Alba and Alba & Ors

[2022] FCWA 206

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ALBA and ALBA & ORS [2022] FCWA 206

CORAM: DUNCANSON J

HEARD: 18, 19, 20, 22, 26, 27, 28, 29 OCTOBER, 8, 29, 30 NOVEMBER, 1, 2, 3 DECEMBER 2021, 11, 12, 13 APRIL, 16, 17 MAY 2022

DELIVERED : 6 OCTOBER 2022

FILE NO/S: [Redacted]

BETWEEN: MR ALBA

Applicant

AND

MRS ALBA

First Respondent

AND

MS OLSEN

Third Respondent

AND

MR and MRS OLSEN

Fourth Respondents

Catchwords:

CHILDREN - best interests - where the children live with the father and have not spent time with the mother for seven years - where the mother committed an act of significant family violence upon the father for which she served a prison sentence - where both parents and the mother's family members seek orders that the children live with each of them - where the mother maintains she is innocent of the crime of which she was convicted - where it is necessary to provide the children with an "independent truth" - where the children wish to see the mother - where it is found neither parent poses a risk of unacceptable harm to the children - consideration of the risk of the father's parenting capacity being eroded if orders are made that the children spend time with the mother and whether that risk can be ameliorated - where the Court must balance the benefit to the children of having a relationship with both of their parents with the risk of emotional harm posed by the mother and the impact on the father's parenting capacity - where it is in the best interests of the children to live with the father and he have parental responsibility for them and to spend gradually increasing time with the mother - where due to the complexity of the children's circumstances interim orders are made

Legislation:

Criminal Code 1913 (WA) s 294(1)
Family Law Act 1975 (WA) s 4, s 4AB(1), s 60B, s 60CA, s 60CC, s 61DA, s 102NA(2)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr A
First Respondent	:	Mr B & Ms H
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms C/ Mrs O

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Law Firm B
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigant
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Alba and Alba & ORS [2020] FCWA 130

Alba and Alba & ORS [2021] FCWA 188

Alba and Alba & ORS [2021] FCWA 191

Appeal Court citation redacted

Blinko and Blinko [2015] FamCAFC 146

Isles & Nelissen [2022] FedCFamC1A 97

Keane v Keane and Anor (2021) 62 Fam LR 190

M v M (1988) 166 CLR 69

Re Andrew (1996) FLC 92-692

Stott & Holgar and Anor [2017] FamCAFC 152

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alba and Alba & Ors has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the order pursuant to r 311 of the Family Court Rules 2021 (WA).

1[Child A] and [Child B] are aged 15 years and 13 years respectively. They are the children of [Mr Alba], the applicant father and [Mrs Alba], the respondent mother. In the tragic circumstances of this case the parents are unable to agree the children's living arrangements. They each seek orders for the children to live with them and for sole parental responsibility.

2The children have lived with the father and have not seen the mother since [October 2015] when she stabbed the father with a knife during a handover of Child B ("the 2015 incident"). The father suffered life threatening injuries and continues to suffer from Post-Traumatic Stress Disorder.

3The background to these proceedings was succinctly set out by Sutherland CJ in her reasons [2020] FCWA 130 as follows:

1[MR ALBA] ("the father") and [MRS ALBA] ("the mother") have been involved in parenting proceedings in this court since 2013, in relation to their children, [Child A] (currently aged 13) and [Child B] (currently aged 11). Various other parties are now also involved in the parenting proceedings, including the paternal aunt, [Ms P], the maternal aunt, [Ms Olsen] and the maternal grandparents, [Mr and Mrs Olsen]. The children are also independently represented by an Independent Children's Lawyer ("ICL").

2In May 2015, a trial in relation to the parenting proceedings was commenced before Crisford J. At the trial, one of the key issues in dispute was whether the children were at risk of sexual abuse by the father. On the fourth day of the trial, after the father's case closed but before the mother's case opened, the parties reached agreement and interim consent orders were made, including for: (1) the parties to have equal shared parental responsibility for the children; (2) the children live with the mother and spend defined time with the father; and (3) family therapy to take place.

3[In] October 2015, the mother stabbed the father twice with a knife: once in the stomach area and once in the chest. The stabbing was witnessed by the parties' youngest child, [Child B], who was at the time aged five. In [2017], the mother was tried in the District Court of Western Australia and found guilty of the crime of doing, with intent, grievous bodily harm to the father contrary to s 294(1) of the Criminal Code (WA). In [2017], the mother was sentenced to a term of imprisonment of five and a half years, being eligible for parole after serving three and a half years. The mother unsuccessfully appealed both her conviction and sentence.

(as per the original, citations omitted)

4On 28 July 2020 her Honour made the following orders:

1Pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth) the Court adopt the findings and decision of the District Court of Western Australia in determining the criminal matters against the First Respondent, [MRS ALBA], (at first instance) and the Supreme Court of Western Australia, in determining the First Respondent's appeal against conviction and sentence.

2Pursuant to s 69ZR(1)(a) of the Act, the Court make the following findings:

(a)the First Respondent perpetrated an act of significant family violence against the Applicant, [MR ALBA], which took place in the presence of [CHILD B] born [in] February 2009;

(b)the First Respondent pleaded not guilty to and was ultimately convicted of Unlawfully Doing Grievous Bodily Harm with Intent;

(c)the First Respondent was sentenced to a term of imprisonment of 5 years and 6 months;

(d)the First Respondent unsuccessfully appealed against her conviction and her sentence;

(e)the Applicant was awarded a lifetime Violence Restraining Order restraining the First Respondent;

(f)the nature of the First Respondent's attack was such that would cause the Applicant to suffer from anxiety and insecurities; and

(g)the First Respondent maintains her innocence in respect to her conviction.

3The parties be restrained by injunction and an injunction be granted restraining each of them from litigating the issue of the Applicant posing a risk to the children, [CHILD A], born [in] November 2006, and [Child B] prior to the orders made on 19 May 2015.

4Paragraphs 1, 2 and 3 of the amended Form 2 application filed 18 June 2020 otherwise be dismissed.

5The mother maintains her innocence in respect of the 2015 incident. The father's position is that the mother's continuing assertions of innocence pose a risk to him. He fears she will harm him and the children or abduct the children. He asserts she and the maternal family cannot be relied upon to support the relationships between him and the children, and that their behaviours are likely to undermine or destabilise those relationships.

6The mother's position is that the father has harmed the children and continues to subject them to emotional and psychological harm by refusing all contact between the children and her.

7[Ms Olsen], the maternal aunt, and [Mr Olsen] and [Mrs Olsen], the maternal grandparents, are also parties to the proceedings. They respectively seek orders that the children live with either of them in the event it is not ordered that the children live with the mother.

FAMILY BACKGROUND

8The father was born [in] March 1969 in [Country A]. He is 53 years of age. He is a business proprietor.

9The mother was born [in] June 1973 in [Country B]. She is 49 years of age. She is qualified as a [health professional].

10The father and the mother were married [in] April 2006. They separated finally in May or June 2012 and were divorced [in] May 2014.

11The maternal aunt is a [health professional]. She is married to the mother's brother, [Mr B Olsen].

12The grandfather was born in [Country B] [in] January 1945. He is 77 years of age and is retired. The grandmother was born in Australia [in] April 1951. She is 71 years of age and is retired. The grandparents have two children, the mother and Mr B Olsen born in 1975.

13[Ms P], the paternal aunt, was previously the second respondent in these proceedings. She did not seek orders at trial.

THE ORDERS SOUGHT

14On 24 December 2021, during the course of the trial I made orders by consent giving liberty to the mother to write letters to the children, via their therapists, and permitting the children to write return letters once a month. Prior to that, the mother had not had contact with the children since the 2015 incident, save for an occasion where she wrote a letter to the children, to which I refer below. Following Child B receiving the letter at school, an injunction was made on 16 August 2021 restraining the mother and maternal family from, among other things, communicating or attempting to communicate with the children.

15Relevant to the orders to be made are the difficulties arising from the mother's narrative of 2015 incident, which is in conflict with the Court-determined facts and the father's account of events. In his report dated 9 May 2022, the single expert witness [Dr G], Clinical and Forensic Psychologist, recommended a third party provide the children with some discussion around the Court-determined facts. At trial this became known as "the independent truth". Dr G agreed that if the mother's narrative is shared with the children, it has the potential to destabilise their relationship with the father. He said if the children are put in the position of accepting one view over the other, it will cause alignment and conflict.

16Counsel for the mother put to Dr G that the children are going to grapple with the question for the rest of their lives and nobody can solve that. Dr G agreed but said the children "ultimately need some sort of framework to hang it on" and more structure would provide the children with a way "to see their way through this".

The father

17The orders sought by the father are contained in his papers for the Judicial Officer received 15 October 2021.

18The father sought orders that:

•he have sole parental responsibility for the children and they live with him;

•the mother and maternal family be restrained by injunction from attempting to contact the children, approaching within 100 metres of their school or activities or attempting to contact the father and approaching within 100 metres of him, his residence or place of employment;

•the mother notify the father or his agent within 24 hours of her commencing employment at any [health care provider] in Western Australia;

•the father provide her with redacted copies of the children's school reports within 21 days of receipt;

•the parties supply each other with a postal or email address for communication solely in relation to the implementation of the orders; and

•the requirement for the mother's consent to the issue of passports for the children be dispensed with.

