UNWIN & UNWIN

[2014] FamCA 277

FAMILY COURT OF AUSTRALIA

UNWIN & UNWIN [2014] FamCA 277

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – parental responsibility - children to live with the father – father to have sole parental responsibility - children to spend supervised time with the mother for a three month period – mother to undergo drug testing to determine the time she will spend with the children in the future - where the mother has abused alcohol and illicit substances and suffered from gambling addiction – where it is found that the mother did not provide adequate supervision, food and clean clothing at times - sexual abuse allegations made by the father against the mother’s teenage son not substantiated – family violence allegations made by the mother not substantiated – no risk of harm to the children in the father’s care

FAMILY LAW – INJUNCTIONS – Mother to ensure that the children do not come into contact with her ex-partner – where the father has concerns for his safety in relation to the mother’s ex-partner and other associates of the mother

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT: Mr Unwin

RESPONDENT: Ms Unwin

INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

FILE NUMBER: (P)NCC 2859 of 2012

DATE DELIVERED: 1 May 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 3, 4, 5 and 6 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davies

SOLICITOR FOR THE APPLICANT: Richardson Legal

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

Orders

1. That all previous parenting orders are discharged.

2. That the children B born … 2007 and C born … 2009 (“the children”) shall live with the father.

3. That the father shall have sole parental responsibility for the children.

4. That the father shall advise the mother in writing of any issue requiring a decision relating to the long term care of the children (including but not limited to proposed change of primary school, enrolment at high school, elective surgery, attendance on a medical specialist, religious instruction) and shall

   (a)set out his own views and proposal;

   (b)invite the views of the mother and her proposal in relation to that issue within 28 days;  AND

   (c)having considered the views of the mother in coming to a decision the father shall then advise the mother in writing of that decision.

5. In relation to education the father may:

   (a)       confirm enrolment for B at D Town Public School;

   (b)       enrol C at D Town Public School in due course.

6. That the order for the appointment for the Independent Children’s Lawyer is discharged after the expiry of six calendar months from the date of these orders

7. The Independent Children’s Lawyer shall make requests to the mother for her to undertake urinalysis in accordance with the protocol, on three occasions randomly within the three month period immediately following the date of these Orders.

Time with the mother

1. Minimum contact time between the children and the mother is defined as follows:

   (a)on the second Sunday in February each year between 2.00 pm and 4.00 pm;

   (b)on the third Sunday in July each year between 2.00 pm and 4.00 pm;

   (c)

   on the second Sunday in November each year between 2.00 pm and

   
   

   4.00 pm;  and

   (d)

   on the third Sunday in December each year between 2.00 pm and

   
   

   4.00 pm.

2. The mother shall spend time with the children as follows:

   (a)for a period of three months after acceptance either at a Contact Centre or with a Supervision Service nominated by the mother in the Central Coast area on alternate Sundays, with H able to attend at the discretion of the mother, but no other person to be present.

3. Both parties to forthwith do all acts and things to undertake the intake process for acceptance at that Contact Centre /Supervision Service and the costs of the Centre /Service to be shared equally.

4. In the event that the mother complies during the three month period referred to in Order 7 with each request for drug screening within time AND that each sample complies with requirements AND the outcome is negative for all drugs screened, then time at the Contact Centre/ Supervision Service will continue for a further period of up to three months in the same terms.

5. In the event that the mother does not undertake each requested drug screen, or the mother undertakes the drug screen but fails to provide a compliant sample, or the mother undertakes the drug screens but one or more drug screens is positive for use of drugs then the time between the mother and the children shall thereafter be the Minimum Contact Time as defined in Order 8.

6. Further, in the event that the mother fails to attend on any occasion of contact in the total six month period provided for in orders (9) and (11), other than due to illness notified in advance by text or telephone call prior to a visit and attested to by a medical certificate supplied within 72 hours of notice, then after such failure to attend, time between the mother and the children shall thereafter be Minimum Contact Time defined in Order 8.

7. Subject to Orders (12) and (13)  and  after the six month period of time in the Contact Centre/ Supervision Service time for the children with their mother shall become unsupervised and shall take place on alternate Sundays from 11:00 am to 4:00 pm subject to the mother being restrained as follows:

   (a)from allowing H  to care for, supervise, or be present alone with the children;

   (b)from allowing the children or either of them to be brought into contact with Mr E or allowing the children or either of them to speak to the said Mr E on a phone.

8. The mother must contact the father by text message (the confirm message) on the father’s mobile telephone number between 9.00 am and 10.00 am on any day that she is to spend time with the children pursuant to Order 11 and confirm that she will be attending to spend time with the children on that day.

9. In the event the father does not received the confirm message between 9.00 am and 10.00 am on the day that the mother is to spend time with the children, then the mother’s time with the children is deemed to be suspended on that occasion.

10. The changeover shall take place at McDonalds Family Restaurant at the Suburb F, NSW

11. The mother shall keep the father advised of her current residential address and contact telephone number/s and shall advise him within 24 hours of any change of address and or telephone number.

12. That the father and mother shall each be entitled to attend events involving the children such events including sporting fixtures, extra-curricular activities that allow for parental attendance, school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

13. 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;

    (b)any medication that has been described for the children or either of them;

    (c)any social, school or religious functions which the children or either of them are to attend;

    (d)the children’s residential address;

    (e)any other matter relevant to the children’s welfare.

14. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all acts and things to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

THE COURT NOTES:

(A)A copy of these orders will be provided to the Department of Family and Community Services.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2859 of 2012

Mr Unwin

Applicant

And

Ms Unwin

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction 

1. These are competing applications for parenting orders in respect of two children, B aged six and C aged four.  The proceedings have been included in the Magellan protocol of the Court, there having been allegations of sexual assault and misconduct made on behalf of the children by their father against a member of the mother’s family and household.  There are additional allegations of abuse and neglect of the children by their  mother.

2. The children are presently living with their father and since 5 November 2013, have had no contact with their mother.

3. On the first day of hearing, the solicitors who had represented the mother were granted  leave to withdraw from the proceedings.  The solicitors had previously advised all parties and the Court that they had lost contact with their client, despite every effort being made to contact her.  Counsel had been briefed and could no longer be retained due to inability to obtain instructions.  The grant of legal aid for the mother was withdrawn. 

4. The mother was present and thereafter represented herself. She  was permitted the assistance of a McKenzie Friend, Mr G, throughout the proceedings.

Short history of the relationship

1. The parties began living together in September 2006.

2. The mother has one child from a prior relationship H, now almost 15 years.  The mother and H’s father, Mr J, had separated before H was born.  H has no relationship with his father.  He has lived with his mother and her partners from time to time, other than for a period of months when he lived with the maternal family when he was aged about three years.  At that time the mother was undergoing rehabilitation.

3. The first child of the parties B, was born in 2007. 

4. In 2009 the parties married.

5. In 2009 C was born.

6. In August 2011 the parties separated.

7. For the first few weeks following separation the children lived primarily with the mother through the week and with the father at weekends.  The parties then moved to an equal time shared care arrangement.  Initially H also spent time with the father.  The children spent increasing amounts of time with their father by arrangement.

8. In February 2012 the father met Ms K and formed a relationship with her.

9. On 5 January 2013 the parties were divorced.

10. In about August 2013 the father and Ms K began living together.  Ms K has three children; Mr L aged 20, M aged 17 and N aged 12.  Ms K, the three children and Mr L’s girlfriend Ms O became members of the household, together with the father, B and C.

11. Post separation the mother formed some short term relationships including with her former husband Mr P.  There is no evidence of a current relationship for the mother in the affidavit sworn on the first day of the hearing.  She did however refer to the rented property where she lives with H as having five bedrooms and two bathrooms.

12. On 22 July 2013 disclosures were made by C to her father indicating that she may have been sexually assaulted by H.  The father made a report to the Department of Family and Community Services (“the Department”) and there was a JIRT interview.  Both children have remained living with the father since that time.

13. On 6 August 2013 interim parenting orders were made by consent.  The orders provided for the children to spend a couple of hours with the mother on three days per week, with changeover at McDonalds.  The father interpreted the orders to mean that the children were to spend the whole of the period at McDonalds and believed that the mother interpreted the orders in the same way. 

14. The father complained that the mother did not take up a majority of the periods of time she could have had.  The mother complains that the father’s supervision and the obligation to have the visits at McDonald’s was detrimental to her relationship.  Both points of view are understandable.

15. On 4 October 2013 further interim orders were made reducing the time the children spent with the mother.  The father was instructed by the Court that the orders were not supervised.  However either the father or his mother remained in the vicinity of McDonalds during those periods of time.

16. On 5 November 2013 the interviews for the family report took place and having heard what the Family Consultant had to say about the care and supervision of the children, the father no longer provided the children for time with the mother, supervised or unsupervised.  There have been a couple of occasions of telephone contact.

Issues for determination

1. The issues for determination by the Court are:

   (1)Whether there is an unacceptable risk of sexual abuse to the children in the mother’s household.

   (2)Whether there is an unacceptable risk of neglect for the children in the mother’s household.

   (3)Whether the parents have the capacity to meet the children’s needs.

Evidence

1. The parties relied upon the following documents:

   a)Amended Initiating Application filed by father on 20/12/2013

   b)Amended Notice of Child Abuse filed by father on 05/08/2013;

   c)Amended Response filed by mother on 23/01/2014;

   d)Affidavit of Mr Unwin (father) e-filed 24/01/2014;

   e)Affidavit of Ms K (father’s partner) e-filed 24/01/2014;

   f)Affidavit of Ms Q (paternal grandmother) e-filed 24/01/2014;

   g)Affidavit of Ms Unwin (mother) filed 03/02/2014;

   h)Magellan report dated 18/09/2013;

   i)Family report dated 11/11/2013.

Mr Unwin, applicant father

1. The father is aged 42 and is an instructor. He is working and studying towards becoming a self-employed.

2. The father conceded  use of marijuana  as a younger  man living in Northern Queensland prior to meeting the mother and episodic depression during their marriage.

3. The evidence is consistent with his assertion of having given up marijuana use in 2004 and focusing on health and fitness.

4. The father presented as a calm, articulate person, with a willingness to consider propositions put to him. 

5. He provided his address in writing to the Court, but was reluctant to provide that address on an open basis for reasons set out in his affidavit[1] and given in his oral evidence.

   [1]Affidavit of father e-filed 24/01/2014, pars 37, 80.7 to 80.13

6. He expressed concern about violence potentially being directed towards himself, his partner and the children from a recent former boyfriend of the mother’s. 

