abuse and two further notifications in the same month relating to risk of psychological harm and risk of physical injury.  There was a further notification of educational neglect in September 2015 and physical abuse in November 2015.  Although the Department took no action as a result of any of these notifications it is noted in the Departmental records that “there is a well-documented history of physical abuse perpetrated by [the father] towards his children”.

11. After the older boy came to live with the father in early 2015 there is an extensive history of this child’s poor behaviour including violent and aggressive behaviour at school.  On occasions the child’s behaviour was so bad that the father was contacted and asked to take the child home.  On other occasions the father was spoken to by staff about the child. 

12. From August 2015 when the oldest child had also moved to live with the father and the older boy, a number of complaints were made to police about the father’s violence towards both children. 

13. On 10 August 2015 the mother reported to police that [name of the child redacted but clearly relates to the older boy] who appears to have been temporarily staying with her was assaulted by the father on a regular basis.  According to their records police spoke to the child who said he had no fears of his father and just wanted to go home with him.  When asked about what had happened that morning the child reported “dad nudged me and I got a scratch on my head, I don’t know what it is from”.  It is recorded that police observed a one centimetre light red mark above the child’s right eye.  The child reported that he only gets a smack when he is naughty and that he was only at the police station because his mother wanted to get his father into trouble. 

14. According to the police records the father’s reported version of the event was that the child refused to get out of bed and began yelling and speaking back at the father.  The father said he “clipped [the child] around the ear to try and snap him out of his temper” and also smacked the child on the bottom twice.  According to the records the police came to the conclusion that this action was not an assault but lawful chastisement “and by no means excessive”. 

15. According to the mother’s affidavit on this occasion the child reported to her that the father “slapped me across the face and barged me across the room because I deserved it” and that she observed a red mark on the child’s face.  She claims the father told her that the child had got out of hand and that he “gave him a little tap across the face and smacked his bottom”.

16. Under cross-examination the father denied ever clipping the child around the ear.  He also did not remember any details of his interview by police at that time.

17. When interviewed by the family consultant for the purposes of the Child Responsive Program in February 2016 the oldest child indicated that she had a number of physical altercations with her mother and said that “mum would bruise”.  This child indicated that she had no sympathy for her mother and felt that the mother “deserved to be hit [by her]”.  The oldest child reported that the older boy had calmed down and was not as aggressive as he used to be and she thought he listens to their father because he is scared of him.  Although this child indicated that she had exposed to violence between her parents, she claimed that her father had never hit her and that she was not scared of him.

18. The second daughter reported that she had seen her parents hit each other and pull one another’s hair and that she had seen her father punch her mother.  She indicated that although she had not seen her mother “really hurt” she had seen her with black eyes from time to time.  This child reported that she is scared of her father sometimes and said that he “slaps our face and shoves us”.  She reported that once when they were in Queensland the father slapped the oldest child’s face and that the inside of her mouth was cut because she had braces on her teeth at the time.  The second daughter also reported that she had to take two days off in the first week of school shortly before the interview because she punched her mother and had to go to hospital with a sore hand.  This child also reported that she believes that her father has threatened her mother and reported that when he looks after the children “he hits”.

19. When the older boy (then aged eight) was interviewed by the family consultant it is reported that the child appeared anxious to tell her that the youngest child had been arguing with their father [that day] and was concerned that the youngest child may report that the father had hit the older boy.  The older boy said “dad didn’t him me, he hugged me”.  This child reported to the family consultant when his parents fight they shout, scream, swear, break things and shove each other.  He said he had seen his mother slap his father across the face and saw his father punch a hole in the door. 

20. When giving oral evidence the mother said that on the day the parties attended the court for the Child Responsive Program when outside court the youngest child was “just being a little bit naughty” and the father told the child he was going to “belt him” and raised his hand to do so. 

21. The youngest child who was almost six when interviewed reported to the family consultant that his mother and father are not friends and they get angry and hit each other.

22. As touched upon earlier when setting out the background to these proceedings concerns about the older boy’s aggressive behaviour at school continued throughout 2016 and there were a number of incidents which resulted in him being suspended for a number of days in March 2016. When the father was called to the school at this time he was observed to smack the boy in the school car park.  As a result of the suspension the father took the older boy to live with the mother and the mother reported to police that the child had been assaulted by his father alleging that he had a bruise on his outer thigh.  This bruise was not visible to police.  Police spoke to the child who reported that he was happier living at his father’s house than his mother’s house and said that his father was angry with him after he was expelled (sic) and smacked him on the upper leg after picking him up from school.  The child also told police that when his mother smacks him it hurts and that she smacks him more that his father.