19The father also sought an order that all outstanding applications be dismissed.

20In closing submissions, senior counsel for the father explained the father's first position was that he was completely uncomfortable with there being any relationship between the children and the mother at all. However, he submitted that as the letters between the children and the mother had commenced, for those to cease would be very difficult. He went on to propose limited time.

21The father's updated proposal included that:

•the mother continue to send letters to the children until the end of 2022;

•there be no further progression of the relationship until the person tasked with providing the independent information to the children makes recommendations;

•if the person providing the independent information to the children considers that a progression of time is appropriate, supervised visits should take place every two months for a limited time, with the mother to pay the cost of supervision;

•visits would continue in 2023 with the maternal family to be included if time goes well; and

•commencing 2024, there should be monthly supervised visits for six hours on a Sunday.

22The father did not propose overnight time as he fears the mother will abscond with the children.

The mother

23The orders sought by the mother are contained in a minute of proposed orders filed 17 September 2020.

24The mother seeks orders that:

•the children live with her and she have sole parental responsibility for them;

•the children continue to attend counselling as recommended by their counsellors;

•if the children express a desire to reunify with the father and have contact with him or the paternal family, the mother work with the therapist to facilitate their wishes;

•in the event the above orders are not made, the children live with the grandparents who have sole parental responsibility for them;

•in the event the Court does not order that the children live with either her or the grandparents, then the children live with the maternal aunt who has sole parental responsibility for them;

•the proposal with respect to the reunification of the children with the father apply to the grandparents and maternal aunt;

•in the event the Court does not order that the children live with either the mother or any member of the maternal family, the father work with the children's therapists to facilitate contact between the children, the mother and the grandparents and the maternal aunt in accordance with the children's wishes; and

•orders for the provision of information and a non-denigration order.

25In closing, counsel for the mother submitted that the children should reside with her on a transitional basis as soon possible, and spend time with the father, with the assistance of therapists.

The maternal aunt and grandparents

26The orders sought by the maternal aunt and grandparents contained in their papers for the Judicial Officer, filed 11 and 12 October 2021 respectively are in similar terms to those sought by the mother.

27They respectively seek orders that:

•in the event the Court does not order that the children live with the mother or either of them, if the children express a desire for contact or time with the maternal family, then the father work with the children's therapists to facilitate contact in accordance with the children's wishes;

•the mother and maternal family be at liberty to send the children cards, letters once a month, and have phone calls based on the children's wishes;

•the grandparents have liberty to take the children to [Country B Heritage day] four times a year;

•the children continue to attend therapy; and

•orders regarding the provision of information and a non‑denigration order.

The Independent Children's Lawyer

28During these proceedings, the children have been represented by an Independent Children's Lawyer ("ICL"), initially by [Mr R] subsequently by [Ms C] and currently by [Ms S], who at trial instructed counsel. For ease of reference, I will use the term "ICL" to encompass those who appeared in that capacity at trial, being Ms C, and latterly Ms S instructing counsel.

29The orders sought by the ICL are contained in a minute of proposed orders filed 16 May 2022. The ICL proposes that:

•the children continue to attend fortnightly counselling with their respective therapists;

•the children and the mother continue to exchange monthly letters, with those letters to be provided to the children's therapists and the ICL;

•within three months of orders, the ICL and a Legal Aid social worker explain to the children the circumstances of the mother's conviction and the findings of the District Court and the Supreme Court appeal, and the fact that those findings have been accepted and adopted by the Family Court of Western Australia;

•following upon those discussions, for the first three months, the children spend time with the mother once every three weeks for two hours accompanied by an independent person. After completion of this time the children and the mother be at liberty to communicate by text message;

•the third meeting may include the grandparents and the fourth meeting may include the maternal aunt;

•after four meetings, for the next six months the children spend a day with the mother from 10.00 am to 4.00 pm once a fortnight;

•after seven months from the date of orders, the children meet with the ICL and/or the single expert witness to determine the appropriate timing and arrangements for commencement of weekend overnight time with the mother;

•the single expert witness provide an updated report and if he and/or the ICL consider it appropriate, the children spend each alternate weekend with the mother for three months from Friday to Saturday and thereafter from Friday to Monday, or Tuesday if Monday is a public holiday;

•once the extended weekend time commences, the children spend one week with her during each of the term school holidays and three weeks over the Christmas/January school holidays; and

•once the children have spent time with the mother as set out above and after each of the children turn 16 years of age, they can decide with whom they would like to live and spend time.

THE TRIAL

30The trial was listed to commence on 18 October 2021. The father was represented by senior counsel. The mother was represented by solicitors instructing counsel pursuant to s 102NA(2) of the Family Law Act 1975 (Cth) ("the Act"). The maternal aunt and grandparents were self-represented.

31I clarified that financial matters would not be dealt with, and that programming orders would be made in that respect after the conclusion of the parenting matters.

32At the commencement of trial, counsel for the mother informed the Court he took the view that to cross-examine the father could amount to a breach of the mother's parole conditions. The proceedings were delayed by several days until ultimately the mother's parole orders were amended by the Prisoners Review Board. The Amendment to the Parole Order became exhibit 11.

33The hearing of this matter lasted 19 days. There were 63 exhibits extending to over 1,000 pages.

34I have considered all of the evidence very carefully. In these reasons I have not referred to all of the evidence as I do not consider it necessary and nor is it practicable to do so. If I do not refer to part of the evidence of a party or witness, it should not therefore be assumed that I have ignored or overlooked it.

THE PARTIES AND THE EVIDENCE

The sexual abuse allegations

35These proceedings came before Crisford J for trial in May 2015. In the mother's papers for the Judge filed 11 May 2015, which became exhibit 31, an issue for the mother was whether the children were at risk by reason of their disclosures and the sexualised behaviour they exhibited after spending time with the father.

36Before the commencement of the mother's evidence at the 2015 trial, on 19 May 2015, orders were made by consent, including that the parents have equal shared parental responsibility for the children, that they live with the mother and spend time including overnight time with the father.

37Relevantly, the preamble to the orders dated 19 May 2015 stated:

It is acknowledged by the Respondent Mother that the children are not at risk of sexual abuse from the Applicant Father and that the children have a right to a meaningful relationship with him and members of their paternal family.

38As set out [4] above, on 28 July 2020 Sutherland CJ ordered the parties be restrained by injunction from litigating the issue of the father posing a risk to the children prior to the orders dated 19 May 2015.

39At trial, the father was cross-examined at length by the ICL about the concerns raised by the mother earlier in the proceedings that the children had been sexually abused by the father.

40Subsequently, counsel for the mother questioned whether this cross-examination was raising or litigating the issue of the father posing a risk to the children prior to the orders dated 19 May 2015 and said it may be necessary for the mother to lead evidence in relation to her allegations.

41In response, the ICL submitted the questions were put to the father to establish:

•the concerns being raised by the mother about him, which were relevant to her attitude towards him;

•whether or not the mother is likely to support the children having a relationship with the father; and

•whether the mother and her family are a risk to the children, given the "ample evidence" she and her family were emotionally and psychologically harming the children between 2013 and the attack on the father.

42The ICL further submitted she was not suggesting the allegations were malicious, referring to Dr G's view that they were genuinely held.

43The ICL asked the mother whether she was open to the possibility that she might have influenced the children. The mother was also asked about the extent to which she facilitated handovers and the children's time with the father referring to [Dr M's] evidence to the effect that she did not.

44The ICL did not make submissions in closing as to whether the mother's attitude towards the father, or that of her family, posed a risk of emotional and psychological harm to the children prior to the 2015 incident. Having regard to the passage of time, the events which have occurred and the children's ages and independent views, that evidence is of less relevance in these proceedings. The more relevant risk of psychological or emotional harm posed by the mother to the children at this time is that arising from her narrative of the 2015 incident in contrast to the independent truth.

45At the commencement of her evidence, the mother was given permission rely on her supplementary trial affidavit sworn 5 November 2021, in which she deposed to the investigations of her concerns of sexual abuse.

46By reason of its lesser relevance now, it is not necessary to discuss the evidence concerning the mother's concerns of sexual abuse in any greater detail than that set out below.

47After separation the children spent time with the father. The mother deposed that on 27 January 2013, after the children came home from an overnight visit with the father, she saw that their vaginas were red and inflamed. She deposed she thought the father had not cleaned them.

48The children were examined by a GP who incorrectly advised the mother that their hymens were not intact. They attended the Child Protection Unit and subsequently the Department for Child Protection, whose documents became exhibit 19. The children were again examined and were both found to have their hymens intact with no physical sign of injury or trauma. The Department's initial assessment indicated neither child disclosed anything of concern. The outcome of the investigation was not substantiated, and the matter was closed on 11 February 2013.

