SANTARNO & SANTARNO

FAMILY COURT OF AUSTRALIA

SANTARNO & SANTARNO

[2011] FamCA 169

FAMILY LAW - CHILDREN – With whom a child lives and spends time - Sexual abuse allegations – Family violence – Application of the considerations of s 60CC of the Family Law Act 1975 (Cth) to the proposals of the parties - Rebuttal of the presumption in s 61DA(1) of the Family Law Act 1975 (Cth) – Whether it is in the best interests of the children that sole parental responsibility be conferred upon the Intervenor – Supervised time with both parents for six months followed by unsupervised time

Family Law Act 1975 (Cth)

APPLICANT:

Ms Santorno

RESPONDENT:

Mr Santorno

INTERVENOR:

Director-General, NSW Department of Human Services

INDEPENDENT CHILDREN’S LAWYER:

Ms Mowbray

FILE NUMBER:

NCC

384

2009

DATE DELIVERED:

11 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

15-19 November and 21 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A Gibbons

SOLICITOR FOR THE APPLICANT:

Hunter Family Law Centre Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr D Barry

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

COUNSEL FOR THE INTERVENER:

Mr M Anderson

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr D Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Verekers Lawyers

Orders

That all prior parenting orders relating to the children, N (born … November 1998) and E (born … June 2004), are discharged.
That the Minister for Community Services have sole parental responsibility for N and E including but not limited to sole parental responsibility for the residence of the children.
That the children spend time with the mother twelve times per year, that is, on one occasion each month, such time to be spent in the absence of the father.
That the children spend time with the father at least twelve times per year, that is, on one occasion each month, such time to be spent in the absence of the mother.
That for the first six months after the making of these orders, the period of time spent by the mother and father on each occasion with the children is four hours and is to be supervised by the Director-General, Department of Human Services or her delegate.
After six months has elapsed from the date of the making of these orders, the time to be spent by the mother and father on each occasion with the children will be six hours unsupervised in places and times to be nominated by the Director-General, Department of Human Services or her delegate.
The time referred to in paragraphs 3 to 6 above is to be subject to, and conditional upon the following:
(a)       That the mother and father follow all reasonable directions of the supervisor for the period of supervision;
(b)       That the mother and father not denigrate the other in front of or to the children;
(c)       That the mother and father not question the children about their contact with the other parent;
(d)       That the mother and father not discuss, nor permit anyone else to discuss, any allegations raised in these proceedings, including allegations of sexual or physical abuse with the children;
(e)       That the mother and father not question the children about, or denigrate the children’s carers; and
(f)       That the mother and father not denigrate the supervisor.
That the mother and father are otherwise restrained from approaching the children, their school and/or any premises which they may from time to time live without the prior written approval of the Director-General, but they are not restrained from acknowledging the children in the event of an unplanned meeting.
That the Director-General shall keep informed the mother and father of each of the children’s progress and development whilst in foster care.
That within 14 days of the date of these orders, the Director-General file and serve a Minute of Orders in relation to the implementation of these orders.
Liberty to restore on the giving of reasonable notice in relation to the implementation of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 384 of 2009

Ms Santorno

Applicant

And

Mr Santorno

Respondent

REASONS FOR JUDGMENT

introduction

Ms Santorno (“the mother”) applies for an order that the two children of her relationship with Mr Santorno (“the father”) live with her. The children are N (born in November 1998) and E (born in June 2004). The father also applies for an order that the children live with him.
At the date of hearing, both children were in the care of the Department of Human Services (“the Department”). Up until the final hearing day the children had lived in separate foster care placements. On the final day of the hearing, 21 December 2010, the court was told that a placement had been found in which both children could live together. The children were to be moved into that placement either on that day or very shortly afterwards.

Background

The parties began to live together in 1998, married in February 2005 and separated in December 2008.
In September 2008 the mother went to work on the north coast of New South Wales. The father and children remained living in the Wollongong area. The mother returned to see the children from time to time and the father took them to see her.
On 26 December 2008 the parties and the children were at the home of a close family friend, Ms S, described as the mother’s “foster mother”. The mother left the house and returned some time later. An argument then ensued between her and the father about whether she was having an affair. The argument became violent and physical. The father said that the mother struck him and he struck her. The police were called. The father was violent and distressed. He was arrested after a struggle with police, taken into custody and held overnight. He was eventually charged with assault of the mother and a police officer. On each charge he was convicted. He was placed on a good behaviour bond in relation to one conviction and given a suspended sentence on the other.
In fact, it appears that the mother was involved with another man, Mr L, although she denied that the relationship was one of intimacy at that time. However, that is of no consequence to the determination of this matter. When the father was released from custody the next day and returned to Ms S’s house, he found the mother and children gone. The mother had taken the children to the north coast. Apparently she and the children lived with her sister for one month and then she, Mr L and the children moved in together.
Following this, the father said that he was able to speak to the children on the telephone but the mother would not permit him to see them. On 14 February 2009 the mother invited him to see the children. The father met the mother and the children in a public place. He said that both children complained to him that they did not want to return to live with their mother and they complained that both their mother and Mr L hit them. The father took both children with him when he returned to Sydney.
The mother commenced proceedings to have the children returned to her. On 23 February 2009 the parties attended court and the mother consented to orders that provided for the children to live with the father and spend alternate weekends with her.
In May 2009 further interim orders were made, again by consent, that the children live with the father and spend time with the mother on alternate weekends. The order provided that the children were not to spend time alone with Mr L. The mother alleges that the father was obstructive, would not facilitate telephone contact and did not make the children available to see her. The father said that N refused to see his mother and there were times when he took the children to be collected by the mother and she did not attend.
In May and June 2009 Apprehended Violence Orders of two years duration were made, one in favour of the father against the mother and the other in the mother’s favour against the father.
On 24 December 2009 after spending time with E, the mother did not return her to the father’s care. The father commenced proceedings for her return in the Wollongong Local Court. The matter was transferred to the Family Court in Sydney. There was a degree of urgency in the matter because E was to start school in January 2010. The matter was heard and determined on 16 February 2010 and the mother was ordered to return E by 19 February 2010.
The mother subsequently attended a counselling and advice service in the area in which she was living and spoke to a counsellor there. The counsellor and the mother discussed the order for the return of E. The counsellor noted that the mother said that she would not return her and, if she was made to bring her back, she would kill herself and E. The counsellor notified the Department of the mother’s comments.
On 19 February 2010 the Department applied for an Emergency Care and Protection Order in relation to E. That order was made on 22 February 2010 and E was taken into care.
On 22 May 2009 a request had been made to the Department inviting it to intervene in the proceedings. That request was declined. In February 2010 a further request was made that the Department intervene in the Family Law proceedings. The Department appeared, sought to intervene and requested orders that the Minister for Human Services have parental responsibility of both children. On 3 March 2010 the Family Court made orders placing E and N in the care of the Minister for Human Services. Orders were also made for the children to spend supervised time with their parents.
N has intellectual and physical disabilities and has about 30 per cent hearing ability.