Allegations of sexual abuse and misconduct

1. The father became concerned about the number of men associated with  the mother who were staying in her home.  He raised this concern with his sister, who recommended that he teach C protective behaviours and give her the feeling of a safe forum for discussion about anything that worried her.  The father said and I accept, that he had on a couple of occasions told his daughter that no one was allowed to touch her private parts, other than her parents, and asked her “Has anyone touched your private parts?”.

2. On 22 July 2013 the father put those questions to the child and got a different answer for the first time.  She said that her brother had touched her private parts (referring to H).

   Father:  What does he do when he touches you?

   C:                   He touches his doodle.

3. That evening, after C’s shower when she was wrapped in a towel, naked drying before the heater ready to be dressed for bed, the father asked, “Has anyone touched your private parts?

   C:                   Yes, [H].

   Father:  What does he do?

   The father then described C putting her finger on her labia minora then inserting her finger into her vagina, pushing her finger entirely inside her vagina.

   Father:  Does it hurt?

   C:                   Yes it does.

   Father:  Does it happen a lot.

   C implied that it did.

4. The father says and I accept that he then ceased questioning C and has not mentioned it since.  The father contacted the Department. 

5. I am unable to make a finding that C has been sexually abused.  There are other credible explanations if I accept that H was left to care for C and her brother alone from time to time, particularly as at the relevant time C was two and still in nappies.  It is probably that H bathed C, changed her nappy and helped her at the toilet. 

6. I also take into account the father’s statement that C did not appear to be distressed or frightened when she was telling him what had happened.  I take it into account as to the impact on the child. I also take the statement into account in assessing the father’s credibility as a reporter.  I do not consider that the father embellished the child’s statements and he behaved responsibly in not continuing to question her after the day on which the allegations are said to have been made.

7. I do however consider that there was inadequate care and supervision of the children in the mother’s home around that time.

8. Soon after C’s disclosure the paternal grandmother minded the children and described an incident where B had run up to a mannequin in a shop, put his arms around it and put his face into the crotch of the mannequin. 

9. The father spoke to B about the incident, describing to B what his grandmother had told him. 

   Father:  What did you do to the mannequin?

   B:       I kissed it you know where.

   Father:  Why did you do that?

   B:       I thought it was funny.

   Father:Has anyone touched you there, or have you touched anyone else there?

   B:       No.

10. The father again refrained from questioning the child any further but remained concerned about what the children were being exposed to, appropriately in my view.

Concerns raised by maternal uncle

1. Two or three days after the allegations and disclosures by the children the father received an unexpected telephone call from the maternal uncle, Mr R.  The two men had previously not been on good terms. Mr R was living with the parties when they separated which caused friction.

2. The father relates hearsay statements by Mr R, that the two children were in an unsafe environment and that their mother was “smoking ice daily”.  Mr R described his sister as being severely affected by drug use and fearful for her life because of her boyfriend.  He also said that she had been working as a prostitute.[2]

   [2] Affidavit of father filed 24/01/2014, par 62.2

3. The father and Mr R met in person the following day and allegedly the father was told more; that H was allowed to watch pornography in his room which had been the case for about a year and a half and that Mr R suspected that his nephew H was smoking marijuana.

4. Mr R described H as having responsibility for looking after the children, getting them ready for school and changing C’s nappies, “He is like the parent in the house.”  There was no bed time and the children did not have sufficient food.

5. I give some weight to this material despite its hearsay character.  Mr R and his wife cared for H as a three year old for about six months while the mother undertook rehabilitation.  H would otherwise have been placed into care in the community.

6. This commitment of time and money by Mr R reflects concern and affection for his sister and nephew.

7. The mother has had and continues to have a close and trusting relationship with her brother.  She agreed that the father had told her of a conversation between himself and her brother in July 2013 and that she did not subsequently challenge her brother over statements reported in the father’s affidavit.

8. The explanation for the absence of an affidavit from the maternal uncle was that he was fearful of retribution.  This is consistent with the fear of reprisals by third parties associated with the mother, expressed by the father in declining to reveal in open Court his home address.

9. In the message he sent to the father he says: 

   This is as far as I go with this whole messy situation.  I have enough to deal with in my life.[3]

   Mr R also made a report to the Department which is consistent with reports of other persons.

   [3]Affidavit of father filed 24/01/2014, Annexure ‘C’

1. On balance I accept that Mr R did raise with the father, child focused and genuine concerns about his sister’s care of all three of her children.

Concerns about mother’s use of drugs

1. The father says and I accept, that he questioned the mother about her drug use in the first half of 2013, the mother always denying that she was using drugs.  By that stage he had the children with him nine or 10 days per fortnight and felt confident to monitor the situation.

2. In August 2013 B told his father about a film he had seen in H’s company, which suggests that it was pornographic in nature.[4]  A little earlier B’s teacher had spoken to the father telling him that B had “pinned a little girl against the fence in the playground and was hip thrusting her.”  A combination of all of these events and pieces of information led the father to make an application to the Court on 29 July 2013 seeking sole parental responsibility, for the children to live with him and to spend time with their mother as agreed.

   [4]Affidavit of Father filed 24/01/2014, par 65

Exercise of parental responsibility

1. Since the children have been in the father’s fulltime care, he has made several decisions without reference to the mother. 