49The mother deposed that on or about 7 March 2013, Child B's vagina was inflamed and sore, and she made disclosures about the father. The mother took Child B to hospital for a further examination. The Department received a second Mandatory Report for Child B, and expressed concerns in relation to the mother's conduct, noting that Child B having been examined on three occasions was in itself a cause of potential harm. The Department also noted it advised the mother to delete a photo she had taken of Child A's vagina.

50On 28 March 2013, orders were made by consent on a without admission basis for the children to spend time with the father, to be supervised by [Supervisor Service A]. The children first spent supervised time with the father on 7 April 2013. Thereafter there were difficulties at handovers of the children, particularly Child A. The children did not spend time with the father for significant periods of time. The mother deposed the children made further disclosures.

51The mother encouraged the Department to contact Supervisor Service A and obtain its report in relation to the father's behaviour during supervised time. The father was not aware that the mother had spoken with the Department and encouraged the Department to speak with Supervisor Service A.

52In his report dated 7 June 2013, Dr G reported both children described time with the father in favourable terms. As to the allegations of sexual abuse, Dr G considered there was "enough information for one to have some concerns", but also that there were alternate explanations, including "some normal parenting aspects being over-interpreted". In preparing his said report, Dr G indicated he had observed the children under supervision and also spoke with Supervisor Service A.

53Orders were made by consent for the children to attend therapy with [Ms U], Clinical, Counselling and Forensic Psychologist, with the aim of reunification with the father. During that period the mother also took the children to [Service D], a service which works therapeutically with children and families who have been impacted by sexual abuse and children engaging in problematic sexual behaviours. Correspondence from Service D became exhibit 48. The father was not consulted as to the children's attendance at this service, and he found out from his lawyers at the time.

54On 21 October 2014, Crisford J made orders restraining the mother from enrolling the children in any form of counselling, including but not limited to [Service E], without the father's consent.

55[Dr M], Clinical Psychologist, was subsequently appointed to report as to the children's future living arrangements, and her report dated 21 April 2015 became available shortly before the 2015 trial. Dr M reported the mother "frequently seemed inclined to exaggerate her concerns and allegations" and found that the children quickly overcame their anxiety about seeing the father. Dr M was concerned that the mother's position may be potentially psychologically harmful. She recommended the children spend significant and regular unsupervised time with the father, and if that failed it would suggest undermining in the mother's home, in which case consideration should be given to the children moving into his care.

56In closing, senior counsel for the father referred to Dr M's report in which she said of the mother "whilst appearing cooperative, she ultimately made many comments to undermine the therapy", she insisted the children were at risk of sexual abuse from the father, and she preferred to reject disconfirming information and advice that the risk was negligible.

57The mother was critical of Dr M. She said Dr M's therapy had not worked, and she had questioned Dr M's timeframes, her concern being Dr M proposed a faster transition for the children spending time with the father than the mother thought they could cope with. The mother also said there were omissions in Dr M's report. The ICL referred the mother to passages of Dr M's statement made following the 2015 incident, which was contained within exhibit 8. At [69] Dr M stated she believed that the mother had continued to convey subtle signs of her beliefs that the children were at risk in the father's care. The mother did not agree with Dr M's view.

58Following Dr M's involvement, Supervisor Service A supervised visits between the children and the father.

59In his report dated 8 May 2015, Dr G largely discounted the mother's allegations of abuse, but he found her to be genuinely concerned and likely to be transmitting her negative feelings to the children.

60Dr M reported she had concerns about the practices of Supervisor Service A and that Dr G may have relied on some unreliable information.

61Dr G and Dr M differed in their opinions of the mother. Dr G noted that Dr M was critical of the mother, but he was of the view the mother had no malicious intent in her actions.

62Following the 2015 trial and the consent orders dated 19 May 2015, the father alleged the mother frustrated those orders which provided that the children spend increasing unsupervised time with him. On 10 September 2015, further orders were made for the children to spend time with the father with handovers to be facilitated by Dr M. The mother alleged the father was "escalating" in his mood and was angry the children were not going willingly.

63The 2015 incident occurred [in] October 2015.

The mother's allegations of violence and abuse

64In the mother's trial affidavit filed 28 May 2021, she deposed she experienced violence, abuse and coercive control from the father during and after the marriage. Her sworn evidence included that the father choked her until she stopped resisting and strangled her. She deposed "He was also putting pillows over my face to smother me. I thought this was the way I was going to die at night." The mother also deposed the father had been physically violent towards the children. For example, at [211] she deposed:

From October 2011 onwards, the Father was getting rougher and rougher towards [Child A], shoving her hard into her room for punishment. He shoved her so hard she would hit the wall.

65The admissibility and credibility of these allegations was an issue at trial, having regard to the history of the proceedings.

66I refer above to the 2015 trial before Crisford J and the consent orders made on 19 May 2015. Relevant is the mother's acknowledgement in the preamble to those orders, as set out above at [37] that the children were not at risk of sexual abuse from the father, and they had a right to a meaningful relationship with him and members of their paternal family.

67On 24 January 2020, the ICL filed an application seeking orders that the Court adopt the findings and decision of the District Court of Western Australia and the Supreme Court of Western Australia in relation to the mother's criminal matters and make findings.

68Sutherland CJ made the orders referred to at [4] above. The mother consented to all orders but for subparagraph [2](f). In her Honour's said reasons, she referred to the mother's petition to the Attorney General of Western Australia for the exercise of the royal prerogative of mercy, and stated it appeared the mother maintained there was a significant miscarriage of justice in the criminal proceedings as the Court of Appeal failed to consider "the failure of the learned trial judge the jury on the probative issue of family violence and abuse" by the father to the mother.

69In her said reasons, Sutherland CJ referred to the mother's evidence at the 2015 trial, and said:

[12]… The mother did not raise any issues in relation to family violence, save that in her case information affidavit she alleged that the father was "controlling". …

[13]… Aside from the sexual abuse allegations: (1) the mother led little, if any, evidence alleging that the father had subjected her and/or the children to family violence; (2) the mother did not submit that the children were otherwise at risk of harm from the father; and (3) the mother did not raise family violence as being an issue, either in relation to parental responsibility or as a relevant consideration in the determination of the children's best interests. …

…

[15]… However, I am satisfied that: (1) for the purposes of the 2015 trial, the mother did not maintain that family violence was a relevant factor in determining the issue of parental responsibility or the children's best interests; (2) aside from the sexual abuse allegations, the mother did not allege that the children were otherwise at risk of harm from the father; and (3) the preamble to the Minute specifically recorded the mother acknowledged that "the children are not at risk of sexual abuse" from the father and "that the children have a right to a meaningful relationship with him and members of their paternal family".

70At trial, senior counsel for the father did not apply to strike out the mother's allegations of family violence in her trial affidavit. He submitted the mother's evidence was not relevant for the truth of the content but rather to explain what she appeared to believe.

71Counsel for the mother submitted the purpose of her evidence was not to litigate the issue of the father posing a risk prior to the orders dated 19 May 2015 and was sought to be led in relation to the relationship between the father and the mother, the question of whether shared care is an option, as well as future communication. The maternal aunt and grandparents submitted the material was relevant for the Court to have the "full picture".

72The ICL submitted the evidence was relevant, including with respect to the mother's state of mind and attitude towards the father and her credibility, but shared the mother's counsel's concern that the issue of family violence went to the orders ultimately to be made.

73I determined that the mother's allegations as to family violence during the relationship which were not covered by Sutherland CJ's orders of 28 July 2020 remained before me. I was mindful that family violence is one of the additional considerations to be taken into account in determining what is in the best interests of the children. I was also mindful of Sutherland CJ's reasons which expressed some scepticism as to the mother's credibility with respect to those allegations. However as discussed below I gave them my own very careful consideration.

Waiver of legal professional privilege

74Senior counsel for the father referred to material in and annexed to the mother's trial affidavit, wherein she deposed to legal advice she had received in relation to family violence. I refer to my reasons [2021] FCWA 191. I determined that certain material effected a waiver of legal professional privilege, and that the files of one of her former family lawyers, as well as the lawyer and barrister instructed in her criminal law proceedings, should be produced. I ordered subpoenas issue accordingly.

The mother's contrasting evidence

75In cross-examination, the mother was asked why she had not referred to physical or coercive violence in her documents prepared prior to the 2015 trial. Her recurring response was that she did not think violence towards herself was relevant, she wanted to keep the focus on the children, and she was fearful of the father's response. She also described it as being shameful and embarrassing. The ICL asked the mother whether an allegation that the father had been violent to her would make him more or less angry than an allegation that he was a paedophile. It was put to her that the most serious allegation that could be made was that a father is abusing his own children. The mother's responses included that she did not want to add fuel to the fire.

76Senior counsel for the father asked the mother why she did not raise her allegations of the father's violence with the number of medical practitioners she attended upon. In her responses she appeared to minimise her relationships with those practitioners, including [Dr T], who she agreed she would have seen on 15 occasions between 8 June 2011 and 21 January 2013. When asked if she had a trusting relationship with Dr T, her response was "as anyone would with a GP". Senior counsel subsequently put to her that she had trusted Dr T to conduct genital examinations of the children, and suggested it was a very trusting relationship, to which her response again was "as GP and patient, yes".