1. This child did not express a view as to his parenting arrangements during his interview and the expert did not press him for such a view. The child did say to the expert during his assessment that he’s always trying to be able to live with the maternal grandmother.

2. For the purposes of the interview the expert spoke to the youngest child’s school counsellor who described him as often unsettled, with poor connectivity with peers and impulsive behaviour, including impulsive verbal and physical violence.

3. The expert opined that the youngest child has current psychiatric diagnoses of oppositional defiant disorder and also shows symptoms of anxiety and of inattention/hyperactivity. The expert assesses that this child carries risk of progression to adult antisocial personality disorder and anxiety disorder/mood disorder and recommended that the child’s inattention/hyperactivity be reassessed after six to 12 months in a more secure and adequate care environment.

4. At the interview this child appeared to the expert to have a warm and positive connection with the maternal grandmother and appeared to be identifying the maternal grandmother as an adult who observes him and acts to pre-emptively and sensitively meet his basic needs.

5. The expert observed that the youngest child appeared to have a warm and positive connection with the mother as well and noted that the mother identified with fond tone some positive attributes of the child.   

6. I accept the observation of the expert that as there are such serious risk issues for all of the children, protection against those risks should be given more weight than the children’s views. This is the case even though the views of the older children in mid-adolescence would ordinarily attach greater weight.

7. Notwithstanding this observation, at the time the expert wrote his report he said that the oldest child’s view of preferring to live with the father should be given some weight, considering her age, her established identification with the father, and the risks to herself but also to the other children, the maternal grandmother and the mother of seeking to force this child away from the father’s care “if she “puts up a fight” or “digs in”… against the same”.

8. As touched upon earlier in these Reasons by the time the final hearing was complete this child had been successfully removed from the care of the father and placed with the maternal grandmother and no evidence was adduced as to significant difficulties associated with this change. It is to be remembered however that this child’s placement in the care of the maternal grandmother had only been in place for around two weeks at the time the proceedings were finally completed and at that stage the older boy was residing in out of home care.

9. I attach weight to the expert’s firm opinion in the final hearing that the oldest child had been significantly developmentally harmed by living with her father and was at an unacceptable risk of harm in his primary care. The expert was also firm that it is not in the best interests of the children for Community Services to have the discretion to place any of them back with the father and that allowing the oldest child in particular to have her own way in relation to the father had been extremely harmful. The expert felt that it was important that if any of the children’s placements with the maternal grandmother broke down it would be preferable for the particular child to be moved into out-of-home-care than to be placed with the father by default.

10. Taking into account this oral evidence at the final hearing I am of the view that little weight should be given to the oldest child’s preference to continue to live with her father.

11. Significant weight will be attached to the expert’s opinion in relation to each child’s relationship with the adults in the family system. In particular each child is assessed by the expert to have a warm and established attachment relationship with the maternal grandmother.

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

Attitude to the responsibilities of parenthood demonstrated by each parent

1. When the parents’ relationship was intact they did not necessarily live together.  During this period of time and up until 2015 the three older children lived with the mother.  By an agreement between the parents and maternal grandparents the youngest child has lived with the maternal grandparents all of his life. 

2. From 2012 when the mother contends the parental relationship had come to an end the father spent time with the children under a very loose arrangement with the mother and maternal grandmother at the maternal grandmother’s home. 

3. In early 2015 the older boy who was then seven moved to live with the father.  It seems however, that at times when the father found the older boy’s behaviour difficult to manage this child would spend days or sometimes weeks in the care of the maternal grandmother or occasionally the mother. 

4. The oldest child next moved to live with the father from about August 2015. 

5. By around February 2016 the second daughter was also living with the maternal grandmother and the mother appears from about this time to have been living alone. 

6. When the family were assessed by the family consultant in February 2016 although the father proposed that whichever children would want to live with him should do so, he at that stage only had a two bedroom home.  At this interview both the second daughter and the youngest child believed that their father only wanted the oldest child and the older boy to live with him. 

