Swain & Lorne
[2023] FedCFamC1F 445
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Swain & Lorne [2023] FedCFamC1F 445
File number(s): WOC 391 of 2019 Judgment of: CHRISTIE J Date of judgment: 1 June 2023 Catchwords: FAMILY LAW – FINAL PARENTING – Where the parties have competing applications about with whom the children should live - Parental responsibility – Where each party seeks an order for sole parental responsibility – Parties unable to communicate with each other – Where parties communicating is not in the best interests of the children – Orders designed to avoid contact between the parties – Where the issues narrowed during the course of proceedings – Family violence – Unacceptable risk – Children’s exposure to family violence – Whether the children are at an unacceptable risk of harm in the care of either parent – Where the father has previously been assaulted at changeover – Where the mother and her partner are convicted of assaulting the father – Where interim orders prevent contact between the mother’s partner and the children – Whether the children having contact with the mother’s partner places them at an unacceptable risk of harm – Parenting capacity – Drug use – Where the parties at various times have used illicit drugs – School attendance – Where the children have previously had significant periods of non-attendance. Legislation: Family Law Act 1975 (Cth) ss 68B and 69ZT Cases cited: Isles and Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Division: Division 1 First Instance Number of paragraphs: 110 Date of hearing: 28 April – 4 May 2023 Place: Sydney Counsel for the Applicant: Mr Iuliano Solicitor for the Applicant: Duffy Law Group Counsel for the Respondent: Mr MacPherson Solicitor for the Respondent: Stanford Solicitors Counsel for the Independent Children's Lawyer: Mr Havenstein Solicitor for the Independent Children's Lawyer: Christina Lam & Associates ORDERS
WOC 391 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SWAIN
Applicant
AND: MS LORNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
1 June 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother, Ms Lorne, have sole parental responsibility for the children, Y born 2011; Z born 2012 and X born 2014 (“the children”).
2.The mother shall not change the children’s place of residence outside a 75km driving radius from the father’s current home at Suburb O without the consent in writing of the father, Mr Swain.
3.Within 28 days the mother shall do all acts and things and pay all fees (if required) necessary to amend the birth certificates of the children to record Mr Swain as their father.
Live with
4.The children shall live with the mother.
Spend time with
5.The father shall spend time with the children as follows:
(a)From the date of these orders, during school terms, each weekend from after school, or 3.00 pm if not a school day, on Fridays until before school on the following Monday morning, or 9.00 am if not a school day.
(b)Order 5(a) herein is suspended:
(i)During school holidays;
(ii)On the weekend of mother’s day;
(iii)On the weekend following week 3 and week 7 of each school term; and
(iv)One further occasion each school year nominated by the mother, to allow the children to attend a special event, provided the mother gives the father 28 days notice in writing.
(c)During school holidays, the children spend time with each parent equally as follows:
(i)In the holidays between school terms 1, 2 ,3 and 4:
A.In even numbered years with the father for the first half commencing after school on the last day of school term until 10.00 am at the midway point of the school holidays and then with the mother for the second half until the children return to school.
B.In odd numbered years with the mother for the first half commencing from after school on the last day of school term until 10.00 am at the midway point of the school holidays and then with the father for the second half until the children return to school.
(d)For the purpose of the implementation of Order 5(c), the NSW school holiday period shall commence at the conclusion of school on the last day that the children attend school for the term and the NSW school holiday period shall conclude at the commencement of school on the first day of term that the children attend school, and any pupil free days shall be included in the holiday time. In the event that there are an odd number of days, the parent who has the children for the first half of the holidays shall have the benefit of the extra day with changeover taking place at 5.00 pm on that day.
6.For the purposes of changeover, the father shall collect the children from school and shall return the children to that same location at the conclusion of his time. In the event that changeover is to take place on a non-school day, changeover shall take place at Suburb P McDonalds.
Communication between parents and children
7.The children shall have telephone or video call communication each Wednesday between 7.00 pm and 7.30 pm with the parent who does not have care to initiate the call to the other’s mobile telephone and the other is to facilitate the call by ensuring the children are available and their mobile phone is switched on and charged.
Restraints
8.Each party is restrained from:
(a)Denigrating the other party or a member of the party’s household to or in the presence or hearing of the children.
(b)Conveying messages through the children or using the children as a go-between to convey messages to each other.
(c)Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the mother, the father or any other member of either party’s household.
(d)Consuming or being under the influence of any illegal drugs during any time that the children are in their care and for the preceding 12 hours and shall immediately remove the children from the presence of any other person who is under the influence of illegal drugs.
(e)Drinking alcohol to excess while the children are in his or her care.
9.The mother be restrained from causing Mr B to come into contact with the father at any time.
10.The mother shall be restrained from causing Mr B to come into contact with the children until he is released from parole.
11.After Mr B is released from parole the mother is restrained from permitting Mr B to have contact with the children except as follows:
(a)For the first month after he is released from parole he may be present with the mother in the home occupied by the mother and the children between the hours of 3.00 pm and 8.00 pm on Tuesdays, Wednesdays and Thursdays;
(b)For the second month after he is released from parole he may reside in the home occupied by the mother and the children from 3.00 pm Tuesday until 9.00 am Friday;
(c)Thereafter, the restraint shall cease to apply and he may be present in the home occupied by the mother and the children at all times.
12.The mother shall keep the father informed in writing within 24 hours should there be any criminal matters arising with Mr B, including any non-compliance with his parole conditions, within the mother’s knowledge.
Communication between parents
13.Except in an emergency, the mother and the father shall only communicate by email or text message concerning the children and all communications between the parties shall be child focused.
14.In an emergency (including where communication is required within 24 hours), the parties may communicate with each other via text message and telephone call and all communications between the parties shall be child focused.
