WHITEHALL & WARREN

[2017] FamCA 283

FAMILY COURT OF AUSTRALIA

WHITEHALL & WARREN [2017] FamCA 283

FAMILY LAW – CHILD ABUSE – Sexual abuse – Where the youngest child makes allegations of sexual assault against the eldest child – Where there are reports of ongoing sexualised behaviour of the eldest child – Where JIRT applied for an Apprehended Domestic Violence Order to protect the youngest child – Decided the youngest child has been sexually abused and emotionally harmed and must be kept safe, away from the eldest child  –  Ordered the parties are restrained from allowing the youngest child to have contact with the eldest child

FAMILY LAW – CHILDREN – With whom the child lives – Where the youngest child has come to harm during periods in the father’s care – Where the father has an impaired capacity to meet the needs of the children – Where the father prioritises reconciliation of the family over the safety of the youngest child from sexual assault – Where the Family Consultant assesses the father as not a danger to the children but rather lacking protective capacity – Ordered the youngest child live with the mother

FAMILY LAW – CHILDREN - With whom the child lives – Child’s views – Where the middle child opposes seeing the mother at all – Decided the views of a 16 year old within developmentally normal range cannot be disregarded -  Decided the middle child is entitled to continue with the personal and educational stability he has achieved through the choice of one parent over the other – Ordered the child live with the father

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

APPLICANT: Mr Whitehall

RESPONDENT: Ms Warren

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales Gosford

FILE NUMBER: NCC 2698 of 2013

DATE DELIVERED: 10 May 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 6-9 September 2016 and 20 December 2016

REPRESENTATION

THE APPLICANT:   In person

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Mr Kelly

SOLICITOR FOR THE RESPONDENT: Fowler Predny Solicitors

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales Gosford

Orders

1. That all prior parenting orders in relation to:

   B born … 2000 “B”;

   C born … 2001 “C”; and

   D born … 2007 “D”;

   together known as “the children” are discharged.

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

3. That C live with the father.

4. That C spend time with the mother (and D) on one weekend in each calendar month and failing agreement otherwise the second weekend of the month from 2.00 pm Saturday to 6.00 pm Sunday, commencing 13 May 2017 and at such other or additional times agreed between the mother and C.

5. That the mother have sole parental responsibility for D.

6. That D live with the mother.

7. 7.1     That subject to Order 7.2 D spend time with the father, commencing 28 May 2017, on each alternate Sunday from 9.00 am to 4.00 pm in the home and in the company of the paternal aunt or Mr E and failing willingness/availability of those family members then in a contact centre, arranged and paid for by the father for the maximum period available with the mother to deliver and collect the child from the residence/contact centre nominated.

   7.2To that end before time commences the paternal aunt/Mr E shall each provide an Undertaking in writing to the Independent Children’s Lawyer as follows:

   -That during any periods of time for D in the home of that person he/she will ensure that:

   (i)The child is not brought in contact with B in any way;

   (ii)There is no discussion of these proceedings with or in the presence of the child nor provision to the child of documents related to these proceedings; and

   (iii)Shall terminate the visit and contact the mother for her to collect the child if those events or any of them occur or if there is a risk of their occurring.

8. That the father shall permit and encourage C to:

   (a)Contact the mother at any reasonable time by telephone/Facetime/ Skype; and

   (b)Spend time with the mother by arrangement in addition to time in accordance with these orders.

9. That the father be restrained from:

   (a)       Allowing D to come in contact with B at any time;

   (b)       Bringing B into contact or communication with D;

   (c)Permitting any of the children to look at/read any document connected with these proceedings;

   (d)Discussing these proceedings with or in the presence of the children or permitting third parties to do so.

10. That until the conclusion of her primary school education the father may communicate with D each Tuesday at a time between 5.00 pm and 6.00 pm with the father to initiate the call and the mother to facilitate such telephone calls and have D available to speak with the father.

11. That D have telephone communication with the mother as she may request during those periods which she is spending time with the father and the father will facilitate the making of such telephone calls.

12. That D have privacy during telephone conversations with each parent and the other parent must ensure he/she facilitates this.

13. That each parent advise the other parent, and keep the other parent advised of, a current contact telephone number, both landline and mobile if applicable and residential address and advise the other parent of any changes to these details within 24 hours of such change occurring.

14. The father shall provide a copy of these orders to the paternal aunt and Mr E if both or either of them are willing to participate in time between D and the father in accordance with these orders.

The Court Notes That

(A)The parties anticipate that the eldest child B will continue to live with the father.

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 Whitehall & Warren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2698/2013

Mr Whitehall

Applicant

And

Ms Warren

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications in respect of parenting orders for two children, a boy C now aged 16 years and a girl D aged ten years.

The applicant Father

1. The applicant Mr Whitehall is the father of the children.  He is aged 51 and was employed until shortly before hearing as a tradesman. 

2. His household presently consists of himself, C and also B who is the oldest child of the parties.  B is now 17 years old. He has lived mainly with the father since separation, more than 7 years. Quite properly, given that circumstance, B’s age, and other considerations referred to later in these reasons, neither party seeks orders in respect of B.

The respondent mother

1. The respondent Ms Warren is the mother of the children. She is aged 39 and was unemployed when the matter was heard.

2. Her household consists of herself and D. 

3. The mother has a partner of 7 years, Mr F aged 46 years.  He is a regular visitor to the home of the mother but not a permanent member of the household.  Mr F lives about 10 minutes away.  He has a shared care arrangement with his former wife for their daughter G now in her mid-teens.

Parties’ relationship

1. The parties began living together in 1996 when the father was 30 and the mother had just turned 18.

2. The children were born in 2000, 2001 and 2007.

3. In the second half of 2009 the parties separated.  The children were then aged nine, eight and two.

4. The parties came to their own parenting arrangement, which was one of shared care. The two younger children lived with the mother. The eldest child B lived with his father. The mother conceded that after separation B was closely aligned with his father but does not concede that the father/son relationship has adequately met B’s needs. The mother concedes that she found it difficult to manage B prior to separation and almost impossible afterwards.