77Documents from the Department for Child Protection referred extensively to the mother's concerns that the children may have experienced sexual abuse. As set out above the outcome of the Department's investigation was that sexual harm was not substantiated. An interdepartmental email dated 27 March 2013 referred to the mother having said she had heard what the interviewers were talking about with the children and felt that it was not serious enough. Senior counsel suggested this would have been a good opportunity for the mother to tell the Department of the children's experience of the father's violence. She said she was embarrassed and scared of the ramifications from the father.

78In relation to the allegations of the father's physical violence, senior counsel suggested to the mother the first time she told the Department about that behaviour was on 13 May 2013. Department case notes from that date reported that the mother said Child A had told her of an occasion where she had been held up against the wall by the father, and he had held her hands together. In response, the mother said she was not sure.

79The mother was asked about correspondence sent by her former solicitors to the father dated 11 January 2013, proposing the children's time with him be supervised. She agreed the third paragraph of that letter provided reasons as to why she proposed time be supervised, which did not include any reference to the father's physical violence. Senior counsel put to the mother that there was no reference to violence because it did not happen. She did not agree.

80Senior counsel asked the mother about the orders dated 16 January 2013. In her trial affidavit, she deposed at [80] "the Father obtained formal Orders for overnight contact…". Senior counsel put to the mother that she had described the orders in this way to create the impression that any overnight time was not in accordance with her wishes, whereas in fact a letter from her solicitors referred to orders being made in terms she had proposed. She did not agree.

81As to the mother's allegations of financial control by the father, senior counsel referred to examples of financial independence to which she had previously deposed. One such example related to the purchase of an investment property in her sole name.

82In the mother's affidavit filed 7 January 2014, which became exhibit 41, she deposed that putting the property in her sole name for tax purposes was her own idea:

74. The property was purchased in my sole name on the basis that the rental income would be considered my income for tax purposes. I recall discussing this with [Mr Alba] as he wanted to put the property into his name however I said words to the effect of "You will be taxed at such high rate if we put it into your name so it will be smarter to put it in mine." [Mr Alba] reluctantly agreed to this.

83Senior counsel contrasted that description with the mother's trial affidavit, wherein she deposed the father told her the property had to be in her name:

230. I was not allowed any input into financial decisions. For example:

232.1He made the decision to buy a property in [Town A] as an investment property. I didn't want to do this because it was a large amount and we were not financially secure. He told me the property had to be in my name for tax purposes because it was positively geared and I was not working. The Father was the guarantor.

84Senior counsel put to the mother that both paragraphs could not be correct, and one must be a lie. Her response was to the effect that the description in the trial affidavit was exactly how she felt, and that the description in 2014 was "not taken in context".

85Annexed to the mother's trial affidavit was a report of [Professor K], upon which the mother relied in relation to her allegations of family violence. The mother's statement to Professor K was called for and became exhibit 40. Senior counsel for the father compared that statement with the mother's sworn evidence. Her statement to Professor K was considerably more detailed than her sworn evidence.

86For example, after separation, the mother, the grandmother and Child A went to the father's house to fetch Child A's medicine.

87In the mother's 2014 affidavit, she described this interaction as follows:

172.…I opened the cupboard where the antihistamines were kept and [Mr Alba] put his hand on the door of the cupboard and said words to the effect of "No you're not having the medicine". I was shocked by [Mr Alba's] response and we then had a conversation which to the best of my recollection occurred as follows:

[Mrs Alba]: [Child A] is itchy and I can't get to a chemist.

[Mr Alba]: You have to feel the consequences of your actions.

[Mrs Alba]: I'm getting the medicine.

[Mr Alba]: This isn't your house anymore and you need to make an appointment to come in.

[Mrs Alba]: This is my home and my things are still here.

(as per the original)

88In contrast, in the mother's statement to Professor K, her description of that incident was more serious:

200. …[Mr Alba] cornered me and said, in his low monotone voice that I will suffer the consequences of my actions. My actions were leaving him. It was a menacing threat. When he said this to me I cowered and thought that he was telling me that because I had left him, I would die. I got shivers up and down my body and I quickly left.

(as per the original)

89A further example related to an argument between the father and the mother in January 2007, while they were living in [Town A]. The mother told the father she wanted to end the relationship. The father took Child A, who was then about seven or eight weeks old, drove away with her, and delivered her to his friend's house. The mother called the father who refused to return Child A, and she contacted the police. The police officers later returned Child A to the home and to the mother's care.

90In describing her response to this incident, the mother deposed in her 2014 affidavit:

68. That night, I went to bed and cried myself to sleep. [Mr Alba] lay in the bed next to me ignoring me. He did not comfort me or try to resolve the situation. I did not tell my family about the incident as I felt ashamed and embarrassed by [Mr Alba's] actions.

91This was contrasted with her statement to Professor K wherein she said:

93. That night, [Mr Alba] pretended nothing had happened. He couldn't understand why I was upset. I remember wailing all night - the most primal cry I have ever felt and I cried like that all night. I had never felt such pain before that night and [Mr Alba] lay in bed next to me and slept soundly.

92Further, the mother did not describe "wailing all night" or a "most primal cry" in her trial affidavit.

93Senior counsel suggested to the mother that she did not include these descriptions in her trial affidavit because they were unbelievable, to which she responded she included what she thought was relevant. The mother's counsel submitted the purpose of the statement to Professor K was different to the purpose of the trial affidavit.

94The mother gave examples of the father's behaviour to Professor K to which she did not depose in her sworn evidence. For example, in her statement at [251] she stated she saw the father punching Child A on the arm and giving her "Chinese burns". Senior counsel asked the mother how many times the father did this, which she said she did not know.

95At [137] of the mother's statement, she stated the father would take her for expensive dinners twice a month, which she said she found very stressful and made her feel sick because they were short of money. Senior counsel asked the mother where that could be found in her 2014 or trial affidavits, to which her response was that she thought she had written about it. It was put to the mother she had not given a balanced account to Professor K. She did not agree.

96Senior counsel for the father referred to the mother's statement to Professor K at [263] where she said that Dr G had diagnosed the father with grandiosity and narcissism, when in fact Dr G said the father had those elements. The mother said she did not realise she had done that. Senior counsel put to the mother this was another example of her not providing a balanced account to Professor K. Again, she did not agree.

97The mother's statement to Professor K is not a sworn document. In the aspects referred to in cross-examination, I consider it is unreliable as evidence of what occurred during the relationship and after separation. I consider it contains an exaggerated account of events, upon which the mother seems to have placed little importance prior to and during the first trial in these proceedings.

The father's response

98In response to the mother's allegations of family violence, the father deposed he was extensively cross‑examined during the 2015 trial, and it appeared the only issue the mother was seeking to rely on was that of the alleged abuse of the children. He deposed that no allegations of family violence against the mother were put to him.

99The father deposed that during the District Court trial, no evidence was led to indicate the mother was a victim of family violence. This was incorrect, as extracts from the trial transcript demonstrated that the mother referred to threats and escalating behaviour by the father in her evidence-in-chief, and the father was briefly cross-examined as to whether he had pushed the mother against a wall, which he denied. The father conceded he had been cross‑examined about family violence.

100I do not consider that the father was deliberately untruthful. I consider it is more likely he did not recall that brief cross‑examination. This was perhaps understandable given his circumstances at the time.

101As to the mother's allegations of financial and coercive control, the father was asked whether he required her to write down pros and cons for decisions, to which his response was that they did everything by consensus. He denied the allegation that he was unhappy with the mother enrolling the children in extra-curricular activities, and said he supported it and they were involved in decisions together. On many occasions in response to questions, his tone was incredulous, as if the proposition being put to him could not be further from the truth.

102In relation to the Town A incident, the father denied he said he would not bring Child A back. He said the mother was hysterical and angry, and he left Child A with a work colleague and went for a drive to clear his head. His evidence was less than forthcoming. The father's conduct on this occasion was unacceptable and to the extent that he attempted to make it appear reasonable, he failed. The mother's distress arising out of this incident was understandable. What is of concern however are the differences in her descriptions of the incident in these proceedings.

103As to the allegations of physical violence towards the children, the father was asked by the ICL if he had ever held Child A against the wall, to which he simply responded "never". He similarly denied ever holding the children's hands together.

Findings with respect to the parties' relationship and the allegations of family violence

104There were difficulties in the father and the mother's relationship. I consider the father was at times controlling and demanding, and the mother was at times intimidated and distressed. In his report dated 7 June 2013, Dr G reported the mother indicated that she was not happy in the relationship because she found the father fairly controlling. At trial, many of the mother's allegations of physical violence were put to Dr G, who said physical violence to her or the children was not raised with him in the original assessment. He said the mother spoke to him of studying domestic violence when she was in prison.

105I consider the father minimised the difficulties. I consider that in the mother's trial affidavit and her statement to Professor K, she exaggerated her account of the father's behaviour and its impact upon her.

