Auden and Purtle
[2018] FamCA 70
•16 February 2018
FAMILY COURT OF AUSTRALIA
| AUDEN & PURTLE | [2018] FamCA 70 |
| FAMILY LAW – CHILDREN – PARENTING – where the mother makes consistent and serious allegations of sexual impropriety against the father based upon statement made by very young child – where the expert evidence does not support the conclusion that the mother did not understand what she was doing – where the mother’s view was that she was simply following the advice of experts but that her legal advice was confusing – where during an adjournment period, expert psychological assistance was provided to the mother and that expert was of the view that the mother’s attitude could change – where the family consultant expressed caution about removing the children from the mother albeit the allegations had continued up until that time – where the court is prepared to make interim orders to assess whether or not there has been a culture of change for the benefit of the children and interim orders of a sharing nature should be made in the meantime as they have been extremely successful since the adjourned period. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Conrad & Killen [2017] FamCA 737 Kopel and Ferro [2016] FamCAFC 202 Napier & Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395 |
| APPLICANT: | Mr Auden |
| RESPONDENT: | Ms Purtle |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 7449 | of | 2013 |
| DATE DELIVERED: | 16 February 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 26, 27, 30 October 2017; 6, 7 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Roberts / Ms Smallwood |
| SOLICITOR FOR THE APPLICANT: | Marshalls and Dent and Wilmoth Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Burns |
| SOLICITOR FOR THE RESPONDENT: | Hutchinson Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cathleen Corridon & Associates |
Orders
The final hearing of the parenting applications is further adjourned to 10.00am on 13 June 2018 as a part heard matter for one further day.
Any further affidavit material of either party be filed and served by no later than 4 pm on 1 June 2018.
That until further order, the children B born … 2010 and C born … 2013 live with the father and the mother on a week about basis with the changeover occurring at 6.00pm on the Friday night of each week.
That until further order, there be no change to the existing schooling arrangements for the children.
The reasons for judgment this day be made available to Dr D by the solicitors for the mother.
The reasons for judgment this day be made available to Dr E by the Associate to Justice Cronin.
That if Dr E is required for further cross-examination by any party, she only be required to attend if given at least 14 days’ notice.
That the Independent Children’s Lawyer has liberty to provide a copy of the reasons for judgment this day to the relevant officers of the Department of Health and Human Services and the SOCIT Unit of Victoria Police as is considered appropriate.
That all parties and the Independent Children’s Lawyer have liberty to apply on short notice.
That all parties have leave to issue such subpoenae as they are so advised.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Auden & Purtle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7449 of 2013
| Mr Auden |
Applicant
And
| Ms Purtle |
Respondent
REASONS FOR JUDGMENT
These reasons explain why interim orders are now being been made arising from what was intended to be the conclusion of a final hearing of the parenting dispute between Ms Purtle (“the mother”) and Mr Auden (“the father”). The dispute is about where their two children B aged almost seven years and C aged five and a half years will live and what time the other parent will spend with those children.
The final hearing begins in October 2017
The final hearing began on 26 October 2017. It would be an understatement to say that the mother’s case was not well-prepared. It is important to note that the directions hearing which set the trial commencement date was conducted by me on 2 August 2017. The purpose of that hearing was to discern and determine what issues were to be litigated. At the directions hearing, the mother was represented by her then solicitor (the firm representing her in 2018 was not then involved) and the father represented himself. It was then difficult to get a clear sense of what the mother was asserting was her concern about the father’s parenting. That did not improve when she filed her written evidence. Previous affidavits had been filed yet she (or her lawyers) seemed incapable of defining the issue for the court’s determination (as distinct from the relief she sought).
The parents had been separated since C was only months old so there could be no excuse for not knowing or understanding what was preventing the parents from cooperating in the raising of the children.
Relevantly, the dispute seemed to centre around “notifications” by the mother to authorities (and their consequences) that the children, but B in particular, had made statements to her which she interpreted as inappropriate sexual behaviour by the father towards the children. However, her view about what that behaviour was, remained unclear.
