Zabek and Bracewell
[2018] FCCA 1710
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZABEK & BRACEWELL | [2018] FCCA 1710 |
| Catchwords: FAMILY LAW – Parenting proceedings final hearing two children aged 7 and 5 live with father children spent daytime only with mother risk of harm to the children in the mother’s household mother’s partner poses an unacceptable risk of harm to the children family violence in mother’s household drug use in the mother’s relationship with partner mother’s inability to protect children from harm mother’s inability to prioritise children over partner – denigration of father in mother’ s household best interests of children. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: M & M (2000) FLC 93-006 Lyons & Adder [2014] FamCAFC 6 |
| Applicant: | MR ZABEK |
| Respondent: | MS BRACEWELL |
| File Number: | NCC 1657 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing date: | 4 May 2018 |
| Date of Last Submission: | 4 May 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ticehurst |
| Solicitors for the Applicant: | Todd Street Lawyer |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | N/A |
ORDERS
All previous parenting orders relating to the children, [X] born 2010 and [Y] born 2012 (‘the children’) are discharged.
The Father shall have sole parental responsibility for the children.
The children shall live with the Father.
The children shall spend time with the Mother as agreed but failing agreement as follows:
(a)Commencing on the second Saturday after the date of these orders and continuing each alternate weekend thereafter, on Saturday from 12:30pm until 3:30pm and on Sunday from 12.30pm until 3:30pm with such time to occur in a public location.
(b)At Christmas in each year, from 1pm until 5pm;
(c)On the mother’s birthday in each year:
(i)If the mother’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the mother’s birthday falls on a non-school day, from 11.30am until 5pm;
(d)On the birthdays of each of the children in each year, in the event that the mother is not already spending time with the children pursuant to order 4(a) herein:
(i)If the child’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the child’s birthday falls on a non-school day, from 1pm until 5pm;
(e)On Mother’s Day in each year, from 11.30am until 5pm;
In the event that the children are otherwise spending time with the mother pursuant to order 4(a) herein, such time is to be suspended and the children will spend time with the father as follows:
(a)On the father’s birthday in each year:
(i)If the father’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the father’s birthday falls on a non-school day, from 9am until 5pm;
(b)On the birthdays of each of the children in each year:
(i)If the child’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the child’s birthday falls on a non-school day, from 1pm until 5pm;
(c)On Father’s Day in each year, from 11.30am until 5pm;
The time the children spend with the mother will be implemented as agreed but failing agreement as follows:
(a)The mother will collect the children from the father at McDonald’s Family Restaurant at Suburb A at the commencement of her time with the children;
(b)The mother will return the children to the father at McDonald’s Family Restaurant at Suburb A at the conclusion of her time with the children.
That the mother is restrained by injunction from bringing the children into contact with (including the hearing of) MR R.
With respect to extra-curricular activities:
(a)Each party must do all reasonable things to ensure that the children attend such extra-curricular activities as may be scheduled during the time that the children are in their care (noting that the children participate in (hobbies omitted));
(b)Each party is at liberty to attend such extra-curricular activities, notwithstanding that the children may not be living or spending time with them pursuant to these orders at such time;
(c)Each party shall keep the other informed of when such activities are scheduled.
Each party will provide the other notification in writing of any change to their contact telephone number or address within 7 days from any such change.
Each party must notify the other in writing as soon as is reasonably practicable as to:
(a)Any serious medical problems or serious illnesses suffered by either child;
(b)Any medication that has been prescribed for either child;
(c)Any specialist medical appointments with any health professional regarding either child.
Notwithstanding Order 2, these orders represent sufficient authority for each party to obtain any medical information in relation to the children as held by any treating health professional of the children or either of them.
Notwithstanding Order 2, these orders represent sufficient authority for each party to:
(a)Obtain from any school attended by either child, copies of reports, photographs or any other notices relating to the children;
(b)Subject to the direction of the school, attend the school of the children at all reasonable times;
Each party is restrained by injunction from denigrating the other party in the presence or hearing of the children and they must immediately remove the children from the presence of any third party so denigrating either party.
Both parties shall do all acts and things to provide to the other party copies of any school awards provided to either child during periods that the child is living with or spending time with that party.