15.The mother shall keep the father informed at all times of the names and contact details of all organisations, schools and health care practitioners upon whom any of the children attend from time to time.
16.The mother shall keep the father informed as soon as is reasonably practicable of any medical procedures or operations to be undertaken upon the children prior to those operations or procedures being undertaken, except in the case of an emergency.
17.In the event of a medical emergency or hospitalisation the parent who has care of the children will ensure that the other parent is informed as soon as reasonably practicable and each of the parents will be permitted to attend any hospital where the children may be admitted during ordinary visiting hours.
18.The parties keep each other informed as to their email addresses and telephone numbers and shall advise the other party of any change to such in writing within 24 hours of such change.
Courses
19.If they have not already done so, each parent shall enrol in and complete the “1-2-3 Magic and Emotion Coaching” and “Circles of Security” parenting courses within 28 days from the date of these orders and provide to the other parent evidence of a Certificate of Completion as soon as practicable.
20.The mother shall take all reasonable steps to ensure that Mr B enrol in and complete the “1-2-3 Magic and Emotion Coaching” and “Circles of Security” parenting courses within 28 days from date of these orders.
General
21.This order is sufficient authority for the father to obtain any information from and speak to any health care practitioner who may treat the children from time to time and the father may provide a copy of these orders to such health care practitioner.
22.This order is sufficient authority for the father to contact the children’s school and receive any communication that parents would usually receive in relation to the children, attend and participate in meetings and the father may provide a copy of these orders to an officer of the children’s school.
23.Either parent is at liberty to provide a copy of these orders and/or the reasons for judgment to any therapist or support worker assisting the children or the parents.
24.The parents are entitled to attend on their children’s educational and extra-curricular activities to which parents are ordinarily invited as follows:
(a)In the case of weekend sport, during any period of time the children would ordinarily be in that parent’s care;
(b)In the case of school activities the father shall attend in terms 1 and 3 and the mother shall attend in terms 2 and 4;
(c)Notwithstanding Order 24(b), on each occasion where the school can accommodate separate meetings, then each parent is entitled to attend separately;
Otherwise, the parents shall not attend the children’s school activities or extra-curricular events unless they have the consent in writing of the other parent.
25.The mother shall continue to remain engaged with FF Service and comply with all recommendations as provided until otherwise advised in writing that such service is no longer required to be provided.
26.Each parent shall ensure that the children punctually attend school unless a medical certificate is obtained to explain the children’s school absence, for any absence of two days or more.
27.The mother do all acts and things necessary to make the children available to meet with the independent children’s lawyer and, within 14 days of such meeting, the independent children’s lawyer is discharged.
THE COURT NOTES THAT:
A.Pursuant to ss 62B and 65DA of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Swain & Lorne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final parenting orders in respect of the children: Y (born 2011), Z (born 2012) and X (born 2014) (“the children”). The children were independently represented in the proceedings.
At the commencement of the trial the applicant father, Mr Swain, sought orders that the children live with him and the respondent mother, Ms Lorne, sought orders that the children live with her. The father modified his position following the evidence to seek a continuation of the current interim position whereby the children spend each weekend with him. While his Amended Minute of Orders sought was couched as an alternate proposal, submissions on his behalf effectively focused on this alternate relief. This considerably narrowed the scope of the dispute such that the mother ultimately adopted the independent children’s lawyer’s (“the ICL”) minute – which provided for alternate weekend time between the children and the father.
BACKGROUND
The parents commenced a relationship in about 2000 or 2001 and separated in either 2013 or 2014. There were four children born to the relationship, although this application relates only to the three youngest children. The proceedings do not concern Ms W who is an adult.
Although the parties do not agree about the exact dates, it is generally accepted that Y has spent substantial time in the care of the maternal grandparents, although she currently lives with the mother.
Both parties have taken illicit drugs including after the birth of their children.
The mother alleges the father was violent towards her and in early 2015 a final Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother.
In late 2015 or early 2016 the mother formed a relationship with Mr B. The mother and Mr B have two children: V (born 2016) and Q (born 2020).
Z and X have always lived primarily with their mother. While they currently reside with the mother, Ms W and Y have spent time in the household of the father, the maternal grandmother, the maternal aunt and a former partner of the father.
The father commenced proceedings seeking parenting orders on 10 April 2019.
An incident occurred in early 2021 when the father attended at the mother’s home to collect the children to spend time with him. The father was assaulted by the mother’s partner, Mr B, and the mother was also involved. The mother was charged and Mr B was charged, resulting in a conviction and prison sentence. ADVOs were made with the father named as the protected person.
On 5 March 2021 orders were made for the children to live with the mother and spend time with the father each weekend from after school Friday until before school Monday.
In 2021 the father and his then partner had a child, S.
In early 2023, Mr B was released from prison. He lives separately from the mother as the interim orders of 5 March 2021 prevent contact between him and the parties’ children.
The mother lives in D Town and the father in Suburb O. Z attends school in T Town.
The distance between the parties’ homes is approximately 35 minutes by car. The distance from the mother’s home in D Town to T Town, where Z attends school, is approximately 25 minutes by car. The distance from the father’s home in Suburb O to T Town is approximately 50 minutes by car.
ISSUES
The case presented by both parents related to the following factual controversies:
(a)Is the mother’s parenting capacity compromised by drug use, mental health considerations or any other factor?
(b)Is there a risk to the children in the household of either parent as a consequence of family violence?
(c)Is the injunction which currently prevents the children from coming into contact with Mr B an order which should be confirmed at final hearing?
(d)Whether there is evidence to support the father’s proposal for full time care of the children?
(e)Is one or other of the parents better placed to meet the children’s specific needs?
