RAINALDO & RAINALDO

[2020] FamCA 921

FAMILY COURT OF AUSTRALIA

RAINALDO & RAINALDO [2020] FamCA 921

FAMILY LAW – CHILDREN – Undefended parenting – Where the father has discontinued his application for final orders – Where it is the mother’s case that the children disclosed being physically abused by the father in his care – Where the mother seeks findings that the father physically abused the children and that he poses an unacceptable risk of physical and psychological harm to them – Where the mother seek orders that she hold sole parental responsibility for the children and that they live with her and spend no time and have no communication with the father – Where the mother also seeks injunctions against father and orders that she be permitted to travel with the children without the father’s consent – Where ICL supports orders sought by the mother – Where evidence corroborates that the father physically abused the children in his care and that he poses serious risks of harm to the children – Where positive findings are made against the father – Where it is in the children’s best interests to make orders in the terms sought by the mother – Orders made as sought by the mother.

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

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

APPLICANT: Ms Rainaldo

RESPONDENT: Mr Rainaldo

INDEPENDENT CHILDREN’S LAWYER: Sydney West Family Lawyers

FILE NUMBER: SYC 3400 of 2015

DATE DELIVERED: 2 November 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Fay Rose Legal

SOLICITOR FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sydney West Family Lawyers

it is ordered that

1. All prior parenting orders be discharged.

2. The mother have sole parental responsibility in respect of the children Y born … 2009 and W born … 2010 (“the children”).

3. The children live with the mother

4. The children spend no time and have no communication with the father.

5. Pursuant to Section 68B of the Family Law Act 1975 (Cth) (“the Act”), and commencing at the expiry of the current Apprehended Domestic Violence Order in March 2021, the father Mr Rainaldo is hereby restrained from:

   (a)Contacting or approaching or attempting to contact or approach the children by any means whatsoever including through any third party;

   (b)Attending or being within 100 metres of the place of residence of the children;

   (c)Attending or being within 100 metres of any school or co-curricular activity attended by the children or either one of them;

   (d)Making, or allowing any third party to make, any posts on social or other media referring to or depicting the children, either one of them or the mother.

6. It is noted that Order (5) above are injunctions for the personal protection of the mother and the children to which Section 68C of the Act apply and accordingly, any police officer made aware of these orders and who on reasonable grounds believes that such injunctions have been breached by the father by either harassing, molesting, stalking or physically harming or threatening to harm the children or either of them may arrest the father without warrant.

7. The children or either of them are permitted to travel internationally without the need for the consent of the father to be provided to the issue of a passport to the children. The mother shall be the only person with ‘parental responsibility’ of the children for the purposes of applying for, and being issued with, an Australian passport for the children or either of them.

8. Within 48 hours of these orders the father is to deposit the Australian Passport issued for the child Y with the Parramatta Registry of this Court and the mother is at liberty to collect said passport once so deposited.

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 Rainaldo & Rainaldo 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: SYC 3400 of 2015

Ms Rainaldo  

Applicant

And

Mr Rainaldo  

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long term parenting arrangements for the parties’ two young sons (“the children”).

2. Final parenting orders were previously made with the consent of the parties in 2016 providing that the children live with each parent in an equal shared care arrangement.

3. The equal shared cared arrangement continued until June 2019 when both children disclosed being physically abused by the father. From this time the mother retained the children in her care and in her Initiating Application sought orders that the previous orders be discharged, that she have sole parental responsibility for the children and that they live with her. She also sought injunctions against the father for the protection of herself and the children and other orders permitting her to travel internationally with the children without the father’s consent.

4. The father diametrically opposed the mother’s application and sought final orders providing that he hold sole parental responsibility for the children, that they live with him and spend time with the mother as agreed between the parties in writing. At the time of filing his Response, Local Court proceedings were on foot against him relating to an Apprehended Domestic Violence Order (“ADVO”) sought for the protection of the children arising from his alleged abuse. It was his proposal at the time that he spend supervised time with the children on an interim basis pending the completion of those proceedings.  

5. Though interim orders were made with the consent of the parties in October 2019  providing that the father spend limited supervised time with the children, those orders were suspended shortly thereafter upon application by the Independent Children’s Lawyer (“ICL”) who raised concerns regarding the children’s safety arising from the contents of the Magellan Report and the Child Responsive Program Memorandum prepared in the proceedings.

6. After consenting to a final ADVO protecting the children (without making any admissions regarding his conduct) in March 2020, the father discontinued his application for parenting orders. The mother continued to seek parenting orders and her application was heard undefended.

7. The mother amended her application in June 2020 seeking a further order that the children spend no time and have no communication with the father and that he be further restrained from contacting or approaching the children by any means including through a third party. She seeks findings that the father has physically abused the children and that he poses an unacceptable risk of physical and psychological harm to them.

8. The ICL supports the mother’s proposal, though in his Outline of Case submits that in circumstances where the mother’s orders would see the children spend no time or have no communication with the father, and where the father has discontinued his application, it is not necessary for the Court to embark on making findings as to risk. Otherwise, it is the ICL’s case that there is sufficient evidence before the Court to support a finding that the children have been exposed to abuse by the father which has caused them both physical and psychological harm.

9. The questions for me to determine are whether the father has physically abused the children and poses an unacceptable risk of physical and psychological harm to them, and whether it is proper to make orders as sought by the mother and supported by the ICL having regard to the children’s best interests as the paramount consideration.

Background

1. The mother who is 36 and the father who is 41 were married in 2005 shortly after they began living together.

2. The first of the parties’ sons (“the older child”) was born in 2009 and is now aged 11.  Their second son (“the younger child”) born in 2010 is almost 10.

3. Throughout the parties’ marriage the mother deposes that the father was aggressive towards she and the children and that his abusive behaviour led to their separation in December 2014.

4. From mid-2015 until late 2016 the parties were in dispute as to the future parenting arrangements for the children and in relation to a property settlement. 

5. The parenting dispute resolved by way final orders made by consent (“the 2016 orders”) that in summary provided that the parties hold equal shared parental responsibility for the children and that the children live with each parent in an equal shared care arrangement. The orders also provided that each parent be at liberty to contact the children electronically at all reasonable times when they are in the care of the other parent.

6. The mother contends that because of the father’s aggressive attitude, co-parenting in accordance with the 2016 orders was “difficult”. She raised concerns that despite orders in place allowing communication with the children during times they were in the father’s care, her calls were seldom answered. She further deposes that when she raised these concerns with the father, he became “combative” and verbally abusive towards her and that such attitude also hindered discussions between them relating to Child Support.

7. In early 2017 the parties reached agreement as to property matters and orders were made for the sale of the former matrimonial home. The mother did not immediately vacate the home and the father filed a Contravention Application seeking that the orders for the sale of the property be enforced.

8. Around that time the Department formerly known as Family and Community Services (“the Department”) received a report that the father made threats to the mother that he would break into and take possession of the home if she did not leave. Ultimately, the property was sold and the mother and children secured nearby rental accommodation.