7. About one month later the second daughter also moved to live with the father and her two siblings. 

8. I gained the impression from both parents and the maternal grandmother that the various changes in the children’s living arrangements often came about through action of the children themselves to which the parents acquiesced or when a child became unmanageable rather than as a result of a particular parent taking the opportunity to spend time with or communicate with the child. 

9. It also seems that the father took all necessary decisions in relation to the children who were living with him at any given time and that if they were not living with him they were generally living with the maternal grandmother who made the necessary decisions.  There is no evidence to suggest that the mother was particularly proactive in long term decision making regarding the children.  She also spent time with and communicated with the children under a very casual arrangement when they were living with or spending time with the maternal grandparents or the father.

10. It appears that at a practical level there was little change to the arrangements for the children even after the Minister held parental responsibility for them and ought to have been the person making long-term and significant decisions regarding the children.  Rather, with a few exceptions the parents and maternal grandmother continued to make decisions in relation to the children, spent time with them and communicated with them in a somewhat haphazard and chaotic manner. 

11. The only active step taken by either parent to participate in the children’s lives in this way was an application made by the father on 1 April 2016 for an order that the older boy (who was then living at the maternal grandmother’s home after being placed there by the father due to his unmanageable behaviour) live with him.  This application was dismissed.

12. It appears that during the time any of the children have resided with the father he has maintained them.  It is also likely that during the brief periods that some of the children have resided with the mother she has maintained them in her care.  There is no evidence to suggest that either parent has sought child support from the other or that either parent has financially assisted the maternal grandmother when the children have at various times been in her care. 

13. While her actions appear to a large extent to have occurred in the context of being a victim of family violence, the mother effectively abandoned her role as the primary parent or decision maker in relation to the children some years ago. From at least February 2016 when the family was first seen by a family consultant, none of the children were living with the mother who had established her own home and who proposed that all of the children live with the maternal grandparents.  Since this time although the second daughter at one stage lived with the mother during the week generally the oldest child and the older boy lived with their father and the second daughter and youngest child lived with the maternal grandparents. 

14. Neither parent has had the opportunity to participate in long term decision making regarding the children since the Minister has held parental responsibility for them in 2016. 

15. The oldest child and the older boy lived with the father for about three years prior to the hearing.  During this period it appears the father made decisions in relation to the children but continued the pattern of ad hoc and somewhat chaotic decision making and placing the children in the care of the maternal grandparents (or allowing a child to “self-place” with the maternal grandparents) whenever there was conflict with a particular child or the management of the child’s behaviour became difficult.

16. In my view while the mother may to some extent have some legitimate excuse for her attitude, neither of the parents have demonstrated a laudable attitude toward the responsibilities of parenthood.

Maturity, sex, lifestyle and background of the children and either parent

Family violence relating to the children or a member of the children’s family

Likely effect of changes in the child’s circumstances

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

1. I accept and attach weight to the expert’s assessment of each parent and the maternal grandmother’s capacity to provide for the children’s needs which is set out in his report and was unchanged as a result of cross-examination.

2. The expert is of the view that the father lacks capacity to provide for the children’s basic need for security and protection from harm as well as lacking capacity to meet the children’s emotional intellectual relational and developmental needs.  He opined:

   I am concerned about the father neglecting the children’s needs for consistent engagement, expectation, monitoring, and boundary-setting, for example around age-appropriate engagement with media and games, healthy eating, and around bed-time and morning routines, and around activities outside the home.

   An important corollary of the same has been that the children have had very poor school attendance whilst in the father’s care.  This has led to neglect of the children’s intellectual and developmental needs.

   I am concerned overall that the father does not appear to be alarmed or activated by the children’s negative mood states, dysfunctional patterns of relating, disconnection from role, and lack of developmental progress.  He tends to minimise and deny.

   The prognosis for sufficient change in parental capacity so as to adequately address the risks arising both from abuse and from neglect is poor.  The starting point for any such intervention would in my view need to be addressing through strong orders of the longstanding patterns of paternal coercive behaviour within the family system, then the addressing through a family violence behaviour change programme of the father’s own attitudes and actions.

3. This opinion was an important aspect of the expert’s recommendations for the removal of the two children who were then living with the father from the father’s care and into the care of the maternal grandmother.  It was also an important basis for the expert’s opinion about the likely effect of changes in the children’s circumstances.

4. In terms of personality vulnerabilities the expert assessed that the father has significant personality immaturity and antisocial personality traits and may have a personality disorder.

