RUMBLE&QUINESS

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUMBLE & QUINESS

[2015] FCCA 3251

Catchwords:
FAMILY LAW – Parenting – child aged 9 currently living with the father – where the child was exposed to family violence perpetrated by the father when the parent’s lived together, remained with the mother after the parents separated and was then exposed to family violence perpetrated by the mother’s new partner and was retained by the father – mother seeking an order that the child be returned to her care – mother asserting that her relationship with her second violent partner has now ended – father asserting that the child should remain with him.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant:

MS RUMBLE

Respondent:

MR QUINESS

File Number:

NCC 1527 of 2014

Judgment of:

Judge Terry

Hearing dates:

8 & 9 October 2015

Date of Last Submission:

9 October 2015

Delivered at:

Newcastle

Delivered on:

22 October 2015

REPRESENTATION

Counsel for the Applicant:

Ms Flintoff

Solicitors for the Applicant:

Lindeman Lawyers

The Respondent:

In person

Solicitor Advocate for the Independent Children’s Lawyer:

Ms Karagianis

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

All previous orders are discharged.
The child X born (omitted) 2005 shall live with the mother.
The mother shall have sole parental responsibility for the child.
Within seven (7) days of the date of these orders the mother shall sign the appropriate authority at X’s school to authorise the school to forward to the father a copy of X’s school reports and any other documents provided for parents.
X shall spend time with the father as follows:
(a)for one weekend each month during school terms by agreement and failing agreement the second weekend from 6.00pm on Friday until 4.00pm on Sunday;
(i)in the month of September this weekend shall be the Father’s Day weekend;
(ii)in the month of May this weekend shall not be the Mother’s Day weekend.
(b)for the first half of each school holiday period by agreement and failing agreement shall be the first half of the school holidays;
(c)at such times as may be agreed between the parties in writing and for this purpose communication by text message shall be deemed sufficient.
For the purpose of these orders the father or his nominee shall collect X from the mother at the commencement of the father’s time and the mother or her nominee shall collect X from the father at the conclusion of the father’s time.
Each parent shall ensure that X attends school regularly and that he completes any homework he may be assigned.
Within fourteen (14) days of the date of these orders the mother shall arrange for X to attend upon his general practitioner and obtain a referral for the following services:
(a)Mr D, Psychologist;
(b)a Paediatrician;
(c)an Occupational Therapist;
(d)a Speech Pathologist;
(e)a Dietician; and
(f)any other medical practitioner or therapist recommended by the general practitioner.
Within seven (7) days of receiving each referral the mother shall:
(a)arrange an appointment with each medical practitioner or therapist;
(b)advise the father of these appointments; and
(c)provide the medical practitioner or therapist with an authority to discuss X’s treatment with the father.
The mother shall liaise with the Independent Children’s Lawyer in relation to all of X’s appointments including providing the Independent Children’s Lawyer with a copy of any report provided by X’s treating practitioners or therapists and for this purpose the order for the appointment of the Independent Children’s Lawyer shall continue for a further 12 months.
Each of the parents shall:
(a)facilitate X’s attendance at these appointments and any future appointments; and
(b)follow the reasonable advice and recommendations of X’s treating doctors or therapists.
Each of the parents shall be and are hereby restrained from:
(a)using or being under the influence of any illegal drug whilst X is in their care;
(b)consuming alcohol over and above the legal limit for driving;
(c)bringing X into contact with any person who is using or is under the influence of any illegal drug or who has consumed alcohol over and above the legal limit for driving;
(d)subjecting X to any form of physical punishment or striking and they shall ensure that no other person does so.
The mother shall be and is hereby restrained from bringing X into contact with Mr F.
Within 28 days of the date of these orders the mother shall engage in an appropriate Parenting Adolescents course as nominated by the Independent Children’s Lawyer.
Each parent shall ensure that whenever X is transported in a motor vehicle the driver of that vehicle is licensed to drive the vehicle.

IT IS NOTED that publication of this judgment under the pseudonym Rumble & Quiness is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1527 of 2014

