Weaver and Winters
[2015] FCCA 3495
•15 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEAVER & WINTERS | [2015] FCCA 3495 |
| Catchwords: FAMILY LAW – Parenting – ex parte application – future care arrangements – children withheld by father – allegations of significant and substantial family violence – history of departmental involvement – allegations of threats of filicide – recovery order issued. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CC(2A), 60CF, 60CG, 61DA, 61F, 64B, 65DAA, 67ZBA, 67ZBB, 68B, 68C, 68P, 69ZW, 69ZX, 114 Other Articles Cited: |
| Applicant: | MS WEAVER |
| Respondent: | MR WINTERS |
| File Number: | PAC 5029 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 15 October 2015 |
| Date of Last Submission: | 15 October 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 15 October 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Khalil of Claremont Legal |
| No appearance by the Respondent |
ORDERS
Declare that I am satisfied that it is appropriate for this Application to proceed before me today on an ex parte basis.
Pending further Order, Ms Weaver shall have sole parental responsibility for the children X born (omitted) 2011 and Y born (omitted) 2012.
Pending further Order, X and Y shall live with their mother.
Pursuant to section 67Q of the Family Law Act 1975, a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to find and recover the children X born (omitted) 2011 (female) and Y born (omitted) 2012 (male).
Pursuant to section 68B of the Family Law Act 1975 the father Mr Winters (aka Winters) shall be and is hereby restrained from approaching or contacting the mother Ms Weaver or the children X born (omitted) 2011 and Y born (omitted) 2012 by any means whatsoever.
IT IS NOTED that the provisions of section 68C of the Family Law Act 1975 apply to the above Order such that in the event that any Officer of Police is satisfied on available evidence that a breach of the above Order has occurred involving actual or threatened physical violence then such Police Officer is authorised to arrest Mr Winters (aka Mr Winters) and to thereafter bring him before this Court to be dealt with pursuant to the terms of the Family Law Act 1975 (including as to bail).
Pursuant to s.69ZW(1) I order and direct the Department of Family and Community Services (NSW) and NSW Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:
(a)Any notification to the agency of suspected abuse of or by the following:
(i)Ms Weaver born (omitted) 1991;
(ii)Mr Winters (aka Winters) born (omitted) 1985;
(iii)X born (omitted) 2011;
(iv)Y born (omitted) 2012;
or any of them;
(b)Any notification of suspected family violence affecting the above child/ren or any of them;
(c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;
(d)Any reports commissioned by the agency in the course of investigating a notification;
and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.
and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer) and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.
Neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Family and Community Services and NSW Police Service without the Court’s leave.
The Court requests that the Registrar of the Court forward a written request to the Registrar of each of the Wyong Local Court/Children’s Court and Penrith Local Court for the production of files that they may hold relating to the parties or the children as named below:
(a)Ms Weaver born (omitted) 1991;
(b)Mr Winters (aka Winters) born (omitted) 1985;
(c)X born (omitted) 2011;
(d)Y born (omitted) 2012.
The matter is adjourned for further mention and directions to 18 November 2015 at 2:15pm.
The Respondent shall file and serve a Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Notice of Risk by close of business 13 November 2015 and not otherwise.
The Court requests that the Police Officer executing the above Recovery Order provide to Mr Winters (aka Mr Winters) at the time of execution of the Recovery Order a copy of this Order and so that Mr Winters (aka Mr Winters) is aware of the Order made pursuant to section 68B of the Family Law Act 1975 contained herein.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Weaver & Winters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 5029 of 2015
| MS WEAVER |
Applicant
And
| MR WINTERS |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future care arrangements for two young children, X, born (omitted) 2011, aged four, and Y, born (omitted) 2012, aged three.
The parties to the proceedings are the children’s parents, being the mother, Ms Weaver, who is the Applicant, and their father, Mr Winters (aka Winters), who is the Respondent.
The mother is represented by Counsel and appears before the Court today. The father does not appear. The Application is pressed on an ex parte basis.
Rule 5.03 of the Federal Circuit Court Rules 2001 outlines the evidence that the Court must receive and which must be established to the Court’s satisfaction before proceeding on an ex parte basis. I incorporate that provision herein.
Evidence
(1) Unless the Court otherwise orders, the applicant must establish by affidavit or, with the leave of the Court, orally:
(a) whether there are previous proceedings between the parties and, if so, the nature of the proceedings; and
(b) whether there are any current proceedings in any court in which the applicant or the respondent are parties; and
(c) the particulars of any orders currently in force between the parties, including the courts in which they were made; and
(d) the steps that have been taken to tell the respondent or the respondent's legal representative of the applicant's intention to make the application or the reasons why no steps were taken; and
(e) the nature and immediacy of the damage or harm which may result if the order is not made; and
(f) why the making of the order is a matter of urgency and why an abridgement of the time for service of the application and the fixing of an early hearing date would not be more appropriate; and
(g) if the application relates to a financial matter, the capacity of the applicant to give an undertaking as to damages; and
(h) the other facts, matters and circumstances relied on by the applicant in support of the application.
In addressing each of the above matters the evidence must be considered in the same manner as would apply to the determination of an Interlocutory Application, accepting the evidence on its face as more probably correct than not, provided that it is plausible and internally consistent. It is on that basis that I proceed. Any findings suggested with respect to each of these factors is a finding in the absence of the Respondent and based solely upon an acceptance of the mother’s evidence as more probably correct than not and as open to challenge upon the Respondent’s engagement in the proceedings.