2. He has enrolled B at D Town School, he says on the advice of the Principal.  That advice was that it would be easier on B in the context of this parenting dispute to come back to his school at S Town, if the decision was that the children return to live with their mother, rather than to start afresh in the mid-term at a new school if they continued to live with their father. I cannot be certain that it is the advice given by the Vice-Principal of S Town School; but I do accept that it is a child focused basis for the move.

3. It was also the father’s decision to continue to be present at contact visits after 4 October 2013, when it had been explained to him by a Judge of this Court that the visits were to be unsupervised.  This failure to fully comply with the orders is likely to have had a deterrent effect on the mother taking up the limited opportunity she had to spend time with the children.

4. I can easily conclude that the children have been disappointed on many occasions when their mother did not attend for visits.  However the father appears not to have understood that he contributed to her reluctance to attend.

5. The father also changed the emergency contacts at S Town School for B without telling the mother.  He had been in the habit of picking B up from school and taking him to work, having obtained an exemption from the school for doing so.  I am left with the impression that the father having made a decision, does not easily reconsider. 

6. Likewise, the father arranged for B to see a child psychologist, referred by his general practitioner, due to behavioural concerns which B had suffered from all his life in the father’s view.  It is hard to understand why there was no consultation with the mother at all in those circumstances.  The father conceded that it would have been better to engage the mother in that process.   Input from both parents would have assisted the child.

7. Finally the father simply would not allow the children to spend time with their mother after the family report interviews.  I accept that he was most concerned and fearful for the safety of the children after the advice he received from the Family Consultant.  However he did not take the course of making a further application to the Court.  He simply withheld them. 

8. I conclude that the father knowingly did not comply with the orders for that period of time in anticipation of this hearing.  However I do consider that he held reasonably based fears for the safety of the children and would in the future be compliant with Court orders on a final basis.  This is of some significance.

Father’s drug use and mental health

1. The father readily made concessions about his history of cannabis use over 10 years, until he ceased in 2004.  There is nothing in the evidence to suggest that that is not a truthful statement.  He  lived on the far north coast of Queensland until 2002, with the adjustment back to life in New South Wales not coming easily. 

2. In 2008 he suffered from a mood disorder with anhedonia and lethargy.  He was referred to a psychologist, prompted by a period of separation between himself and the mother.

3. In August 2011, after the final separation, the father’s mental health suffered.  He was anxious and nauseated by the loss of his family and considered self-harm.  He struggled with housing and his financial position after leaving what had been the family home.  However, he saw a counsellor who referred him to the Salvation Army for practical assistance and re-established himself.  He also sought medical help and took medicine prescribed for his depression and anxiety with good results: “Medication stabilised everything within about a week”.  He continued with the medication for about three months and has maintained good mental health since.

4. The father works at three different gyms and also as a tennis coach.  In total he works about 16 hours a week, in varying periods of time scattered over six days a week.  He is taking up further study.  The father therefore requires the assistance of others to care for the children.  That help is provided by his partner and the paternal grandmother.

5. I consider that the father is a protective father and that in circumstances where there were from time to time, male friends and relatives of the mother staying in her home, that he felt the need to protect both his children and particularly C.  The sexualised conduct of both children was suggestive of exposure to adult sexuality.  I also accept that he considered there might be innocent explanations for what C had said to him in July 2013, but that when he thought of the repercussions of continuing abuse, he felt obliged to be protective.

Ms Q, paternal grandmother

1. The paternal grandmother presented as calm, reasonable and contained in her evidence, whilst genuinely concerned about the welfare and safety of her two grandchildren.  She is retired and since 2009, a widow.  The paternal grandmother has provided help and support to her son, the children and the mother when the couple lived together. 

2. After Court orders were made on 6 August 2013, the paternal grandmother became involved in taking the children to spend time with their mother at McDonalds.  On three occasions she did so, but the mother did not attend.[5]  On at least two occasions she was also advised by her son, close to the time that the children’s mother had advised him that she would be unable to attend. 

   [5] Affidavit of Ms Q filed 24/02/2014, par 8

3. On those occasions that the mother did attend to see the children, the paternal grandmother was able to draw on their past amicable relationship and simply hand the children over to their mother.  She then returned to her car in the car park and read a book until the time had passed.  It is apparent that the paternal grandmother also believed that the children were obliged to spend the whole of the period at McDonalds. 

4. On 29 August 2013 she took the children to McDonalds as usual.  At the conclusion of the visit she was unable to find the mother or the children in the restaurant and play area.  Having searched she contacted her son who became concerned.  Subsequently the mother and children appeared.  The paternal grandmother stated straight away that she would ring her son in case he had contacted the police.  The paternal grandmother says and I accept, that the mother became upset and made critical negative statements about the father in the presence of the children and that C in particular looked upset.

5. On 23 July 2013 the paternal grandmother took the children shopping.  She observed B run over to a store mannequin dressed in men’s clothing.  He ran to the mannequin, put his arms around it and pressed his face into the crutch area.  The child did not respond to his grandmother’s inquiry as to what he was doing.  The next morning the paternal grandmother telephoned her son and described the incident to him.  She expressed the view that she had found his behaviour extremely odd and said this:  “I think B has had something happen to him or he has witnessed sexual acts.”  At that point the paternal grandmother said her son began to cry and said, “not him too”.