Issues for Determination

Abuse

In February 2009 both children returned to live with the father after living with the mother from 26 December 2008.
On 24 March 2009 the father said that N told him that Mr L had touched him “…on the bum in the shower”. The father contacted the police who attended and interviewed N but N did not repeat his allegations. Later that day, the father took N and E to visit Ms S and N repeated to her what he had earlier told his father. N demonstrated what he alleged Mr L had done to him which was a rubbing motion with a finger extended.
On 26 March 2009 while travelling in a car with the father and Ms S, E said that Mr L had touched her, “…on the fairy and on the bum…” while in the shower. It was accepted that E used the word “fairy” to describe her genitals. E said that Mr L touched her with his fingers.
The police were called and an investigation was conducted by the JIRT. The investigation concluded in April 2009. No further proceedings were contemplated because the children were unable to give sufficient detail of what they said had happened.
Mr L denies any improper contact with either child. The mother steadfastly refuses to accept that he did or could act inappropriately with the children.
From time to time since the initial disclosure, the children have repeated their claims.
A psychiatrist was appointed to interview the family and to report to the court. The expert, Dr R, made two reports.
In his first report of 10 February 2010, Dr R said that in his opinion it, “…was highly unlikely that the sexual abuse allegations against [Mr L] were valid.” He said that it appeared to him N’s comments were prompted directly by the father. He continued:
…I believe that [the father] thinks that because [N] had made these statements, that that made them true. [N] he [sic] wasn’t able to give a clear indication of what had happened exactly, his statements were very parrot like and repetitive, clearly prompted by the father who himself seemed to have not [sic] insight into the fact that he was influencing the child.
In his oral evidence, Dr R said he believed that either N made allegations and the father capitalised on them and had N repeat them to other people, or the father manufactured them. In support of this conclusion he said that when he saw N for a second time in August 2010, N made no allegations to him. However, in the car after the interview N repeated his allegations to the care worker. Dr R attributed that to the father having the opportunity to discuss the allegations with N while they were alone briefly in his waiting room. The father denies this. He also said that in their first meeting, N had repeated the allegations to him and immediately on returning to his father, told him that he had told Dr R about the allegations. From this the doctor concluded that N had been anxious to let his father know that he had repeated the allegations. The doctor took into account that N had seen his father in an extremely emotionally distressed state after being interviewed with the mother and, it seemed to Dr R, N was trying to placate his father.
In his opinion, as both children have been interrogated by their parents and interviewed on a number of occasions, whatever allegation was made has since been contaminated.
In support of his view that the allegations are without substance, Dr R considered the context in which they were made; the children had only recently been returned to the father’s care and at a time when the mother had entered a new relationship with Mr L about which the father was greatly distressed.
In summary, his opinion was that inappropriate questioning by the father had created and manufactured the allegations. He said (transcript of 18 November 2010 at p 8), “And in his distress, and with his lack of insight, I don’t think he has realised what he’s done himself, and then he and the children start believing things that are manufactured from inappropriate questions and stories that evolve over time and the whole situation is so contaminated...”
Dr R also said (transcript of 18 November 2010 at p 5):
…part of his – [N’s] problem is that he does have a sense of responsibility for his father and does care a lot about and worries about him and I think that he does want to try and help him and I think he sees helping his father as making disclosures about [Mr L] as a way of trying to support his father. Whether something has happened or not, is obviously a very difficult thing to – nobody can prove one way or the other but I think under the circumstances, it’s highly suspicious that [N’s] responding in a way to try and support the father.
The doctor believed that the increase in detail of the allegations was consistent with the process of reinforcement that was associated with constant repetition through “inept questioning” and “the power of suggestion from the questioner” (transcript of 18 November 2010 at p 8).
Dr R also considered that N was very much influenced by the person with whom he had recently spent time. He said that he was a confused child who, “when with his mother would try and support her and when with the father would try and support him.”
Ms B is the case worker assigned to the children from the Department. She has a different view to Dr R. She believes that there is substance to the allegations made by the children.
In August 2010, when driving the children from the appointment with Dr R, N told her that, “[Mr L] touched me” and when asked what he meant, N said, “that he put his private part in my bum and [w]iped it”. N said this happened when he was in the shower. He told Ms B that he told his mother about this and she told him to “tell [MrL] not to do it anymore”. He further said that he saw Mr L pull down E’s pants and that he saw Mr L touch E’s private parts. N said that his mother told Mr L to stop.
E was in the car when this conversation took place. On the same day, Ms B received an email from E’s foster carer who said that E came to her upset and said that N had told Ms B that Mr L washed his private parts when he had a shower whilst the mother was at work. According to the email, E was upset because “[Mr L] never even said sorry to [N]”.
Ms B reported these conversations and there was another JIRT investigation. The matter was not taken any further because there was insufficient evidence to warrant criminal prosecution.
Ms B believes that the children are telling the truth about Mr L and is concerned there may be an unacceptable risk of harm to them in the company of their mother and Mr L. She said that, in her opinion, the children clearly believe that Mr L has inappropriately touched them.
Ms B set out the grounds for her belief in her affidavit. One of the matters to which she referred was what she believed to be the “unprompted” disclosures by the children on the trip back from seeing Dr R. Dr R considered this incident and thought it likely that the father took the opportunity of the August visit to discuss the allegations with N and this prompted the disclosures in the car. Ms B’s account of the movements of people in the waiting room gave scope for the father to speak privately with N, albeit in the presence of the receptionist. I am not able to determine whether the father used this opportunity, as Dr R suggests, to encourage N to re-make his allegations.
It is clear that matters which, in Ms B’s opinion, strengthen the likelihood that the children are telling the truth may not necessarily be considered so by Dr R. For example, there was no mention in February 2009 by N of Mr L putting his penis in his bottom as he told Ms B in August 2010. Ms B said that in her view, it is normal for children not to make full disclosure at first but that the allegation becomes more detailed over time.
What one is to make of the children’s statements is a matter on which minds will differ. Without discounting Ms B’s considered view, Dr R had the advantage of seeing N with his father at a time when the father was extremely distressed and when N apparently sought to allay that distress by confirming to his father that he had told the doctor of the allegations. I also take into account Dr R’s evidence about the interview process and the possibility of contamination of the children’s allegations.
The cross-examination of Ms B did not challenge her opinion that the children were telling the truth, although counsel for the Independent Children's Lawyer did suggest to her that an allegation that becomes more detailed over time can be consistent with the child being coached to make the allegations, with which she agreed.
It is difficult to examine closely this issue in the absence of a detailed exploration of the bases for the competing opinions of Ms B and Dr R. It is also to be recalled that N has developmental disabilities. A school report from early 2010 indicated his cognitive functioning to be extremely low. There was no exploration as to what, if any, impact it might have to the reliability of his disclosures or whether it lends force to Dr R’s view that his allegations were the result of inappropriate questioning by the father.
Further complicating this issue is N’s past experience. It was undisputed that in 2005 he was the subject of sexual abuse by his maternal uncle. The abuse came to light when N told his mother that, “[Mr H] put his doodle in my bum”. Mr H is the mother’s brother, himself a person with intellectual disabilities and who later admitted to committing an act of sexual abuse on N. Although the matter was investigated, it was not taken any further because N’s age and disabilities hampered further investigation or the bringing of criminal charges.
The evidence does not permit me to come to a positive finding in relation to the children’s allegations against Mr L.
This does not conclude the issue about Mr L. One must consider whether on the evidence, there exists an unacceptable risk of sexual abuse to the children, or either of them, in the company of Mr L.

