Tabor and Schell

FAMILY COURT OF AUSTRALIA

TABOR & SCHELL

[2020] FamCA 529

FAMILY LAW – CHILDREN – Undefended hearing – Best interests of the children – Parental Responsibility – Where each parent poses serious risks of harm to the children – Where father in particular poses an unacceptable risk of harm on the basis of sexual abuse and family violence – Where mother in particular poses an unacceptable risk of harm on the basis of certain of her vulnerabilities including drug use that have resulted in neglect of the children and her failure to act protectively of them – Where family consultant’s evidence of the plethora of risks posed to the children considered weighty – Where family consultant’s evidence of each parent’s impaired capacity provided to Department and Department invited to intervene on numerous occasions – Where Department persistently refused to intervene due to ongoing casework with mother they believe adequately addresses the risks posed by her – Where Department suggested mother’s family law application be withdrawn and dismissed – Where in the circumstances it is not in children’s best interests to dismiss mother’s application as suggested by Department – Where no alternative available and orders for mother to hold parental responsibility, for children to live with her and spend no time with or communicate with father as sought by the mother is least detrimental option – Where restraint on father contacting or approaching mother and children is in children’s best interests – Where in the absence of appropriate powers under the Family Law Act relating to safeguarding the welfare of children, order made requesting Department to take appropriate statutory action to properly protect children from identified risks of harm .

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

Deiter & Deiter [2011] FamCAFC 82
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Mr Tabor

RESPONDENT:

Ms Schell

INDEPENDENT CHILDREN’S LAWYER:

Thompson Madden Solicitors

FILE NUMBER:

DUC

182

2018

DATE DELIVERED:

2 July 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

20, 21 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No Appearance

COUNSEL FOR THE RESPONDENT:

Ms Conte-Mills

SOLICITOR FOR THE RESPONDENT:

Fay Rose Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boncardo

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Thompson Madden Solicitors

Orders

The mother has sole parental responsibility for X born … 2010, Y born … 2012 and Z born … 2014 who in these orders are called “the children”.
The children are to live with the mother.
The children are not to spend any time with or have any communication with the father.
The mother must not use illegal drugs when she is caring for the children.
Pursuant to section 68B of the Family Law Act 1975 (Cth), the father Mr Tabor, is restrained from and not permitted to:
(a)Contact, approach or attempt to contact or approach the mother or children or any of the children in any way, including through another person;
(b)Come to or be within 100 metres of the home of the mother or the children or any of them;
(c)Come to or be within 100 metres of the mother’s workplace;
(d)Come to or be within 100 metres of any school or preschool or place where the children or any of them are engaging in any activity including sport.
Order 5 contains injunctions made for the personal protection of the mother and the children, and section 68C of the Family Law Act 1975 applies so that the father may be arrested by a police officer without warrant in certain circumstances.
The Secretary of the New South Wales Department of Communities and Justice is to be provided with a copy of these orders and Reasons for Judgment and is requested to take statutory action under the Children and Young Persons (Care and Protection Act 1998 (NSW) to protect the children from the risks of harm posed by both parents as identified in the Reasons for Judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tabor & Schell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 182 of 2018

Mr Tabor

Applicant

And

Ms Schell

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern three young children; two little girls aged nine and seven and their younger brother aged six. These children have fallen in the cracks between the child protection system and the family law system.
The children’s father now aged 57 is in custody facing charges that he sexually abused the mother and for alleged sexual abuse of a child not related to the proceedings. He commenced these proceedings in May 2018 prior to being charged in relation to those offences. Although he disengaged from the proceedings some time ago and the final hearing proceeded in his absence he has not formally discontinued. For reasons I will come to I am easily satisfied that the father poses an unacceptable risk of harm to the children and there is no benefit to them in having a relationship with him.
The mother continues to seek orders including that she have sole parental responsibility for the children, that they live with her and spend no time with or communicate with the father.
I have expressed the view at numerous court events from around the time the proceedings were transferred to this court in December 2018 that the circumstances relating to the children in the care of the mother and her parenting capacity may be found to be so impaired that I may ultimately find she also poses an unacceptable risk of harm to the children. For this reason I foreshadowed that I may not be satisfied that the children’s basic safety, let alone their best interests could be met if they were to live with her.
For these reasons I have invited the Department now known as Communities and Justice (“the Department”) to intervene in the proceedings on numerous occasions. The Department has persistently declined to do so and declined to participate in the final hearing notwithstanding that the most recent invitation to intervene was made in this context.
For reasons I will come to, following the final hearing I am satisfied that the mother does pose an unacceptable risk of harm to the children. I do not consider most of the orders she seeks are in the best interests of the children. However, there is no alternative available and the children are entitled to have some certainty concerning their living arrangements. At one stage a legal officer of the Department suggested that it would be an appropriate course to dismiss the mother’s Response. For reasons I will also come to it is in my view less detrimental for the mother’s proposed orders to be made than for her Response to be dismissed.
I also consider it is in the children’s best interest that I set out the reasons why I find that both parents pose an unacceptable risk of harm to the children and why I continue to consider it appropriate for the Department to act in accordance with the statutory powers available to it to protect the children from harm. This protection in my view is unable to be provided adequately pursuant to the powers available to me under the Family Law Act 1975 (Cth) (“the Act”).

