Stone and Stone and Anor
[2008] FamCA 1026
•24 September 2008
FAMILY COURT OF AUSTRALIA
| STONE & STONE AND ANOR | [2008] FamCA 1026 |
| FAMILY LAW – CHILDREN - Best interests – where allegations of child abuse – where allegations of spousal abuse – where allegations of violence against other persons – where children of Aboriginal descent – whether children should be placed in the care of the Department of Community Services |
| Family Law Act 1975 (Cth) |
| B & G & The Minister for Health Family & Children's Services, Northern Territory [1998] FamCA 1945 Faulkner and McPherson v Rugendyke; Department of Community Services (1995) FLC 92-630; (1995) 19 FamLR 507 (1995); (1995) 120 FLR 64 |
| APPLICANT: | Ms Stone |
| RESPONDENT: | Mr Stone |
| INTERVENOR: | Director General, Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | SYF | 4688 | of | 2004 |
| DATE DELIVERED: | 24 September 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 30 and 31 October 2006 15 to 19 January 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lee |
| SOLICITOR FOR THE APPLICANT: | CBD Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Mundey |
| SOLICITOR FOR THE RESPONDENT: | White Barnes |
| COUNSEL FOR THE INTERVENOR: | Mr Moore with Mr Barry |
| SOLICITOR FOR THE INTERVENOR: | NSW Crown Solicitor's Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eggleston |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Slade Manwaring |
Orders
The Director General of the Department of Community Services have parental responsibility for:
(a) Child E born … July 1997
(b) Child F born … May 2001 and
(c) Child G born … October 2002.
The children are to live with their father on the proviso that the father complies with conditions as set out hereafter:
(a)it be a condition of the children living with their father that their father accept the supervision of the Director General in relation to the children and that such supervision include but not be restricted to the following matters:
(i)the Director General or his delegate may conduct random home visits to the father’s residence;
(ii)the father is to ensure that the Director General or his delegate have entry to the premises at which the children reside at all times;
(iii)the father ensure that the Director General or his delegate may meet with and talk with all or any of the children the subject of these Orders as and when the Director-General and/or his delegate may choose;
(iv)the father accept all reasonable directions of the Director General or his delegate in relation to his care for the children;
(v)the father accept and facilitate all reasonable referrals made by the Director General for any of the children;
(vi)the father is not to remove or permit the children to be removed from the Central Coast area without obtaining the permission of the Director General;
(vii)the father is to continue to ensure the children reside at their current residential address;
(viii)the father is to ensure that the children remain in their current schools. The father is not to enrol the children in any other school without the written permission of the Director General or his delegate;
(ix)the father not permit any persons other than the subject children and his children Child B and Child C to reside in the children’s residence without the written permission of the Director General or his delegate;
(x)the father may permit his mother and his Sister OO to stay overnight in his residence with the subject children;
(xi)The father is not to permit any other person or persons to stay overnight in the residence with the children without first obtaining the written consent of the Director General or his delegate;
(xii)The Director General may from time to time give the father written notice of the names of any persons who the children are not to be brought into contact with;
(xiii)neither parent is to use any form of physical discipline on the children;
(xiv)neither parent is to denigrate the other parent in the presence of the children or to expose the children to denigrating of the other parent;
(xv)in the event of the Director General becoming aware of other facts or circumstances relating to the care of the children which raise concern for the Director General as to the safety of the children living with their father the Director-General is to consider exercising his discretion and removing the children from their father’s care. The Director General may apply for further orders from this court in those circumstances or is at liberty to apply to a relevant State court.
In the event of the Director-General becoming aware of other facts or circumstances relating to the care of the children which raise concern for the Director-General as to the safety of the children living with their father the Director-General is to consider exercise his discretion to remove the children from their father’s care. In such circumstances, the Director General is to remove the children from the father’s care should he consider the further information warrants that action. The Director General may apply for further orders from this court in those circumstances or is at liberty to apply to a relevant State court.
The Director General may make such arrangements that he thinks appropriate for the children to spend time with their mother.
Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Stone & Stone and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4688 of 2004
| MS STONE |
Applicant
And
| MR STONE |
Respondent
And
| DEPARTMENT OF COMMUNITY SERVICES |
Intervenor
And
| INDEPENDENT CHILDREN’S LAWYER |
CONTENTS
Orders
Introduction
Delay in delivering judgment
The Issues
Background Facts
Credit
The mother
The father
The father’s mother
Ms II
Dr GP
Ms JJ
Sister A
Ms KK
Mr HH
DOCS Officer A
DOCS Officer B
DOCS Officer C
DOCS Officer D
The Evidence
The reports of Dr Expert
Report of 29 September 2005
Report of 8 December 2005
Report of 28 June 2006
Report of 6 September 2006
Dr Expert’s further report dated 12 January 2007
Affidavit evidence of the father
The affidavit of the father’s sister
Affidavit of Ms JJ
Affidavit of the father’s mother
Affidavit of Ms II
Affidavit of Dr GP
Affidavit evidence of the mother
The affidavit of Ms KK
The affidavit of Mr HH
Further evidence of the mother
The evidence of Ms MM
Further evidence of the mother
Affidavit evidence of the Director General
The affidavit of DOCS Officer D
The affidavit of DOCS Officer A
The affidavit of DOCS Officer B
The affidavit of DOCS Officer C
The further affidavit of DOCS Officer A
The affidavits of DOCS Officer E
The further affidavit of DOCS Officer B
Oral evidence of the mother
The oral evidence of Dr Expert
The oral evidence of the father
Further oral evidence of the mother
The Oral Evidence of Ms KK
The Oral Evidence of Mr HH
Further oral evidence of the father
The oral evidence of the father’s mother
The oral evidence of Ms II
The oral evidence of Dr GP
The oral evidence of Ms JJ
The oral evidence of the father’s Sister A
The oral evidence of DOCS Officer A
The oral evidence of DOCS Officer B
The oral evidence of DOCS Officer C
The oral evidence of DOCS Officer E
The oral evidence of DOCS Officer D
Relevant Law
Legal Principles
Balance of the Evidence
The exhibit evidence
Exhibit M1: The mother’s witness statement of 30 October 2006
Exhibit M9: District Court file in the matter of Stone
Exhibit F9: Excerpt from Rape Crisis Centre file regarding the mother on 27 June 1996 and 2 July 1996
Exhibit F12: Police record of 21 July 2001
Exhibit F13: Statement from Ms QQ of 25 July 2003 regarding assaults upon Ms EE
Exhibit F14: Excerpt of hospital notes dated 21 March 2003
Exhibit F15: Excerpt of police record dated 12 November 2004
Exhibit F22: Notes from interview between DOCS Officer D (Child Protection Caseworker Specialist) and the father dated 28 February 2006
Exhibit CR3: Excerpt of mother’s file at … Hospital dated 6 August 2001
Exhibit CR5: Central Coast Hospital medical progress notes for the mother attached
Exhibit CR6: Correspondence from Central Coast Health Service
Exhibit CR7: Notes from counsellor Social Worker B at the Family Centre
Exhibit CR8: Dr Expert’s Report dated 12 January 2007 (Court appointed Single Expert)
Exhibit CR10: Child Assessment Report (Department of Community Services file regarding Ms DD’s children 1 July 2006 )Exhibit CR11: Letter to the Department of Community Services from Annalese
Exhibit CR12: Assessment record regarding the child J 27 August 2006
Exhibit CR13: Department of Community Services file notes from interview with Mr PP 4 July 2006
Exhibit: Parentage DNA test
Exhibit DoCS3: NSW Police Criminal History: Bail Report of the father obtained on 23 December 2005
Exhibit DoCS 4: NSW Police Criminal History: Bail Report the mother obtained on 23 December 2005
Exhibit DoCS5: Central Coast Hospital documents
Exhibit DoCS6: Child at Risk Report regarding Foster children and medical report re: the child M
Exhibit DoCS 8: Supervised Contact Report 24 March 2007 written by DOCS Officer F
Exhibit DoCS9: Notes of interview with Child G, Child E and Teacher A, Teacher B (Child G’s teacher) and Teacher C (Director of … Preschool)
Exhibit DoCS 10: Central Coast Community Services Centre: Child at Risk update report July 1993 regarding the child M, son of Ms FF
Exhibit DoCS 11: Affidavit of DOCS Officer D affirmed 27 June 2006
Exhibit DoCS 12: Tender bundle
Exhibit DoCS13: Joint Investigative Response Team (JIRT) Assessment Record generated 28 April 2005 (including transcript of interview)
Exhibit DoCS 14: Joint Investigative Response Team (JIRT) Assessment Record generated 12 January 2005 (including transcript of interview)
Exhibit DoCS 15: Joint Investigative Response Team (JIRT) Assessment Record generated 28 April 2005; interview with Child E on 6 April 2005, Child E age 7
Exhibit DoCS 16: District Court file exhibits: police and medical statements
Exhibit DoCS 17: Excerpt of police record regarding Ms EE dated 11 February 2003
Exhibit: Department of Corrective Services Community Service Order File, Probation and Parole File of the father
The Submissions
Issues: Determination of issues of fact
Required findings of fact identified in the submissions of the Director General
(a) Did the mother trick the father into having sexual intercourse with her when she was aged 15 in the manner suggested by the father?
(b) Did the father assault the mother as alleged in her affidavit filed 3rd June 2005 (at paragraphs 20 and 25 to 52, and 169)?