IT IS NOTED that publication of this judgment under the pseudonym Zabek & Bracewell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1657 of 2016
| MR ZABEK |
Applicant
And
| MS BRACEWELL |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Background
This matter involves parenting proceedings for two children, [X], born 2010, and [Y], born 2012.
The proceedings were commenced by the father on 30 June 2016. The mother filed her Response on 16 September 2016, together with a Notice of Risk and Affidavit and has not filed anything further since that time.
The matter was originally set down for trial to commence on 3 October 2017 and, is often the case in this registry, it could not reached due to the sheer volume of matters that require judicial intervention.
The mother failed to comply with the trial directions as at that date and my subsequent trial directions made on 30 October 2017.
The father is currently 39; the mother is currently 28. The parents commenced cohabitation in 2010.
The father says separation occurred in June of 2015 when the mother worked in Western Australia as a (occupation omitted). The mother says the relationship ended on or about 22 April 2016 as a result of an incident in the former matrimonial home. Nothing much turns on the separation date.
The children have lived with their father since 22 April 2016, an arrangement confirmed by my order made on 9 August 2016 and, indeed, the children lived with the father whilst the mother worked in Western Australia through 2015.
Subsequent orders made on 27 October 2016 provided for the children to spend time with their mother from Friday to Monday each alternate weekend and Monday overnight until Tuesday each other alternate weekend.
Since August of 2017, that time has not occurred due to a number of allegations amounting to risks in the mother’s home.
In lieu of the ordered time, the children have been spending time with their mother between one to four hours on almost alternate weekends each Saturday and Sunday in the main.
Both children attended School 1 and are involved in various sports.
The mother has re-partnered with Mr R, 24 years of age, and is expecting his child this year.
Issues to be determined
The issues for determination are:
a)parental responsibility;
b)what amount of time the children should spend with their mother and father;
c)whether Mr R poses an unacceptable risk of harm to the children;
d)whether there is drug use in the mother’s current relationship;
e)whether there is family violence in the mother’s current relationship;
f)whether the mother can properly protect the children from harm; and
g)whether either one or both of the parents denigrate the other in the presence of hearing of the children.
Material relied upon and Orders Sought
The material relied upon by the father was set out in his case outline, filed on 1 May 2018. They are as follows:
a)His Initiating Application filed 30 June 2016; and
b)His Affidavit sworn 13 April 2018.
The mother relied upon:
a)Her Response filed on 16 September 2016; and
b)Her Affidavit filed 16 September 2016.
A Family Report was accepted into evidence dated 5 April 2017, prepared by Mr S.
The orders sought by the father are as follows:
(1)All previous parenting orders relating to the children, [X] born 2010 and [Y] born 2012 (‘the children’) are discharged.
(2)The Father shall have sole parental responsibility for the children.
(3)The children shall live with the Father.
(4)The children shall spend time with the Mother as agreed but failing agreement as follows:
(a)Commencing on the second Saturday after the date of these orders and continuing each alternate weekend thereafter, on Saturday from 12.30 pm until 1.30 pm and on Sunday from 12.30pm until 1.30 pm, with such time to occur in a public location.
(b)At Christmas in each year, from 1pm until 5pm;
(c)On the mother’s birthday in each year:
(i)the mother’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the mother’s birthday falls on a non-school day, from 11.30am until 5pm;
(d)On the birthdays of each of the children in each year, in the event that the mother is not already spending time with the children pursuant to order 4(a) herein:
(i)If the child’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the child’s birthday falls on a non-school day, from 1pm until 5pm;
(e)On Mother’s Day in each year, from 11.30am until 5pm;
(5)In the event that the children are otherwise spending time with the children pursuant to order 4(a) herein, such time is to be suspended and the children will spend time with the father as follows:
(a)On the father’s birthday in each year:
(i)If the father’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the father’s birthday falls on a non-school day, from 9am until 5pm;
(b)On the birthdays of each of the children in each year:
(i)If the child’s birthday falls on a school day, from the conclusion of school until 5pm;
(ii)If the child’s birthday falls on a non-school day, from 1pm until 5pm;
(c)On Father’s Day in each year, from 11.30am until 5pm;
(6)The time the children spend with the mother will be implemented as agreed but failing agreement as follows:
(a)The mother will collect the children from the father at McDonald’s Family Restaurant at Suburb A at the commencement of her time with the children;
(b)The mother will return the children to the father r at McDonald’s Family Restaurant at Suburb A at the conclusion of her time with the children.