Although it was (and is still) not at all clear, the mother described the father’s behaviour as “control” rather than being done for “gratification”. That concept could not have been concluded by anyone reading her case outline or her written evidence in October. The documents to which I turn below are allegations that the father had perpetrated serious sexual abuse of his children. As is well understood, children of the age of B and C are vulnerable and cannot understand adult concepts but also what is happening to them. As such, a parent has to interpret what they are saying but two significant things occurred here. First, the mother did not approach or endeavour to discuss any alternative with the father. Secondly, she did not listen to the experts who were telling her that at least some of the behaviour was normal childhood conduct. In her evidence, the mother had no doubt that what she had been told had occurred but her interpretation of what it meant was a serious problem as B began a merry-go-round of interviews and interventions at a time when he should have been enjoying his childhood and developing a relationship with his father.
As at February 2018, the mother’s position was that she still had some “concerns” about the father.
All of these questions underpin the difficulty in making a final decision because of what happened after the trial was adjourned in October. The mother has now sought new legal advice but more importantly, obtained the professional therapeutic intervention from experienced psychologist Dr D. All of this came to light in the hearing conducted on 6 February 2018. To understand the position we have now reached, unfortunately, the whole litigious history has to be traversed. In part, that is because it is the father’s proposal was, and remains, that the court immediately remove the children from the mother and place them in his care.
The litigation
Throughout the four days of the case in October, the mother’s focus on what was in dispute remained vague. One might expect cross-examination to focus upon what was in dispute but that did not assist here. All of this unguided approach culminated in her unusual application to adjourn the hearing at a point where final addresses were about to begin. At that point, she had closed her case (twice). Her stated intention was to adjourn to enable her to call evidence that should have always been within her contemplation.
The confusion throughout the trial was not assisted by the mother changing her proposals for final orders on at least four occasions. It is not unusual for parents to alter their proposals after they hear the other parent examined about serious issues and often after expert evidence is given to the court, but I am satisfied the mother’s approach (and to some extent the father too) was unguided.
Parenting cases are meant to be a positive inquiry about what is ultimately the best outcome for the future of the parties’ children, and the court has responsibilities to direct those proceedings (see Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”)). The court is severely hampered when serious allegations are made that affect the determination of whether or not the children are at some form of risk in one of the parents’ care and those are just thrown up with the court being told to do with them what it will. To then seek an adjournment at the end of a case because more evidence might assist, adds to the confusion and wastes a valuable resource. That is what happened here.
Background of the parties
The relationship with the parties began in 2008 and they married in 2010, separating only two years later. It is significant that at the time of separation, B was two years of age and C only a few months old. These children have never known their parents to be living in harmony.
Proceedings were commenced in the Federal Circuit Court in 2013 and the final orders were made on 15 July 2014. Those orders were made at the request of the parties and provided for:
· The parents to have equal shared parental responsibility;
· The children live with the mother;
· The father have the children initially during day time hours but when B was to commence school, the time with both children was to be from Friday afternoon to Sunday morning in one week and Thursday afternoon for 3½ hours in the second week.
Under the consent order, the court should be entitled to presume that the parties were saying that the arrangements were in the best interests of their children. The mother was represented by lawyers but the father was without legal representation. It is also significant that the orders indicated the parties were agreeing that they would, and could, make decisions together about major decisions concerning the future of their children. When I turn to the outline of case document filed on behalf of the mother below, one must ask whether, in asking the court for that order, the parties were “going through the motions” because there was no serious communication by the mother thereafter.
The 2014 orders should have ended all conflict between the parties; it did not. Indeed, such was the instability of their relationship with each other, they agreed they needed the court to intervene to regulate even their own conduct. These consent orders appeared:
6.That 24 hours immediately prior to spending time with the children and during all periods the children are in his care, the husband be restrained by injunction from ingesting, consuming or otherwise being under the influence of alcohol and/or any legal or illegal drug or substance save and except for:
a)Any legal medication prescribed for the husband by a registered medical practitioner and taken or used by the husband strictly in accordance with such prescription; and
b)Any over the counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets and taken or used by the husband strictly in accordance with the direction appearing on such medication or pharmaceutical substance.
7.That the husband be restrained by injunction from ingesting, consuming or using sleeping tablets on nights that the children are in his care.
8.Each of the parties be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence or hearing of the children.
9.That the parties forthwith commence and maintain a communication book with respect to the children that shall travel with the children between the parties’ respective places of residence.
Those orders speak for themselves but they do not suggest any issue of inappropriate parenting of the nature that was to unfold. Nothing seems to have been contemplated as to how the parties would begin to work out a way to navigate the parenting maze that faced them bearing in mind the age of B let alone C.