Background

The mother who is 30 and the father who is 57 formed a relationship in about 2003 when the mother was aged about 12 and the father in his late 30’s.
At the time the parties began their relationship the mother had left her family home as her mother was in the mother’s words a “drug addict” and unable to protect the mother from harm. The mother sought out and then came to live with her father (“the maternal grandfather”) and met the father through the maternal grandfather.
The mother says she and the father maintained a sexual relationship from when she was aged 13 throughout the remainder of the mother’s childhood but at the father’s insistence kept their relationship a secret until she turned 18. For some time during this period the mother lived with the father but from time to time she returned to live with her mother.
It is unclear when the mother began living with the father on a permanent basis. She deposes that following the birth of their first child (“the oldest child”) in 2010, she assumed the role of homemaker and primary carer for the child and the father worked long hours.
The second of the parties’ children, another daughter (“the middle child”) was born in 2012.
In March 2014 the Department received a report that the mother wanted to leave her relationship with the father with concerns that he engaged in controlling behaviour towards her due to their age difference. It remains the mother’s case that throughout the parties’ relationship there was a “severe power imbalance” between she and the father and that the father was controlling with respect to financial matters and her relationships and that this control continued even after separation.
The parties’ third child, a son (“the son”) was born in 2014.
In August 2016 the parties separated but continued to live in the same house for about a month until there was an incident in which the mother alleges the father attempted to poison her by giving her some coffee which appeared to contain a substance that caused her to feel immediately sick and required that she seek medical attention at hospital. For five weeks following this incident the mother lived at a friend’s house with the children before securing nearby accommodation.
After the mother and the children moved out of the family home the father stalked her including on one occasion sending more than 60 messages and calling her three times in a single day. On at least one occasion the father also made threats towards the friend in whose household she and the children were staying (“the mother’s friend”).
Police applied for a provisional Apprehended Violence Order (“AVO”) protecting the mother and the children against the father. According to their records police held concerns about the father’s “ongoing violence, threats, harassment and escalation of violence along with [his] irrational and unpredictable behaviour”. Despite the existence of the AVO, the father continued to contact the mother including via social media. He last had physical contact with the children in October 2016.
In October 2016 the oldest child disclosed to the mother’s friend that the father had sexually abused her on a number of occasions. Subsequently, this friend provided a statement to police detailing the disclosures said to have been made by the oldest child.
The allegations made against the father regarding sexual harm of the oldest child were investigated and substantiated by the Joint Investigation Response Team (JIRT)[1] with the father being identified by JIRT as a “person causing harm”.
[1] The Joint Investigation and Response Team was made up of officers from the Department and police and investigated complaints of sexual abuse and serious physical abuse of children.
Shortly after the statement was made by the mother’s friend, the mother also provided a statement to police detailing the parties’ sexual relationship from when she was a minor. She later insisted that police discontinue their investigation into this matter as it had become “too stressful” for her to proceed with it.
It is apparent from annexures to the mother’s affidavit that by November 2016 she was in a partner relationship but nothing further is known about this partner or the circumstances of this relationship.
Around this time the mother was diagnosed with depression and anxiety for which she was prescribed anti-depressants.
In November 2016 the father was charged with two counts of indecently assaulting the oldest child.
The following day the mother entered into a safety plan organised by the Department that prevented the children from having any contact with the father.
The father was ultimately acquitted of the charges of indecent assault of the oldest child following a defended hearing.
From about the time the mother entered into a safety plan the Department received various reports of the children being physically abused and neglected while in their mother’s care.
According to the Magellan Report[2], from around November 2016 reports were made to the Department that the mother’s then partner was using excessive discipline upon the children, including striking the two year old son on the head and that a family friend who had regular contact with the children was behaving in a sexually inappropriate manner towards them.
[2] A Magellan report sets out the involvement of The Department with the family.
A final AVO was made in February 2017 for the protection of the mother against the father effective for one year (“the final AVO”).
In early 2017 the mother engaged a counsellor as part of a mental health plan and began attending counselling sessions.
On 18 November 2017 the mother agreed to meet with the father at her home to discuss the children at a time when the final AVO was still in place against the father for her protection. By this stage the father has been acquitted of the only charges he faced at the time in relation to the sexual abuse of the oldest child. The day after meeting with the father the mother alleges that he had sexual intercourse with her without her consent, a matter which she subsequently reported to police.
On 24 November 2017 the father was charged with the alleged recent sexual assault of the mother and contravening the AVO which included a condition that he have no contact with the mother. He was also charged in relation to sexually assaulting the mother as a child.
In December 2017 the mother and children moved to another regional town and shortly thereafter the mother formed a new relationship with a Mr C (“the mother’s former partner”). Many of the notifications to the Department from this time related to risks posed by the mother’s former partner. According to the Magellan Report in 2018 the Department received a report alleging that he inappropriately touched the two daughters when the mother is not at home and that the same children had also experienced inappropriate touching from a male friend of the mother’s. These allegations were not assessed by the Department.
A short time later police lodged an application to vary the final AVO to extend the protection period for the mother and the children for a further two years. It appears that an interim order was made preventing the father from contacting or approaching the mother and children in February 2018 and remained in place pending the application to vary the final AVO which came before the Local Court in March 2020.
In May 2018 the father commenced proceedings in the Federal Circuit Court seeking equal shared parental responsibility for the children and orders that they live with the mother and spend time with him as agreed between the parties, but failing agreement each alternate weekend and for half of each school holidays. In response, the mother sought sole parental responsibility for the children and orders that the children live with her and spend no time with the father.
According to Departmental records in July 2018 Departmental officers assessed reports of the mother’s former partner engaging in excessive discipline of the children. According to the Magellan Report, those officers assessed that the mother and her former partner demonstrated that they were able to use safe methods of discipline that did not involve smacking.
In around August 2018 the mother began using methamphetamine (also referred to as “ice”) on a daily basis which she deposes related to her need to escape the trauma of her childhood and relationship with the father. From around this time Departmental officers commenced making weekly home visits to the home of the mother and her former partner to monitor the safety of the children in light of her substance abuse and the previously reported serious risk issues in their household.
On one such visit on 7 August 2018, Departmental officers were unable to contact the mother or her former partner when they attended the mother’s home and as a result required police intervention. Upon arrival, the police found the son then aged four unsupervised in the house who informed them that the mother and her former partner were asleep in the bedroom and had been for quite some time. Police located drugs and drug paraphernalia at the home and records indicate that both the mother and her former partner appeared “passed out”. Arrangements were made by the Department for the children to be cared for overnight. It was later noted that when the mother spoke to the relevant caseworker from the Department who attended that day, she made admissions that she and her former partner had used methamphetamine earlier that day which caused them to fall soundly asleep.
During this visit, police were also alerted to two snakes which were inside the mother’s household, one of which was prohibited resulting in the mother being later charged and convicted in relation to this matter.
The mother was also charged in the course of the proceedings with driving matters, including on several occasions driving while disqualified, and on at least one occasion driving with illicit drugs (methamphetamine) present in her system. As a result of these offences the mother was disqualified from driving for a lengthy period of time and in mid-2019 was subject to an Intensive Corrections Order with strict Community Service and supervision conditions.
In September 2018 orders were made in the Federal Circuit Court with the consent of the parties providing for the children to have supervised time with the father and telephone communication with him every Saturday (“the 2018 consent orders”). It appears that the mother failed to facilitate the father’s time with the children but the children did have telephone contact with him.
In November 2018 the son was reported to have significant blistering on his feet which appeared to be caused by burns. The mother did not take this child to a doctor for further assessment or treatment even though this was recommended by the caseworker.
On 19 December 2018 the proceedings were transferred to this Court and shortly thereafter allocated into the Magellan Protocol[3].
[3] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
In January 2019 at a court event before a Registrar the father indicated that he no longer pressed any application for time with the children. Although he has not formally withdrawn his application, he has since disengaged from the proceedings and has not appeared at any subsequent court event.
In early January 2019 further reports were received by the Department regarding the mother’s former partner alleging that he was physically and verbally aggressive towards the children and heavily involved in drug use to which the children were exposed.
On 21 January 2019 the Department completed a risk assessment for the children and concluded that they were at a “very high risk” of harm. Allegations relating to poor supervision and parental substance misuse were substantiated and it was assessed that there were ongoing issues with “alcohol and/or drug problems, historically (sic) statutory casework and historical substantiated sexual abuse”. It was later noted that both the mother and her former partner were engaged in alcohol and drug counselling and that the mother had obtained a mental health plan from her general practitioner and had been compliant with her medication for depression and anxiety. There were also concerns about neglect of the children, their basic needs not being met and their poor school attendance.

