Thomas and Hughes & Anor
[2017] FamCA 954
•24 November 2017
FAMILY COURT OF AUSTRALIA
| THOMAS & HUGHES AND ANOR | [2017] FamCA 954 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where there is no prospect of consultation and communication between the mother and father over long term issues – Where the father has the ability to advise the mother about long term decisions for the children – Ordered the father have sole parental responsibility for the children FAMILY LAW – CHILDREN – With whom a child lives – Where post separation the children were in the primary care of the mother – Where the children have now been in the father’s care for two and a half years – Where the father has a demonstrated capacity to meet the needs of the children – Where considerable weight is given to the wishes of the children to remain living with their father – Ordered the children live with the father FAMILY LAW – CHILDREN – With whom a child spends time – Where both children want to spend time with the mother – Where he mother has been a risk to the children in the past by negligent care and unsuitable partners but also provided adequate care and loving, engaging time together – Where the risks of supervised time are outweighed by the benefit of participation in normal activities – Ordered the children spend unsupervised time with the mother nine times per year for six hours each visit FAMILY LAW – CHILDREN – With whom a child spends time – Where the maternal aunt strongly advocated for an independent relationship to be maintained between her family and the children – where the Court held the maternal aunt interferes in a way not helpful to the children – Ordered the maternal aunt’s application be dismissed FAMILY LAW – CHILDREN – Family Violence – Where the children may have been exposed to family violence during their parents’ relationship – Where the mother alleges the father was verbally, physically and emotionally abusive towards her – where the father concedes the violence was due to the mother’s illicit drug use – where the Court accepts the mother’s drug use was the cause of much of the family violence conflict between the parties FAMILY LAW – CHILD ABUSE – Sexual abuse – Where the mother has a history of moving the children into new households for the sake of new partner – where the maternal grandmother and maternal aunt viewed the supervision order over the mother to not be for the protection of the children but an unreasonable intrusion into the mother’s private life – Where members of the children’s extended family on both sides were warned the mother’s partner was a paedophile – Where the mother’s partner was opportunistically molesting the older child – Where the mother’s partner plead guilty to two charges of indecent assault of the child and was imprisoned for sixteen months in gaol – Ordered the mother to obtain the prior written consent of the father before bringing the children into contact with any person with whom she may be in a domestic relationship | |
| Family Law Act 1975 (Cth), ss 60CC, 64B | |
| APPLICANT: | Mr Thomas |
| FIRST RESPONDENT: | Ms Hughes |
SECOND RESPONDENT: | Ms Hopper |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 876 | of | 2011 |
| DATE DELIVERED: | 24 November 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | [30-31Jan;1-3Feb]; 18 -19 & 22 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bithrey |
| SOLICITOR FOR THE APPLICANT: | Charlestown Law Firm |
| THE FIRST RESPONDENT: | In person |
| THE SECOND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parental Responsibility
The father have sole parental responsibility for the children B born … 2004 and C born … 2009 (“the children”).
The father shall ensure that the mother is kept informed of:
(a)Any medical problems or illnesses suffered by the children, (or either of them), while in the father’s care, which require a child to be hospitalised, as soon as practicable;
(b)Any change to the enrolment at school of the children or either of them within seven days of such change.
These orders are sufficient authority for the mother to receive, at her own expense if any, copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities and school photographs, from any school that each child attends.
Residence
The children live with the father.
Time with Mother
Subject to Orders 6, the children shall spend time and communicate with the mother, commencing in 2018, as follows:
5.1On the first Sunday of January, March, May, July, September, November, each year from 10.00 am until 4.00 pm;
5.2On the Sunday of or following the mother’s birthday each year from 10.00 am until 4.00 pm;
5.3On Mother’s Day each year from 10.00 am until 4.00 pm;
5.4On Christmas Eve each year from 10.00 am to 4.00 pm.
The mother is restrained at all times from bringing the children into contact with any person with whom she may be in a domestic relationship (eg. boyfriend/partner/husband) without the prior written consent of the father.
Changeovers
For twelve months from the date of these orders changeovers shall be at the current contact centre and thereafter at McDonalds Woy Woy.
Communication
The mother may send letters, cards and gifts for the children to the home address of the father or as he otherwise directs.
Each party will advise the other parties and keep the other parties advised of their current address and contact telephone numbers (including both landline and mobile telephone number if applicable) and advise the other parties of any changes to these details within seven days of such change occurring.
Restraints on Conduct
Each party is restrained from making critical or derogatory remarks in relation to another party or member of that party’s family in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about another party or member of that party’s family in the presence or hearing of the children.
Each party is restrained from discussing the Family Law proceedings or the contents of any documents filed in these proceedings with or within the hearing distance of the children.
Independent Children’s Lawyer (“ICL”) to explain orders
The father shall arrange for the children to meet with the ICL at a mutually convenient time within 4 weeks of the date of these orders, for the orders to be explained and any questions the children, or either of them, have, to be answered.
Application of Maternal Aunt
The Application of the Maternal Aunt is dismissed.
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 Thomas & Hughes and Anor 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 NEWCASTLE |
FILE NUMBER: NCC 876/2011
| Mr Thomas |
Applicant
And
| Ms Hughes |
First Respondent
And
Ms Hopper
Second Respondent
AND
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in relation to two children; B aged 12 and C aged eight at date of trial.
The parties are the two parents of the children and the maternal aunt.
Five days for the trial before me had been allocated commencing 30 January 2017. Unfortunately, mainly due to two of the parties being unrepresented, the matter did not conclude within that period of time.
Two further days were allocated in May 2017 which allowed for the conclusion of a relevant criminal trial.