9. On various occasions in late 2018, the Department received reports relating to the neglect of the children in the mother’s care, excessive discipline and exposure to parental substance abuse. These reports raised concerns that the children were often left without food and that the mother misused illicit drugs as well as physically abused the children. These reports, though screened in as ‘risk of significant harm’, did not proceed to secondary assessment.

10. In November 2018 a report was received by the Police Child Wellbeing Unit concerning a person with whom the mother had a brief relationship following the parties’ separation. In the report it was noted that the mother received harassing phone calls and text messages from this person and that he had vexatiously requested police to conduct a welfare check on the children due to concerns they were being exposed to illicit drug use by the mother. When police attended the home, no concerns or signs of drug use by the mother were identified. An AVO was made against this man for the protection of the mother for a period of 12 months.

11. Other than the above concerns described in reports received by the Department, in the ensuing months it appears the children spent time with each parent in accordance with the 2016 orders without significant incident.

12. In June 2019 the mother unilaterally decided to cease making the children available to the father after both children disclosed being physically abused by him.

The father’s alleged abuse

1. The abuse alleged which has been denied by the father (and for this reason is a matter to which I will return) was of a very serious nature resulting in bruising to various parts of both children’s bodies.

Events following the children’s disclosures

1. On 11 June 2019 the mother reported the disclosures made by the children to the Department. The report was referred to the Joint Child Protection Response Program (“JCPRP”)[1] for investigation and Departmental officers advised the mother to report matters to police and attend the hospital with the children for immediate assessment.

   [1] The Joint Child Protection Response Program is an agency made up of officers from Community Services, New South Wales Police and New South Wales Health that investigates complaints of sexual abuse, serious physical abuse, and extreme neglect of children.

2. The mother attended the police station the same day and a provisional ADVO was made for the protection of both children restraining the father from contacting them in any way unless through a lawyer, and further restraining him from approaching the children’s school.

3. The father attempted to contact the family on one occasion after the provisional ADVO was made, but other than sending him a photo of the children from their first holy communion the mother says she resisted communication with him.

4. On 13 June 2019 the children were interviewed separately by police of the Child Abuse Squad under JCPRP, and in the course of their interviews both children gave a detailed account of the father’s abuse. Later that day, both children were reviewed by the Child Protection Unit (“CPU”) of the Children’s Hospital and were assessed as presenting with multiple bruises and injuries.

5. A few days later the mother met with school authorities to discuss safety plans for the children in the event they felt “unsafe” or were approached by the father at school.

6. On 18 June 2019 Departmental officers conducted a safety assessment of the children and concluded that they were “safe with plan” given the then current provisional ADVO preventing the father from having any contact with the children.

7. Around this time the mother informed the Child Support Agency that the care arrangements for the children had changed. In the course of her conversation with staff of that agency, she says she was informed that the father alleged that she had kidnapped the children and that she was in breach of court orders.

8. In July 2019 an interim ADVO was made at a Local Court in the same terms as the provisional ADVO.

9. By this stage, the mother had commenced a relationship with her current partner (“the mother’s partner”).

10. In mid-August 2019 the Department received a report noting concern about the arrangement in which the mother’s partner and his children lived with the mother and the children in the same household. The report was screened in as ‘risk of psychological harm’ but was subsequently closed without further investigation.

11. Later in August 2019 the father provided a police statement denying allegations that he physically abused the children.

12. In early September 2019 a detective from the Child Abuse Squad informed the mother that police did not propose charging the father in relation to his conduct towards the children.  The mother deposes that the detective also asked her to consider “relaxing” the conditions of the interim ADVO, which she says formed the basis of a written complaint she made about the detective’s conduct in the matter shortly thereafter.

13. In mid-September 2019 the children attended upon a psychologist and engaged in counselling sessions which they continued until March 2020. 

14. On 23 September 2019 the mother filed her Initiating Application seeking orders that the 2016 orders be discharged and that the children live with her and that she hold sole parental responsibility for them. In her Notice of Risk filed in support of her application, she outlined the various incidents of physical abuse disclosed by the children.

15. The first day of hearing in the ADVO proceedings against the father took place a few days after the mother commenced these proceedings. In the course of that hearing, the younger child gave evidence and was cross-examined. The matter was then adjourned part-heard to November 2019.

16. At the first return date for the mother’s application before a Registrar on 8 October 2019 the parties’ legal representatives proposed interim orders to which the parties consented which provided for the father to spend supervised time with the children. The Registrar declined to make those orders noting that the father’s ADVO proceedings were ongoing and that the older child was yet to give evidence in those proceedings. The matter was then listed in my chambers for consideration as to whether it was appropriate to allocate the matter into the Magellan Program[2]. An ICL was also appointed in the proceedings on this day.

    [2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.

17. On 11 October 2019 the matter was placed into the Magellan Program and a Magellan Report requested. On the same occasion, the interim orders proposed with the consent of the parties were made providing that the children spend time with the father two hours each Sunday supervised at a contact centre.

18. On three occasions commencing the following weekend, the father spent time with the children in accordance with the interim orders.

19. On 19 November 2019, the parties and the children met with a family consultant for the purposes of the Child Responsive Program. The contents of the family consultant’s Memorandum to Court (“the Memorandum”) dated 20 November 2019 is a matter to which I will return later in these Reasons but it suffices to say that serious concerns were raised relating to the risk of physical and psychological harm to the children arising from the father’s alleged abusive behaviour as well as issues relating to the mother’s alleged drug use.  

20. Both the Memorandum and the Magellan Report were released to the parties on 22 November 2019, and on application by the ICL and with the consent of the parties, the father’s supervised time with the children was suspended pending further order.

21. In November 2019 the ADVO proceedings against the father resumed for second day of hearing. On this occasion, both children attended court and the older child gave evidence and was cross-examined. The hearing was not completed in November 2019 and was again adjourned part-heard.

22. The father filed a Response to the mother’s Initiating Application on 12 December 2019 seeking orders that his supervised time with the children recommence. In his affidavit filed in support of this application the father denied the mother’s allegations and deposed that the mother sought to influence the children in making the allegations against him and that children were at risk of serious neglect in her care.

23. In March 2020 the father consented without admissions to a final ADVO protecting the children for a period of 12 months.

24. By April 2020 the father no longer pressed his application for time with the children and advised the Court through his solicitors that he no longer wished to continue with the proceedings.

25. The father filed a Notice of Discontinuance in May 2020 and in these circumstances, and as the mother still sought parenting orders, it was appropriate for the proceedings to be dealt with on an undefended basis.

26. In June 2020 the mother amended her application for final orders seeking a further order that the children spend no time and have no communication with the father and that he be further restrained from contacting or approaching the children by any means including through a third party.

1. The final hearing proceeded undefended as against the father on 21 July 2020.

The hearing

1. In the course of the hearing on 21 July 2020, as well as seeking orders as proposed, the mother pressed her application for a finding that the father poses an unacceptable risk of physical and psychological harm to the children.