Despite the assessment of very high risk relating to the only parent in these proceedings seeking orders the Department indicated no intention to intervene in the proceedings when providing the Magellan Report dated 21 March 2019.
At a court event before me on 16 April 2019 I discharged existing orders with respect to the father’s time with the children and invited the Department to intervene in the proceedings again in light of the most recent (“very high”) risk assessment. A further order was made requesting that a relevant officer from the Department file an affidavit outlining the steps that staff had taken since 21 January to reduce the high risk of harm identified in the risk assessment.
In an affidavit filed on 7 May 2019, the Acting Manager Case Work at the relevant office of the Department deposed that a “Family Action Plan” had been implemented to address risk concerns relating to the drug use of the mother and her partner, their housing arrangements, the children’s school attendance and the emotional and psychological needs of the children. It was deposed that both the mother and her partner demonstrated progress with respect to each aspect of the Action Plan but that the mother’s partner was in such a poor state with respect to his mental health he was unable to complete a drug and alcohol rehabilitation program. Although both adults reported use of cannabis on a weekly basis the Department did not intend to carry out urinalysis. It also appeared from the affidavit that the mother and her partner seemed unable to ensure that unauthorised people did not enter their home placing herself and the children at risk.
At a court event on 7 May 2019 I indicated that I still held serious concerns about the children in the mother’s care relating to issues raised in the affidavit filed by the departmental officer. I made orders that the mother undergo drug testing and noted that it was imperative that she organise for the children to be seen by a paediatrician and ensure that they engage with appropriate therapists. I also requested that the mother’s housing provider carry out any necessary rectification at the mother’s home or consider allocating the family to alternative accommodation in order to address the serious child protection issues stemming from the circumstances of the mother’s living arrangements.
Around this time the Department again declined the second invitation to intervene in the proceedings by means of a letter to the mother’s then legal representative that was copied to the Court, rather than responding directly to the Court’s invitation. In this letter dated 12 June 2019 a legal officer from the Department indicated that prior to the 7 May 2019 court event the mother was making good progress in addressing child safety concerns but that since being subject to directions made by the Court on that date she has presented as “stressed and depressed”. It was the opinion of that legal officer that the additional “tasks” imposed in consequence of these proceedings “caused [the mother] to relapse and use ice on 1 June 2019” and also caused a further deterioration in her mental health. The Department insisted that it would not intervene in the proceedings, particularly as in the view of departmental officers the mother already actively participated in the Family Action Plan to address risk concerns. In these circumstances, and as the father appeared to have abandoned his family law application, the author of the letter suggested that the mother’s “application” be dismissed.
Results of the mother’s hair testing dated 13 June 2019 were positive for amphetamine, methamphetamine, opiates and cannabis. The mother deposes to ceasing her drug use not long after this date which coincided with she enrolling in a “protective behaviours program” and the daughters receiving counselling from a trauma counsellor. This is curious given that despite the mother maintaining that she no longer used illicit substances after this time, further drug testing results obtained in the proceedings at the request of the ICL returned positive for cannabis.
In late July 2019 although it was unknown by the court at the time, the mother separated from her former partner. She moved with the children from the regional town in which she had been living to Sydney to live with a person who she described at that stage as a “friend”. The mother claims that an intimate relationship with this “friend” (“the mother’s current partner”) began in around October 2019.
On 20 and 22 August 2019 the mother and the children met with a family consultant for the preparation of a Magellan Family Report (“the Family Report”). The father was not interviewed nor observed with the children. He was completely disengaged from the proceedings at the time and was facing further charges in relation to another alleged sexual assault of a 12 year old child and had been refused bail.
In her Report dated 28 August 2019 the family consultant raised serious risk factors relating to the children in the care of each parent. In summary, she opined that the mother appeared very limited in her ability to meet the children’s basic needs including providing adequate food and clothing and that there were ongoing issues relating to her mental health, drug use and experiences of trauma which impacted upon the children. The family consultant also noted that should the Court find that the father is a perpetrator of sexual abuse against both intra-familial and extra-familial victims, the children should spend no time with him even on a supervised basis as this does not protect the children against psychological and emotional harm in having contact with a perpetrator. It was the family consultant’s recommendation that unless there is an alternative carer for these children, or the Department intervenes in the proceedings, the “least detrimental and only option” may be that the children remain living with the mother.
At a court event relating to the release of the Family Report on 10 September 2019 the Independent Children’s Lawyer (“ICL”) urged that a copy of the Family Report be provided to the Department and that the Secretary of the Department be once again invited to intervene in the proceedings given the likely finding that both parents may be unable to appropriately protect the children. The Department declined this further invitation indicating in an affidavit filed by a caseworker sworn 16 October 2019 that to date the mother had continued to make progress with the Family Action Plan and that it was observed during a home visit to her household on 18 September 2019 that the mother’s home was “safe and appropriate” and that the children’s basic needs were being met. Despite these observations the case manager who made that assessment and was then engaged with the family still assessed the household as “High Risk” as at 24 September 2019.
On 30 September 2020 the mother commenced a recovery program relating to drug and alcohol use and completed two sessions before the school holidays intervened which caused her to discontinue. The mother asserted at the final hearing that she intended to attend the remaining four sessions after the court proceedings in February 2020.
A further invitation was made to the Department at a court event on 20 November 2019 in light of the current assessment of high risk to the children in the care of the mother which I indicated may be found to be unacceptable. On this occasion the proceedings were also listed for trial on an undefended basis as against the father on 20 and 21 February 2020, and directions were made for the ICL to speak to the prison legal service in order to ensure that the father was informed of his right to seek Legal Aid and to participate in the proceedings.
On 22 November the mother entered into a “Family Action Plan for Change” with the Department to further address her drug use and the children’s physical and mental health as well as her own. Under this program the children were referred to trauma counselling and the mother to an “Intensive Family Preservation Service”. Curiously however, although some concern arose from police records produced on subpoena regarding the mother’s current partner’s history of family violence and the risk he posed to the children on this basis, no specific strategies were directed to this issue. A case worker was to attend the mother’s household two to three times per week as part of the “Intensive Family Preservation program”.
The father made no request for arrangements to be made for his participation in the final hearing in February 2020, despite receiving sufficient notification of the proceedings from the ICL and through his address for service. Accordingly, the matter proceeded on an undefended basis. It was understood that at the time of the final hearing criminal proceedings against the father relating to offences against the mother and his alleged sexual assault of a 12 year old child were ongoing.
The request to the Department to intervene made in November 2019 was not responded to until 27 February 2020, after the hearing was complete. Once again, the Department declined to intervene in the proceedings on the basis that it was considered by Departmental officers that the mother had engaged well in recent months and that the family “no longer require statutory child protection intervention”. There is no indication in this correspondence that the relevant person considered the reasons given by the Court on numerous occasions that the Department intervene, that being, that both parents may be found by the Court to pose an unacceptable risk of harm to the children.