Whether there are previous proceedings
There are no prior proceedings under the Family Law Act 1975 between these parties. These parties have been engaged in proceedings under the Children and Young Person’s Care and Protection Act 1998 (NSW). That involvement is addressed in some detail in the mother’s material.
Proceedings have been commenced in the Wyong Children’s Court with respect to the eldest of the children and immediately following the birth of that child. The mother deposes that prior to that child’s birth that hospital staff had observed the mother to have a black eye as a consequence of having been assaulted by the father. On birth the child was removed from the care of the parents by the Department of Family and Community Services New South Wales and would appear to have spent the first few months of her life in foster care.
The removal is suggested by the mother to have occurred on the basis of the domestic violence which was evident within the household as well as concerns with respect to the father’s drug use. The father was at that time, as the mother alleges, and continuing to date, smoking marijuana and ice.
The mother suggests that she had not made a report to either the Police or the Department prior to her admission to hospital for the child’s birth. That is not a criticism of her. I will return to that issue shortly.
The mother suggests that she was subsequently made aware that reports had been received by the Department from several sources not only the hospital as a consequence of what is described as:
…Mr Winters’s abuse towards me. I also often had black eyes throughout my pregnancy with X and the midwives who monitored my progress often noticed these black eyes.
After some months and when X was approximately five months of age, the child was restored to the care of these parents.
It is asserted that there are no current Orders in place with respect to that child or either child. Clearly, the Department and the Children’s Court were, at that time, satisfied that the child could safely be returned. I do not seek to cavil with such findings as may have been made. They are not known to the Court, nor is the information upon which such findings were made. However, from the mother’s evidence, clearly things were not as may have been understood by those agencies or, alternatively, circumstances rapidly deteriorated again following the child’s return.
The parties have not been involved in proceedings since that time and until quite recently when the parties have been engaged in proceedings before the Local Court Penrith with respect to a family violence Order complaint prosecuted on the mother’s behalf (but not the children’s behalf) by the Police. That the children were not included is an issue of some concern.
The family violence Order complaint is attached to the mother’s material, annexure A. Thus, the Court is aware not only of the Orders that have been made but the evidence that was relied upon. It is that evidence that is of fundamental importance giving, as it does, a context to the making of the family violence Order.
The existence of the family violence Order is of importance. The existence of a family violence Order triggers further interest and enquiry. However, the mere existence of the Order is of little value in determining the child’s best interests. It proves little more (if anything) the existence of an Order. The Order may have been made on an ex parte basis or without admissions.
Even if made following a contested hearing the findings of the State Magistrate cannot necessarily be safely relied upon as proof of fact, (although the transcripts of evidence may be of particular importance being admissible pursuant to section 69ZX(3) of the Act and potentially sparing a victim from the need to repeat their evidence or be further cross-examined with respect to it or as establishing prior admissions or inconsistent statements by perpetrators[1]).
[1] The same would also potentially apply in reverse with the alleged perpetrator seeking to establish prior admissions or inconsistent statements by the alleged victim.
The disclosure of an Apprehended Domestic Violence Order (ADVO) is a statutorily mandated obligation (see section 60CF of the Act). Best practice would see not merely the disclosure of the family violence Order or its existence but the provision, as an annexure to filed Affidavit evidence, of both a copy of the family violence Order and the complaint (or Statement of Facts) upon which the Order was based.
Important obligations flow to the Court upon the disclosure of family violence, which obligations must be addressed by reference to evidence. These include:
a)An obligation to consider the risk of family violence and ensuring that any parenting Order is consistent with the ADVO and does not expose “a person” (whether the person in need of protection (PINOP) protected by the Order or otherwise and including the child the subject of the parenting Order) – see section 60CG of the Act;
b)In considering what parenting Order to make (if any) the Court is required to have regard to any family violence Order involving the child of member of the child’s family (section 60CC(3)(j)) together with (section 60CC(3)(k) of the Act) “...any relevant inferences that can be drawn from the order, taking into account the following:
(a) the nature of the order;
(b) the circumstances in which the order was made;
(c) any evidence admitted in proceedings for the order;
(d) any findings made by the court in, or in proceedings for, the order;
(e) any other relevant matter
In reality the evidence upon which the Order was made is not contained within the Order but rather within the complaint or Statement of Facts. The balance of information might be obtained from any Judgment or the Local Court file which can be requested by the Court;
c)Obligations to consider various matters and specifically declare satisfaction that a proposed parenting Order is in a child’s best interests and give reasons for such satisfaction if a parenting Order is in any way inconsistent with an existing family violence Order – see section 68P of the Act;
d)If a parenting Order is made that is inconsistent with a family violence Order then a copy of the parenting Order must be provided, within 14 days of its making, to each of up to 7 different people - see section 68P(3) of the Act, being:
(a) the applicant and respondent in the proceedings for the order or injunction; and
(b) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(c) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d) the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and
(e) the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and
(f) a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides
e)The Court is obliged – see section 67ZBB(2) of the Act – to consider taking certain actions being:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
(c) deal with the issues raised by the allegation as expeditiously as possible.