6. The evidence suggests that the paternal grandmother was careful not to amplify the incident with B and has been kind and supportive towards the children.  She has lost confidence in the children’s mother; to some extent because she did not take up all the opportunities to spend time with her children pursuant to the orders that she could have.

7. The paternal grandmother became concerned on the 30 August 2013 when C said to her, without any prior incident or conversation, “Nanny I don’t like myself” and was unable to be reassured.

8. The paternal grandmother remained calm and courteous when asked directly by the mother why she had lost trust in her. She apologised to the mother when she stated her view that the children were not safe with her.

9. I consider that the paternal grandmother is supportive and concerned about her grandchildren and will be protective of their relationship with their mother, and in particular would not be overtly critical of the mother to the children under any circumstances.

Ms K, the father’s partner

1. Ms K is 44, the mother of three children from a prior relationship. She works in as an instructor.  She is also studying, assisted by a scholarship, for a degree.  She was due to start a work related placement in the week the matter was heard but chose to miss it in order to attend Court.

2. I accept that the relationship between the father and Ms K began two years ago and that the children of each of them were introduced in a considered way before they began living together.  The joint household is now committed and settled.  Ms K’s young adult son Mr L and his girlfriend Ms O were intending to get a place of their own.

3. Ms K has withstood in a mature and affectionate way some antagonism from the children reflecting their loyalty to their mother.  I am satisfied that she has made every effort to support the children including with their feelings of love and loss of their mother.

4. Ms K had not previously met the mother and has felt threatened personally and for her children and the father by associates of the mother with alleged criminal connections.

5. Her commitment to the father and his two children is significant in those circumstances.  

6. I consider that Ms K brings considerable parenting experience and genuine affection to the lives of the two children.  She has the capacity to meet their emotional needs in the event that the mother does not commit to spending regular time with them, or is erratic in attendance, as she has been in the past.

Ms Unwin, respondent mother

1. The mother is aged 37.  She described her occupation as Home Duties in her Response and affidavit.  In her oral evidence the mother said she volunteered at a store for which the owner (who was present at Court) occasionally gave her $50 but otherwise she lived on Newstart allowance.  She also referred to having worked in hospitality in the country and interstate.

2. I do not consider that the mother was candid about her income and occupation. There was no convincing explanation for why she had been evicted from her home but then rented another property at a higher rent with more rooms than needed even if both children were living with her.  I am left unsure about how the mother supports herself and H.

3. Overall the mother presented as pressured, defensive and stressed.  The mother conceded that she had used alcohol excessively in 2003.  She could hardly do otherwise having been shown the record of events in February 2003.[6]   The record is of the mother affected by alcohol and agitated, threatening her then partner with a knife, burning some newspaper in the home unit where she was then living, her then partner asked a neighbour to contact the mental health unit.  That unit and the police responded.  H then three years old, was present and then taken to a neighbour’s residence for safety. 

   [6] Exhibit 4 – NSW Police Criminal Records

4. The mother was assessed and found not to be suffering from a mental illness.  H was placed into the care of the mother’s brother, Mr R.  Her then partner expressed to the police that he was not in fear of the mother, but wanted her to get some help.  It was apparently this incident that caused the mother to subsequently spend a period of months in rehabilitation.

Events in 2013

1. The Magellan report[7] reflects a life in chaos for the mother in 2013.  After notifications were made to the Department about the safety and welfare of the two children, there was a referral to JIRT.  C was interviewed by JIRT on 26 July 2013.  C stated that her brother H “touched her wee and her bum in her room while she was getting changed and H was changing her underpants”.

   [7] Magellan Report dated 18/09/2013

2. Between 24 July and 4 September 2013, the Department received a number of Risk of Harm reports in relation to the two children.  This is not inconsistent with what C told her father and whilst inconclusive about sexual misconduct, is a reflection of H’s parenting role with his younger brother and sister.

3. On 2 September 2013 B was interviewed at school.  He stated that he liked playing computer games at his mother’s house, but “doesn’t like it when she yells at him and C when they make a mess.”  B went on to say that H sometimes looked after him and C “when their mother is asleep”.

4. There was more than one notification in 2013 of the mother being in a relationship with a bikie, using drugs, prostituting and failing to supervise the children. 

5. On 4 September 2013 there was a report of H stating that his mother was not doing well and that he had found a belt hanging from a ceiling fan at the home.  This report stated that the mother had said she would “take a bunch of sleeping tablets and sleep through until Tuesday.”  The mother was further reported to have said that her ex-boyfriend:

   … was out to kill her and she believed he had bugged her bag and house, had cut the brakes on her car and had cameras watching her.

6. In her oral evidence the mother denied excessive drug use, stating that she had taken cocaine once, but had gone straight to the doctor.  She denied fear of her partner, although agreed that he had recently had criminal charges against him.  She also conceded that she was aware that this partner, Mr E, had hydroponic cannabis growing on his property, that an ice pipe was found on the property by the police and that she had taken the children to that property in the past.

7. At the time of the report the Department had asked the mother to complete two further urinalysis tests over the next two weeks.  The mother is reported to have said that she would think about whether she would participate in further urinalysis.

8. The mother was taken to the records of Dr T[8] which revealed that in November 2012 she presented as “agitated, restless, wheezing and had lost weight.”  During the course of this passage of evidence, the mother spoke quite quickly, smiling, appeared to be pressured and denying drug use other than on the one occasion that it was reported in an attendance on Dr T. 