MS RUMBLE

Applicant

And

MR QUINESS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
9 year old X has had an unenviable life so far.
He was exposed to family violence between his mother and father when he was a baby, and the Family Consultant who prepared the family report suggested in light of the difficulties he was currently experiencing that he may well have suffered developmental trauma as a result.
The parents finally separated when X was about 3 ½ after the father was charged with assaulting the mother.
After separation, X remained with the mother in (omitted) and spent some time with father. It was fairly limited time at first because the father went to Western Australia but in about 2011 the father returned to New South Wales and settled in (omitted) and X began spending school holiday time with him.
The mother went on to have a son Y, who was born in (omitted) 2011 and whose father I know nothing about. Then in (omitted) 2013 she formed a relationship with Mr F. The parties and X call him Mr F or Mr F but I will refer to him as Mr F in this judgment.
Before commencing a relationship with the mother, Mr F had assaulted his former partner and an Apprehended Domestic Violence Order (ADVO) had been made against him for her protection.
In May 2013, not long after the mother commenced a relationship with Mr F, X alleged that Mr F had assaulted him by grabbing him by the throat or neck and dragging him.
A notification was made to the Department of Family & Children’s Services and X was observed to have some bruises and a scratch on his neck, but the mother and Mr F both explained the incident away as being the result of Mr F restraining X when he was in a dangerous situation and the Department took no further action.
Then in March 2014 Y presented at his day care centre with bruising on the back of his legs and on his left thigh. The day care centre made a mandatory notification to the Department and Y disclosed that his injuries were the result of Mr F hitting him with a wooden spoon.
Mr F did not deny that he had hit Y with the wooden spoon but said that that his solicitor had told him it was lawful punishment.
The Department stepped in to try to protect Y. They wanted Mr F to leave the mother’s home but Mr F was extremely resistant to that and became very aggressive and threatening to Departmental workers.
Ultimately Mr F was allowed to remain in the home provided that he and the mother signed an undertaking that he not physically discipline Y.
The mother and Mr F signed the undertaking but because of their response to the investigation the Department commenced proceedings in the Children’s Court. Ultimately an order was made that Y be under the supervision of the Minister for 12 months. That period of supervision has only recently ended.
In April 2014, not long after the mandatory notification about Y and not long after the Department became involved, X went to (omitted) to spend school holiday time with the father. The father was aware, to an extent, of what had happened to Y because of things the mother had told him, and X made some disclosures to the father about Mr F and at the end of the holidays the father refused to return X to the mother.
The mother filed an application seeking an order that X be returned to her but given the continued presence of Mr F in the mother’s life the Court was not prepared to make that order on an interim basis.
X has lived with the father since April 2014 and has spent time with the mother. The time is supposed to occur each alternate weekend and during the school holidays but the alternate weekend time has not always occurred. The parents live two and a half hours driving distance apart. The father does not have a drivers licence and he has not always complied with the orders about getting X to the changeover location.
There are many reasons to be highly critical of the father, not the least of which is his violence to the mother during their relationship and his refusal to make admissions about it, but he has also been a force for good in X’s life. Without his intervention in 2014 X would have continued to live with the mother and Mr F and Mr F might be there to this very day. I will refer later in this judgment to my concern about the mother’s attitude to what happened to her sons when Mr F was there.
However X has not done well since he has been living with the father. His academic performance at school is very poor, he has had a high rate of school absences and he has had suspensions and he has social difficulties at school.
From what X said to the Family Consultant who saw him on the afternoon of the first day of the hearing, he spends a lot of time in his room at the father’s home playing the Xbox.

The parties proposals

The mother sought an order that X return to live with her in (omitted).
The mother said that she had ended her relationship with Mr F in May 2015 and had not seen him since and indeed did not see much of him in the six months prior to that.
The mother has done some domestic violence counselling this year. She said that the content of the family report which was released early in 2015 was a wake-up call for her and that she had taken steps to make sure that she did not enter into another abusive relationship.
The mother admitted that she had not been perfect prior to April 2014 about getting X to some recommended interventions with a speech pathologist and occupational therapist but said that she would ensure that this was attended to in the future.
Finally it was the mother’s case that X should be reunited with his brother, Y.
In support of her case the mother emphasised the father’s deficits as a parent, including his lengthy criminal record, his lack of a drivers licence and the fact that he drove anyway, the overcrowded situation in the home he shared with his parents, his past drug use and the evidence that he may be drinking heavily.
The mother pointed to the fact that X had not done very well in the father’s care in terms of school attendance or school achievement and she was also highly critical of the father for not always complying with the Court orders about X spending time with her.
The father sees himself as the person who rescued X from life in an abusive household with the mother and Mr F. He appeared somewhat bemused during the hearing about the fact that he was the subject of so much criticism.
The father proposed that X continue to live with him. He said that he was doing his best to ensure that X attended school regularly and was making some progress in that regard but X had autism which caused difficulties. He denied that he used drugs or drank excessively. He said that he had done his best to comply with Court orders about X spending time with the mother but sometimes it just got too hard with distance and transport difficulties. He admitted that he drove unlicensed but did not accept that this was a problem.
The father’s strongest argument was that X wanted to remain with him.
At the end of the hearing the Independent Children’s Lawyer supported the mother’s proposal that X return to live with her but not with any great enthusiasm, and the Independent Children’s Lawyer took the unusual step of proposing that she remain in the proceedings for 12 months to ensure that the mother undertook necessary interventions for X.

The documents relied on

The documents relied on by the parties at the hearing were extremely brief given the issues in the case, a problem that I frequently find in matters of this kind.
The mother relied on her recently-filed trial affidavit.
The father did not file a trial affidavit and relied on an affidavit he filed in 2014 and gave some oral evidence.
A Family Report prepared in January 2015 by Ms D, a Regulation 7 Family Consultant, but it was incomplete because the father failed to attend the interviews and as a result X did not attend either.
The Independent Children’s Lawyer arranged for the Family Consultant to see X on the first day of the hearing and the Family Consultant gave some oral evidence on the afternoon of the second day about X’s views and about other information which had emerged as a result of her talking to him. She also provided an updated recommendation about parenting arrangements for X.