Ironically, after the problems arose as set out below, the parties talked of mediation and unsurprisingly, having regard to the nature of what could only be described as amongst the most serious allegations one parent could make against the other, they were rejected by that system on the basis that the process was inappropriate. But so too, approaching the matter through a legal construct would only be destructive. These parties needed to develop a form of trust so that their children could be raised in a positive way. That did not happen and what has now occurred has entrenched them. The mother still cannot conceive of direct communication with the father. Lest it be seen as one-sided, it cannot be helpful that regardless of what he has been through, the father now wants the mother’s role in the lives of these children severely restricted. Save for the accusations, both parents appear to have loving and caring relationships with B and C.
Because of the ages of the children when the 2014 orders were made, the absence of any apparent plan to deal with changes might be considered the metaphorical calm before the storm. It did not take long for problems to surface and, as the mother saw it, and in my view inappropriately, there was no alternative than to resort to the Department of Health and Human Services and the Police.
The litigation background
Under the 2014 orders, the father was to have time with B and C. Because C was an infant, limited day time occasions with the father was agreed but there was an intention to increase time soon thereafter. Unashamedly, there was recognition that the mother was the parent to whom both children were then most attached and presumably the father accepted she was capable of providing for their needs.
There is no dispute that both parents can now provide for the children’s physical needs; there is no doubt that the father can provide for their emotional needs. The concerning issue is whether the mother can provide for those latter needs. At the moment, I have a doubt and that is why the interim orders are appropriate.
These reasons explore some of the problems and as the evidence is now closed, findings are made; they are not complimentary of the mother.
It is with reservation that I find that her previous lawyers (and I stress not the present legal firm) have contributed to the confusion in terms of the way her case was prepared and presented. For example, on 31 October, I was told by the mother’s solicitor acting as counsel that his “instructors” had not obtained evidence that the mother had instructed them to seek. He could not explain why that was so. I do not accept that explanation as the advocate was from the same firm. I was told that the mother wanted to call further evidence as to what she was told by professionals such as protective staff of the Department and also police. The solicitor said he had been given those instructions. The mother’s subsequent affidavit denied that she had given the advocate those instructions.
This case is not about who is at fault in the matters just mentioned and I stress that the relevant law firm and practitioners have not had any opportunity to put their version of events. Accordingly, I do not intend to be distracted by those issues as the function of the court is to focus on finding an outcome which is in the best interests of B and C. However, it ought be obvious that the father’s frustration, the extensive use of the court’s time and the publicly funded resources have all been adversely affected by the way this case was conducted over a number of years and ultimately how it was presented until 31 October 2017.
The 2018 approach
Experienced counsel has now put a cogent argument for a different resolution of matters.
As to the future of the parenting determination, what happens next depends upon a number of things including whether the mother acts in a way that the court finds continues to interfere with the children’s relationship with the father. Other considerations include whether or not the children settle into the environment created by the parties arising from these interim orders. The parties, and more particularly the mother, ought be under no misapprehension that the findings that follow, along with what happens over the ensuing four months, will form the basis of permanent orders.
Although labouring the point, I wish to make clear (because it became something of a mantra of the father) it was (and is) not the mother’s “notifications” that are of concern in assessing harm to a child but rather, the interviews, assessments and disruptions to the lives of the children and particularly B that arise from them.
Some general observations
The mother’s mantra was that she was simply doing what the professionals had told her to do; she said she was acting protectively of her children. For the reasons that follow, I reject that. At no time has she endeavoured to reality test the statements of the vulnerable children. That placed the father in the invidious position of (at times) not knowing what he was accused of doing wrong but it also deprived the children of a significant relationship with him. Rather than following advice, some (not all) of the mother’s actions in depriving the children of their father were unilateral and based on statements that she never sought to discuss or probe with the father or indeed his parents. That was most unfortunate for the children.
The mother has placed the emotional stability of the children at risk. The question now and more importantly, the very near future, is whether that risk is an unacceptable one. If it is, these children must live with their father. That determination comes from the expert evidence to which I return in a moment. Even though removal would not prevent the mother from continuing to do what she has done, I accept that it would simply reduce the potential for the disruptions to which I have just referred.