(c) Did the father assault Ms AA in 1984 which resulted in him serving two terms of imprisonment?
(d) Did the father assault Stepchild H (Ms AA’s son)?
(e) Did the father physically or sexually assault Ms DD’s children J and K?
(f) Did the father assault Stepchild L?
(g) Did the father assault Ms EE, Ms FF, his Sister B and/or Ms BB?
(h) Did the father and Ms CC find $411,000 in a suitcase?
(i) Has the mother assaulted Child B, Child C, Child E and Child G?
Assessment of the allegations
(j) What was the nature of the father’s relationship with Ms DD, Ms FF, Ms CC and Ms GG?
(k) Did the mother firebomb the father’s home?
(l) Was the father violent to his children as alleged by the mother?
(m) Was the mother violent towards her children and the other Stone children?
(n) Did the father physically assault the Foster children?
Section 60CC Considerations
Primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Additional considerations
(a) 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 the child’s views
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents(j) any family violence involving the child or a member of the child’s family
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
(m) any other fact or circumstance that the court thinks is relevant
Sections 60CC(4) & (4A)
Section 61DA
Section 65DAA
Conclusion
REASONS FOR JUDGMENT
Introduction
This case reveals the most extraordinary set of facts which I have ever seen in a case in this Court. The hearing proceeded over the space of 21 days spread over a period of about 6 months. There are multiple issues of fact. There are serious issues of child safety in relation to each of the parents. There are allegations of serious criminal behaviour made against the father.
The Director General of the Department of Community Services (hereafter called the Director General) agreed to be a party to the proceedings, for which I am personally grateful. Her legal representatives have been of great assistance to me in the hearing of the case.
The Director General when she entered the proceedings initially supported an order being made that would see the children residing with the father. During the trial that position changed. At the conclusion of the hearing the submissions made on behalf of the Director General supported the making of an order which reposed parental responsibility for the children with the Director General and then provided for the Director General to be able to determine with whom the children live. This order is akin to a “care order” under the relevant NSW State legislation. As part of these reasons I will consider the jurisdiction to make such an order.
The mother is Ms Stone (hereafter referred to as “the mother”). She was born in 1981. The father is Mr Stone (hereafter called “the father”). He was born in 1964. He is Aboriginal. He has a very supporting mother and sister who will be referred to later.
The children the subject of these proceedings are Child E born in July 1997, Child F born in May 2000 and Child G born in October 2002. They currently live with their father pursuant to interim orders made by me on
3 November 2006and continued on the last day of the hearing, namely 10 April 2007.
When the mother and the father lived together the father had two of his children Child B born in March 1989 and Child C born in September 1990 living with him.
In addition to the children thus far referred to, the father has other children; namely, Child A born in June 1984 (her mother being Ms AA) and Child D born in July 1991 (his mother being Ms BB).
The father himself is one of many siblings all sharing the same father. Of the many siblings, only 4 are female.
The mother and father first met as a result of the father being approached by the mother’s mother and asked to dispose of the mother’s body following her immanent murder. A fee of $500 was offered and received by the father. Rather than taking on that job the father warned the mother of her mother’s intentions. He assisted her to escape from what appears to be a horrifically abusive environment where the mother was raped repeatedly from an early age by her twin brother with the knowledge, permission and participation of the children’s mother. Despite the mother providing a very detailed statement of the crimes which had been perpetrated against her no charges were ever laid against her mother or brother.
Having rescued the mother from her home environment the father then commenced a relationship with her himself. The precise timing of when their relationship became a sexual one is disputed and will be dealt with by me in these reasons. Suffice to say at this point that the mother alleges she was raped by the father on the first evening she stayed in his house.
The parties’ first child Child E was conceived when the mother was 15 years and 5 months old. The father concedes that a single act of intercourse occurred between them at that time and that occurred when the mother tricked him into believing he was having sexual intercourse with a different (and adult) person. He says that thereafter there was no sexual relationship between them until after she turned 16 years. The mother has an entirely different view of what occurred.
The parents did marry in May 2001 and separated on 13 October 2004.
Following the separation the children Child B, Child C and Child E all alleged the mother had sexually assaulted them. The eldest child Child B was very concerned that he might have fathered his youngest brother Child G. This is all denied by the mother but accepted as probably true by the Court appointed expert, Dr Expert.
In early 1995 the father alleged he and Ms CC found suitcases with $411,000 in them. The father says that Ms CC took the money with her when she left his home later that year. At a time after Ms CC left his premises he was visited by armed males who searched his house. Although not identifying themselves as police officers, the father thought they were. It was after that time that the father reported the matter to the police.
In 1995 the father was at Local Court facing an Apprehended Violence Order in which Ms CC was the principal witness. At that place and on that day the father’s brother shot Ms CC in the body in the Court. The father’s brother was charged with attempted murder but subsequently acquitted.
Delay in delivering judgment
Although the hearing concluded in April 2007, the submissions were not concluded until November that year. The affidavits were numerous. The exhibits were many and in some cases lengthy documents. I had available the transcript from the 16 days of hearing which allowed me to completely recall the evidence given at the trial. I had made extensive notes during the trial including observations of the witnesses and my opinions as to their reliability and candour. As I wrote the judgment I was able to have a clear recollection of each witness.
I was made aware by the Chief Justice of the court that a complaint had been received about the time which had elapsed since the hearing concluded. I accept that was an appropriate complaint. I did not feel pressured by the complaint to a point where I did not feel I had the necessary time to write this judgment. I regret the delay in delivering the judgment, however I did feel comfortable about the orders I had made on 3 November 2006 providing a safeguard for the children’s welfare. As will be seen in the orders I have ultimately made there has been little change in the effect of those orders.
The Issues
At the conclusion of the hearing I invited each of the parents’ counsel and the counsel for the Director General to provide me with written submissions in relation to any specific findings of fact which were sought. The Director General provided written submissions which identified the following questions upon which findings of fact were sought:
a)Did the mother trick the father into having sexual intercourse with her when she was aged 15 in the manner suggested by the father?
b)Did the father assault the mother as alleged in her affidavit filed 3 June 2005 (paragraphs 20 and 25-52, 169)?
c)Did the father assault Ms AA in 1984 which resulted in him serving two terms of imprisonment?
d)Did the father assault Stepchild H (Ms AA’s son)?
e)Did the father physically or sexually assault Ms DD’s children J and K?
f)Did the father assault the Stepchild L?
g)Did the father assault Ms EE, Ms FF, his sister, Sister B, and/or Ms BB?
h)Did the father and Ms CC find $411,000 in a suitcase?
i)Has the mother assaulted Child B, Child C, Child E and Child G?
j)What was the nature of the father’s relationship with Ms DD, Ms FF, Ms CC and Ms GG?
k)Did the mother firebomb the father’s home?
l)Was the father violent to his children as alleged by the mother?
m)Was the mother violent towards her children and the other Stone children?
n)Did the father physically assault the Foster children?
Background Facts
The father was born in 1964. The mother was born in 1981.
In 1982 the father married Ms AA. They have one child, Child A, born in 1984. At the time of their marriage Ms AA had another child, Stepchild H.
At the end of 1985 the father and Ms AA separated. In December 1986 the father was convicted of assaulting Stepchild H and was sentenced to a term of imprisonment for 6 months. I will deal later with the father’s evidence about that matter.
In about September 1988 the father commenced a relationship with Ms BB. At that time Ms BB had a child, Stepchild L, who had been born in 1984. They separated in July 1991.
As referred to earlier Child B was born in 1989 and Child C was born in 1990.
In July 1991 Child D was born. The father is the father of Child D. Child D was born at the same time the father and Child D’s mother Ms BB separated. He remained living with his mother.
In about 1995 the father and Ms CC knew each other. She was staying at the father’s home. The father denied they were living in a de facto relationship for a lengthy period of time. However, other evidence shows he had admitted they were in a relationship for some months. The father says that in early 1995 he and Ms CC found $411,000. The father reported this to police about nine months later. At that time Ms CC had long left his house, he says, taking the money with her.
The parents met in about February 1996. The mother says that on
26 February 1996the father told her he had been offered $500 to dispose of her body. Shortly after that occasion the mother stayed at the father’s home. She alleges that the father forced himself upon her and they had sexual intercourse. About a week later the mother went with the father’s mother to speak with police. She there reported sexual assaults by her brother upon her. She did not complain of any act of the father’s.
In about April 1996 the mother spent some time living at a Central Coast refuge.
Between June 1996 and November 1996 the mother attended at a Police Station on six occasions to make statements about the assaults upon her by her brother.
There is an issue between the parents as to when they commenced to live together in a de facto relationship. In any event the parents agree that they were living together following the birth of their first child, Child E.
The parents separated on 13 October 2004.
On 22 December 2004 the mother filed an application in the Family Court at Sydney.
At the time of separation the mother left the former matrimonial home. She left with the assistance of her then employer Mr HH. At a later time she and Mr HH commenced a relationship.
During 2006 the father had an association with Ms DD. Ms DD is the mother of the child J who is 13 years of age and the child K who is six years of age.
Credit
The mother
The mother presented as immature. Her disposition changed from time to time throughout the hearing. On some occasions she was tearful and on others she seemed quite aloof or remote from the proceedings. There were many occasions when she did not answer the question asked of her. She appeared to use any opportunity she could to blame the father for all of her actions and reactions. On occasions she appeared to give evidence in a straightforward and honest manner. There were occasions, however, when I felt that she was not being completely forthcoming with all of the relevant evidence on a particular topic or alternatively, I felt she was being untruthful. Where appropriate, I will refer to occasions when I have been unable to accept her evidence.