(7)That the mother is restrained by injunction from bringing the children into contact with MR R.
(8)With respect to extra-curricular activities:
(a)Each party must do all reasonable things to ensure that the children attend such extra-curricular activities as may be scheduled during the time that the children are in their care (noting that the children participate in (hobbies));
(b)Each party is at liberty to attend such extra-curricular activities, notwithstanding that the children may not be living or spending time with them pursuant to these orders at such time;
(c)Each party shall keep the other informed of when such activities are scheduled.
(9)Each party will provide the other notification in writing of any change to their contact telephone number or address within 7 days from any such change.
(10)Each party must notify the other in writing as soon as is reasonably practicable as to:
(a)Any serious medical problems or serious illnesses suffered by either child;
(b)Any medication that has been prescribed for either child;
(c)Any specialist medical appointments with any health professional regarding either child.
(11)Notwithstanding Order 2, these orders represent sufficient authority for each party to obtain any medical information in relation to the children as held by any treating health professional of the children or either of them.
(12)Notwithstanding Order 2, these orders represent sufficient authority for each party to:
(a)Obtain from any school attended by either child, copies of reports, photographs or any other notices relating to the children;
(b)Subject to the direction of the school, attend the school of the children at all reasonable times;
(13)Each party is restrained by injunction from denigrating the other party in the presence or hearing of the children and they must immediately remove the children from the presence of any third party so denigrating either party.
(14)Both parties shall do all acts and things to provide to the other party copies of any school awards provided to either child during periods that the child is living with or spending time with that party.
The orders sought by the mother are as set out in her response, but at the time of submissions and, indeed, perhaps prior to that time during the trial, it seems the mother now seeks time on a significant and substantial basis for at least five nights per week.
The father says that the mother moved to Western Australia in 2015 and that they separated in June of 2015. He says when the mother returned from Western Australia he became aware that she was sleeping in her car in about January of 2016. So he invited her to return to the former matrimonial home to live downstairs. He says on 22 April 2016 he and the mother had an argument after she made advances towards him. The argument escalated, police were called and the father left with the children once the children arrived.
A Provisional Apprehended Domestic Violence Order was taken out by police and this was subsequently dismissed when the matter was heard by way of a final hearing on 9 September 2016. The Magistrate hearing the matter had concerns about the honesty of the mother[1] and furthermore, His Honour was of the view that the only objective evidence before him supported the father’s case entirely[2].
[1] see page 30 of Annexure “A” of the father’s affidavit filed 13 April 2018.
[2] Ibid.
The father’s evidence is that the children are subjected to abuse, family violence and neglect in the mother’s home.
On 21 March 2017, [X] disclosed to Dr W that he was feeling uncomfortable about sharing a bed with Mr R. The doctor made a mandatory report to the Department of Family and Community Services. Police performed a welfare check at the mother’s home and noted that there was only one bedroom with a bed in it and they were told that Mr R was showering with the children in the absence of the mother.
On the showering issue, the mother, in her evidence under cross-examination said that that only occurred on one occasion and that it was as a result of returning home from the beach. All of the parties were present in the shower with their swimmers on and they were washing sand from their clothing.
A perusal of exhibit 9 shows that the mother informed the caseworkers that Mr R had only showered with the children alone on a couple of occasions and that she had moved into the laundry and or/toilet. She said in real terms there was only one occasion that she remembered it occurring and that was after returning from the beach.
On 1 May 2017, [X] disclosed that Mr R had been “touching me on my bum and it hurt me”. The matter was investigated by JIRT who could not substantiate the complaint.
On 16 May 2017 the father reports that [X] told him that Mr R was “coming into the bedroom and touching us.”
On 18 July 2017, [Y] allegedly disclosed to the father that his “willy is really sore. Mr R came into my bed and was playing with my willy.”
The father’s evidence is that he looked at [Y]’s penis and saw that it was swollen and red. The father says that [X] told him “I saw Mr R do it”.
The father goes on that on 31 July 2017 [X] said to him “mummy and Mr R were fighting all weekend. I got hurt when I got between them.”
On 4 August 2017, an officer from JIRT contacted the father and informed him Mr R had been granted bail to live with the mother. Police informed the father that Mr R was involved in drug abuse and criminal activities.