THE HEARING

As the mother pressed her application at the final hearing, the ICL cross examined the mother and her current partner. The mother’s lawyer and ICL also cross-examined the family consultant. Although the ICL also relied upon affidavits from two Departmental officers, neither was cross-examined.

The evidence of the mother’s partner

The mother’s partner filed a short affidavit in the proceedings and was cross-examined first at the mother’s request. According to his affidavit he is aged 35 and has lived with the mother and the children since around August 2019. He deposes that initially the two were “just friends”, that he was a friend of the mother’s former partner and had seen “how bad things were for [the mother]” in her previous circumstances and offered to “help her get away”. He does not depose to the details any of these difficulties or how he assisted the mother.
According to the affidavit of the mother’s current partner the change in their relationship occurred from around October 2019 in that it “became romantic” from around that time and as a result they now “share a room” in their house. The mother’s partner deposes to working full-time which requires him to be out of the house from 6.30 am until 4.30 pm. He deposes to getting on well with the children who call him “Uncle [first name]”. He deposes to the mother performing all the parenting duties in relation to the children and to his role being limited to taking the children to a park or other outings and playing with them.
According to the affidavit of the mother’s current partner he has two daughters from two previous relationships now aged 12 and six respectively, but has no contact with either child. He says he pays Child Support as assessed for the younger child who lives with her mother at a place unknown to him. The older of his children lives in another State with a grandparent.
The mother’s current partner deposes that he does not use illicit drugs and is “against the use of drugs”. He deposes to being convicted of driving offences and also of common assault and malicious damage. In relation to these last mentioned convictions, the mother’s partner deposes only to the following:
The allegations arose after I had an argument with my ex-partner. The argument was about money. Things became heated and I left the house and did not return. A period of time elapsed and I did not hear from my partner. I came into contact with Police and found out that there was a warrant out for my arrest.
The mother’s current partner also deposes to being in contact with the mother’s caseworker from the Department and that he has cooperated with everything that the Department has asked of him “including background checks”. He deposes to understanding that the mother’s caseworker has no concerns about him being around the children.
Under cross-examination the mother’s current partner agreed that he was aware of the circumstances of the mother’s relationship with her former partner. He gave oral evidence of his awareness being “just domestic violence and drug use on [the mother’s former partner’s] behalf”. He conceded that he did not then, and does not now, have any knowledge of the type of drugs the mother was using.
When asked about his lack of contact with his own two children, the mother’s current partner said he had not seen the oldest child for about two years because she lived in Queensland which is “too far away”, though he conceded that he could make contact or organise a visit at any time with that child’s grandmother. So far as the younger child is concerned, he gave evidence that that child’s mother “just doesn’t want to know me anymore and it seemed that her family members did not want to pass on messages”. He conceded that he had not sought any advice from a lawyer or taken any steps in relation to pursuing a relationship with his children but claimed that he would love to see them.
The mother’s partner was questioned at some length about his convictions for two counts of assault and malicious damage. He was unable to explain why he had not given an account of his conduct in his affidavit or why he referred to his conduct as an “allegation”. When asked what he did in the incident in question, the mother’s current partner said he had an argument with his former partner. He then said:
I hit her on the side of her face and she ran off to the bedroom, telling me to go “f off” and everything and I was pushing the door open, trying to say “can we talk about it” because I have no nowhere to go in Sydney. I would be homeless. And she didn’t want me there, so I left.
The mother’s former partner described the “hit” as an “open slap” and specifically denied punching his former partner. When asked whether he slapped her “with force”, the mother’s partner answered “not really”. He was unable to explain why he came to be convicted of two counts of assault. Upon further cross-examination it was revealed his younger child was present throughout this incident.
Under cross-examination the mother’s current partner also said that he had not undertaken any program in relation to his violence as he did not know that he “had to” do such a program and “didn’t really feel I needed to”. The witness showed little understanding of the impact upon his child of her witnessing his assault upon her mother. At one stage he did identify that this action would have “scared” the child, adding “I guess. But yes, she loves me to death and always wanted to see me, play, all that kind of stuff. Even after we had the argument…”
At one stage when being pressed about the details of the malicious damage conviction, the mother’s partner said “like, I don’t recall the incident myself. It just kind of happened”.
Under cross-examination, the mother’s current partner said that he had been helping out generally with the children for the entire time that the children had been living in his house, including the time prior to him being in a relationship with the mother. He was unaware of the assessment by the family consultant that expressed great concern about the children being neglected in the mother’s care and did not think that that occurred. He said that the children “seemed to be always fed and clothed” and also believed that they always went to school with lunch. This witness also said that from about October 2019 the mother had been away overnight for work in the regional town where she previously lived and that he looked after the children on those occasions.
In oral evidence, the mother’s partner said that he knew that the mother was disqualified from driving and knew that she had continued to drive on occasions in the former regional town, but denied she had done so after moving to Sydney to live with him. He expressed surprise when informed that the mother had driven to the interview at the Court with the family consultant when she was disqualified at a time she was living with him.
Although the mother’s partner was aware that the mother had been disqualified from driving he was not aware that she had been to court in relation to that matter or that she had been sentenced to an intensive Corrections Order. He agreed that if the mother were to drive while disqualified again, and spend some time in custody, he would be the person who would be expected to look after the children, though he seemed quite unsure about this proposition and suggested that it may be more likely that her family (“sister or mother or anything”) would care for the children if this occurred. This witness had no awareness of the mother’s harsh and dysfunctional relationship with the maternal grandmother, that she had left her mother’s care at a young age and experienced much trauma in her childhood. He was also unaware that the mother had been in a sexual relationship with the father from the age of 12 and that the father had breached an AVO made to protect the mother after separation, although he was aware that the father “was always harassing her” and that she “wanted to get away”.
It came to light under cross-examination that the mother’s current partner was aware that the mother had returned to the regional town to collect some property from her former partner the night before attending the interview with the family consultant, though he was unaware that she had taken the children with her.
Although the mother’s current partner conceded that he was aware that the mother’s former partner was violent, had used excessive discipline on the children, was a drug-user and had weapons in his house, he was not concerned that the mother had attended this person’s home to collect some of her property. He also agreed under cross-examination that he was aware that the home the mother previously lived in and had attended to collect her property had been regularly broken into as the mother’s former partner was dealing drugs from that house. The mother’s current partner said that despite these circumstances, he had no concerns at all about the mother attending her former partner’s home as if the former partner “did anything”, he would have killed him. He did not agree that the mother had put herself at risk of harm by going back to her former partner’s home and when asked whether she had put the children at risk by taking them with her, he answered “I guess, but…” The witness did not agree that he was sufficiently concerned about the mother going to her former partner’s house to discuss the matter with her, saying that it was “her choice”.
Under further cross-examination this witness said that he had gone with the mother on a few occasions to retrieve property from her former partner, and that the former partner was there “yelling and screaming abuse” but that on these occasions the mother had left the children with a babysitter. Ultimately, the mother’s partner conceded that the mother’s former partner was not only verbally aggressive but assaulted him and that Police intervened. He would not concede that these actions in retrieving the property from the mother’s former partner exposed both himself and the mother to a risk of harm and that there was no other way of achieving that.
Under cross-examination the mother’s current partner showed little awareness of the steps that the mother was taking to address her drug use, her history of being the victim of family violence by two partners, and her past trauma. In answer to a question about these matters, he said:
I’m not sure, but yes, all the courses she has gone to and Court and all that stuff, yes. So it’s not really a part of my life, in a sense, to worry about, but I’m there to help support her if she needs anything (emphasis added).

The mother’s current partner gave oral evidence of providing some financial support to the mother and the children from the time they lived together including before the time that they were in a relationship.
Following the completion of cross-examination of the mother’s current partner, the Local Court file in relation to his criminal proceedings was admitted into evidence.
According to the Police Statement of Facts the events relating to the offences to which the mother’s current partner pleaded guilty occurred on the morning of 19 January 2018. At the time his then-partner (“the victim”) was preparing their daughter for preschool. The mother’s current partner who at the time was asleep in the lounge room ha woke up and began verbally abusing the victim. In response, the victim said “I’m just trying to get my daughter ready for school” and he replied, yelling “I can’t even sleep, I have to hear your mouth every day, every day”. The victim then told the mother’s current partner “well you don’t have to be here” and ran down the hallway of the home in order to reach their daughter.
The Local Court file indicates that the first offence count of common assault related to the mother’s current partner chasing the victim down the hallway, grabbing her and punching her around her right rib area. After grabbing the victim again, he then pushed her backwards causing her to fall backwards and collide with a closed bedroom door. The second offence, malicious damage, relates to the damage caused when the victim came into contact with the door. After the door was damaged, the mother’s current partner then repeatedly punched the victim in her right rib area, which gave rise to the third offence, the second count of common assault.
The police noted that when interviewed the victim was “visibly upset…her eyes were glazed and she was wincing in pain when she showed [them] where she had been punched by [the mother’s current partner]”. The records also noted that in the course of the interview with police the victim stated that she was “fearful of [the mother’s current partner] and didn’t want him back near her or her child” and agreed for the police to apply for an urgent AVO on her behalf.