The hearing concluded within three further days. I reserved my decision.
History of relationship
The parents met in 2003 and began living together in 2004. The mother’s child from a prior relationship, D, then aged six, was also a member of the household.
The elder subject child was born at the end of 2004.
The parties separated for 10 months in 2007, reconciling in December of that year. The mother and children moved back into the former family home at E Town.
In January 2008 the mother’s child D moved to live with her natural father. The mother attributes this change to verbal and physical abuse of her by the father which the latter denies.[1] D had previously been molested by an elderly male neighbour in E Town which must have been a consideration in the wish of the child to move away. The child did not tell her mother about those assaults for several years.
[1] Affidavit of the mother filed 30/01/2017, par 560
The younger child C was born in 2009.
The relationship between the parties continued for a little over a year until final separation in August 2010.
The parties
The Applicant Father
The Applicant is the father. His household consists of himself, his partner of six years, now wife, Ms F, and the youngest of her four children, G, a girl aged 14 years.
The father is now aged 46 and a manager by occupation. At commencement of the hearing he had recently moved to live in H Town, a town in the Central Coast of New South Wales, about one hour north of metropolitan Sydney.
The father’s wife has four daughters. The eldest aged 22 has moved to overseas for a two year period. The next, aged 19, moved to live independently in mid-2016. The third child, aged 15, moved to live with her father in Sydney in order to attend high school there, just days prior to the hearing. The youngest child continues to live within the household.
The father was represented by solicitor and counsel.
The First Respondent Mother
The First Respondent is the mother. At the time of trial she was living alone in J Town, a township about 70 kilometres away from the new residence of the father. The mother rents a three bedroom home there.
Her relationship with her former partner was terminated approximately 16 months ago, soon, but not immediately, after the allegations of the elder child were made known to her.
The mother is aged 43. She is employed on a permanent part-time basis for a state government authority.
The young adult daughter of the mother, Ms D aged 19, lives independently with her boyfriend.
The mother represented herself. She had requested the assistance of a McKenzie Friend. The man nominated was present at Court on the second day, but he advised the Court that he felt unable to take up that role and subsequently ceased attending.
The mother herself prepared an affidavit of 655 paragraphs with a further 190 pages of annexures. She inspected material produced in response to subpoenae. She cross-examined the father and witnesses at length and would have preferred more time to continue to do so.
Her commitment to presentation of her case, and to resuming her role as primary carer of the children, was on display and undeniable.
The Second Respondent Maternal Aunt - Ms Hopper
The Second Respondent is the older sister of the mother.
The maternal aunt was joined to the proceedings as a party on 7 November 2016.
The maternal aunt lives with her husband and their four children, aged between 19 and 10 years, in K Town, a town in the Hunter Valley.
The maternal aunt is aged 46. She has been a public servant for many years.
The maternal aunt represented herself. Her interest in the children was evident.
The Applications
The Father
The application of the father to the Court is that the subject children continue to live with him, that he have sole parental responsibility for them and that the children spend supervised time with their mother at a contact centre four times per year. There is also a proposal for written communication by way of letter, card and gift.
The Mother
The final orders sought by the mother were sole parental responsibility for the children, residence with her, and that they spend time with the father on alternate weekends, half school holidays and other special times.
At the end of her oral evidence the mother changed her position to proposing equal shared responsibility for herself and the father.
The Maternal Aunt
The application of the maternal aunt is for the children to spend either one weekend per month with her or two periods of one day per month and for telephone contact with the children weekly and on special occasions.
History of Relevant Events
At separation in August 2010 the father left the family home. The subject children remained living with the mother.
Over the following five years there was recurrent litigation in the Federal Circuit Court over arrangements for the children.
In October 2011 final parenting orders were made in the Federal Circuit Court by consent (“the 2011 orders”). The orders provided for equal shared parental responsibility, residence with the mother and substantial and significant time with the father.
The father knew at that time, as he had throughout the parties’ relationship, that the mother was an intermittent user of marijuana, her use escalating when she felt anxious.
Despite his concerns about the mother’s drug use the father settled for the children being in the care of their mother.
There was a conceded contravention by the mother in mid-2012 but otherwise orders were complied with.
Mother moves to L Town - 2012
In December 2012 the mother moved with the children to L Town. She lived there for about 18 months.
In mid-2014 the father became concerned about the presentation of the children and retained them.
On 4 August 2014, the 2011 Orders were varied but the children continued to live with their mother.
Mother moves from L Town to Suburb M
In mid-October 2014 the mother moved with the children away from L Town. She moved in to live with her then 16 year old daughter D who was staying in her own father’s rented home in Suburb M whilst he was overseas.
There was an immediate adverse impact on the attendance at school of the elder child which had been poor even in the first half of the year. It was a long trip to school which often did not happen.
The volatile conflicted relationship between the mother and her daughter D saw the police called to the property several times. In her oral evidence the mother tried to minimise the effect this situation had on the subject children but I accept that their stability was badly affected. B was worried about her mother.
Mother begins relationship with Mr N
In late 2014/early 2015 the mother formed a relationship with Mr N.
In April 2015 the mother and children moved in to live with Mr N.
On 3 July 2015, after four months, the mother separated from him.
At that same time the father made a decision to retain the children in his care. He believed that the mother was using drugs heavily and neglecting the children. He based these views on his own observations, statements by the elder child and information from the maternal aunt.
On 9 July 2015 the mother filed a Recovery Application. In her own terms, she was in crisis. Messages suggestive of suicide sent by the mother to the maternal aunt’s husband support that.
Initiating Application by Father - 2015
On 30 July 2015 the current application was filed by the father in the Federal Circuit Court. He sought an order for change of residence arising from concerns about the mother’s alleged drug use and matters of neglect of the children. At that point the children had been living with him for about three weeks.
