Vipond and Darte

[2016] FamCA 699

FAMILY COURT OF AUSTRALIA

VIPOND & DARTE [2016] FamCA 699

FAMILY LAW – CHILDREN – Best interests – Where the children have been exposed to domestic violence alcohol abuse, drug use and mental health issues – Where there is a great need to provide stability for the children –- Children’s views – Where the mother has not sought professional  help in relation to her traumatic childhood or her mental illness– Where the mother lacks insight into impact of her violent offending - Where the children have achieved stability living with the father and they should remain living with him – Where there is a need to protect the children from physical and psychological harm - Where there should be no time and communication between the children and the mother unless the children wish to do so.

FAMILY LAW – CHILDREN – Parental responsibility – Where the father has had parental responsibility on an interim basis – Where the presumption of equal shared parental responsibility is rebutted by the history of violence by the mother and her willingness to remove the children without reference to the father -  Where the father is to have sole parental responsibility.

FAMILY LAW – RELOCATION – Where the father wishes to relocate to New Zealand where there is employment and family support including accommodation.

Australian Passports Act 2005 (Cth), s 11
Family Law Act 1975 (Cth), ss 60CC, 64B

Vipond & Darte [2015] FamCA 1017

APPLICANT: Mr Vipond

RESPONDENT: Ms Darte

INDEPENDENT CHILDREN’S LAWYER: Legal Aid H Town

FILE NUMBER: NCC 1143 of 2015

DATE DELIVERED: 24 August 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 4 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Bell & Johnson Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid H Town

Orders

1. That all prior parenting Orders in relation to B born … 2005 and C born … 2007 (“the children”) are discharged.

2. That the father have sole parental responsibility for the children.

3. That the children live with the father.

4. That the father may establish a permanent residence for the children in New Zealand.

5. That the children spend no time with the mother.

Communication 

1. That the father shall provide to the mother a contact address (which may be a post office box) to enable the mother to forward letters, cards and gifts to the children.

2. That the mother may send letters, cards and gifts to the children at the address provided by the father and the father may, at his discretion, pass on such items to the children, or either of them.

3. That the mother shall provide to the father contact details, including an address, which may be an electronic address, and a telephone number for receipt of correspondence or a phone call from the children, or either of them.

4. That in the event that the children, or either of them, express a wish to communicate with the mother, then the father shall use his best efforts to ensure that a phone call is made or a letter (including email) is sent to the mother by, or on behalf of, a child/children.

Passports

1. The father may obtain and renew Australian Travel Documents pursuant to

   
   

   s 11 of the Australian Passports Act 2005 (Cth) for the children, without reference to the mother.

Provision of documents

1. In the event that the father arranges a therapeutic intervention for the children, he may provide to the therapist involved copies of the following documents:

   (a)Children and Parents Issues Assessment, prepared by Ms I, dated 11 August 2015;

   (b)       Interim Orders and Reasons for Judgment dated 4 November 2015;

   (c)       Family Report, prepared by Ms I, dated 14 January 2016;

   (d)       Final Orders and Reasons for Judgment 24 August 2016.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vipond & Darte 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 1143 of 2015

Mr Vipond

Applicant

And

Ms Darte

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings between the parents of two children, B aged 11 and C aged nine.

2. The applicant is the father, aged 42. The father is presently a labourer/process worker by occupation. He lives in a small town near D Town. His household consists of himself and the two children. The father has lived in Australia for about 14 years; he is a New Zealand citizen.

3. The respondent is the mother, aged 36.  The mother usually lives in the D Town area, but at the time of the trial, was in gaol in Central New South Wales. The subject children are her two younger children. The mother also has two young adult children: Mr F, aged 20, who is the father of either two or three young children with his partner Ms K, and G, aged 17.

4. The mother is an Aboriginal woman. She is unemployed, has a long history of criminal offending, and has been apparently diagnosed with several serious mental illnesses.

5. The mother had been legally represented until 17 June 2016 at which time her solicitors filed a notice of ceasing to act. The mother attended the hearing by video link. She had not filed a trial affidavit. She was cross examined on behalf of the father and the Independent Children’s Lawyer. The mother cross examined the father and paternal grandmother. She did so in an intelligent and articulate way.