Background

The mother and father commenced a relationship when the mother was 16 and the father 34. The mother fell pregnant within a couple of months of the relationship commencing and X, who is the parties’ only child, was born on (omitted) 2005 when the mother was 17.
The father already had a lengthy criminal record when the relationship commenced. His first conviction was in 1986 when he was 16 and his record includes numerous driving offences: drive unlicensed, manner dangerous, negligent driving, drive with licence cancelled, disqualified driving, another manner dangerous, DUI, unregistered, uninsured, unlicensed and a fail to stop which seems minor given all the other driving charges.
The father was convicted of assault occasioning actual bodily harm and cultivating a prohibited drug in 1992. In 1995 he was convicted of offensive language, stating a false abode, malicious damage, assault, and larceny and there were other driving offences in 2001, 2003, 2004 and 2005.
His relationship with the mother commenced in late 2004 or early 2005 and he came into it at the age of 34 with all those convictions.
The mother alleged a serious history of family violence during the relationship. There was limited detail about this in her affidavit but there was some fairly alarming information in the police records.
In January 2006 when X was only seven weeks old – although I don’t think he would have been seven weeks, but that’s what the police report said – a visiting health nurse came to the home. The mother alleged that the father had jumped on the bed and beaten her up when she was lying there with X. The father counter-alleged the mother had scratched him. Police attended and saw scratches on both parties.
In March 2006 police attended and the mother told them that the father had punched her three times to the head, grabbed her by the neck and tried to punch her thigh. She said that when she tried to leave with X the father tried to stop her by twisting her arm. The father was charged on that occasion.
On another occasion police were called by neighbours after the father punched a door. He was intoxicated when the police arrived. He told them that he had not been aiming at the mother and had not punched the door because he was angry with the mother rather he was angry over some issue to do with his work, and the mother supported his version of events.
On 13 August 2008 the mother collected the father from jail where he had served six months for driving offences. They had hardly set foot in the door before the father assaulted the mother and started throwing things around. Part of this incident included the father asking the mother to drive him somewhere then grabbing the steering wheel and trying to run the car off the road.
Police attended and found the father intoxicated and yelling and swearing in the house. They observed the mother to have a cut lip, a cut nose, a laceration behind her ear and a ripped earlobe. The father was arrested and the police records indicate that as he was arrested he was screaming at the mother to drop the charges.
There was another incident after that where the police attended. They noted that both parties had been drinking and the father was intoxicated and had been evicted from licensed premises for aggressive and abusive behaviour. The mother alleged that the father had punched her in the eye causing bruising, smashed her phone and forced her to sign over the car’s registration papers to him. The father was arrested and charged.
That is just a snapshot of the kind of violence which occurred during the relationship.
The father denies perpetrating violence. I do not accept his denials. On more than one occasion he was charged and convicted of assaulting the mother or damaging property or breaching ADVOs.
However although serious violence commenced when the mother was seven months pregnant with X and occurred from then until the last occasion the parties separated, the mother kept separating from the father and then going back into the relationship. She collected him from jail after he had done six months for driving offences. She kept coming and going from the relationship even though this violence was occurring and even though baby X was being regularly exposed to it.
After the parties finally separated the father went to Western Australia but the mother always facilitated X spending time with him. When X was younger the father would see him for limited periods when he came back to New South Wales. Once X commenced school, by which time the father was living in (omitted), X began spending time with the father during school holidays.
I have mentioned earlier in the judgment that the mother had Y in (omitted) 2011 and in January 2013 formed a relationship with Mr F, and I have referred to what happened in 2014 relation to the assault on Y.
The mother’s partnering with Mr F is seriously concerning. She knew when the relationship began that Mr F had been charged with or at least accused of assaulting his previous partner. She accepted Mr F’s assurance that it was the partner’s fault that he had faced those charges and that he was not guilty of doing anything particularly bad.
X complained to the mother in April 2013 that Mr F had assaulted him and the mother believed Mr F that this had not occurred as X alleged and that whatever occurred had an innocent explanation.
In addition, despite knowing of the accusations of violence had been made against Mr F by a previous partner, the mother delegated the disciplining of the children to Mr F because she found the boys difficult to manage.
Then in March 2014, Y’s day care centre made a notification because of the bruising to Y.
The Family Consultant noted in her report that throughout the process of the investigation of that bruising and still when she was talking to the Family Consultant in January 2015 the mother made excuses for Mr F.
As a result of the mother’s attitude during the investigation by the Department into the bruising the matter involving Y ended up in the Children’s Court and a 12 month order was made for supervision and the mother and Mr F were required to file undertakings, and of course X ended up living with the father.

X’s best interests

Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and to determine X’s best interests I must have regard to the matters in s.60CC(2) & (3) of the Family Law Act 1975.