Since July 2015 the children have lived with their father.
In August 2015 the mother miscarried a pregnancy to Mr N.
August 2015 - Interim Orders
On 26 August 2015 interim orders were made providing for a change of residence for the children to the home of the father and alternate weekends with the mother. The change of residence arose mainly in response to allegations of drug abuse by the mother impairing her capacity to care for the children.
It is apparent that an order was intended to be made for the maternal grandmother to supervise contact between the children with the mother. The evidence of both parties supports the finding that each parent believed that such an order had been made.[2]
[2] This is confirmed in a note to the Child Inclusive Conference Memorandum dated 23/09/2015, page 1
There was also an order for drug testing by the mother. The words “supervised chain of custody” were pronounced but omitted from the order.
The solicitor for the father soon after[3] raised both matters by letter with the judge who had carriage of the matter in the Federal Circuit Court.[4] The Orders were later rectified as to supervision.
[3] 24 September 2015
[4] Exhibit 23
Mother begins relationship with Mr O
Soon after those orders were made the mother began a new relationship with Mr O, having recently ended the relationship with Mr N.
Child Inclusive Conference - September 2015
On 23 September 2015 the parties and children were seen in a Child Inclusive Conference with a Family Consultant.
At this point the concerns raised by adults and the elder child were around drug abuse by the mother and the state of her mental health.
Both children, especially the younger child, were missing their mother although content enough in the care of their father and step-mother.
Both also considered that “despite perpetual conflict and acrimony between the parents”[5] each parent believed that it was important for the children to maintain a relationship with the other parent.
[5] Child Inclusive Conference Memorandum dated 23/09/2015, page 1 point 9
There was no reference to a new relationship for the mother although it was around this time that Mr O came into the life of the mother and the children.
In late September/early October 2015 the mother began to live with Mr O.
Shortly thereafter information was provided by the mother’s previous boyfriend Mr N that there was reason for the mother to be cautious in bringing the elder child in contact with Mr O. He raised with the father, the father’s wife, and the maternal aunt, stories he had been told about the mother’s new partner using drugs and having molested a 12 year old girl.
Tragically there was suspicion by all parties about Mr N’s motivation for telling what he did. The mother suspected malice arising from jealousy of her new partner. The father was worried by the information but wondered whether personal bitterness towards the mother fuelled the report. The maternal grandmother thought people were “just being nasty”.
On 9 October 2015 an order was made by consent to the effect originally intended,[6] that the children’s time with the mother be at all times supervised by the maternal grandmother.
[6] Order 4 of orders dated 26 August 2015
The maternal grandmother did not consider at that time that there was any reason for supervision of her daughter in the company of her new partner. It is understandable. The supervision order was made in the context of impaired capacity of the mother through drug use.
On 26 October 2015 further interim orders were made in the Federal Circuit Court providing for an additional and/or alternate supervisor, being the maternal aunt.
That order was made on the day after the maternal aunt says she was told about Mr O allegedly abusing a 12 year old girl.
In late October/early November 2015 the maternal aunt repeated to the mother what Mr N had told her: “There has been an allegation about [Mr O] touching a 12 year old girl inappropriately.”
The maternal aunt gave her sister some advice, “Flick him, if there is a hint of anything untoward get rid of him.” The mother is described as reacting badly “as she thought that everyone else was trying to control and sabotage her life.”[7]
[7] Affidavit of the maternal aunt filed 07/12/2016, par 105
The maternal aunt was alert to the risk. On 5 December 2105 she supervised her sister’s birthday celebration with the children. Mr O was present and she reports herself as “supervising very closely” but “not observing any strange behaviours” from him.
As history has revealed Mr O was a brazen predator with an ability to charm and disarm family members as necessary for his criminal purposes.
Family Report December 2015
On 15 December 2015 the parties the children and others were interviewed for a Family Report. The report was released three days later.
The mother’s partner Mr O did not attend. When the Family Consultant asked the mother about that relationship she reported that “[Mr O] [the partner] found [C’s] behaviour too challenging” and had “walked away from the relationship on the weekend prior to the Report.”[8]
[8] Family Report dated 17/12/2015, par 86
The mother then commented to the reporter “As far as I’m concerned my children come first”.
Apparently not. The evidence of the mother is that she reconciled with Mr O one week after the interviews.[9]
[9] Affidavit of the mother filed 30/01/2017, pars 382 and 384
It seems unlikely that there was any separation at all. However if there was, and the cause was Mr O being unable to cope with the behaviour of a then six and a half year old boy, then to reconcile with him would not be a decision which put the children first.
In view of the mother’s hostile reaction to the hearsay information from her sister and the children’s father about Mr O I consider that it is at least likely that the mother chose to keep Mr O away from the Family Report interviews to deflect any criticism of him or herself.
The evaluation section of the report raised concerns about both children’s emotional and psychological well-being, particularly C’s inability to self- regulate his emotions and his escalating oppositional behaviour. Likely, in the tentative view of the Family Consultant, to reflect an insecure or disorganised attachment to the mother.[10]
[10] Family Report dated 17/12/2015, pars 123-125
B would not make eye contact, sat sideways on her chair with her arms covering her face. She gave single word responses and was assessed as not wanting to participate in the interview.
One available explanation in retrospect for the elder child’s behaviour is that by then she had been assaulted by Mr O more than once[11] but had apparently not revealed that fact to any adult.