There are two matters of particular importance that arise with respect to the Court’s obligations pursuant to section 67ZBB of the Act, namely:
a)The obligations created by the section are the Court’s obligations and not those of the parties or either of them. Thus, for example, the obligation to consider making Orders[2] for the protection of a child is enlivened by the disclosure of family violence and not by an Application for relief made by a party. Upon evidence of family violence being apparent through the evidence of a party (whether by Affidavit or tender) or through the provision of information to the Court (such as a Child Dispute Conference (CDC) Memo or information provided by a child welfare agency such as request for information pursuant to section 248 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), each of which would automatically become Exhibits in the proceedings) then the Court is mandated, if necessary of the Court’s own motion, to consider making protective Orders;
b)Whilst strictly those obligations are triggered not by the disclosure of the family violence Order but by the filing of a Notice of Risk the two are very much one and the same (or should be). Each litigant before the Court has a statutory obligation to file such a Notice whenever an allegation of family violence or abuse[3] or risk thereof is raised[4] (see section 67ZBA of the Act). Thus, if allegations of family violence have been raised sufficient to warrant such action (i.e. an Application to a State Court for a family violence Order) then each party to the proceedings has an obligation to both “disclose” the Order (ideally by filing a copy of the Order) and to file a Notice of Risk.
[2] Sections 68B and 114 of the Act provide bases for injunctive relief and Part VII, especially section 64B provides more generally for a variety of parenting Orders that might be relevant to such considerations including allocation of parental responsibility.
[3] The definition of “abuse” provided by section 4 of the Act includes “causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence”. It might well be argued that any psychological harm to a child, especially but not limited to a young child, is serious and especially that any psychological harm caused by subjugation to family violence is serious.
[4] Rule 22A.02 of the Federal Circuit Court Rules 2001 requires that a Notice of Risk be filed with every Application and Response.
Family violence is fundamental to all that the Court does. Protection from family violence and the harm occasioned by its perpetration or exposure to it is prioritised above parental relationships by section 60CC(2A) of the Act. The above provisions and especially the obligations imposed by section 67ZBB of the Act make clear the priority that is to be given by the Court to protecting children and others from family violence and abuse.
The Court’s obligations with respect to family violence are taken very seriously by this Court and the Judges of this Court. That the recently released AIFS review of the 2012 Family Violence Amendments to the Family Law Act 1975 could suggest that “31 per cent of parents are still never asked about violence while in the system”[5] beggars belief. That simply is not so. In this Court every litigant is “asked”, from prior to filing an Application (by being required to complete a Notice of Risk), at the first Court event and repeatedly thereafter, about family violence. Whilst the research participants involved in the AIFS review are not known they are clearly not from this Court or, if they are, issues would arise as to their responses or the questions put to them.
[5] Rick Morton, “Family law reforms failing to keep kids safe, says review”, The Australian 13 October, 2015.
In light of that which is alleged in the complaint upon which the family violence Order was made the children’s non-inclusion is concerning. The mother asserts that she had sought to have the children added to the Order when she was last before the Local Court on 6 October 2015. She indicates at paragraph 48 of her Affidavit that she spoke to a solicitor at Court and she was told by that solicitor that, “the children could not be added to the AVO as they are with Mr Winters”.
That advice, if given, is erroneous and inappropriate. Orders are often sought which preclude a defendant residing at a specific address notwithstanding that they are, at the time that the Order is sought and made, living at that address and thus thereafter excluded. There is no logical or rational basis for the children’s inclusions as PINOPS to be opposed purely on the basis that they are in the defendant’s care and thus the defendant would be “excluded” for continuing to have their care.
The family violence complaint – and it is a Police complaint and thus the basis or validity of advice received by the mother from a solicitor rather than the Police prosecutor or the informant is unclear – sets out evidence as to threats to the harm not only of the mother but the children. Indeed, the father is alleged to have made threats with respect to the children that if they cannot be with their father they will be with no one. One can only take and infer such a threat, taken on its face and as more probably correct, as a threat uttered as a threat to the children and their safety.
That is the only evidence that is available as to the circumstances by which an Application was not made for the children’s protection. Having regard to the findings made by Judge Gray in the Batty Inquest as recently as 28 September 2015 it is extraordinary that such advice would be given.
There is absolutely nothing which would preclude or would have precluded the children being named as persons in need of protection with respect to the complaint when a threat is alleged to have been uttered as to their safety. On the evidence that is available from the complaint itself it would appear entirely appropriate. The reality that the children’s inclusion as protected persons may have rendered the father in breach of an enforceable domestic violence Order, were the children to remain in his care, is of little if any consequence.
The whole purpose of Apprehended Domestic Violence proceedings is to secure the safety of protected persons and those with whom protected persons have domestic relationships, safety from “apprehended” violence. An Apprehended Domestic Violence Order which is based upon a complaint, including a direct or indirect threat of physical harm to a child, should be addressed with the utmost urgency and should be responded to in accordance with the risk that is alleged.
A threat that a child will be the subject of filicide should be responded to by their inclusion as persons in need of protection, irrespective of the parent with whom the child is resident at that time. It is regrettable, if the mother’s evidence taken on its face is correct, that such advice might have been given to the mother. It is regrettable that nothing was sought for the children’s protection in relation to a Police complaint for restraints upon the father purely because the persons suggested to be in need of protection and the subject of the very threat of filicide are in the care of the alleged utterer of said threat.
Whilst the parents have recently been involved in family violence proceedings there are not and there never have been parenting proceedings under the Family Law Act 1975 and thus there is no means by which the mother or those representing her could readily and expeditiously give notice to the father were notice considered appropriate and which issue I will shortly address.
Whether there are current proceedings in any court
Clearly there are. There are proceedings before the Local Court. It would appear that the provisional Order and complaint may not yet have been served upon the defendant in those proceedings, the father. Thus, there is no means of assistance by that avenue in bringing the proceedings safely to the notice of the Respondent.