The mother’s evidence

In her trial affidavit the mother deposes to the history of her relationship with the father. She provides some information about the circumstances of the family when the relationship was intact and to events up until the end of 2016/January 2017 when she moved away from the town in which she had previously lived with the father and began a new relationship with her former partner.
The mother’s affidavit concerning the circumstances for the children and her relationship with a former partner it is extremely scant. Although the mother says that she ended that relationship “to escape the family violence he was perpetrating” she provides no details of that violence. Further, although the mother refers to engaging with a case worker from the Department from around the time she moved to the regional town she provides no detail of the circumstances that caused the Department to become involved. The mother’s only reference to her drug use is contained in a single paragraph which refers to her daily use of methamphetamine in about August 2018. Her description of the incident when she was found unconscious with her former partner by police while her then four year old son was at home and the children were removed from her care provides no detail of that incident consistent with police and departmental records. The mother provides no evidence in relation to her domestic circumstances that caused a departmental officer to conclude that the children were at a “very high risk” of harm in January 2019 including in particular the neglect of their children and their basic needs not being met.
The mother does depose in her trial affidavit to some engagement with some professionals and in a few programs prior to leaving the regional town and moving to Sydney at the end of July 2019. The mother provides no affidavit evidence in relation the violent incidents around the time she separated from her former partner, the extent of her current partner’s involvement with the children prior to the time she deposes to him becoming her partner, or any knowledge of her current partner’s prior relationships including violence in those relationships. The mother deposes to ceasing her drug use since July 2019 and to the results of drug testing since that date including positive tests on 26 September 2019 and 28 November 2019 and a negative result for more recent testing in January 2020.
The mother’s evidence in relation to the “intensive family preservation” program in which she has been involved in mid January 2020 is unclear. She deposes to hoping to reach all her goals within the six month period of that program which includes participation in the future in another program known as G program,.[4] According to the mother’s affidavit she has achieved regular school attendance for the children, maintained her home in a clean and tidy state and provided sufficient and appropriate food for them. She says that she and the children had been taught about “safety networks, what to look out for and how to keep safe” through the protective behaviours program completed prior to moving to Sydney. The mother deposes to the children being in good health but that they are yet to see a paediatrician even though she received a referral in May 2019.
[4] Leaflet from B Hospital (Exh 11). The G family service to which I assume the mother has been referred is a health service for children and adolescents aged zero to 18 years whose parents have drug and alcohol related issues.
The mother also deposes to becoming aware in December 2019 that she had contracted Hepatitis C from her former partner. The mother deposes that she is not currently attending upon a psychologist though she concedes she is aware she needs to address her past trauma. The mother also sets out her recent convictions for driving while disqualified but does not depose to any of the circumstances surrounding those offences.
Under cross-examination many more relevant matters came to light. It emerged that the mother had married her former partner in 2018 and that no divorce proceedings have been commenced.
The mother also gave evidence that she first became aware her former partner was a drug user about six months after they began living together but there was contradictory evidence about when this had occurred. The mother gave oral evidence that her former partner’s behaviour started changing once he began using drugs in that he became more aggressive including towards the children. The mother said that on occasion she left the children in his sole care which she now realises was “stupid” and that she “should have taken more responsibility”.
The mother then said that her former partner potentially could have killed the children given their age and his behaviour when they were left alone in his care. Although the mother claimed to not have previously used drugs herself and having seen her former partner’s behaviour change with drug use, she also began using methamphetamine (“ice”) and later cannabis when living with him. The mother said that when she used ice it lifted her mood and made her feel good and that she was spending one to two hundred dollars a week on this substance.
Under cross-examination the mother said she began using cannabis in January 2017 and became addicted to it, smoking five or six cones a day when the children were in her care. She also agreed that she began using ice intravenously every day until August 2018 when the police intervened and removed the children from her care for one night. The mother agreed that this event could be accurately described as “a drug bust” at the house where she was living. She was unable to explain why she had not provided any information in relation to her living circumstances when in a relationship with her former partner in her affidavit and conceded that there were serious concerns about her capacity as a parent at that time which the court would want to know about.
When asked under cross-examination how her drug usage had affected her ability to care for the children the mother was unable to answer the question but the tenor of her evidence was that her drug use had no impact on that ability. She ultimately conceded that she was not able to supervise and able to look after her children when using and “coming down” off ice, that she was wasting money on the substance and committed her first offence of driving while disqualified during the period she was using ice. She also ultimately conceded that her judgment was affected at this time and that there were periods of time when the son was home all day with she and her former partner when she was drug affected and that all of the children would have been at home on weekends and during holidays while she and her partner were drug affected.