5. In 2010 the mother began her relationship with Mr F and for the first two or three years they lived together, later coming to the current arrangement of living separately within close proximity.

History of the Litigation

1. On 29 October 2013, after four years of separation, the father filed in the Federal Circuit Court,  the first  Application for parenting orders.  He proposed equal shared parental responsibility and equal shared care on a week about basis.  There were other orders sought in relation to specific issues.

2. On 10 January 2014 the mother filed a Response.  She proposed sole parental responsibility for herself for C and D, and residence of the children. Alternate weekends and half school holidays were proposed for time with the father. The mother conceded residence of B with the father.

Child Inclusive Conference

1. On 20 January 2014 the parties and all three children participated in a Child Inclusive Conference.

2. Despite the children having been in a shared care arrangement for the four years since the parties had separated in 2009, the Family Consultant did not support its continuation due to the impact on the children of poor co-parenting.[1] There was assessed to be both poor communication and conflict.

   [1] Child Inclusive Conference Memorandum dated 20/01/2014, page 3

3. The two younger children were noted “not to report any adversity and say that they wish to spend equal time with each parent as that is what they have become used to and that is what they enjoy.”

4. B was clear to say he wanted to live with his father, rebuild his relationship with his mother and ultimately spend alternate weekends Friday to Monday with her.

5. The mother at that time alleged “minor issues of neglect” and “poor supervision which reflected adversely in the presentation of the children [especially the youngest child [D]] at school.”

6. In retrospect it is easy to see that the rules and standards of the parents were very different and that the father was much less inclined to insist on a child doing something he/she did not want to do, even routine matters such as tooth- cleaning and hair-brushing.

7. Combined with a standoff over how to communicate, the children were caught in the conflict between their parents over how they should be raised. The oldest child had what he probably perceived as a benefit of the father’s less strict and ordered approach. It probably also seemed attractive to the younger ones.

Final Orders - 11 July 2014

1. In July 2014 final orders were made by consent in the Federal Circuit Court in relation to C and D only.  [No orders were made about B.  There was a notation about the relationship between B and his mother having broken down].

2. The orders provided for equal shared parental responsibility and equal shared care week about.  There were orders for special times and specific issues.

3. The parties remained compliant with these orders for almost one year.

4. During that period in October 2014 police were called after a problematic changeover. Police applied for an Apprehended Violence Order (“AVO”) which was resolved by Undertakings.

5. In February 2015 B had a 4 day suspension for slapping a male student hard across the face.[2]

   [2] Exhibit 17

6. In March 2015 B was watching pornographic videos in class on his mobile telephone.

C begins living with father

1. In May 2015 C did not return to the mother after a period of time and chose to remain living with his father. The father did not insist on the boy returning to his mother.

2. The mother was bitterly disappointed and feared that C would lose motivation at school, with particular reference to his sport which had seen him accepted into a selective sports High School. At least in part her fear was based on his brother B’s poor attendance at school.

3. Conflict between the parents worsened. The mother felt that all her hard work was being progressively undermined by the father. The father felt vindicated in his approach which was either a philosophical commitment to allowing the children to come to their own decisions or the result of time pressure on the father then working full time.

Allegation of sexual assault of D by her brother

1. In September/October 2015, after holiday time in the home of the father. D disclosed to the mother that she had been sexually assaulted by her brother B. The allegations were most serious, both as to the nature of B’s conduct with his younger sister (sexual intercourse; forced masturbation) and the extent of the abuse going back in time (when the children were together unsupervised by the father). The mother believes the assaults started up to two years prior.[3]

   [3] Affidavit of the mother filed 15/07/2016, pars 6 and 21-33

2. On 2 October 2015 the mother rang the father and asked him to come to her home to talk. This was a commendable approach by the mother to shared parental responsibility.  It opened the prospect of a united response to shattering allegations.

3. The parents did talk. The mother revealed what D had said. The father revealed that “[C] has been suicidal”.[4] The mother was shocked to learn of C’s problems but also had the uneasy feeling that the father had introduced that information to deflect conversation away from D.

   [4] Affidavit of the mother filed 15/07/2016, par 24

4. On 30 October 2015 there was an audio visual JIRT interview and enquiry. The extent and nature of the information provided by D lead to a decision that B would not be charged.

5. In November 2015 D resumed spending time with the father. The mother described herself as not comfortable sending D back for time in her father’s care but was encouraged to do so by one of the JIRT officers. In particular she was persuaded by information passed on by the JIRT officer that the father had arranged for B to live with a neighbour Ms H while D was spending time in his home.

6. On 23 November 2015 a JIRT officer attended the father’s home and spoke to B. B admitted “touching [D] on the butt” and agreed he would benefit from a referral for counselling.[5] B was not formally interviewed.

   [5] Magellan Report dated 6/01/2016, page 6

7. Later that day there was a confrontation between the parents at the mother’s home. The mother was concerned by the D’s statements that her father was pressuring her about B “Telling me that I’ll have to speak to [B] sooner or later, and I don’t like this.”[6]

   [6] Affidavit of the mother filed 15/07/2016, par 27

8. On 24 November 2015 the Department of Family and Community Services (“the Department”) received a report that B was involved in explicit conversations on Facebook and sharing naked photos. A further report was that B had “fingered” a 12 year old girl at the beach.[7]

   [7] Magellan Report dated 6/01/2016, page 6

9. On 24 November 2015 B was suspended from school for 20 days for “inappropriate interactions with a younger female.”[8]

   [8] Exhibit 19

10. The Department assessed D as safe in the care of both parents with reliance on the father “having sourced a family member for [B] to live with”[9] and on counselling having been arranged for both B and D. It is likely that the father had no intention of having B move out of his home. In any event he did not.