Short History of the Parties’ Relationship

1. The parties met soon after the father moved to Australia to work.

2. In March 2004 the parties began living together. The mother’s two older children, Mr F then aged about eight and G then aged five, were also members of the household.

3. In 2005 the first child, B, was born.

4. From the outset the relationship was characterised by family violence, which included threats of physical harm and, in the case of the mother, actual physical harm of the father by her. The children raised with the Family Consultant a great many allegations of frightening threats directed at them, some physical, and abusive language, some physical discipline. They were also exposed to violent arguments between the parents and physical attacks by the mother on the father.

5. I am quite satisfied that the children lived in a household characterised by impulsive violence, threat and punishment, causing them to be fearful and uncertain. After the first interviews in August 2015 the Family Consultant concluded that both children were “extremely traumatised”.[1]

   [1] CAPIA dated 11/08/2015, par 20

6. When B was about three months old, the mother threatened the child’s life on two occasions. On the second occasion, the father called the police and the mother was arrested. B was subsequently returned to the mother’s care by police. The mother then left the area with the child and her two older children and moved to H Town. For many months the father travelled between D Town and H Town, about 600 kilometres return, each fortnight to spend a couple of hours with B.

7. On 22 May 2006 final parenting orders were made by consent at D Town Local Court, providing that the parties have joint parental responsibility for B, and that the child reside with the father at defined times subject to the father’s shifts and otherwise that she would live with the mother. Shortly after those orders were made, the parties reconciled and the mother returned with all three children to D Town to live with the father.

8. Later that year, the mother became pregnant with the second subject child, C.

9. In 2007 C was born. Shortly before her birth, the parties moved to E Town, a very small township, about 30 kilometres out of D Town. There was a house available to rent which accommodated the parties and by then, the four children.

10. For the balance of the relationship, until separation in 2014, the parties lived in that small town; for the past six years, in a six-bedroom rental house. The subject children have attended the local pre-school and now primary school.

11. On 15 October 2014 the parties separated for the final time.

12. The father worked long shifts and travelled by car to work, about 60 kilometres each way. The mother was at home with the four children. That was the pattern of the relationship. There was very little interaction with other local people in the township.

13. On this particular day, the father returned home from work and was directed by the mother to prepare dinner. The father decided to defer cooking for an hour or so. The mother directed the children to go to bed without eating and subsequently when the father allowed them to leave their rooms to eat dinner when it was ready, there was an explosive argument between the parties which ended with the mother “king hitting the father as she walked past him”. The mother began to smoke marijuana, presumably in an attempt to calm down.

14. The children were upset, and the mother proceeded to punch B in the head and then throw a television remote at her. The remote missed B and hit C. The mother apologised and said, “I was meant to get that dog in front of you” (referring to B). The mother also threatened to kill the father. She boiled a kettle of water, threatened to tip it over him, and asked the children whether they wanted to come and see the father “get killed”.

15. The father left the home and waited for police to arrive. The father asked the police to remove the mother from the home and to issue an apprehended violence order (“AVO”). Instead the mother left the home and with police permission, took the children with her. The father’s evidence is that the police were unwilling to assist him to protect the children from the mother and repeatedly allowed her to retain, or leave with, the children after conflict.

16. On that occasion the mother and the children were absent for about three weeks before returning to live in the local caravan park.

17. That incident, although it was the trigger for final separation, was typical of the pattern of domestic conflict over the years.

18. Soon after the mother’s return to the township, she was arrested at the caravan park, refused bail, and the children were returned to the father. When the mother was released, the Department of Family and Community Services

    
    

    (“the Department”) arranged for the father and the children to stay in emergency accommodation for a few days. An interim AVO was issued for the protection of the father.

19. On 10 November 2014 the father allowed telephone contact between the children and the mother, but not face-to-face time, fearful that the mother would again leave with the children without notice.

20. On 9 December 2014 the mother did just that. She removed the children from school at lunch time, without prior notice. The father contacted police and the Department numerous times, pressing for a welfare check. Two days later, the mother rang and told the father that she was in Sydney with the children.

21. During cross-examination the mother conceded that she had gone away with the children, but not as far as Sydney; rather to a relative in H Town. The mother denied telling the father that she was in Sydney, but on balance, I accept the father’s evidence that she did. The mother would have known that the father would have been prepared to drive to H Town in order to see the children as he had done in the past for B as an infant.

