WELTON & CISZEK

[2020] FamCA 1018

FAMILY COURT OF AUSTRALIA

WELTON & CISZEK [2020] FamCA 1018

FAMILY LAW – FINAL PARENTING – unopposed

Family Law Act 1975 (Cth)

APPLICANT: Ms Welton

RESPONDENT: Mr Ciszek

INDEPENDENT CHILDREN’S LAWYER: Ms Bowman

FILE NUMBER: MLC 9609 of 2017

DATE DELIVERED: 21 October 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hamilton

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the father

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Joliman Lawyers

Orders

1. The children X born … 2008, Y born … 2009, Z born … 2011, Q born 9 September 2014 and W born … 2016 (collectively “the children”) live with the mother.

2. The mother have sole parental responsibility for the children.

3. The father be restrained from spending any time and / or communicating with the children, or any of them.

4. I reserve liberty to the father to make an application to vary or set aside or discharge this Order or as he may be advised by not later than Thursday 5 November 2020 and any such application be accompanied by an affidavit setting out his reasons for non-attendance at the hearing this day and provide proof of compliance by him (if any) with any outstanding orders for completion by him of a Men’s Behavioural Change program, provision of results of supervised drug screens and provision of the results of hair follicle testing.

5. The costs of the mother and the Independent Children’s Lawyer for the appearances on 4 March 2020 and this day remain reserved to be determined if, or when, the father makes an application pursuant to paragraph 4 of this Order.

IT IS DIRECTED:

1. That my reasons for decision this day be transcribed and when settled be placed on the Court file and a copy be provided to the parties.

2. The letter from the Independent Children’s Lawyer to the father dated 6 October 2020 be marked Exhibit “ICL1” and remain on the court file.

3. The email from the solicitor for the mother to my Associate dated 20 October 2020 be marked Exhibit “Q1” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

1. Pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

2. Otherwise all extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

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 Welton & Ciszek 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 MELBOURNE

FILE NUMBER: MLC 9609 of 2017

Ms Welton

Applicant

And

Mr Ciszek

Respondent

And

INDEPENDENT CHILDREN'S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings come before me today as the first day of trial, the matter having been originally instituted in the Federal Circuit Court by the father on 18 September 2017, in respect of which the mother filed a response on 5 December 2017.  In short compass, the mother now seeks the orders that she sought in December 2017 on an unopposed basis, and in relation to the five children, X who is 12, Y who is 10, Z who is 9, Q who is 6, and W who is 4 years of age.

2. The proceedings were originally before Judge O’Sullivan in Melbourne, and on 25 October 2017, adjourned to the regional Circuit of the Federal Circuit Court. They were dealt with on that Circuit by Judge Bender, who on 20 September 2017, made an order pursuant to section 69ZW of the Family Law Act 1975 (Cth), directed to the Department of Health and Human Services, for a report in this matter. That report was forthcoming on 9 January 2018. I will return to it shortly.

3. On 26 February 2018, the father was represented before Judge Bender, as was the mother, and a request was made to the appointment of an Independent Children’s Lawyer.  Orders were made for the matter to proceed in the regional Circuit for a family report to be prepared.  That report has been prepared and is in evidence.  It was further ordered that the children live with the mother, and that that both parties undergo urine screening for use of illicit drugs. 

4. In due course, Ms Bowman was appointed the Independent Children’s Lawyer. An Independent Children’s Lawyer is appointed to act for children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1]  She is not a legal representative retained by the child and she is not bound by any instructions from the child (or any of them).[2] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the child is fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings,[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is possible and in the best interests of the child to do so.[4]

   [1] Family Law Act 1975 (Cth) s 68LA(2).

   [2]Family Law Act 1975 (Cth) s 68LA(4).

   [3]Family Law Act 1975 (Cth) s 68LA(5)(d).

   [4]Family Law Act 1975 (Cth) s 68LA(5)(e).