(f)What consultation, if any, should be undertaken by the mother before she exercises her parental responsibility?
(g)What injunctions safeguard the children’s welfare?
THE LAW
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act requires that the orders to be made are orders which will operate in the best interests of the subject children.
The parenting orders to be made in this case include orders about long term decision making (parental responsibility) and orders about what time the children will spend in the household of each parent.
In determining what orders will be in the children’s best interests, the Act sets out a number of considerations. The primary considerations are the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence and the benefit to the children of having a meaningful relationship with each parent.
Priority is given to protection of the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence when weighing the evidence in the case.
Each party also seeks that the Court make injunctions for the welfare or protection of the children and in that regard my decision will be informed by the provisions of s 68B of the Act.
CONSIDERATION
The children the subject of this litigation are Y (12), Z (11) and X (nine). The children have complicated educational and medical needs.
Z was diagnosed with Global Developmental Delay and mild Autism Spectrum Disorder, Attention Deficit Hyperactive Disorder in the context of significant trauma, speech delay and unhealthy weight. He has learning and speech difficulties. In consultation with a paediatrician in 2021 he was reported by his father to be anxious and have sleep issues.
In 2022 Z commenced at PP School, a decision supported by both his parents, as that school is better equipped to address his educational needs than E School.
X was taken to a paediatrician by his father (and the father’s then partner) in 2021. The paediatrician, Dr CC, recorded under the heading “Impression and Recommendations”:
Has complex behaviours
Defiant behaviours
Problems with concentration and attention span
Learning difficulties
Sleep issues
Complex social situation, exposed to significant trauma in past.
The same paediatrician conducted a telehealth conference about Y and recorded:
Impression
Oppositional defiant behaviours
Complex social situation
Y will start high school next year.
Given the ongoing conflict between the parties and, as discussed below, the fact that each of the father and mother has engaged in family violence, I must approach the allocation of parental responsibility with these factors in mind. Neither party ultimately sought an order for equal shared parental responsibility. The mother adopted the ICL’s Minute of Order which allocated sole parental responsibility to her.
The father sought an order that allocated sole parental responsibility to the mother but also provided that she “must consult the father to obtain his view prior to making any decision affecting the long term care, welfare and development of the children”.
I am concerned that any requirement that the mother consult the father prior to making a decision may be productive of the very conflict that the Department of Communities and Justice (“DCJ”) identified as the most significant for these children. In 2021 DCJ workers indicated to the Court Child Expert, Ms BB, that they considered “the main issues of risk to be psychological abuse arising from Family Law Court issues, including exposure to parental conflict and manipulation of the children within the family law dispute”.
In cross-examination about whether the mother had told the father about the children’s dental appointments she indicated that this had not occurred, at least since the ADVO had been in place. When this topic was pursued the mother told the Court that she found it hard to communicate with the father. She said it is easier not to communicate. When challenged about this answer she said that the discussion of issues between the parties has caused the situation to escalate and so she has found it easier not to communicate. She acknowledged the importance of providing information to the father in the event of an emergency.
The father should be entitled to information about important long term issues relating to the children, especially educational and medical information. However, that information should be provided to him by the children’s schools or treaters and not by the mother. The father should be a valuable source of collateral information for the teachers, doctors or therapists so that any recommendations they make are based on input from both parents. There should be no bar to the father’s direct receipt of reports from the children’s schools or doctors. In the past the mother and the father have separately met with Z’s school to work out better educational options for him such as securing his place at PP School and this approach should continue.
The order the father seeks - that he be consulted prior to decisions - seems appropriate in theory but it is necessary to evaluate the evidence about past attempts to make decisions for the children to demonstrate why his proposal is unsound. A good example is the issue related to the failure on the part of the parents to secure National Disability Insurance Scheme (“NDIS”) funding for the child Z. The parents both wanted their son to get help. They both secured the assistance of a qualified paediatrician to assess Z and produce a report. On the report commissioned by the father it recorded that Z lived with the father. On the report commissioned by the mother it recorded that Z lived with the mother. This factual issue caused the process to stall. The consequence was that Z has not received funding for services which would be of advantage to him.
The mother saw this as an obstacle but did not instruct her solicitors to raise it, nor did she text the father. If the mother has sole parental responsibility and is not required to approach the father, there may be more chance that the children receive the assistance they require.
The mother has obtained NDIS funding for her children with Mr B (V and Q) and with an order for sole parental responsibility she should be able to also do this for Z.
While the mother is to have sole parental responsibility for long term decisions, it remains appropriate to make some orders about specific issues to ensure that her decisions do not adversely impact on the children’s time with and/or relationship with their father.
The mother indicated a desire to move and a desire to change the children’s schools. The mother said that she and Mr B would look for a home to share located between T Town and City DD. I accept that it is necessary for the mother to secure appropriate affordable housing. She says that Y is to start high school next year and it may make sense for all three children to attend school in reasonable proximity to one another. Given the father’s time is to take place on a weekend the children’s travel to and from school will be limited to Friday afternoons and Monday mornings. Ultimately, the mother appeared, during cross-examination to accept that City DD may place practical barriers in the way of school attendance and time with the father.
In submissions the parties agreed that this issue was best addressed by ensuring that the mother be permitted to enrol the children in a school provided it was no further than 75km from the father’s residence in Suburb O.
The children’s complex presentations, discussed above, were also relevant to the arrangements for where and with whom they would live. The children require regular attendance at school and attendance upon doctors and allied health professionals to provide them with the best opportunities to address their needs. The mother has had difficulties in the past in undertaking these tasks and, while the father has been conscious of the mother’s failings in that regard, he has not been able to address these issues in the time the children have been in his care.