106During cross-examination, senior counsel referred the mother to [190] of her 2014 affidavit where she deposed:

190.…I was keen for the children to have a relationship with [Mr Alba]. I encouraged [Mr Alba] to be active in their lives and after separation always advised him when events were on, gave him school reports and went with the girls to parks and other activities for them to spend time with [Mr Alba].

107In the many court documents filed on the mother's behalf prior to and for the 2015 trial, she made no allegations of physical violence. She gave no reasonable or credible explanation as to why serious allegations of family violence were omitted from her case and her court documents earlier in these proceedings, at a time when she was legally represented and making other allegations of the most serious kind in relation to the father.

The contrasting narratives of the incident

108A significant issue of concern is the mother's narrative of the 2015 incident.

109On 1 October 2015, handover was to occur at [handover location], with the assistance of Dr M. Child A did not attend. The mother and [Mr B Olsen] spent about 40 minutes talking to Dr M, and the father played with Child B. It was agreed that the father would take Child B with him, and something would be worked out later regarding Child A. Dr M left.

110In the father's statement to the police, he stated he either put Child B down or placed her into the vehicle, he saw the mother coming towards him, holding a [knife]. She lunged forward and stabbed him in the abdomen area. She lunged forward again and stabbed him in the chest area below the sternum. He stated the knife came out and she went for the chest area again, but it did not penetrate. He grabbed the blade of the knife which the mother continued to hold by the handle. She pulled it back and forth and it cut his hands and fingers. They fell to the ground and during the fall he managed to get the knife off her. He could feel himself bleeding and let go of the knife and realised parts of his stomach were hanging out. Persons assisted him.

111The father suffered life-threatening injuries including multiple stab wounds to the chest and abdomen. He suffered defensive wounds to his hands with the tendons in his fingers and thumb almost severed on both hands.

112The mother was charged with, and pleaded not guilty to, the offence of grievous bodily harm with intent. The case went to trial before the District Court in [2017]. Child B was called as a witness for the mother. In [2017] the mother was convicted of the offence and sentenced to five and a half years imprisonment. She was eligible for parole.

113In [the Judge's] sentencing remarks, his Honour addressed the mother:

[In] October 2015, you took your youngest child, [Child B], to [handover location]. The child was handed over to your husband. Your husband then took [Child B] to the motor vehicle and he either put [Child B] in the child seat in the backseat of the vehicle or on the kerb next to the vehicle, so the child could climb into the seat. He turned around and when he turned around, you stabbed him on two occasions to the upper body.

(as per the original)

114Counsel for the mother had submitted the jury's verdict would not be inconsistent with the position that the father brought the knife.

115His Honour said:

… And it seems to me that it's consistent with the jury's verdict, and I'm satisfied beyond reasonable doubt that you in fact took the knife there, although, as I have said, I'm not satisfied beyond reasonable doubt that you had the intent necessary, that the jury found that you had, until shortly before the incident.

…

The assault did involve the use of a weapon. As I have said it was traumatic, it was a brutal attack, it occurred [at handover location] and in essence in the middle of the day. There were other people, children as well, present at [handover location] and those matters are relevantly taken into account.

…

But at the end of the day, as I have said, I am satisfied beyond reasonable doubt that you took the knife there. I am satisfied that what occurred was in accordance with the evidence of [Mr Alba] at the trial that shortly after he took the child to the car and either put the child in the car or near the car so the child could climb into the back seat, he turned around and then was assaulted by you by you stabbing him on at least two occasions and causing him those very serious injuries.

(as per the original)

116The mother appealed her conviction and sentence to the Court of Appeal (WA). Judgment was delivered [in] 2017 and the appeal was dismissed. [Appeal Court citation redacted]

117The Court of Appeal said at [131]:

… we do not have a reasonable doubt as to the [mother's] guilt or as to the correctness of her conviction.

118As to the circumstances of the incident, the Court of Appeal said:

139.The judge was satisfied beyond reasonable doubt that the [mother] brought the knife [to the handover location]. The judge was not satisfied beyond reasonable doubt that the [mother] formed the intention to use the knife until shortly before the stabbing occurred.

…

158.… The [father's] evidence was that the [mother] produced the knife. It was well open to the jury, and to the sentencing judge, to be satisfied beyond reasonable doubt of the truth and reliability of the [father's] evidence that he did not bring the knife to the [handover location], and that the [mother] produced the knife. The only reasonable inference from those findings was that the [mother] brought the knife to the [handover location].

(as per the original)

119As stated above at [4], this Court has adopted the findings and decision of the District Court and Court of Appeal, including that the mother perpetrated an act of significant family violence against the father. A further order noted the mother maintains her innocence in respect of her conviction.

120Notwithstanding the findings of the District Court, the Court of Appeal and the orders of this Court, the mother asserts she did not commit the offences and is innocent of the charges arising from the 2015 incident.

121In her trial affidavit the mother deposed as follows:

14.[In] October 2015 there was an incident between the Father and me at [handover location], during a handover of [Child B] to the Father. [Child B] was not there. The Father received significant abdominal injuries from a knife. I received injuries to my foot and head which needed stitches and bruising all over my body. My left shoulder was dislocated and I had concussion. In 2019 I had surgery to my shoulder to stabilize it.

15.I was arrested within about 10 minutes of the police arriving at the scene.

(as per the original)

122In the mother's statement to Professor K she stated:

5.[In] October 2015 there was an incident between [Mr Alba] and I at [handover location] during the handover of [Child B] to [Mr Alba]. [Mr Alba] brought a knife to the handover. There was a scuffle and he was injured in the stomach and hand. I received injuries to my foot and head which needed stitches, bruising all over my body, my left shoulder was dislocated and I had concussion. In 2019 I had surgery to my shoulder to stabilize it.

(as per the original)

123At the District Court trial, the mother's position was that she did not bring the knife, but the father produced it.

124In his report dated 9 May 2019, Dr G reported the mother's position as follows:

31 The mother's position is that she accepts that she was convicted, but says the situation did not happen the way that [Mr Alba] thinks it happened. She wants to move forward, and would like to see the children supported.

125Dr G reported the mother maintained she did not have the knife, and that while she was found guilty, her position was that she was a victim of domestic violence. She indicated to Dr G she regretted that the father got hurt and the children's experience.

126At trial, senior counsel for the father commenced his cross‑examination of the mother as follows:

[MR A]: Ma'am, would you confirm that, as you sit in the witness box this morning, that you are innocent in relation to the events that occurred [in] October 2015. Is that your position?‑‑‑Yes.

And your position then, is that you were falsely convicted, correct?‑‑‑Yes.

127At trial the mother referred to the fact she suffered injury and said she was lucky to be alive. She accepted that her narrative and that of the father were "polar opposites".

128Senior counsel for the father submitted the mother was effectively telling this Court "a pack of lies" about her responsibility and her asserted innocence.

129It may not be possible to prevent the mother providing the children with her narrative of the 2015 incident. This raises concern as to the potential for emotional harm to the children in that receiving the mother's narrative may create divided loyalties, confusion and turmoil for the children and undermine their relationship with the father who is their primary caregiver.

130When asked if she accepted that the different narratives would likely be hard for the children to emotionally and psychologically make sense of, the mother said:

I don't really know at this point how I would handle it. I would want to, as I say, get advice (indistinct) be as supportive as I can to their needs. But at the same time, they would see that I've said that I'm not guilty via the media, and – yes.

131The maternal family were asked what they would tell the children about the 2015 incident. The maternal aunt said her answer would be "what the court said happened". However, she went on to say that she had not given thought to that conversation. She was also asked about her husband Mr B Olsen's presence at the incident, and said she accepted what he told her was the truth, even though it was inconsistent with the evidence of other witnesses. The grandfather said if the children asked him about the 2015 incident, he would say "don't go there", and he would not talk about it.

132Dr G described the history between these families as "high conflict and likely to create a dynamic where the children may need to take sides".

133This reinforces the need for the children to be provided with the Court-determined facts, as recommended by Dr G in his report dated 9 May 2022, where he said:

45. Ultimately, it may be appropriate for a third party to provide some of this information to the children so it can be perceived on an independent basis. Perhaps it could be done through the Independent Children's Lawyer. However, I would note that whatever is provided, the children are going to base their perceptions of their parents more on emotion than on the Court-determined facts. However, I consider it likely that the children will at some point want to ask their mother about what happened. Her previously expressed position is quite different to the material facts. Therefore, I believe that the children should at least be provided with some discussion around what the Court-determined facts were. I believe both children would be capable of handling this if it was tackled in a structured manner.

(as per the original)

The father

134The father is fearful of the mother. He suffers from PTSD which he deposed is a result of her "stabbing him and leaving him to die in a pool of his own blood". As to the circumstances of the incident, he said:

I believe that all the family got together and conceived a plan to kill me and they executed that plan together and they all knew exactly what to do.

135He is enormously concerned by the mother's denial of guilt and attempts to shift the blame. He also fears she and the maternal family may harm or abduct the children.

136The father was asked about the impact upon him of the mother maintaining her innocence. His distress was palpable. He wept frequently during the mother's evidence.