Particulars of any orders currently in force, including the court in which they were made
There are no parenting Orders in force.
There are no child welfare Orders in force.
There are interim family violence Orders in force for the mother’s protection. Thereby the Respondent is restrained, in the mandatory terms, together with additional Orders to not approach or contact the mother by any means whatsoever, save through a legal representative, and not to go within 200 metres of the mother or her place of work or residence.
The family violence Order is an extensive Order and, by reference to the complaint before the learned State Magistrate, it is relatively easy to understand why such Orders would be made (the matter having proceeded on an ex parte basis and the mother’s evidence having thus been accepted on its face). The only thing that is difficult to understand is why the children have not been included as protected persons upon that Order. The matters that are disclosed by the mother and accepted by the Police as the basis for the complaint are such that it must, in the mind of the reasonable, informed observer, the man on the (omitted) bus as it were, cause some concern for the children’s wellbeing. A threat of filicide must, most assuredly, spark such concern.
Steps that have been taken to advise the respondent of the application and the reasons why no such steps have been taken if that is the case
The mother is clear in her evidence that she does not wish to advise the father of this Application as she is concerned as to the father’s actions were she to do so.
In paragraph 41 of her Affidavit the mother indicates that the children, on the day they were due to be returned to her care, 28 September 2015, were retained by their father. A telephone conversation then occurred in which it is alleged that the father uttered to the mother:
You’re fucken dead… You know what dickhead, I ain’t having the kids ever again. They’re not mine anymore. Truthfully they’re not mine. I don’t want to see them anymore but guess what fuckhead you won’t be having them either.
It is suggested that other threats were then screamed but could not be understood presumably, it is inferentially alleged, due to the tone of voice of the Respondent. Some 10 minutes later a further telephone call occurred and further threats are alleged to have been made later the same day.
A text sequence occurred between the parties and further threats were suggested to be uttered therein.
Later in the day again further communication occurred between the parties and further threats are alleged to have been made.
The mother immediately approached the Police and, it would seem, since that time there has been little, if any, communication between the parties.
The threats that are suggested to have been uttered on 28 September 2015 are serious. They may have been uttered in anger and it may be that there is not genuine intent to carry through on the threat, real or veiled, that the mother would not be having the children anymore. Certainly, one interpretation - one which, the mother, in light of her knowledge of the Respondent and the evidence that she has led regarding the history of their relationship, is entitled to infer - is a threat to harm the children. Such threats are one possible interpretation of that uttered. There may well be others.
One must balance the consequence of that interpretation of the threat, if it is correct, in determining the children’s interests and whether the threshold is met to permit this matter to proceed on an undefended basis.
The children’s lives cannot be restored if taken. There is no restitution that would aid if these children were harmed by the father on the basis that he was concerned of the mother’s actions in seeking their return, the father having uttered further threats as indicated but not recited in these reasons upon the mother suggesting she might take such action. The harm cannot be undone or remedied by costs. That is not to suggest that a finding is made in accordance with the mother’s evidence but accepting it on its face and pending participation of the Respondent.
In all of those circumstances I am satisfied that the evidence the mother leads provides an adequate and appropriate basis for her to have not taken steps to seek to notify the father.
The nature and immediacy of harm or damage which may result if the order is not made
If the mother’s interpretation of the threats – and at this point, accepting her evidence on its face as more probably correct and acknowledging that she is the best person to know and understand what might be intended or inferred by the Respondent – the damage is irreparable. It would result, potentially, in the significant harm to or death of two children.
Tragedies such as the Darcey Freeman and Luke Batty deaths cannot be tolerated. They are abhorrent and they cause society to recoil, appropriately, to the horror involved in those behaviours.
If the mother’s interpretation is found to be incorrect once further evidence is available then the consequence is of lesser magnitude. The children have been removed from their father without notice (albeit returned to the person that has had their care for some time). The father can be heard, further parenting Orders can be made and, if necessary and appropriate, costs ordered.
The mother’s interpretation is one possible interpretation of the threats that are alleged to have been made by the Respondent. However, it is, from the mother’s lived experience, a valid interpretation which cannot be discounted or ignored.
In those circumstances, I am satisfied that the potential – and it is only potential – risk to the children is far too great to require service. The risk as alleged compels urgent action. That urgent action will extend to and include creating a listing for the matter in a relatively short space of time so that following, one would hope, execution of a Recovery Order which I propose to issue, that the father will be afforded the opportunity to be heard.
Why the making of the order is a matter or urgency and why abridgement of time would not suffice
This is connected with the above discussion. The mother’s concerns as to what the father may do to himself, the children or both – or, for that matter, her – if he is given notice of these proceedings is such that it would obviate against abridgement of time or notice.
The matter does not involve financial issues and thus an undertaking as to damages is not required.
Other facts and circumstances
On the mother’s evidence the relationship between the parties would appear to have concluded on a final basis in November 2013, there having been many prior separations and disruptions. I accept the mother’s evidence on its face as more probably correct but acknowledge that the father has not yet had the opportunity to comment and, accordingly, it is not a concluded finding, simply an acceptance of the mother’s evidence for present purposes. The mother further alleges that the father has had very limited involvement with these children since that time, i.e., approximately two years.
The mother alleges that on each of the occasions that the father has had involvement with the children, that this involvement has been preceded by a torrent of abuse by the father towards the mother whose preferred address of the mother would appear to be “cunt” or “slut”, and followed by his regular refusal to return the children to her and the requirement of paternal relatives to become involved to secure their return.