The assessment of that risk involves a consideration of the facts and circumstances established by the evidence. In weighing those facts and circumstances, I have taken into account the opinion expressed by Ms B that she accepted the children’s assertions of impropriety. I have also taken into account Dr R’s evidence that in his view the disclosures are likely to have been contaminated by repeated, inappropriate questioning by the parties. It is important in this context to observe that Dr R left open the possibility that some sexual abuse had occurred (transcript of 18 November 2010 at pp 4 and 8) although he expressed the opinion that it was highly likely that the allegations have been “created and manufactured”.
Taking into account all of the evidence, I can not exclude a risk of sexual abuse to the children if exposed to the company of Mr L.
How then should the magnitude of this risk be assessed?
The mother was adamant that no such abuse occurred and refused to countenance any possibility that it had. She has implicit faith in Mr L. Although she said that if she believed he had abused either child she would not be living with him, I can not be confident that if there was a risk to either child in the company of Mr L, they would be able to look to their mother to protect them because of her unswerving loyalty to Mr L.
It was undisputed that from a time shortly after the allegations against Mr L were raised, there had been an order preventing Mr L from coming into contact with the children. It was also undisputed that there had been several occasions when he had contact with them. In particular, when the mother was arriving or leaving the place where she spent time with the children, he had seen and shouted a greeting to them. The mother justified his presence by saying that he drove her to the contact place and she was running late. When asked about his actions, Mr L failed to see any cause for concern. It is consistent with their evidence, namely that Mr L denies and the mother accepts his denial of sexual impropriety, that neither saw the need to comply strictly with the orders. It does, however, raise a concern about the mother’s capacity to understand that while she does not accept the allegations, the children may well have felt uncomfortable seeing Mr L.
Taking into account the whole of the evidence on this issue, I am of the view that the risk I have identified, while existing, is slight and, even taking into account the mother’s attitude to the allegations, it does not elevate that risk to such a level that it is unacceptable.
Ms B’s evidence is that in her opinion both children believe that some form of inappropriate sexual contact has occurred. Dr R expressed no view about their beliefs. Certainly the children have been recorded as repeating the allegations from time to time. Whether this indicates a belief or a desire to placate or please is difficult to know. It is pertinent too in this context to note that if the children are to remain living in foster care provided by the Department, it is intended that they receive sexual assault counselling. Ms B said that the counselling is premised on an acceptance that alleged sexual abuse occurred. While counselling may well provide the children with strategies to protect themselves, it will, it seems, leave them in no doubt that Mr L has acted improperly towards them. There was no evidence about how that might impact on any future relationship they might have with their mother if she remained living with him and steadfastly of the view that he had not acted improperly.
There seems to be no doubt that the father believes the children’s allegations. Whether the allegations arose through anxious, inappropriate questioning as suggested by Dr R, or some other reason (whether true or otherwise), it remains the fact that the father accepts that the alleged abuse did happen. His antipathy to Mr L, together with his acceptance of what the children allege, will have a considerable impact on him if the children are to be exposed to Mr L without some supervision. If Dr R is correct, one imagines that further, inappropriate questioning may well follow. This would not be in the children’s interests.
In the course of her evidence, the mother said that she believed that something inappropriate had happened to N and E but it had been done by the father and/or a girlfriend that he had at some time. The mother said that N and E told her that their father had sexually interfered with them and that they had been made to make allegations against Mr L otherwise they would be “belted” by the father. This assertion that the children had alleged abuse by their father was first raised by the mother in her cross-examination.
I have grave doubts whether any such assertions were made by the children. First, nothing appears in the mother’s affidavits to that effect; secondly, the contact between this family and the Department and the involvement of JIRT, the nature of the litigation and the conduct of the parties since their separation leads me to the view that had such allegations been made by the children, the mother would have mentioned them before. No submission was made during the hearing that sought a finding that any abuse of N and/or E occurred at the hands of the father and counsel for the mother made no submission to that effect. In all of the circumstances, I did not take this evidence into account in coming to a determination about the issue of risk of abuse.