    [9] Magellan Report dated 6/01/2016, page 7

11. On 4 December 2015 JIRT applied for an Apprehended Domestic Violence Order (“ADVO”) protecting D from B.

Current Proceedings

1. On 7 December 2015 the father filed a fresh Application in this Court.

2. The father proposed that:

   ·He have sole parental responsibility and residence for C.  Time with the mother by arrangement; and

   ·There be equal shared parental responsibility for D and an ongoing shared care arrangement, week about.

3. The father also filed a Notice of Risk as follows:

   Q. Has a child to whom the proceedings relate been abused or is a child to whom the proceedings relate at risk of being abused?

   A. Yes.

   Q. Do you allege that a child to whom the proceedings relate has been abused by a party to proceedings or any other person who is relevant to the proceeding?

   A. No [but identified particulars of alleged abuse as “sexually offending behaviour from sibling [B] to [D] [Whitehall]”].

   Q. Do you allege that a child … is at risk of being abused?

   A. No.

4. In early December 2015 D was withheld from school for a week by the mother.

5. On 16 December 2015 the mother filed a Response proposing sole parental responsibility and residence of C and D with her and time with the father as ordered by the Court.

6. The proceedings were allocated into the Magellan protocol.

7. On 18 December 2015 an interim ADVO (three months) was made in I Town Children’s Court for the protection of D from B.

8. On 21 December 2015 B’s psychologist Mr J prepared a report. B had been referred for “symptoms of depression and anxiety along with low self-esteem and inappropriate behaviours both at home and school.”[10]  Notably B’s self-care and self-direction skills were assessed to be below average. B was reported to have an age equivalent of 8-10 years in these areas.  B was then almost 16.

   [10] Exhibit 1 - Affidavit of Mr J sworn 29/08/2016, page 6

9. The significance of this report is that, if not before it, the father thereafter knew that B did not have the maturity or cognition to make decisions consistent with his chronological age.

10. The psychologist recommended that during treatment in 2016 pursuant to a Mental Health Plan:

    [B] be directly supervised by his father or responsible adult within line of sight no further than 10 metres away when in the vicinity of or mixing with children under 13 years of age including his younger sister [D].

    There were further recommendations for supervision of B online.

11. On 23 December 2015 the mother filed a Notice of Risk identifying the following acts or omissions that she alleged to constitute abuse:

    1.The child D has been sexually assaulted by her eldest brother, B, whilst in the father’s care[11]

    2.The father has exposed the children to family violence being assaults and denigration of the mother during the relationship and in the presence of the children[12]

    3.The father has exposed the children to his continuing stalking and harassing behaviour directed towards the mother, denigration of the mother and threats to the mother following separation[13]

    4.The father has been physically violent towards the children[14]

    5.The father has exposed the children to inappropriate sexualised behaviour[15]

    6.The father does not properly or adequately supervise and care for the children when they are living with him[16]

    7.There have been significant changes in the personality and attitude of the two male children, B and C, whilst they have been in the father’s care.  Both children have become rebellious, violent, rude and dismissive in their dealings with the mother and other persons[17]

    [11] Affidavit of the mother filed 16/12/2015, pars 6-7 and 18-23

    [12] Affidavit of the mother filed 16/12/2015, pars 29-36, 80

    [13] Affidavit of the mother filed 16/12/2015, pars 37-42

    [14] Affidavit of the mother filed 16/12/2015, par 50

    [15] Affidavit of the mother filed 16/12/2015, pars 63-66

    [16] Affidavit of the mother filed 16/12/2015, pars 28, 51-61, 68-69

    [17] Affidavit of the mother filed 16/12/2015, pars 42-49, 70-71, 76

12. On 6 January 2016 the Magellan Report was completed.  The assessment as to Risk of Harm was:

    The Secretary is of the conclusion that, on the balance of probabilities with the current evidence available in the JIRT investigation, it was more likely than not that [D] was sexually abused by [B].  The extent of the abuse however is unable to be determined with the current evidence available.

1. On 21 January 2016 the Magellan Report was released to the parties.

2. On 29 January 2016 interim orders were made by consent of all parties:

   i)That B spend time with the mother in accordance with his wishes;

   ii)That C spend time with the mother each alternate Wednesday from after school to 7.00 pm and in addition by his wishes;

   iii)That D spend time with the father each alternate Sunday from 9.00 am to 4.00 pm and in addition by her wishes;

   iv)(Restraints relating to B and other orders omitted)

3. In February 2016 B’s mental health deteriorated. His social worker reported that “[B] was hearing command voices” to “kill his family”.[18]

   [18] Exhibit 1 - Affidavit of Mr J sworn 29/08/2016, page 4

4. There had been an incident at school where B had “turned violent and an ambulance was called.” There had been a “flare up” with his “ex-girlfriend”. B stabbed himself in the leg the following day.

5. I accept that the mother came to know about the severity of B’s problems only through reading the subpoena material for this case.  The father must have known.

Family Report Interviews

1. On 7 March 2016 the parties, the children and the mother’s partner were interviewed by the Family Consultant for the purposes of preparing a Family Report.

2. The report reflects that after six and a half years of separation, each parent was strongly critical of the other. There was however in my view a subtle difference. The father was critical of the mother as a person, the mother was critical of the father as a parent.

3. The father attended with the two boys. The father reported that the mother had scapegoated B which was largely the cause of his issues; that in his view the mother had a narcissistic personality disorder; that she was “cruel, cold and lacking empathy”.[19]

   [19] Family Report dated 17/03/2016, par 30

4. The father described the relationship between the parties in this way: “I suffered damage from day one. It’s a toxic relationship but I enabled her behaviour by always making excuses”.

5. This interpretation by the father of himself playing an heroic role in the family was echoed in his closing submissions. Conceding that he had allowed B, in breach of Orders[20] to be present in the home on the last occasion of time between himself and D, the father said this, “I unwittingly contravened the orders by allowing age appropriate autonomy”.