The events the mother alleges and the violence with which the mother is suggested to have lived since the commencement of her relationship with Mr Winters some few years ago is such that the parties have come to the notice of the Department of Family and Community Services and the Police on a relatively regular basis, including and extending to the removal, for the first five months of the child’s life, of the eldest of the two children.
The mother continues to be involved and engage with the Brighter Futures program primarily though not exclusively, it would seem, as a consequence of concerns with respect to the perpetration of violence upon the mother by the Respondent and including violence in the presence of the children.
The mother does not raise in the proceedings an allegation of abuse and none is articulated in the Notice of Risk that is filed by her. However, the family violence which the mother relates falls squarely within that defined in section 4AB of the Act. It is serious, significant and coercive and controlling. It extends to and includes, by reference to the examples of behaviour that are enumerated in subsection (2), physical assaults, sexual assaults, repeated derogatory taunts, intentionally damaging property, threatening death to the mother and the children, unreasonably denying financial autonomy, withholding financial support, interfering in familial relationships and interfering in the mother’s liberty.
The history of violence between these parents, as set out in the mother’s evidence accepting it for present purposes on its face, would suggest that far earlier intervention or further intervention following the return of the eldest child to the parties care might have been warranted. However, there is nothing to suggest that the behaviours were made known to the Police or the Department such as to trigger such involvement. These children are of an age where they are not yet at school and one would hope that this will be a further protective environment for these children in times to come.
The mother’s evidence does make clear, however, that the children have overheard threats. They have seen assaults upon the mother. They have seen the damage of property. They have provided assistance to the mother. They have assisted in or been present during the cleaning up of the site after assaults and damage of property, and may have been present when child welfare officers or Police have attended. All of those factors would suggest that the children have been directly exposed to family violence and over a significant period of time and in a significant way.
Those issues are relevant as the children’s exposure to family violence would, if the Court were concerned that it has caused them or could cause them to suffer serious psychological harm, also constitute abuse. These are children of an age whereby any psychological harm caused by such exposure would be serious. Thus, on its face, the behaviours alleged would also constitute abuse.
There has been some delay, a matter of days, in the mother’s Application. I am satisfied that this delay is adequately and plausibly explained in the mother’s material and principally connected with the Local Court proceedings and the mother’s expectation of those proceedings assisting in the children’s return together with delays in the process and granting of Legal Aid.
Having regard to all of the above, I am satisfied that it is appropriate for the matter to proceed on an ex parte basis and I will, in due course, declare accordingly.
I do not propose to otherwise address the mother’s evidence in further detail. I have read and considered each of the documents filed by the mother comprising her Application, Affidavit in support of non-attendance at Family Dispute Resolution, her Affidavit of evidence in-chief and Notice of Risk. The entirety of those documents are considered by me.
The matter is dealt with in a busy duty list and enumeration of that evidence and its repetition in these reasons simply cannot occur due to time restraints. I will refer to specific portions of the evidence and address it in the legislative pathway to which I now turn.
Legislative Pathway
I am required to commence with section 60CA of the Act which dictates that in all that is done, the child’s best interests are the paramount consideration.
I must then consider the objects and principles in section 60B of the Act, and which I incorporate herein.
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles do not form part of the substantive law but guide the interpretation and the application of the substantive provisions. They do, however, warrant attention as they dictate the outcome which the Court should endeavour to achieve.
The Court is required by the objects to ensure that the children’s best interests are met by the children having the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests as well as by ensuring that the children are protected from harm, both physical and psychological, as a consequence of exposure to abuse, neglect or family violence.
Whilst there is no prioritisation dictated within the objects they are in remarkably similar though not identical terms to section 60CC(2) of the Act, the primary considerations. I am satisfied by an analogy to section 60CC(2A) of the Act that one must prioritise protection from harm above all else.
The involvement that these children have had with their father since November 2013, when the mother alleges that the parents separated, has been, at its best, frugal. It has also been fraught with difficulty, particularly the threats to which I have already referred, the withholding of the children after agreed periods of time and the requirement for others to intervene to obtain the children’s return.
No doubt, in due course the mother’s case will proceed on the basis that the difficulties which she presently faces and which brings her to the attention of Brighter Futures and the Department are significantly impacted, if not precipitated, and caused by that which she alleges that she has been exposed to by the father and his attitude and behaviour towards her. However, they are matters which can await further determination.
The principal issue in this case is the children’s protection. The father is suggested to have uttered a threat of filicide and has retained the children in his care with threats to the mother that if she takes any action to secure their return that he will carry out his threat. It is indirect and to some extent inferred. However, as I have indicated, the mother’s lived experience of the father, based on the evidence that she has led, accepting it on its face for present purposes, would suggest that she is best placed to understand which interpretation of the father’s comments is to be preferred. On that basis, I am satisfied that the objects support the children’s immediate return to the mother’s care and through issue of a Recovery Order enforced by Police.
The children have a number of rights created by the principles, including the right to know and be cared for by both parents and to spend time and communicate with both parents. The rights are not absolute. They are subject to the caveat that the Court must be satisfied that their practice is not contrary to their best interests.
The children have not been able to communicate or spend time with their mother since their retention by their father approximately two weeks ago. The mother has given explanation for delay. She has taken clear and active steps, both through the Police and through other legal avenues to obtain assistance.