Under cross-examination when asked about physical violence the mother initially denied that her former partner was physically violent adding “it was just the last argument that he picked me up and choked me and threw me on the bed”. She agreed that he was physically violent towards the children and once “flogged” the second child to such an extent that she was unable to go to school. The mother then said that this occurred at a time when she was away working and her former partner was looking after the children and that she saw bruises on the second child when she returned. The mother then agreed that the second child was scared of her former partner but that she did not leave him until about year after this incident. The mother was asked questions about the second child’s complaints of being “smacked a lot” by the mother’s former partner. She was, in my view, very evasive about this matter and when asked a direct question denied knowledge that this child was being regularly smacked by her former partner.
The mother was unable to explain why she had not left her former partner as soon as she found out about the assault on the second child and agreed that she tended to end up in relationships with violent and abusive men. She did not however consider that it was possible that her current partner was a similar person.
The mother was cross-examined about information the children had given when previously interviewed by case workers from the Department when the family were living with the mother’s former partner in the regional town. She agreed that the son’s complaints indicated that he was terrified of her former partner and that the oldest child had also expressed feeling scared at night time because people were coming in and out of the house. The mother was unable to explain what the children had to fear, denied that the people were attending her house to buy drugs and generally initially minimised the impact of this activity upon the children. She did ultimately concede she had difficulty keeping people out of the home and that it was a chronic and serious problem which caused her great distress and worry at the time. The mother claimed under cross-examination that there was nothing she could do about this situation.
Overall, in relation to the children’s descriptions of their experience in the care of she and her former partner, the mother said that she “should have been more aware of what was going on” and agreed that the reason she was not aware was because she was affected by the drugs at the time.
It subsequently came to light that the matters about which the mother was cross-examined concerning the views expressed by the children had been the subject of discussion during the “protective behaviours” program. The mother said she could not recall the children reporting those sorts of matters during that program and remembered being “tired and yawning” herself at those sessions and agreed that this would have been due to her drug use.
The mother was unable to explain under cross-examination why she had married her former partner given that he had introduced her to drugs, and was more aggressive and posed a risk to the children when drug affected. The mother also said that her former partner was receiving a disability pension for mental health difficulties but was unable to answer a question about whether there may have been a connection between his drug use and mental health. The mother denied under cross-examination that her former partner was a drug dealer and when asked whether he had weapons in her house she said that he had “just knives that he use to tinker with and sharpen” as this was “just one of his little coping mechanisms’”. The mother said that he always kept the knives “on his side of the room”. When asked about the danger overall that her former partner posed to her children the mother said that since she had left him she had “seen him for what he is”. When asked when he started to become really dangerous towards the children said that this occurred within the last three months of the relationship.
When asked whether she was aware of the Court’s concern about the risks to the children when she was living with her former partner the mother was not able to provide any coherent answer except that she understood there were concerns about her drug use. At one stage the mother conceded that in August 2018 the drug usage of herself and her former partner meant that she was not purchasing sufficient and appropriate food for the children at the time. When asked whether she was also neglecting her children at the time she answered “I guess so”.
Under cross-examination the mother was asked about the safety plan she had recently entered into and agreed that it had strategies for her to use when she felt upset or down. She did not think however that there was a risk to her children when she was not functioning well. When pressed, the mother seemed unable to demonstrate an understanding of the connection between her functioning and care of the children. The mother also said that when she does have difficulties coping and feels down and depressed she did not think she was more likely to relapse to drug use. The mother also said that she did not have an understanding of the way in which the traumatic circumstances she had experienced in her life may have affected her mental state and mental health. She gave evidence that although it would be useful or helpful to speak to a professional in that regard she was currently not seeking such assistance but “just trying to focus on looking after my kids at the moment”. She ultimately conceded that it was not wise to have not sought assistance in relation to her trauma. The mother seemed to think that the G program which she is yet to access is a “one stop shop” to address all of the health needs of herself and the children including mental health needs.
The mother was asked about her affidavit evidence that her current partner did not have a criminal record and said that she had only become aware of it when he was giving evidence in the proceedings. (At the request of the mother her partner was interposed prior to her giving evidence). When asked whether she was concerned by the fact that her current partner slapped his former partner in the head during an argument and then tried to break into the room she was in the mother answered “honestly, no, I’m not”. The mother was unable to explain why this did not cause her concern except to say “because I am not her”. The mother said that she was not worried about this aspect of her current partner because “he hasn’t shown any violence or anything towards me and the kids”, though she did concede that her former partner also did not behave in this matter when she first knew him.
The mother was also asked under cross-examination about the circumstances after she moved to Sydney. She agreed that there were occasions where she would return back to the regional area in which she previously lived for work and on those occasions her current partner looked after the children for a week at a time.