22. The mother was cross-examined about this episode which caused the children to miss school until the end of that fourth term and to be separated from the father. The proposition was put to her that she had not made an application to the court nor asked her solicitor to talk to the father about arrangements to see the children. The mother conceded as much, but rejected the notion that she was simply thinking of her own needs. When asked whether she regretted the handling of that incident, she was firm that she did not.

23. The mother’s conduct on that occasion, and her attitude to it even now, must be, at least in part, the explanation for why the children told the Family Consultant “They fear the mother will come and take them not only in the middle of the night, but during the day if they are walking between their home and their friend’s home which is across the laneway”.[2]

    [2] Family Report dated 14/01/2016, par 53

24. The mother is impulsive. In 2015 she travelled to Canberra in breach of her parole conditions and when asked about that said, “At the time I didn’t think about anything else”. The mother was intent on travelling to assist her sister with one of her children who had been injured.

25. The mother also lacks insight. Her evidence is that when she took the children from school on 9 December 2014 she asked them whether they wanted to come. She denied the proposition put to her by counsel that she had thereby put them on the spot and influenced their decision herself.

26. The mother on her own evidence had a childhood characterised by violence, abuse and serious sexual assault as a very young child. She has tried very hard to provide a better life for the children and to protect them from those who might hurt them. She has however not recognised, and still does not recognise, that her own conduct has hurt them and that she has been a frightening and abusive parent:[3]

    The children reported that it was ‘really bad’ when the mother lived with them. They reported horrific events where the mother threatened to cut their throats with a knife. When the Family Consultant asked what the knife looked like, they simultaneously demonstrated the length of the knife as being a carving knife and referred to it as a ‘butcher’s knife’. They reported the mother constantly threatened to kill them by hanging them and told them that when she did hang them or slit their throats that she was going to make the other one watch.

    [3] CAPIA dated 11/08/2015, par 23

27. Throughout the Children and Parents Issues Assessment (“CAPIA”) and the Family Report there are many references by the children to being “flogged” by the mother. One instance of this is the children explaining that when they cooked with the mother:[4]

    They reported it was not a pleasant experience as ‘you’d get flogged if you stirred to (sic) slow or too fast or if you spilt stuff’. They said they did not enjoy the cooking with the mother because they never knew when she would become violent and she created anxiety in them. The children’s eyes welled up with tears when recounting this interaction.

    [4] Family Report dated 14/01/2016, par 51

28. In the early part of 2015 the father searched for the mother and the children.

29. On 13 February 2015 the Department informed the father that the mother and the children were living with the maternal grandmother.

30. On 12 March 2015 the father was informed by a work colleague that the mother had been arrested. The father contacted the police who confirmed that that was so and that the mother was in gaol in Sydney. The following day the father collected the children from school in D Town and returned them to their school in E Town.

31. The children have been living with the father in his care since that time.

32. The father successfully applied for an AVO for the protection of himself and the children.

Short History of the Litigation

1. On 11 May 2015 the father filed an Initiating Application in the Family Court asking for discharge of the Local Court orders made in D Town during the first separation when B was a baby. The father asked for sole parental responsibility, to be able to relocate with the children to New Zealand, but in any event, that they live with him.

2. The father also filed a Notice of Child Abuse. That document sets out the threats made by the mother towards the children and the father and the language that the mother directed at the children in anger.[5]

   [5] Notice of Risk & Child Abuse filed 12/05/2015, page 6, par 14

3. The matter was listed for an interim hearing on 3 August 2015. At the time of listing, a Registrar of this Court was advised that the mother was incarcerated, due for release later that month. An Order was made for a CAPIA to be prepared, consistent with the best advice about when the mother would be out of gaol.

4. On 6 August 2015 both parties and the children attended for the interviews for the CAPIA. The CAPIA was long and quite detailed. It also included copies of extracts from police records, setting out reports of the mother’s threats and violence directed at third parties, including an assault on a 16 year old boy who had apparently criticised the mother’s son on Facebook. The Family Consultant was clearly most concerned for the welfare and safety, in particular, of the children.

5. The Family Consultant’s recommendation was that an order be made for the children to spend no time with the mother, for the father to have sole parental responsibility and that he be free to return to live in New Zealand if he chose to. The need for both children to attend for therapeutic counselling was highlighted. Unfortunately, such counselling has not yet taken place.