The primary considerations in s.60CC(2) are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There are then a series of additional considerations in s.60CC(3) and I intend to start with the additional considerations and then go back to the primary considerations.
The first additional consideration is any views expressed by the child and any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight it should give to his views.
X told The Family Consultant that it was okay living with the father and said that he had some issues about living with the mother although the Family Consultant seemed to think that his issues were more to do with being parted from his Xbox when he went to spend time with the mother than about not wanting to be with the mother.
However even if I could be satisfied that X had a strong preference for living with the father – and The Family Consultant said that this was possible given that he is a boy of a certain age and often boys of that age do prefer to be with their same sex parent – even if that was the case I could not place weight on X’s view about where he should live in determining what is to happen to him because there are too many other issues in this case.
I must consider the nature of the relationship of the child with each of his parents and any other persons including any grandparents or relatives of the child.
The father did not attend the family report interviews with X and I do not have the usual independent information from a family consultant about observations of the child with each parent.
X is currently visiting his mother regularly. His major complaint about that to the Family Consultant was that it was boring because there was no Xbox there. He did not express any overall resistance to visiting the mother.
X has said on occasions – and I think he said it to the Family Consultant – that he found Y annoying although the mother said that Y missed X.
I cannot make any findings about the strength of X’s relationship with the mother or even the nature and quality of it. In some of the material from the Department tendered in the case issues of concern are noted about the mother’s degree of attachment to her children and I do not have the advantage of an observation between the mother and X. The best I can say at this stage is that X is certainly not vigorously opposed to spending time with the mother.
The Family Consultant said in the witness box that in her view the mother needed to apologise to X for not supporting him when he made allegations about Mr F. If the mother was willing to take that on board it might make all the difference in terms of her relationship with X.
I cannot make any findings about the nature and quality of the father’s relationship with X either. X is content to remain with the father but that does not tell me a lot about the nature and quality of their relationship and the father did not take X to the family report interview so I have no independent observation session to refer to.
X has some wider family. He is living with the father at the paternal grandparents’ home. He does not seem to have a big problem with them except that he made complained to The Family Consultant about some yelling.
The maternal grandparents living in the (omitted) area. The maternal grandfather was in court during the proceedings although he did not give evidence. The mother said that X was regularly involved with the maternal grandparents. I accept that this is likely to be true because after the issue with Mr F and Y first emerged Y went to live with the maternal grandparents for a short period while something was sorted out. However I cannot make any definitive findings about the nature of those relationships.
The next consideration is the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about the child, spend time with the child and communicate with the child.
The mother has been totally reliable about spending time with X since the interim orders were made in the middle of 2014. The only time she has missed seeing him has been when the father has not made him available. There is no occasion when the mother has simply not made the effort.
I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child.
The mother alleged that the father was substantially in arrears in payment of child support. Even if this is true I do not consider it relevant because there was no evidence that the father was motivated by child support considerations in seeking to retain X or indeed had any motivation other than protecting X from Mr F.
I must consider the likely effect of any change in the child’s circumstances.
Both parents are proposing a change. The mother wants X to return to live with her. The father wants X to permanently live with him which would be a change compared to what has happened for most of X’s life.
I cannot deal with this consideration in isolation and will return to it after making findings about the remainder of the s. 60CC(3) matters and the s. 60CC (2) matters.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent.
The mother lives in (omitted) and the father in (omitted). The two locations are a little over 2 ½ hours driving distance apart.
In some cases that distance would not be a major problem but it is in this case because the father does not have a drivers licence and there is no immediate prospect of him obtaining one. That makes changeovers between the parents problematic unless the father breaks the law and drives anyway which he does on occasions. Neither party is in strong financial circumstances and it is not a case where the mother can simply take up the slack and do all the driving.
There will therefore be difficulty and expense in X spending time with one parent if he is living with the other, but the parents have been in their current locations for years and no orders I make can fix that problem.
The next matter I have to consider is the capacity of each parent to provide for the needs of the child including his intellectual and emotional needs.
This is a critically important issue in the case.

The Mother

The mother is 26. No concerns were raised about her capacity to provide for her children on a day to day basis in terms of feeding and clothing them but a number of concerns were raised about her parenting capacity otherwise and I will deal with them in turn.
One concern was that the mother might be using drugs. The mother denied that she was but there is some evidence which makes it difficult to place weight on her denial.
First, the mother gave inconsistent evidence about when she had last used drugs. On one occasion she said she had not used cannabis since she was 16. On another occasion to somebody else she put it at a later time and when the Family Consultant confronted the mother about using speed and showed her a police record she admitted that she had used it when she was with the father.
Second, there was an occasion when the mother dropped Y off to day care and the day care workers recorded that in their view the mother smelt of cannabis.
Third, Mr F used cannabis as did the father when the mother was with him, so the mother has twice had a relationship with a person who used cannabis.
Fourth, the mother has done a number of drug tests since these proceedings commenced. All were clean but one of them had dilute creatinine, which is always a concern because sometimes people who have been using drugs drink copious quantities of water to dilute the amount of drug in their urine in the hope that their drug use will not show up because the quantity in their urine will be below the cut-off point.
There is no evidence that the mother is currently using drugs, but there are a few little things which mean that I cannot 100 per cent discount the fact that there might be valid concerns about that. I hope that I am wrong.
Another issue is the mother’s capacity to manage the children’s behaviour.
Concerns are recorded in the subpoena material about the mother yelling at the children. Mr F, although he can hardly be termed reliable about anything, alleged to others that the mother delegated the discipline of the children to him because she could not cope with them and there did not seem to be any dispute that this had occurred.
X has some behavioural issues which I will come to later on and there is some evidence that the mother has in the past found the children’s behaviour difficult to manage. I cannot be 100 per cent confident that the mother will cope well with X if her returns to her care and continues to have behavioural difficulties.
Another concern is the strength of the mother’s emotional attachment to the children.
Workers supervising the mother’s time with Y immediately after the incident in March 2014 expressed concern about her attachment to Y, although on the last visit they thought that the mother was more engaged.
I cannot make any findings about the nature of the mother’s relationship with X because an observation by the Family Consultant did not take place, and the Department raised some concerns about the mother’s attachment to the children, but on the positive side the mother has been very persistent since July 2014 in seeking orders for the return of X to her care and she has been entirely reliable about visiting X and keeping in touch with him. That suggests she has a strong and genuine interest in her son.
An issue mentioned in the notes from the Department but not explored at trial was that at some point the mother was prescribed Lovan for depression.
A major concern about the mother is her exposure of both X and Y to family violence, but I will deal with that in another section of the judgment.
The positives about the mother are that:
·She has no criminal record.
·The Family Consultant felt from talking to X about his experiences when he visited the mother that the mother was capable of setting boundaries for X and removing privileges, and that she was doing that more effectively than the father.
·The Family Consultant also felt as a result of things X said to her that the mother was more capable than the father of making sure that X engaged in some outside activities.
·The mother is working and is a good role model for her sons as a result.