2. In addition to tendering psychologist’s records and documents produced on subpoena by the Department, the mother’s also relied upon the transcript of the Local Court ADVO proceedings in which both children gave evidence and were cross-examined.

3. The family consultant was briefly questioned at the final hearing about the Memorandum to Court related to her assessment of the family in November 2019 and remained firm as to her views contained in that Memorandum.

4. At the completion of the family consultant’s evidence it became apparent that orders providing that the parties hold equal shared parental responsibility made in 2016 remained in place. The mother’s solicitor made an oral application that those orders be suspended, or that the mother otherwise have sole parental responsibility for the children pending final judgment which the ICL did not oppose.

5. As the father had discontinued his application and no longer participated in the proceedings, I made an interim order that the mother hold sole parental responsibility for the children and that they spend no time with the father on an interim basis to provide the children with some security pending final judgment.

Family consultant’s evidence

Child Responsive Program Memorandum

1. At the time the family met with the family consultant in November 2019 for the purposes of the Child Responsive program interim orders were in place providing that the father spend limited supervised time with the children at a contact centre. An Interim ADVO was also in place for the protection of the children which restrained the father from otherwise having contact with them.

2. It was the mother’s proposal at the time that she hold sole parental responsibility for the children and that they spend time with the father in accordance with their best interests as determined by the Court. In her interview, the mother told the family consultant that while she was very concerned about protecting the children from the father, she did not want to ruin their relationships with him or upset them. She explained that although the children have indicated that they do not want to spend time with the father, she is concerned that they would “hate her” should they change their minds about the situation and question her about why she did not continue to promote their relationship with him. On this basis, she said she “did not know what to propose” and sought that the Court make this assessment.

3. Although the father had not yet filed a Response to the mother’s Initiating Application at the time of the assessment, he proposed on interview orders that he hold sole parental responsibility for the children and that they live with him and spend supervised time with the mother twice a year.

4. In her interview with the family consultant the mother reported various instances of the father perpetrating family violence towards her during their relationship. She described that the father made “threats towards her, verbally abused her, purposefully burned her and limited her movements”. Whilst she acknowledged that since separation the father’s physical violence towards her ceased, she told the family consultant that he continues to intimidate and verbally abuse her including that he “sends threatening messages, stalks her on social media and speaks to other people who monitor her movements”. She further stated that she remains fearful of the father and does not want him to know her address.

5. The father denied ever abusing the mother during their relationship and following their separation and told the family consultant that it was the mother who was physically violent and verbally abusive towards him. He later gave an example of abusive messages that he says were exchanged between the parties which the family consultant opined indicates both parties being “equally verbally abusive”, but considered that it may be a matter for the Court to determine if one or both parents are primarily responsible for this.

6. It was common ground between the parties that their co-parenting relationship to-date was poor as they have “never been able to communicate effectively” about the children.

7. When asked about the previous equal time arrangement, the parties gave differing accounts of the children’s experience. The mother reported that the equal time arrangement was “difficult” for the children particularly because of the geographical distance between the father’s home and their school, while the father told the family consultant that the children enjoyed the equal shared care and that it “generally worked well”.

8. The mother then reported the children’s disclosures of the father’s alleged physical abuse in June earlier that year. The mother’s account of these matters is in the same terms as deposed to in her affidavit and she explained that she did not know what to do about the children’s allegations at first as she feared that the father would harass and intimidate her if they came to light. She later added that prior to those incidents, she witnessed the father hit the children with his belt and that there had been other occasions she had seen bruises on the children but failed to report them as she “did not want to overreact”.

9. The father denied that he physically abused the children or that he used physical discipline towards them. He told the family consultant that the bruises the younger child sustained came as a result of the child falling off the bike, whereas the older child did not have any bruising on him when he left his care. He went on to say that the mother had been physically abusive towards the children and that he had witnessed bruising on the children caused by her actions in the past. Further in his interview the father told the family consultant that the children had been “coached” by the mother to make untruthful allegations of physical abuse against him.

10. The family consultant considered the allegations of physical abuse of the children made against the father as “very serious”. She opined that if found accurate, they would be considered to cause the children “significant physical and psychological injury” and went onto say:

    If the children have been the victims of physical abuse as they have alleged, then it is not considered that any form of supervised time protects the children from the psychological aspects of physical abuse…it is likely that their physical and psychological safety will be at significant risk if they were to spend any time with [the father], particularly in the scenario that the Court finds that the abuse is likely to have occurred, but [the father] continues to deny it.   

11. The mother also raised concerns that the extended paternal family had not been protective of the children and that the children were denied “normal freedoms” when they stayed in that household. The father maintained that this was not the case.

12. Other concerns the mother raised related to the recent supervised contact the children had with the father pursuant to the interim orders made by consent in October 2019. She reported that the father inappropriately questioned the children during his contact with them, including asking the older child “don’t you miss dad…won’t you come back and live with him” and asked both children whether the mother had left them unsupervised. The mother also told the family consultant that the father continues to speak negatively about her to the children including that he has told them that she is a “shit mum” and “pathetic”.

13. While the father acknowledged that he had spoken to the older child during supervised time about returning to his care and told the child that “if it’s in his heart to be with dad then that is what he needs to say when the times comes”, he denied that this was problematic and stated that he “spoke from the heart”.

14. The family consultant noted that spending supervised time with the father after a period of no time due to serious child abuse allegations is a “highly contentious and stressful experience for the children” and to this end considered the father’s conduct in attempting to influence the older child “highly inappropriate”.

15. The family consultant then expressed the view that the father’s conduct demonstrates “a serious lack of insight into the children’s experiences and a potential inability to place the children’s needs above his own”.

16. During his interview, the father also raised concerns about the mother’s neglect of the children including that she left the children unsupervised whilst out of the house, or left them in the care of her mother and current partner whom he did not consider “appropriate supervisors”. While the mother conceded that her mother and her partner were both physically disabled in some way, she maintained that their minor mobility issues did not impact on their ability to care for the children and denied that she has ever left the children unsupervised.

17. Some issues were also raised about the mother’s drug use. The mother reported that she had used cocaine in the past and as recently as in the month prior to the assessment. She also told the family consultant that she has not used cocaine “habitually” and that the children were not in her care when she used the substance. The family consultant considered this matter as a potential issue for the children’s wellbeing that may require further assessment. The family consultant opined that if the Court holds concerns about the children being at unacceptable risk of harm in relation to the mother’s drug use, then the Court may be assisted by obtaining further testing.

18. With respect to the children, the mother reported that they were “generally doing well” and that they have attended counselling sessions with a psychologist.

19. The family consultant noted that the older child who was 10 years old when interviewed presented as a “polite, articulate and mature boy” and that the younger child who was nine appeared “shy” and “reserved”.

20. When interviewed, both children spoke positively about the mother and the mother’s current partner as well as his children. The family consultant reported that the children reported no concerns about the mother’s care and that the older child in particular listed “several things” he liked about the mother. This child also indicated that the children were never left unsupervised in the mother’s care and that when they were disciplined by her, this would involve their electronic gadgets being taken away or being instructed to return to their rooms.