6. It became clear during his oral evidence and cross-examination that the father had tried to read the CAPIA and the subsequent Family Report, but had been overwhelmed by the detail and was unable to absorb the implications. I accept that he did not understand that there was a recommendation to start therapeutic counselling immediately. I accept that he believed that he was to see what the options were for counselling if and when it was needed. I suspect, although cannot be certain, that the father thought the children would probably be ‘alright’ if they were no longer in day-to-day contact with the mother, but if there was an obvious need for it, he would look into some counselling at that point.

7. On 20 August 2015 the matter came before me. The interim orders of 2006 of Local Court at D Town were suspended, the CAPIA was released and the mother consented, unhappily, to the children continuing to live with the father, pending determination of the interim applications. An Independent Children’s Lawyer was also appointed.

8. On 16 September 2015 the mother filed a Response, proposing shared parental responsibility and for the children to return to live with her. The mother also filed an affidavit in anticipation of the interim hearing.

9. On 17 September 2015 an oral application was made on behalf of the mother for a different Family Consultant, which was dismissed. The mother was not ready to deal with the matter and successfully asked for more time. Directions were made for written submissions in relation to the interim parenting orders sought by the father.

10. On 4 November 2015 interim Orders were made which provided that:

    a)All prior parenting orders be discharged;

    b)The father have sole parental responsibility;

    c)The children live with the father and to spend no time with the mother.

    d)The father could take the children to New Zealand for a holiday.

11. In the Reasons for Judgment, I referred to the mother’s evidence in her affidavit in relation to her mental health.[6] I noted the conditions which the mother said she had been diagnosed with and the fact that she had been in a mental health unit in 2009:

    I have been diagnosed with schizophrenia, bipolar, post-traumatic stress disorder and hypervigilance and a personality disorder. Consequently my moods alter. I always try to stay happy and continue to smile.

    [6]Vipond & Darte [2015] FamCA 1017, par 92

1. I referred in those reasons to the fact that there was no medical evidence of ultimate diagnosis, nor of treatment and information about the extent to which those stated illnesses could be effectively managed and controlled. The mother was asked to consider the fact that her mental health may have clouded her judgment about the impact of her behaviour on the children and others. The mother was legally represented then and until her solicitors went off the record in June 2016. The mother’s mental health, and her insight into its impact on the children, is a central issue.

2. On 12 January 2016 interviews were conducted for the Family Report in anticipation of final hearing. The father attended with both children. The mother failed to attend. I note that the Family Consultant referred to many attempts having been made in the lead up to the appointment and on the day of the appointment to contact the mother on the mobile number provided by her solicitor as well as at the address the mother had provided. All attempts were futile.[7]

   [7] Family Report dated 14/01/2016, par 32

3. Of great significance in the Report was the observed improvement in the children’s presentation. The Family Consultant said this:[8]

   [B] and [C’s] demeanours were very different to that at the [CAPIA]. They were much happier and ‘lighter’ as if a weight had been lifted and when the Family Consultant mentioned this to them they agreed that this was how they felt.

   [B] and [C] cried on a number of occasions when recounting specific instances of trauma they experienced at the hands of the mother, but overall when speaking about things in general, such as what they know about New Zealand, they became much more animated and conversant.

   [8] Family Report dated 14/01/2016, par 36 and par 37

4. I also note in the report that both children stated that they enjoyed school and since being in the father’s fulltime care, B had had no days absent from school and C one day absent when she was unwell. This is in contrast to erratic attendance in 2014 in the mother’s care.

5. Both children expressed a view about the future in the Family Report that they no longer wished to live in E Town and wanted to move with the father to live in New Zealand. They told the Family Consultant they did not feel safe living in their town, particularly after the mother had made contact with them through their half-sister, G.

6. This was a reference to the father having received a phone call from G asking to speak to her sisters. The father permitted G to talk to the children but the mother came on the line, and spoke to the children about meeting her secretly. The father saw the children’s reaction, terminated the call and did not allow any further calls.

7. The children expressed fear that the mother would remove them from the father’s care again and a strong wish to be allowed not to see the mother and also to live in New Zealand. The children were observed to be happy and relaxed in the care of the father.

8. On 25 February 2016 trial directions were made and the matter set down for final hearing to commence on 2 August 2016 on an over-listed basis. The mother continued to be legally represented on that day.