137The father has attended regular fortnightly sessions with [Mr V], Clinical Psychologist, since 6 January 2016. Mr V provided an affidavit annexing reports dated 27 September 2018 and 27 April 2021 and gave oral evidence. In 2018, Mr V reported the father met diagnostic criteria for PTSD. In 2021, he considered the father continued to meet the diagnostic criteria but was able to manage this functionally from a psychological point of view. When asked as to whether psychological intervention or counselling would assist the father in coping with the children spending time with the mother and maternal family, Mr V said, "Being afraid of someone who has assaulted you is not a mental health issue. It's a normal human response".

138Mr V reported that:

•the father has a strong belief that the mother and her family have significant animosity towards him and would express that animosity of him to his children directly, which would adversely psychologically impact them and undermine his parenting as their primary caregiver.

•he believes his personal safety is at risk if he is exposed to the mother and her family, and he is very concerned that he may be harmed again while engaging in any handover process or that that the children may not be returned.

•he has expressed concern for the safety of the children should they have unsupervised time with the mother. Since the assault upon him he believes the mother is capable of violence, causing him to fear that she may harm the children if she becomes highly distressed, which causes him significant distress and drives exacerbation of his PTSD symptoms.

139Mr V reported the father has a strong willingness to engage in treatment, has displayed psychological resiliencies and is expected to make a significant recovery in due course. Mr V said the father is receptive to feedback regarding the children and was fairly confident that if the father is required to do something for the children's wellbeing, he would do it even if it did not sit well with him. Mr V said if the Court made orders for the children to live with the mother, the father would deteriorate significantly.

140In his report dated 9 May 2022, Dr G reported the father has injuries and complex PTSD, which factors will be triggered by the children developing a relationship with the mother and particularly if they decide to live with her. However, Dr G reported that ultimately the children will act according to their needs, and the father will have to continue to access his therapeutic support to address these things.

141In his report dated 9 May 2019, Dr G reported the paternal family described significant paranoid fear, and the father and paternal aunt separately spoke about avoiding going out, and when they did, they were hypervigilant in case of attack. He also said he believed the paternal family's fear was unrealistic, but from the perspective of trauma it is real to the person.

142In the father's trial affidavit sworn 3 February 2021 he deposed that the police seized two drawings made by Child A before the incident which were tendered as evidence during the District Court trial, one of which showed Child A stabbing the father and another which he understood to be the maternal family and a list entitled "The pros and cons of killing daddy".

143Child A's childhood diary became exhibit 46. One entry was titled "Should we kull dad", which could have referred to either "kill" or "cull". There followed a list of reasons set out in a "yes" column. Apart from two pictures from the diary which were drawn in early 2013 which the mother sent to her former solicitor in November 2015, she said she was not aware of the rest of the diary until after the police executed a search warrant of her parents' home. She denied that either she or the grandmother had any influence in respect of Child A writing as to whether the father should be killed. The grandmother did not accept that Child A's diary might feed the father's fear that there was a plan to kill him.

144The mother was asked about the father's fear that the maternal family conspired to kill him. Her response was that it was "absolutely ridiculous". The grandfather was asked if he was involved in plans to kill the father. His response was "you must be joking".

145I consider the mother and the grandparents showed little insight or empathy as to how Child A's diary could have been perceived by the father in circumstances where he suffered life-threatening injuries as a result of the 2015 incident and continues to suffer from PTSD.

146In his trial affidavit, the father deposed it appeared that the police seized a diary from the grandmother which may have recorded the plans to kill him. Such a diary was not produced. In the grandmother's affidavit filed in April 2014, she deposed she did not keep a diary, but in cross-examination she agreed with senior counsel that she was keeping notes as at January 2014. The grandfather said he did not observe the grandmother taking notes or keeping a diary in 2014 and 2015.

147In his report dated 9 May 2019, Dr G reported there was no evidence that the maternal family were a particular risk to the children. He noted the debate about their support of the mother but said there was no evidence they would physically harm the father and his family.

148The father was asked about the impact upon him of the mother maintaining her innocence. He said:

Lots of emotions. I guess one of the ways to possibly describe it is like I'm in the ocean and I've got one foot forward and one foot back, trying to just keep stable, and the waves just keep coming and coming and coming, and it's relentless, and just when I think that there is some time or I have got some space, the back waves pull me and – and I try to be dragged out, and all I can do and what I try to do is just stand my ground and hold on because I know one day the waves will stop. This – so relenting, and so every time that there is a court hearing, the amount of documents and trees that get cut down and taking time to – taking time to digest, read, gather my thoughts, talk to my lawyers, it all provides so much anxiety, and I try and keep all of that away from the girls and deal with it around them not being here, and I just wish that one day after eight or nine years, one day this will all be over and we can have some time to breathe. But it triggers my anxieties, it triggers some thoughts and my post-traumatic stress disorder, all of those emotions I try to deal with, but it's hard. It's hard.

149The father was asked by the grandmother what it would take for the grandparents to see the children. He repeated that "it was the continual denial and alignment with your daughter that she did nothing wrong", and their continual support and denial of things which he believes is a risk.

150When the father was asked if he would be open to the children having a relationship with the mother, he said he could not make that decision and would leave that to therapists and Dr G. He said he would fully support the decisions that have to be abided by, by which I infer he meant Court orders.

151I accept that the father remains in fear of the mother and members of her family, and he believes the family intend to harm him.

152The father has re-partnered. His partner has met the children. She has children of her own.

The mother

153The mother spent time in prison and was granted parole on 19 July 2020. She lives with the grandparents. She is currently working at a [health care provider]. She is eligible and intends to apply for the re-instatement of her [professional registration] when she has funds to pay the fine that was imposed. The mother has re-connected with an old friend in [Country B], who she said intends to come to [City B]. She has no intention of going to [Country B]. Their relationship is a romantic one. The mother is studying a master's degree in philosophy. Her thesis is judicial determinations and how violence can be picked up earlier.

154The mother longs for a relationship with the children who she has not seen since the 2015 incident. At trial, she repeatedly referred to her concerns and attempts to ensure that the children did not think they were forgotten.

The children

155The father described the children's daily life. They are involved in extra-curricular activities including [sport A], they attend family events, and they have a pet dog. Their freedoms are however limited. If they are invited to parties, the father attends as well. They do not attend sleepovers.

156The father acknowledged Child A is seeking autonomy, but he considers it age-appropriate for him to be present at events. When asked why she does not have access to social network or media platforms, he said he did not believe it was appropriate and that he was "frightful" (by which I understood he meant fearful) of the mother and her family making contact. Mr V was asked about the extent to which the father's PTSD impacts upon the children. Mr V said that he could not comment on the children as he had not met them but thought that the father is "more restrictive in some fashion because he is scared".

157The father said he talks about the mother with the children, and he tells them she loves them. The children do not have photographs of the mother or maternal family, although he said this would be okay if deemed acceptable by counsellors.

158The father acknowledged the children have said they want to spend time with the mother, and that if this was to occur it would have a detrimental effect upon him and cause anxiety but said he would try and keep that away from the children. He sensibly said he would seek help to manage. He denied he was putting his own needs above the needs of the children, and he said it was about what was best for the children.

159Although the father does not believe there is any benefit to the children in re-establishing their relationships with the mother while she maintains her innocence, it appeared he would be receptive to the recommendations of therapists and experts. He acknowledged that options proposed by Dr G should be explored and agreed he would cooperate and facilitate the re-establishment of those relationships with the assistance of therapy.

160[Mr W], Principal of the children's school, described the children as ordinary members of the school community. He described Child A as a lovely student who engages well with teachers, participates in studies and cocurricular programs, and with a good group of friends. He described Child B as a bubbly, seemingly happy young lady who is perhaps more outgoing than Child A, with no issues as to her attendance at school, presentation or mental health.

161[Mr X], the children's head of house, described Child A as:

A very good kid. Does very well at school. Very quiet and reserved is how I would describe [Child A], but is social, has a close social group of friends.

162Mr X went on to describe her as very settled, with no major issues that have presented themselves at school.

163Mr X described Child B as very bubbly, always smiling, with a group of friends, doing very well academically with no major issues in terms of behaviour.

164[Ms Y], one of Child B's primary school teachers, described Child B as a model student who achieved very high results in all the subjects she taught, Child B's work was always of a very high standard and her homework was always done. Ms Y said Child B took on a year 6 leadership role with great responsibility and described her as very respectful to staff and teachers, and a beautiful role model. Ms Y recalled an occasion when Child B came to school upset due to an argument at home between the father and Child A to do with Child A going out. Child B did not want her father or aunt to be told that she was upset. Ms Y spoke to the school psychologist about it, after which Child B seemed okay and did not come to Ms Y for anything else.

165I refer below to the children's psychological difficulties.

The children's therapy

[Ms F]

166In his report dated 27 November 2018, Dr G stated he had not been given any information to suggest the children were showing trauma symptoms and opined their school reports suggested that they were doing well. However, he was most concerned that the children had not had a single counselling session, and in his opinion the lack of psychological treatment and ongoing support was negligent.

167On 17 December 2019, orders were made for the children to attend monthly counselling with [Ms F], Clinical Psychologist.