21. The older child told the family consultant that he did not like the previous equal time arrangement and explained that he disliked the paternal grandparents given they would “yell at him for no reason and make [the children] spend long periods of time outside”.

22. When describing the father, both children expressed great aversion towards him and detailed various negative experiences they experienced in his care including the recent alleged physical abuse by the father.

23. The older child reported that the father would occasionally “snap the belt at us, then hit us with it” and that other times he yelled at both children. The child went on to say that after being hit by the belt he was “scared but then I got used to it, I would let him do it and then I’d read a book”. He noted that he was fond of reading as it enables him to “imagine other things and places”. 

24. Later in his interview the older child stated that the father has spoken negatively about the mother including that he “tries to put things in our head like mum being out when she wasn’t out” and had called the mother “filthy” and “pathetic” and complained that she “leaves us with a disabled person (meaning the maternal grandmother)”. The younger child also relayed that the father spoke ill of the mother but declined to repeat what he had heard as he considered it “rude words”. Both children denied that the mother spoke negatively about the father.

25. The family consultant evaluated that if the children’s reports of the father speaking negatively about the mother to them is accurate:

    …this may cause significant disruption to the children’s relationship with one or both of their parents, and it would indicate that the parent responsible for doing this has an extremely poor attitude towards co-parenting.

26. In the course of his interview, the younger child also recounted that the father had hit the children with a belt on many occasions in the past. He further told the family consultant that he and the older child lived with the father until “[the father] did something to hurt me and my brother bad”. The child then described the events of his stay with the father in June 2019 consistent with the mother‘s account of the child’s disclosure to her as deposed to in her affidavit. The child further stated that the father told him to fabricate the truth and tell the mother he had merely fallen from his bicycle. The child reiterated that this was not the truth and described that when the mother saw the bruises she “was shocked”.

27. The family consultant told the older child he was not going to be asked about specific details of the father’s alleged abuse in June 2019 due to the then ongoing Local Court proceedings, but said that he is welcome to talk about his feelings in relation to those events.

28. The older child then recounted that when he saw the younger child appearing hurt and in pain “he was so scared, I couldn’t confront him…my heart dropped”. He further stated that the father “has belted us before…big time… he hit us on the head or legs, red [marks] but would go away” and also recounted that the father has previously thrown an axe (made by the child) at the younger child’s head. Further in his interview, the older child told the family consultant that the father instructed the children to say they had “fallen off their bicycles”.

29. When asked about the supervised time they spent with the father pursuant to court orders the older child stated that such arrangement is “better than seeing [the father] on his own” but that the father’s conduct towards he and the younger child was “still in my mind”. The older child further recounted that during one visit, the father told him to “come back to him” and that he “can say things that mum or the supervisor doesn’t need to know”. The child said he avoided these questions.

30. In relation to time with the father in the future, the older child expressed serious reservations about the father and bemoaned his previous conduct and ultimately expressed the view that he no longer wanted to have contact with him. Although he recalled one positive experience of the father taking the children to a festival, he remained adamant that if he has to return to spending time with the father he “will be fearful and he will have to read a lot of books as they help him picture a different place”. The family consultant further noted that on interview the child stated:

    …he always hated the school holidays, because he has to spend more time with [the father]. He reported that he does not want supervised time with [the father] either, because of the conversation. [The older child] said that he does not trust [the father] at all, and [that] he always had to be careful about what he said to [the father] to not make a problem.

31. The younger child expressed some ambivalence towards his contact with the father being ceased, and told the family consultant that while he is “ok” to continue spending time with the father he “does not want to be hit anymore”.

32. The family consultant did not recommend that the previous equal time arrangement be reinstituted. It was her evaluation that the nature of the co-parenting relationship (including the history of it), along with the geographical distance between the father’s residence and the children’s school and the mother’s residence would contraindicate such an arrangement.

33. The family consultant also held “significant concerns” about the children’s safety relating to the release of her Memorandum to the father given the contents of the children’s interviews with her during the assessment. It was her recommendation that the Memorandum be released in Court and that any interim arrangements be reviewed “as it appears that the current supervised time arrangements may not be in the children’s best interests”.

The family consultant’s oral evidence

1. At final hearing I indicated to the mother and ICL (who were the only participating parties in the hearing) that the family consultant’s Memorandum, while usefully identifying the issues between the parties in the proceedings, does not extensively explore the harm that arises from the father’s conduct which the mother contends has been experienced by the children. 

2. In these circumstances, the family consultant was asked to give evidence about those matters in the course of the hearing on 21 July 2020.

3. At the hearing, when asked about the kinds of harm children experience when subjected to the type of abuse as reported by the children the family consultant opined:

   …in terms of having a history of a parent physically abusing a child to varying degrees including the one that was referred to mostly during the Child Responsive Program…the children would experience chronic stress in terms of being on guard as to whether they are going to be physically assaulted, and if it is something that has happened throughout their lives then that chronic stress would never abate for them when they are in the care of the parent that perpetrated the abuse against them.

4. She further opined:

   Being in chronic stress and chronic fear has significant impact on anyone’s mental health, but for a developing child it can impact on their development as they move through different developmental phases of childhood. It could… cause a traumatic psychological injury to the child who is experiencing that, which can again impact on their development depending on what stage of their life those incidents occurred.

5. The family consultant then clarified the harm on a child’s development and how that may be seen their life. She stated that the impact extends to their academic performance “if they are not able to focus on learning” due to being worried about safety issues, to their mental health which can in turn lead to depression and issues with self-esteem and low self-worth seen in children as “withdrawal-type behaviours”, or can lead to issues with emotional regulation.

6. The family consultant further explained that a child’s experience of physical abuse including discipline of that nature can normalise violent behaviours for them and may cause them to believe that the way to resolve conflict or a disagreement is through violence.

7. The family consultant was then asked to expand upon the view expressed in the Memorandum that if the children are found to have experienced physical abuse as alleged, any form of supervision would not protect them from the psychological impact of that abuse. The family consultant reiterated that while supervised time can protect the children against further physical injury, allowing such arrangement would not send a positive message to them, particularly if the perpetrator “denies the abuse and has done nothing to change their behaviour (including through therapeutic intervention)”. She went on to say that supervised time in those circumstances:

   …can imply to the children that they are okay to continue some form of a relationship with the person who perpetrated physical injury against them without any repair of the damage that has been caused by the perpetrator…it may also seem like the perpetrator has not taken any responsibility or accountability, and on top of that, supervised time may not be able to protect against the perpetrator talking to the children about physical assaults that have happened in the past, for example saying that they didn’t happen when they did…

1. The family consultant further explained that verbal exchanges could be hard to supervise and raised concerns that threats could be made in those contexts.