Exhibits 1 and 2 tendered are the criminal history of Mr R. The evidence establishes that Mr R has an extensive criminal record dating back to when he was 16.
Evidence from the mother conceded that his first offence was when he was 14. The offenses include assault police; shoplifting; breach of bail; destroying property; stealing from a vessel; affray; common assault; disposing of stolen property; assault occasion actual bodily harm; goods in custody; unlicensed driving; a large number of drug offences; damage of property by fire; aggravated break and enter, committing serious indictable offence in company; dishonestly obtaining property by deception; resisting police; breaching drug orders; assault with intent to rob armed with an offensive weapon; demand property with menace; driving whilst suspended; driving while under the influence of a drug, ice, in 2017 and in 2017; possessing an unauthorised pistol; custody of a knife in public.
Mr R has spent a considerable period of his young life involved in serious crimes culminating in juvenile detention and prison with the last prison sentence ending approximately three months ago.
The mother conceded that Mr R had as many as 50 behavioural reports during his time in prison, usually relating to drug offences or being in possession of utensils used for drug use along with other incidents involving him being frightened of other prisoners and other incidents of him being involved in assaulting other prisoners. Exhibit 7 supports the concessions made by the mother.
The father gives evidence that Mr R has been threatened whilst living with the mother and that shortly thereafter the mother’s home was broken into and her vehicle tires were slashed.
The mother conceded those matters but said she could not be sure the threat and subsequent break and enter and damage to her car were related.
It is conceded that in late August of 2017 the Department of Family and Community Services assessed the mother’s household as unsafe for as long as Mr R was living there.
It is further conceded that in the midst of an assessment by JIRT in relation to alleged inappropriate behaviour of Mr R towards the children in this matter. The mother agreed to be a surety for Mr R and have him bailed to live at her address.
The father’s evidence is that the mother was assessed as not being able to prioritise the needs of the children over her relationship with Mr R and, indeed, the exhibit material from the Department of Family and Community Services supports that evidence.
It is the father’s evidence that he regularly keeps the mother informed of the children’s extracurricular activities and that she does not attend consistently. His evidence is that the mother knows where the children play sport and that she does not attend consistently.
The father acknowledged his history of drug use whilst with the mother. He has annexed four urinalysis reports spanning a period of some three months, all of which are clear of any drugs.
It is the father’s evidence that the mother, Mr R, and friends of the mother tell the children that he does not love them and he will be going to jail.
It is the father’s evidence that the mother tells the children to keep secrets.
Exhibit 4 is a note from [X]’s session with his psychologist, Ms C. The psychologist notes that [X] said to her “Mum wants us to lie” and the mother “was telling them to lie about everything.”
Exhibit 3 is a note from [X]’s session with his psychologist in March of 2017. The note states that [X] told Ms C, the psychologist:
“They, ie, Mr R, Ms L, are saying really bad things and that they were going to hurt his father and dad is a “bitch and cunt” and that “they are trying to get him” - dad - “into jail.”
[X] told the psychologist that one of his biggest fears is that he is going to lose his dad.
It is the father’s evidence that [X] is having difficulty at school and that he has seen the child rocking backwards and forwards while sitting on the floor. His evidence is that the child had lost control of his bladder whilst doing so.
The father says both children have told him that their mother and Mr R have had physical altercations in their presence and that they were really scared and ran outside and hid on one occasion.
The children have reported physical and verbal heated arguments between the mother and Mr R on numerous occasions, according to the father.
The mother conceded that the relationship has some difficulty and that there has been incidents of yelling, although the mother indicated that on one occasion they took that disagreement outside.
The father gave evidence that Mr R calls the children “little cunts” and that he physically disciplines the children.
It is conceded that the father has engaged fully with the children’s school and extracurricular activities.
It is the father’s evidence that the mother concedes that there is no real communication between the parents. The mother said in cross-examination that the parents rarely talk and if they did it often leads to difficulty. The father gives evidence that the mother is unreliable and often is late to spend time with the children and offering all manner of excuses.
The issues in this case have been well known by the mother throughout the proceedings. She has been very aware that it is alleged that her partner poses a risk to the children. Exhibit 8 confirms that. In those circumstances she has not filed any updating material since her initial Response and Affidavit. She informed the Court that she did not know what to do. I do not accept that excuse. I have explained to the mother what she needed to do and what it would be open for me to find, in the absence of any material throughout these proceedings. The last time I did this was on 3 October 2017.