When answering questions she frequently ascribed blame to the father for her actions. An example of this was where the mother sought to make a case that she was completely dominated by the father and was unable to escape from him. She was asked why she had not reported to a whole range of people the allegations that she had against the father namely that he had raped her, assaulted her and kept her as a virtual prisoner or sex slave. She claimed that she had never been given an opportunity to do so. She said that the father was always present with her when she was in a position where she could have reported her concerns to someone who may have been able to help her. The evidence disclosed that this last assertion was untrue.
The father
The father presented as a highly intelligent, articulate and acutely aware person. It is clear that his memory was extraordinary and his comprehension of detail is very obvious. He was not a well man and he told me of his diabetes. In his younger days the father was a competitive football player. He is now overweight.
For the most part the father appeared to give his evidence in a straightforward and honest manner. There is other evidence however, which if accepted would establish that the father could not be accepted as a witness of truth. To the extent that I have not accepted his evidence, I will refer to those instances during the course of these reasons.
The father’s mother
Ms … is the mother of the father. She presented as a straightforward and honest witness. It seemed to me that she was very fond of her son, the father, and could not accept any real criticism of him. She clearly loves her grandchildren and cherishes any time she has with them. She has been a very significant figure in their lives. Although in some ways critical of the mother it is clear that she does not hold any great ill will against the mother.
Ms II
Ms II is a family friend of the Stone family. She had a weekly bible reading class with the mother during the relationship between the father and the mother.
Dr GP
Dr GP gave evidence at the request of the father. Dr GP has provided medical services for the Stone family including the mother over a number of years. There was nothing about the way he gave his evidence that suggested to me he was not being truthful with the Court.
Ms JJ
Ms JJ is a friend of the father and his family. She is clearly supportive of the father. She gave her evidence in an apparently honest manner.
Sister A
Sister A is the father’s sister. She has had a great deal of contact with the parties and the children during relevant periods. Her evidence was given in an apparently honest manner. She has a good and close relationship with the children.
Ms KK
Ms KK is a friend of the mother’s. She gave evidence on behalf of the mother. She was a most unreliable witness. She was incredibly vague. She appeared to have little or no recollection of being with the mother when she met the father and the children at Central Railway Station. I was so concerned about her evidence that I enquired about her health. To the extent that she had anything adverse to say about the father I would not be prepared to accept her evidence.
Mr HH
Mr HH is the mother’s partner. I was very impressed with him as a witness. He impressed me as a father who was dedicated to his children and they were clearly his first priority. He acknowledged that he had been untruthful in some areas of information supplied to Dr Expert and also in his affidavit. This related to when he commenced a sexual relationship with the mother.
DOCS Officer A
DOCS Officer A is a Department of Community Services officer. She was an impressive and apparently truthful witness.
DOCS Officer B
DOCS Officer B is a Department of Community Services officer. She was an impressive and apparently truthful witness.
DOCS Officer C
DOCS Officer C is a Department of Community Services officer. He was an impressive and apparently truthful witness.
DOCS Officer D
DOCS Officer D is a Department of Community Services officer. I was concerned about the objectivity of this witness. I found her very defensive and her manner quite aggressive at times. She stood out as quite different in approach and objectivity to all of the other witnesses who were officers of the Department of Community Services. I detected in her an apparent predisposition to accept sexual abuse of children on the flimsiest of evidence and because of her predisposition, apparently lacked the capacity to consider all of the available evidence before she reached a conclusion in her own mind about the allegations. Surprisingly, she told me that she had been part of a JIRT team for 12 months as part of her work history. On her performance before me I would think she would be most unsuitable for such a position.
The Evidence
The reports of Dr Expert
Dr Expert, psychiatrist, was appointed as court expert in the case. He prepared a number of reports for the case.
Report of 29 September 2005
At the time the report was prepared the children were living with the father and having brief supervised visits with the mother.
This report was a preliminary report only.
The report outlines some basic history.
In the preparation of this report Dr Expert met Child C and Child E. Child E was uncommunicative. Child C described in a general way that his mother had abused him sexually.
Dr Expert reported “In my opinion the children are happy with their father and are well cared for by him….. I would be reluctant at this stage to recommend more prolonged or unsupervised access.”
Report of 8 December 2005
On 7 December 2005 Dr Expert interviewed Child B who had been brought to his rooms by the father. On that same day, in the afternoon, the mother together with Ms KK and Mr HH were seen.
Dr Expert reports that Child B presented as a softly spoken, articulate young man. He told Dr Expert that his stepmother had involved him in sexual activity over a number of years with oral touching of his genitals progressing to intercourse when he was aged 12. He said that she had threatened to harm him if he told anyone. On one occasion she squeezed his testicles and twisted them hard. Subsequently, he had to go to hospital and have an operation for a twisted testicle. He thought the condition may have been precipitated by or made worse by that action.
He said that Child E had talked to him about sex play between Child E and his mother. Child B clearly believed that his brother had been sexually molested by the mother.
Child B denied having seen any sexual activity between the mother and Child E. He did say he had seen the mother pull his hair as a punishment.
Dr Expert said the father told him that the mother had allegedly claimed to Child B that Child B might be the biological father of Child G. Child B was asked about this and he confirmed that it was possible.
Dr Expert spoke with Ms KK. She said she did not believe allegations made against the mother of sexual misconduct. She said the mother cares for Ms KK’s children from time to time, and she completely trusts her with them.
Mr HH was seen by Dr. Expert. He had met the mother through being her employer. He denied there was any sexual relationship between he and the mother. Dr. Expert found his denial convincing. He did not accept that the mother had sexually molested her children. He said he trusted the mother with his children.
The mother was seen by Dr Expert.
The mother told Dr Expert that the father was to blame for the allegations made by Child B. She denied those allegations. She said that if Child B and Child C were in the witness box they would be exposed as liars.
She denied that Child G was fathered by Child B and offered to subject herself to testing.
The mother requested counselling with Child E.
Dr Expert said he tended to believe rather than disbelieve Child B’s allegations. He thought it was less likely than likely that the father had coached Child B, Child C and Child E to make allegations against the mother.
Dr Expert said,
“The severe distortions in [the mother’s] upbringing would have left her vulnerable to operating without appropriate boundaries between adults and children within a family, especially with respect to involving children in sexual behaviour. That is not in itself proof that she has actually done so, but her earlier life experiences are certainly a risk factor for such behaviour."
Dr Expert said there is merit in conducting counselling for Child E and his mother and Dr Expert said he would be prepared to undertake that counselling.
Report of 28 June 2006
This report addressed interim “visiting rights” for the younger children and their mother.
The report details that Child E had been a reluctant participant in contact with his mother. He had not attended for six weeks. Child E had, at that time, been receiving regular psychotherapy from … of the … Clinic. Dr Expert spoke with Child E. He said of Child E: “His attitude to his mother appeared non-committal rather than either strongly positive or strongly negative. He does not want to see her, but expects to do so at some time in the future. He showed no sign of distress when talking about her, though he did refer to being hit by her.”
Dr Expert made some recommendations about future sessions for the mother, Child E and himself.
Report of 6 September 2006
In this report Dr Expert sets out his observations and views in respect to the relationship between Child E and his mother.
Dr Expert’s further report dated 12 January 2007
In this report Dr Expert refers to an interview with the father in relation to the allegations that he had sexually assaulted the two children of Ms DD.
The father denied that he had a sexual relationship with Ms DD. He denied any assault on Ms DD’s children J and K, either sexual or physical.
During the interview with the father he spoke of concern for Child B who had been in trouble with the law.
The father spoke of an incident which involved Child C’s punishment at school by being required to write out “lines”. The father said he had been to Child C’s school to protest about the practice of requiring his children to write out lines. He said he was strongly opposed to the practice. This evidence assumed importance later because of the allegations of Ms DD’s children.
Dr Expert spoke to Child E. He referred to the last of their meetings when he had become distressed when seen with his mother. Child E told Dr Expert he did not want to see his mother.
Affidavit evidence of the father
The father grew up on the Central Coast. He has a close and continuing relationship with his sister, Sister A, and his mother. He does not see his other sister, Sister B.
The father holds parenting orders in his favour, having contested the custody of his children Child B and Child C. They have been in his sole care since they were about three years old. Both Child B and Child C were fulltime members of the household whilst the father and the mother lived together.
The father annexed to his affidavit a copy of a statement made by the mother to the New South Wales Police dated 10 June 1996. This statement alleges assaults upon the mother by her brother. The mother was 15 years of age at the time she made the statement. In that statement, amongst other things, the mother alleged that from the time she was three or four years of age she had been hit, bashed and strapped with a leather belt and also punched by her mother. The statement says that the mother was eight or nine when she was first raped by her twin brother. At the time of the rape the mother said that her mother was holding her down. She alleged that similar rapes occurred many times thereafter and involved her mother holding her down.
The father explains that initially the mother stayed at his house for some days after she had come to him seeking help. He then arranged for her to stay with his mother and for his mother to accompany her to speak with the police.
Sometime after the interview with police, the mother was placed in foster care for a short period of time and then she stayed with an aunt. She also spent some time at a refuge in Newcastle.