I must have regard to the evidence of the children’s views about their living arrangements. When interviewed by the Court Child Expert most recently, Y and X confirmed their earlier wish to live primarily with their mother. The Court Child Expert attached weight to the consistency of this view. She indicated that subject to safety considerations those views should be a guiding factor. I accept that evidence having regard to their ages and their lived experience of time in each household.
As a consequence of the manner in which the issues for determination were narrowed by the parties’ final minutes of orders, I do not propose to resolve all the factual controversies that arose between the parties. The father has tacitly conceded by his application that the children are not at risk in the care of their mother – save and except for the risk posed by Mr B.
The mother’s application that the children spend each alternate weekend with their father – as opposed to each weekend – is premised on her view that the children want to spend some weekend time with her and the maternal family.
I accept that the children want to spend weekend time with their mother and the broader maternal family. I must balance this against the fact that the best opportunity for them to spend time with their father, the paternal family and their sibling, T, is on a weekend.
For reasons which I explored with the parties in submissions and as discussed below, I have found that the children will benefit from spending as much time as practicable in the household of each parent (subject to some protective orders) and this will be best achieved by orders which provide for time with the father on most (but not all) weekends in each school term.
Although it did not appear in the father’s affidavit, it emerged in cross-examination that the father has been employed by the same employer for somewhere between 6-8 years, working 5‑6 days per week starting at 5.00 am and finishing, depending on the roster, between 1.30‑4.30 pm Monday to Friday and between 5.00-11.00 am on Saturday. The father’s evidence did not address how this work schedule would accommodate full time care of the children. In cross-examination the father said he would have the help of his mother and sister but neither family member was on affidavit.
Risks to the children in the mother’s household
While the father’s agreement that the children should continue to live predominantly with their mother (and the agreement of the ICL to this proposal) lessen the scrutiny which is required, I must nonetheless satisfy myself that the children are not at an unacceptable risk of harm in the mother’s care and that any orders I make are designed to address identified harms.
The mother has a long history of illicit drug use. The mother tested positive on court ordered urinalysis on 11 September 2019. Since that time she has not tested positive and there is no evidence which undermines her assertion that she has abstained from drug use for the last three years.
The mother has struggled to meet the complex and competing needs of the children in light of her own vulnerabilities. The most significant objective indicator of these difficulties appeared to be the children’s failure to attend school.
The records about school attendance which came into evidence were not comprehensive but raised serious concerns. The Court Child Expert noted historical issues relating to Ms W’s school attendance. In 2017 Y was absent from school for over 30 whole days. In 2018 she was absent from school for a similar number of days. In 2019 she was again absent from school for nearly 30 whole days. In 2019 X was attending E School. In Semester 1 that year he missed nearly 30 whole days. By the end of that year he had had over 50 absences from school. In Semester 1 2022 when X was in year 3 at the same school he missed over 30 whole days of school. By the end of that year he had been absent for over 40 days.
The school raised the extended absences with the parents under cover of a letter dated mid‑2022. The letters related to the attendance of Y, Z and X.
The mother was asked about the children’s absences in cross-examination. The records suggest the problem is chronic but the focus of the questions was squarely on 2022. The mother was not able to identify a reason (beyond children get sick and the family had COVID-19) to explain the extensive time each child missed particularly in Term 1. There is no question that the mother would have faced challenges with childhood illnesses and the susceptibility of multiple family members to infect one another but her explanations do not account for the long term failure to ensure the children maintained appropriate attendance. I accept the father’s concerns in this regard were appropriate and well placed. Had the situation not been addressed in the later part of 2022 and in 2023 then I would have accepted that serious consideration would need to have been given to the children living with someone other than the mother if she was unable to ensure their attendance at school. The children’s education is important not just for the lessons which are learned in the classroom but because of socialisation, routine and the chance to become involved in the wider community.
I accept that the father has had genuine and well placed concerns about the children’s various educational, health and dental challenges. The mother acknowledged that she had experienced her own challenges in meeting the children’s needs for example, when Z was identified as having delayed development the mother agreed, in cross-examination, she was not able to meet her own needs and the children’s needs were as a consequence also undermined.
Ironically, the mother has been able to access services and begin to address some of her own vulnerabilities as a consequence of her conviction for the assault on the father. This has been the catalyst for her accessing the services which have enhanced her parenting capacity.
Both parties became quite upset in the witness box. This was in each case appropriate having regard to the parties’ difficult history.
The mother was asked about Y living at the home of the maternal grandparents. The mother said this occurred because Y had tried to protect her when the parents had been in conflict. The mother said she wanted Y to be shielded from the conflict. She said in hindsight she should have left the father and protected Y that way.
Records relied upon by the ICL and produced by DCJ suggest that the mother’s parenting was impacted by chronic use of an illicit drug. The reports included concerns raised by a number of family members and directly by the children.
One of the key factors which supports the making of the parenting orders the mother seeks is the objective evidence of work undertaken by her in recent times to address parenting capacity issues. The mother was assigned caseworkers from EE Service who she worked with for a period of 12 months. When that referral concluded the mother sourced additional support from FF Service. The notes from that service when the mother sought the referral in November 2022 read in part:
[Ms Lorne] said she her and the kids really benefitted with the program.
[Ms Lorne] advised she is physically able to function but could do with someone supporting her making sure she is on the right track. And there is non of this “he said she said business”
She would rather an open house and let people in.
She said she did lots work with [EE Service] especially with [Ms GG] at [EE Service].
They made glitter bottles for kids emotions
Created Family rules and routines
[Ms Lorne] said she just like to extra hand to help guide and support and help see thing in different ways.