[11] Magellan Report dated 15/03/2016, page 8
The Family Consultant strongly stated her support for the father’s concerns about the level of supervision of the mother when the children were spending time with her. She was clear to say that that drug use alone was not the risk she identified:
There is also a much more serious risk of ongoing emotional and psychological harm to the children, as posed by the mother’s unpredictable and erratic behaviour and limited parenting capacity.[12]
And
At this point in time the mother is not functioning at a level whereby she is able to identify and meet the needs of the children.[13]
[12] Family Report dated 17/12/2015, par 130
[13] Family Report dated 17/12/2015, par 131
These views about risk are entirely consistent with the mother, in the previous 12 months, having introduced two new male partners into her home and the lives of the children. She had shrugged off as unreliable, information that one of them, Mr O, had sexually abused a young girl. She was defensive about her own mental health and drug use.
The father expressed strong concern about Mr O. He referred to having been told that this man had a history of drug use including ice and that he had molested a 12 year old girl. The father intended to issue a subpoena for the records to check the accuracy of that information. He was worried that the children were in contact with this man at his home and on his boat.[14]
[14] Family Report dated 17/12/2015, par 74
If the maternal grandmother was worried about her daughter she hid her opinion from the Family Consultant. She is reported as having “described her daughter’s parenting capacity in glowing terms.”[15] She also expressed the view that her supervision of the mother “was not really necessary.”[16]
[15] Family Report dated 17/12/2015, par 102
[16] Family Report dated 17/12/2015, par 99
The most important characteristic of an appropriate supervisor is a willingness to accept the possibility that an identified risk might be real or an allegation might be true. In retrospect, neither the maternal grandmother nor the maternal aunt for the same reasons was the right supervisor.
Further, once suspicions arose about Mr O, the better arrangement would have been for supervision of the children at all times by a supervisor not simply “at all times with the mother”. The elder child had sleepovers with other people and both children were cared for by Mr O. It was the mother’s impaired capacity as a parent which gave rise to the supervision order.
Unfortunately the maternal family appear to have interpreted the Court order not as a means of protection of the children but as unreasonable intrusion into the private life of the mother.
Christmas holiday time 2015
Christmas Day 2015 and the days following saw a large number of the maternal relatives gather to celebrate in Fingal Bay at the home of the maternal grandmother and her husband. The children were present until 29 December 2015.
By 28 December 2015 the maternal aunt and her family had left the Christmas gathering. This left the maternal grandmother as the sole supervisor of the mother’s time with the children. The maternal grandmother was no doubt keeping a watchful eye on her daughter but regarded Mr O, as all adult maternal relatives did by then, as a charming and likeable man.
A disclosure of sexual abuse January 2016
On 8 January 2016 in her father’s car on her way to spend time with her mother the elder child told her father that Mr O had “touched her private parts” on several occasions. The father drove back home. He straight away told the maternal grandmother who contacted and told the mother.
Appropriately the father contacted police and withheld the children. Thereafter the children did not see their mother again until November 2016.
For her part, the mother listened to an emotional denial of wrongdoing by Mr O which she was inclined to accept.
In his company she rang the police to try to elicit information. This is a matter of some significance. Had the mother at least kept an open mind on the possibility of wrongdoing by her partner she would not have sought a tactical advantage for him in that way. Very properly no information was given by police.
That evening the father sent the maternal grandmother a text:
I know your (sic) not well. I’m very sorry to have you go through this. The police are involved as [Mr O] is a paedophile. We are not blaming [Ms Hughes] at all but we will protect the children.[17]
[17] Affidavit of the mother filed 30/01/2017, par 425
At 7.00 am on 9 January 2016 the mother said she received a message from Mr O telling her that the father’s wife had sent him a text with a picture of a gun and referred to him as a paedophile. The mother’s response to him was, she asserts: “Do not contact me, I’m sick thinking about what you had done.”[18]
[18] Affidavit of the mother filed 30/01/2017, par 429
There is no explanation in her affidavit for the mother’s complete change of attitude overnight (if those words were said). Perhaps Mr O revealed something to her. Perhaps she had had suspicions. It is unclear.
Application for supervision in a centre
On 12 January 2016 the father filed an Application in a Case for the children to spend supervised time with the mother at the P Contact Centre.
JIRT substantiates sexual harm to elder child
On 19 and 27 January 2016 the Department of Family & Community Services (“the Department”) and Police [the JIRT team] interviewed B and substantiated sexual harm.
On 1 February 2016 the mother’s partner was charged with four counts of indecent assault of the child. A provisional Apprehended Domestic Violence Order was obtained for her protection.[19]
[19] Affidavit of the father filed 1/12/2016, annexure I
Transfer and allocation into Magellan List
On 4 February 2016 orders were made in the Federal Circuit Court suspending orders for time for the children with the mother. The parenting proceedings were transferred to this Court and allocated into the Magellan Protocol.
Magellan Report 3/2016
The Magellan Report noted and set out in a table a history of notifications since 2011 in relation to: drug use by carer (mother), neglect-hygiene, medical, educational, risk of physical harm, risk of psychological harm, sexual harm and legal guardianship issues.
The allegations of sexual assault of the elder child were set out. The child was interviewed by JIRT on two occasions in January 2016. There were five or six incidents of her being touched by Mr O on her bottom and vagina through her clothes, fondled and grabbed when she tried to get away. At times there were no other adults in the home, at times others were present [Christmas].
The child tried to stay away from her mother’s partner but her mother directed her to talk to him. It must be the case that the mother missed seeing the child’s distress/worry, or saw it and dismissed the behaviour as rudeness.
The Department concluded that the two children were safe in the care of their father.
On 4 April 2016 the matter was declassified from the Magellan Protocol.
Conviction of Mr O
The outcome of the criminal trial of Mr O was conviction after a plea of guilty to two charges in respect of the elder child. Several offences in respect to another child/children were also taken into account. The sentence was sixteen months in gaol.