2. When asked to expand on her view that the father’s conduct in questioning the older child during their supervised time was highly inappropriate and demonstrated a serious lack of insight on the father’s part, the family consultant highlighted that the statement made by the father would appear to the child “to place no importance on the reasons as to why the arrangements had changed”. The family consultant also explained that the child could perceive those statements as a “threat to say something when the time comes” which could in turn induce fear in the child and be seen as a “clear attempt to influence the child to make a statement that he knew was not true”. She went on to say that these types of “negative influences” could be seen by the child as an “extension of the psychological abuse” that may have accompanied the physical injury experienced by the child and his younger brother and would carry the same implications for their development and mental health.

3. The family consultant was also asked about the harm arising from the younger child being asked by the father to provide a “false” version of how they came to be injured. In response, the family consultant raised a number of matters of concern including:

   the child is told that his actual experiences were not valued, not true and therefore told not to repeat them as they never happened…it could imply to the child that there is something to be ashamed of potentially, that there is something that needs to be covered up [and] places a developmental load on a child to take responsibility for maintaining a story that is not true...[it further] places responsibility on the child to care for the perpetrating parent’s wellbeing even though that parent has caused harm to the child.

4. When asked whether a child’s formation of a moral compass could be affected in these circumstances, the family consultant replied “certainly”. She elaborated that where a child is told by a parent who is expected to guide them and care for them that lying is an acceptable course of action, the child may very well learn that there is no moral issue in not telling the truth, particularly when involved in legal matters.

5. Finally, the family consultant was asked to elaborate on the impact upon a parent who may be subject to family violence of the nature alleged by the mother.

6. The family consultant told the Court that where the type of family violence alleged by the mother continues after separation, “serious safety concerns” are raised for the parent towards whom the violence is directed since that dynamic is likely to be ongoing.

7. The family consultant further explained that a parent in these circumstances would experience “chronic stress and chronic fear that never abates” that could significantly affect their ability to regulate their own emotions including that they would be “hyper-aroused, constantly fearful and start to isolate themselves so as to not have contact with the perpetrator”. She further stated parents in these positions may develop mental health issues such as depression and withdrawal from social connections.

8. The family consultant then opined that these issues could in turn be detrimental to that parent’s capacity to parent their children simply because “they would not be emotionally available as they would be overwhelmed with safety issues which may distract them from being attuned to the needs of the children”.

Factual findings  

Has the father physically abused the children?

1. As outlined in written submissions, the mother seeks a finding that the father physically abused the children on several occasions in June 2019 and on this basis there is an unacceptable risk that the children may be harmed by similar conduct in the future. The gravamen of her case is based upon disclosures and complaints said to have been made by the children when they returned to her care on 10 June 2019 and upon various documents produced by the Local Court, the Department and the children’s treating psychologist.

2. It is the mother’s case that both children described being physically abused by the father several times between 7 and 9 June 2019.

3. According to the mother’s affidavit, the children returned to her after living with the father a couple of hours later than the stipulated changeover time under the then current orders. Upon arrival, the mother says they were not their usual enthusiastic selves but instead “withdrawn and quiet”.

4. The mother noticed both children reluctant to change into their clothes which she had prepared for them upon their return. The younger child in particular is described to have held onto his pants “in a way that seemed like he did not want anyone to pull them down”.

5. When the mother asked the children why they were reluctant to get dressed, she deposes that the older child told the younger child words to the effect of “it’s okay, we can tell mum”. She then deposes that the younger child revealed severe bruises on his upper left thigh and when asked about how this had happened, the child replied “It’s from dad”.

6. The mother deposes that the younger child further complained of pain around the back of his head. When questioned about this pain, the mother says the child stated “dad punched me there like six to 10 times”. The older child is also said to have disclosed being hit by the father, and in the course of the conversation told the mother that “dad told us to tell you that we went for a bike ride and we both fell off our bikes…he told us that if we tell you the truth that he will kill you and then bury us with you and go to live overseas”.

7. The older child added that the physical abuse was not limited to being “smacked” but included both children being hit by the father repeatedly with a “broom stick, a mop handle and a belt” over the three days they were in his care.

8. According to the mother’s evidence both children presented with bruises and injuries on their legs, forearms and on their jaws. Annexed to her affidavit is a photo depicting the bruising sustained by the younger child on his left thigh.

9. When asked why they had not contacted the mother following these events, the mother says the children told her that the father “never calms down” and is always present to listen to their conversations with her on the phone. She also deposes that they feared that the father would hurt her if they informed her about the abuse.

10. After reassuring the children that it was safe to tell her the events of their recent time with the father, the mother asserts that the younger child described being beaten by the father with a cricket set following an incident in which it appeared the child had broken his bike. The mother says this child described being chased by the father, cornered, then hit with the cricket set before being punched repeatedly.

11. Although not formally interviewed by hospital staff in relation to their injuries on 11 June 2019, it was noted by the attending physician that both children related their injuries to events said to have occurred during their stay in the father’s care.

12. It was noted that when medically examined the younger child informed hospital staff that the father “punched him on the back of the head” and “hit him with implements including a cricket set, belt and a mop”, but was unsure which of his injuries happened on which days. The child however could identify which events corresponded to specific injuries on his body.

13. The older child when assessed told the specialist doctor that he was “hit with the stick end of a broom by his father” and identified that the area in which he had been harmed was his “his left outer knee and left lower leg”.

14. According to Local Court records (Exh 1), when the children were interviewed by police from the Child Abuse Squad two days later on 13 June 2019 both children disclosed physical assaults by the father that appear to be generally consistent with the mother’s accounts of their complaints.

15. When interviewed by police, the older child reported being assaulted by the father on several occasions over the three days in which he had spent time with his father. The child reported one of the assaults in the following terms:

    …[the father] hit me twice in the leg and I fell and he hit me on the arm…I saw him running at [me] and he hit [me] with a broom….the broom hit me a bit on the arm, the side and the leg…whilst he was hitting me he yelled…after I copped the beating I ran and got kicked up the backside...

16. When interviewed, the younger child also described seeing the father hurt the older child by smacking him with a broom on the legs.

17. The older child described a second assault during this period in which he says the father hit him with a thong.

18. On the third day the children were in the father’s care both children described to police getting into “big trouble” in apparent punishment for a bike being broken. The older child gave the following description of this incident in which he reports that the younger child was hit with a cricket set that the children were playing with at the time:

    …dad started chasing [the younger child], [the younger child] dropped the case…dad picked it up, got him in a corner and [started] slowly hitting him with it…[the younger child] was too afraid to hit him back…or block himself he just left it…then I ran upstairs with the time I had and watched from the balcony. Then [the younger child] got punched a couple of times in the corner…I think [the father] pushed him over to where the laundry was and then…he was gunna pick up [the] bike and ram it into him but it hit the wall…[the younger child] got hit a couple of more times. He was climbing up the stairs with his hands. He couldn’t use his legs. He was crying…

19. The older child also described a further incident that same night as follows:

    I told my aunty what happened and [the younger child] got called down to the study room then I was called down and we got smacked with [a] belt on the head. [The younger child] got hit on the head. I got…a couple of times in the legs, stomach, got punched in the chest. Then [the father] left us for an hour and then he came back and sent me up and I heard a smack…

20. Police records of the younger child’s interview with police show that this child recalled similar events of the father’s abuse towards him albeit he stated that it initially occurred on the Saturday instead of Sunday.