The father says that in about April 1996 the mother contacted him and claimed that she was in a desperate situation. She said that she was staying at a refuge in Newcastle and asked if he could come and collect her. He did and thereafter she stayed with him or alternatively at the house of Ms LL on the Central Coast. When she stayed at the father’s house he said she stayed in the spare room.
The father claims to have been the primary carer for the children.
When Child G was about 12 months of age the mother started doing some work outside of the house.
The father denied that he had done anything inappropriate to either the mother or the children. He responded to an affidavit of the mother sworn 9 February 2005 which outlined a series of complaints about the father and his treatment of the mother and the children.
The father denied that he had interfered with the children spending time with the mother since separation or speaking to her on the phone.
The father said that on 8 January 2005 he received a telephone call from a person identifying themselves as a nurse at a south Sydney Hospital. Thereafter he telephoned the mother’s mobile. He asked her what was happening. She told him she had cut her wrists. She was speaking very slowly and seemed to the father to be very drowsy in the conversation. The father said that prior to that time the mother had been threatening to harm herself.
The father denied the contents of a statement made by the mother to the police dated 17 January 2001. This had been set out in her affidavit. He agreed that on a without admission basis he had agreed to an Apprehended Violence Order (AVO) order being made on an interim basis.
The father said that during the course of his relationship with the mother she was prescribed medication which he understood to be anti-depressants. He was aware that the mother had regular counselling during the course of the relationship and attended the Mental Health Department over a number of years for counselling. There was an officer named Social Worker A who visited the house every Tuesday and the father observed that she spoke to the mother. The father said that the mother had attempted suicide on a number of occasions during the relationship. He spoke of an occasion in 2003 when he understood the mother took 50 Voltaren tablets.
In relation to the mother’s interaction with the children, the father said she often yelled at them and became overwhelmed with the children.
The father described a conversation with Child E which appeared to be spoken towards the end of the parties’ relationship. The father reported the conversation to the Department of Community Services after hours number. He was advised that the JIRT group would interview Child E.
The particular conversation sets out details of a game played by Child E with his mother that involved, on the face of it, very inappropriate behaviour.
The father complained that since interim orders were made in this Court providing for telephone contact between the mother and the children she has used inappropriate language when speaking to them. For example in a conversation with Child E the father said the mother had used the following words: “I don’t fucking care whether you want to talk to me or not. I am your mother. I’ll talk to you how I want about what I want.” In that same conversation the father says that Child E referred to his mother as X. The father annexed to his affidavit a large number of text messages which he said had been received from the mother.
The affidavit of the father’s sister
On 8 March 2005 the father’s sister, Sister A, filed an affidavit. In her affidavit she said the following.
Sister A stays at the father’s house approximately three nights a week. She attests to the good relationship and good fathering skills which she has observed in the father’s household. She believes she has a good relationship with each of the children.
Sister A had been involved in supervising the time the mother spent with the children pursuant to interim orders of the Court.
In relation to the allegations made by the mother that the father had been violent towards her, Sister A said she had not seen any violence at all during the time that she had to observe the parents, nor had she observed any outward signs on the mother as being abused. She did not observe bruising or injuries. She has not seen the father exhibit any inappropriate discipline to any of the children. She had observed the mother being violent to the children. She had seen her hit the children and pull their hair. She has observed the mother hit the children in the region of their head. She has observed the mother often yelling at the children. She says the mother uses bribes with lollies or money to seek cooperation from the children. She has heard the mother call the children “fucking little cunts” or “little bastards”. She said the mother uses profanities frequently in her normal conversation.
The father’s sister is critical of the mother in a number of areas of her care of the children.
The father’s sister described bizarre behaviour in the mother including seeing her throw herself down a flight of stairs because “[the father] wouldn’t set a date to marry her”.
Affidavit of Ms JJ
On 5 September 2005 an affidavit by Ms JJ was filed. She is a friend of the father. She has known him for many years. She became a friend of the mother’s. Prior to separation she was an occasional visitor to their home. She is a friend of the father’s mother. She describes a good relationship between the children and their father.
She describes some bizarre behaviour on the part of the mother which occurred on 17 May 2005. She said that she was picked up in a motor vehicle from the station where the motor vehicle was being driven by the mother. When she approached the car she said hello to the mother. The mother thereafter said: “I need your help. I want to get back with [the father]. I want to get away from [Mr HH] and all the troubles because I know too much about him ([Mr HH]). He will be looking for me. I really want to be back with [the father] and the kids.” Thereafter she described observing behaviour between the father and the mother which indicated that their relationship had been reinstated.
Ms JJ has been one of the supervisors of the time that the mother spends with the children. She set out details of what she observed during those supervised times.
Affidavit of the father’s mother
On 15 September 2005 an affidavit by the father’s mother was filed. She says that she and the father have a very close relationship. She has supported him caring for the children since his relationship with Ms AA became problematic. She has been a regular visitor in his house since he has had children. She describes him as a good father. She has not observed her son be violent towards any of his children.
The mother, who the father’s mother called X, stayed with the father’s mother for two weeks as a result of her running away from her home. The father’s mother took the mother to a Department of Community Service’s office on the Central Coast and to the police. The mother was not 16 at that time.
After the parties married the father’s mother continued to visit regularly. She described a domestic environment in which the father performed most of the domestic chores. He also did most of the care for the children.
Sometimes the children stayed with the father’s mother to give the father and the mother a break.
Following separation, the father’s mother spent each second weekend staying with the father. She usually stayed until Wednesday.
The father’s mother is of the opinion, having observed the mother with her children, that she would not be able to cope in looking after the children by herself.
Affidavit of Ms II
On 17 January 2007 an affidavit was filed by Ms II. She is a long time friend of the father. She first met the mother when Child F was six weeks old. She described the father as devoted to his children.
Ms II visited the Stone family at their home once a week. They are members of the same church.
Ms II spoke of attending hospital with the mother when she attempted suicide on one occasion by taking too much medication.
Ms II described the father’s dedication to the children in glowing terms. She has seen him discipline the children by talking to them. He has “a naughty spot” for the children to sit as part of his discipline. This spot is in front of the fish tank in the lounge room. She has not seen him be violent to the children or to yell at them.
Affidavit of Dr GP
On 28 March 2007 an affidavit was filed by Dr GP. He is a general practitioner and has been treating members of the Stone family since about November 2000. He said that in that time he has treated the mother as well as the children. He has never made any note of observing, nor could he remember observing, any physical injuries such as bruising, burns or abrasions to either the mother or any of the three children. He said he regularly examined both the mother and the children. Had they presented with any injury or bruising he would have made a note of it.
He said that when the mother brought the children to see him, although only one might have required medical attention, she would ask him to examine all three. He said he found her unreliable as a historian on occasions, particularly providing the reason why she had brought the children to the surgery.
Having been informed that the mother alleges the father regularly assaulted her, Dr GP said that he did not notice any injuries in the time he has been treating the mother and that was a four year period over which she consulted him.
Dr GP has no concerns for the wellbeing of any of the children in the care of their father. He notes that their wellbeing appears to be better now than it was when the mother was part of the household.
He has had the opportunity to observe the children with their father and he says that they apparently love their father very much and exhibit appropriate affection towards him.
Dr GP said that he vaguely remembered Ms EE, also known as … or …, attending for consultations in the company of the mother in about late 2002 or early 2003. Dr GP said,
“I was concerned at Ms [EE’s] overall presentation. Ms [EE] was very withdrawn and did not often speak for herself in the course of those consultations. Rather [the father’s sister] spoke on her behalf. I was concerned that the explanation given for her injuries was not clear. I was concerned that she was mentally unstable. I suspected that she may suffer from schizophrenia and I was keen to have her referred to a psychiatrist for further examination. Having observed the interaction between [Ms EE] and [the mother], I did not see any indication that [Ms EE] was afraid of [the mother] or that she was being in any way controlled or manipulated by her. Rather I observed that [Ms EE] herself was very withdrawn and non-communicative and it was certainly appropriate that she was seeking treatment. At the time I had no concerns about her staying with [the mother] or the [Stone] family in general. [The father] was not present during any of the consultations and I do not remember him being present in the surgery at the time. Neither [the mother] or [Ms EE] mentioned to me any fear or concern in respect of [the father]. Neither [Ms EE] or [the mother] said to me that [Ms EE’s] injuries had been caused by [the father]”.
Dr GP said that during the four years that he was treating the mother he observed her with her children and in the presence of the father. He said at no time did he have any concern in respect of the wellbeing of the mother as a result of residing with the father. He said the mother had a number of opportunities to raise with any concerns she had about the father. She did not always attend accompanied by the father to the surgery. Dr GP felt that he had a reasonable rapport with the mother. He observed that the mother had no difficulties speaking for herself and was in fact “a rather outspoken young woman.”
Dr GP said that in all the consultations that he conducted with the mother, at no time did he suspect from her presentation or from the examination, that she was being physically or emotionally abused.
Dr GP is a general practitioner of 24 years experience.
Affidavit evidence of the mother
The mother filed an affidavit on 3 June 2005. She recites her marriage to the father on 5 May 2001 and alleges a separation date being 13 October 2004. She said that she grew up in central New South Wales with her mother, her twin brother and her sister. She said when she was eight years of age the family moved from central New South Wales to the Central Coast. That statement seems inconsistent with paragraph 35 of the statement made by the mother to police on 10 June 1996. That statement is Annexure “A” to the affidavit of the father.