(As per the original)
I also place significant weight on the opinion of the Court Child Expert in her updated report:
The evaluation as outlined in the Family Report dated 23 June 2021, paragraphs 113 to 131 is noted to continue to be relevant and considered largely unchanged. Although the criminal case regarding [Mr B's] and [Ms Lorne's] assault of [Mr Swain] has been determined, the issues raised in relation to family violence remains present as is outlined in the Family Report paragraphs 114 and 115. The mother's reported engagement in a professional support service as well as her apparent improvement in affect, insight and responsiveness within her updated assessment are considered an improvement. However this author suggests that the Court consider the information contained within this assessment with collateral information from service providers regarding whether or not [Ms Lorne] has consistently and genuinely engaged with the service and whether she has shown evidence of consistently adhering to plans regarding her children. This author suggests that particular focus be given to paragraph 119 which addresses the need for the children to have additional support.
One of the lessons the mother seems to have heard and understood was the importance of not engaging the children in the battle between their parents or engaging with the children about whose narrative is correct. I accept that the mother has not always exhibited this level of insight and DCJ, when recording their notes of a discussion with the mother in 2021, following the assault, noted: “[Ms Lorne] further defended their ([Ms Lorne] and [Mr B]) actions by saying that the children did not care as they do not like their father”.
It is necessary to evaluate the mother’s involvement in the assault on the father. When the mother was charged she minimised her involvement. She initially told the police she could not remember if she was involved in the altercation.
In her affidavit for trial the mother said: I did not jump on top of [Mr Swain]. I had no involvement in the incident and did not witness what occurred between [Mr B] and [Mr Swain] but for my observations detailed above. I cannot explain why I cannot recall this event clearly but I believe I blacked out.
The mother was convicted. Before me the mother accepted a level of involvement by her. I accept that the mother has engaged in conduct which meets the definition of family violence. For this reason, where at all possible, the orders I make will limit the occasions on which the parties will meet face to face and the occasions on which they will be required to cooperate.
In 2021 the mother was engaged with the family support service KK Services following the intervention of DCJ. This engagement and the subsequent services provided by her new support workers function, as DCJ intended, to keep the mother engaged with services who are mandatory reporters. I accept this is protective for the children in her care and functions albeit imperfectly to mitigate risk.
Mr B
The mother is engaged to Mr B and they have two children who live in the mother’s household. Mr B lives separately at present.
In early 2021 the mother and Mr B were living together at the home they shared with the children in D Town. The children were due to spend time with their father. The father attended at the D Town home to collect the children and there was a dispute between the mother and the father about whether the children wanted to accompany the father.
In the grounds for the resulting ADVO the police recorded:
The DEFENDANT is [Ms Lorne], 40 years of age.
The co accused is [Mr B], 35 years of age.
The PINOP is [Mr Swain], 41 years of age.
The location of incident is [C Street], [D Town] being the primary residence of the DEFENDANT and co accused.
The PINOP was previously in a defacto relationship with the DEFENDANT [Ms LORNE] for 14 years. That relationship ended about 7 years ago. As a result of that relationship the PINOP and the DEFENDANT have 4 children together, [Ms W], [Y],[Z] and [X].
The DEFENDANT has been in a relationship with the co-accused for about 6 years and they have two children together. The DEFENDANT, co-accused and the 6 children reside together at [C Street] [D Town].
There are Interim Family Law Orders in place between the PINOP and the DEFENDANT stating that the PINOP is to collect children [Y], [Z] and [X] from Friday 1fternoon until Sunday afternoon, commencing Friday 20 March 2020 and for each alternate weekend thereafter.
About 4.00pm […], the PINOP arrived at [C Street], [D Town] to collect the children as per the Family Law Court Orders. The DEFENDANT and the PINOP argued over 7 year old [X] not wanting to spend time with the PINOP. During the argument the DEFENDANT has called for the co-accused to come out the front and intervene. The PINOP attempted to collect the children, however the co-accused got in the way of the PINOP attempting to collect his children.
The PINOP pressed his forearm out to the side in an attempt to move the co-accused aside so he could get to his children. The co-accused grabbed hold of the PINOP and the PINOP grabbed hold of the co-accused around the upper torso, causing both to fall to the ground. The co-accused rolled over on top of the PINOP and the DEFENDANT has jumped on top of the PINOP. With the DEFENDANT laying on top of and holding onto the PINOP. The co-accused got to his feet and kicked the PINOP using his left foot twice directly to his face. The force of the impact caused the PINOPs nose to immediately become swollen and bleed profusely. The PINOPs left eye immediately became inflamed closing over on itself. The PINOP began to lose function of his jaw soon unable to clearly speak.
The PINOP retreated back down the driveway and sat on the grassed area near the road where he contacted 000 and his partner [MS F], who also contacted Police.
About 5.15pm […], Police attended [C Street], [D Town] and sighted the PINOP with extensive facial injuries. The PINOP's left eye was severely bruised and closed. The PINOP's nose was bent and was bleeding. The PINOP's mouth was also bleeding. The PINOP was having trouble speaking to Police due to his injuries, however he was able to provide the above version on body worn video. An Ambulance attended and conveyed the PINOP to [HH Hospital].
Police arrested and cautioned the DEFENDANT and co-accused who were inside their home at the time. The DEFENDANT and co-accused were conveyed to [Suburb O Police Station], where they were introduced to the Custody Manager and read and explained Part 9 LEPRA.
The DEFENDANT participated in an electronic record of interview […]. During that interview the DEFENDANT admitted to being involved in a verbal argument with the PINOP in relation to their children. The DEFENDANT states she only saw the PINOP on top of the co-the DEFENDANT and after turning around, saw the PINOP on the ground and the co-accused standing next to the PINOP. The DEFENDANT stated she did not see any injuries to the PINOP and did not see the co-accused kick the PINOP. The DEFENDANT could not recall if she was involved in the altercation.