It is also important to observe that it has not been suggested that the statements of the children were not made. That was not put to the mother but she can draw small comfort from that as it has been her interpretation of what was said and how she reacted that causes the concern.
It is also a truism that this court makes its determinations on the balance of probabilities. The finding that I made on 31 October 2017 was that inappropriate behaviour by the father did not occur. It means that on the evidence, when assessing the future risk of harm to the children based on historical facts the court found the father’s version more probable than that of the mother.
The mother’s view as at 6 February 2018 is that she still has some concern that the father has perpetrated sexual acts against the children. In October 2017, her belief was strong that he had. The change in that position is as a result of the work of psychologist Dr D. His evidence is set out below. The court’s findings will not alter her belief system but I do not find there is any basis to say that B and C face a risk of unacceptable harm in the care of the father whether that is as a full time or part time parent.
Risk in mother’s care?
The adjournment in October was to enable the mother to call further evidence on whether the children faced an unacceptable risk of harm in her care. The new evidence creates sufficient doubt and I am not presently prepared to make such a finding although it may be that it will be made in the future depending on the evidence produced. In other words, more evidence about the mother’s views and how the father manages the situation may become important.
To be clear about how a court can adopt such a position in the midst of this swirling evidence, reference is made to s 69ZR of the Act which provides:
(1) If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3) To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
In respect of the interim orders in October 2017, it must also be understood they were not made in a vacuum. I had heard days of evidence and then each party made submissions about what should happen in the duration of the adjourned period.
The hearing resumes in 2018
In the resumed hearing in February 2018, each party also had an opportunity to put proposals in final address all of which were directed to the future. From the mother’s perspective, there was no serious challenge (and nor could there be having regard to the evidence of Dr D) that she had an “entrenched belief system” which was unhealthy for the children. Her position was to seek to be given an opportunity to continue what she saw as her role in caring for B and C all of their lives to date. Now, her role will be altered as the father will have equal care of the children. The alternative position of the mother was that there was not sufficient evidence to justify a removal of the children from her care. As to that, it is unnecessary for me to finally decide but she should understand there is a powerful case against her arising from the various findings below.
From the father’s perspective, the question of whether or not it is possible on the present evidence to make a finding of unacceptable risk to B and C is complicated by his counsel’s submission on 6 February 2018 in which he said:
It’s my submission that the mother is not in a position now to prove that she can and as (...) submission of ICL, it is obvious that the mother is not in a position to say that she’s not an unacceptable risk to the children but my client’s position is not that one of unacceptable risk. It’s really one of risk. (taken from the audio 6 February 2018)
The submission of the Independent Children’s Lawyer (to which the father’s counsel referred) was that the matter should be adjourned because the mother was fragile and anxious based on the expert evidence of Dr D and there was an overlay in not just the mother’s instructions but also the way her case was presented. It was submitted that “positive progress” as outlined by the objective evidence of Dr D ought not be “undermined” by final orders.
Counsel for the Independent Children’s Lawyer referred to Napier & Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395 and more particularly, my reference to it in Conrad & Killen [2017] FamCA 737 where I said:
In Napier v Hepburn, Warnick J observed about the importance of judges in examining the question of unacceptable risk, that the goal (was) to provide “a platform, for any future consideration of the family circumstances”. That examination, said his Honour, was to enable parents to “subsequently explore options for change”. Because of not just the timing of the asserted change but the mother’s present inability to plausibly explain why that occurred, I have doubts about whether there is a prospect of any future exploration of change.
Thus, the submission of the Independent Children’s Lawyer was primarily that an opportunity should be given to provide a “platform” and then “explore” options. I accept that submission because I consider the children need both parents in their lives and that certainly was the intention of the parliament (s 60B of the Act).
To be very clear, the Independent Children’s Lawyer’s position was that if the court rejected that interim approach, the children should live with the father and the mother’s time with them should be restricted. The evidence of Dr D therefore is critical to that determination but so too is the evidence of the family consultant whose opinion Dr D did not criticise.
All of the matters about unacceptability of the risk of harm (as I have described above) to the children have to be seen in the context of the family consultant’s evidence. That evidence had not been challenged by the mother. Dr D was aware of that expert’s evidence as he had been given the report to read before giving evidence himself.
The family consultant’s words of caution
Dr E was the family consultant allocated to these proceedings. In the hearing ending in October, no-one challenged her qualifications, experience or ability to provide advice to the court and her background was relevant here.