5. The father has not provided any drug screening results. 

6. On 28 May 2018, the matter was again before Judge Bender.  Ms Kildea appeared for the father, Ms McNamee appeared for the mother, and Ms Mansfield appeared for the Independent Children’s Lawyer. 

7. The matter was adjourned to the November sittings of the Federal Circuit Court’s regional Circuit.  The parties were to attend upon a psychiatrist for a report, and the father was to participate in a behavioural change program.  It was otherwise ordered that the children remain living with the mother, and that the parties enrol in the G Contact Service, but the father was to have no time until further order.  At that juncture, the father had not seen the children since, on the mother’s case, approximately February 2017. 

8. The father has not provided any proof of having participated or completed a men’s behavioural change program. 

9. The mother underwent an assessment by Dr B in August 2019.  Dr B’s report is on the file, and I will return to that evidence shortly.  The father was assessed by Dr B in August 2019, and a report dated 6 August 2019. It is in evidence. 

10. On 26 November 2018, the matter came again before Judge Bender.  The father was represented by Mr Fu, the mother was represented, as was the Independent Children’s Lawyer.  It was ordered that the parties would attend for a psychiatric assessment upon Dr B, and as I’ve mentioned, they proceeded to do so. 

11. The father was again ordered to attend a behavioural change program. 

12. On 27 May 2019, the father was again represented by Ms Kildea before Judge Bender at the regional Circuit.  The mother and the Independent Children’s Lawyer also appeared.  Another repetitive order was made for the parties to enrol at D Centre, but that there be no time with the father and the children until further order.

13. On 1 October 2019, the matter came before Judge Stewart in a regional Circuit.  The father was again represented by Ms Kildea.  Mr Miles appeared before the mother, and Mr Pervone for the Independent Children’s Lawyer.  The matter was transferred to this court due to the complexity of the matter, and the fact that it was estimated by the presiding judge and the parties to take longer than five days. 

14. There is a notation to the orders that:

    The proceedings generally present as complex, with issues of believed substance abuse, parental alignment, alleged influencing of the children and significant family violence by each of the parties against the other. 

15. On 4 March 2020, the matter had its first return date in this court, before Registrar Moser.  The father appeared in person.  Mr Strong appeared for the mother, and Mr Raddich for the Independent Children’s Lawyer.  The matter was placed in the listed cases awaiting allocation to a judicial docket, noting that the mother would seek to proceed undefended due to the father’s noncompliance with previous orders of the court.  In September of this year, the matter was transferred to my docket.  On 16 September 2020, my associate emailed the parties to the proceedings, which, as it happened, were only the mother and the Independent Children’s Lawyer, because the father did not provide an email address in the notice of address for service, which he filed on 4 March 2020.  That notice of address of service gives a postal address in J Town, and a mobile telephone number, but no email address.  The provision of an email address appears not to be compulsory, because the court form is footnoted:

    Please do not include a fax or email address unless you are willing to receive documents from the court or any other parties in that way. 

16. Accordingly, the father was indicating that he would not receive documents by email, and only by post.  The notification by the court to the parties of today’s hearing was not sent by post to any party, probably as a consequence of my associate working from home. 

17. I am informed by the Independent Children’s Lawyer that on 6 October 2020, a letter was sent by her office to the father at his postal address in J Town, stating that the matter was to be listed today for a first day hearing in the matter, and that if he does not appear, the mother and the Independent Children’s Lawyer would be seeking that the matter proceed to a final determination in his absence, without any further input by him.  That letter is exhibit “ICL1”.

18. Furthermore, on 15 October and 20 October, the Independent Children’s Lawyer attempted to telephone the father, either by herself or through her secretary, to inform him of today’s date or alternatively to request evidence of compliance with various outstanding matters.  The outstanding matters at that time were the supervised urine drug screening tests, and his completion of a men’s behaviour change program.  There was no direct communication with the father.  The telephone number provided by him has a recorded greeting, and no capacity to record a message. 

19. Today, my legal associate has endeavoured to contact the father from court on the telephone number set out in his notice of address for service, and the phone call went through to a recorded message service, which would not take any message. 