The version provided by the DEFENDANT contradicts the version provided by her partner the co-accused. When questioned regarding the deficiencies, the DEFENDANT stated that she may have "Pushed" or "Pulled" the PINOP away from the co-accused but she cant remember stating, "It may have happened I just cant remember"
Doctors from [HH Hospital] were consulted and confirmed that the PINOP has sustained serious and complicated facial injuries which will require extensive surgeries. The 'PINOP has been ventilated to assist him breathing until his injuries are rectified. It has been confirmed that both of the PINOP's cheek bones and jaw have been shattered and further investigation is continuing in relation to his left eye.
The DEFENDANT is charged with the matter now before the Court.
(As per the original)
The children were all present at the property and while the evidence does not allow me to find with precision which children witnessed which parts of the incident I can safely find that all of them knew that the assault had occurred and were aware of the severity of the father’s injuries.
Mr B was convicted of the charge of reckless grievous bodily harm.
Mr B’s assault on the father is against a background of other convictions for assault in 2003 (while a juvenile) and 2007. It is acknowledged that his criminal record does not contain any similar offences between 2007 and 2021.
There was an incident between the mother and Mr B in early 2019. Police records of the event record that Mr B reported the mother as having taken their child V (then about two and a half years of age) and having said “good luck seeing your daughter if I kill her”. The mother denied having said those words. In the process of arguing, Mr B’s leg was injured – both the mother and Mr B confirmed to police this was likely a consequence of the mother closing the car door and injuring Mr B. No charges were laid.
The father’s affidavit material contained the following:
I am aware that the children have witnessed arguments between [Ms Lorne] and her current partner [Mr B]. I am further aware that Police have been called to the property due to domestic violence on a number of occasions.
It does not appear as though there has been any breach of the injunction preventing the children from coming into contact with Mr B so the father’s allegation must relate to the period before the injunction was made. Neither the mother nor Mr B were cross-examined about this allegation and no evidence was tendered to support it. I am unable to give any weight to the allegation in these circumstances.
The pre-sentence report for Mr B put him at medium risk for reoffending. It is self-evident that if Mr B were to reoffend in the same manner in the children’s presence this would be harmful. Since that pre-sentence report, Mr B has continued his engagement with Mr QQ and utilised the services of FF Service. The Court Child Expert assessed him as strongly motivated to parent to the advantage of his children. He gave evidence that he has learned different ways to respond to similar triggers such that he did not expect a recurrence of his actions on that day. I cannot conclude that there is no risk of similar conduct in the future but I am satisfied that the evidence and safeguards as a whole ensure the risk is not unacceptable.
Mr B is currently on parole – his parole conditions include random drug testing and counselling. Those requirements are protective. Apart from the assault on the father, one of the risks posed by Mr B’s presence in the children’s home arises from his drug use.
In 2021 Mr B was using an illicit drug. He described his use as recreational to deal with stress. The Court Child Expert recorded at [54]:
[Mr B] said that he has, since the stress of the Court case, began [using an illicit drug] again. He said that his use has been […] when he returned to live at [RR Town] (February 2021) and has now become about a gram [of the illicit drug] on the three days that he does not work. He said that [it] helps him deal with the stress of breaking up his family and helps him sleep. [Mr B] said that he is a better parent when he does not [consume illicit drugs], explaining that he is more “open to things” and more flexible and balanced as a parent.
If Mr B continues to use an illicit drug this may place Ms Lorne’s abstinence at risk. That would be a significant problem for these children.
I have to weigh the risks posed to the children by Mr B’s return to their household against the advantages to the children. I accept that the children have a close relationship with Mr B. Mr B was a member of their household for an extended period prior to his incarceration and is the father of their siblings V and Q. I accept that the mother finds Mr B an important source of support. Further, the Court Child Expert has recorded Ms W’s view that her mother derives significant support from Mr B. The Court Child Expert said the children “identify [Mr B] as a positive figure who leaves them feeling their home has a greater consistency and routine”. Those are significant factors favouring the mother’s position. That said, if I formed the view that his presence placed the children at unacceptable risk of harm then those advantages would not be sufficient to determine the matter.
There is no evidence that Mr B poses either a direct physical or psychological risk to the children if he is a member of the mother’s household. The greatest risk arises from the possibility that the children may experience the type of incident that took place in early 2021. As discussed above, while the risk cannot be said to be non-existent I am satisfied that a combination of Mr B’s new strategies and the protections in the orders I will make will ameliorate the risk.
As the Full Court in Isles and Nelissen (2022) FLC 94-092 made plain, the approach is to make a determination about past facts (here the most serious of which is relatively uncontroversial – namely the assault on the father) and then to make an assessment as to whether that finding (together with all other relevant evidence) constitutes an unacceptable risk of harm.
I note that Mr B has engaged with his worker at FF Service, as is required by the conditions of his parole. There was no evidence that he had breached his parole or the ADVO protecting the father.
The conclusion that I have reached is that with appropriate safeguards the children are not at risk of unacceptable harm from Mr B. I take the view that an injunction should remain in place until his parole ends. If there is a breach of the parole conditions the children will be shielded from that – and the ongoing monitoring by Community Corrections is a protective measure. After he is released from the conditions of his parole the mother should be permitted to allow him to spend time with the children graduating to a position where he returns as a member of the household. The orders I will make will reflect the recommendations of the Court Child Expert.