The Father

The father gave up work when X came into his care. He lives with his parents who could provide supervision if he was working and it is difficult to understand why he cannot work and care for X.
One of the major concerns about the father is his lengthy criminal record dating back to 1986.
I have already referred to his convictions up to the time he started to live with the mother and he had further convictions after that, for assault in 2006, drive disqualified in November 2006, drive disqualified in February 2008 and that was when he was sentenced to six months imprisonment, destroy and damage property, assault occasioning actual bodily harm in March 2009 for which he was placed on a 12 month good behaviour bond and further convictions in June 2009 of destroy and damage property, stalk, intimidate and contravene an ADVO.
In 2013 the father was charged with further driving offences and low range PCA. He did not have a licence in 2013 so it might be that he was not allowed to drive with any alcohol in his blood. After the 2013 conviction he was disqualified from driving for two years.
The father first conviction was in 1986 and his last in March 2013 and I cannot discount the possibility that he may be convicted of further offences in the future, particularly when he is continuing to drive without a licence. The father has been jailed for driving offences in the past and the risk of him being jailed if convicted again for driving offences seems high, and if he goes to jail he will not be there to look after X.
The Family Consultant was concerned about the fact that not only was the father driving without a licence, X was aware of it, seemed to be aware that it was not a good thing and seemed to want to try and cover up for the father about it. She was concerned that the father was modelling to X that the law did not really have to be obeyed and it was all right to breach the law if you could get away with it.
Another issue raised about the father was his alcohol consumption. A number of the father’s assaults on the mother occurred when he was intoxicated.
The father continues to consume alcohol. X told the Family Consultant that the father was drinking in the morning as well as in the evening and it is highly likely that the father is currently drinking more than he is willing to admit, especially given his history and what X said to Ms D.
The father has previously used cannabis. He did one drug test during the course of the proceedings which was clear, but failed to do six other requested between April and September 2015,[1] and I cannot make any findings about whether he is currently using cannabis.
[1] Exhibit F, Schedule of Requests by ICL for father to do drug tests.
The father has not been very cooperative with the court process. He did not attend the family report interviews and as a result X did not attend the interviews
The father enrolled X in school in (omitted) after he retained him in April 2014 but X has not done well at school here. He got into difficulties at his first school and the father took him out of that school and at one time was considering home schooling him. After a gap of time he enrolled him in his current school but X has not done well there either. He was recently given a letter suspending him for 20 days although the father said that he was able to negotiate as reduction of that.
X has behavioural problems at school. He has been hitting and bullying other children and has no friends. His academic performance is woeful.
The father took X to see Mr S, a child and family psychologist which was positive, but Mr S made this comment in a letter dated 4 September 2015:
Unfortunately X was only able to attend appointments irregularly. The lack of regular attendance made it very difficult to achieve any meaningful progress. His father had become a very busy person, with personal, financial and Court issues. The last I heard from Mr Quiness was that X had been expelled from school for further violence.
The father is not working and he has only been required to attend court occasionally over the last 12 months. There is no acceptable explanation for why the father failed to take X to all the appointments with Mr S, in circumstances where X clearly needs urgent and ongoing assistance for his problems.
X’s performance and situation at school while he was with the mother in the past was also concerning but I will come to that in a moment in another section of the judgment.
The father has bought X an Xbox and from what X said to the Family Consultant he spends most of his time at home playing the Xbox and does not do much outside the home.
X told the Family Consultant that his punishment in the father’s home was to be sent to his room. The Family Consultant asked him if the Xbox was in his room and he said that it was.
The Family Consultant was concerned about the fact that X and the father were living in overcrowded accommodation in a two bedroom home. X has one room and the paternal grandparents the other and the father is sleeping on the lounge, which is hardly ideal.
There are numerous reasons to be concerned about the father’s parenting capacity and the only positive for the father, and I say “only” but it is a significant positive, is that he stepped in to help his son when X was exposed to family violence as a result of the actions of Mr F.
I must consider the child’s maturity, sex, lifestyle and background.
The mother considers X overweight. She said that he was not overweight when he lived with her and was overweight now because of all the fast food he had been eating.
When the father was cross-examining the Family Consultant he put to her that this was not an issue; he and the maternal grandfather were both big men and X was a big boy and was not overweight as such.
I cannot make any definite finding about whether X has a weight problem. The Family Consultant was concerned about it because she thought that he might be being teased at school because of his weight. She recommended that he be assessed by a paediatrician and if necessary see a dietician. That should be done but the outcome of the case does not turn on whether X is overweight or not.
X has had difficulties at school ever since he commenced school but he was particularly identified as having problems at school in (omitted) in the 2013/2014 period which coincided with the mother partnering with Mr F and coincided with X making reports that Mr F had grabbed him by the neck and had also been hitting him and Y.
During this period X featured in numerous school incident reports. He was reported for punching other children, hitting other children, hurting other children, saying he wanted to die, bullying another child, being disobedient and failing to obey directions.
This sort of behaviour has caused people in the past to question whether X is on the autism spectrum but the Family Consultant said as follows in her report:
It is highly likely that X’s symptoms, which led to a diagnosis of being on the autism spectrum and possibly suffering from ADHD, are, in fact, the result of years of developmental brain trauma from being exposed to significant family violence perpetrated by the father against the mother. If Mr F has physically abused X as well as Y, this will have exacerbated or caused further developmental brain trauma for X.
I cannot make a definitive finding about the nature of X’s problems but as the Family Consultant pointed out he needs to have a continuing involvement with a clinical psychologist and/or paediatrician, and the people who treat him need to be made aware of the history of his exposure to family violence so that they can properly deal with the symptoms that he is displaying.
The mother made some efforts to help X prior to him going into the father’s care in 2014; he was seeing a clinical psychologist, Mr D. Unfortunately it does not appear that the mother told Mr D about the history of family violence.
The father made some efforts to take X to see a psychologist in 2014-15 but unfortunately he was not consistent in taking him to the appointments.
Unless X gets some help he will have a very sad future. He has been hitting his classmates. He has been bullying them and dropping schoolbags on them. He is disobedient at school. He has had this kind of behaviour modeled to him throughout his life. He has had it modelled to him by his father. He has had it modelled to him by Mr F. What chance does he have unless somebody does something about what is happening and changes things for him.
I must consider any family violence perpetrated by a parent or any other person connected with the child.
The father was seriously violent to the mother during their relationship. He denied it but I do not accept his denials. The evidence is clear and is backed up by the police records. The father has been charged with and convicted of assaulting mother.
The father’s attitude to this violence is very concerning. He not only denies it, which makes him a very poor role model for X, but he also has no understanding of the way his behaviour has affected his son.
When asked during cross-examination about whether one particular incident between the parents might have affected X the father said:
X was in another room and there was only yelling.