As a result, other than the answers given in relation to Mr R, during cross-examination, the mother has not put into issue many of the allegations raised by the father. Rather, she has acknowledged why the father would be concerned about the risk Mr R poses to the children but says she is not worried at all about him. This is despite being acutely aware of Mr R’s longstanding drug issue, his incredibly lengthy criminal history, as outlined previously, and the fact that she is well aware that Mr R was using ice as late as August 2017, and he has many behavioural incidents, on his prison record, for drug-related matters.
The mother’s filed evidence is full of allegations about the father’s drug use during their relationship. She raises this as a risk to the children.
The mother’s evidence is that the father was violent towards her and that he committed acts of violence upon her. The mother alleges that the father abused alcohol throughout their relationship.
The mother, in her Affidavit, provides a version of the alleged domestic violence incident said to have occurred on 22 April 2016. The version in her Affidavit differs to the version given at Annexure 8 of the father’s Affidavit. The mother says she called 000 twice during the incident. That is conceded by the father. The mother agrees that she did not allege that the father had assaulted her in either phone call. The attending officers did not make a note of any alleged assault, either.
The mother admits to drug use, however blames the father for her use. She annexes a letter from Mercy Services, dated 27 July 2016 – annexure D to her Affidavit. That letter provides evidence that the counsellor was of the view that the mother had nil issues relating to her drug use, and that she did not require any further assistance. I accept that evidence. The mother’s affidavit evidence ends with:
“I want to resume my role as the children’s primary carer. I do not want them to be exposed to any more conflict or arguing between Mr Zabek and I. I also want Mr Zabek to get assistance for his drug and alcohol issues and his mental health and emotional stability issues.”
I am not satisfied, on the evidence, that the father has any of the issues the mother sets out.
I am satisfied that her current partner has drug issues, and I wonder why the mother would continue to support this person, in circumstances where she raises drugs as an issue with the father.
After cross-examination, I formed the view that the father was an honest historian, who not only understood what was required for the children’s upbringing but was willing to do everything within his power to meet those needs.
Tragically, and unfortunately, the same cannot be said of the mother. She attempted to minimise the very clear risk that Mr R poses to the children, and more will be said about those risks shortly.
I have grave concerns about the mother’s capacity to put the needs of the children above her own relationship with Mr R, much in the same way as the Department of Family and Community Services had concerns.
The mother showed extremely poor insight into the dangers Mr R has the potential to expose the children to.
What are the dangers regarding Mr R?
The mother concedes that he has an extensive criminal history, involving offences of dishonesty, drugs and violence. He was only released from jail three months ago.
The mother lives with Mr R and is expecting his child. I am satisfied, on the evidence, that Mr R continues to use drugs.
Drugs impairs a person’s capacity to properly care for and meet the needs of children. There is a real risk of neglect in those circumstances.
The mother does not see Mr R as a risk, and I am satisfied that she will leave the children in his sole care.
Furthermore, there is evidence that Mr R has been threatened, shortly thereafter. The home he was living in with the mother was broken into and the tyres on the mother’s care were slashed. Those associations place the children in danger, should they be in the home with Mr R.
I am satisfied that the relationship between the mother and Mr R involves family violence. The counselling notes support that finding and the evidence of the father support that finding. I am satisfied that the violence has caused the children to be fearful. As a result, it falls within the statutory definition set out in section 4AB of the Family Law Act.[3]
[3] 1. See also Lyons & Adder (2014) FamCAFC 6; French & Fetala (2014) FamCAFC 57; and Saska & Radavich (2016) FamCAFC 179.
In M & M (2000) FLC 93-006, Mullane J set out the far-reaching effects of inter-spousal violence, of children, as follows:
“The father’s abusive behaviour presents a multifaceted danger for the children. There is a risk of violence to them, personally, and injury. There is a risk that violence imposes when it involves living with fear, insecurity and vigilance. There is the danger of ongoing fear that the father will emotionally or physically abuse the mother they love. There is the danger that E will learn from the father’s abusive behaviour, that abuse is part of life for females and becomes even more accepting of such behaviour. There is a danger that both children will come to believe, from the father’s abuse of the mother, that women are lesser beings. But the greater danger is that B, particularly, will learn from his father’s behaviour that physical and emotional abuse are acceptable ways of dealing with other persons, and thus come to share his father’s disability. Such a disability would mar his dealings in relationships with others, including those he loves, bring him into conflict with the police, courts and the community and result in him being penalised and even imprisoned.