Update Family Report May 2016
On 17 May 2016 the parties and children were interviewed again for an updating report.
On this occasion the mother said she had ended the relationship with Mr O on 22 January 2016. This throws serious doubt on the mother having told him on the day after she learned of the allegations [on 9 January 2016] that it made her sick thinking of what he had done [to the child].
On 7 June 2016 an interim order was made by consent that the mother spend time with the children at a contact centre, two hours per fortnight, and the dates for this hearing were allocated.
Due to delays in allocation of time in the contact centre and the understandable unwillingness of the father to consider a less structured arrangement, the first visit did not take place until late November 2016.
Since then the children have spent fortnightly time at a contact centre with the mother. The situation of the parties and children has been pressured and complex.
The Issues
The issues arising for determination are:
a)Are there limits on the capacity of either of the parents or the aunt to meet the needs of the children;
b)Is there a sufficient relationship between them for the mother and father to share parental responsibility or should the parent who has residence have sole parental responsibility;
c)Are the children safe in the household of the mother;
d)What time should the children spend with the parent/relative with whom they are not living.
Evidence
The documents relied on in respect of the application were as follows:
The father [Applicant]
(a)Amended Initiating Application filed 12/07/2016;
(b)Affidavit of the father filed 1/12/2016;
(c)Affidavit of Ms Q filed 2/12/2016;
The mother [First Respondent]
(d)Amended Response filed 6/07/2016;
(e)Affidavit of the mother filed 30/01/2017;
(f)Affidavit of the maternal grandmother Ms R filed 2/12/2016;
The maternal aunt [Second Respondent]
(g)Response filed 25/11/2016;
(h)Affidavit of the maternal aunt Ms Hopper filed 7/12/2016;
Reports
(i)Family Report dated 19/05/2016;
(j)Magellan Report dated 15/03/2016.
(k)Family Report dated 17/12/2015;
(l)Child Inclusive Conference dated 23/09/2015;
Oral Evidence
The Father - Mr Thomas
The father gave his evidence in the first part of the hearing. He did so in a serious and straight forward way. I am satisfied that he is committed to keeping the children safe and also to complying with Court orders.
However, I formed the impression that the father did not attend to questions well. For some reason he did not hear all the detail of several questions, causing him to answer non-responsively, that is by answering a question that was not actually asked. This may be a wider problem than a nervous inattention to detail in a court room setting.
The father was adamant, and I accept he held the belief, that an order had been made in this Court or the Federal Circuit Court that the children were to have no contact whatsoever with their mother. That is not the case. The most likely explanation is that on 4 February 2016 when the matter was transferred to this Court, an order was made suspending orders made for the children to spend time with the mother.[20]
[20] Federal Circuit Court Orders dated 4/02/2016
I concluded that the father had not given any independent consideration to the children’s feelings about being separated from their mother after January 2016. This was not through lack of concern for them but through focus on the looming criminal trial where the elder child was at that time expected to be a witness. He was also suffering the ongoing consequences of having learned that B had been molested by the mother’s former partner despite known fears about that particular man and orders for family supervision.
The father was uncomfortable with questioning by the Independent Children’s Lawyer about the children’s distress over being burdened by choosing between their parents and wanting to spend more time with the mother, particularly C. I consider that he has always known that the children would like to spend more time with their mother but has maintained unwavering focus on their safety. It is understandable.
The Father’s Wife - Ms Q
The father’s wife impressed as a well-intentioned and kind person, attuned to the children’s feelings.
She was serious, accurate and considered in her responses.
She freely responded to a question about C and his mother. “[C] is seven. He loves his Mum dearly and he misses her. He’s always missed his mother. I expect him to. He is very happy at home but of course he would miss his mother.”
In July 2015 it was to Ms Q that B turned with her fears and worries about her mother’s use and supply of drugs and like-minded friends. She was worried about her mother, D who was also using drugs but also her brother being hit. “Mum gets over the top angry. She hits C on the arms and legs and shakes him.”[21] A relationship of trust was clearly in place for those confidences to have been shared.
[21] Affidavit of Ms Q filed 2/12/2016, pars 53-56
When cross examined directly by the maternal aunt Ms Q remained courteous and calm. This was impressive since the majority of questions appeared to relate to self-exoneration by the aunt. Ms Q explained that she had stopped communicating with the aunt after a police officer told her to do so “because it was detrimental to [B’s] case.”
The Mother - Ms Hughes
The mother was a passionate witness consistent with the loss of having the children living with her.
The mother was bitter about Ms Q, who she perceives has taken over her role although not critical of her level of care.
Predominately the mother was defensive. For instance, about poor school attendance for both children in 2014 where there were approximately 40 days of full or partial absence for each child. She rejected the description “appalling” but offered “not that great”.
The mother conceded marijuana use and her failure to comply with drug screening. She denied that she had diluted a sample but conceded “I drank a lot of water that day”.
Her cross-examination was excruciating at times as details of her drug use were extracted.
Likewise, the mother made only the most grudging concessions about her exposure of the children to violent behaviour and profane language, directed at her and police, from their older sister D. The mother was evasive and defensive on this topic. She denied telling her doctor that D trashed the house, whilst conceding that the patient notes were otherwise accurate.
The mother was also frustrated and angry about having been sidelined by the relationship between the maternal aunt and Ms Q:
I feel I haven’t had any opportunity to speak to the father. The step mother and my sister have been the to and fro-ers.
Resentment by the mother about her sister talking to others about her was evident.
The mother was ambivalent about the orders her sister was independently seeking. She supported them only if she was included.