Violence

It was undisputed that the relationship between the father and mother was volatile and there were loud arguments, sometimes accompanied by violence between them.
The mother alleged that on numerous occasions throughout their relationship, the father viciously physically and sexually assaulted her. According to her affidavit sworn in February 2009 in support of her application for orders in the Federal Magistrates Court at Newcastle, the father assaulted her by punching and kicking her, threatened to kill her and the children and held a gun to her head. She said that she did not report these assaults and threats to police.
The father admits that during the relationship there were frequent arguments between them and he admits that he slapped the mother but asserts that she slapped and kicked him. He denies the assaults alleged by the mother in her affidavit.
Since the separation of the parties in December 2008, each has invoked the involvement of police and, as I have said, each has the protection of an Apprehended Violence Order in his and her favour.
That the mother did not report to the police the alleged assaults and threats that were said to have occurred during the relationship is not proof that they did not occur.
In support of the alleged violence, it was said that the father has a tendency to behave aggressively. There was evidence of incidents in which the father responded aggressively when upset. One such event occurred in 2009 when officers of the Department called on him at home to check on the children. Another occurred in late 2010 in the context of supervised time with the children. According to those supervising the contact, the father’s level of hostility and aggression was both intense and frightening.
The father had undergone anger management counselling sometime before this incident in December 2010.
To a degree the resolution of this and other issues in the case requires an assessment of the parties’ credibility.
I find that the mother was not a particularly reliable witness and will approach her evidence, where it touches on a matter of controversy, with caution. As I am conscious that where proceedings relate to children of parties and the orders of the court do not necessarily finalise relationships between the parents, I propose to be somewhat circumspect in these findings.
When challenged in cross-examination, the mother frequently made a blanket denial to the proposition put and then, when faced with evidence to the contrary, was forced to make concessions. This was particularly so when faced with a circumstance that might show her in an unfavourable light.
While the father was prepared to make more concessions than the mother, I am not persuaded that he was entirely candid with the court.
I can not make a positive finding that the level or frequency of the violence was as alleged by the mother against the father. However, as I have indicated, on the basis of the admissions by the father, it is clear that there were arguments that descended to violence between the parties while they were living together.
The volatility of the relationship has continued since separation and there is no doubt that the children have been exposed to the parties’ verbal aggression towards each other.
It was alleged that the mother had been verbally abusive and physically violent to the children both while the parties were living together and after their separation. Ms S, in particular, expressed concerns about the mother’s conduct towards the children.
Ms S swore two affidavits in the proceedings in support of the father. She said that when the mother was a teenager, she and her own mother lived in the same apartment block as Ms S. Ms S said that she became aware of the mother using drugs and prostituting herself. She confronted the mother who admitted it and Ms S then took her to live with her and her husband. The mother lived with them until she moved out to live with the father. After a period during which she did not see her, in 2003 the mother returned to see Ms S bringing N and later E. She was a regular visitor; Ms S looked after the children and, she said, enjoyed a good relationship with both the mother and the father. According to her, both the father and mother refer to her as “Ma”. I accept that she did have the close association with the parties and the children as she said.
Ms S said that there were occasions before the parties separated when she spent time at their house and saw the mother smack the children with implements and kick N. Ms S said that on many occasions, she heard the mother speak abusively to N and swear at both children. The mother denied these claims and said that Ms S had been threatened by the father to make her affidavit.
Ms S gave evidence and was cross-examined. She denied that she had been threatened or otherwise coerced to give evidence against the interests of the mother. She said that, although she once “spoke to” someone at the Department about her concerns, she did not contact the Department again. She believed that should she say anything to press the issue she would never see the children again.
During submissions, it was suggested that Ms S had acted as an “advocate for the father” in her evidence. I take this to mean that her evidence, rather than being a dispassionate recounting of events, was slanted or overly favourable to the father. I disagree. It appears from the unchallenged parts of her affidavits that Ms S was solicitous of the mother during the December 2008 incident and had in the past supported her. When the police arrived to arrest the father, Ms S took the mother and children out to the back of the house to shelter them from the experience. I formed the opinion that she cared about the mother but felt the need to bring her concerns to light. This view was reinforced by the way in which she gave evidence about the mother.
Ms S conceded that both the father and mother swore in front of the children. She said that she had not seen the father shouting at the children nor seen him hitting them. Her account of the father’s interaction with the children was broadly consistent with Dr R’s observations of him with the children.
Ms S gave her evidence thoughtfully and carefully. Both her oral evidence and affidavit carried the clear impression of being her observations. I accept her evidence as being reliable. In coming to this finding, I take into account the fact that the father did not complain to Dr R that the mother had beaten the children or spoken abusively to them although he did give brief evidence about it (transcript of 17 November 2010 at p 52) after being asked about Ms S’s evidence.
Ms S’s observations lead to concerns that the mother, in circumstances perhaps when stressed, has behaved harshly to the children and has spoken to them inappropriately.
Before the separation in December 2008, the mother came to Sydney to visit and the father said that in that time he noticed that N had two black eyes. The father asked N how it happened and N said that he had fallen at school. After the separation, when the children were returned to live with the father, N told him that his mother had caused the bruises. He made a similar comment to Ms S. The mother asserts that N told her that it was the father who blacked his eyes.
The mother makes no allegation that the father harmed the children in the past although she said that she believed he was capable of harming them. There is no evidence on which I can find that the father had in the past or would in the future, cause physical harm to the children.
The assertion by N that his mother had caused his black eyes was made within a very short time after he was returned to his father’s care in early 2009. In the circumstances of the father being deeply committed to a reconciliation with the mother for a considerable time after separation (to which topic I will return later in these reasons) and being very distressed at her relationship with Mr L, N’s various claims about how he came to have black eyes must be regarded as unreliable. The evidence could not support a finding that either the mother or father struck him and caused the black eyes.
It is likely that the mother has in the past used harsh physical discipline on N and has been verbally abusive to both children. I make no similar finding about the father’s treatment of the children. In the face of the mother’s denials of any inappropriate treatment of the children, it is difficult to determine whether such treatment would persist in the future if she had the care of the children. Perhaps her observed behaviour was a reflection of stress within the relationship with the father.

The father

The father is aged 44 years old. At the date of hearing he was living in his father’s house although he spends significant time with Ms S. It appears that Ms S offers the father emotional support and he assists her as she has a very serious illness and her husband is quite disabled.
The father has suffered some physical illnesses. He was injured in a work-related accident in which he sustained extensive burns. He is in receipt of government benefits. In 2009 he was admitted to hospital for treatment of acute pulmonary oedema against a background of cardiomyopathy.
Dr J, psychiatrist, first saw the father in February 2009 on referral from his general practitioner. In a brief report of 7 February 2009, Dr J noted that the father was separated from the mother and made reference to the issues between the parties. He noted that the father was quite socially isolated and believed he would cope better with some support. He diagnosed an adjustment disorder with depressive symptoms. Dr J continued to see the father for some part of 2009.
Dr J’s second report dated 16 June 2009 said that the father, “…realizes that his behaviour was inappropriate and that he ‘has to learn to get over his wife’”. The father reported that in his contact with the mother he had been “more emotionally controlled and responsible.” The doctor said that while the father still found the breakup of the relationship unsettling, he was “dealing with his emotional responses appropriately.” Dr J reviewed the father in March 2010 and noted that, “the depression and previous preoccupation he had with his ex-wife had settled. He told me he has no intention of going back to her and that he realises that any further contact with her is destructive.”

Assessment of Dr R

Dr R interviewed and assessed the parties and the children and prepared two reports for the assistance of the Court.
His first report is dated 10 February 2010.
In his opinion about the father, Dr R said:
I formed the view that [the father] cared a great deal about the children and wanted to act in their best interest. [The father] presented the [sic] low functioning person intellectually and dependent in his manner. However, I believe he did have a good manner with the children and wanted to support them. It appeared that he was able to care for them to a reasonable level for their respective ages. I believe that he is probably capable [of] caring for preadolescent children with support but I don’t believe he is able to manage stressful situations that require discernment and judicious decisions.
However I have major concerns about his ability to care for the children once they become more demanding during their adolescence. [The father] was very child-like in his manner. He appeared to be very dependent on [the mother]. He was like a love sick child. I have major concerns about his ability to care for the children in the long term. He also appears to be rather ineptly trying to influence [N] to make allegations against [Mr L]. He probably is capable of managing the children for the next year. In addition I also have major concerns about his physical health. He has had a major cardiac incident and he appears to be fragile emotionally.
Dr R amplified matters in his oral evidence. He said that in his opinion the father is emotionally dependent and was particularly emotionally reliant on the mother. He said that this was likely to influence the father’s ability to parent because he had difficulty in separating his need for emotional dependence and the needs of the children. He said:
…my concern is that he may then place his dependency on the children. That he is very reliant on [the mother] and that without [the mother], I think he’s then turned to rely on whoever is close to him and that would include the children if they were in his care.
When asked about the effect of this on the children he said:
…that will overburden the children. My worry is that because of his difficulty separating out his issues and being able to protect the children from being overburdened, he’s likely to project his worries on to the children and in that way the children will start to carry his worries and I think this is particularly evidence with [N] who is, I think, particularly worried about the father.
The doctor said that he observed that N shows a sense of responsibility for his father, cares and worries about him, and wants to help him. Dr R referred to N’s repetition of the abuse allegations against Mr L as evidence of shouldering of responsibility for the father’s emotional distress.
Dr R considered that professional support for the father may provide him with a focus for some of his emotional dependency. However, he said that the father lacks insight into the effect of his actions on the children and was unaware that he had imposed his worries on the children. Dr R was not optimistic that the father has sufficient awareness of his own behaviour and its impact for it to be adequately addressed.
In his first report, Dr R observed the father’s extreme distress when he interviewed the parents together. Dr R wrote:
He began blubbering like a love-sick child. He repeated, “[The mother’s first name] I love you, [The mother’s first name] I love you [The mother’s first name]”.
He noted that the mother was angry and verbally aggressive. Dr R asked her to leave and as she went to leave, the father attempted to embrace her. Dr R described an emotional scene played out in his rooms in front of the children which obviously distressed E. The sequel to this incident was that although the mother left, there was an encounter in the foyer of the building between the mother, Mr L and the father to which the police were called to intervene.