Obviously, when I refer to the father in that quote, insert “Mr R”. It is that risk of the children being exposed to Mr R that is very real, in this case.
In my view, these children are at risk of continual exposure to family violence in the mother’s care whilst ever she is in a relationship with Mr R, and I find that risk is unacceptable. I make that finding based on the extensive criminal history of Mr R – a criminal history involving serious offences of violence – the fact that notwithstanding he was imprisoned for acts of violence, he continued to be violent in jail, and he continues to use drugs, the most recent of which – the drug “ice” – is well-known in the community to cause violent outrage.
Risk of abuse
I am satisfied that the children are reporting abuse.
[X] has reported to a doctor and to his counsellor, noting that the definition of abuse, at section 4(1) means, relevantly, at (c):
‘… causing the child to suffer serious psychological harm, caused by the child being subjected to, or exposed to, family violence.’
Noting that the definition includes, “repeated derogatory taunts” at 4AB(2)(d). [X] is showing real signs, I am satisfied, of psychological harm from being exposed to repeated derogatory taunts by Mr R, the mother and her friends. I do not accept the mother’s denial of this, under cross-examination.
The effects of abuse on children is well summed up, by Kay J in K & B (1994) FLC 92-478, as follows:
‘Sexual abuse is insidious. Its effects are far-reaching. Violence in the home can be equally insidious. Psychological or emotional abuse can have equally deleterious effects. Our society accepts a plurality of conduct and a plurality of attitude. It does its best to ensure the existence of certain minimal standards, and consistent with the maintenance of a relationship between parent and child to ensure that parents do meet these minimum standards.’
I need not make a positive finding that either [X] or [Y] have been sexually assaulted or indecently dealt with by Mr R.[4] I should not make a parenting order granting unsupervised time if that time would expose a child to an unacceptable risk of harm. Section 140 of the Evidence Act sets out the test to be applied. I have considered and applied that section when reaching my decision. Whilst the allegation is largely unanswered, having regard to the very high standards of proof required, pursuant to section 140, the evidence does not support a finding that Mr R has sexually abused or indecently dealt with the children.
[4] See M & M (1988) FLC 91-979, at paragraph 77 to 81, per Mason CJ and Brennan, Dawson, Toohey and Gaudron JJ.
There is a further risk to the children, in that Mr R has an extensive criminal history. The mother concedes he first committed a crime when he was 14 years old and he has continued to commit crimes until August of 2017, when he was incarcerated. The crimes relate to, as I have said previously, offences of dishonesty, serious violence and drug use, to name a few. His criminal history shows that Mr R has a disregard for court orders. His prison record shows he has a disregard for authority. The mother acknowledges his record and concedes that he has many behaviour incidents recorded.
These children should not be exposed to Mr R. He is a violent, antisocial person who, in my view, would be a terrible role model for the children. His lifestyle brings with it associates who, likewise, are antisocial, disrespectful of authority and dangerous.
The mother says she will comply with an order that the children not be in the presence or hearing of Mr R, on the one hand, and on the other she says:
"I’m willing to comply to some extent, until he can prove that he is on the right path, doing drug tests and courses”
And further:
“I don’t want there to be a restraint. Although he has a history that is not pretty, he is enrolling in courses anyway.”
And:
“I have no concerns about Mr R.”
Finally:
“I have no issue with Mr R in my home.”
The mother is expecting a child, due in. Mr R is the father. I cannot be satisfied that Mr R would stay away from the mother’s home if these children were spending time there, particularly once his child is born.
I am also not satisfied that the mother truly appreciates the risks Mr R poses.
There is absolutely no evidence before me that could satisfy me that Mr R has changed or is changing his behaviour. He was only released from jail three months ago. Having regard to his history, there is every likelihood that he will commit further crime.
I am also not satisfied that the mother will be able to comply with any order for an injunction.
There is evidence before me that satisfies me that the mother, and people who associate with her, are asking the children to keep secrets.
The evidence establishes that the children are suffering psychological harm as a result of this behaviour.
I am satisfied that the mother would not comply with an order, either directly or by overbearance of Mr R, who clearly thumbs his nose at authority and that, as a result, the child will be required to keep his presence a secret, placing further psychological pressure on him.