21. The younger child described running to “the corner”, being “hit with a cricket set”, the father “ramming the bike at me”, being hit further with “a mop” and the older child witnessing the incident from “upstairs on the balcony”. He also recalled having “very, very sore legs which I couldn’t walk with”.

22. Transcript of the older child’s cross-examination in the AVO proceedings (Exh 4) indicates that the child’s account is in similar terms to his version of events given to police.

23. When the family was assessed by the family consultant as part of the Child Responsive Program in November 2019, the mother reported the allegations of the father’s physical abuse that she deposed to in her affidavit including that the children were “reluctant” to report to her what had happened.

24. The general tenor of the mother’s accounts to the family consultant at the time was that “a series of events occurred over three days including [the father] hitting both of the children with a cricket bat, a broom, and throwing a bike at them”.

Discussion and findings

1. In M v M[3], the High Court 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.

   [3] [1988] HCA 68; 166 CLR 69.

2. In Johnson & Page[4] 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.

   [4] [2007] FamCA 1235 at [72].

3. It has subsequently been approved that the same standard of proof applies to other forms of abuse[5] and is applied when determining the allegations of the father’s physical abuse in this matter.

   [5] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).

4. I am satisfied to the requisite standard that the father physically abused the children during that weekend of 7 to 9 June 2019 for the following reasons. 

5. First, the children provide accounts to the attending physicians of the CPU of the Children’s Hospital on 11 June 2019 and in their interviews with police on 13 June 2019 with great clarity and contextual detail.

6. When tested under cross-examination in September 2019 in the case of the younger child and in November 2019 with respect to the older child, the children remained firm about their complaints of the father’s behaviour including in relation to specific details such as the order in which the physical assaults were said to have occurred. It was repeated by both children that on one occasion during their weekend stay with their father, the father hit the older child with the broom on the legs. They also repeated the same narrative that on a separate occasion in the course of playing cricket, the father upon learning the children’s bike was broken, proceeded to first chase the younger child, pick up the cricket set the younger child had dropped, cornered the child, hit the child several times and attempted to ram the bike at him and later that day in the “study room” used a belt to hit both of the children.

7. It is also of note in my view that in all of their accounts both children consistently identify the implements such as “the broom”, “the cricket set”, “the bike”, “the mop”, and “the belt” used by the father and related with clarity the areas in which they were struck and the resulting injuries they suffered specific to the event.

8. Even when interviewed by the family consultant a few months after the alleged incident, both children were forthcoming about the events said to have occurred in June 2019 and relayed in specific detail their negative experience of the father’s abusive behaviour at the time. I attach weight to the family consultant’s oral evidence at final hearing that it was her impression that the children “clearly remembered” the incidents of physical abuse and also consider it weighty that following her assessment of the children in November 2019, she held “significant concerns” about their safety given the prospect of the Memorandum being made available to the father and he being aware of the contents of the children’s interviews.  

9. Second, I consider the mother’s evidence in relation to the children’s presentation when they were returned to her care to be reliable. In particular, according to her affidavit the children presented with various bruises and injuries on their bodies and complained of pain in specific areas. She also deposed that they were initially reluctant to disclose events that occurred when they were in the father’s care in fear of threats made by the father about the consequences of telling her the truth. She says that the older child reported “dad tells us that if we ever tell you about him hitting us he will do things to you. We are too scared that you will get hurt to speak to you about this…dad knows you are our weakness and he makes sure we don’t tell you because we don’t want him to do anything to you”.

10. So far as the children’s physical presentation when they returned from the father’s care is concerned, photographs of the bruising and injuries they sustained were taken when attended upon the CPU of the Children’s Hospital (Exh 1). These photographs clearly depict bruising to various parts of the children’s bodies.

11. The mother’s evidence that the children appeared distressed about informing her about the father’s abuse is corroborated by the children’s police interviews. Both children in their interviews with police on 13 June 2019 raised concerns that the father had warned them about telling the mother what had occurred during their stay with him. It is apparent from Department records and notes made by the children’s psychologist that the children also reported being apprehensive of the father and fearful that the mother would be hurt if they disclosed to her the events that had taken place in his care. For example, in Departmental records of the interview with police it was noted by the JCPRP caseworker who monitored the meeting that when asked about why he was being interviewed by police, the older child responded:

    Because I don’t want to go back to Dad. I’m kind of (sic) scared. Before we went back to mum he threatened us like bury us and that’s why I’m here. I need to stay with my mum.

12. In finding that the injuries suffered by the children were as a result of the father physically assaulting them as contended by the mother, I also attach significant weight to the medical evidence of the specialist paediatrician contained in her Expert Certificates.

13. The specialist doctor provided a summary of her opinion with respect to the younger child’s injuries and noted that he did not have any predisposition to easy bleeding or bruising and no medical condition was found to explain his bruises. Ultimately, it was her view that:

    …[The younger child] had a large number of cutaneous injuries which were not in keeping with injuries normally sustained through childhood play and activities. The pattern and distribution of some of his bruises were considered highly likely the result of inflicted trauma, particularly in the absence of a history of accidental injury which would otherwise adequately explain these injuries

14. With respect to the older child’s “large bruise” to his left outer knee, the specialist doctor opined that it had a “typical imprint bruising pattern with central sparing…almost certainly caused by blunt force impact with a rounded, stick-like implement”. She then concluded:

    The history provided by [the older child] of his father hitting him there with the broom would reasonably explain this injury. This bruise was associated with (sic) swelling and tenderness which would indicate that this injury was sustained recently.

15. When cross-examined by the father’s lawyer in the Local Court proceedings, the specialist doctor maintained her evidence contained in the Expert Certificates. The father’s lawyer put to the doctor alternative events that the father suggested could explain the children’s injuries including rough play between the children and falling off their bikes, but the doctor stood by her opinion that the bruising sustained by the children were not consistent with injuries sustained in normal childhood play and activities and that they were rather “highly specific for inflicted injuries”.

16. In determining whether the mother’s allegations against the father are proved, it is also of significance in my view that the reports of physical abuse of the children have been investigated by JCPRP and found to be substantiated. According to the Magellan Report (Exh 6) since around mid-2019 the father has been identified as a “person causing harm” in relation to these reports.

17. It is also a very weighty matter that the father has abandoned his application in these proceedings. Accordingly, there is no evidence that the father denies he assaulted the children as contended by the mother.

18. Having regard to the foregoing I am satisfied to the requisite standard that the father physically abused the children resulting in injuries to them as alleged by the mother.

Unacceptable risk of physical and psychological harm

1. The mother’s contentions concerning the father’s physical abuse of the children also found her contentions that he poses an unacceptable risk of both physical and psychological harm to the children.