In paragraph 35 of the statement of the 10 June 1996 the mother says: “When I was in either fifth or sixth class and mum, [brother] and I were living at [central New South Wales].” It seems to me unlikely, but not impossible, that the mother would be in fifth or sixth class (sixth class being the last year in primary school) and only be eight years of age.
The mother describes how she met the father. She said she met the father at the end of 1995 and on 26 February 1996, he spoke to her at a place where she was learning karate and said: “Your mum wants to give me $500 to get rid of you because she’s afraid you’ll tell the police.” Thereafter she says that the father encouraged her to go to school the next day and catch a taxi to his house. She said that she followed his instructions and took a taxi, together with two friends, to his house. She said he paid for the taxi.
The mother claimed that during the cohabitation she was the primary carer for the children. She claimed that she was never allowed to be alone with the children. She said either the father or one of his two sons would be with her.
The mother claimed that she was severely assaulted and regularly assaulted throughout the relationship. She said she received bruising to her body. She said she reported it to police in 1997. She claimed that she went to hospital on many occasions.
She claimed that the father had inserted Dencorub inside her vagina and told her it was because her brother had raped her and it was her fault. This allegation of inserting Dencorub into her vagina has also been made by the mother to police in her statement in 1996 as previously referred to.
The mother said that on occasions the father tied both her hands behind her back, tied her feet together and put her on her stomach in the bath. She said he turned the tap on and left the tap running over her head. She said he punched her.
Being tied up was one of the allegations the mother made in her statement to police in 1996. She described being tied to a pole and the pole hung between two lounges. She said her mouth was tied with her sock. Again the allegation of the use of a sock in assaults is common to the statement she gave to police in 1996. She said that she was taken to the Hospital by the father in 1996 after he had choked her and she had blacked out. In 1997 she said the father whipped her with a cord. She claimed that in early 1997 the father had belted her with a pole which he kept under his bed. She said he belted her “all over her body.”
The mother claimed that in 1998 she ran away from the father because she was scared of him. She said he punched her before he left the house to take the children out. She only stayed away for one night and then returned. She said the father had said to her: “I got my brother to shoot my X in the courtroom at […].” She withdrew the complaint she had made to the police about the father the night before.
The mother details continuous assaults upon her by the father and referred to an occasion which appeared to be somewhere between 1999 and 2001 where she said the father had driven a car over her right foot. She claimed to have seen Dr GP. She said there was bruising to her foot. Dr GP gave evidence and has no record of ever observing bruising to the mother, or being concerned about any presentation that she made to his surgery.
The mother said the last time the father assaulted her was on 13 October 2004. The mother alleged that on 13 October 2004 the father had urinated on her in his bedroom, as well as urinating on the walls of the room. Again this is a similar allegation to that made by the mother to the police in 1996 in respect of her brother. The mother went to see a doctor at … Medical Centre. He ordered a CAT scan which she undertook. The report is dated 12 October 2004, the day before the mother said she suffered the injury which gave rise to the consultation.
The mother claimed that the father had often been violent to his older two children, Child C and Child B. She said he often punched them with a closed fist in the head. The mother blamed the father for the September 2004 injury to Child B’s testicles. She said he often slapped or punched the children across the face if they annoyed him or stood in front of the television. She said he kicked them on their legs or body and he threw them onto their beds. He locked them outside the house on the verandah. He often sent them to bed without dinner. She claimed that in August or September 2004 he had pushed Child G onto the fire place and burnt his arm. In relation to that allegation the children have alleged the mother did this and not their father. She claims that he threw the children’s and her food to the floor at dinner time. She said that the children and herself were then required to eat the food off the floor.
The mother said that following separation the father would not permit her to speak to the children. The mother claimed that she telephoned the children four or five times each day. She said the father often threatened to kill her or the children if she didn’t go back to him.
The mother said that on 31 December 2004 she had a conversation with the father and the children. The father said: “I’m driving your car.” The mother said she could hear the children in the background and the car. The father then said that he was driving the car at 120, 140, 160 kilometres an hour. She said she could hear the car roaring in the background. “The kids were screaming.” The father said: “I’m on 230”.
The mother said that in January 2005 the father made a number of very serious death threats to her. She set out details of these threats in her affidavit.
On 8 January 2005 the mother said she attempted to take her life. She cut her wrists with a blunt blade and then rang her friend. She was taken to south Sydney Hospital.
On 17 January 2005 the mother made a complaint to police. She obtained an interim AVO on 27 January 2005. The mother said that in February 2005 when she called the father’s house, a woman who she identified as Ms NN answered the phone and then prompted Child E to ask her some inappropriate questions.
As an illustrator of the extraordinary facts in this case, the mother in para 89 of her affidavit, said that on 5 February 2005 the father had rung and asked her questions about being pregnant with Child F and Child F’s delivery. The mother said,
“When I had an ultrasound for [Child F] I was told I was having twins (I am a twin myself) and one of the babies had spina bifida. I gave induced birth to [Child F] and was given a needle but still thought I was having labour pains. [The father] was not there during the birth but when I woke up [the father] walked in and I was handed [Child F]. In the phone call [the father] wanted to know if I had given birth to two girls. I thought he was joking at first.”
The mother then says that the father told her he had recently met a woman who had a daughter who looked like Child F. The woman claimed to have had an affair with the father. He said she paid for him to have a DNA test with her daughter. He said the result showed that the daughter was his.
The mother said she was shocked by this. She said that she heard the other child speak and she did sound just like Child F. On 7 February 2005 the mother said she was speaking to the children and thought she was speaking to Child F who was not answering as normal. She said the father then took the phone and said it is not Child F.
The mother raises concerns about the school attendance for the children and asserted that from October to December 2004 Child E did not go to school.
The mother complained about experiencing difficulty in being able to speak to the children on the phone. She alleged that the father was frustrating her attempts to speak to the children and influencing the children against her. She set out many incidents of telephone calls in which she could not speak to the children or she was only able to speak to them for a matter of seconds.
The mother set out details of threats she said were made to her by the father including on 13 February 2005 she claimed the father said to her “I will get you and kill you.” On the same day she said she received a telephone call from the father where he said “I know where you live. I am going to get you and when I get you I am going to kill you.” The mother made a complaint to the police about that threat.
The mother admitted that she had attempted to commit suicide on two occasions.
The mother used her affidavit to deny many of the allegations made by the husband about her. At paragraph 134 of her affidavit the mother said the following: “[Ms EE] was a friend of a friend of mine and she came to live in our house for two months as she needed somewhere to stay. [The father] belted her, burnt her, made her eat cockroaches, jammed her fingers and raped her. She was taken to Dr [GP] on one occasion for her injuries.”
The mother denied she has been in a relationship with “[Mr HH] or […]” in January 2005. Her subsequent evidence is that she later formed a relationship with Mr HH.
The mother gave evidence about the events of 16 May 2005. In short she claimed that she was abducted by the father near her residence in Sydney. She was taken back to the father’s residence. Prior to leaving Sydney she had complied with the father’s direction to pack up her belongings and put them in the car. Upon arriving at the father’s home she unpacked the car with him and placed her belongings in “[Sister A’s] room.” She played with the children. She bathed the children. Then she claimed that the father had sex with her against her will seven times during the night. When the children went to school the next morning she said he dragged her into the bedroom and had sex with her again against her will. She said the father then made her ring her solicitor and inform the solicitor that she wanted to discontinue the proceedings. She said he made her ring Constable … at a Sydney Police Station and a Sydney Local Court to cancel the apprehended violence order. Following those phone calls the mother said the father had sex with her again against her will. The mother describes how she escaped from the father.
There is other evidence about this incident including evidence from police involved in the investigation of the mother’s claims of rape by the father on this occasion. The evidence is that the mother declined to have DNA testing carried out on the basis that the father was not the only person she had sexual intercourse with during the relevant time. She told police that she had sexual intercourse with her boyfriend (Mr HH).
The affidavit of Ms KK
On 24 February 2005 Ms KK signed an affidavit which was relied upon by the mother. She said that she had met the mother on 13 October 2004. She said that she had loaned her mobile telephone to the mother to make a call to the children. She then claimed: “as a result [the father] rang my phone approximately 20 times a day from approximately October 2004 to the end of December 2004.” She said that she had conversations with the father where she asked: “did you hang her like a pig between couches” (this is a reference to the mother). She claimed the father answered: “yes”. She asked him “did you pee on [the mother]?” he replied “I did. I know I shouldn’t have done it but I did.” She said that on another occasion before Christmas 2004 the father said to her “when I’m in my house I’m going to kill the kids and I’m going to kill myself.” In another conversation she said that the father had said to her “I tied her up in the bath and had the water running to kill her.”
The affidavit of Mr HH
On 9 June 2005 Mr HH signed an affidavit which was relied upon by the mother. He said that he had employed the mother during 2004 from midnight to 6.00 am as a part time cleaner. He claimed that the father rang the mother constantly and that he heard a conversation on the speaker phone where the father said, “you are screwing around, you are stuffing me around, you are fucking [Mr HH], I’ll fix you up when you get home.” He said that on 12 October 2004 he heard the father shouting at the mother on the phone. He said he followed her home because she complained about being scared. He parked around the corner and waited for approximately half an hour.