When challenged about how incidents between himself and the mother might have affected X he said:
Maybe when he was a baby it wouldn’t matter so much what he had seen if he was an infant.
The father is wrong; it does matter. The Family Consultant gave compelling evidence about how exposure to family violence affects the development of children’s brains and their acquisition of the progressive skills children normally acquire as they get older.
The father perpetrated serious family violence and it is inevitable that this has had an effect on X. The father will not admit his violence and this makes him a very poor role model for X.
However as the Family Consultant pointed out the mother has also let her son down repeatedly during his life.
She lived with the father on and off until X was three and X was repeatedly exposed to family violence between the mother and the father.
She had opportunities to leave the relationship, including when the father was incarcerated for six months for driving offences, and she failed to leave.
Then in 2013 the mother re-partnered with Mr F, a man who had come to the attention of the police not long before for assaulting his domestic partner and also a man who had a criminal history although I do not know that the mother was fully aware of that at the time. The mother accepted Mr F’s assertion that it was his partner’s fault that he got into trouble for assaulting her.
When the mother was in the witness box being questioned about her knowledge of Mr F’s past I was deeply concerned to hear her say that she knew what Mr F had done to his partner but he had not been violent to her so it did not trouble her.
Not long after that relationship commenced Mr F grabbed X by the neck. X complained about it but the mother preferred Mr F’s version of events over X’s about what had happened. A year later Mr F assaulted Y with a wooden spoon causing bruising.
After the Department became involved because of the notification by Y’s day care, the mother’s primary concern was for Mr F. During interviews between the Department and the mother and Mr F, Mr F was extremely aggressive to the Departmental workers. He became very angry on one occasion with the DoCS staff and said that he was going to make a complaint about the workers and have them charged. On another occasion he became so angry he threw the mother’s phone at her and he slammed a door so hard it just missed one of the case workers.
Mr F misbehaved at the Children’s Court and I am not sure whether it was at the Children Court or with the Department workers but on one occasion he began screaming and shouting and said things such as if he had really wanted to hurt Y he would have killed him. He said that everything that was happening was bullshit.
While the man who had bruised her three year old son with a wooden spoon was behaving like this the mother just stood by and did nothing. Not only that, when workers were quite insistent that Mr F needed to leave her home she asked them if they could please help her find somewhere for Mr F to live.
The mother did not end her relationship with Mr F after the incident with Y. She was defensive of him while the investigation into the incident was occurring and when the family report interviews took place in January 2015 she was still very defensive of him. She told the Family Consultant that Mr F had done an anger management course and was now a different man.
She also said that she had ended her relationship with him in September 2014 but it turned out at the hearing that this was not true. She continued a relationship with Mr F and only finally ended it in May 2015.
The reason the mother gave for ending her relationship with Mr F was not that she recognised that he was not a good person to have around her sons, it was that she recognised that ending the relationship was the only way she could have two sons living with her.
The mother was quite defensive of Mr F in the witness box only a couple of weeks ago.
The other issue is that not only did Mr F assault Y and there is a considerable likelihood that he assaulted X, there is also a considerable likelihood that he has assaulted the mother.
The mother was observed with an injury to her eye. She denied that Mr F deliberately caused it and said that he accidently caused it but there is a comment in the notes from the Department that day care centre workers believed that the mother had an injury to her eye which she had tried to conceal with makeup.
X told either the father or Departmental workers that Mr F had assaulted the mother.
Given that Mr F is known to have assaulted a previous domestic partner and that he assaulted Y with a wooden spoon causing bruising, and given his extremely aggressive behaviour to the Departmental workers including trying to slam a door on one of them or just missing slamming a door on one of them, and given that mother had an injury to her eye which she admitted was caused by Mr F but tried to excuse as being the result of an accident and not his fault, I am gravely concerned that Mr F may have been violent to the mother and the mother is trying to cover up for him. I cannot dismiss that concern from my mind.
So not only was the father violent to the mother during their relationship, possibly exposing X to developmental trauma, the mother then partnered with Mr F knowing what had happened with his previous domestic partner and X was again exposed to family violence, possibly directed at the mother, quite likely directed at him and certainly directed at Y.
The mother said that things were different now. She said that the content of the family report had been a huge wake up call for her and she had done some counselling this year with Ms K.
I hope that the mother does have some insight into the situation but I cannot be sure that she does, not when she said that if the only way her children could live with her would be if she separated from Mr F then she would separate from him. I have concerns about whether the mother truly understands what has happened to her children and is capable of protecting them in the future, and that makes this case such a very difficult one to decide.
The mother is not in a relationship at the moment. There is no reason to suppose that she has not ended a relationship with Mr F. As of this minute there is no risk of X being exposed to family violence while in the mother’s care.
I must have regard to any family violence orders.
There are no current family violence orders but historically there have been ADVOs made to protect the mother from the father.
I must have regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
The father did the right thing in not returning X to the mother in April 2014. Had he returned him it is highly likely that the mother would still be living with Mr F and X would still be at risk of being exposed to family violence.
The mother stayed in the relationship with the father while X was a baby despite the violence, re-partnered with him before finally separating and then partnered with Mr F. In none of those respects has the mother shown a good attitude to her children and the Family Consultant commented on that in her report.
I must have regard to whether I should make the order least likely to lead to further proceedings.
There is a risk of contravention proceedings in this matter if the child stays with the father. It is highly likely that the father will continue to fail to properly comply with the orders for the child to spend time with the mother, and the mother has already brought and then discontinued contravention proceedings.
I must then go back to the primary considerations which 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.
It is important for any child to know that his parents care for him. X has had a relationship with both his parents throughout his life and it is important that he continue to have a relationship with them both.
I have concerns about what will happen to X’s relationship with the mother if he continues to live with the father. The father has conspicuously failed to comply with court orders about getting X to the changeover location on occasions and on those occasions X has either missed time with the mother or has spent time with her only because she has gone the extra mile to pick him up.
The father has used a variety of excuses for not taking X to the changeovers which suggests that he does not prioritise X’s relationship with the mother over other things.
In terms of the need to protect X from neglect, abuse or family violence, the father has historically perpetrated family violence but he is not currently living with a partner. He is living with his parents and the only thing X said about that was that there was a bit of yelling sometimes. At present X is not exposed to family violence or any risk of family violence in the father’s care.
However the father could re-partner. He was in a relationship prior to X coming into his care and given his history of perpetrating family violence and his history of alcohol use if he does re-partner I could not rule that out that family violence might occur in that relationship.
The father has never abused X in terms of directly physically hurting him, but he has abused him by exposing him to family violence. The definition of “abuse” includes causing psychological harm to a child by exposing them to family violence and in the opinion of the Family Consultant is a possible cause of behavioural and academic difficulties X is experiencing is that he had suffered developmental trauma. I feel that I can draw a conclusion that X has suffered psychological harm as the result of being exposed to family violence perpetrated by the father. However unless the father re-partners the risk is not there just at the moment.
The mother is not in a relationship at the moment either. If she were to re-partner, either with Mr F or another person with a propensity to be violent, then X would be at risk of exposure to family violence in the mother’s care.
I cannot rule out the possibility of that occurring either. The mother is only 26. She is highly likely to form another relationship. Her past choices have not been good in terms of violent partners. I can only hope that the mother is truly engaged with the counselling she is doing and that it is not the case that the mother is doing it because she thinks the court expects her to do it and because she wants a good outcome in these court proceedings and that her heart is not in it.
There is a risk of X being exposed to family violence in the future in the care of either parent.