   [20] Orders dated 29/01/2016

6. At least one interpretation of that submission is that the father believes he knows what is best for the children and is “strong” enough not to let Court orders get in his way.

7. The relevant conclusion for the Court is that the father is unlikely to comply with orders if he disagrees with them.

8. The mother attended with her partner Mr F and D.

9. The mother was concerned that the father was not complying with a Safety Plan[21] which required him to closely supervise B with younger children and in his use of the internet. The mother had been alarmed when she heard that the father had made arrangements for a family holiday in the 2015/2016 school holidays. The holiday, camping on Fraser Island was for himself, the paternal grandparents and all three children. The mother saw this as evidence that the father did not understand the dynamics of sexual assault. It was a legitimate concern.

   [21] Family Report dated 17/03/2016, par 52

10. The mother also worried about a lack of supervision revealed by the boys: missing school; sleeping in; bingeing on computer games. She perceived the father’s household, probably correctly, as lax and unstructured.

11. On 18 March 2016 the Family Report was released and the following recommendations made:

    i)Parent with child primarily in their care have sole parental responsibility for that child;

    ii)B live with his father;

    iii)C and D live with the mother and spend alternate weekends with the father (Friday to Monday provided the father undertakes to get them to school on Monday);

    iv)Father be restrained from allowing D to come in contact with B;

    v)Referral to K Mental Health;

    vi)Restraint on the father showing documents to the children

12. The parties were unable to reach agreement.

Events prior to trial

1. On 4 April 2016 orders and directions for trial were made, the matter was listed for 3 days commencing 6 September 2016.

2. In June 2016 B attended D’s netball game. D was frightened because B stood and stared at her. The mother describes B pouring out a torrent of abuse when she challenged him.[22]

   [22] Affidavit of the mother filed 15/07/2016, pars 141-142

3. The mother contacted JIRT and learned that the AVO she thought was in place had been withdrawn. She asked for assistance.

4. On 28 June 2016 an interim AVO was put in place for D’s protection to be withdrawn after 3 months if there had been no breaches.

5. B knew he was restrained by an AVO. He referred to it when he discussed his mother being at “footy training” with his psychologist.[23]

   [23] Exhibit 1 - Affidavit of Mr J sworn 29/08/2016, page 5

6. By July 2016 B had left school and was attending TAFE to do a pre-apprenticeship course.

7. On 15 July 2016 the mother filed, in accordance with directions, affidavits by herself and her partner.  These documents were not served on the father, as they should have been. It may be that the return of the documents from filing coincided with the filing by the father of a Notice of Discontinuance.

8. On 19 July 2016 the father discontinued the whole of his Application.[24]

   [24] Notice of Discontinuance filed by the father on 19/07/2016

9. On 29 July 2016 the solicitors acting for the father filed a Notice of Ceasing to Act.

10. The father chose not to file an Amended Application.

11. The father failed to comply with directions to file an affidavit.

12. On 1 August 2016, in those circumstances of non-compliance by the father, the matter was relisted for case management.  The mother was given leave to file an Amended Response by 8 August 2016.  The hearing was reduced from three days to two on the basis it would be undefended by the father.

13. On 5 August 2016 the mother filed an Amended Response.  She proposed orders for sole parental responsibility and residence for C and D, the children to spend time with the father each alternate Sunday from 10.00 am to 4.00 pm or, alternately, as ordered by the Court.

Mother changes her proposal

1. On 14 August 2016 D spent time with her father. The mother and Mr F attended at the home of the father to collect her. The mother saw someone in B’s bedroom.

2. The mother spoke to D who had enjoyed her time. When asked, D at first denied that there was anyone at the home other than the father and C but stated “[B] came to the house when Dad and I went to [Town  L] though.”

3. The mother was not sure if the child was telling the truth as to whether she had actually seen B or not but noted that she was uncomfortable and did not look at her mother when answering.

4. The mother lost whatever confidence in the father she had held. She thereafter ceased making D available for time with her father as the orders permitted in relevant circumstances.  Telephone communication continued.

5. The mother reconsidered her proposal for time with the father.

6. On 6 September 2016 the matter came before me for undefended hearing.

7. The father appeared at Court asking to participate in the hearing.  He read a prepared statement onto the record in relation to his reasons for deciding to withdraw from the proceedings, amongst other matters.  There was a reference to a period of mental ill health for the father from which he had recovered.   There was no medical evidence tendered.

8. The father had, in the previous week, given informal notice to the Independent Children’s Lawyer (“ICL”) although not to the Court, that he intended to be present at Court. 

9. The father advised the Court that he did not wish to have the matter adjourned.

10. The mother opposed the father participating in the proceedings other than as an observer. 

11. The ICL was open to the father providing evidence of his current circumstances and of the orders he sought. 

12. Both positions were proper ones in the circumstances.

13. The father was given the opportunity to obtain advice from the Duty Solicitor.

14. The matter resumed with a proposal by the father that he would remain an observer and by the ICL that she would call the father as witness.  The mother opposed the latter course.

15. In my view, the risk to the independence of the role of the ICL could have been put at risk by such a course being followed. The ICL was dissuaded by the Court from this course, however, the view of the ICL that evidence from the father relating to his household (where the two older children lived) and current circumstances, was crucial to a proper outcome, was a child focused one.

16. As an additional complication the mother sought leave to rely on a further affidavit relating to D having allegedly been brought in contact with B during a recent period of time with the father.  On that basis the position of the mother had changed to no order for contact between D and her father.

17. I accepted the submission that there was urgency arising from the change.

18. The mother was directed to provide the father with copies of all material relied on.

19. The attention of the father was drawn to the material produced on subpoena which was to be tendered on behalf of the mother.