20. I’m informed that the Independent Children’s Lawyer’s secretary left a text message with the Independent Children’s Lawyer’s telephone number for the father on 20 October 2020.  That has not received any response from the father.  

21. The mother has also endeavoured to put the father on notice of the fact that the matter would be dealt with on an unopposed basis at the earliest opportunity in the event that he failed to comply with outstanding orders, or to attend court.

22. On 30 January 2020, the mother filed an application in a case seeking that the matter proceed on an unopposed basis.  That matter came before Registrar Moser who made the orders on 4 March 2020 that I have set out above, and which, in my view, clearly give the father notification that the mother would be seeking to proceed. 

23. The mother seeks orders which are entirely consistent with the first four orders sought in her response filed on 5 December 2017, so it is not as if she has changed her position.  The father has been on notice all along that the mother seeks sole parental responsibility for all five children, and that the father be restrained from spending any time or communicating with the children.  The response itself is silent on what will happen in the event that there is no action taken, or that the applicant fails to participant in the proceedings.  However, the father did file his own application initiating these proceedings on 18 September 2017.  That document then filed in the Federal Circuit Court, sets out at page 22 that:

    For proceedings in the Federal Circuit Court of Australia (as this proceeding then was), a person receiving an application must file a response of affidavit and other relevant documents.

24. It contains a direction that they must attend the hearing.  There is a notation which is underscored and in bold type face:

    If you do not attend the hearing, orders may be made in your absence. 

25. In addition to the orders that I have mentioned with which the father has failed to comply, on 1 October 2019, there was an order made that the father undergo hair follicle drug testing.  The father has not provided the results of any such testing to the Independent Children’s Lawyer. 

26. On 20 October 2020, the counsel for the mother set out in an email to the court, and copied to the mother, the steps that had been taken to bring this hearing date to the attention of the father.  I mark that exhibit “Q1”, and direct that it remain on the court file. 

27. In all of the circumstances, I am satisfied that the father has been accorded procedural fairness, and knows of today’s hearing date, or alternatively knows that a hearing date may be appointed, and that the matter would proceed on an unopposed basis given his failure to provide results for supervised urine screen for the detection of use by him of illicit substances, hair follicle test, and proof of completion of a men’s behaviour change program.  However, in an abundance of caution, I will make this final Order subject to the father having a period of 14 days in which to apply to set aside or vary the final orders. The evidence supporting any such application by the father must include the proof of compliance by him with the outstanding obligations he has under orders made in this court, in relation to drug screening and attendance at a behaviour change program.  Alternatively, a detailed explanation as to why he failed or neglected to take the tests.

28. I grant leave to the mother to proceed with the matter on an unopposed basis, as outlined above. 

29. This a worrisome case.  The incidents of violence are very significant.  The involvement of the Department of Health and Human Services has been extensive, both in relation to the five children of this relationship, but also the children of the mother from her earlier relationship.  Those children were removed from the care of the mother for a short period. 

30. The mother’s older children now live respectively in F City and M Town.  The father’s children from his earlier relationship were removed from the relevant household some years ago, and not returned.

31. The section 69ZW report of the Department of Health and Human Services is dated 2 January 2018, and is in evidence. I have regard to the contents of it. Notably, the most recent notification appears to have led to an intake which was open from 5 December 2017 to 18 December 2017. The report writer states at page 6:

    It was assessed that there was a strong likelihood that the exposure to historical family violence had impacted directly on the children’s emotional and behavioural development, and it was unknown at the time what the children’s wishes were in relation to contact with their father.  It was further assessed at this time that the information did not indicate the children were at a level of risk to warrant further child protection investigation.

32. On 20 December 2017, a further section 62ZW response was provided by the Department of Health and Human Services.  That is also on the court file.  It is noted that:

    A consistent theme over many years the parents’ relationship was characterised by family violence, drug and alcohol use, transience, environmental neglect, inappropriate discipline and a lack of engagement with services.  These concerns have been persistent throughout the children’s lives, with eight previous reports, one of which resulted in a protection order in 2011.  There has also been periods of protective intervention.