When he next interviewed the father, Dr R recorded that the father told him that in May of 2010 the mother invited him out to have a drink with her and Mr L. The father refused, believing it to be a ploy to try and have him charged with breaching the Apprehended Violence Order in place to protect the mother.
Although Dr R conceded that this incident reflected some progress in the father’s ability to distance himself emotionally from the mother, he considered that the father was still vulnerable to manipulation by the mother. He said that despite the father’s progress, he still had major concerns about the father’s ability to put his strong feelings towards the mother aside and he thought it remained extremely difficult for him.
However, Dr R was unpersuaded that notwithstanding that progress, the father had gained any insight into how his emotional dependency affected the children or that he had the capacity to manage their needs as they grow older.
He was asked to comment on whether it would assist the father to have support in the home in caring for the children. He said:
…I still don’t believe that he would have the ability to provide for the children, and the other important dynamic here is that because of the extreme antipathy between the parents, that if one parent has the children, it would seem that…it would be almost impossible for the other parent to have any contact with the children, because of the volatile nature between them.
Although it was suggested that a way through that particular impasse would be for the Department to have responsibility for arranging and supervising time between the children and the other parent, Dr R did not believe it would be effective because (transcript of 18 November 2010 at p 25):
…both parents are, as far as I can determine, are both hell bent on or determined themselves on undermining the other parent and even if the Director-General took responsibility for organising the relationship or contact with the mother, I think there’s still such antipathy between the parents that the children would be under enormous pressure to be negative towards the other parent and that this ongoing cycle of being caught between the two parents is likely to continue.
In his second report (dated 10 October 2010) Dr R concluded:
The major issue for [the father] is that he has significant intellectual difficulty and is very vulnerable and easily influenced because of that. He appears to be very dependent in his nature and has very poor problem solving skills and poor emotional regulation. [the father] also didn’t appear able to contain himself with the children and made statements about them wanting [N] to disclose sexual abuse. He doesn’t appear able to manage in a sophisticated way the issues of the children. His handling of the sexual abuse allegations was very inept. I formed the view that he was an important person in the children’s lives; however I don’t believe that he is in a position to provide stable or adequate parenting to the children in the long term.

The mother

The mother remains committed to a relationship with Mr L. They have established a household together that includes his children from a previous relationship when they visit. Since the allegations of sexual impropriety were made against him, he has been prohibited from having contact with N and E. This prohibition has not been rigidly observed by either Mr L or the mother.
Ms T, the maternal grandmother, lives with the mother and Mr L. She and the mother were estranged for some years following an incident in December 2005 in which the mother and father engaged in aggressive argument with her. At the time Ms T was protected by an Apprehended Violence Order against both the father and mother. The police were called and it is undisputed that the father was arrested, but not the mother, because she had the care of small children. In any event, Ms T and the mother had no contact until December 2008. She moved in to live with her daughter in March 2009.
Ms T’s opportunity to observe her daughter with the children is thus limited. She said that she could not recall her daughter being angry with the children although she thought that sometimes she could not cope. It was clear from her evidence that Ms T and the mother have resumed their relationship and Ms T is prepared to support the mother in caring for the children if they are returned to live with her. Ms T does not believe that N was sexually abused by Mr L.