Dr E obtained a Doctorate of Psychology (Forensic) in 2013 and her clinical portfolio for that doctorate was on the problem of sexual behaviour in children and on the subject of when and how to treat them. She has wide practical and academic experience at a high level of seniority. She was appointed as a family consultant in May 2017.
Dr E concluded her written evidence by expressing caution against a change of primary residence for the children unless it was “absolutely necessary”. That necessity would only arise if there was a finding of significant risk to the welfare of the children in the mother’s primary care. That is, not just an unacceptable risk but a significant one. She pointed to the limited experience that the children had had with their father. She described a change from the mother in those circumstances as likely to be a negative experience for the children and may jeopardise their overall wellbeing. It is conceded by both parents that there has been no negative experience since October when the children began a significantly different time regime with their father.
Most relevantly now, Dr E then said that she thought that if the risk was significant, and there was a likelihood of continued disruptions of the father’s time with the children or that the mother made unrealistic demands on his care, it would be appropriate to remove the children from their mother’s environment. These were her opinions contained in paragraphs [120] to [122] of her written evidence.
Dr E was cross-examined about those paragraphs and in part, that was a consideration in the resumed hearing in 2018.
Counsel for the Independent Children’s Lawyer observed that the witness had written that “continued disruption” of the father and children relationship warranted a change of residence. The Family Consultant had been asked to contemplate the mother’s actions in making a “notification” to the Department of Human Services only days before the October hearing began. I return to that incident below but it resulted in police attending the father’s residence for a “welfare check”. He had the night care of the children. I find below that the mother’s conduct was without any reasonable foundation and I do not accept that she did not anticipate some action of interference with the father’s time being taken.
Dr E however was reluctant to describe this incident as being what she had in mind as an interruption of the father’s time. There were other more serious examples of that interruption but she considered this not in that category even if I find (as I do) that this was one of the more striking examples of the destructive consequences of the mother’s behaviour. Here, B was dragged from sleep to be faced with two police officers (no matter how well trained) to check on his welfare. I now have evidence of B’s reaction (ICL 11) but it does not take much imagination to think it was bewildering for him. It is an example of the destructive nature of these sorts of unfounded parental complaints.
Dr E was asked to elaborate on her professional view of the harm caused by these “unwarranted service involvements”. She said:
So when you’re looking at a trauma reaction in a child, it does vary in terms of the scope, but things like being hypervigilant, anxiety, experiencing nightmares, regressing in their behaviour, things like bedwetting. So the (sic) normal trauma responses, but they’re actually in relation to events that ordinarily wouldn’t be considered traumatic.
The critical question then is whether these continued notifications, complaints and attendance on welfare authorities or health professionals were unfounded and unreasonable and, if they continue, it must be now evident (on the basis of that unchallenged evidence of Dr E) that there is a risk of psychological harm to the children. The unanswered question is whether the level of that risk is unacceptable and if that finding is made, the children must live with their father. The mother’s mantra that she was the “primary carer” of the children has a hollow ring about it if such a finding is made because it would mean that she is putting her own needs ahead of theirs.
Time (albeit only three months) has given me an opportunity to contemplate the words of caution of Dr E. For the reasons already mentioned, I am now hesitant to make a finding “of significant risk” in the “mother’s primary care”. There is no suggestion of the children having had a “limited experience” in their father’s care as concerned Dr E. Since December, the parents have shared the children on a week-about arrangement and, most significantly, from the mother’s perspective, not only have their not been problems such as separation anxiety or night terrors but the statements of B have stopped and both children have enjoyed their father’s company. There is no suggestion by the mother of any incapacity on the father’s part to care for the children. To the extent that it might be raised (and it was not) that this was school holiday time, I do not accept that it makes any difference. There was no criticism of the father’s ability to establish a routine.
Although there is no evidence from the father (his January 2018 affidavit not being relied upon), it is conceded by the mother that he experienced no problems in caring for the children.
All of that must be seen as remarkable having regard to the accusations and complaints said to have been made as late as days before the October trial began. It may have something to do with what Dr D described as the mother’s terror of losing the children but that would give rise to questions of whether she was fabricating the statements of the children in the first place. That is not a position that has ever been put by the father.