Parental Responsibility

There is an interim order in place which provides for the parties to have equal shared parental responsibility but at a final hearing I must disregard that.
There is a presumption in s. 61DA of the Family Law Act that parents should have equal shared parental responsibility absent a finding that one of the parents or a person living with one of the parents has engaged in abuse, neglect or family violence.
The presumption does not apply in this case but I can nevertheless make an order for equal shared parental responsibility if I consider that it would be in X’s best interests.
Both parents initially sought an order for equal shared parental responsibility. The Independent Children’s Lawyer did not support this and in the end the mother adopted the position that she should have sole parental responsibility for X.
The starting point for any consideration of this issue is that X needs help. He needs to be engaged with a psychologist. He may need speech therapy and occupational therapy if that continues to be recommended. He may need some specialist help so that his academic performance improves. Decisions will have to be made about engaging a variety of people to help him.
Historically neither of these parents has consulted the other before arranging professional help for X. The father did not consult the mother before he took X to see Mr S. The mother did not talk to the father before she took X to see Mr D. The parents have no history of productively consulting each other about such things and they do not have a very good relationship.
The mother attached to her affidavit a series of text messages she had received from the father which are very rude and disrespectful, and there is the history of family violence. I agree with the submission of the Independent Children’s Lawyer that an order for sole parental responsibility should be made so that the parent X lives with can make decisions about engaging him in programs and taking him to see specialists without the need to consult with the other parent, with the attendant risk that if the parents are forced to consult there will be a lot of dispute and badmouthing
Which parent should have sole parental responsibility will depend on the decision made about where X should live.

The Family Consultant’s recommendations

The mother attended the family report interviews in January 2015. The father and X did not attend. The Family Consultant read all the subpoena material and spoke to the mother. She was so concerned at the end of this that she made a mandatory notification to the Department and her report she did not recommend that X live with either parent. She recommended that the Court ask the Department to intervene in the proceedings.
The Department was asked to intervene and declined to do so. It was generally agreed at the hearing that the Department were unlikely to intervene now and that a choice had to be made about which parent X should live with.
In the witness box the Family Consultant said that if a choice had to be made then it was her recommendation that X should live with the mother. She said that she was concerned about the father driving unlicensed, his past family violence and his failure to accept responsibility for it and his accommodation, and she felt that the mother seemed to have somewhat better disciplinary techniques
However the Family Consultant does not decide this case, I do, and I must consider all the evidence before me and decide what I am going to do.