9. On 1 June 2016 the mother was imprisoned for breach of parole conditions. The mother anticipates being in gaol until her projected day of release, 22 November 2016.

10. During her cross-examination, the mother referred to having breached her parole conditions, in part due to having to attend upon her solicitor to prepare for this hearing. However, no document was filed as directed, or at all, and her solicitors ceased to act on 17 June 2016.

11. I am satisfied that the mother took no step to prepare for final hearing; no contact was made by her, or on her behalf, with the Court. However the mother, was contacted at the gaol on the first day of trial, and was subsequently able to participate by being present by audio-visual link to ask questions and be cross-examined.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Father

   (a)Amended Initiating Application filed 07/06/2016;

   (b)Notice of Risk and Child Abuse filed 12/05/2015;

   (c)Affidavit of the father filed 13/07/2016;

   (d)Affidavit of the paternal grandmother filed 18/07/2016;

   The Mother

   (e)Response filed 16/09/2015;

   (f)No Trial affidavit filed (Affidavit of the mother filed 16/09/2015 re-read);

   Reports

   (g)Children and Parents Issues Assessment (“CAPIA”) dated 11/08/2015; and

   (h)Family Report dated 14/01/2016.

Oral Evidence

The Father-Mr Vipond

1. The father is a quietly spoken man. He has worked hard, long hours, all his adult life. He did farm work at home in New Zealand. In Australia he has worked in a diverse number of areas. He reduced his hours after the children came into his sole care.

2. He said and I accept that he had been worried about the safety and welfare of the children throughout the relationship, “I felt they were not safe every single day”.

3. Quite properly the issue was raised with him that he had left the children in the care of the mother at home knowing that she had unstable mental health, anger problems and that she used at least cannabis and alcohol to cope.

4. I accept the evidence of the father that he spoke to police but although they reacted to a crisis the children were returned to the mother when she appeared able to manage again.

5. He tried to get medical help for the mother. “That failed”, “I carried on”.

6. He was also fearful of involving the Department believing not unrealistically that if he did the children would be taken from the mother into care. “It was a last resort to go to DOCs. I reached the last resort.”

7. The father described himself as “not too good with reading and computers; I’m a bit illiterate”.

8. So the father put his head down, worked, supported the family, came home every night. He looked after the children when he was in the home. He drank alcohol at weekends, probably too much  from time to time.

9. In my view his commitment to the children has been unwavering.

10. The father hopes to return to New Zealand. He will have the daily help and support of his mother with the children. There is work on offer as a fork lift driver or he could return to previous types of employment.

The Paternal Grandmother-Ms L

1. The paternal grandmother travelled to Australia to give evidence in these proceedings. She was an impressive witness. She is a social worker by occupation, aged 60, presently deciding to soon retire, probably with a view to committing herself to supporting the father and assisting him in the care of the children if they continue to live with him. She is also committed to caring for her former husband, aged 70, who has had several strokes.

2. The paternal grandmother has other adult children and several grandchildren.

3. She described herself as “absolutely willing to care for the children” and capable of doing so. She presently is anticipating laser surgery for some vision problems. She had recently injured her back in the garden and was walking supported by a walking stick.

4. I have no doubt that the paternal grandmother is an honest witness and is confident that she will be able to meet the needs of these two young children. Of great significance is her knowledge and connection to therapeutic counselling for the children; she is aware of the services available and understands the need for the services despite there being no acute presentation of distress.

5. The paternal grandmother is very much immersed in her Maori culture and it is likely that the children will also become part of the activities and spiritual understanding of that culture.

6. I accept the submission on behalf of the father, and the Independent Children’s Lawyer, that the paternal grandmother and the father would not deny the children access to their Australian Aboriginal culture and connection to country and that the paternal grandmother would likely appreciate the significance of that culture given the commitment to her own.

The Mother–Ms Darte

1. The mother is presently in M Correctional Centre with day leave to work in the kitchen.

2. In the event that the children were in her care or spending significant time with her, her plan would be to return to D Town and apply for a house in the area.

3. If the children left Australia she will likely apply for housing as a homeless person.

4. During the course of the trial conducted on 4 August 2016, the mother denied all allegations made against her of violence and abuse directed at the children and the father. She accused the father of having taught and coached the children to make false allegations against her.. The evidence does not support such a finding to any extent. Her position was  that the children, if not living with her, should be regularly seeing her on her release from gaol.