On the other hand, it may be that the children were desperate to have the enjoyment of their father’s company which had been thwarted by the unilateral actions of the mother and, contrary to the hesitation of the family consultant, the children have transitioned smoothly. Remarkably, the parents were able to agree on Christmas arrangements and C’s starting school life.
Thus, it is important to first examine the substantive evidence and make the findings upon that and then secondly, contemplate the new evidence presented by the mother. Having taken those two steps, and now determined only to make interim orders because of the Napier & Hepburn approach, the third step is to look at the practicalities of any interim arrangements. Finally, I consider it is important to look at what the Act permits the Court to do whether as an interim arrangement or otherwise.
The mother’s substantive case until October 2017
In her application filed 22 May 2017, the mother sought a discharge of the 2014 orders and that pending the father undergoing a psychosexual assessment, the children spend time with him for no more than two hours per fortnight at a supervised contact facility. Leaving aside the fact that the document purported to seek final orders, nothing addressed the question of a long term plan for the father’s time with the children.
Directions then followed for the filing of affidavit material and the preparation of a family report. It ought to also be self-evident that if a case is not issue-based or clear, an expert witness will have difficulty discerning the basis upon which advice should be given to the court. Thankfully here, the Family Consultant made what I consider was an accurate assessment of what was in dispute.
The trial itself
It is unnecessary for me to detail all of the matters that caused delays during the final hearing save for two that deserve mention. First, on a number of occasions the trial was halted while the mother’s solicitor advocate obtained instructions. That time was never made up. Secondly, the mother changed her proposals on a number of occasions. In evidence and later in submission (and now in the February hearing) she expressed confusion which she attributed to conflicting legal advice. She had attended upon a number of legal professionals but I do not know what history they were given nor what advice she received as a consequence. To the extent that she maintained that she was not accusing the father of sexual abuse for “gratification” purposes as she described it, I can only look at what her affidavit material portrayed, and more significantly, her outline of case document. A fair reading of that written material would enable the conclusion that she was accusing the father of the most inappropriate predatory behaviour towards his children and further, that the paternal grandparents were not diligent when they had the responsibility for protecting their grandchildren. Much of that confusion must be seen to have come from the way the mother’s affidavits were prepared. Albeit they were sworn by her and drawn on her instructions, they were unhelpful, if not destructive. If she drew the documents herself, the lawyers responsible need to explain why.
So too, the father’s affidavit material was argumentative and often irrelevant but at least he had an excuse; he is not a lawyer and he prepared them responding to the mother’s material.
Because of the changing proposals of the mother, I was conscious of the concern raised by the Full Court in Kopel and Ferro [2016] FamCAFC 202. Grappling with these changing proposals caused confusion and delay. For example, over the weekend of 28-29 October, proposals apparently were exchanged between the solicitor for the mother and counsel for the Independent Children’s Lawyer on Sunday night 29 October. As they were different to that put previously before the court, and as the mother’s evidence had concluded, she had to be recalled because it was not at all clear what her position was about supervision of the father’s time. The mother conceded in evidence that she had had a discussion with the solicitor representing her but she had not seen the draft minute he provided to the Independent Children’s Lawyer’s counsel. The father seems to have been left out entirely. Because of the confusion, I asked about orders in the event that the children remained with her but where there was no finding of unacceptable risk in relation to the father and the alternative if I found there was an unacceptable risk of emotional harm in her care and the children went to live with the father.
The mother proposed the children live with her and the father have alternate weekends and holidays in line with his annual leave. For six months of that time, she wanted his time supervised by the paternal grandparents. She wanted a condition imposed that the children have independent sleeping arrangements and counselling for everyone.
In the event the court found that the children should live with their father, the mother sought that the children live with her from Friday at 3.30pm until the following Monday morning together with a Wednesday overnight into the Thursday morning of each week together with half of the holidays. She repeated the need for counselling.
The request to re-open the evidence
The confused state of the mother’s case led to two separate requests to re-open her case. Based on what I was told in 2018, that could only be as a result of the advocate’s approach and not the mother’s instructions.
This issue of a new approach was significant because the case began on the basis of strict limitation on the father’s time with the children presumably based on her view that he had been involved in predatory behaviour. The new proposal took her attitude in an entirely different direction and before the father could be tested about not just what he had done but what he would do, the mother’s change of attitude needed explanation. Thus, on this third day, her solicitor sought to reopen her case and neither the father not the Independent Children’s Lawyer objected. It was apparent from the approach of the Independent Children’s Lawyer’s counsel that there was not much harmony between the mother and what her solicitor was telling counsel.