20. Later in the day, an application by the mother to issue three subpoenae was granted with the consent of all parties.

21. In these difficult circumstances I concluded that the Court of its own motion should adjourn the proceedings to commence at 2.00 pm on the following day.  The father was directed to produce overnight a Minute of Order sought and an affidavit by himself.

22. On 7 September at 2.00 pm, the matter commenced. The father had produced an affidavit and Minute.

23. The hearing proceeded on to 9 September 2016 but could not be completed.  Proceedings were adjourned to 20 December 2016 for the balance of cross examination of the Family Consultant and submissions.

24. On 22 September 2016 the father filed an affidavit responding to the alleged breach of order, in relation to B, during D’s last visit in August 2016. One relevant paragraph was admitted into evidence when the hearing resumed.[25]

    [25] Exhibit 13

25. On 27 September 2016 in I Town Children’s Court, the ADVO against B was discharged on the basis there had been no breaches.

26. On 20 December 2016 the mother filed an updating affidavit. C had spent time with her on several occasions between September and late November but then stopped coming.

27. On 20 December 2016 this matter was concluded and judgment reserved.

Evidence

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

   The Applicant father

   (a)Minute of Order[26] proposed by the father handed up 7/09/2016;

   [26] Exhibit 5

   (b)Affidavit of the father filed 7/09/2016;

   The Respondent mother

   (c)Further Amended Response filed 6/09/2016;

   (d)Affidavit of the mother filed 15/07/2016;

   (e)Affidavit of the mother filed in Court 6/09/2016;

   (f)Affidavit of Mr F filed 15 July 2016;

   The ICL

   (g)Affidavit of Mr J Counselling Psychologist sworn  29/08/2016;

   Reports

   (h)Family Report dated 17/03/2016;

   (i)Child Inclusive Memorandum dated 20/01/2014;

   (j)Magellan Report dated 6/01/2016.

Oral Evidence

The Applicant Father

1. The father presented as a self-absorbed man with a somewhat melodramatic presentation. He was regularly tearful during the hearing and readily agreed that he often cries in front of his children.

2. On his own evidence he exposed the children to information quite inappropriately.  One clear example of this in March 2016 is as follows.[27]

   [27] Affidavit of the father filed 7/09/2016, par 3

3. In his affidavit the father denied showing the Family Report or any Court documents to the children. He then went on to say that it was immediately obvious to B and C that he was “distraught” after receiving the Family Report. When asked by C why he was so upset the father replied that “The Family Report said I was a shit parent and that I didn’t care about [B] and how he was self-harming”.

4. Worse, the father stated that he “Expressed to [C] for the first time that his mother was attacking me and trying to destroy my relationship with him and [D] and that it was making me really upset”.

5. That statement was manipulative of C’s feelings and highly likely to cause him to think badly of the mother. It was pure self-indulgence by the father.

6. When the father received a costs estimate from his lawyers, (presumably for this hearing), he described himself as breaking down and being unable to carry on.  He sought medical and counselling assistance and his mother moved into the home for three weeks. He made the decision to avoid conflict (presumably the litigation).  That was his decision to make.

7. However the following passage captures the impaired capacity of the father to meet the emotional needs of the children by shielding them in this setting and protecting their privacy. Rather he enlisted them to his viewpoint in an emotionally manipulative way:

   I discussed this with my counsellor my close friends, my cousin [Mr E], my parents, [B] and [C]. I felt relieved in confiding how much I was suffering and also gained strength from talking about it. (emphasis added)

8. The father is capable of thoughtful sensitive parenting away from the context of the conflict between the mother and himself. He assisted C by taking him to the GP to arrange a Mental Health Plan and encouraged him to renew old friendships although it has to be said that was in the context of a change of High School which the father supported.

9. The father is zealously defensive of B. He referred to the mother as having “Done nothing but attack [B] and attempted to undermine any therapeutic approach by insisting a punitive agenda.”[28]  This was apparently a reference to the assaults on D and an AVO for her protection.

   [28] Affidavit of the father filed 7/09/2016, par 15

10. The evidence supports a finding that the father has not had a detailed conversation with B about his conduct. This exchange has been the extent of disclosure by B;

    Father:           [D] says you touched her.

    [B]:                 I’m a piece of shit. I deserve to die. (repeated)

    Father and son both cried.

11. Nevertheless the father authoritatively denied specific allegations of possible sexual abuse put to him by counsel for the mother. The only accurate response could have been “I don’t know.”  The father’s denials were certainly defensive of B but certainly not protective of D.

12. B has had psychiatric assessments and a referral to a Mental Health Service. However the father has also told B that he “dodged a bullet twice”. This is a reference to B not being charged in respect to conduct with his sister nor with the young girl next door.

13. B was “sexting” with his neighbour’s 12 year old daughter talking to her about sexual intercourse.  The father said he had spoken to B about it and that the boy was “upset.”

14. Primarily the father seemed relieved that the neighbour did not want police involved on behalf of her daughter.

15. When counsel asked the father about B’s message to this young girl “I want to do you so bad” the father’s response was facetious if not mocking, “It is alarming what children get up to these days isn’t it?”

16. Despite the conduct of B with his sister and later the daughter of the neighbouring family, the father sees B as a boy who needs help and understanding not as a young man who needs confronting with the destructive  impact of his behaviour.  B will be an adult in eight months’ time.

17. Overall the father presented as believing himself to be not only a better parent than the mother but superior in understanding to her.

The Respondent Mother - Ms Warren

1. The mother presented as bitter but not defeated. She had hoped to ensure that all her children would benefit from a good education and a supportive structured family life. She wanted them to be happy and do well.

2. Sadly each child has been disrupted in their education for different reasons. B left school because of his own conduct.  C was accepted into a selective high school but left with his father’s support.  D changed schools to enjoy a fresh start after the JIRT enquiry and her emotional reaction to revealing what had happened between B and herself.

3. The mother understood that the Court would be reluctant to compel C to return to live with her over his strong wishes not to. However she committed herself to making the proposal.