Risks in the father’s household
The mother told the Court Child Expert that the children should live with their father each alternate Thursday to Monday and each alternate Tuesday to Thursday – effectively a 6/8 arrangement. Implicit in such a suggestion was the mother’s view that such an arrangement would not expose the children to an unacceptable risk of harm. The father took the position that given the geographical realities of the parties’ present homes and the children’s schools it was not practical for them to spend midweek time in his care if the children lived with the mother and attended schools located near her home or further south in the case of Z. This position was child focused as the children would have borne the brunt of lengthy travel on a regular and frequent basis.
At the conclusion of the trial the mother adopted the position of the ICL which provided that the father’s time take place on alternate weekends. This represented a substantial decrease from the mother’s earlier position and a decrease from the time which was occurring when the matter was heard.
The mother did not submit that the decrease was necessary to ameliorate risk but rather to ensure that the children had the opportunity to spend some weekend time in her care. It is through this lens that it is appropriate that I view the concerns she raised about the father.
The mother raised a concern about the father’s misuse of alcohol. The father accepts that he drinks alcohol.
Recent objective information about the father’s alcohol use was scant but a COPS record from mid-2022 records:
… The Victim [the father’s then partner] believes to PN [the father] to have also been excessively drunk today. The Victim was unsure of how many drinks he had consumed but also said he showed no signs of intoxication. The PN believed he only had 4 standard drinks over an 8 hour period of time. Police saw no signs of intoxicated behaviour. Police advised both parties on the use of family counselling or personal counselling/psychiatry to assist them with there home lives. The victim could not provide and fears of the PN believe there to be insufficient grounds for an AVO and have not been able to identify and offence. The victim made mention that she is unhappy and no longer wants to be in a relationship with the PN, however due to being unemployed she had not moved out nor has any place to go in the interim. No parties hurt or injured. NFPA
(As per the original)
The father has engaged with JJ Service. That service provided information about his engagement as follows:
...
Nature of any Service Support Provided:
[Mr Swain] is a client of [JJ Services] and has recently been attending and taking advantage of our [LL Program]. [Mr Swain] has been a client of [JJ Services] since 2018, and has utilised our Individual Counselling, [MM Program] and our [NN Program].
…
Contact & Program Attendance:
This year [Mr Swain] contacted [JJ Services] […] and has attended 11 sessions.
Since [Mr Swain] contacted [JJ Services] in 2018, he has attended 55 groups in total.
During [Mr Swain’s] commitment to [JJ Services], he has been motivated and engaged in his recovery journey, and displayed a positive personal growth.
…
I was asked by the mother to make an order that the father be restrained from consuming more than two standard units of alcohol on any one occasion during any time that the children is in his care or for the 12 hours preceding. This injunction (as drafted) would prevent him from drinking more than two drinks over a weekend from Friday to Sunday or Monday or during half the holidays. The evidence does not support such a stringent approach. I will make an order that he not consume alcohol to excess while the children are in his care being an order which was contained in his minute.
The mother has also raised a concern about her experience of domestic violence perpetrated by the father and attaches text messages which she has exchanged with the father’s former partner Ms F.
Ms F wrote to the mother:
[Mr Swain] is drinking a lot, he gets very verbally aggressive with me and makes up problems to argue about. The kids are witnessing the verbal abuse every weekend. He slams doors, kicks or pushes furniture around, throws stupid things towards me and last night when I was trying to comfort [T] because of the yelling he was forcefully trying to pull [T] out of my arms.
Ms F did not give evidence at the hearing. I accept that there were verbal arguments between Ms F and the father. This is consistent with her complaints to the mother, to Police and the children’s observations to the Court Child Expert.
It was said in the course of submissions on behalf of the mother that the father’s [trial] affidavit was ‘long on criticism and short on evidence’. It was submitted that this asserted composition of the father’s affidavit is consistent with the conclusions of psychologist, Ms N, as referred to in the Family Report dated 23 June 2021 authored by Ms BB. I was taken to [107] and [109] of the Family Report where Ms BB outlines what Ms N is said to have represented to her. Numerous of the opinions expressed by Ms N as contained in Ms BB’s reports do not identify the source of Ms N’s (asserted) knowledge, other than the open-ended statement that she “has been working with [Ms Lorne], [Mr Swain], the maternal extended family and the children on and off for over eight years”. I was further told by counsel for the mother that, having seen the evidence from all sources it would be difficult to dispute what Ms N has said. I accept that the Court Child Expert in speaking to Ms N was doing so as a consequence of an authority (recorded by way of court order) given by each of the parents.
I was further taken to [111] of the Family Report where Ms BB reports that Ms N told her that the children have spoken about the “assault that occurred [in early] 2021” and “have recounted that their father punched [Mr B] in the back of the head resulting in [Mr B] retaliating by assaulting [Mr Swain]”. This is concerning as Mr B accepted in cross-examination that the father had not hit him.
It was submitted by counsel for the mother that, having heard the evidence from Mr Swain and Mr B, I would accept the opinion of Ms N that Mr Swain “appears to consider that the [early] 2021 assault expunges past concerns raised about him”.
Ms N’s observations are plainly hearsay in nature. While I am empowered in parenting proceedings by s 69ZT of the Act to have regard to hearsay evidence, the nature of these statements limits the weight I can give to them. It is inevitable that an expert report will contain certain matters of hearsay, but Ms N’s conclusions are untested and there is no evidence before me (other than that open-ended statement previously referred to) as to how Ms N’s opinions are wholly or substantially based on some specialised knowledge, if any.
That said, on the basis of the available direct evidence I accept that the father has engaged in abusive conduct which meets the definition of family violence. The father was charged with assault (on the mother) and placed on a bond in early 2015. An ADVO was made on that day. The father accepted some responsibility for his conduct during cross-examination but described the family violence as mutual. As already stated the orders must minimise opportunities for the parents to meet face to face and minimise the opportunities for them to have communication which may lead to conflict.