33. The report concludes:

    It is evident from the child protection history and pattern that the children have been exposed to adverse parenting, ongoing conflict and significant family violence.

34. Follow-up was completed in relation to the current report, with H Health Centre, who confirmed that the mother has engaged with the service, achieved agreed goals, and that the service would be closing.  There is a strong likelihood that the exposure to historical family violence has impacted directly on the children’s emotional and behavioural development, and it is unknown at this time what the children’s wishes are in relation to contact with the father.  However, it is assessed that the information in the current report does not indicate that the children are at a level of risk to warrant further child protection investigation at this time.  Analysis of history and pattern can corroborate that there has been significant concern historically in relation to substance use, and the family violence, however there is no information to indicate that these concerns are ongoing and impacting on the children at this time. 

35. The section 62G(2) report was prepared by Mr C, a Regulation 7 family consultant, and formerly a family consultant employed by this Registry.  The report was dated 23 May 2018 and is in evidence. Mr C provides detailed evidence of the children’s views in relation to time with the father.  It recites the family history, which appears to be non-contentious.  The parties were in a relationship for approximately 11 years, separating in 2016.  The parties provide various dates for separation, all of them in the last half of 2016.  The accuracy of the dates is a matter of perception, because the parties engaged in a period of being separated under the one roof.  In any event, it is the mother’s evidence that the father has not seen the children since early 2017. 

36. The family report sets out in detail that the children did not want to see the father as at 23 May 2018. 

37. Appropriately, the family report writer deals with the children individually.  In relation to X, then ten years old, Mr C observed:

    68. X is 10 years of age and was uncertain what grade he was in at school, but said he enjoyed swimming, cooking, has lots of friends and fun.  X said he lives with his mother and stepfather, Mr L and by his count, there are some 11 children who live in their three-bedroom home.  He shares a room with Z and all of the girls share another room was several mattresses on the floor.  X said he has to share a lot with several siblings in the home, it is noisy and somewhat overcrowded.

    69. When asked why he does not presently spends time with his father, X said his father was hurting his mother, pushing her around, pushing her on the shoulder, to the wall, smacking and hitting her and drink-driving.  He recalled having witnessed his father drinking in the lounge room and then he drove him to the shops, recalling his vehicle was swerving from side to side, suggesting his father may have been intoxicated.  He said it was his mother’s decision to stop the visits with his father, which he did not oppose because he previously did not have any fun visiting his father.

    70. X said he did not wish to spend time with his father because during the last visit his father took a cord and, “whacked me” on the bottom.  He could not recall any further details regarding this alleged incident and said he did not want to see his father, even on the day of the scheduled interviews.  He believed it likely that his father may kidnap him and his mother would not find him.  X said he felt sad having briefly sighted his father through the window during the interview day and said he laughed at him when his father saw him fall. 

    71. This Family Consultant explained the nature of supervised visits and X said he would feel frightened, even if he was to spend time with his father under such parameters. 

    72. Whilst discussing his relationship with both parents, X identified positive qualities regarding his mother stating that she provides him with money, she has purchased him a skateboard, but when the same question was posed regarding his father, X said there was nothing he enjoyed or thought was positive.  When asked whether there was anything he disliked or sought to be different regarding his parents, X did not like it when his mother becomes cranky and that he did not like his father hurting his mother and would like him to be a nice person. 

1. In relation to Y, the family report writer makes the following observations:

   74. Y is nine years of age and in grade four at school, where he enjoyed going on the swings, playing sport and camping.  Y said he lives with his mother and her partner Mr L, plus a total of nine children in the household being the five subject children and all of Mr L’s children who live together in a five bedroom home.

   75. Y said all the children do not get along with one another all the time and in some respects, “it’s like a zoo” and everything becomes exceedingly busy at dinner time, with lots of dishes.

   76. Y advised that he addresses his mother’s partner as, “dad” and that he remembers little about his biological father whom he identifies as, “E”, save for alleging that he heard that he smashed a plate on Z’s head.  Y had no memory of any positive visits with his father previously.