5. I asked the mother if she thought her mental illnesses had impacted the children. On her own evidence she has “mental outbursts”, “blacks out”, “talks with her hands” (a reference to the mother punching and hitting people), and “tends to clash” (a reference to impulsive fighting). She has physically attacked her mother and her two older children.

6. She said, and I accept she meant it, that she thought her mental illnesses and the behaviour referred to above, had had no impact on the children and she had been a good mother to them and loved them.

7. I have no reason to doubt that the mother does love the children. It may well be that compared to her own experience of childhood she has done better in protecting the children from violent assault and sexual abuse, than her own parents were able to do for her. However, their life has not been safe and their experience of her is of having felt frightened and abused.

8. I accept the submission of counsel for the father that the mother showed no insight at all into that painful truth. She was at all times inclined to blame others for her dilemma and had certainly not sought any advice as to whether she might possibly be part of the problem.

The Family Consultant

1. The Family Consultant was available but not required for cross examination.

The Law

1. 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.

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) of the Act.

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.

Parental Responsibility

1. An interim order was made for the father to have sole parental responsibility. I am obliged to reconsider the issue of parental responsibility on a final basis.

2. The presumption of equal shared parental responsibility is, as it was at the interim level, easily rebutted by the history of violence, evidenced by numerous AVOs, and pleas of guilty by the mother to assaults on various members of her family, including her mother, her oldest daughter, and her son. There was also her willingness to breach parole conditions and return to gaol after nine months “on the run” despite pursuing her application for the children to live with her.

3. The question of parental responsibility is therefore at large.

4. The children have done well in the father’s exclusive care since March 2015. Their mental attitude and sense of safety and happiness has greatly improved between August 2015 and January 2016, when the two assessments of them were done. The father has shown complete commitment to the children by providing for them, by taking on their full-time care and by his plan to return to New Zealand where there is significant family support.

5. An order for sole parental responsibility for the father in these circumstances is the obvious course.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children have the benefit of a loving relationship with their father.

2. I accept the submission that the children do not presently have a meaningful relationship with the mother. This is despite the fact that they (and their older siblings) mean everything to her.

3. The possibility of correspondence and limited communication between the children and the mother could keep open the possibility of rekindling the relationship when the children are older, probably young adults.

4. Orders should protect children from physical or psychological harm or from being subjected or exposed to abuse or family violence.

5. I am obliged in considering the meaningful relationship between children and their parents to consider the safety of the children as a priority and in this matter, I am satisfied that the children have been unsafe in the mother’s care and would be again in future.

6. The highest risk is that the mother would again abscond with them, threaten them, punish them harshly, and physically attack the father.

Additional Considerations

Views of the Children

1. The expressed views of both girls, now aged 11 and nine, are clear and the Family Consultant considers them to be genuine expressions of their own wishes and uninfluenced by external opinion.

2. They want to leave the town they live in, for fear of again being removed from their father’s care, and go to New Zealand to live. They do not want a relationship with their mother.[9]

   [9] Family Report dated 14/01/2016, par 55 and par 56

The nature of relationships

1. The children have a relationship with the father which is a safe and enjoyable one for them. He is a loving father. “… it would appear that the father has historically been the one to provide them with the emotional warmth and nurturing that was lacking in the mother”.[10]

   [10] Family Report dated 14/01/2016, par 57

2. They also have a strong relationship with the paternal grandmother, although they have developed that relationship by correspondence, telephone and the receipt of gifts and cards as expressions of affection.

3. The paternal grandmother did come to Australia to visit twice, but the mother was so aggressive and hostile towards her that the paternal grandmother decided that the better course was to stay away.

4. The children are close to and fond of their brother’s partner Ms K and the young children of that relationship. They do not feel safe with their brother and feel sorry for Ms K who has apparently suffered domestic violence at his hands.

Changes in circumstances

1. The children are likely to feel safe and well protected in New Zealand.

2. If the father does relocate the children will be removed from pressure from the maternal family for them to return to live with the mother.

The capacity of the child’s parents

1. Without medical evidence I am unable to know the true state of the mother’s mental health, the extent to which treatment might change her behaviour, and what the future is for her without therapeutic intervention.

2. The evidence supports a present finding that she lacks capacity to adequately meet the children’s emotional and educational needs.