   [8] Exhibit 5 – Dr T’s records

9. I do not accept the mother’s evidence about that, especially given her significant history of drug and alcohol abuse in the past and also because a drug test in September 2013, is noted to have been “negative but there had been a problem with the sample.”  The mother said and I do not accept that she had no idea that drinking a volume of water would affect a drug test, although she conceded she had kept drinking water prior to the test.  The mother was unconvincing and defensive.

Visits with the children

1. The mother regularly called off her time with the children.  For instance on 17 December 2012, she did not collect the children at the prearranged time and her explanation was that “she was away overnight; that she had flown to Queensland to collect a car for somebody and driven back down.”  It seemed an unlikely explanation, but assuming that it was true, she gave priority to doing so, over-seeing the children.  The mother conceded that if something came up in the nature of work or even social activity, she would ring the father to change the arrangements.

2. On 17 January 2013 the mother gave priority to attending the Big Day Out in Sydney over spending time with the children.  Likewise, catering for a friend’s party and event work in March 2013 which could have been on the mother’s evidence, in relation to flood relief.  I am quite satisfied that increasingly in 2013, the mother gave priority to activities, either work or social, over time with the children and further, that she was quite content for the children to be cared for by their father.

Mother’s parenting of H

1. H has changed schools on many occasions and has been enrolled with a variety of different surnames, depending on the mother’s partner at the time.  H was home-schooled by the mother in middle primary and was assessed as being “academically and intellectually bright and forward.”  Unfortunately in recent years, H has missed enormous amounts of school – 52 days off in 2012; 34 days off in 2013 up to 15 August 2013. 

2. The mother’s explanation was that she had taken H for a holiday for a week in 2012, that she had allowed him to have the last week of each term off, that he might have had flu for a week, that he might have had another week off sick.  I do not accept the mother’s evidence in its entirety about that, especially as the mother said she had not been fully aware of the extent of his failure to attend school:  “Since being aware I have ensured his attendance”. 

3. Letters came from the school about H’s conduct and attendance, which the mother did not sign or return.  She left it up to H himself.  The mother searched for excuses, “He didn’t like the teachers, this year he’s loving the teachers and doing well”.

4. The mother denied that H had become a carer for the children in 2012, but I do not accept her denial.  It is consistent with her own concession in the family report that she thought that H may have been unwilling to go to school because “he was being bullied about the allegations raised by the father”.[9]  

   [9] Family Report dated 11/11/2013, par 108

5. The family report writer notes that the mother became quite agitated during their discussion and it appeared to her that the mother found it difficult to discuss any issue that she interpreted as being critical of herself or her parenting.  That is consistent with my own observation of the mother’s reactions in cross-examination.  For instance, in relation to questions about her permitting H to watch pornography at home on his computer in his room, the mother denied it, “No, not at all.”  However when speaking to the family consultant, the mother had said that she had to be both mother and father to H and “that it is her way of telling him about the birds and the bees.”[10]   She went on to say she:

   .. had set grounds rules for [H] by telling him not to view anything with women getting hurt and no children.  I have educated him to that. 

   She also said:

   There was nothing wrong with it and that kids can access it on the internet anyway.

   [10] Family Report dated 11/11/2013 par 107

6. During cross-examination the mother resiled from that position and blamed the father: 

   [Mr Unwin] has made heaps of stuff up, nobody could believe him, that’s disgusting. 

   The mother had also in her interview with the Department on 5 September 2013 stated that she was aware that:

   [H] probably accessed porn due to his age and magazines in his room.

7. In her oral evidence the mother said that she had been referring to surfing magazines, which appeared to me to be an evasive answer on her part.  When challenged about the fact that she had said nothing at all about H in relation to pornography in her affidavit, the mother blamed her solicitor:

   I had no time with my solicitor to complete my affidavit.  I haven’t gone over it properly.

1. When pressed about that and the fact that the solicitor had gone to the mother’s home in an attempt to get the affidavit finalised, the mother said that:

   She was busy that night at a friend’s house for dinner and it was too late to get anything done.

2. I have no doubt that the mother does love her children and would like to see them safe and well educated.  However her own conduct, her short term relationships, occasional drug use, abuse of alcohol, gambling and possibly prostitution have made her unavailable to her children.  H has undoubtedly stepped up to help his mother with the care of the younger children in the past and all three children have suffered as a result.

3. The mother has felt offended at having to be supervised to any extent in seeing her children and she may choose not to submit to any further supervision or restriction of any kind. 

4. The children love her and if she were able to regularise her life and attend to their needs and to give them priority over everything else, their relationship with her could be restored and deepened quite quickly.

Ms U, Family Consultant

1. The Family Consultant interviewed both children, the parents and H; the father’s partner Ms K and her three children, and the deputy principal and current class teacher for B.  It was a thorough and sensitive analysis.

2. The family consultant contended with volatility of mood and temper in the mother for which the latter, to her credit, apologised. There were clearly moments where the mother moved from defensiveness to aggression, blaming the family consultant for allowing less time with the children than the mother was hoping for. She denounced the father and the police as inconsistencies in her own reports were drawn to her attention.

The children

1. B was described as “guarded” and the family consultant noted that that was unusual in a child of his age and raised alarm bells with regard to possible neglect or abuse.  C was much less troubled.