   77. Y said he had seen his father out of the window of the ground floor area where he was waiting, and he did not wish to see his father and that he heard from his older siblings that he is mean.  He did not wish to play with his father, interact with him and refused to see him even momentarily as part of an observation session, firmly stating, “Mr L is my new dad” in reference to his mother’s partner.

   78. Whilst considering future options, Y said he would still feel frightened if he was to spend time with his father on a supervised basis at a Contact Centre.  Even if his mother supported such telling him it would be good for him to see his father, he would still feel frightened and not want to see him.

   79. Whilst discussing his relationship with his parents, Y identified positive qualities regarding his mother stating that she purchases him nice presents, pointing out his new outfit.  As to his biological father, he only like him purchasing him toys.  When asked to identify any positive qualities or things he liked about Mr L, Y stated there were many things and, “he does tons with us”, such as going on the boat together or camping near the lake.  When asked whether there was anything he disliked or sought to be different regarding his parents, he said there was nothing in respect of his mother or Mr L, but as to his father he said, “I don’t like him slapping me” and there was nothing further he liked.

2. The family report writer makes the following assessment of Z: 

   80. Z is six years of age, in grade one at school, and he presented with some slight speech difficulties.  He enjoys school as people play with him, he shares and lets other children play.  Z said he lives with his mother, siblings and his mother’s partner in a four-bedroom home.  He enjoys playing on the trampoline, with various toys, drawing and playing with his big brother’s cars. 

   81. Z said when he was younger that he would visit, “E”, but remembered that his father, “tied X up to the car” and he made the children misbehave.  Z said he did not enjoy previous time spent with his father and did not wish to spend future time with him or even see him briefly as part of this Family Report assessment.  Z said his father was trying to take the children and he came into the ground floor and, “tried to get us” earlier during the interview day, but he (Z) walked past him.

   82. Whilst discussing the possibility of future time together, Z quite firmly stated that even if they would just play together he would be fearful his father, “might get us”.  He did not wish to spend future time with his father, even if such was supervised and strongly refused to see him as part of the assessment.  Z expressed further concern his father may, “put stuff up my bum”, stating that he did this previously in Melbourne when he, “put a broom up my bum”.  When directly asked, Z said that his mother instructed him to state this particular piece of information to this Family Consultant.

   83. Whilst discussing his relationship with both parents, Z identified positive qualities regarding his mother stating that he feeds him, looks after him and he disliked being sent to his room when he misbehaved.  When the same question was posed regarding his father, and initially asked to identify things he liked about him, Z expressed criticism that his father tried to grab him earlier in the day.  Z was specifically asked whether his father did anything when he first saw him on the footpath at the beginning of the day and Z said his father tried to take him home.

   84. At this stage of discussions Z stated that he had enough and did not want to talk any more.

3. In relation to V, who was then 13 and a half years old, and is now 16 years old, and attending high school.  The family report writer made the following observations:

   85. Earlier in the interview day Ms. Welton specifically requested that this Family Consultant interview V as he is older and experienced a lot Mr Ciszek’s alleged violence and abuse.

   86. V is 13½ years of age and in year eight at High School.  V said he enjoys attending school and finds it different than it is in the city.  His school is much smaller and there was nothing he dislikes.  He recalled that he previously addressed Mr Ciszek as, “dad”, but now he addresses his mother’s partner as, “dad”.  V said there are seven children in total living in the household.

   87. When asked to reflect upon the past when his mother and Mr Ciszek were in a relationship, he said that he remembered Mr Ciszek, “used to bash mum and was punching into her”.  He alleged Mr Ciszek would hit the children with a belt, he once ran away and Mr Ciszek came up to his room and hit him.  

   88. When his mother separated from Mr Ciszek he would accompany the other children on scheduled visits and alleged witnessing Mr Ciszek, “putting a needle in his arm at his friend’s home”.  He described Mr Ciszek as, “a full-on alcoholic” alleging he would drink cans of beer daily, he would become angry and assaulted his mother when he drank.