5. The expert opined that the father may have a depressive disorder and thought that if this were the case it is likely to be a persistent depressive disorder of chronic and moderate intensity resulting from and perpetuating personality dysfunction.

6. Matters of capacity are to be considered in the context of the parenting arrangements sought by each party.  While the father seeks that some of the children live with him the mother does not seek to have any of the children live with her.  The maternal grandmother seeks generally to have the children live with her. 

7. According to the expert the question of each parent’s capacity must also be considered in the context of the findings of family violence.  The expert’s opinion of the mother’s capacity in these contexts is as follows:

   The mother in particular but also the maternal grandmother have their own vulnerabilities and impairments in parenting capacity, and have contributed to the children’s experience of abuse and neglect in various ways over time, but in my view their vulnerabilities and contributions need to be seen in the context of the impacts of paternal patterns of behaviour upon their wellbeing, agency and relationship with the children, over time.

   I observe potential for the maternal grandmother in particular but also the mother to be more effective in their parenting, if they are protected by strong orders from paternal patterns of behaviour and from the fear of the enactment of such patterns of behaviour.

   A significant contributor to the children’s experience of neglect (prior to and since parental separation) has been their many shifts between households and locations, with resultant disruption of care arrangements, connections with adult care figures, schooling, and broader connections with place and people. My impression is that the main driver of this process before and since parental separation has been paternal demand or expectation, or the impact of the same upon the mother.

8. The expert’s opinion in relation to the nexus between the father’s violence and parental capacity is summed up in the following paragraphs.

   My impression is that this pattern of family violence has been at the severe end of the spectrum, in terms of the father’s repeated serious physical assaults upon the mother, the father’s use of intimidation and threats towards the mother, the father’s active and purposeful undermining of the mother to third parties including police, [Community Services] and the children, and the father’s active and purposeful domination and distortion of the narrative of family life and family violence as expressed to these third parties, and the father’s controlling and capricious use of power over the mother, the maternal grandmother and the children.

   I observe that the father holds enormous control over this family system. The father does not exercise this control in the constant, consistent, detailed and obsessional way that is commonly equated with a “coercive controlling” pattern of family violence. Rather, he exercises this control in an intermittent, inconsistent, reactive (and I would argue at times quite immature, self-focussed, capricious or self-serving) way. But, he is experienced by the other adults and the children as powerful and potentially life-threatening, and they have come to modulate to his will rather than to directly challenge it.

9. Overall the expert observed that the children have experienced relative neglect of their emotional intellectual relational and developmental needs in the care of the mother despite her good intention in those regards.  The parties two daughters described the mother to the expert as disengaged from them and not proactively spending time with them and the expert formed the opinion that these complaints “likely represent relative neglect of the children’s needs for connection, attention and affirmation, as associated with personality vulnerability in the mother”. 

10. The expert also observes that the children describe the mother having smacked or hit them to both the expert and the family consultant and to others.  I accept the expert’s assessment that “it [is] likely that this “smacking” was sometimes in anger and was physically and emotionally abusive, but not with the degree of force, threat, intimidation and power imbalance of that carried out by the father”.  The expert also thought it likely the mother has been verbally and emotionally abusive to the children at times during conflict associated with parental boundary setting. 

11. Despite these shortcomings the expert felt that the mother could be assisted to improve her parenting and her relationships with the children through focused relationship-based and skills-based work in the context of the maternal grandmother providing the foundation of care for the children.

12. The expert was unclear as to whether the mother has a psychiatric diagnosis thought he noted that the mother described experiencing symptoms of anxiety which include some features of post-traumatic stress disorder (PTSD) associated with her experience of the father’s violent and intimidating behaviour, but not a full syndrome PTSD.  The expert observed that the mother showed personality immaturity and some borderline personality traits thought he thought it unlikely that the mother has a personality disorder. 

13. The expert observed that the mother shows capacity to provide for the children’s basic needs for food, shelter and protection from harm and some capacity to meet the children’s emotional, intellectual, relational and developmental needs though he noted some failings in these areas.

14. In the view of the expert the mother’s capacity over time has been augmented by her willingness to make use of support from the maternal grandmother.