The mother was taken to the impact on the children of past and ongoing parental conflict. The mother stoutly denied that she had contributed to B’s feelings of burden. The proposition was put that B had wanted her mother to get help for drug use. The mother responded “from information she had probably been told by someone else”.
Her next statement was “I’ve never done drugs in front of my daughter.” I infer that the mother felt that B wouldn’t have worried because she hadn’t seen her mother’s drug use. If that is the case it is a naïve view about how much the child would have known particularly when drug use was a vexed subject between her parents.
The mother was unable to acknowledge a range of matters impairing her capacity as a parent.
Having said that the best of the mother is revealed in Contact notes.[22] The mother was warm and engaging with the children and responsive to direction by Centre workers.
[22] Exhibit 8
The Maternal Grandmother - Ms R
The maternal grandmother herself composed an affidavit[23] which was sharply critical of the father as a person and as a father and of his partner Ms Q.
[23] 7/12/2016
On 13 January 2017 the maternal grandmother wrote a four page letter to a psychologist,[24] referring critically to the contents of the two family reports, and urging him to write a report which would assist her daughter:
If you are able to write a letter that would indicate that trauma has contributed to [Ms Hughes’] irrational behaviour during this unbelievable period of her life we would really appreciate it.
[24] Exhibit 26
She conceded in cross-examination that she was trying to influence the content of the report rather than allowing an expert “to do a job in his own way.” In any event the report was not written.
The maternal grandmother supported the application by the mother for the children to return to live with her. She denied any element of risk to the children in doing so. It is understandable. At one point in her evidence the maternal grandmother described the mother as “grief stricken and sad.” She knows her daughter to be a loving and affectionate parent.
I take into account the fact that the maternal grandmother was fairly desperate to help her daughter self- represented as she was. She was also shocked over the assaults on her beloved granddaughter and self-reproachful.
Nevertheless the evidence suggests that the maternal grandmother has worried about the mother particularly her drug use, “she self-medicated with cannabis throughout her adult life”, her unpredictable behaviour and the aggressive outbursts she has experienced from her eldest daughter D.
The Maternal Aunt - Ms Hopper
The maternal aunt was an unimpressive witness in her own case.
She is a public servant, well-educated and articulate. She was well prepared both in her documents and for conducting cross-examination.
The problem was her focus which was almost exclusively on self-exoneration from blame for the sexual assault of her niece B [the elder subject child].
There are several references to her belief that she was not present when the assaults on the child took place.
I concluded that the motivation for the maternal aunt to be joined as a party was a wish to restore her reputation which she perceives has been damaged through events relating to those assaults. There may be a secondary motivation relating to her authority in the extended maternal family.
For whatever reason very few questions were asked by her about future arrangements for the children or directed, in the case of the Family Consultant, at what would promote their future welfare.
She was throughout the proceedings both critical of, and defensive about, her sister. There have been periods of months when they have not spoken to each other.
On her own evidence it is the habit of the maternal aunt to involve herself with considerable confidence in the lives of others. Some examples of this are as follows:
i)The maternal aunt referred to herself as a “mediator” between her sister and the father, after their separation, “to encourage a relationship of mutual respect for the benefit of both [B] and [C].”
She noted that her sister perceived this as interfering “because she hadn’t known of the phone calls between the two.”[25]
[25] Affidavit of the maternal aunt filed 7/12/2016, par 14
ii)When the mother began living with her new partner Mr N in April 2015 D became part of that household. The maternal aunt began telephone calls with Mr N undisclosed to her sister because she became concerned that “the living arrangement was taking its toll” on her sister’s relationship. The mother was unaware of it.
That relationship broke up in July 2015.
The maternal aunt in her affidavit said: “I interfered within their relationship and was partly to blame for their relationship breaking down. I was trying to assist [them] resolving their grievances.[26]
iii)In July 2015 the father retained the children. The maternal aunt in her affidavit[27] offered an explanation for why the mother was late to collect the children that day. At midday she and her husband collected their car which had been on loan to the mother, before she could use it to collect the children. The mother was due to collect them at 10.00 am but had slept in.
Concerned about the mother’s emotional state, (no doubt arising from her inability to collect the children) the maternal aunt chose to ring the father’s wife to say: “I think we need to get together for a coffee as I am very concerned about [the mother].” Conversations by text followed.
If the aunt mentioned to Ms Q her collection of the car, she does not record it.
iv)On that same day the mother sent a text to the husband of the maternal aunt “When I die ensure your wife is NOT at my funeral. I have no reason to live or breathe. Take care”
The maternal aunt then rang her own mother and the police without seeing or speaking to her sister first.
In her affidavit she expressed regret about that.
v)On 13 July 2015 the father’s wife invited the maternal aunt to see the children at the solicitor’s office. She spent an hour there. When she took B to the bathroom she explained to [the child] that she was “worried about her Mum”.
vi) In October 2015 the maternal aunt volunteered to henceforth supervise her sister’s time with her children. An order was made. Over Christmas 2015 she left the maternal grandmother as the sole supervisor of mother and children for the last two days of the period having apparently decided that there was no need for her to be involved.
[26] Affidavit of the maternal aunt filed 7/12/2017, par 58
[27] Affidavit of the maternal aunt filed 7/12/2017, par 61
I conclude that the maternal aunt has at times interfered in a manipulative and melodramatic way in both her sister’s and her niece’s life with adverse effect.
I take this into account in balancing the benefit to the children of connection with their maternal uncle and four cousins against the risk of emotional harm from being caught up in the destructive unpleasant side of the relationship between their mother and aunt.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
There is no prospect of consultation and communication between the mother and father over long term issues.