168The purpose of the counselling, as described in the orders, included to assist the children with their complex family circumstances, to assist the father in supporting the children's emotions, and to help him develop strategies to support conversations about the mother and the maternal family.

169There were difficulties between the father and Ms F in that he understood he would have a level of involvement in the children's appointments. This was not acceptable to Ms F. She said the father asked a lot of questions after those appointments, and she was worried about the power imbalance. Ms F had a discussion with the children in front of the father, to the effect that the therapy was private and nobody should ask the children questions about it. There were also practical difficulties involving payment, and some appointments were cancelled with and without notice. Ultimately, Ms F only saw the children on two occasions.

170Ms F was concerned that the father could not deal with the children's emotional needs because he was struggling so much with his own emotions. She referred to his involvement of his own GP, which she considered was another way of obstructing the therapy and prioritising his own discomfort over the children's access to therapy.

171Ms F read to the Court the father's comments on the standard intake form:

This is Court mandated counselling assistance for the children to deal with the issues around their mother trying to kill me in front of one of the children by stabbing me repeatedly and leaving me to die in my own pool of blood, also to assist me in supporting the children with their emotions in dealing with this situation, to provide strategies to support conversations by the children about their mother.

172Ms F considered there had been some misunderstanding, and said her understanding was that she would be assisting the children to deal with complex circumstances, rather than specifically supporting the father in those discussions and strategies. Her concern was to keep the focus on the children and supporting them, and said she thought the children needed their own space.

173As to the sessions that did occur, Ms F said her impression was that the children had limited support outside the paternal family and that they were very sad, and grief-stricken, and she referred to their many levels of trauma and grief. She also referred to the children not having phones, and Child A having to miss a friend's birthday because parents were not allowed. She described the father coaching their [sport A] teams as "over enmeshment and involvement".

174Ms F reported Child B said she thought about her mum a lot but was not ready to see her and was angry with both of her parents. Child A was missing her mum more and felt ready to see her. She recalled in the second session, Child A reported that the father had asked them about it and Child A said she "went off" and stood up to him.

175On 31 January 2020 the mother wrote to Ms F. Included in her letter was a request that the children be told at the appropriate time that they were not abandoned, that the mother thought of them every day and that she missed them greatly. When the father learned of the letter, he twice requested that he be provided with a copy. At the time of the father's first request on 18 March 2020, Ms F was isolating away from [City B]. Ultimately the letter was not disclosed until after 5 May 2020.

176Ms F said she did not give the letter a lot of weight other than to feel some empathy about the situation. She described the mother's reference to the "tragic incident" as "particularising minimising language for the assault that occurred on [Mr Alba]".

177The father was extensively cross-examined about the failed therapy with Ms F. He denied he was obstructive of therapy and not accepting of her professionalism, or that he was unable to place the children's needs above his own distress.

178I do not consider the father was resistant to therapy for the children or deliberately obstructive. I gained the impression from his evidence and that of Ms P, that they had thought that they could deal with the issues, and for that reason, the children did not have therapy prior to Dr G's very firm recommendation that they should do. The father's comments on the standard intake form, although graphic, were not dissimilar to the purpose of the counselling, as described in the orders set out above at [168]. Further, his request for a copy of the letter sent by the mother was entirely reasonable. Ms F's appointment was not successful. Notwithstanding her limited involvement, her evidence was important in that it reinforced Dr G's concerns that the children needed therapy.

[Ms E and Ms D]

179On 4 August 2020 orders were made for the children to attend upon psychologists, [Ms D] and [Ms E], in lieu of attending upon Ms F for therapeutic counselling. Without admission the father was restrained from sitting in on the therapy sessions, requesting feedback from the therapists or questioning the children in relation to it.

180On the first day of trial, Ms E and Ms D attended Court in response to subpoenas issued at the request of the mother. I determined they did not require to give evidence, nor should their documents be inspected, which I was satisfied had the potential to damage the therapeutic relationship between the children and their therapists. I refer to my reasons [2021] FCWA 188. Ms E and Ms D provided information to Dr G which was included in his reports dated 4 August 2021 and 9 May 2022.

326I have found it is to the benefit of the children to have a meaningful relationship with both of their parents.

327I have further found:

•The children wish to spend time with the mother. I take into account their ages, development and views, and I consider they should not be denied the opportunity to be reintroduced to the mother and have her in their lives. The children have a close and loving relationship with the father, although there are some difficulties with it arising from the father's hypervigilance and control.

•The removal of the children from the father's care would be a significant change in their living arrangements and would disrupt their existing stability. I am not persuaded that such a change is in their best interests.

•I am satisfied that if the children live with the father, he will comply with orders that they spend time with the mother. I am not entirely satisfied that if the children live with the mother, she will facilitate them spending time with the father.

•There is practical difficulty and expense involved in the children spending time and communicating with the mother in that supervision may be required. This gives rise to both inconvenience and cost.

•Although the father's fears, anxiety and PTSD are likely to be exacerbated if orders are made for the children to spend time with the mother, I am satisfied his capacity to properly care for the children will not be eroded such that it is in their best interests not to spend time with her.

•I have concerns as to the mother's capacity to provide for the children's emotional needs. As set out above at [304], she was reluctant to identify anything positive about the father in circumstances where he has raised the children in the most difficult circumstances. Her evidence does not reassure me that she will not endeavour to persuade the children of her narrative of the 2015 incident, or to influence them against the father. I see this as a risk to the children, but one which can be ameliorated with appropriate orders for supervision of the initial visits and ongoing therapy.

•I consider neither the father nor the mother are capable of encouraging or promoting the children's relationship with the other. The father's position is that the history of the behaviours of the mother and her family suggest that they are likely to damage, if not destroy the children's relationship with him.

328In balancing the relevant factors, on one hand is the benefit to the children of having a meaningful relationship with both of their parents and the children's wish to be reintroduced to the mother and spend time with her. On the other hand, is the risk which the mother poses to the children with respect to her capacity to provide for their emotional needs going forward, and the impact spend time orders will have on the father's parenting capacity.

329Having balanced those factors, I have concluded that it is in the best interests of the children that they should live with the father, and he have sole parental responsibility for them.

Spend time

330Being mindful of the objects of Part VII of the Act and the principles underlying those objects, the children should have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. I consider an order providing for the children to spend time with the mother is in their best interests.

331By reason of the risk that I consider exists to the children's emotional wellbeing by reason of the mother's narrative of the 2015 incident and the father's vulnerability, their time with the mother will be introduced slowly and with supervision. I consider this to be in the best interests of the children for the following reasons:

•The children are settled in their current living arrangements and at school. That stability should be maintained. The orders I propose satisfies their wish to see the mother, while ensuring that meetings occur in a safe and protective manner.

• A cautious approach is warranted in circumstances where it is not known how the children might react to the change in their circumstances. They have not seen the mother for over seven years, and they should have an opportunity to adjust to contact slowly and at a pace they can cope with.

•If the initial meetings are supervised, there is less opportunity for the mother to discuss the 2015 incident, to influence the children or justify her actions to them, which I consider is likely to cause the children confusion or even to take sides.

•The children will have ongoing therapy to occur between meetings, which will enable them to talk to their therapists about any matters as needed and process what is happening in their lives. I am mindful that at this time their therapy is dealing with superficial current issues rather than addressing their underlying anxiety and trauma.

•It is not known how the parties will react to a change in circumstances. A slow and supervised introduction of time is an arrangement which the father, the children's primary carer, is more likely to be able to cope with and manage his own feelings and fears. At the same time this approach will give the mother and maternal family the opportunity to be reunited with the children, an outcome they desperately seek.

332There is a risk that such orders will impact upon the father and his capacity to provide for the children's needs. However, I am satisfied that his capacity will not be impaired to such an extent that it will impact on their best interests such that the mother should remain absent from their lives. I consider that risk, being the impact of the father's anxiety, can be ameliorated by a gradual introduction of supervised visits.

333Before the children are reintroduced to the mother, the ICL, a Legal Aid social worker and, if practicable, Dr G should provide the independent truth to them and explain the orders I will have made. Thereafter the children should spend time with the mother. The children should continue their fortnightly therapy. This will provide support and oversight of the visits.

334The gradual reintroduction which I intend to order is that for a period of three months, the children should spend time with the mother, for two hours on one occasion each month. These meetings will occur in a public place and will be supervised by an independent person. Such supervision will support the initial meetings and avoid any unsubstantiated allegations. This is a lead-in process, and the third meeting may include the maternal aunt and the grandparents.

335After three months, if in accordance with the children's wishes and unless contra-indicated by their therapists, the children should spend time with the mother for six hours on one Sunday in each month. With three supervised meetings having already taken place, I do not consider it is necessary for this time to be supervised. I have regard to the ages of the children and the implication carried by supervision that the parent being supervised is a risk to them. These visits may include other family members.

336The children should have electronic communication with the mother by text message which Dr G recommended as their preferred way of communicating. The correspondence between the children and the mother as provided for in the orders dated 24 December 2021 would then cease.

337After the children have had monthly visits of six hours with the mother for a period of six months, that is ten months from the date of orders, the children should again meet with the ICL and, if practicable, Dr G to consider further time to be spent. In those ten months, the children will have an opportunity to mature further. I consider in the complex circumstances of these children the review is necessary.