The family consultant’s evidence

The family consultant met with the mother and the children on two occasions two days apart in August 2019. The family consultant also telephoned the mother on a third occasion for further assessment in the same month. As previously indicated the father was not interviewed nor observed with the children as at the time of the assessment he faced criminal charges relating to the sexual assault of the mother and an alleged assault of a 12 year old child for which he was refused bail. To assist in the preparation of her report the family consultant had access to various documents filed by parties in the proceedings, and other documents including the Magellan Report and an affidavit filed by a caseworker from the Department.
At the time the assessment took place the mother and the children had just commenced living with the mother’s current partner who the mother described as a “friend” during the assessment. The children at that point had not spent time with their father for almost three years and their only contact with him was through irregular telephone calls. The orders that they spend supervised time with him had been discharged a few months previously. The family had also just ceased contact with the mother’s former partner following the mother’s separation from him a few weeks previously.
Overall, the family consultant was of the opinion that the risks to the children in the mother’s care include:
·Neglect
·Exposure to family violence
·Inadvertent exposure to people who may sexually offend against the children
·A risk to the children’s physical safety from physical discipline
·Physical assault
·Risks associated with drug use.
To ameliorate the range of risks the family consultant opined that the mother (as a person who is “always going to experience some vulnerabilities”) needs a service that can address all of these issues, provide some in home support and that she “needs to engage with those services for as long as those service are willing to work with her and accept that it may be a long term situation for her”. She also opined that it is really important for the mother to receive psychological intervention and or support and that the children themselves need intervention and support to build their resilience. The family consultant agreed that the intergenerational impact of issues not being addressed are apparent in the mother’s own life.
The interview that took place on 20 August 2019 was cut short and postponed to 22 August due to issues with the children’s presentation on the first day. According to the Family Report, after arriving one hour late for the appointment on 20 August 2019 the mother indicated that she had not brought any food for the children and did not have enough money to obtain food for them. When spoken to briefly, the children told the family consultant that they had not yet eaten and were hungry. It was further noted that the children “appeared physically unkempt with clothes and shoes that did not fit and that were dirty, stained and damaged”. Some speculation was also made relating to a mark on the middle child’s eye and whether it was a bruise or a mark from another unidentified origin. It also became apparent that the mother had driven to the assessment interview even though she was disqualified from driving. Before terminating the mother’s interview on 20 August, staff at Child Dispute Services at the Court purchased food for the children and when they left, the family consultant spoke with the Department and made a child protection report to the Child Protection Helpline.
When the family returned for assessment on 22 August, concerns were again raised by the family consultant regarding the children’s wellbeing. The family consultant reported that the mother had presented “a small bag of confectionary” for the children’s food for the day and when asked to purchase more food for the children the mother returned with packets of potato crisps for them. The youngest child was also described as having poor hygiene and all three children reported being “hungry and tired”. It came to light in the course of the assessment that the children had only arrived home at 2am that morning after they had been taken overnight to the regional town where they previously lived by the mother to recover various items of personal property from their former home. The mother also confirmed that there was family violence on the night before the assessment to which the children were exposed.