2. I accept the evidence of the family consultant that B’s developmental needs include the need for routine and consistency for clear rules and boundaries to guide his behaviour and to ensure his safety and a consistent approach to discipline.

3. In relation to C, that her developmental needs are similar to B’s; although as a pre-schooler she is still entirely dependent on the adults in her life.

4. Ms U concluded that the mother’s life appeared to be chaotic and that she was having difficulty looking after herself, let alone her children.[11]   The evidence supports that conclusion.

   [11] Family Report dated 11/11/2013, par 167

5. Her final recommendation was for either long term supervision, or else identity contact only four times a year.  It is understandable given the disappointment the children have experienced with the mother failing to take up opportunities to see them repeatedly.

6. However I take the view that the mother should be given the opportunity to regain her place in the children’s lives for the sake of their healthy development with protective fall back measures if she is unable to sustain the necessary commitment.

The law

1. The objects of 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)     To protect children from physical and psychological harm

   c)     To ensure that children receive adequate and proper parenting to help them achieve their full potential

   d)     To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children

2. 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). 

3. 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.

4. 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.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

1. B was four and C almost two when their parents separated. Both parents were committed to all three children, including H.  Meaningful relationships had formed.  Post separation the children were cared for by both parents to varying degrees.

2. Now their relationship with their father is one of good attachment where their father is attuned to their needs and consistently provides the support and boundaries that they need. 

3. They are both warmly attached to their mother; however she has been distracted by her own issues and has been less available to them than they have wanted.  In her care, post separation they were inadequately supervised.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence

1. There is a need to protect the children from harm through exposure to abuse, neglect or family violence. 

2. I am unable to find that either of the children has been sexually assaulted by their half-brother or by any other person.  However it does seem likely, given the behaviour of the children, that they have been exposed to sexual material through adult behaviour or film or via the internet.  B in particular has showed strongly sexualised conduct at school and on one occasion in the company of his paternal grandmother.[12]

   [12] Family Report dated 11/11/2013 Appendix - 2013 Student Summary

Section S60CC(2A)

1. The Court is obliged to give greater weight to the safety considerations in sub-paragraph(2)(b).

2. The children love their mother and she loves them, but she has in the last one to two years, lacked the capacity to meet their needs and to keep them safe in her household. 

3. I accept the evidence given through the family consultant that the children’s school and pre-school teachers have observed troubling behaviour in both children, specifically whilst in their mother’s care, including not only sexualised behaviour by B, but violent behaviour, assaulting another child and being indifferent to her pain and distress.  I note also that a teacher reported the mother “attending the school wearing large dark sunglasses, apparently wearing her pyjamas and pushing B into the classroom without trying to settle him or talking to any teacher”.

4. There are strong indications that the mother’s life is chaotic and that the mother is under considerable pressure from third parties, drug and alcohol use, gambling and instability of accommodation.

Section 60CC(3)(a) - any views expressed by the children

1. B did not express a view to the Family Consultant.   He didn’t want to talk about his experiences in either parent’s home and is reported to have ignored questions of that kind and looked away.  He explained that he had come to the interview to tell the Family Consultant that he wanted to live with his mother and brother.  He was relieved to then get away.

2. C was much more relaxed and content to talk about her family.  She spoke in highly positive terms of her father, stepmother and mother.

3. Both children were observed to be happy and affectionate with each of their parents and half siblings.

4. I infer that the children enjoy their family relationships and wish them to continue.

5. Neither child is old enough or mature enough to have an informed view about the competing risks and benefits of each household.

Section 60CC(3)(b)- the  nature of the relationship of the children with each of their parents

1. Each of the children have a solid, loving relationship with their father and a strongly developed relationship with their step-mother, Ms K and her three children.  They also have had a loving relationship with their paternal grandmother, who is available to provide care at short notice to assist their father.

Section 60CC(3)(c) – the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions

1. Since the children have been mostly in his care, the father has taken over the decision making, changing B’s school, dictating the terms of supervised time for the mother beyond what was required by the orders and most recently, ceasing to make the children available for time at all. 

2. However I am satisfied that the father has understood that although the mother was affronted by his failure to consult with her, she was not in a position to make child focused decisions.  Her attention was not on the needs of the children.

3. The mother has failed to take up time to visit the children pursuant to the orders; she missed six out of nine visits as recently as October and November 2013.   She bought male friends with her to some visits and put the children on the telephone to speak to her former partner with whom they did not have a particularly close relationship.

Section 60CC(3)(ca) - the extent to which each of the children’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the children

1. The father is presently carrying the entire financial burden for the support of the children.  Although she has had some work from time to time the mother has not paid child support.

2. When there was an equal time shared arrangement, there were times when the children did not have sufficient food and clean clothes in the household of the mother.  The mother concedes problem gambling and this has had a detrimental effect on her ability to provide for the children.

3. The father concedes that he did not pay all that he was assessed to pay post separation.  He did pay day-care fees and some expenses. I also accept that the amount of time the children spent with him increased significantly, quite rapidly.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

1. The children have settled in well to living with their father, Ms K and her children. C told the Family Consultant that there was nothing she did not like about her father’s household.  They have missed their mother and enjoyed such time as they have had with her.  B misses H, although C now has an ambivalent relationship with H at best.  To place them back into the mother’s care is to put them at an unacceptable risk of neglect and likely poor school attendance.

Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent

1. There are some practical difficulties involved in time and communication.  The mother has used a great many different phone numbers, not all of which have been her own.  As a result she has been difficult to contact at times.  She has failed to attend time with the children without giving prior notice to the father. Both parties drive and have access to a motor vehicle.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

1. Each of the parents has had real problems in their young adulthood.  The father used marijuana and has suffered from episodic depression. 

2. The mother abused alcohol and has also used illicit drugs to her detriment.  There have been a series of short term relationships for the mother and times when she has expressed fear about her own safety.  She has been evicted from a property on her own evidence as a result of gambling.  These instabilities in her life have affected her capacity to meet the day to day needs of the children.

3. The mother’s older child H, who is intellectually bright, was either permitted by the mother not to attend school if he did not wish, or the mother was so often absent from the household that she did not realise the extent of his absences.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children and of their parents

1. B is seven and C four.  B has had real problems at school, has shown aggression and inappropriate sexualised conduct to other students.  His oppositional and angry behaviour led the Family Consultant to conclude that he has likely been exposed to adult sexual behaviour.  His pre-school teacher advised the primary school that he was prone to melt downs, which strongly suggests that his emotional needs were unmet.

2. The current preschool and primary school teachers for the children report a noticeable improvement in attitude and behaviour when the children ceased spending time with their mother overnight.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. The mother participated in these proceedings with an attitude of blaming the father for the state of the family, that is, the children living with him and she having limited supervised time.  However the mother chose not to keep in contact with her solicitor, even passing up the opportunity to spend time finalising her affidavit, because she was giving priority at that time to having dinner with a friend.  She lost the grant of legal aid that had been provided to her, which meant that the solicitor and barrister who were engaged in her case withdrew through lack of instructions.

2. The mother found it difficult to represent herself, which is understandable, but it was clearly as a result of her own actions that she found herself in that position.  It is a reflection of the mother avoiding what is difficult and focusing on whatever short term relief is available from current problems.  This inability to come to grips with difficulties is at the heart of why the mother is not a safe parent for the children to be living with.

Section 60CC(3)(j) - any family violence involving the children or a member of the children’s family

1. The mother alleged physical violence by the father to her and against himself during the relationship.[13]

   [13] Affidavit of mother filed 03/02/2014, par 18

2. She referred to an incident during her pregnancy with B when the father grabbed her round the throat lifted her in the air and threw her across the floor.

3. She also referred to the father punching himself in the face, once blacking his own eye this way.

4. The father denied any such incidents took place.

5. There is no evidence of police being called or medical attention sought by the mother.  There is a reference to the mother confiding in her then mother-in-law about the assault but this matter was not raised with Ms Q in cross examination.

6. There is no basis for a finding of violence by the father.

7. The mother also asserts that the father was controlling and coercive.  The father concedes that he was probably too hard on H as a parent.  However he sought assistance from a psychologist and modified his approach.

8. I do not conclude that the children were exposed to family violence during   their parents relationship.

9. Post separation the father suggested some guidelines for routines for the children.[14]  The father asserts that the mother asked for his advice.  Even if she didn’t the provision of the document certainly does not amount to coercive or controlling behaviour.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings

[14] Affidavit of mother filed 03/02/2014, Annexure “B”

1. An order which allows the mother to consistently attend for supervised visits with the children and to provide evidence of being unaffected by drugs, could lead to unsupervised time.  It is especially important not to allow the children’s hopes and expectations of seeing their mother to be continually dashed. 

2. In the event that the mother is unable to maintain a consistent approach to her children, then minimum contact to keep the relationship current is the only way to meet the emotional needs of the children and to preserve the relationship for their own decision making as they become young adults.

3. The children are presently living with their father and for the reasons set out above that should continue.  An order for residence in his favour is made accordingly. 

4. Further given the ambivalent conduct of the mother towards maintaining a relationship with the children and her attitude that she feels demeaned both by supervision and by drug testing, there is a real risk that she will be unable to participate to the welfare of the children by being involved in decision making about their education, health and other long term matters.

5. Accordingly it is most appropriate that the father have sole parental responsibility, but report to the mother and seek her views before significant long term decisions are made. 

6. It is apparent, particularly through the successful home schooling of H in his middle primary years, that the mother has a great deal to offer the children in terms of their intellectual and emotional development.  At her best, she is clearly a lively, engaging and warm person.  Unfortunately at her worst, she is completely unavailable to the children and could insightlessly expose them to danger and inappropriate adult behaviour.  It will be a matter for the mother to determine her priorities in relation to the children.

7. The thrust of the orders made are to protect the children from disappointment in relation to the time with their mother and to keep them safe.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

1. I note that the family consultant was concerned for the safety and welfare of H who has not only had to look after himself at times, but also both of the younger children.  No doubt H has been intensely adversely affected by allegations of misconduct by him in relation to both C and B.  H has no contact with his biological father. He has lost his relationship with Mr P, his mother’s husband, during his early years.  He has now also lost his relationship with the father in these proceedings, which had come to have enough significance for him that he spent time with the father along with the younger children initially after separation.

2. It may be that relationships can be restored when the children are young adults. That process will be assisted if some support and information is provided to H now.

3. I note the recommendation that a copy of the family report should be provided to the Department of Family and Community Services and an Order is made accordingly.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 1 May 2014.

Associate:

Date:  1 May 2014