15. The expert also opined;

    If I am accurate the mother’s parenting intention/action gap arises mostly from the impacts of family violence over time rather than from disinterest, alternative preoccupations or drug/alcohol use, then if the mother is provided some foundation of protection by strong orders, then with a program of therapy as recommended below, in particular if this process occurs in collaboration with and with the support of a maternal grandmother, then the prognosis for improvement in the mother’s parenting capacity is reasonable.

16. It is the expert’s opinion that the adult with the greatest capacity to meet the needs of the children is the maternal grandmother.  Although the expert expressed some concern about the maternal grandmother’s vulnerabilities and in particular that she has been inadequately protective of the children in relation to the father’s aggression and violence in his view this is a reflection of “realities of the power dynamics and risks associated with the pattern of family violence”.

17. The expert felt that at all times the maternal grandmother sought to the best by the children.  The expert also felt that at times she had used physical discipline which may have extended to physically abusive behaviour and that it was likely that she had not been able to adequately monitor and manage the children’s harm to one another.  It was also noted by the expert and was a current issue in the course of the proceedings that the maternal grandmother had been unable to facilitate the children regularly attending school.  The expert felt however, that these were “issues of resourcing and stamina” and may also reflect the maternal grandmother “accommodating too much to chronic lack and loss in the family system”. 

18. Overall however, the expert found no presence of mental illness or misuse of alcohol or other substances in the maternal grandmother.  He also observed that she expressed a commitment to the children and to her own role as a parent-figure and confirmed to the expert a willingness to take on the care of all of the children but appeared to be stressing an issue which the expert felt was valid of resourcing and support in boundary-setting.

1. The expert is of the view that the maternal grandmother shows capacity to provide for the children’s basic needs and to meet their emotional, intellectual, relational and developmental needs.  He also opined:

   The maternal grandmother, more than either parent, shows strong capacity for in-the-moment and day-to day engagement with the children, listening to and responding to the children, shared ordinary time and ordinary pro social activities.  The children spoke of valuing the same. 

   The maternal grandmother’s home, more than the home of either parent, is experienced by the children as a place where people are connected, and converse, and collaborate, and do ordinary things together.  The children spoke of valuing the same.  I note that the children spoke of the maternal grandfather (who I did not meet) playing a positive role in such connected/collaborative processes also.

2. Two of the concerns that the expert had in relation to the children moving to the maternal grandmother’s care were addressed in the proceedings. 

3. He first expressed concern about the maternal grandmother potentially becoming overloaded as she also had the care of an adult severely disabled son at the time of the assessment.  Sadly for the maternal grandmother, as he appeared to be loved and valued by her, this son had passed away in the early days of the final trial.  There appeared to be no suggestion that the maternal grandmother was impaired or could not cope due to her loss and overall the effect of his passing is that the caring responsibilities for the maternal grandmother had reduced.

4. Second, at the time of the final trial the older boy had been removed by Community Services and placed in out-of-home-care.  As earlier noted the expert had opined that this could happen and that in the event that a crisis arose with this child’s behaviour it would be preferable that he did spend some time in out-of-home-care rather than be permitted to return to the father.  There is evidence which suggested that this child’s behaviour had settled somewhat after having been removed from the father’s care. 

5. It is the clear opinion of the expert having regard to the foregoing matters and in particular the need to protect the children from harm, the respective parent’s capacity and the capacity of the maternal grandmother that the children should be moved to the care of the maternal grandmother.  He is also firm in recommending that the mother should play an important role in the children’s lives under that arrangement and that the father should effectively be excised from the children’s lives.  He is of the firm belief that this change in the children’s lives would “protect [them] for the rest of their growing up” and give them an opportunity to develop in a less dysfunctional environment which would undoubtedly be to their benefit.

6. So far as the youngest child and the second daughter are concerned this arrangement would not bring about a change in their living arrangement as they have lived with the maternal grandparents for some time, or in the case of the youngest child throughout his entire life.  It is likely that these children would experience some impact from a complete separation from the father but it appears that the second daughter had the most problematic relationship with the father and had in recent times made serious allegations about his conduct which has caused the relationship to be further strained.  In my view the benefit to be gained by all of the children from the arrangement recommended by the expert and proposed in final orders by the ICL would outweigh their respective feelings of loss that they may experience about separation from their father. 