The re-opening occurred during the cross-examination of the father. His cross-examination was thus delayed. I have already mentioned his frustration but amongst other things, he was paying for the attendances of his lawyers.
It was at the point when the mother began giving evidence again that she expressed confusion about her conflicting legal advice. To the extent this might have raised questions of legal professional privilege, it was the mother’s solicitor who led the evidence about her legal advice.
Having then ascertained the mother’s proposal, the trial proceeded and the father’s cross-examination was then resumed.
The second re-opening which occurred on 31 October 2017 (the fourth day) was the one earlier mentioned that gave rise to the adjournment of the trial. All parties had closed their cases. The mother’s solicitor, in vague terms, said that before counsel for the Independent Children’s lawyer commenced her final address, the court should hear evidence from the Victorian Department and also the Police SOCIT unit. This application was without notice to the other practitioners. I have given reasons about what then occurred (presently unreported reasons 31 October 2017). I remain critical of the mother’s practitioners for this state of affairs.
New evidence?
It was submitted the court did not have the evidence of the police and the Department of Human Services. The solicitor submitted this was critical to the determination to explain why the mother had not contacted the father about the allegations as they occurred and why she continued to report what B was saying to the relevant Department. It was said this evidence would establish the mother had a reasonable belief as to the accuracy of what B was saying, a belief she said was encouraged by the Department and the police. It was said that the police told the mother that they believed B, the only inference being that they believed that the father had done something wrong.
It would be unusual to require evidence of the police and the Department in this setting as they could only be corroborative witnesses of the mother’s evidence. The mother had not given that evidence notwithstanding she had filed four affidavits after May 2017 all of which had been prepared by the same solicitor. The submission was only directed to the justification for the mother’s belief; it could not establish that there was an unacceptable risk to B in the care of the father.
The mother’s solicitor could not explain why the evidence was not there. He said the mother told him that she had given his “instructor” that detail. To give an indication of what I have already said was disconcerting about how the mother’s case was prepared, he submitted the mother could not be criticised.
In addition, whilst the submission presumed that both the police and the Department would support the mother’s evidence, no such inquiry had been made. The police SOCIT file had not been subpoenaed although that of the Department had been. According to counsel for the Independent Children’s Lawyer, a perusal of that file saw no reference to what was being suggested such as to corroborate what the mother wanted to apparently say in evidence. As has now transpired, nothing in any file corroborates what the mother said she was told but that does not mean it was not said. It was the suggestion that the solicitor said she would call these witnesses to confirm she was told to keep reporting and that B had been believed that was disconcerting.
I had heard all of the evidence about the risk the father would pose to the children and this new evidence (if it existed) could not assist in respect of that determination; it only went to the mother’s state of mind and whether she created the risk of harm to the children.
Being unable to commit to a timeframe for this new evidence to be produced, it was inevitable that the trial would be delayed for some months. One of the concerns was that the parties had agreed that B was going to change schools but they did not agree on which school it would be and, C was to commence school in 2018. This evidence could not be presented that quickly and the court could not provide a hearing date before the commencement of the new school year. That gave rise to the question of interim orders.
The interim orders
In the submissions of the mother, it seemed (although I am not entirely sure) that her solicitor accepted that a finding could be made that there was no unacceptable risk to the children in the father’s care.
Both the Independent Children’s Lawyer and the father sought a change of the contact restrictions yet for reasons that remained unexplained, the mother’s solicitor initially insisted that the status quo should remain until the conclusion of the hearing.
The father’s position was that the children should be changed to live with him immediately but I indicated that I could not do that without a finding that the children were facing an unacceptable risk in the mother’s care which depended very much on this new evidence that she was to call. As I observed, the interim period may be quite enlightening. It would seem I was correct.
Through her solicitor, the mother then changed her position again indicating that she would not seek supervision of the father’s time. In what could only be seen as a sign of desperation, the mother also offered an undertaking not to report matters to the Department of Health and Human Services; that is, make “notifications”. I rejected such a suggestion as inappropriate. I found her position troubling but in any event, the undertaking could not bind family members.