The children felt burdened by the conflict between their parents in 2015. Since then there have been tumultuous events which have destroyed the low level of trust which did exist between them.
The father has the ability to keep the mother advised of decisions about school, health, religion and other long term matters.
The Family Consultant recommended that the children continue to live with the father and for he to have sole parental responsibility. I accept that recommendation.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The Family Consultant recommended supervised visits four times per year in a contact centre for identity purposes.
The Independent Children’s Lawyer (“ICL”) proposed some monthly visits on six occasions each year and on three special times each year (Mother’s Day, the Mother’s birthday and Christmas Eve.
Whilst I share the concerns of the Family Consultant about the safety of the children I take into account that the children have now been having supervised visits in a centre for a year. At 13 B will be reluctant to continue what she will likely perceive as childish activities in a centre.
Both children want to see their mother and spend time with her. She has been a risk to them in the past by negligent care and exposure to unsuitable partners but she has also provided adequate care and loving, engaging time together.
I consider that the risks associated with six hours of supervised time nine times per year are outweighed by the benefit of participation in normal activities, especially extended maternal family events.
To be cautious, changeovers should be at the contact centre for the first twelve months. If the mother were to be so foolish as to attend to collect the children drug affected the children would not be made available and an application to discharge all orders for time would be hard to resist.
The needed to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The children may have been exposed to family violence during their parents’ relationship [2003-2010]. B was almost five and C about 15 months when the parties separated.
The mother described the father during those years as angry, controlling physically violent and verbally abusive towards her. She referred to his excessive use of alcohol. The mother also asserts that he was in full-time work throughout the relationship which suggests that his alcohol use did not disrupt his functioning in society.
She asserted that her older child D went, in 2008 aged 10, to live with her own father because of the father’s cruelty to her. If that were to be accurate the mother’s capacity as a parent was impaired; the inevitable inference being that she put her personal need for the relationship to continue before the safety of her children.
There is however evidence of a different reason for D going to live with her father. There was a physical fight between D and her mother when the child was 10. The mother kicked a door. The resulting injury required 120 stitches. Further, D was assaulted by a neighbour.
The father refers to the mother’s use of marijuana at addictive levels. The mother conceded drug use and that the father did not approve. She did not use the drug in front of him.
At the date of separation in August 2010 the parties had firm plans in place, with deposits paid, for their wedding which strongly suggests ongoing mutual commitment.
Post separation the children were in the primary care of their mother.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
In September 2015 the children had been living with their father for about three months. Both children identified to the Family Consultant[28] their greatest concern at that time as “the perpetual conflict and acrimony between the parents.” Both felt burdened by the notion of having to choose between their parents. That pressure was noted to have intensified during the recent change of residence.
[28] Child Inclusive Conference Memorandum dated 23/09/2015, page 2, point 9
In interview for the first Family Report[29] B was physically withdrawn and quiet. She expressed her preference for “the judge to sort it out”. C was reluctant to discuss why he might be there.
[29] Family Report dated 17/12/2015, pars 106-115
In 2016 in interview for the second family report[30] there was marked change.
[30] Family Report dated 19/05/2016, pars 80-93
B was re-assured that she would not be questioned about the assaults on her and the looming trial. She relaxed and spoke freely and positively about living with her father, her step mother and her four step sisters “my sisters”
She commented on C that her brother’s behaviour had changed in a good way “he is much nicer to be around”.
She was clear to say that she wanted to remain living with her father. She said she would like to see her mother again after her mother had “sorted herself out”.
The Family Consultant explored her understanding of that adult sounding phrase. B explained that her mother did some things that “aren’t nice” and that she needed help to do things differently. I conclude that B had been assisted by the father or his wife to come to this position which was helpful to her.
B also thought that her mother would be angry with her for not wanting to live with her. If that is what B believed she was being courageous in expressing such a firm view about residence.
C likewise was open to talking. He liked living with his father and step-mother and got along well with his sister B and his step-sisters. He described himself as “never in trouble anymore” and that he “really likes school.”
When asked about his mother C freely stated that he missed her and would see her at some point “when things get sorted out”. Again that phrase is likely something that his father or step mother used to help him understand his situation.
I conclude from these changing views and presentations over time that both children feel settled, safe and happy with their father and his household.
I give considerable weight to the wish of each to remain in the care of their father
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The children have a loving trusting relationship with their father and his partner. They also enjoy close relationships with Ms Q’s four daughters.
B has struggled in her relationship with her mother, not because she doesn’t love her, she clearly does, but rather because she was worried about her mother’s behaviour such as smoking drugs and fighting physically with D. Her mother encouraged, if not directed, her to be friendly and affectionate to Mr O. B confided in her father when her mother’s confidence and affection for that person proved to be misplaced.
C has missed his mother very much but has settled well with reassurance and has also enjoyed the safe calm approach of his father’s household.
Both children have a loving affection for their maternal grandmother and maternal aunt and uncle. B is close to her cousins.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The father paid child support after separation and has now willingly taken on the full financial responsibility for the children.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
To remove the children from residence with their father and step mother, back to living with their mother would likely unravel all the careful work which has gone into the stability favourably reported on by the Family Consultant.
They are doing well but the risk of another unsuitable partner and/or careless parenting by the mother whilst drug affected, is unacceptable.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
The Father
The father has a demonstrated capacity to meet the needs of the children.
He acted decisively and protectively when B confided in him about the assaults on her.
By his efforts and those of his wife the children have settled well in his care over the past two years.
C’s behaviour has improved. B has recovered from her ordeal to feel contented and safe.
The father probably overlooked the fact that the children would be missing their mother and worrying about her during 2016 when they did not see her. However, I accept he was prioritising safety. Fortunately his wife was alert to the issue and allowed the children to express their feelings.