At about 7.00 or 8.00 am in the morning the father phoned him and said “[the mother] didn’t come home last night.” There was further conversation. The father said “[the mother] is accusing you of rape”. He said “but I don’t believe her, because when she got home I cuddled her and stuck my finger up her vagina and she wasn’t wet.” The father said the mother was proposing to make a complaint about Mr HH to police. He said he would endeavour to dissuade her.
The following night, Mr HH saw the mother and said that her face was all bruised and that she had a swollen forehead. The mother told him that she wanted to leave the father. He drove her to Sydney and paid for her to stay at a hotel. He gave her money to buy some clothes and food. Thereafter he claimed that he had numerous phone calls from the father, approximately five to six per day. On one occasion the father said “if I catch you together I will kill you.” Mr HH denied any relationship and claimed to be happily married.
In late January 2005 Mr HH said that he had a telephone call from the father who said “[the mother’s] trying to get you charged for murder, we can get together and talk about it.”
In October 2006 Mr HH signed a witness statement. He said that in November 2005 his ex-wife left the former matrimonial home. He relocated to a four bedroom home in south Sydney. He has two children, a girl and a boy, aged eight and six years. He has sole parental responsibility for the children when they reside with him.
The mother commenced living with Mr HH sometime in early January 2006. She cares for the children whilst he works fulltime. He and the mother are now engaged to be married. The mother performs all of the maternal roles in caring for Mr HH’s children and the house. His children now call her mum. He offers to take on the role of surrogate father for the children should they commence residing with the mother. He says he has an affinity with the Aboriginal people.
Further evidence of the mother
On 19 December 2005 the mother signed a proof of evidence form which was tendered in the proceedings. She set out details of her contact with the children in this statement. She claimed that she continues to receive threats to her person and she believed they came from the father. She said that the father had instigated proceedings which gave rise to an apprehended violence order being issued against her. She said she did not defend the application.
The mother said that at recent contact with her children they have said to her: “chester chester child molester”. She has taped telephone conversations with the children. The children call her “X” and not mum.
The mother entered the affidavit of Ms JJ sworn 3 August 2005. The mother largely denies the evidence of Ms JJ.
The mother set out material in reply to the father’s affidavit sworn 8 June 2005. The mother answered the allegations made by the father in relation to “the petrol bombing” or “firebombing” of his residence. The father had alleged that the mother was behind this incident. She denied it.
The mother answered further allegations by the father’s sister. She denied many of her assertions. She claimed that she was the primary carer of the children and that she was responsible for doing the major of the housekeeping. She claimed that the father’s sister was witness to an assault upon her by the father.
The mother denied that she made any adverse statements about the father to the children at any time. She claimed that she had moved address recently because the father had been “stalking me.”
The mother answered the evidence of the father’s mother. She denied much of the information contained in the father’s mother’s affidavit. She claimed that the father’s mother had witnessed the father hit her and then hit the father’s mother. She said that the father’s mother had witnessed the father belt the mother. She said that she had shown the father’s mother bruises on herself, created as a result of assaults by the father.
The evidence of Ms MM
The mother relied on a “statement of a witness” made by Ms MM on 15 February 2005. She said that she had stayed with the father for nearly three weeks following 14 January 2005. During that time she made observations in relation to the father and the subject children and she also heard matters. Ms MM alleged that the father had told her the mother had molested Child B and Child C. He told her that he had observed the mother place secretions from her vagina on Child G when he was two years of age. He told her that he planned to kill the mother around Christmas time. He was proposing to push her off a railway station platform and was in the process of being about to push her when an Asian man came onto the platform. The father spoke of making the mother ill and having her in a wheelchair. He spoke of torturing her. During a conversation between Child E and his mother on the telephone Ms MM heard the father ask Child E to ask his mother about a male person the mother had supposedly been associating with. He told her that he would do whatever it took to get the mother locked up. He was trying to find out where she lived.
On one occasion Ms MM said that she witnessed a conversation between the father and another man near a bus stop on … Street. When she asked the father what the conversation was about the father said “he’s getting me a gun to kill [the mother].” She said that the father had told her the day before he was going to get a gun.
Ms MM said that she was threatened by the father.
Ms MM said that the father called the police to the house and told them a story. He said that Ms MM had threatened to kill herself and also her children. Ms MM said that the police tried to “schedule” her but … (which is the name of the place) told her there was nothing wrong with her.
Further evidence of the mother
On 31 October 2006 the mother signed a further witness statement for the proceedings. This statement was largely directed to the time she was spending with the children post separation. It was made at a time when the father’s sister A and Ms JJ were supervising the time the children spent with their mother.
The mother scheduled a list of complaints about failed telephone contact between herself and her children.
Affidavit evidence of the Director General
The affidavit of DOCS Officer D
On 27 June 2006 DOCS Officer D signed an affidavit. DOCS Officer D is a child protection caseworker specialist. She is employed by the Department of Community Services. She has been employed by the Department since August 2003. She holds a Bachelor of Science (Psychology) Degree. She had been previously employed for five years for the Department of Juvenile Justice. She had been asked to carry out a review of all the material relating to the children Child E, Child F and Child G. She conducted an interview with the children on 24 February 2006.
She said,
“In my interview with [Child F] she presented as healthy and age appropriate in her physical appearance. She was easily engaged and communicates readily. She presents as cognitively age appropriate with no evidence of delay. I found her to be authentic and non-evasive in her responses to me. [Child F] presents as secure in her environment…she described quite confidently her routines in the home and identifies her father as the person responsible for meeting her day to day needs.”
When questioned about her mother Child F could not identify positive attributes in her mother. She referred to her mother as X.
In relation to Child E, DOCS Officer D reports that he presented as age appropriate in his physical appearance. He was easily engaged and communicated readily. He presented as cognitively age appropriate with no evident delay. He presented as having a polarised view of his mother (negative) and father (positive). He could not identify any positive attributes in his mother. He discussed his many concerns regarding his mother.
On 7 March 2006 DOCS Officer D in the company of DOCS Officer A conducted a home visit for the purpose of interviewing Child G. Child G presented as an age appropriate three year old. He appeared healthy, well dressed and active. He was more intent on playing than engaging with the interviewers. He seemed to be affectionate to both his father and his Aunt A. This affection was reciprocated in an authentic manner.
DOCS Officer D said, “from a child protection point of view I am concerned about aspects of the mother’s ability to safely supervise contact and respond appropriately to the children’s behaviour.” She spoke of an occasion when the mother did not supervise Child F and Child G when they were in the water because she was arguing with Child E.
The affidavit of DOCS Officer A
On 27 June 2006 DOCS Officer A swore an affidavit. DOCS Officer A is employed by the Department of Community Services as a child protection caseworker. At the time of the swearing of the affidavit she was the caseworker assigned to the day to day responsibility for casework on behalf of the Department in relation to Child E, Child F and Child G. She annexed to her affidavit copies of supervisors’ reports provided by Centacare, relating to the supervised contact between the mother and the subject children. She said that after 25 March 2006 Child E did not attend on these occasions. The affidavit covered difficulties experienced by supervisors, the mother and the father in arranging enjoyable time for the children to spend with their mother.
The affidavit of DOCS Officer B
On 20 October 2006 DOCS Officer B signed an affidavit. DOCS Officer B is a casework manager employed by the Department of Community Services. She is required to supervise the caseworker in the child protection casework of children. In her capacity she had access to the Department’s file on computer in relation to the Stone children. She annexed to her affidavit an assessment of the Stone children, their father and their mother. As a result of the assessment the Department formed the view that parental responsibility should be allocated to the father with supervised access to the mother.
On 8 September 2006 a report was prepared by DOCS Officer D which was an updated review of placement and contact report. A copy of that report was annexed to DOCS Officer B’s affidavit. As a result of that report DOCS Officer B said the Department formed the view that parental responsibility should be allocated to the Minister with supervised access to the father and the mother.
DOCS Officer B said that on 22 September 2006 the Joint Investigation and Response Team (JIRT) conducted an interview with Ms DD’s child, the child K. A transcript of that interview was annexed and marked as letters C and D.
The conclusion to the review of placement and contact report stated that the children should not reside with either of their parents. The report said: “the fact that the parents are both consumed with their disturbing life stories is a potential risk of harm to the children.” The reporter said: “I am unable to explain how the children present as well attached to the father and functioning well at the time of my interviews. The children did not disclose any concerning child protection issues when I interviewed them. I did not observe any behaviour that would be indicators of current harm other than their discussion regarding their negative perceptions of their mother. I would expect however on the dynamics outlined previously, on the material before the Court, on the parents own disclosure to me, that the likelihood of these children being at risk is high and that harm will at some stage in the future would be highly likely.”
The reporter then says,
“I base my recommendations on the following critical points:
1. The mother’s historical risk factors and her current presentation of limited parenting capacity.
2. The father’s confirmed sexual assault perpetrator status on the Department’s database.
3. The father’s current relationship with another person whose children are currently the subject of care proceedings.
4. The current allegations that the father has sexually and physically assaulted children.
5. The father’s history and pattern of dysfunctional relationships and the father’s inability to accept responsibility.
6. The significant number of child protection reports pertaining to the children that would ordinarily precipitate action in the Children’s Court.”
In the transcript of the interview with Ms DD’s child K she claimed that the father, Mr Stone, had twisted her arm. The medical evidence provided to the Court in relation to the child is that she sustained severe damage to her arm. It should be recorded that the father denies causing this damage.