Maturity, sex, lifestyle and background of the children and either parent

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

Each of these matters which are interrelated are of particular significance in these proceedings.
The father who is no longer actively participating in the proceedings and has been found to pose an unacceptable risk to the children is a reprehensible parent. There is a risk he has sexually abused at least the older child and he has behaved in a coercive and controlling manner to the mother which has had ongoing implications for impairments in her parenting capacity and ability to protect the children from harm.
For all of the reasons given earlier in this judgment when outlining the shortcomings in the mother’s ability to protect the children from harm and the unlikelihood that she will be able to address adequately the challenges she faces, I have significant concerns about her capacity to provide adequately for the children’s needs.
As previously noted, it is tragic that the problems presenting for these children due to the mother’s lack of capacity are intergenerational as the mother herself was the victim of inadequate parenting, exposed to risk from a young age and abused and exploited by the father himself. The implications for the children arising from the mother’s trauma, relationships with violent, coercive and controlling partners, substance misuse, emotional dysregulation, and inability to meet the children’s basic needs have been discussed at length.

Aboriginal or Torres Strait Islander background and the children’s right to enjoy their culture

It appears to have been claimed by the father at earlier stages in the proceedings that he identifies as an aboriginal person. It can also be gleaned from police records that he availed himself of an Aboriginal Legal Service when being interviewed or investigated in relation to criminal offences.
The mother maintains that she is unaware of the father having aboriginal heritage and there is no evidence to suggest that his claims in this regard are correct. There is also no evidence that the father, if aboriginal, promoted the children’s right to enjoy any aboriginal culture when the family was intact.

Family violence

Family violence is a significant matter in these proceedings and has been discussed at length when considering other relevant matters.

Any other relevant fact or circumstance

I have been concerned from the time that these proceedings were first transferred to this Court that the inadequacies in the mother’s parenting capacity and her inability to provide for the children and protect them from many domains of harm, may result in a finding that despite being the only available parent in the proceedings, she herself poses an unacceptable risk of harm to the children. It was made clear on numerous occasions that this was the basis upon which the Department was invited to intervene in the proceedings. It had been hoped that in the event that I made such a finding that the Department may seek orders whereby the mother is mandated to receive multifaceteD Service over a lengthy period of time to address the various domains of harm and the children’s needs, or orders that the Minister have parental responsibility for the children.
Unfortunately, rather than intervene in the proceedings the Department’s involvement with this family has been to provide some services and referrals to the mother which because of her challenges she has taken up in an adhoc and fragmented way. In light of the evidence of the family consultant (which for the reasons given is weighty), I consider it unlikely that the mother will make lasting change that is needed to provide an adequate environment for these children to be protected from harm or for their needs to be met. However, as the Court does not have the power to require any intervention by a State authority even when both parents pose unacceptable risks to the children, there is no available alternative proposal for the children’s future parenting under consideration.
I do not consider that dismissing the mother’s Response as has been previously suggested by a legal officer from the Department is a proper way to deal with these proceedings. If the mother’s response were dismissed, the father will continue to hold parental responsibility for the children pursuant to section 61C of the Act. Further, in order protect the children from the risks of harm posed by the father it is proper to order specifically that he is to have no contact or time with the children and to make restraints upon him coming into contact with them. For these reasons, it is less detrimental for the children that these orders are made than that the mother’s application is dismissed.

CONCLUSION

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. As there are more than reasonable grounds to believe that the father has engaged in family violence towards the mother the presumption does not apply.
The mother is the only person engaged in the proceedings. The Department has declined to intervene and the father who I have found poses an unacceptable risk of harm to the children is not seeking any orders.
Notwithstanding my findings in relation to the mother, she is the only parent seeking sole parental responsibility and having regard to the risk of harm posed by the father it is proper for him to be excluded from any role in the children’s lives, including through the exercise of parental responsibility.
Although I may consider that it is in the children’s best interests for someone other than either of their parents to hold parental responsibility for the children, I do not have the power to make such an order.
Having regard to the foregoing matters, I make the orders as sought by the mother in respect to parental responsibility, where the children shall live and that the children spend no time with and have no communication with the father. I also consider it is in the children’s best interests that the father is restrained from contacting or approaching the mother or the children by any means or attempting to do so, and is restrained from coming within 100 metres of the mother’s residence, place of employment or the children’s school, preschool or co-curricular activity.
Further, although there appears to be no means of enforcing this order, I consider it proper that the restraint upon the mother from consuming illicit drugs is made if not for any reason other than to re-enforce the importance to the mother of refraining from drug use to provide some protection for the children in her care.
I do not propose making the order with respect to the mother’s continued engagement with the Department as sought as I do not consider I have the power to do so given that the Department has declined to intervene in the proceedings. Any engagement with the Department by the mother to date appears to have been voluntary and if she is committed to such engagement continuing, then it is open for her to continue to do so on a voluntary basis.
Having regard to all of the foregoing matters, I also request that the Department exercise its powers under the Children and Young Persons (Care and Protection) Act 1998 as the powers available to me do not provide the adequate protection that these children require.
For the foregoing reasons I made the orders set out at the forefront of this judgment.

The orders that I make are as set out at the forefront of these reasons for Judgment. I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 July 2020.

Associate:

Date: 2 July 2020

[2020] FamCA 529

2 July 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Injunction

Procedural Fairness

Standing

Remedies