   89. V said he finds life better now without Mr Ciszek around and saw his mother’s partner as a good influence in the home.  Now they participate in positive family activities such as camping, kayaking and archery and he viewed his mother’s partner as nice.  If he misbehaves he is sent to his room and afterwards they discuss his behaviour, which he reflected upon positively.

   90. V recalling an incident when his mother was assaulted by Mr Ciszek when she was pregnant, and she had to go to hospital.  He did not remember specifics but, “I just remember her being hit”.  He indicated that Mr Ciszek has a short temper and recalled a further occasion when he threw a vacuum across the room when he, “cracked it”.  He recalled having told Mr Ciszek to stop hitting his mother and in response, Mr Ciszek punched him to the eye.  V said Police attended the family home and they were placed in a hostel for the night.

   91. V advised that in the event future visits with his father were Court ordered he would be fearful of Mr Ciszek perhaps using drugs, adding that he also observed him drying marijuana plants in his bedroom.  Sadly, V said he had no positive memories whatsoever in relation to Mr Ciszek.

   92. Earlier in the interview day, Ms. Welton alleged Mr Ciszek kidnapped V and took to Adelaide without her knowledge or permission.  However, V stated that Mr Ciszek told his mother they were going to Adelaide, but in actuality they did not, and they stayed in Suburb K and his mother continues saying that Mr Ciszek took him away.

   93. Regarding his relationship with his parents, V identified positive qualities regarding his mother and her partner Mr L, whom he said, “is a nice person altogether”.  There was nothing he disliked or sought to be different regarding his mother or her partner.  The only positive memory he recalled in relation to Mr Ciszek was that he tried to teach him how to fix cars, but he expressed great criticism and said he strongly disliked Mr Ciszek’s anger, drinking, drug usage and wanted him to stop assaulting people.

4. In relation to the youngest children, Q and W, the report writer says:

   94. Q is only 3½ years and W 2 years of age and an individual interview was not conducted due to the children’s tender age and developmental level.  As Mr Ciszek has not spent any time with the children in well over a year and last saw W when he was six months of age, the children would likely struggle having memories of their father.

5. In relation to the parents, the family report writer characterises the adult relationships as follows: 

   63. The relationship between both parents it is virtually non-existent and they have had absolutely no communications with one another since the current Intervention Order was made over 12 months ago.

   64. Ms. Welton alleges a range of extraordinarily serious coercive-controlling and physically assaultive behaviours on the part of Mr Ciszek.  She conveyed a high level of fear for her physical and emotional well-being and conveyed a picture of having endured extensive family violence throughout her relationship with Mr Ciszek

   65. Mr Ciszek denied the allegations of family violence on his part, but conceded the relationship experienced conflict.  He counter alleged that Ms. Welton had been violent towards him and that it was he who was victimised.  In no uncertain terms, family violence is central to this matter.

   66. Neither parent conveyed any desire whatsoever to improve communications or dealings with one another as separated parents.  On their account, communications were also extremely poor following separation.

   67. As Ms Welton’s position is that she seeks an indefinite suspension of all future time between Mr Ciszek and the children, this would include having no dealings or communications with Mr Ciszek.  Hence, there would appear at least at this stage, to be limited prospects of improving the parent’s relationship with one another and/or making any steps to progress towards any semblance of a co-parenting relationship.  Both parents was absolutely nothing to do with one another and have no desire to change anything in this regard.

6. In relation to the family consultant’s observations of the children, there was no observation session between the father and the children, and he did not deem it necessary for there to be an observation session between the mother and the children.

7. The family consultant’s evaluation included the following:

   101. Whilst considering shared parental responsibility, the parents are likely to experience great difficulties reaching agreement about future parenting decisions due to the historical struggles in their relationship, a history of alleged family violence and an inability to effectively communicate with one another.  This Family Consultant is of the view that on an interim basis, sole parental responsibility resting with Ms. Welton would be an appropriate and child-focused consideration in respect of all major decisions regarding the children.  As this evaluation and the recommendations made below will outline, there have been a multitude of issues of significant risk that have been alleged and at this stage, this Family Consultant is not in a position to make any final recommendations.