It is regrettable that the mother has not obtained better assistance prior to instructing her present attorneys and accepting her evidence on its face than the advice that she has received when attending the Local Court in relation to the Apprehended Domestic Violence proceedings. Again, on the basis that the complaint is, in part, based upon the very same threats as the mother relies upon in these proceedings, a threat by the father, veiled or inferred, that any step the mother takes to remove the children from his care will result in harm to them, raises concern as to why the mother would be advised, if she has in fact been so advised, that the children cannot be included as persons in need of protection for the purpose of that Order purely because they are in the care of the suggested utterer of the threat. Clearly the mother’s concerns, based upon that which she alleges in her evidence to have been told by the father, are serious and significant.
The father’s relationship with the children has been fractured. That would appear, on the mother’s evidence accepting it on its face for present purposes, to have been of his own choosing. That would also appear, on the mother’s evidence, to have been protective of the children. Again, the principles do not provide support for other than that which the mother seeks.
Parental Responsibility
I am then required to turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies. Whether it applies or does not apply must be determined by reference to the same considerations as section 60CC of the Act to which I will return shortly. However, prior to addressing those factors, but having considered them, I make clear that I am not satisfied the presumption should apply and, by reference to subsection (3), these being interim proceedings that proceed on an ex parte basis. The mother’s evidence would suggest, if taken on its face, that equal shared parental responsibility and the presumption in favour of it could not apply, the mother alleging that there has been significant and substantial family violence and, potentially, abuse of the children through their exposure thereto.
In those circumstances, and in the absence of such findings being unsafe in the circumstances, I am satisfied that the presumption simply should not apply as these are interim proceedings. That being so, I am not obliged to consider equal or substantial and significant time by reference to section 65DAA of the Act and I do not propose to do so. I will consider all arrangements at large.
Primary Considerations
In turning to section 60CC of the Act, I must commence with the primary considerations being:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm as a consequence of being subjected to or exposed to abuse, neglect or family violence.
The latter consideration is prioritised over the former by section 60CC(2A).
As indicated and without conflating the child’s best interests with the child’s protection, the significant issue in this case is protection. The children’s best interests will be holistically determined by reference to each of the factors which the Act requires a consideration of. However, I am satisfied that the prioritisation that subsection (2A) speaks to is that which must apply in these proceedings. A threat of filicide is the most significant aspect of the evidence.
The benefit to the children of having a meaningful relationship with both parents would appear problematic at this point. Not only do I not have the participation of the father or his evidence, only the mother’s, the relationship which the children enjoy with each party cannot be fully identified. The father has had very little time or interaction with the children in the last two years (in the case of the youngest child, more than half of their life; in the case of the eldest, approximately half of their life).
The children’s relationship with the mother is not spoken to in any detail in the Application, although clearly she has been their predominant carer since birth. That is borne out to some extent, although I need not make concluded findings, and corroborated by the material that is annexed to the mother’s Affidavit, including that from (omitted) Community Services and the mother’s treating general practitioner.
The benefit to the child of a meaningful relationship would, on the basis of the evidence available, support the relief the mother seeks.
Additional considerations
Views
There is no evidence as to the children’s views.
Nature of the children’s relationship with each parent and other persons
This is addressed above and would again support the mother’s case.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time and communicate with the children
The mother alleges that the father has substantially failed in that regard absenting himself for lengthy periods of time and then having brief periods with the children before again absenting himself. On that basis, again, the mother’s case is supported.
Financial support
There is no real evidence as to financial support but it would appear that the father provides none.
The likely effect of change for these children, including separation from either parent or other persons with whom they have been living
There would appear to be some issue raised by the father directly with the mother, and as the mother has disclosed in her evidence, as to the presence within the mother’s home of a 15-year old relative suggested to have been placed into the mother’s care by the Department of Family and Community Services. In that regard, it is to be borne in mind that the mother is 24 years of age. She is, thus, only some few years older than the relative whose care she has been entrusted with by the Department.
That arrangement within the mother’s home is the subject of some criticism by the father directly to the mother and which criticism the mother has appropriately disclosed, these being ex parte proceedings and the mother having an obligation to be full, frank and candid with the Court as to both those aspects of the evidence which are beneficial to her and potentially less so.
There is some potential basis for the father’s concerns having regard to the Safety Plan that is agreed as between the father, mother and Department. The Safety Plan provides that the mother will not allow “unknown males” into her home, particularly teenagers that are unsupervised. The second condition makes clear that the intent of that restraint are relatives of the 15-year old young person in the mother’s care and that 15 year old having been placed in the mother’s care by the Department themselves.
It is curious that the Department would require the mother to enter into a Safety Plan providing such vigilance, observation and supervision of those arrangements, a young 24-year old woman whom the Department is aware has a history of significant family violence perpetrated by her former partner to the extent of the Department having intervened and removed one of the children for a period of five months.
It is the very behaviour by a child welfare agency that is the subject of such criticism by Judge Gray in the Batty inquest. It imposes an obligation upon this fragile and vulnerable woman to care for a young woman a few years her junior and to be vigilant as to various risk and concerns which are, one would imagine, in reality largely beyond her control. That particularly relates also to the requirement that she not engage in certain actions with respect to the father. The Department has imposed upon the mother an obligation, pursuant to the Safety Plan, to allow the father to have contact as agreed and goes on to provide that she not go to his home “under any circumstances”, presumably on the basis that the Department consider that this would be unsafe to the mother.
Why that is the level of the Department’s response in those circumstances when they are clearly aware of the past assaults upon the mother by the father, not on the basis of the mother’s allegation but by the observation and report of others which led to Departmental intervention and removal of a newborn child, beggars belief. One would hope that the recommendations of Judge Gray might be taken on board by Departmental officers, albeit, that they are from New South Wales rather than Victoria.