Assessment of the mother

After first interviewing the mother in early 2010, Dr R said:
I formed the view that the mother] did care about the children and wanted to support them. However, I believe that [the mother] has major personality problems with borderline features of poor relationship ability and poor stability.
After receiving the first report of Dr R, the mother attended Dr C, psychiatrist, for a medico-legal assessment. Dr C was asked to comment on whether the mother had “major personality problems with Borderline features” and, if so, the impact of that diagnosis on her functioning as a parent. Dr C observed that the information given to him came from the mother and was neither objective nor extensive. He considered the diagnostic characteristics of a borderline personality disorder and concluded that while some aspects in the mother’s reported history were associated with borderline personality disorder, they were insufficient to enable him to make that diagnosis.
Dr C said that a borderline personality disorder usually has a negative impact on parenting because of the fragility of personality, tendency to anger and difficulty in tolerating stress, although of itself does not pose a risk of harm to children. It can be treated with psychotherapy.
Dr R returned to his opinion about the mother’s personality in his second report of October 2010 and, referring to Dr C’s report, said:
…Whilst the psychiatrist assessment indicated that she may not fit the criteria perfectly for borderline personality disorder, she does however, fit the criteria for a personality disorder. She does have life-long maladaptive patterns of behaviour that impact significantly in an adverse way on her life.
After referring to the evidence on which he came to this view, he continued:
…It is possible that whilst there are borderline features to the personality that [sic] more obvious is an antisocial personality disorder.
However, the aim is not to become too pedantic about the precise label or personality style. I believe that important issues here are the ability of the mother to be able to put the children’s interest before her own and act in their best interest. Unfortunately, I don’t believe that [the mother] is able to do that. I believe that she does not recognise that [the father] has a contribution to make to the children...
…
The mother exhibits poor judgement and doesn’t appear to have insight into the damaging affects of her behaviour on the children...
In considering this matter it is not necessary for me to make a determination of whether the mother has a borderline personality disorder or exhibits features of a borderline personality disorder.
The evidence before me is strongly supportive of the mother being unable to cope with stress and becoming angry, which was visited on the children from time to time.
However, more persuasive is Dr R’s overall view of her ability to be an effective parent in light of her demonstrated actions since the separation. Dr C acknowledged that his opinion about the mother’s personality was based on limited information. Dr R had the advantage of considering a body of information both written and provided by the parties and other relevant people. To the extent that there is a divergence in their opinions, I prefer the opinion of Dr R in coming to a decision in this matter.
Dr R said (in his report dated 10 October 2010):
On the positive side she does present as being dedicated to the children. There is no doubt that she has strong feelings towards them. However, there is a sense of expectation. She has made some attempts at counselling which is a positive first step. However, her battle with [the father] appears to have placed this at a greater level of importance than the actual welfare of the children. It is clear that she would not be able to allow the children to have a relationship with the father if she were the primary carer…
He continued:
I didn’t believe [the mother] would be able to manage with the children very well. I do believe that she cares about them but I don’t believe that she has a clear concept of what the children need … [The mother] is extremely vindictive towards [the father]. She is able to manipulate him. However, there are major concerns about her treatment of the children. Withholding [E] was clearly a demonstration of her inability to be able to separate her wishes from what needs to happen to the children. Again the threats to kill herself and [E] were of great concern. She appears to become overwhelmed when her wishes are thwarted…
Dr R said of the mother (in his oral evidence) that her resolve not to return E after that period of holiday time with her in late 2009 was “ill thought out” and that:
…one of my concerns about the mother was that she wasn’t really able to discern what were her issues and what were [E’s] issues and that her reasons for keeping [E], I believe, were more that she didn’t want to risk giving her up again after having had such problems the previous year…
In April 2010 the mother attended counselling with a clinical counsellor, Ms P. Ms P prepared two reports dated 24 April and 13 June 2010. In the later report, Ms P referred to the work done with the mother in their sessions. She noted that the mother was taught strategies for reducing conflict when in the company of the father and for anger management in stressful situations and noted that she had apparently used those strategies successfully. She expressed the opinion that the children could be returned to the mother’s care. No reliance was placed on Ms P’s opinion as to the return of the children.
It is to be noted in this regard, that the mother’s evidence was that her sessions with Ms P were to enable her to learn strategies to deal with the stress of the proceedings and surrounding circumstances. She denied that she was seeking help for dealing with anger.
The mother indicated that she was prepared to undergo parenting courses but it was not altogether clear what she thought needed to be addressed. She said that she thought it might help her if the children were restored to her care because they had been away from her for a long time and to assist N given his disabilities. She did not identify any particular parenting shortcomings.
It was suggested to Dr R that the reports of the supervised contact between the mother and the children were suggestive of a change in her ability to contain herself and not denigrate the father in front of the children. Dr R substantially agreed that, but for a couple of occasions on which there needed to be intervention to restrain her comments, the mother had apparently conducted herself appropriately with the children. It was also suggested to him that she had taken steps to address his concerns about her personality raised in his report.
Dr R agreed that the fact that the mother had attended counselling might demonstrate that she sought to modify her behaviour and that, but for several incidents in which she had made inappropriate comments during supervised contact, she appeared to have been able to contain herself.
Tempering these concessions was his evidence that it is not altogether taxing to maintain control while being supervised. He said (transcript of 18 November 2010 at p 38):
…People with personality disorders can be contained in certain environments, and a supervision environment is very containing. So it doesn’t necessarily mean that she could contain herself and not be pejorative towards the father in front of the children away from this supervision environment. So – I mean, I do have concerns that she could be able to paint [sic] herself adequately.
Dr R said that at times when her life was disrupted, for example during the breakdown of the relationship with the father, would be the time the mother would be likely to have difficulty in controlling her emotions.
In assessing this issue, it is also important to note Dr R’s evidence about the intractable nature of these personality traits. He said (transcript of 18 November 2010 at p 44):
…they’ve become an ingrained pattern of how the individuals interact with the world and others, and it’s difficult for them to change. It’s not totally immutable, but it’s the sort of thing that can change with intensive rehabilitative time, work, and a great deal of effort and sacrifice. So it can change, but it takes a great deal of work to do that.
He further said that the person seeking to change those ingrained patterns of interaction would need to acknowledge and accept responsibility for change.
While the mother’s approach to counselling is to be encouraged, taking into account the whole of the evidence, I can not be confident that it would assist her to change these personality traits.
Dr R was asked whether, with support and the assistance of parenting courses, the mother would be able to care appropriately for the children. He said (transcript of 18 November 2010 at p 39):
…it would depend on if her Honour felt that both parents had taken the enormous steps of improving and demonstrating their improvement in their ability to not only care for the children and parent them but also be able to report [sic] the other parent- that they were no longer locked into this internecine battle which the children and each of the adults are being destroyed.
He did not have confidence that either parent was able to achieve that.

Circumstances in which the Children were taken into care

According to the material put before the court by the Department, since 1999 the children, or one of them, has been brought to the attention of the Department on 38 occasions, 31 of those since the separation of the parties.
When the matter was before the Federal Magistrates Court on 22 May 2009, a request was made to the Department that the Director-General intervene in the proceedings between the parents. A decision was made at that time that the Director-General would not intervene.
In November 2009 the parties consented to orders that the children live with the father and spend time with the mother on weekends and also over the coming Christmas school holiday period. The orders provided that the mother would collect the children on 18 December 2009 and return them on 24 December 2009. In the result only E went to spend time with the mother. E was enrolled to start school near to where she was living with the father. The mother refused to return E in accordance with the orders.
Orders were made in the Family Court requiring the mother to return E by 4.15pm on 19 February 2010. On 16 February 2010 the Family Court requested the Director-General intervene in the proceedings.
On 17 February 2010, the Department received a copy of the expert’s report in this matter in which Dr R recommended that the children be taken into care.
In February 2010, the mother first attended an information and counselling service in the area in which she was living. She had some limited contact with the centre afterwards. On 17 February 2010 the mother rang and spoke to a counsellor. According to the counsellor’s notes, the mother informed her that she had attended the Family Court the day before and had been ordered to return E to the father.
The note indicates that the counsellor advised the mother that she must comply with the orders. It continued:
During the course of the conversation [the mother] said she had options
- Not return her
- Return to Abusive partner to protect kids
- or kill herself & take [E] with her.
She said this at least two times maybe 3.
I did not believe she meant this.
The counsellor notified the Department of this conversation.
It is to be observed that the mother denies that she said the words attributed to her and suggests that her words were taken out of context. The note to which I have referred appeared to have been made contemporaneously by a person apparently trained in counselling. The words in paragraph 133 are taken directly from the subpoenaed notes of the counselling service. I do not accept the mother’s denial of the words she used. That is not to say that it follows that she did intend to kill herself and the child but I am satisfied that she made that threat.
On 19 February 2010 the Department filed an application for an Emergency Care and Protection Order (under the Children and Young Persons (Care and Protection) Act 1998 (NSW)) in the Children’s Court. That order was made on 22 February 2010 and expressed to be for a period of 14 days.
On 22 February 2010, E was taken into foster care arranged by the Department.
On 24 February 2010 the Director-General intervened in the Family Court proceedings and sought orders placing the two children in the parental responsibility of the Minister. On 3 March 2010 that order was made and N too was removed from the care of his father and placed in foster care. The court further made orders that provided that each parent would spend two hours supervised time with the children each week. In about September 2010 that time was increased to provide each parent with three hours time with the children per week. In addition, the parents are permitted to speak to the children on the telephone twice per week.
At the time the hearing commenced in November 2010, the children were in separate foster placements although arrangements were in place for them to spend time together. From March until late December 2010 E had been in the one foster care placement as had N.
As perhaps might be expected, reports of the children in the placements demonstrates some unsettled behaviour. Two incidents were said to be of significant concern. E was noted to be displaying what was described as “sexualised” behaviour. Dr R said that while “sexualised” behaviour in a child could indicate some type of sexual abuse it could also be consistent with emotional distress. On an occasion after N had spent time with his father, the carer reported that he had soiled himself in the shower. There was no evidence which would support this being attributable to seeing his father rather than some other event and, as with the reported conduct of E, I can place little weight on the events.
On the final day of hearing (21 December 2010) it was indicated that the Department had secured a placement for both children together. They were to be moved into that placement either on that day or very shortly afterwards. Although there is no evidence that this has happened, I assume that the children are now living together.