338Following that review, if in accordance with the children's wishes and unless contra-indicated by their therapists, the children should spend overnight time with the mother on one occasion each month. For the first three months this should occur from after school Friday until 4.00 pm Saturday, and thereafter from after school Friday until the commencement of school Monday, to extend to the commencement of school on Tuesday in the event Monday is a public holiday. With effect from the commencement of weekend time, the children should also spend time with the mother during the school holidays.

339These orders are those which I consider to be in the best interests of the children based on the evidence. This arrangement provides both structure and some choice to the children and, as described by Dr G, enables them to build on their experiences to a level they can feel comfortable with. It is not possible to predict what the children's wishes will be in terms of their time with the mother going forward, or the impact upon them of the reintroduction to her.

340I cannot foresee what arrangement will meet the children's emotional and other needs once they have been reintroduced to the mother. Upon the evidence however I am satisfied that a gradual reintroduction, giving the children the opportunity to adjust to the changes in their lives, is appropriate and orders to that effect are in their best interests.

341Similarly, it is not possible to predict the reaction of each of the parents or the impact this may have on the children. It is also for that reason that the orders will provide for a review by the ICL and, if practicable, Dr G, with the benefit of information from the children's therapists. There will be liberty to the parties and the ICL to relist in the event that the outcome of that review is that further or other orders as to the children's arrangements would be in their best interests.

Miscellaneous matters

THE INDEPENDENT TRUTH

342I propose, subject to hearing from senior counsel, counsel, the third and fourth respondents and the ICL, that the independent truth to be provided to the children be as follows:

1The mother and the father separated in May or June 2012. At that time [Child A] was aged six years and [Child B] was aged three years. The children lived with the mother and spent time with the father.

2The father commenced child-related proceedings in the Family Court of Western Australia on 11 January 2013.

3In January 2013, the mother raised concerns that the children were at risk by reason of their disclosures and sexualised behaviour. The children were medically examined.

4The Department for Child Protection investigated, and sexual harm was not substantiated. The Department was concerned by the mother's behaviours, which it considered to be a potential cause of harm.

5At the 2015 trial the mother acknowledged that the children were not at risk of sexual abuse from the father. The parties consented to orders for the children to live with the mother and to spend time with the father.

6[In] October 2015 the mother and father attended [handover location] for handover of [Child B]. The mother's brother, [Mr B Olsen] was also present.

7The mother stabbed the father twice with a knife, once in the stomach area and once in the chest. [Child B] was present as were other persons. The father suffered life threatening injuries.

8The children were removed from the maternal family and placed in the care of the father and the paternal aunt.

9The father stated the mother came towards him holding a large [knife], lunged forward and stabbed him twice. He received assistance from persons nearby. The mother's brother did not intervene.

10The mother deposed there was an incident between her and the father in which the father received abdominal injuries from a knife. She received injuries. The mother described it as a "scuffle".

11The mother pleaded not guilty to criminal charges. In [2017] she was tried in the District Court of Western Australia and convicted of the crime of doing, with intent, grievous bodily harm to the father contrary to s 294(1) of the Criminal Code 1913 (WA).

12At the District Court trial, the mother's position was that the father produced the knife.

13The sentencing judge was satisfied beyond reasonable doubt that the mother took the knife to [handover location], although was not satisfied beyond reasonable doubt that she had the intent necessary until shortly before the incident. The judge was satisfied that what occurred was in accordance with the evidence of the father.

14In [2017] the mother was sentenced to a term of imprisonment of five and half years, being eligible for parole after serving three and a half years.

15The mother unsuccessfully appealed both her conviction and sentence. The Court of Appeal had no reasonable doubt as to the mother's guilt or the correctness of her conviction, including that she brought the knife to [handover location].

16The Family Court of Western Australia adopted the findings and decision of the District Court in relation to the mother's criminal conviction.

17The Family Court made the following findings:

(a)the First Respondent perpetrated an act of significant family violence against the Applicant, [MR ALBA], which took place in the presence of the child, [CHILD B], born [in] February 2009;

(b)the First Respondent pleaded not guilty to and was ultimately convicted of Unlawfully Doing Grievous Bodily Harm with Intent;

(c)the First Respondent was sentenced to a term of imprisonment of 5 years and 6 months;

(d)the First Respondent unsuccessfully appealed against her conviction and her sentence;

(e)the Applicant was awarded a lifetime Violence Restraining Order restraining the First Respondent;

(f)the nature of the First Respondent's attack was such that would cause the Applicant to suffer from anxiety and insecurities; and

(g)the First Respondent maintains her innocence in respect to her conviction.

18The mother asserts she is innocent of the charges and was wrongly convicted. She has not provided an explanation for this assertion to the Family Court.

19The mother continued proceedings in the Family Court seeking to have the children returned to her family while she was in prison.

THE PROPOSED ORDERS

343Subject to hearing from senior counsel, counsel, the third and fourth respondents and the Independent Children's Lawyer, the orders I propose to make are as follows:

1All previous parenting orders be discharged.

2The applicant father [MR ALBA] have sole parental responsibility for the children [CHILD A] born [in] November 2006 and [CHILD B] born [in] February 2009.

3The children live with the father.

4Paragraphs 1 to 4 of the orders dated 24 December 2021 as set out below remain in full force and effect.

1Until further order, the First Respondent be at liberty to write a short letter or a card to each of the children, on one occasion per month, with said letter or card to be provided to each of the children's respective therapists via the Independent Children's Lawyer to read with the children.

2In the event the children wish to take the letters/cards home with them, they be permitted to do so, with the children retaining possession of those items,

3In the event they wish to do so, each of the children be permitted to write a return letter or card to the First Respondent, which can be facilitated the Independent Children's Lawyer, who can onforward the letter/card to the First Respondent at an address nominated by her,

4The letter writing referred to in paragraph 1 above be subject to the following conditions;

(a)both children receiving the letters on the same day;

(b)the children's therapists being provided with a copy of [Dr G's] email to the Independent Children's Lawyer sent 15 December 2021;

(c)the letters are not confidential;

(d)the First Respondent's letters be limited to one typed page or two handwritten pages and be light and future focused; and

(e)the Independent Children's Lawyer and/or the children's therapists being at liberty to withhold the letters if they are not appropriate or child focused

5The children continue to attend fortnightly counselling with their respective therapists with any costs after Medicare or private health insurance to be paid equally by the father and the mother, the first respondent [MRS ALBA];

6The Independent Children's Lawyer, a Legal Aid social worker and, if practicable, the single expert witness [Dr G] be requested to provide and explain to the children, within one month of orders, the independent truth as set out at [342] above.

7Following the implementation of order [6] above, and unless contra-indicated by the recommendations of the children's therapists the children spend time with the mother supervised by an independent person for two hours on one occasion each month for a period of three months.

8The mother is to pay the cost of supervision.

9The third meeting may include the third respondent, the maternal aunt, [MS OLSEN] and the fourth respondents, the maternal grandparents, [MR OLSEN] and [MRS OLSEN].

10After three months, if in accordance with the children's wishes and unless contra-indicated by the recommendations of the children's therapists:

(a)the children spend time with the mother for six hours on one Sunday in each month unsupervised;

(b)the children have electronic communication with the mother by text message; and

(c)paragraphs 1 – 4 of orders dated 24 December 2021 be discharged.

11After 10 months from the date of orders, and prior to the commencement of overnight time, the children are to meet with the Independent Children's Lawyer and, if practicable, [Dr G] consider the appropriate timing and arrangements for commencement of overnight time with the mother as set out at orders [13] below.

12Subject to funding, [Dr G] is requested to provide an updated report within one month of the interviews.

13If in accordance with the children's wishes and unless contra-indicated by the recommendations of the children's therapists the children spend each alternate weekend with the mother as follows:

(a) for the first three months from after school Friday until 4.00 pm Saturday; and thereafter

(b)from after school Friday until the commencement of school Monday, to extend to the commencement of school on Tuesday, in the event, Monday is a public holiday.

14With effect from the commencement of order 13(b) above, the children spend one week with the mother during each of the school holidays.

15Except as provided by these orders, the mother, the maternal aunt and the maternal grandparents be restrained and an injunction be granted restraining them from:

(a)attempting to contact the children by any means either directly or through any third party;

(b)approaching within 100 metres of the children's school or attending any extra­curricular activities in which the children are participating or attending; and

(c)attempting to contact the father or approaching within 100 metres of him, his residence or place of employment.

16The mother notify the father or his designated agent within 24 hours of her commencing employment at any [health care provider] within the State of Western Australia.

17The father or his agent provide to the mother redacted copies of the children's school reports within 21 days of receipt by him.

18For the purpose of these orders the father and the mother supply to the other a postal or email address for communication solely in relation to the implementation of these orders.

19The requirement for the consent of the mother to the issue of passports for the children be dispensed with.

20The parties and the Independent Children's Lawyer have liberty to relist to seek further or other orders.

21All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

22In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

23In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs [21] and [22] above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

6 OCTOBER 2022