DOCS Officer B says that on 22 December 2006 the JIRT team also conducted an interview with Ms DD’s child J. A transcript of that interview was attached.
I should note at this stage that the audio visual recording of this interview has been tendered into evidence in Court and I have viewed that interview.
The transcript of the interview with the child J and the video recording itself is a very disturbing piece of evidence. In that interview, amongst other things, she claimed that the father had inserted his finger into her vagina. Upon further questioning about the incident the child J was unsure whether the father’s finger was inserted into her vagina but claimed he put his finger on her vagina.
The affidavit of DOCS Officer C
On 27 October 2006 DOCS Officer C signed an affidavit.
DOCS Officer C says that a home visit was made to the residence of the father as part of the investigation of concerns relating to Ms DD’s child K. The following sentence appears “Ms [DD] was reported to be in a relationship with [the father].” The other evidence in this case does not support a conclusion that the father and Ms DD were in any relationship other than one of friendship.
Having visited and observed the child K, Ms DD was served with a notice requiring medical examination under section 173 of the Children and Young Persons (Care and Protection) Act 1998. Ms DD, together with the children K and J, were taken to the Hospital. The child K was interviewed at the hospital and provided varying accounts of how she injured her arm.
Ms DD was interviewed and gave her version of what had happened. It involved the child K and Child F retrieving videos from a bedroom and the child K lifting weights to be able to retrieve the video. This explanation was later corroborated by the father in his evidence.
The child J was interviewed at the hospital. She spoke of the father telling her mother to make the children stand in the corner with their hands in the air as a form of punishment. The child J said “that is what he does with his kids.” The child J told the Departmental officers that when they arrived at the house to speak to the child K, the child J had been standing in the corner writing lines she had written 200 lines “I shouldn’t bend my sister’s arm back.” The child J claimed that she had not bent her sister’s arm back.
DOCS Officer C annexed a medical report in respect of the child K. The child K had bruising on her elbow and mild swelling and bruising near her eye. He had also disclosed that she had an injury to her humerus (broken arm). The Departmental Officers, acting on advice, formed the conclusion that the explanation provided by the mother of how the injury was sustained to the child K would not apparently explain the injury detected. The Officers told Ms DD that based on medical evidence the injury to the child K would have required quite considerable force such as only an adult could inflict. Ms DD then was adamant that the child J had caused the child K’s injury. It was because of that fact that she was making the child J write lines “I should not bend my sister’s arm back.” The children J and K were then placed in foster care.
The child K was then interviewed by the Departmental Officer. The purpose of the interview was to ascertain what had caused the injury to the child K’s arm. The child K claimed that the injury was caused by her arm “got twisted up my back”. She claimed this had happened at the father’s house. She was reluctant to say who had performed that act upon her.
In interview with Ms DD, she denied that she was in a relationship with the father but confirmed they were friendly. They had other information that Ms DD had claimed she was pregnant to the father.
DOCS Officer C confirmed that the Department has on records some 30 reports of the Stone children being at risk of harm. A number of these reports have alleged that the risk came from the father; however, none of those reports had been confirmed. DOCS Officer C said “[the father] is known to the Department to be extremely violent and a number of the reports received relate to domestic violence incidents involving [the father].” He said that in 1992 the Department received and confirmed a notification of sexual abuse by the father on his step-daughter, Stepchild L, who was then aged about eight years.
The Department was concerned with the sleeping arrangements when the child J stayed in the Stone house. She said that she stayed in the same room as Child C, who was a 15 year old male son of the father.
In interview, the child J said that the father had tipped a bucket of cold water over her. She said this happened on two occasions. She claimed to have been accused of stealing rent money in the sum of $160 from her mother. The money was found in her CD player. She was unable to say how the money got there, however she denied that she had taken. She had to write out between 100 and 300 lines “I should not steal money its wrong.”
In interview with the child K she alleged that the father had pushed her head into a toilet bowl because she was screaming at him. She told the JIRT officers that the father had twisted her arm up her back. She was unable to give any further contextual information about the incident. In interview she said that she had been touched on her “private part” but would not elaborate.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The father and the children are of Aboriginal descent. The father associates extensively with other members of his family who embrace the Aboriginal culture seriously. The children are otherwise still quite young.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
As referred to above the father and the children are of Aboriginal descent. The father involves the children in activities designed to support their connection with the aboriginal culture. It would be important for the children to be able to continue to learn of their ancestral heritage and association with the original inhabitants of this country.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents has demonstrated parental responsibility. The mother has demonstrated parental irresponsibility if her version of the facts are correct. She should never have left the children with the father if he was as dangerous as she has alleged. The fact that she did leave the children with him does detract from her version of fact.
The mother was observed to have difficulty in controlling the children when supervised contact took place.
The mother’s interaction with Child E in the presence of Dr Expert raises real concerns about her parental responsibility and competence.
(j) any family violence involving the child or a member of the child’s family
There are allegations by both parents of violence against the other and the children. I have referred to these allegations in these reasons.
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
The mother took out an AVO against the father. There were proceedings in a Sydney Local Court.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I will endeavour to make orders which will have reasonably long term effect.
(m) any other fact or circumstance that the court thinks is relevant
All the extraordinary facts of this case have been canvassed elsewhere in these reasons.
Sections 60CC(4) & (4A)
These matters, to the extent they are relevant have been canvassed elsewhere in these reasons.
Section 61DA
This is a case where it would be quite inappropriate to make an order for equal shared parental responsibility as the parents are quite incapable of having any level of communication or cooperation. It is a case where it would be desirable to vest in the Director General that responsibility, as will be referred to later.
Section 65DAA
The matters requiring attention as to the amount of time the parties should spend with the children I will address later.
Conclusion
This is without doubt the most extraordinary case I have ever had to decide. Extraordinary cases call for extraordinary results.
Although I have found in many instances of the allegations against the father that I cannot make a positive finding, I am alarmed by the weight of the evidence which is brought against the father. If the old saying of “where there is smoke there is fire” carries any weight then I have to say in this case I see masses of smoke. In other words although the findings against the father I have been able to make may be limited, I am convinced there are at least aspects of truth in all the allegations against him. I very much share the concerns of the Director General about the nature of the father and the type of parenting he can provide to the children in this case.
I agree with the submission of the Director General that the father appears to associate with vulnerable people and then at a later time there is a falling out with those people accompanied by allegations of violence and cruelty. At the very least this cannot serve well in terms of role modelling.
Already the father’s eldest son Child B has been in trouble with the law. The father claims he is now back on the straight and narrow.
As against all of the above, the children are assessed by Dr Expert to be closely attached to their father and appear to have no fear of him. There is nothing seen in the relationship between the father and the children which suggests poor parenting.
The three younger children have health problems in that they suffer from asthma. This leads to them missing school. They have also missed school because of matters associated with these proceedings. Otherwise their school attendance and performance appears satisfactory.
The father appears to be fiercely defensive and protective of his children at least to the extent that he allows the world to observe his parenting.
There seems to be a public perception that the father is a dangerous man. That he has connections with “the underworld”. It is apparently because of this perception that the mother’s mother asked him to dispose of the mother’s body. Other people interviewed by the Department of Community Services seem to show fear of the father. It seems it is well known that his former partner was shot at the Courthouse and the public perception appears to be that the father arranged for this to happen.
Whenever the father has allowed females to spend time in his residence it seems to lead to allegations being made against him. Further, other children appear to be at risk in the father’s residence.
There seems no doubt that the children will be traumatised if removed from his care. I have no doubt they will return to his care as soon as they can in the future. This would predictably lead to the children attempting to run away from the placements the Director General might arrange for them.
There is the lingering story of “the stolen generation” which the children well know from their grandmother. They clearly understand their Aboriginality. I fear for the consequences to the children if they are removed, even if placed with the best of carers.
The conclusion I reach is that the Director General should have parental responsibility for the children. If it were possible for me to commit the children to the care of the Director General as is permitted by State legislation I would do so with a recommendation that they be permitted to remain with their father under very strict circumstances. I propose to make orders allowing the children to remain in the care of the father under the overall supervision of the Director General. There are to be strict conditions attached to the children remaining in the care of the father. If the father fails to comply with those conditions then the Director General will, at his discretion, be entitled to remove the children and arrange other care for them.
Likewise in relation to the mother, I propose to allow the Director General to determine the nature and extent of the time the children should spend with their mother. I will set some recommendations but otherwise leave the matter to the ongoing supervising role of the Director General.
Should the Director General form the opinion in the future that the parental responsibility order which he will have should be changed then he has liberty to approach the court for the purpose of seeking further orders even though there does not appear to be any significant change in the children’s circumstances. There are matters of State resources and the interests of other children which may need to be accommodated in the future.
I will make orders accordingly.
The jurisdiction to make an order in favour of the Director General is found in Faulkner and McPherson v Rugendyke; Department of Community Services (1995) FLC 92-630; (1995) 19 FamLR 507 (1995); (1995) 120 FLR 64
The following is a summary of the case.
This was an appeal by the father and mother against Family Court custody orders of the trial judge which gave custody of their child to the Director-General of the Department of Community Services. The mother and father were in a de facto relationship in 1990, separated in 1994 and had two children, “N” (the younger child) and “B”. In 1994 consent orders were made for the children to live alternate fortnights with each parent. In January 1995, whilst the children were staying with the mother, the mother says she was unable to locate the father for changeover so the children stayed with her. However, during this time the younger child, N, was seriously injured. Charges were laid against the mother and her de facto husband regarding the injuries to N.