Further conditions are imposed upon the father by the Safety Plan, including that he is not to go to the mother’s home “under any circumstances” nor send any third party on her behalf and that he not verbally abuse the mother or contact her by phone or SMS.
What would appear clear is that the Department is fully aware of the allegations that are raised by the mother in relation to the father’s violence towards her and yet the best response that the Department, seized with responsibility for ensuring these children’s protection and ensuring that they are not subject to any significant risk of harm, is to require that the parties sign a Contract to not do certain things and that the father be responsible for the father’s time. It is not acceptable and is not good enough.
To any reasonable minded, lay observer, let alone one with legal experience and expertise or training in child welfare and child protection, far more significant intervention than requiring a Safety Plan would appear appropriate. The Safety Plan, putting the mother in a position where she is to negotiate directly with and control contact between the children and her alleged abuser is, grossly inadequate. Indeed, it “sets her up to fail” as demonstrated breach of the Safety Plan may constitute a basis for Departmental intervention and commencement of proceedings in the Children’s Court.
In any event, that is the circumstance created by the Department. While the Department acknowledge the family violence concerns they do nothing and leave it to the mother. The victim of significant family violence, as the mother alleges she is, (and the Department would appear to accept such allegations) is left to manage the situation, the very circumstance that Judge Gray was so critical of and which criticism I whole-heartedly concur with and adopt.
The circumstances created by the father in retaining the children and changing long standing and settled arrangements for these children would appear to be detrimental to the children. The Department does not appear to hold any real concern with respect to the mother. Any concern they have is with respect to the young person whom the Department has placed into the mother’s home and given the mother the responsibility of supervising. In those circumstances, any mischief which arises with respect to such complaints is, in reality, created by the Department.
The children returning to the mother’s home is beneficial. There are the supports of the Brighter Futures program and there is the benefit of returning to the arrangement that they have been familiar with for the last two years, largely absent the father and largely absent the concerns which Departmental officers must have held in completing the Safety Plan whereby the father’s violence would appear to be accepted by those case workers.
Practical difficulty and expense
The parties live relatively close to each other. However, their ability to communicate is non-existent. Indeed, it would be unreasonable to expect the mother, accepting her evidence on its face, to communicate with the father. The mother suggests that on each occasion that she has spoken to the father of recent times he has said to her, for example, when she has requested the children’s return:
Good luck, cunt. Good luck, motherfucker. You dumb cunt. That’s it, slut. You’re dead. Do you understand that word? You’re dead. I’ve had a hard day, bruz, and I’m coming to take it out on you. Make sure the police are there to protect you.
This is the man whom the Department believed the mother can appropriately engage with so as to comply with the Safety Plan.
In any event the above demonstrates clearly that there is a complete incapacity of these parents to cooperate and communicate and resolve difficulties and it would be entirely inappropriate to expect that it would be so.
How arrangements such as those detailed in the Safety Plan can be put into place by a well-funded Government agency seized with the responsibility for the protection of children is, as I have indicated, difficult to understand. The case workers involved clearly require substantial and significant assistance, training and guidance not only as to their duties and responsibilities towards children but their understanding of family violence.
Capacity of each of the children’s parents to meet the children’s needs, including emotional and intellectual needs
There is clearly some concern, on the basis of Brighter Futures’ involvement, as to the capacity of each of the parents. However, to that extent, the mother’s incapacities, if they might be inferred from that involvement, would appear to largely arise from the circumstances of her relationship and her lived experience as a consequence of her treatment by the father.
The father’s capacity to meet the children’s emotional needs in light of his retention of them, his complete cessation of any communication between the children and the mother and the threats that are uttered and detailed throughout the mother’s material would appear to be questionable. However, the father will require the opportunity to respond to that material before any finding can be made.
Maturity, sex, lifestyle and background of the children
These are children aged three and four years of age. The eldest child had the delightful start to life of being removed at birth and placed in foster care until she was five months of age as a consequence of the Department’s then-concerns as to the father’s violence visited upon the mother and as observed by various persons, including midwives and hospital staff who observed physical injury to the mother. That child was then returned to a household in which substantial violence is alleged to have occurred. The youngest child was born into that environment and it is all she has known.
The children could be expected to have been impacted and affected by their upbringing to date, their exposure to violence and the impediments in parenting capacity exhibited or caused thereby. There is a significant propensity to disadvantage for these children in light of those circumstances arising from potential neurological impairment through to and including emotional disturbance evidenced by future, if not present, anxiety, depression and the like.
They are matters which will require serious and significant investigation in these proceedings in light of the evidence that the mother has placed before the Court and, again, for present purposes accepting it on its face as more probably correct than not.
Whether the mother’s allegations are found to be accurate or not will need to be determined once both parties have had the opportunity to place evidence before the Court and that evidence can be properly tested. However, at this time, the mother’s evidence identifies serious lines of inquiry which will need to be pursued. The Court will do the best it can in obtaining records from the various Local Courts before whom these parties have attended, the Police and the Department of Family and Community Services.
I do not propose to request a Person History Document pursuant to section 248 of the Children and Young Persons (Care and Protection) Act 1998 in this case. Clearly, the entire file will be needed, including any current engagement through Brighter Futures. Thus, a section 69ZW Order will be made.