1. In considering the impact on the children if further physical assaults were to occur, I attach weight to the family consultant’s evidence that the nature of the assaults would be considered to cause the children “significant physical and psychological injury”. I also consider weighty the family consultant’s opinion that if the children were abused as alleged:

   …it is likely that [the children]’s physical and psychological safety will be at significant risk if they were to spend any time with [the father]…

2. As discussed earlier, in interviews with police, with the family consultant and their treating psychologist, both children readily complained about the father’s conduct and reported fears about him including their concerns regarding the consequences of telling the mother about his abusive behaviour.

3. The mother deposes that following the incidents in June 2019 she noticed that the older child suffered from some anxiety but that after the interim ADVO was put in place in July 2019 preventing the father from having any contact with the children, the children appeared to “feel secure”. She noted that she observed the older child feel a “sense of relief” and when asked how they felt about the changes to their living arrangements, she says that both children told her that they were “happy” and asked for reassurance that they were not going to be returned to the father’s care. She further deposed that the older child stated that “dad doesn’t care. He will just go back to treating us badly” and that both children said “they could not forgive him”.

4. Around the time JCPRP caseworkers attended the mother’s home on 23 August 2019, the mother deposes that both children were “adamant” that they no longer wished to see him and also declined to contact him for Father’s Day in 2019. As recently as June 2020, the mother says she spoke to the children about whether they felt different about the father and asked whether they wanted to “connect with him”. According to the mother both children “became frustrated” and the older child in particular told her “no, how many times do you have to ask us that?”

5. These matters deposed to in the mother’s affidavit are consistent with the family consultant’s oral evidence that children who are subjected to the type of abuse reported in the proceedings “would experience chronic stress in terms of being on guard as to whether they are going to be physically assaulted”. I attach weight to the family consultant’s opinion that such stress “would never abate” for the children if they were to return to the care of the parent that perpetrated the abuse against them.

6. I also consider the father’s behaviour towards the children particularly the older child during their brief supervised visits commencing October 2019 weighty. It became apparent that during these visits the father inappropriately questioned the older child about the mother’s behaviour and attempted to influence the child to return to his care. The family consultant gave evidence at final hearing that the statements made by the father to the child during these visits placed no importance on the reasons as to why the previous arrangement (under the 2016 orders) had changed and could be perceived by the child to be a “clear attempt to influence the child to make a statement that he knew was not true”. The family consultant then deemed the father’s conduct in this regard as “highly inappropriate” and as demonstrating a serious lack of insight.

7. Given there is evidence that the children were also encouraged by the father to make false accounts of what occurred in his care in June 2019, I have real concerns that the children would not be safeguarded from psychological abuse arising from his possible denial of what they had experienced in his care in addition to the likely trauma of being victims of such abuse.

8. I attach weight to the family consultant’s evidence at final hearing that attempts to influence the children to falsify events are “negative influences” that the children could perceive as an “extension of the psychological abuse” that may accompany the physical injury they experienced, and consider weighty the family consultant’s opinion that in these circumstances the children’s development and mental health would be placed at serious risk.

9. For the foregoing reasons, and on the basis of my findings about the father’s physical abuse of the children in his care, I am satisfied that the father poses a risk of physical and psychological harm to the children that is unacceptable.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:-

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[6] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[7] and has also agreed with the reasoning of Bennett J in G & C[8].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [6] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

   [7] (2007) Fam LR 518.

   [8] [2006] FamCA 994.

2. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

3. The Full Court in McCall & Clark (supra) continued at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

4. The proposed orders of the mother, which are supported by the ICL provide that the children live with the mother and spend no time and have no communication with the father.

5. The ICL submits that as the father discontinued his application and has since disengaged in the proceedings, the Court can infer that he accepts the mother’s application and concedes that there is no benefit to the children spending time or having communication with him. The ICL further submits that if the Court is not minded to accept the father’s discontinuance as “implied acquiescence” to the mother’s proposal, any benefit to the children from having a meaningful relationship with the father must be weighed against the risk of harm to them in doing so.

6. Given I have found that the father physically abused the children when they were in his care in early June 2019 and that they are also at an unacceptable risk of physical and psychological harm in his care in the future, there would be no positive benefit to them fostering a significant relationship with him as this would not be in their best interests.

7. The mother’s proposal including orders sought by her restraining the father from contacting or approaching the children by any means, appropriately precludes the children from maintaining a relationship with him as such orders would see the father completely excised from the children’s lives.

8. It is also relevant to note under this consideration that since the time the children made disclosures of the father’s abuse in early June 2019, both have been protected by ADVOs that prohibit any contact between them and their father. Although in around October 2019 interim orders were made by consent that the father spend limited supervised time with the children at a contact centre, such arrangement occurred on only three occasions and on those occasions there is evidence that at least the older child complained of being inappropriately questioned by the father and as a result became more averse to spending time with him.

9. When assessed by the family consultant in November 2019 the mother expressed some concern about “ruining [the children]’s relationship with their father” should she not allow their relationship with him to continue.  As discussed previously there is sufficient evidence to suggest that both children are reluctant to resume their time with the father, and in this way appear adamant in no longer desiring to maintain their relationship with him.

The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. This second primary consideration looms large in the proceedings given I am satisfied for the reasons given that the father has physical abused the children in his care and that he poses an unacceptable risk of physical and psychological harm to them.

2. In written submissions made on her behalf the mother places significant weight on the family consultant’s evidence of the risk of physical and psychological harm posed by the father in support of her contention that these risks outweigh any benefit to the children having a relationship with him.

3. I accept and consider weighty the family consultant’s evidence contained in her Memorandum to Court as well as her oral evidence at final hearing about the deleterious effects on the children’s wellbeing arising from the physical abuse they experienced at the hands of the father and the related psychological impact that ensues from being victims of such abuse.

4. The orders sought by the mother and supported by the ICL that the children spend no time and have no communication with the father and that the father be restrained by injunctions from any contact with the children, appropriately protect the children from harm posed by him noting that the current ADVO made for their protection expires in March 2021 and the orders sought by the mother protects them thereafter.

5. The question was also raised in the Child Responsive Program Memorandum about whether the mother posed any risk of harm to the children resulting from her drug use. The mother maintains in her affidavit evidence that she has never used illicit substances while the children have been in her care.

6. Although the mother’s drug use was the subject of notifications made to the Department on various occasions in 2018, most reports did not proceed to secondary assessment. The only report that was further investigated by police of the Child Wellbeing Unit in November 2018 related to concerns raised by the mother’s former partner that the children were being exposed to illicit drug use by the mother in her household. According to the Magellan Report, police conducted a welfare check on the children and subsequently identified “nil concerns or signs of drug use by their mother”. The Department also noted in the Magellan Report that the reports made by the mother’s former partner were “falsely claimed” and made “vexatiously”.

7. A more recent record of a risk assessment conducted by the Department in August 2019 (Exh 2) also noted that:

   There is no current information to suggest that [the mother] has a drug or alcohol problem. During a home visit [the mother] did not appear under the influence of drugs or alcohol as she was coherent, stable and able to communicate effectively.