The Mother
The mother loves the children deeply.
She bitterly regrets introducing Mr O into their lives. Whilst I accept that she does, the mother has a history of moving the children into new households for the sake of a new partner.
She did so with the father, moving her older daughter in with him within months at most of meeting. Post-separation there were at least two relationships where she expected the children to be as whole hearted about new partners as she was. B did not feel able to confide in her mother that Mr O was opportunistically molesting her whenever he got the opportunity.
The mother appears to trust new partners optimistically rather than on experience of their actions over time. Her judgment is flawed in this respect.
The mother has been a marijuana user for years. If she understands that the effect of the drug makes her a less available parent, less attentive in day to day care, it was not apparent in her evidence.
However the mother brings a sense of fun and light heartedness to her parenting and the children love her for it.
She may or may not accept that they have settled well with their father and wish to remain there.
If she can shield them from her own distress in the coming years that relationship could be fully restored. If she cries when they have to leave, as she has done in the past, or criticises the father or members of his household to the children her importance to the children will likely diminish.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
B is now 13, and at high school. Her father values education and attendance at school. Adolescence is the beginning of a desire for independence. Nevertheless regular time with her own mother will be enjoyable if managed well by the mother and will enhance her self-confidence.
She will also benefit from contact through her mother with the maternal family by whom she is very well loved.
C is now eight and still a little boy.
He had a rough time at the hands of Mr O who probably had little interest in him.
C has missed his mother and probably still does. He will undoubtedly enjoy regular time with her and will likely want more of it. I am confident that his father will help him to understand the decision that has been made.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
The older child B has been the victim of sexual assault by a perpetrator now in gaol who at the relevant time was her mother’s partner.
There are allegations by the mother of verbal, physical and emotional abuse of herself by the father, and in the early years of the relationship, her older daughter.
The father concedes anger arising from repeated discoveries by him of equipment for marijuana use by the mother, such as bags of the drug and bongs. The house and the car on occasions smelt of the drug.[31] There probably was significant conflict on this issue.
[31] Affidavit of the father filed 1/12/2016, pars 14-20
The parties separated when B was two years old. Ten months later they reconciled had a second child and made plans to marry. Conflict over the same issues continued.
The mother’s assertion that the father was cruel to her older daughter throughout the period she lived with them, leads to two possible conclusions. One is that he was cruel and the mother remained in the relationship giving priority to her own needs and wishes over the safety of her young child. The other is that the father was not cruel and the mother has fabricated the allegation to bolster her case for the residence of the subject children being restored to her. Neither conclusion is positive about the attitude to parenting of the mother.
The mother found the father critical and controlling. The father found the mother self-indulgent and negligent. Those perceptions are reflections of the very different nature and attitude of the parties.
Any other fact or circumstance that the court thinks is relevant
The maternal aunt strongly advocated for an independent relationship to be maintained between her family and the children. There are close bonds between the maternal cousins and it seems a special fondness felt for B by the maternal aunt, as for her own daughters.
The ICL proposed orders for five weekends per year, time in each school holiday period and at other special times.
I take a different view.
The habit of the maternal aunt to interfere, rather than openly intervene, has not been helpful to the children. She has spoken to people close to the mother about her fears and views without speaking to the mother directly first. The relationship between the mother and the aunt is ambivalent and competitive.
Further there is the allegation that the maternal aunt supplied a urine sample for the mother when drug testing was ordered but the words “chain of custody” inadvertently omitted from the order.
Ms Q did not step back from her assertion that the maternal aunt told her that she had assisted the mother in that way. She firmly denied mistake about what she was told. There was regular communication between the two women at the time. The maternal aunt was urging Ms Q and the father to take the children into their care. I accept her evidence on that point.
The maternal aunt denied doing so and denied saying she had done so.
On balance it seems highly unlikely that a public servant with a family of her own to consider would act in a criminal way and falsify a drug screen.
There is however a possibility that the maternal aunt told Ms Q she had done so for reasons of her own, for instance to persuade her about the seriousness of the mother’s drug use or for other reasons.
The orders proposed, in combination with the orders for the children to spend time with the mother, would leave the children open to being told conflicting versions of past events and to conflicts of loyalty. They would also be a disruption to participation in paternal family events and school and extra-curricular activities.
In my view the children will do better seeing their mother as the primary focus with the mother to include other maternal family members at her discretion.
Conclusion
The children, to use the word of the Family Consultant, have “flourished” in their father’s care. They have now lived with him for two and a half years.
There is no trust at all between the parents and it is most unlikely to be restored. In such circumstances the children will do best if the parent they live with, the father, can make all the necessary decisions about their welfare. They were sensitised to parental conflict before they moved to live with their father and should not be exposed to more of it, to any extent.
There is provision for the children to spend time with their mother often enough to meet their need to know that she is alright and continues to love and be interested in them but not so often that they are disrupted in their participation in paternal family events, school and extra-curricular activities.
I have allowed time, about six weeks, for the children to learn about and understand the new arrangements and also for the mother to come to terms with the orders before the periods of time start.
If there are supervised visits already arranged for the balance of 2017 they should take place.
There is express restraint on the mother involving any new partner in periods of time with the children without the prior written consent of the father. I consider the order will be a reassuring factor for the children, especially B. The implications of the order will be explained to the children when they meet with the ICL.
Finally it is critical that the parties and wider family comply with orders not to denigrate any member of the children’s family circle and not to discuss these proceedings with the children. Hurt and bitter feelings must be contained by the adults.
Orders are made accordingly.
I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 November 2017.
Associate:
Date: 24 November 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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