The family consultant
The recommendations made by the family consultant were made reservedly. See paragraph 105 of his report. At paragraph 110 the family consultant says:
“Further investigation of the issue of the mother’s household should be undertaken, to assure the court that the environment is suitable and the children are free from drug use or violence.”
The evidence establishes that family violence is occurring in the mother’s home. Furthermore, Mr R lives with the mother and the evidence establishes that he is using drugs – particularly ice.
The mother concedes that while she was living in the former matrimonial home, post-separation, there were a number of people coming and going and staying overnight.
Her ability to manage her finances was poor. The mother concedes that, at times, there was no water supply to the house. The mother concedes that she fell into arrears with the mortgage and then entered into a payment arrangement with the bank. Exhibit 5 is confirmation that the bank filed a statement of claim. The father says the bank threatened foreclosure and, indeed, did foreclose. I am not certain of that. The father states that he was able to reach an agreement with the bank, to sell the property, and he did so. I am convinced that occurred. I believe the father on this issue.
The mother concedes that she was living in a home last year where there was only one bed available for her, the children and Mr R. She says that Mr R slept on a mattress on the floor or on the couch. The children complained that they had to share a bed with Mr R. The mother concedes that there was one night when that happened after they all fell asleep watching a movie in bed.
Again, unfortunately, I do not accept the evidence of the mother on this point. Even if I did, there is still the fact that the mother saw no difficulty in only having one bed for her and the two children, and only did something about that situation after the Department of Family Community Services undertook an assessment of her home.
At paragraph 111, the family consultant says:
“The existence of any drug use by other party should eliminate the time the children spend with that parent.”
As I said earlier, I find that Mr R is still using drugs, and I cannot be satisfied that the children will not be exposed to this in the mother’s home.
The spend time with recommendations made by the family consultant were made in the absence of any relevant information regarding Mr R. In those circumstances, I will not give any weight to them.
The Law
There is a long line of authority that suggests that I must follow the legislative pathway.
Turning to the legislation, I must have regard to the matter set out in section 60CC noting, pursuant to 60CA, that the best interests of the children are my paramount concern. In doing so, I am informed by the objects and principles found in 60B.
The primary considerations as set out in section 60CC(2).
The evidence establishes that the children have a secure, loving attachment to both of their parents. The children have been living with their father since 2015 and he has provided a stable, secure and safe environment for them.
The children, I am satisfied, would benefit for a meaningful relationship with both of their parents. The mother, unfortunately, puts her relationship with Mr R above the needs of the children, and as a result of this, impacts upon her ability to provide and maintain a meaningful relationship with her children.
I have set out my findings in relation to the many unacceptable risks to these children that Mr R poses. I have found that the mother will not be able to keep Mr R away from the children, because amongst other things, she does not see him as a risk. There is a complete lack of insight in this regard, unfortunately.
Section 60CC(2A) provides that I must give greater weight to the need to protect as set out in section 60CC(2B) when applying the consideration set out in section 60CC(2).
In this case, the need to protect the children far outweighs any benefit to the children of having the relationship the mother can provide to the children.
The additional considerations are set out in section 60CC(3).
In considering those matters, I make the following findings.
The children are too young to express a view that any weight should be attached to, particularly in light of the fact that I have found that they are being pressured to keep secrets and are hearing repeated derogatory remarks about their father.
The children have a loving, secure relationship with both parents. The mother’s lifestyle choices, including her choice of partner, have impacted on the children’s relationship with her. The father has quite properly reduced the children’s time with their mother in order to protect them from harm. It is the mother who needs to think about her priorities, although with the impending birth of Mr R’s child, it will be increasingly difficult for her to focus on these children.
The father’s evidence is that he has tried to involve the mother in the children’s lives by ensuring she knows about school and extracurricular activities.
The father’s evidence is the mother has access to the same information he has in relation to those matters. The mother says that father will not provide her with the information.
The evidence establishes that from time to time the mother does attend school events and extracurricular activities. In considering the parents’ competing evidence, I prefer the evidence of the father.
In those circumstances, I cannot be satisfied that the mother has taken every opportunity available to her to be involved in making decisions, spending time and communicating with the children.
The evidence establishes that the father has been involved in every aspect of the children’s lives. The evidence further establishes, see paragraph 154 of the father’s Affidavit, that the mother is in arrears of child support and has not paid since August 2017.