8. In my view, there is no evidence to suggest that the mother poses an unacceptable risk of harm to the children on any basis including in relation to drug use.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. When assessed by the family consultant in November 2019, the children aged 10 and nine both expressed negative sentiments about the father and appeared oppositional to retaining a relationship with him. The older child in particular expressed a fear of returning to the father’s care and spending time with him “because of what [the father] has done to him and [the younger child]”. In addition to being fearful of the father, the older child complained of the father speaking negatively about the mother and was concerned about the father’s attempts to influence his views including during their previous supervised visits under court orders. The younger was ambivalent about the prospect of spending no time with the father and initially stated that it would be “ok” to continuing seeing him. This child did, however, express a clear desire to be protected from further abuse by the father. He told the family consultant that if he were to return to the father’s care “he does not want to be hit anymore”.

2. The mother has been the children’s primary caregiver since the time disclosures were made by the children. Both children in their interviews with the family consultant spoke positively of her and raised no concerns about her care or her current partner and his children who share their household. I accept the mother’s evidence that the children share a positive relationship with her partner and that they get along “really well” with his children.

3. It is also the mother’s evidence that the children enjoy a close and loving relationship with the maternal grandmother who supervises the children when she goes out occasionally. She deposes that the children “take pride” in helping the maternal grandmother around the house including that they have in the past helped her hang her washing and change her bed sheets.

4. While the maternal grandmother was not observed with the children as part of the family consultant’s preliminary assessment of the family, the children raised no concerns about being in her care which the older child described was “usually for a few hours”. This is to be contrasted to the children’s view of the paternal grandparents about whom the older child readily complained. This child told the family consultant that “he does not like [the paternal grandparents] because they yell at [me] for no reason and make [me] and [the younger child] spend long periods of time outside”.

5. Although I accept the ICL’s submission that the children’s views should be considered in the context of their young age, I attach weight to the family consultant’s comment that the older child presented as “articulate” and “mature” and her oral evidence that it was her impression that both children “clearly remembered” events that they had described. These views of the children are shared by Departmental officers who noted that they observed the children to “communicate exceptionally well both during their interview with [police] and during a home visit”.

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

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

1. It can be taken from the father’s disengagement in the proceedings that he has forfeited his interest in participating in the children’s lives in all respects.

2. There is also uncontradicted evidence that since 2019 there has been some dispute between the parties relating to Child Support as the father objected to a Child Support assessment that reflects the children’s new care arrangement. The father has also been inconsistent and unreliable in paying the children’s private school feels and since January 2020 the mother has been primarily responsible in meeting these costs after she refused to allow the father’s request to enrol the children in a public school.

3. While the parents exercised equal shared paternal responsibility prior to June 2019 in accordance with Court orders, the mother has been solely responsible for all decisions concerning the children following the serious physical assault of them by the father.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

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

1. There is little doubt that the mother has demonstrated parental capacity in being appropriately protective of the children and attending to their daily care since June 2019. It is noted in Departmental records that when visited by Departmental officers conducting a safety assessment of the children in August 2019, the mother was assessed as “provid[ing] appropriate physical care to [the children] consistent with their ages”. Positive comments of the mother’s home environment were also made by Departmental officers who observed the household to be “exceptionally clean, neat and tidy”.

2. The mother has also shown to be attuned to the children’s needs by seeking appropriate advice from the Department and police following disclosures made by the children, and attending upon a general practitioner to organise a mental health care plan to ensure that the children were provided with therapy to address their emotional distress and fears relating to their experience of the father.

1. Quite apart from his physical abuse of the children, there is evidence of the father speaking negatively of the mother in the presence of the children which casts doubt on his ability to act in a child-focused way. The family consultant also expressed concerns in her Memorandum to Court about the father’s attempts to influence the older child during supervised visits and evaluated that such behaviour demonstrates a serious lack of insight into the children’s experiences and is indicative of an inability to place the children’s needs above his own.

Likely effect of change in the children’s circumstances

1. Although the children were living with each parent in an equal shared care arrangement from 2016 until early June 2019, I do not consider it likely that the children will experience a real loss under the care arrangement proposed by the mother and supported by the ICL in circumstances where the children themselves appear reluctant to return to the father’s household on the basis of his abuse.

2. Departmental records indicate that in the course of a meeting with Department officers under JCPR, both children identified the mother, their school teachers and other members of the extended maternal family as “safe people”.

3. In her affidavit the mother deposes that the children’s treating psychologist advised her that since attending several counselling sessions after the father’s assault, the children are on a “positive trajectory” and appear “happy” and “resilient”.

4. Since making disclosures to the mother, the children have only spent very limited time with the father on three occasions which occurred in the confines of a contact centre. At the suspension of their supervised visits in November 2019, both children have had no contact with the father and are currently protected by a final ADVO strictly prohibiting the father from contacting or approaching them through any means.

5. In these circumstances, it is in my view unlikely that the children will experience separation from the father as distressing. The orders sought by the mother that there be no time or no communication between the children and the father, and that the father be restrained by injunction to contacting and approaching the children by any means clearly maintain the status quo that has been in place since November 2019. 

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

1. I am easily satisfied that the father’s physical abuse of the children falls within the broad definition of family violence, and as previously noted the children are currently protected from the father by an ADVO which is due to expire in March 2021.

2. Although not developed in written or oral submissions made on her behalf, the mother adduces uncontradicted evidence that throughout their relationship and following separation the father has engaged in aggressive and abusive conduct towards her including regular verbal abuse, and has intimidated and threatened her including via text message.

3. The children reported to the family consultant that the father regularly denigrated the mother in their presence. Documents annexed to the mother’s affidavit include correspondence with the Child Support Agency in which the father refers to the mother as a “compulsive liar”, of “low character” and having “unjust morals”, which corroborates her complaints of his ongoing attitude towards her.  

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

1. Having regard to the father’s disengagement from the proceedings, the orders that would be least likely to lead to the institution of further proceedings are those sought by the mother.

Conclusion

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 the child.

3. 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 children, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for them.  The presumption does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the children, 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 children’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

4. As I have found that the father has engaged in abuse of the children, the presumption of equal shared parental responsibility does not apply.

5. As the mother is the only parent engaged in the proceedings, and given my findings concerning the father, I am easily satisfied that it is in the children’s best interests for the mother to have sole parental responsibility for each of them.

6. Having regard to all of the factors in relation to the best interests of the children and giving due weight to each of them, I make the orders as sought by the mother and supported by the ICL in relation to the living arrangements for the children and restraints on the father’s conduct.

7. The mother also seeks an order that she be permitted to obtain a passport for the children and travel overseas with them without the father’s consent. The holding of sole parental responsibility by one parent does not entitle such parent to obtain a passport for a child without the consent of the other parent. It is proper in the circumstances of this matter where the father poses unacceptable risks of harm to the children, has absolved his parental obligations by discontinuing his application and where there is no co-parenting relationship in existence, that an order be made permitting the mother to obtain a passport and travel overseas with the children without the father’s consent. Such an order will avoid the mother being unnecessarily exposed to the father’s highly intimidating and abusive communication if she were required to seek his permission.

8. The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 November 2020.

Associate: 

Date: 2 November 2020