Conclusion

X is 9 and is doing very badly in life. He is struggling academically to the point where he has a problem with basic things like reading and maths. He is doing very badly socially at school. He complains that he has no friends and that other children do not like him, and yet he is a bully and he hits and pushes people. He is showing signs of retreating into playing the Xbox as opposed to doing anything else in his life.
Unless somebody steps in to help him X has a poor future ahead of him.
X has been let down by both his parents. The father sees himself as X’s rescuer and he does deserve some credit for what happened in April 2014 but he formed a relationship with the mother when she was extremely young, physically assaulted her when she was 17 and pregnant with X, and subsequently subjected her to a number of serious assaults and he does not accept any responsibility for his violence.
The risk of the father being violent in future relationships cannot be ruled out, especially when he is still drinking. His housing is cramped. He is flouting the law almost daily by driving while unlicensed and if that continues he may be arrested and jailed again, and while X might have been doing badly at school while living with the mother he has done no better since living with the father.
Despite all these issues I could not consider making an order that X spend no time with the father. If it had not been for the father X would still be living with the mother and Mr F. The father’s involvement with X is an important safeguard for the future. However with all those problems I cannot leave X with the father as the primary resident parent.
The mother has let X down badly. She stayed in a relationship with the father until X was 3 ½. It is highly likely that some of the problems he is exhibiting are the result of him suffering developmental trauma. The mother partnered with Mr F knowing his history and she was extremely slow to deal with the problem he posed and eventually did so not because she internally believed that Mr F should go but because she came to realise that if she did not break with him then X would not be coming back to her.
I have considerable reservations about the mother’s capacity to protect X from being exposed to family violence in the future, especially after seeing her in the witness box and watching her still making excuses for Mr F and very likely in my view minimizing his violence to her. The mother is young and she is likely to partner again in the future so her choice of partner is critically important for her children.
However the positives about the mother are that she has no criminal record, she has been undergoing domestic violence counselling and she is fully aware of the court’s view of children being exposed to family violence and must be aware that if she exposes her children to family violence again there is a serious risk that both of her children will be removed from her care. She has already seen what the Department is willing to do and she knows that the father will be in the background ready to step in if X is exposed to any further issues in the future.
The mother has persisted throughout these court proceedings in wanting X returned to her care. She has been entirely reliable about spending time with him. She is working, which is a positive and in that way she is a good role model for X.
Another positive is that the mother is not violent herself, and that is a positive I have not mentioned before. There was no suggestion that she had ever physically abused her children.
I have a concern about whether the mother might be using cannabis; I cannot entirely dismiss that concern from my mind. I have a concern about her capacity to manage the children’s behaviour. I have a concern about the extent to which she accepts responsibility for what has happened to X up until now. I have a concern about the fact that X was struggling academically and socially in her care just as he is now.
However I must make a decision about whether X should stay with the father or return to the mother and if a choice has to be made I agree with the Independent Children’s Lawyer and with the Family Consultant that the appropriate order is for the child to return to live with the mother.
The Family Consultant felt that if this change was ordered it should happen straight away and I agree. There will be no benefit to X in seeing out a school term at a school where he is doing very badly anyway.
I would be very concerned if there was to be no oversight of the mother in terms of making sure that there were interventions for X and making sure that that nothing went wrong in the immediate future. I am extremely grateful to the Independent Children’s Lawyer for offering to stay in the matter to oversee what happens to X for the next twelve months.
Sometimes this court is critical of Independent Children’s Lawyers in its judgments for one reason or another. In this particular case I want to record that the Independent Children’s Lawyer has been of enormous assistance.
The Independent Children’s Lawyer did the usual things an Independent Children’s Lawyer is supposed to do in terms of issuing subpoenas, meeting the child and preparing for the hearing but she also went some extra yards, because the Independent Children’s Lawyer arranged for X to see the Family Consultant on the first day of the hearing so that I would be assisted by some additional evidence about X’s circumstances and that has been of enormous assistance to me.
I could have completed the case without it but not nearly with such a degree of satisfaction.

I am also very grateful to the Independent Children’s Lawyer and the Legal Aid Commission for offering to stay in the matter for a period of time to oversee what is going to happen for X.
It was generally agreed during the hearing, perhaps not by the father, but by everyone else and it seems sensible to me, that if X lived with the mother the only order that could be made concerning X spending time with the father during school terms was that this occur one weekend per month.
If the father had a driver’s licence and if he had had demonstrated a greater capacity in the past to be reliable about attending changeovers then the time could be once a fortnight; distance does not make that impossible. However there have been so many problems with the time occurring once a fortnight that the only sensible solution is to make it one weekend a month, to increase the likelihood that it will actually happen as ordered.
I intend to order that the mother have sole parental responsibility for X because X will be living with her and decisions will have to be made.
There is provision in the minute of order proposed by the Independent Children’s Lawyer for the appointments the mother is to organize for X and I will make orders to that effect.
Each parent will be restrained from using drugs or alcohol while X is with them or subjecting him to any physical punishment.
The mother will be restrained from bringing X into contact with Mr F, and the mother needs to understand that for a period of 12 months she will have an obligation to let the Independent Children’s Lawyer know what she is doing in relation to X. If she does not or if she fails to do the things the orders require the Independent Children’s Lawyer will bring the matter back to court.

I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 9 December 2015

[2015] FCCA 3251

22 October 2015

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Family Law

Negligence & Tort

Legal Concepts

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Duty of Care