Time spent between the children and the parents

On each occasion the children and the parents have spent time together, a report is produced by the supervisors and, most of those reports were in evidence.
According to Ms B, the case worker with responsibility in the Department for the management of the two children, the mother’s time with the children had been generally positive. In her affidavit, Ms B referred to occasions on which the mother had made negative comments about the father and discussed the court case with the children which caused some concern about how the mother contained herself while with the children. During some telephone calls between the mother and the children, a complaint was made that Mr L shouted greetings to the children. As a result of this behaviour, the telephone conversations were then supervised.
Reports of the father’s time with the children have been prepared and, as with the mother, Ms B’s view is that his time with the children has been generally positive. There were incidents which concerned the care workers such as the father becoming emotional and crying during his time with them, telling them that they are being “brainwashed” and accusing N of telling lies.

In December 2010 there was a particular incident when apparently in response to a remark made by N, the father became very upset and was described as screaming at the children and the case workers. It was said that E wet her pants. The care workers were sufficiently alarmed that they took the children out of the room where the father was and locked the door behind them.
When asked about this incident, the father denied that his conduct was as frightening or out of control as the reports of those present seemed to indicate. He said that he was his “normal self”. Ms S was present at the time. She agreed that the contact was terminated early and said that it was a good thing that it was.
While the report of the incident before the court is short on detail, it is clear that the father’s outburst left the supervisors shaken and distressed. The emotional impact of the incident is apparent on the face of the report. I do not accept the father’s evidence that he did not behave as described.

Discussion

Dr R was asked about the children’s relationships and the prospect of them being in long term foster care. He said, agreeing that it was his preferred option, that it was crucial that the parents not act to destabilise the foster placement found for the children (transcript of 18 November 2010 at p 15):
…But I think the crucial thing for these children is that they really do need some stability and security so that they can begin to develop emotionally. So – and that security needs to be with their primary carer. So if there’s a threat – another destabilisation for these children could be disastrous…
He said that the children’s life before being taken into care had been unstable and continued (transcript of 18 November 2010 at p 16):
…I think there’s a window of opportunity, when children go into the foster care system where they are able to cope with one or two foster placements. Often they do need to go into a short-term foster placement before moving into a long-term foster placement. And then if those placements are managed well enough and the children settle, then they can often become quite stable and do well over … the rest of their childhood... If the foster placements break down and there’s one broken placement after another – but once you get to three or four broken-down foster placements, it can be very - difficult to place the children with a foster family, because of the number of losses that they’ve got…
He said that if children do not have a stable placement the chances of them developing severe personality disturbance or major psychiatric problems of depression and anxiety are very high.
Although his comments were made in relation to the need for the children to have a stable foster placement, Dr R said that the dire predictions if children do not achieve a stable home with a primary carer are “the same” whether it is with a parent or a foster parent. This was particularly pertinent in N’s case as he is approaching adolescence.
Given the history of this family as disclosed by the evidence, I am satisfied that there has been a considerable degree of dislocation and unsettlement in the children’s lives. Dr R’s evidence draws a grim picture of the future lives of these children if stability is not achieved for them.
The parents contend that, with support and the provision of services and courses, each would be able to care for the children and to foster a relationship with the other parent.
It was suggested to Dr R that the Department had the resources sufficient to provide the parents with support and courses to enable them to manage the children if they lived with him or her and to negotiate their relationship with each other. Dr R did not believe that even with those supports in place the parents would be able to provide for the children because of the level of antipathy between them. He thought that it would be impossible for one parent to have any contact with the children while living with the other parent. Even if the Minister were to have responsibility for the provision of contact between the children and the other parent, Dr R thought that it would not provide a solution.
There was no argument that the court shouldn’t strive to make an order that brings stability to the children’s lives.
It is unfortunate that in this case the children were taken into care in circumstances without there having been prior active intervention by the Department. Although there had been notifications over the years and the father was interviewed in 2009, no plan or active support was given to either parent. In the time since the children have been in foster care, both parents have taken some steps to equip themselves to better manage the children. Both parents are prepared to undertake whatever course or supervision necessary to enable them to have the care of the children.
The father had apparently undergone anger management counselling before the incident on 10 December 2009. Clearly that course did nothing to assist him to contain himself at that time. It is to be recalled that the outburst took place in front of the children but some of the father’s anger was also apparently directed at N. It is true that the father was able to resist the mother’s blandishments to join her for a drink in circumstances in which he believed that she was trying to cause him to break the AVO in her favour. However, the notes of the supervised contact visits and the evidence generally show that his level of antipathy towards the mother and Mr L continues unabated. The father believes that Mr L has sexually abused the children. That the complaint was not able to be prosecuted has not challenged that view.
It may be that with time, the father is indeed able to address issues relevant to the children with the mother without recourse to the invective and hostility that has characterised their exchanges since separation.
However, of critical importance is the father’s capacity to be an effective parent for the children in the future. Dr R assessed the father as being very dependent emotionally and had, in the absence of the mother, turned to the children for emotional support. Dr R was able to identify the process in N’s clear anxiety and concern to allay the father’s distress at the separation. While it could be argued that with time the father’s distress would dissipate, that is not to suggest that his emotional dependence is limited only to his distress at the separation. It is clear that Dr R was identifying an inability in the father to support the children emotionally rather than burden them with his own emotional needs. It was not suggested that this is a matter that could be addressed in any counselling or therapy.
It is abundantly clear that the father loves the children and that they love him.
The mother has, to her credit commenced counselling with Ms P and, she said, has gained some ideas from the sessions about dealing with stress and anxiety. She loves the children and wants them to be returned to her. It is clear that they love her.
The opinion of Dr R and, to a lesser degree, Dr C, is that the mother has personality traits that make it difficult for her to be an effective parent to the children. Dr R’s assessment that she is unable to separate her needs from those of the children is apparent in her failure to return E in December 2009 and her enrolment of E in a school other than the one in which she had been enrolled, near to where she had been living with her father. It is unnecessary to traverse all of the evidence, but I accept Dr R’s opinion that the mother has personality traits that will impede her ability to provide effective parenting for the children. I accept the unchallenged evidence of Dr R that these traits are enduring and, while they can be addressed by psychotherapy, the process is long and requires a significant commitment to the therapeutic process. There was no evidence before me that would give any optimism that the mother would engage in that level of therapy or even that she accepts there are some deficiencies in her parenting.