4. The mother has seen B become rude, aggressive, violent and physically violent to her. She has feared, but not expected, that C would go the same way.

5. The mother has been unable to counter the revelation by the father of the contents of Court documents including the Family Report. She has stayed true to her principles that she should be a parent not a friend to her children.

6. The mother has been shocked by the assaults on D by her brother although she had feared that the father was not adequately supervising the children.

7. The mother has struggled with what she experienced as the power imbalance in the relationship with the father that arose from the disparity in their ages. She was 17 when they met and the father 30. Her view is consistent with my finding that the father believes he is a better parent and a superior person.

8. Overall I had the impression that the mother understands her children very well, loves them and makes hard decisions if she has to.

The Mother’s Partner - Mr F

1. Mr F has steadfastly maintained his relationship with the mother from its commencement in May 2010 through difficult circumstances. He and the mother lived together briefly in 2011/2012 but since then have lived in separate households.

2. One reason for that decision is that Mr F has had week about care for his daughter G who is now aged 16. In the early years in particular he wished to protect her from the anger and aggression which he perceived B to display. He regarded B as a “troubled” boy.

3. There are other reasons. Mr F understood that the father disliked him, a feeling which he saw reflected in the “disdain if not open hostility”[29] with which B and C treated him after spending time with their father. In the early years there were physical assaults from them. Subsequently he developed a warmer relationship with C.

   [29] Affidavit of Mr F filed 15/07/2016, par 11

4. Ill feeling was on display in the questioning of Mr F by the father. I had the impression that the father relished the opportunity and was in his way taunting Mr F by being polite and restrained in his language.

5. Mr F perceives the father as a bully who speaks to the mother in a crudely derogatory way; as a man who has made and followed through with threats   “to take her children away from her” and “to make her life hell.”[30]

   [30] Affidavit of Mr F filed 15/07/2016, par 16.6

6. There was a blunt exchange between the two men which tended to confirm Mr F’s expressed view that the father still wants the mother in his life.

   Q You have a fairly strong opinion of me?

   A I’ve witnessed this over the years. You’ve spoken/texted for an hour. It’s not an opinion it’s fact.

   Q You said you don’t care about me?

   A.I don’t! Why would I? I wish you’d just leave us alone. That’s why your AVO was thrown out. The magistrate called you a pest!

7. I accept that the jealous hostility of the father towards Mr F and the insulting language he has used about the mother and Mr F in front of the children has greatly contributed to the distressed weariness that the children [particularly C] feel about the two households.

8. In relation to D the evidence suggests that she has a trusting confiding relationship with Mr F. She has been able to talk to Mr F about her unhappy feelings around the father pressuring her to see B after his assault on her.

9. On 9 June 2016 the mother contacted Mr F to let him know that B had again come to D’s netball training and that D was upset. Mr F drove straight over to see “[B] standing close to the courts staring at [the mother] and [D].”[31]  As soon as D saw Mr F she ran to him, wrapped herself around his leg and hid behind him.

   [31] Affidavit of Mr F filed 15/07/2016, par 84

1. I consider that Mr F is a very solid source of physical and emotional protection for D, as he is for the mother.

   The evidence suggests that the relationship, presently in abeyance, between C and Mr F will likely be restored when C reaches the age of independence.  

The Family Consultant

1. The Family Consultant expressed the view that the father had mismanaged the situation between B and D. In her view he should have enquired with his son into what had really happened, “Parenting is having the difficult conversations.”

2. I accept this view, especially as the father then failed to act decisively when B began sexual activity and communication with the 12 year old girl next door within weeks of D’s disclosures.

3. The Family Consultant was also critical of the father changing the arrangements for B’s whereabouts when D came to the house and generally for allowing B to free range to friends’ homes.

4. Further she was concerned that the therapeutic focus for B was exclusively on mental health but no treatment for sexual abuse behaviours. She said he needed to develop insight and to manage his own sexual urges.  I accept her evidence in that regard and also that the absence of that work means that there is an ongoing risk of sexual abuse of D from B.

5. The Family Consultant was also clear to say that it was important for D to maintain her relationship with her father.

6. She expressed the view that alternate weekends would be optimal with this qualifier: “Dad’s not a danger to her, it’s his lack of protective capacity”.

7. That remark encapsulates perfectly the risk of harm for D in the care of the father who loves and misses her.

8. The Family Consultant also pointed to the poor relationship between the two boys and the mother, the result to some extent of an aligning process.  I accept that observation. The father has been critical of the mother and over inclusive with adult information.  I consider that the other element is the natural attraction of young adolescents to the loose and indulgent parenting of the father.

9. The Family Consultant considered that an order for C to live with the mother should be made by the Court because the mother offered a better household for C than the father:

   The mother offers structure and discipline.

   The father is away a lot, the boys are left to their own devices.

   They play violent video games all hours.

   The father does not understand the Internet and does not want to learn.

   School attendance has been poor for both boys.

   C has put on weight and given up his sport which was his passion.

10. I accept all that is true.

11. However, the Family Consultant also stated that the father would have to lay down the law and insist that C return to his mother.

12. The evidence is compelling that the father has not done that in any area of the children’s lives and will not do that for C given his attitude to exercising parental authority. He lets the children exercise it for themselves.

13. If C was several years younger an order for return to the mother and limited supervised time with the father would be appropriate.

14. The last available opportunity for that course probably closed with the making of the 2014 consent orders.  That is not a criticism of the mother; the orders reflected the wishes of the children.  Rather it is a reflection of reality.

Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the children in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

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

Parental Responsibility

1. The parties agree with the recommendation of the Family Consultant that whichever parent the children live with should have sole parental responsibility. It would be impossible for genuine consultation and compromise to take place between these two parents.

2. Each parent considers the other a woeful failure at parenting.

3. The parties agree that D should live with her mother

4. I have concluded that at his age C’s clear expressed views and wishes should be given weight and that he should continue to live with his father.