8. The family consultant also stated as follows:

   104. Whilst this Family Consultant’s views regarding the aforementioned account of the children is viewed cautiously in part, there would also appear to be quite a substantial amount of information to suggest the children’s account of previous family violence should hold weight.  All three subject children and particularly the account of V offered rich detail, multiple examples and noted quite serious family violence from Mr Ciszek.  V painted a picture of previous family life with Mr Ciszek as being characterised by high violence and volatility at the hands of Mr Ciszek, particularly towards his mother, as well as a history of drug usage and high levels of alcohol consumption.

   105. There are also mutual allegations in respect of the stability of both parent’s mental health.  Ms. Welton acknowledged having been a previous victim of extraordinarily serious, and on her account worse family violence than she endured from Mr Ciszek, from a previous partner, and because of such she sustained serious injuries.  Due to such she has allegedly sustained an Acquired Brain Injury and her presentation at interview has raised some questions in relation to the stability of her mental health and cognitive abilities.  Whilst beyond this Family Consultant’s expertise to assess and evaluate, when considering the future parenting arrangements, there would appear to be merit in this Honourable Court being fully abreast as to whether or not she suffers any cognitive limitations, which may impact on her parenting capacity.

   […]

   107. The detailed information contained within the s.69ZW report outlines an extraordinarily lengthy history where consistently through the years a re-emerging theme of multiple risk issues continued and seemed to have been almost sewn through the fabric of the family itself. Serious family violence, assault, drug use, criminal activity, non-compliance with professional services and environmental neglect have occurred over several years. Both parents have demonstrated somewhat of a chequered history with engaging with child protection services and/or attending to the protective concerns, only to seemingly address such issues and sustain change for a limited period until the next time DHHS is notified.

9. As mentioned, the parents both saw Dr B, in August 2019, and those reports are before the court.  Dr B assessed the mother as having a complex post-traumatic stress disorder, and a substance abuse disorder which is in remission.  The psychiatric assessment of the father is detailed and appears to be sound.  The psychiatrist opines as follow:

   58. There is no evidence to suggest that she is using other illegal drugs such as morphine or methamphetamine, the use in the past of which the father has stated.

   59. Although she has had episodes of depression in the past, notably her post natal depression following the birth of X, there are no signs of her currently suffering from Depression or an Anxiety Disorder.

   60. There is a history of significant early developmental trauma, with childhood sexual abuse and a lack of any stable parental figure throughout her childhood. The most available stable figure was her older sister (maternal aunt) but she only lived with the maternal aunt for a portion of her childhood.  There was a chaotic disjointed upbringing, with the additional trauma of the maternal grandmother suffering from schizophrenia.

   61. Her childhood experiences have significantly contributed to the development of her C-PTSD which has been a major factor in her inability to leave abusive relationships, her mood disorder, use of marijuana to soothe her affective swings, and anger.  It would also have made it very difficult to cope with the number of children that she bore, not to mention the older children having behavioural difficulties.  Additional factors in her problems coping have been to the extent of her marijuana use, and the traumatic experiences of the significant domestic violence from both her partner, Mr C, and from her father.  Her dissociation of affect noticed in the mental state examination would be a confirmatory sign of the trauma suffered in the past, and should not be taken to mean that her experiences do not still affect her. 

   62. Her statements regarding a diagnosis of ABI are inconsistent with her statement in her Affidavit.  Possible reasons include a wish in the past to exaggerate her problems, a wish currently to give a good impressions of her coping abilities, and her genuine uncertainty as to the effects of past trauma.