Aboriginality
The mother refers to Aboriginality, although it is to a large extent, and accepting that the material is prepared hurriedly and urgently, a passing reference. Clearly, there will need to be further evidence filed to comply with section 61F of the Act. However, the children identify as Aboriginal children. The mother’s Aboriginality, shared with the children, is important as regards the practice of culture but is far from dispositive at this point. It does compel expeditious action to ensure that the disadvantage these children have already experienced does not continue and does not come to define them.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
That is, I am satisfied, adequately addressed above and supports the mother’s position.
Family violence
The mother raises profound and significant allegations of family violence. It would appear from the mother’s evidence, again accepting that evidence on its face that she has made reports to the Department and Police as well as to others, such as her doctor who has provided correspondence annexed to the mother’s material. The doctor’s correspondence corroborates that the mother has reported injuries to and sought treatment from her doctor. Those injuries were contemporaneously reported as having occurred as a consequence of assaults by the father that included on one occasion, around the time of separation of these parties, the doctor upon whom the mother attended observing a haematoma under her eye and the loss of a tooth.
That is entirely consistent with the mother’s evidence wherein she describes that event in some detail. What is absent from the correspondence is any suggestion that, as a mandatory reporter, a report was, in fact, made. That is not to suggest that it may not have been made. However, if it was not, it is a serious, systemic failure both as to the mother’s protection and that of the children in her care, at the time of that event aged 1 and not yet 2 years of age.
It is reported that the mother had told her doctor that she was too frightened to report anything to the Police as she was fearful of the consequences. That is also explicable in light of the mother’s past involvement with the Department and the removal of the eldest child at birth as a consequence of family violence having occurred. Such reticence, especially of Aboriginal families, already significantly and shamefully over represented in incarcerated and out of home care populations, is readily explicable. That does not ameliorate against the obligations of a mandatory notifier.
The systemic failures that would appear apparent from the mother’s evidence are significant. One would question and, indeed, it is the purpose of obtaining material from the Department and the Wyong Children’s Court, what evidence was relied upon to satisfy the Departmental officers and, through them, the Court that the then one child of the relationship was no longer likely to experience or be exposed to family violence when the reports that had been made, sufficient to warrant the serious step of removal of a newborn child from the hospital and from the care of both parents, was taken.
Certainly, it is alleged that there were reports to the Department following the eldest child’s return to the care of her parents. Production of material will illuminate those events and allow an exploration of that which was reported. But why, in circumstances when a child had been removed and restored, further intervention did not occur when further reports were made is difficult to understand.
The issues with respect to the family violence complaint and the suggested advice to the mother that the children could not be added as PINOPs because they were in the care of the suggested perpetrator is also concerning if that evidence is ultimately found to be true.
All of those systemic failures are the very matters that are spoken of by Judge Gray in the Batty inquest. They are, indeed, matters which require serious, whole of government and whole of community address and an urgent and immediate address as regards that which is related above in relation to present Departmental involvement with the mother. Those issues will certainly receive this Court’s attention.
If the mother’s evidence is accepted (and her evidence would appear entirely consistent with the documents annexed to her material provided to her by the Department) she was required to sign a Safety Plan whereby she became the “gate keeper” of the father’s relationship with these children and his behaviour. That would suggest a serious lack of understanding by the case workers involved with the mother and these children and a serious failure of that agency to address these children’s protection.
Indeed, if the concerns held by the Department were or are of such significance as the mother’s evidence and the documents from the Department annexed to the mother’s material suggest, it is unclear as to why the Department has not already intervened to remove the children from the father’s care when they are so concerned as to the mother’s welfare by her even coming into contact with the father by telephone or text message. By the Safety Plan the mother was required to commit that she would not communicate with the father even though she cannot control his communication with her. One would think that in those circumstances the Department would be significantly concerned as to the children remaining in the father’s full-time care. However, they have remained in the father’s care notwithstanding the information know by the Police and the Department and the concerns they have expressed.
The family violence alleged is profound and significant to the point of potential lethality for the mother of these children if one accepts the mother’s evidence on its face. What it would suggest is that any basic screening tool or safety check such as the Triple P assessment, particularly relating to potential lethality of action threatened or undertaken, has not been administered or properly applied. Such risk will be seriously considered throughout these proceedings.
Family violence orders
There is an extensive family violence Order for the mother’s protection.
Whether it is preferable to make orders that will least likely lead to future proceedings
I am satisfied the best that can be done in that regard is to gather as much evidence as possible at this point and with the Court’s intervention as section 67ZBB of the Act requires.
Conclusion
The mother seeks an Order for the children’s return to her care and for the children to reside with her. I propose to make those Orders. In addition, I propose to make Orders pursuant to section 68B of the Act that the father not approach, contact or communicate with the mother or the children pending further Order. I appreciate that such an Order is extensive. However, the family violence Order between the parties will expire unless further action is taken in the Local Court during the period before the matter can return before this Court. I am not prepared to leave the mother without protection in light of her allegations. The mother’s evidence is, at this point, treated no higher than allegations. But they are significant allegations and they have, in the past, been found by the Department to have been well founded and corroborated to the extent of child removal.
The restraints will be upon the father to not approach or contact the mother or the children by any means whatsoever. A notation will be included that the provisions of section 68C of the Act also apply such that in the event that it is suggested that the father has, in circumstances involving real or threatened physical violence, breached that Order that he is liable to arrest without warrant.
Those Orders, one would hope, might be served upon the father by the Police at the time that they execute the Recovery Order and a request will be made that it is so.
For those reasons I make Orders as follows (see Orders).
I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 7 January 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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