3. The father has some limitations but the evidence suggests that he can and has adequately met the emotional, educational and financial needs of the children.

Characteristics of the children

1. The children are girls aged 11 and nine years. They are Aboriginal, the children of an Aboriginal mother. There is no evidence before me that they have an understanding of their culture and country or that they have ever participated in significant cultural events. They may have done.

2. The father asserts that the mother has  no  connection with her culture and accordingly neither do the children..

3. Their Aboriginal heritage may be something they explore and return to when they are older.

4. The father is a Maori man, the child of a Maori mother who lives her culture.

5. The children are not presently connected to their paternal culture but if they live in New Zealand that is very likely to happen.

Family violence

1. The Family Consultant said this in the CAPIA:[11]

   The children’s experience of their family and their life has been one of absolute trauma. The children have been the victims of the mother’s physical abuse; her pathological emotional and psychological abusive behaviour; they have been exposed to the mother’s violent behaviour towards the father; they have been exposed to the mother’s illicit substance abuse; they have witnessed extreme violence within the maternal family; and have suffered the ill effects of neglect.

   [11] CAPIA dated 11/08/2015, par 43

2. The children reported their father cooking their evening meal when he got home from work and leaving food for them for breakfast before he left for work throughout the relationship.

3. When asked by the Family Consultant about the threats from the mother that they would be killed and forced to watch each other being killed, the children told the Family Consultant that the mother had said to them that if they told anyone “We would die slowly in front of each other and then she’d kill Dad”.  The children continued to cry silently and said, “Mum always said if she can’t have us, then no-one can, that she’d kill all of us”.

4. On her own admission, the mother is a violent person and sometimes blacks out during mental outbursts. These children have every reason to feel frightened of the mother.

5. In relation to where they live, the children have done well in the father’s care and despite his long hours of work prior to separation, he provided significant care for them at home. The criticism was levelled by the mother herself that if he was so concerned about her behaviour, he should not have gone off to work each day.

6. There is some substance in that however, I am satisfied that the father, although worried everyday about the safety of the children, felt the need to provide for them and he was concerned that if he contacted the Department that the children might be taken away and put into foster care. For that reason, he sought help from the police from time-to-time as needed, but tried to stay away from the Department for fear of the children being lost to both of them.  Eventually, the father found the middle way of making an application to the Family Court for the children to be placed into his care.

7. The father wishes to return to New Zealand. He looks forward to the loving support of the paternal grandmother and other family members: brother and sister, nieces and nephews. He wants the children to have the love and support of the paternal grandmother which will take some of the pressure of being all things to them, from him.

8. It may be sometime before the father can afford to make the journey; however, the children are keen to go and to develop the relationships with the paternal side of their family. If it is possible to go before B starts her secondary education that would likely be beneficial to her.

Conclusion

1. An order is made to enable the father to move at his discretion to live in New Zealand with the children, whenever he decides to do so.

1. In relation to time, the evidence is compelling that the children fear the mother and do not wish to be brought into contact with her. They do not wish to see her. They do not want a relationship with her at this time. In future, as they grow and mature, and come to understand what caused the mother to behave the way she did, and why she was insightless into her impact on them, they may well decide to make contact with her to discuss the past. But at this age, 11 and nine, their safety must come first; both physical and emotional. 

2. Provision will be made for the children to contact the mother by letter or telephone call if either of them wishes to do so. The evidence suggests that neither of them will wish to do so in the near future, but they should have the comfort of knowing that that is possible, only if they want it.

3. Provision is also made for the mother to send cards and letters and birthday and Christmas gifts to the children if she wishes to do so. If there was anything inappropriate or frightening for the children about any such communication, then the father, at his discretion, need not pass things on.

4. The father has, since the interim orders, obtained passports for the children. An order is made for the father to obtain and renew passports.

5. Finally, provision is made for documents to be provided to the therapist who conducts whatever intervention is arranged for the children. I am satisfied that the paternal grandmother will ensure that the children are assessed and connected to appropriate services to assist them to come to grips with their life to date and the impact on them on the violence and abuse they have been exposed to. Those documents are the CAPIA and Family Report and the interim and final Orders in these proceedings with the related Reasons for Judgments.

6. Orders are made accordingly.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 August 2016.

Associate:

Date:  16 August 2016