The father has undertaken substantial parenting education since these proceedings commenced. In mid-2021 he completed a parenting after separation course. In late 2021 he completed a further specific parenting after separation course entitled “Breaking the Cycle of Conflict”. The father completed “1-2-3 Magic and Emotion Coaching” - a parenting course over three sessions in late 2021. At the same time the father completed an eight week “Circle of Security” parenting course. The father’s completion of these programs indicates his commitment to obtaining information which will be of utility to him in managing the various competing needs and behavioural challenges which present. At the conclusion of the evidence of the Court Child Expert it remained her position that notwithstanding the father’s participation in these courses she was not optimistic that communication between the parents would improve.
Telephone and video call communication
The father sought an order that he be permitted to call the children on Tuesdays and Thursdays before 7.30 pm. The mother sought no order. I heard no submissions. Consistent with my other findings I think that the opportunities for conflict should be minimised. Since the father will see the children on most Mondays and Fridays in school term it is probably unnecessary for him to speak with them on Tuesdays and Thursdays and I am concerned that since the contact is via the mother’s phone this may be a reason for disagreements if it does not occur. Given the children will also divide school holiday time I think the best balance is struck by the children speaking to the parent that they are not living with or spending time with each Wednesday in both term time and holidays. There should be a half hour window to create certainty.
Special occasions
I intend to make some allowance, by way of court orders, for the parents to enjoy special occasions with the children. I will suspend the father’s time on the weekend of mother’s day. The regime I have provided will ensure that the children are in their father’s care on father’s day.
I am conscious that the mother wants some flexibility to allow for a family event on a weekend or to permit her to take the children to a concert or special event if that is scheduled to occur during the father’s time. Given that these orders are designed, in the children’s interest, to limit the need for the parties to communicate I will order that apart from those weekends in school term where I have suspended the father’s time the mother will be able to spend time with the children for an additional weekend per school year provided she gives the father the required notice in writing.
If the children are enrolled in a sporting activity, as the father indicated he desired, the sharing of time between the two households will allow for each parent to see the children participate.
The father sought orders relating to Christmas. The mother did not. The father sought that Christmas school holidays be shared on a week about basis. The mother sought that the time be in alternating blocks. The mother’s proposal in this regard was the same as the ICL.
The Court Child Expert expressed the view: “this family require a parenting arrangement, regardless of where the children live that includes the parents (and associated family members) having limited contact with one another”.
In the interests of minimising changeovers I find that it is in the interests of the children that they spend one block of approximately three weeks in the care of each parent during the Christmas school holidays – that has the effect of providing that the children spend alternating Christmas day with each parent. This approach also means the children do not have to do changeovers on Christmas Eve, Christmas Day and Boxing Day. The less opportunity for the parents to have to face to face contact the better shielded the children will be from the possibility of conflict or hostility.
The mother and ICL sought orders relating to the children’s birthdays and those of the mother and the father. The father sought no order. For the reasons previously expressed I decline to make an order. The time which is to occur should allow the children to celebrate in each household in reasonable proximity to the relevant birthday.
Changeover
The parents both sought that changeovers occur from the children’s schools. Where this is not possible each of them nominated McDonalds. The mother nominated Suburb OO and the father Suburb P. The mother’s affidavit referred to the changeover taking place currently at Suburb P and being effected primarily by the paternal grandmother on behalf of the father. In circumstances where neither party has provided any evidence that Suburb P McDonalds has not been a suitable venue my orders will continue this arrangement.
Birth certificate
The father is not listed on the children’s birth certificates. The father seeks an order to remedy this. The mother does not oppose the making of such an order. The father’s evidence was to the effect that he had already provided the mother with funds to undertake this task. She denied this. The evidence does not allow me to make a sound finding about this topic. The responsibility to undertake the application to amend (including payment of fees) should lie with the mother. The father can pay to obtain a copy after they are amended if he so chooses. Either party should be at liberty to provide a copy of these reasons and orders to the NSW Registry of Births Deaths and Marriages.
Injunctions
It is important that the children are shielded (as far as is possible) from adult agendas. The father wants the children to understand that he was the victim in the altercation with Mr B. The Court Child Expert confirmed that the children will not be served by hearing an account of the incident from any source unless the failure to hear such an account is having a demonstrable negative impact on their relationship with their father. It is important the parents do not make any negative comments about one another or the extended family in the presence or hearing of the children as it may create or cement existing loyalty binds identified by the Court Child Expert.
Each parent wanted to be permitted to attend school functions. I am conscious, from submissions, that it is likely the mother’s children with Mr B will ultimately attend the same school as the subject children. I have formed the view that unless the parents agree in writing from time to time that they will both attend a school function or extra-curricular activity then the children are better served by them taking turns and the orders will reflect this arrangement.
CONCLUSIONS
These (and related) proceedings have been a catalyst for change for the parents with ongoing advantages for the children. The mother is able to understand the importance of the children’s relationship with the father through her own experience of facing the possibility that the children may be removed from her care. The mother, it would appear, took seriously the need to change her approach to the use of an illicit drug and has been able to ensure the children’s regular school attendance in the last 12 months. The mother and father have agreed to a more suitable school for Z. The father has acknowledged the inappropriateness of excessive travel for the children and the orders he sought at the conclusion of the trial displayed insight about the nature of the evidence in the case. Each of the parents has sought outside assistance for themselves. These are significant positive changes which, if maintained, will benefit the children.
The making of parenting orders is not a reward or a punishment but an evaluation of the facts and application of the law to this family and these children. I am satisfied that the resulting orders will operate in the best interests of the children.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated:1 June 2023
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