In response to the injury, the Department of Community Services removed N from the mother's care. The Department then filed a care application in relation to N, but not B (the older child). The Director General of the Department of Community Services was granted interim custody of child B by the trial judge in the custody proceedings and N was found to be in need of care and a temporary care arrangement continued.
One of the grounds of appeal was that the trial judge erred in granting interim custody to the Director General. This was based on the assertion that he was not a party to the proceedings and he had not sought such an order.
In addressing this ground of appeal the Full Court (Lindenmayer, Finn and Joske JJ) opined at p82,320-82,321:
It is clear, in our view, from the wording of s. 64(2), that it is not a requirement of that sub-section that one must be a party to proceedings, before the Court is entitled to make an order in one's favour under it. There must, however, clearly be evidence before the Court that the person in respect of whom the Court proposes to make such an order, is willing to accept that responsibility. It is apparent from the material placed before us that the Director-General was a person willing to accept that responsibility. It should, however, be emphasised that, in the normal course of events, a person who obtains an order pursuant to s 64(2), will and should be a party to the proceedings. However, as stated previously, the reason that the Director-General was not a party to these proceedings appears to us to have been in the nature of an oversight. The Director-General was represented before the Court, and that representative clearly signified to the Court his client's willingness to accept an order placing the child in his/her interim custody.
The next issue for the Full Court to consider was in regard to whether the Director General of the Department of Community Services was a “person” within the meaning of s 64(2) of the Act. The Full Court noted that “person” was not defined under the Act and instead sought definition of “person” from s 22(1) of the Acts Interpretation Act 1901 which stated that person can include a body politic, corporate entity or individual (at page 82,321). The Full Court then turned its attention to reconciling the Acts Interpretation Act definition of “person” with the definition of “Director-General” under the State Act (at page 82,321);
Under the Children (Care and Protection) Act (NSW) (“the State Act'') the term “Director-General'' is defined, by s. 3(1), to mean “the person for the time being holding office or acting as the Director-General of the Department'' (emphasis added). By the same sub-section ``the Department'' is defined as “the Department of Youth and Community Services'' (now the Department of Community Services). Accordingly, the Director-General of the Department, although at any given time a particular individual or natural person, is also a statutory persona, akin to a statutory corporation, having a continuity of existence and legal identity separate and distinct from that of the particular individuals who happen to fill that office from time to time. As such, it would seem to constitute a “person'' within the definition of that term in the Acts Interpretation Act (supra).
Furthermore, the State Act itself certainly envisages the possibility that the Director- General might be granted custody of a child under the Family Law Act because s. 3(1) thereof contains the following definition of a “protected person'':—
“A child of whom the Minister or the Director-General has the custody or guardianship pursuant to an order in force under the Family Law Act 1975 of the Commonwealth.''
Accordingly, we conclude that the Director-General of the NSW Department of Community Services is a “person'' to whom custody of a child may be granted by the Court under s. 64(2) of the Act.
The Full Court then turned to the issue of the implications of granting “custody”/ “guardianship” to the Director General of the Department of Community Services and the exercise of that custody and guardianship. In giving opinion regarding this issue the Full Court discussed walking the line between Commonwealth and State jurisdiction. The Full Court held that a trial judge exercising jurisdiction under the Act can make a parenting order in favour of the Director General of the Department of Community Services but this is conditional. It is conditional on the understanding that in making such an order that the Director General, being a creature of the relevant State Act and deriving their powers from it, can determine with whom the child lives with or resides. If the Court seeks to make an order beyond granting parenting orders in favour of the Director General it would be operating beyond its power and not respecting the relevant State Act. The following extract from the opinion of the Full Court highlights this principle and the rationale behind it (at page 82,321-82,322):
In the case of an order for custody made in favour of the Director-General of Community Services, it is quite clear that the person for the time being filling that office would have no intention of personally exercising daily care and control of the child but that he/she would delegate this task to a responsible third party. Such has been the situation in this present case. This Court was concerned as to whether an order which is limited to custody confers upon the Director-General rights which are broad enough to empower him to place the child in the daily care and control of a third party unknown to and unapproved by the Court. However as this matter was not argued before us we do not regard it as necessary or desirable that we should express any final conclusion in respect of it.
The answer, however, appears to be provided, again, by the State Act which creates the persona of the Director-General. As we have already noted, by s. 3(1) of that Act a child of whom the Director-General has custody, pursuant to an order in force under the Family Law Act, is a “protected person'' for the purposes of the State Act. By s. 91 of that Act, “the Minister'' (i.e. the Minister of State of the New South Wales Government having responsibility for the operation of that Act) “shall provide for the accommodation, care and maintenance of... protected persons''. The same section gives the Minister wide powers in relation to the means by which such accommodation, care and maintenance may be provided, including the placement of the protected person in the custody of a person in charge of a non-Government organisation or in the custody of any person approved by the Minister, being a person who is willing to undertake that custody.
It appears to us that if a court exercising jurisdiction under the Family Law Act grants custody of a child under that Act to the Director-General, who is a creature of the State Act, it must be taken to do so in full knowledge of the effect, under the State Act, of such an order, including the effect of the sections to which we have referred.
Accordingly, for the purposes of this case we conclude that an order for custody in favour of the Director-General was sufficient to empower that persona, acting on behalf of the relevant Minister, to make such arrangements as he/she saw fit for the daily care and control of the child, including the delegation of that task to a third person approved by him/her, and did not oblige the Director-General for the time being to personally undertake that daily care and control.
This decision was later referred to in the following case, Birch & Gough & The Minister for Health Family & Children's Services, Northern Territory [1998] FamCA 1945.
In this matter the children’s welfare department of the Northern Territory sought orders under the Family Law Act for custody of two children where both parents had questionable capacity to look after the children. Warnick J cited the decision in Faulkner and McPherson v. Rugendyke (supra) regarding the Court’s power to make orders in favour of a Minister of Government;
After receiving helpful submissions from the Solicitor for the Northern Territory on behalf of the Minister, and from Ms Guerin for the Children’s Representative, I am persuaded that there is power to make a parenting order under the Family Law Act in favour of the Minister (see in particular Faulkner and McPherson v. Rugendyke; Department of Community Services (Intervenor) 19 Fam. L.R 507 at pp.511-513).
However, the Act was different at the time the decision in Faulkner and McPherson v Rugendyke; Department of Community Services was decided.
Under the repealed s 64(2) of the Act parenting orders could be made in favour of the child’s parents or other persons. Section 64(2) provided:
64(2): Without limiting the generality of sub-section (1), in proceedings in relation to the custody, guardianship or welfare of, or access to, a child, the Court may, if it satisfied that it is desirable to do so, make one or more of the following orders:
(a) an order placing the child in the custody of any person or of any 2 or more persons jointly (whether or not that person or any of those persons is a parent);
(b) an order placing the child in the guardianship of any person or of any 2 or more persons jointly (whether or not that person or any of those persons is a parent);
(c) an order granting to any person (whether or not that person is a parent) rights of access to the child.
Pursuant to s 31 of the Family Law Reform Act 1995, Part VII of the Family Law Act was repealed in 1995 and a new Part VII inserted. In doing so, s 64(2) was replaced by s 64C. Section 64C provides, inter alia:
64C: Parenting orders may be made in favour of parents or other persons:
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
The repealed s 63(C)(1) provided as follows”
63(C)(1): Proceedings under this Act in relation to a child may be instituted by:
(a) either or both of the parents;
(b) the child; or
(c) any other person who has an interest in the welfare of the child.
In comparison to the repealed s63(C)(1), s 65C provides the gateway for who can apply for a parenting order, including under s 65C(c) “any other person concerned with the care, welfare or development of the child”, hence broadening the previous provision of s 63(C)(1)(c) regarding other persons:
65C Who may apply for a parenting order
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Given the decision in Faulkner and McPherson v. Rugendyke; Department of Community Services (supra) it seems that if I make an order for the Director General to have parental responsibility for the children I should not encroach on the powers and responsibilities of the Director General by then specifying what time the children should spend with each parent. I do not necessarily accept that given the broad changes to the Act since the decision in that case the same determination would be made today. In particular the following provisions appear to stand out for me. Sections 60B, 60CC(2), 61DA, 65DAA, 60CA and 65AA. All those sections highlight the necessity to endeavour to create circumstances where the children may be permitted to have a meaningful relationship with each parent.
It seems to me in those circumstances that I could require the Director General initially to place the children with the father for their day to day care subject to other arrangements which the Director General may put in place for the children to spend some of their time with their mother. Every reasonable step should be taken to create the circumstance where the children might be able to continue to live with their father provided they remain safe in that environment.
Should the Director General obtain any further evidence that raises a concern about any of the subject children being harmed by their father then he should remove the children forthwith from his care. If necessary the Director General could make an application either to this Court or the relevant State court for orders to facilitate that action.
It should be remembered that the Director General became a party in these proceedings at a time when he was supporting the making of an order that the children live with their father. At a later time he changed his position to that put at the conclusion of the hearing. Had the Director General been of the view that the children should be placed with the Director General at the time the matter first came before this court I would have required that he commence proceedings in the relevant State court. He would no doubt have done so without any requirement from me.
I certify that the preceding one thousand and forty one (1041) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 24 September 2008
Key Legal Topics
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Family Law
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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