Conclusion

In determining where the best interests of the children lie, I am required to have regard to the dictates of s 60CC of the Family Law Act 1975 (Cth) (“the Act”). The evidence supports a finding that the children love both of their parents and the parents equally love the children. The reports of the supervised contact demonstrate that both parents have spent warm and enjoyable time with the children in that time. The children respond well to them. In this case, there is a considerable benefit to the children in maintaining a meaningful relationship with both of the parents.
I accept the evidence of Dr R that at present, the level of antipathy and conflict between the parents is such that if the children are placed with one of them, there is little prospect that that parent would be able to foster and maintain a good and meaningful relationship with the other. There is, in my view, a real prospect that not only would neither of them foster the relationship but the children may become the pawns through which their conflict is played out.
There is abundant evidence that both parents have attempted to undermine the other through comments to the children and in other ways. To a considerable degree this has been reduced by the fact of supervision, but that it occurred in the limited supervised time and to the extent that the supervisors have to intervene indicates the level to which both parents are prepared to put their interests above those of the children.
Having been unable to make a conclusive finding about the allegations of sexual abuse by Mr L, I have found that there is a risk to the children of living with the mother, albeit a not unacceptable one. However, it is undeniable that the father absolutely believes the children’s allegations and I could not exclude that the children too believe it. If the children were living with the mother, I am of the view that it would place them at risk of the type of inappropriate questioning that Dr R surmises occurred when the allegations were first aired in March 2009.
There has undoubtedly been family violence in the past, and the children have, inevitably been exposed to the violence between their parents. The father has been physically violent to the mother and there is a significant concern that the mother has been physically harsh to N and verbally abusive to both children. While orders could be put in place that would render the prospect of further violence or abuse between the parents unlikely, I could not be satisfied that there would not be other incidents of inappropriate physical discipline or abusive language to the children from the mother. She has, as I have indicated, denied that any such incidents have occurred. That denial, while maintained, gives no comfort that she might seek some appropriate parenting support in the future. It would not be in these children’s interests to expose them to that conduct in the future.
The Department proposes that the children continue to live in the present foster care together. There was no dispute, and it was the evidence of Dr R, that the best outcome for the children was for them to live together. Counsel for both parties submitted that there was no guarantee that the new foster placement would be a permanent one. That is certainly so. One can never find with certainty that a foster placement will not break down for one reason or another.
As the evidence of Dr R made clear, for these children, who have experienced significant disruption in their lives, the orders made by me should provide as much stability for them as possible.
There are risks of disruption in each position presented to the court. If the children were placed with the father, on the evidence of past conduct of the mother, I could not exclude the probability of her deciding to retain the children or undermine their placement with the father. Equally, given the allegations of sexual abuse, I could not exclude the probability of the father undermining their placement with the mother. If either of those events occurred and it resulted in the children moving again, it would be insupportable for them.
In their present foster placement, the children are living in the Town1 area. It is proposed that they would travel to Town 2 to spend time with their parents. The placement is a considerable distance from the homes of the mother and father. The arrangements for the children to see their parents involve all parties travelling.
Although the fact of the present placement in Town 1 was known to the Department before the final hearing date in this matter, it was only made known to the parents on the eve of the final hearing day, with the result that there was no opportunity for any party to consider how each might travel to Town 2 in the event that the children remained in care. It was accepted that the Department could provide assistance for the parents to spend time with the children. Although somewhat nebulous, I believe I can be comfortably assured that if the court were to make orders that left the children in the parental responsibility of the Minister and they remained living in their present location, the Department would facilitate the parents’ time with the children.
While this will be a bitter disappointment to both parents, I have come to the view that at this time, neither the mother nor the father is able to properly care for the children.
I have determined that the presumption of equal shared responsibility of the children in favour of the mother and father has been rebutted. Section 61DA(2) of the Act provides that once it has been established that the court has “reasonable grounds to believe that a parent of the child has engaged in” family violence the presumption of equal shared parenting does not apply. I have made findings of fact which establish that family violence as defined in s 4(1) has occurred at the hands of the both the mother and father. Consequently, there is no need for me to consider the ground of “best interests of the child” referred to in s 61DA(4). Nevertheless, for all the reasons I have given, I am satisfied that even if s 61DA(2) did not apply, “it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility” and that it is in the children’s best interests that they remain under the sole parental responsibility of the Minister.

Provision for time to be spent between the children and their parents

During the course of her evidence, Ms B, said that the Department’s preferred regime of contact between the parents and the children was a number of hours six times each year for each parent. She said that this would maintain the children’s relationship with their parents.
This is, in my view, wholly inadequate in the circumstances of the case and especially in light of the relationship between the parents and the children.
As part of his recommendation that the children be taken into care, Dr R suggested that the children see their parents for some hours once per month, that is, each fortnight the children would see one or other of their parents. He thought that seeing one parent each day on one weekend would be too much for the children.
Dr R, however, sounded a warning bell that should the parents or one of them attempt to use the time with the children to undermine the placement, it should be reflected in reduced time. This was because he considered the stability of their placement to have the highest priority to ensure their best opportunity for good attachments.
Ms B considered that increasing the time to be spent between the children and the parents was appropriate although she said that as the children get older, they may have other activities on weekends.
As I understand Dr R’s recommendation for supervision, it was connected with the inability of the parents to contain themselves in front of the children and the risk that they might through things said, undermine or unsettle the children in the placement.
Both Ms B and Dr R considered that in the first instance, the time to be spent between the children and the parents should be supervised and, in all of the circumstances, I am of the view that at least for a period, the time that the parents spend with the children should be supervised.
The parents should each spend time with the children for several hours each fortnight. The need for supervision and the question of how long will very much depend on the way in which the parents are able to conduct themselves during the times spent. The time spent should be increased to the point where the parents each spend one day each month unsupervised with the children.
Accordingly, I will order that for the first six months after the making of these orders each parent spend four hours with the children each month, and that this time be supervised. Thereafter the time is to be increased to six hours and is to be unsupervised.
Given the findings that I have made in relation to the allegations of abuse against Mr L, I do not regard it as necessary that he be excluded from spending time with the children if the mother wishes. In coming to this view, I have taken into account the father’s acceptance of the allegations and the understanding that the Department intended that the children have some counselling about the allegations. Nevertheless, I am of the view that the mother should be able to bring Mr L to her time with the children if she wishes.

I certify that the preceding one hundred and eighty (181) paragraphs are a true copy of the reasons for judgment of Ainslie-Wallace J delivered on 11 March 2011.

Legal Associate: Date: 11 March 2011

[2011] FamCA 169

11 March 2011

Key Legal Topics

Areas of Law

Family Law