The mother proposes that the children spend alternate weekend time, Friday to Monday in one week and overnight time Monday to Tuesday in the other week, together with half the school holidays and special occasions, or in the alternative, as set out by the family consultant.
Currently the children spend time with her each alternate weekend on Saturday and Sunday from between one to four hours, although at recent times it has been closer to the one hour time.
For the reasons set out previously, I am satisfied that if I were to make the order sought by the mother, this would have an adverse impact on the children’s lives. I found that they would be at risk in the mother’s home.
They would be separated from their father with whom they have lived since 2015, spending various times with their mother. [X] has told his psychologist that he is scared of losing his father. There is every likelihood both his and [Y]’s emotional wellbeing would deteriorate if I made the order proposed by the mother. In those circumstances, it is not in the best interests for me to do so.
The mother has been travelling approximately 45 kilometres to see the children each day of each alternate weekend. She has travelled to their sporting events and to their school. There is no evidence that there is a practical difficulty or undue expense that will substantially affect the children’s right to maintain a personal relationship and direct contact with their mother.
I am satisfied on the evidence that the father has the capacity to meet the needs of the children. He has been doing so for three years now without incident or any difficulty with authority. He is attending to the children’s psychological wellbeing by providing psychological counselling and liaising with school counsellors.
I had previously set out the lack of insight the mother has with regard to the needs of the children. The evidence establishes that she has not been able to meet the children’s needs at times when they have spent greater periods of time with her, for example, not ensuring that there was running water in the home, not providing adequate bedding, and placing in jeopardy the need for a roof over their heads. Rather than acknowledge these failings, the mother tended to provide excuses for that behaviour.
Furthermore, I am not satisfied that the mother understands the very real risks Mr R poses to the children, and that as a result, she will not be able to meet their emotional needs.
The mother’s lifestyle has come into question. She has two wonderful children who clearly love her and yet she chooses to maintain a relationship with a man who continues to commit crime resulting in imprisonment, and he continues to use drugs, including ice.
At a time when a JIRT investigation into whether Mr R had indecently assaulted her children, she chose to agree for Mr R to be bailed to live at her address.
As I said, I am satisfied that the mother’s friends are exposing the children to repeated derogatory remarks about their father. The mother must be aware of this, and yet she chooses to keep these people in her life.
I am satisfied that the children need to be protected from exposure to this lifestyle. It is dangerous to their emotional development, and or at the very least, very poor role modelling.
The mother through her choices has demonstrated a very poor attitude towards her responsibility as a parent.
The father, on the other hand, I find, has demonstrated an excellent attitude towards his responsibilities.
In making the orders I have, I have turned my mind to making orders that are least likely to lead to further proceedings. If I make orders consistent with the mother’s proposal and included an injunction preventing Mr R from coming near the children, I have every confidence, for the reasons previously set out, that the injunction would be breached.
I am further satisfied that the father would, quite rightly, immediately bring fresh proceedings.
I must consider the amount of time the children should spend with their mother. The father wants to restrict the time to one hour on each alternate weekend on both Saturday and Sunday. The orders set out by him go further and suggest that on Christmas Day the mother spend four hours with the children and on the mother’s birthday the children spend five and a half hours with her together with Mother’s Day.
I am of the view that the alternate weekend time as proposed is too restrictive. The children should have the opportunity of spending sufficient time with their mother so as to enjoy, at the very least, a meal, and spend some relaxing time with her. In those circumstances I intend making an order for more time.
Regarding parental responsibility. I am satisfied that there is family violence in the mother’s home. In those circumstances, the presumption found in section 61DA(1) does not apply. See section 61DA(2).
The mother gave evidence that she and the father do not talk and that if they do it often leads to dispute. The father seeks an order for sole parental responsibility in those circumstances. The family consultant at paragraph 105 says:
“The family consultant’s view of the parties having shared parental responsibility is reservedly supported, particularly if the father commits to a parenting after separation course and both parties can convince the Court that they can positively contribute to child-focused shared parenting.”
I had no evidence that the father has completed such a course and I am not convinced that the mother can commit to child-focused parenting for the reasons previously set out.
Having regard to the orders I have made, I am satisfied that an order for sole parental responsibility is in the children’s best interests.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 28 June 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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