5. Accordingly each parent should have sole parental responsibility for the child who lives with him/her.

Primary Considerations

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

1. C has maintained his relationship with his mother at least until late 2016.

2. He has had a loving and affectionate bond with his mother all his life and with D for all of hers. He has had an easy affectionate confiding relationship with Mr F.

3. Presently C has withdrawn from his mother but the evidence suggests that the relationships are intact waiting to be restored.

4. C does have a meaningful relationship with his father who has supported him in making changes to his life.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. D has been sexually abused and emotionally harmed. She is being assisted by her mother appropriately to recovery.

2. She must be kept safe, away from her brother who continues to be a risk to her safety. She does not want to see him. She was fearful when she did in June 2016.

3. Both children have been exposed to emotional abuse. The father has not sheltered them from his feelings and overt criticism of the mother.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The ICL prepared documents setting out the views and wishes of the two subject children.[32]  They were then aged 15 and nine respectively.

   [32] Exhibit 3

2. C is reported as being aware of the hearing, due to take place later that year, when he was spoken to by the ICL in September 2016. He was clear that he understood that his mother was seeking an order for him to return to live with her and to spend six hours each alternate Sunday with his father. He was also clear in his opposition, “[C] does not agree with either proposal.”

3. Sadly he opposed seeing his mother at all at that time. He was positive about his father “[he] has always been about what I want” and negative about his mother “[she] has always been about what she wants.”

4. These statements echo the complaints raised by the mother about the unwillingness of the father to set boundaries and impose discipline.

5. At 12 and a half years [when he first spoke to a family consultant] C wanted shared care week about to continue; it was what he was used to, he enjoyed it, despite sibling rivalries and some fighting in both households.

6. Eighteen months later, just after turning 14, he chose to remain living with his father. To some extent adolescence and a natural desire for greater personal autonomy must have played a part in the change of attitude. It cannot all be attributed to the father’s influence and unwillingness to ensure compliance with Court orders although that certainly made it impossible for the mother to enforce return.

7. He was also looking for respite from parental conflict by choosing one parent and sticking to his choice. He directly confirmed as much to the Family Consultant.[33]  Apparently he expressed more than once that he “felt caught in the middle of the mother and father always being angry at each other and he was  tired of moving between the two homes”

   [33] Family Report dated 17/03/2016, pars 88-90

8. C had some mental health problems, depression and anxiety. He made changes. He gave up hockey as his mother had feared and changed High Schools, enrolling at the school to which friends from Primary School had progressed for High School. Now he is in Year 10.

9. In March 2016 he was assessed by the Family Consultant to “present developmentally within normal parameters”.[34]

   [34] Family Report dated 17/03/2016, par 85

10. The Family Consultant also expressed the view that C revealed immaturity in choosing the easier option of living with his father. This must be so.

11. However I cannot simply disregard his views as the Family Consultant recommended and the mother proposed. At 16 and developmentally within the normal range, they must be given real weight.

12. He has grown up in a conflict zone and put an end to the pressure in his own way. There is evidence of his school attendance improving and his mental health issues resolving.

13. Despite the loss of closeness with his mother and of regular time with his sister, he is entitled to continue with the personal and educational stability he has achieved by the choice of one parent over the other, until he reaches adulthood in two years’ time.

14. D also knew about the Court hearing when she spoke to the ICL. She was able to state clearly that :

    She would like to see her Dad but doesn’t want to be near B.

    She is happy to live with her mother.

    She would like to spend every second weekend with her Dad from Friday after school to Monday before school.

    If she did stay overnight with her father she would like a night light in case she wakes up.

15. D reflected that “she didn’t really mind moving between the two households but she didn’t like Mum and Dad fighting all the time.”[35]  These words resonate with those of her elder brother C before he lost patience with the conflict between the parents.

    [35] Exhibit 3

16. D has been cruelly and selfishly mistreated by her brother B. She has suffered many losses as a result. She was pressured by her father to reconcile her relationship with B. Her confidence suffered after disclosing the sexual assault. She changed schools which made her sad but also provided the relief and fresh start which was hoped and intended by her mother. D loves her father and brother C but does not see either of them.

17. Her mother has steadfastly protected her since she first confided B’s misconduct. D’s security depends on her mother and, to a lesser but important extent, on her mother’s partner who has been a kind and steady presence most of her life.

18. The Family Consultant assessed D in March 2016 as appearing to present developmentally within normal parameters. She described her “as a happy, talkative (yet weary) child.” [36]

    [36] Family Report dated 17/03/2016, pars 100-101

19. The Family Consultant further assessed that D’s view that she missed her father and wanted to spend time with him; confident that he would not allow B into the home when she was there; showed maturity in respect of trusting her father to keep her safe.

20. The Family Consultant went on to say that if the father breached that trust and brought her into contact with B then the father/daughter relationship could be damaged irreparably.[37]  The sounding of this caution is significant. The evidence of the father did suggest a focus on reconciliation within the family as opposed to a focus on safety for D.

    [37] Family Report dated 17/03/2016, par 112

21. Accordingly I take into account that D is a now 10 year old girl developing normally with a mature insight into relationships. However I also take into account that the father loves all three of his children, prefers to see them come to their own decisions and, learn by their mistakes, rather than following parental direction.

22. D has come to harm during periods of time in the father’s care. Her safety is paramount.

23. In his proposed orders[38] the father included restraints on himself, not to bring D into contact with B and not to permit B to be in the house overnight when D was there. Based on those proposals I am not satisfied that the father would be willing to exclude B from the home for whole weekends. If the father did attempt to exclude B overnight I cannot be satisfied that B would be totally compliant or compliant at all.

    [38] Exhibit 5

24. In eight months’ time B will be an adult with a very long history of doing what he wants to. There is a real risk that D will again feel pressured to conceal B’s presence if he remains in the house and worse that she may succumb to that pressure so as not to lose all contact with the father and brother she loves.