7. It is likely that the children who would experience the greatest impact of separation from the father are the oldest child and the older boy as they have lived with him for much of the last three years.  It is also well documented that the older boy has reacted quite dramatically in the past when he has been separated from the father and has engaged in highly disruptive behaviour in an effort to have his way in being returned to the father’s care.  Similarly, the oldest child has been used to having her own way in relation to contact with the father.  While it is likely that these two children in particular will experience some difficulties, in light of the expert’s opinion (that permitting the children to have their own way I relation to the father has been extremely harmful to them) there is little weight attached to this consideration.

8. As this is a matter in which the Department is a party and is proposed by most of the parties to hold parental responsibility for some or all of the children some consideration of the Department’s capacity to meet the needs of the children must be made.

9. It may be regarded as unusual to undertake such a consideration as it should be expected to be safely assumed that the Department as the State’s parent of last resort must have such capacity. However, it became apparent in these proceedings that pursuant to Community Services’ policy there are few options for the care of children who display highly problematic and disruptive behaviours and for this reason are unsuitable to be placed in foster care.  The only care model available it seems is that such children are placed in motels and the placement is monitored and supervised by workers from private agencies whose training, experience and capacities may vary.  It also became apparent in the course of these proceedings that officers of the Department were either unwilling or unable to exercise sufficient authority over these children to ensure that they remained in placements where they were protected from harm.  As noted previously the oldest child and oldest boy in particular were permitted to have their own way and remain in the care of the father or place themselves in his care even though it was contrary to the best interest of those children and caused significant harm to their wellbeing.

10. Having made the forgoing observations as to the child protection “system” generally I do not make any criticism of particular officers who clearly do their best within the system. I was also particularly impressed with the evidence of Ms E the Acting Case Work Manager who took responsibility for decisions made by the Department and appeared to have a greater capacity than those involved with the family in the past to ensure that decisions made in the children’s best interests were implemented to the extent she was able to do so.

11. Despite the unfortunate shortcomings in the very limited options available for children whose behaviour may be very challenging in the future, the Secretary’s continued involvement through orders for parental responsibility remains the only option if the children cannot safely live in the care of either parent or the maternal grandparents.   

12. As it may be expected that the behaviour of the oldest child and the older boy in particular may become challenging for the maternal grandmother in the future the proposal of the ICL that the Minister retain parental responsibility for these children is appropriate and in line with the recommendations of the expert.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

3. In Goode & Goode[9] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [9] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. In these proceedings there are more than reasonable grounds to believe that the father has engaged in family violence so the presumption does not apply.  Neither parent is seeking to share parental responsibility with the other parent and given the state of their relationship it would not be possible for them to be making decisions in relation to the care and welfare of the children jointly. 

6. The father seeks an order that he have sole parental responsibility for the oldest child and the older boy but does not otherwise address this issue.  No other party seeks an order that either parent have sole parental responsibility for any other child.

7. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father that he have sole parental responsibility for two of the children must mean that he would have all the duties, powers, responsibilities and authority which, by law parents have in relation to those children and that the mother would have none of the duties, powers, responsibilities and authority with respect to those children.

8. Having regard to the findings I have made with respect to the father’s conduct and his capacity as a parent, I will be making orders that none of the children spend time with or have any contact with him.  In these circumstances there is no doubt it would not be in the best interests of these children for the father to exercise any parental responsibility for them.

9. The other proposals in relation to parental responsibility involve parties other than the parents having or sharing parental responsibility. 

Conclusion

1. The expert does not recommend that the mother share parental responsibility with the maternal grandmother and the Department as she seeks.  His recommendations with respect to parental responsibility have been adopted by the ICL. 

2. As discussed at length previously in this judgment and for the reasons given I accept the opinions of the expert which form the foundation for this recommendation and I attach significant weight to that opinion.  For this reason I am of the view that the proposal of the ICL in relation to parental responsibility is in the best interests of the children.

3. Similarly, I am of the view that the parenting arrangements proposed by the ICL are in the best interests of the children having regard to my consideration of each of the primary and other matters set out in section 60CC(2) as discussed. 

4. Attaching particular weight to the opinion of the expert and to the need to protect the children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence, the relationships between the children and parents, maternal grandparents and between the siblings and giving weight to my findings concerning the father’s perpetration of family violence and parental capacity, I am satisfied that the proposal of the ICL will best meet the needs of these children.

5. Accordingly I make the orders set out at the forefront of these Reasons.

I certify that the preceding four hundred and thirty-nine (439) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 August 2018.

Legal Associate: 

Date:  23 August 2018