   63. Given her denial of any formal diagnosis of ABI, her denial that diagnostic tests (e.g. brain imaging and neuropsychological testing) were ever carried out, her denial that any significant differences in cognitive function occurred following the head injury, and the lack of signs of brain injury in the mental state examination e.g. her preservation of concentration and lack of disinhibition, I can find no evidence to suggest that Ms Welton has an ABI.  The problem in memory stated by the father were not evidence in the interview, and the lack of coherent narrative noted by the Family Consultant was similarly absent. She does wish to repetitively blame the father, but this isn’t a pathognomonic feature of brain injury.

   64. Most of her adult life has been spent in relationships with a number of men, and she has not had significant periods of life as a single mother.  It is likely that she becomes dependent on her partners, and that this is a factor as to why she finds it difficult to leave abusive relationships.  She appears to have leant on the father heavily to assist her with the care of the children, and it is likely that this is similarly so with her current partner Mr L.

   65. If the relationship ended, then her problems coping with the children may become more evident. She may become depressed again and/or use drugs again.

   66. Currently Ms Welton appears psychiatrically to be doing well, and does not need any treatment at present.  If she deteriorates then she will need to reengage with psychological services. (my emphasis)

10. The issue of supervised time between the father and the children was specifically raised by Mr C with each of the children.  As will be seen from the above comments, all of the children were strongly, if not vehemently, opposed to any form of time or communication from their father, and I give considerable weight to the expression of their views.  The family report writer makes the following observations:

    107. The detailed information contained within the s.69ZW report outlines an extraordinarily lengthy history where consistently through the years a re-emerging theme of multiple risk issues continued and seemed to have been almost sewn through the fabric of the family itself. Serious family violence, assault, drug use, criminal activity, non-compliance with professional services and environmental neglect have occurred over several years. Both parents have demonstrated somewhat of a chequered history with engaging with child protection services and/or attending to the protective concerns, only to seemingly address such issues and sustain change for a limited period until the next time DHHS is notified.

    […]

    111.    Documentation from the ICL in relation to the Victoria Police background record of Mr Ciszek notes an extremely lengthy history of criminal activity in relation to violent offences, drug possession, assault Police, threats to kill, a history of family violence reports and his Police record is 129 pages in length.  Whilst it is acknowledged a copy of the Police record in relation to Ms. Welton was not available, this Family Consultant would not be surprised if such contained some detail as well.

11. The family report writer recommended interim parental responsibility to the mother on a temporary basis, that there be no time to occur, inclusive of supervised time, between the children and the father, and recommended the drug urine and hair follicle testings proceed in the event that there was to be any time between the father and the children.  Notably, at paragraph 123 of the report, Mr C opines:

    Finally, it is recommended that this matter also requires a sense of finalisation and in the event the aforementioned tasks are not attended to, at least substantially within a period of six months this Honourable Court may wish to consider making Final Orders which reflect no time to be spent between Mr Ciszek and the children. 

12. I am satisfied that it is in the children’s interests to have some finality in these proceedings.  I do not know what the future holds for them precisely, but having these proceedings hanging over the heads of the parents, is not going to advance their welfare, and neither is it consistent with their best interests. 

13. I am satisfied that an order which provides that the father has no time with the children is necessary in order to protect the children from physical or emotional harm. It is more important to keep the children emotionally safe than for the children to spend time with the father (if he sought time, which he isn’t). The children have expressed strong views which should be given weight. The mother has certain deficiencies in her parenting but the father appears to be worse.

1. I am satisfied that it is appropriate that the mother have sole parental responsibility for the children on a final basis, subject only to the entitlement of the father to apply within the next two weeks to set aside or vary this order, supported by appropriate documentation.

2. The mother makes an application for costs associated with these proceedings, and particularly the costs of appearance on 4 March 2020, and today.  It is clear that these proceedings have dragged on for longer than they should have, and it is also apparent to me from extensive reading that the father who has been the noncompliant party. 

3. The costs of the mother and the Independent Children’s Lawyer for the appearances on 4 March 2020 and this day will remain reserved.  Those applications for costs can be brought on before me and determined in the event that the father makes an application that in the proscribed time for these orders to be set aside. 

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 October 2020.

Associate: 

Date:  2 December 2020