25. For those reasons I take D’s views into account but do not consider it appropriate to implement the extended weekends she hoped for. Daytime contact, away from the home, in the company of a trusted relative, or in a contact centre is a safer course until D is much older and the mother can be confident of her safety.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father has paid child support. The mother asserts that he has said to her more than once in a menacing tone “Dead bitches don’t get child support.”

2. Now with two children in his care Child Support will probably be re- assessed.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father has an impaired capacity to meet the needs of the children. He shares information with his two older children as if they were adult friends.

2. He has not supported Court orders made by consent and has allowed C to choose to live with him and to cease contact with his mother.

3. He has given priority to reconciliation within the family over safety for D in the matter of the sexual assaults on her by her brother. On best interpretation he has underestimated the impact on D of the losses for her within the family and of school friends, blaming the mother for D’s fearful responses to B.

4. On a less positive interpretation, he has given priority to B over D.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. C is a 16 year old boy who has made changes to his life to make it more bearable. He lives with his father and older brother, attends school and is semi-independent. He has chosen to stay away from his mother and be supportive of his father.

2. His school report in Semester Two 2016[39] reveals a capable student doing well. He has let himself down with 23 days absence and insufficient attention to homework. He is in Year 10. It will be a matter for him to make the most of his remaining years at school

   [39] Exhibit 15

3. The strength of relationship with his mother over the first 14 years of his life suggests that when he becomes fully independent he will re-engage with her.

4. D is a 10 year old girl who was able to tolerate week about shared care until that arrangement stopped abruptly at the end of 2015.

5. She does not want to see her brother B and has felt fearful and upset when he has appeared unannounced at her sporting events. Her wishes should be respected on this matter and both parents now formally endorse that although her father previously did not.

6. C and D are close and fond of each other. D, now effectively an only child, probably misses her brother very much.  C is at an age where friends increasingly mean more to him than family members, nevertheless he has expressed a wish to see D and an order for time with his mother will affect that on a regular and predictable basis.

7. It is unlikely that C would accompany his father for weekend visits with D in the home of a family member/friend but he might do so.

If the child is an Aboriginal child or a Torres Strait Islander child

1. The mother is an aboriginal woman. The father is not aboriginal.

2. The children identify as aboriginal.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother asserts that the father has treated their two sons as friends and equals at least since separation.  The evidence, including the evidence of the father himself, supports that proposition.

2. The mother has attempted to provide guidance  maintain rules structures and consequences for non-compliance by the children

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There was an AVO for the protection of D from her brother for an indeterminate period after harm was substantiated in December 2015/January 2016 and again for three months from June 2016 to September 2016.

Violence during the relationship

1. The mother alleges that during the relationship between the parties the father physically assaulted her including literally kicking her out of bed on one occasion. On another occasion, in front of B and C, the father is alleged to have knocked a dish of food out of the mother’s hands and forced her face into the heat of the open oven.

2. Post-separation the mother asserts that the father stalked, abused and threatened her.

3. I have no basis for dismissing those allegations. The mother was not challenged on that evidence. However the affidavit containing them was not served on the father in circumstances outlined elsewhere in this judgment.

4. The father when asked in cross-examination denied any violence at all.

5. There can be no conclusive finding about Domestic Violence.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. The father may not wish to take up the orders for time and communication with D for the time and in the manner prescribed by the orders. If he does not, he should let the mother know in writing immediately to avoid D being set up for disappointment

Any other fact or circumstance that the court thinks is relevant

Complaint by the mother in relation to the ICL

1. At the commencement of submissions Counsel for the mother raised a complaint on her behalf about the ICL and perhaps also the solicitor advocate whom the ICL instructed to appear for the first three days.

2. The complaint was that the ICL had run the father’s case for him and had not remained neutral.

3. I reject that complaint.  There is no basis for it.

4. The father represented himself. He participated over the objection of the mother to his taking part in the proceedings (other than to be permitted to be present in the courtroom).

5. The ICL proposed calling the father as a witness if his role was limited in that way to observing.

6. The orders and directions setting the matter down for hearing were made in April 2016.

7. On 19 July 2016 the father filed a Notice of Discontinuance of his Application.

8. On 1 August 2016 the mother was directed to file any Amended Response.

9. The hearing time was reduced to two days [from three] to proceed undefended by the father.

10. On 6 September 2016 the first day of that undefended hearing, the father appeared.  He referred to a period of poor mental health.  He sought no particular orders but wished to participate.  The Court acceded to his request. The father was permitted to participate.  The proposal of the ICL fell away.

1. There was undoubted delay and real inconvenience caused to the mother.  The father was given the opportunity to speak to the duty solicitor on the first day and to prepare.  As a result the matter commenced on the afternoon of the second day.  The proceedings then had to go over part-heard for three months.

2. I take that circumstance into account, as a basis for the mother’s frustration.

3. However, I wish to make it clear that the ICL in my view properly did all that she should, and nothing she should not, to ensure that the Court had as much  relevant material before it as possible in order to represent the interests of the children, including canvassing their current views.

Conclusion

1. Orders are made which largely confirm current arrangements. Time for D and her father is provided for, being less than he wanted and in circumstances he objects to, the father may decide not to spend any time. That would be a loss for D.

2. Likewise, time is provided for C which will allow him to spend regular time with the mother and with his sister. C may decide for his own reasons or in support of his father, not to spend that time. It is unlikely that his father will insist or even encourage him to do so.

3. That would also be a loss for D.

4. This family which was conflicted and unhappy before and after the separation of the parties is now riven by the fall-out from the events of late 2015.

5. The focus of the orders is both on safety for D and on keeping relationships between the two subject children and with their parents at least open to the possibility of future improvement.

6. Orders are made accordingly.

I certify that the preceding two hundred and forty three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 10 May 2017.

Associate: 

Date:  9 May 2017