As the submissions unfolded, I indicated that there were seven weeks of school left in the year and that I considered the father should have a significant role in the children’s lives. The mother seemed to agree. Her solicitor then said there was no objection to the proposal put by the Independent Children’s Lawyer.
I was unsure whether submissions by the solicitor were put on her instructions and now, having regard to her new sworn evidence, she asserts they were not. Even so, she was not heard to interrupt her advocate. It must have been apparent to her that the status quo had to change.
It has now transpired from the evidence of Dr D that at least by the 31 October, the mother had not contemplated the prospect that a court may remove the children from her. It had been raised in the family report yet, on reading the mother’s outline of case document, drawn by her lawyers, the problem of the children lay with the father and not her. At the start of the trial, her proposed order was that she have sole parental responsibility and the father’s time was to be supervised until C reached the age of eight. No plausible explanation was given for that age.
The mother’s case outline in October
The mother’s outline document might have resembled a discursive academic traversal of the Act; in reality was full of rhetoric. Its importance lies in how it said that the mother defined the issue for the court to determine. Here, the document made the following statements:
·This is a case where the father has been accused of subjecting the children… to abuse. In addition, the mother contends a history of family violence including physical, emotional and controlling behaviours including use of courts to harass and ultimately control the mother. These facts while contested by the father are none-the-less consistent in the mother’s evidence.
The (affidavit) and (relevant notice) attests to the various disclosures of abuse…A proportion of these while under the gaze of trial in the Melbourne Family Court.
Leaving aside the fact that the mother’s evidence did not support such assertions, one must question the relevance of the family violence matter which must have related to the period prior to the 2014 consent arrangement. Just what the last sentence meant remains a mystery but it is obvious that the mother was saying that the father was perpetrating the abuse to harass and control her. That ignored her behaviour.
The outline went on:
· The mother contends …”a “real and appreciable” risk to the children exists;
· What potential there was for these events to continue to occur if they had occurred in the past might well be diminished by the ‘bright lights that have been shone’ upon the parties and their conduct in the course of the proceedings.
I am mystified what the last statement was intended to mean but to the extent that the proceedings shone a bright light on the parties to assess the “real and appreciable risk” to the children in the father’s care, they showed it was the mother who was causing the damage. Disconcertingly, evidence indicated the mother had been warned about what she was doing was harmful. The outline ignored that.
The outline said:
· The father presents as having limited capacity in being able to actively cooperate with or make decisions in conjunction with the mother;
· The father has taken a punitive approach towards the mother in these proceedings including withholding of child support and long-term decision making cooperation such as with school enrolments for the eldest child;
· The mother has acted protectively of the children, sought professional intervention and assistance.
The assertions are not supported by the evidence.
The following shows the mother’s case at least as her lawyers saw it:
· In the face of considerable opposition, the mother has sought professional intervention to address the children’s behavioural issues leading to disclosures of abuse perpetrated by the father (my emphasis)
To the extent that the mother maintained in evidence that she was not saying that the father had some sexual gratification purpose in doing what he did, but rather that he did it to control her, that could not have been concluded from the last assertion.
The document then urged “relevant findings in relation to the facts”:
· The father has displayed a variety of inappropriate and harmful behaviours with the real potential to cause psychological harm throughout his relationship with the children including:
Exposure of the children to inappropriate media;
Denigration of the mother to the children;
Exposure of the children to and involving them in the proceedings;
Exposing the children to inappropriate social attitudes and beliefs;
Drink driving with the children in the car;
Drinking to excess on access visits;
Use of family violence in front of and involving the children (my emphasis)
These assertions were not borne out by the evidence; they did not reflect the mother’s case and even if they could be interpolated from some of her material, their relevance to the issue in dispute (which the mother had seemed not to define) was not readily apparent.
The 20 page document did not address what the case was really about and it took 4, or now 5, days to get to the bottom of what was really in dispute.
The conclusion on 31 October 2017
After four days of hearing with her variable changes of proposal, the mother did not see she was at risk. That must give rise to a concern that she did not see the harm she was creating for her children. That has been the reason why I have made the interim orders on the assumption there has been a significant change which could only be good for B and C. That is “the platform” earlier referred to.
On 31 October 2017, I made orders which have not been the subject of comment by the mother.
What gave rise to this dispute in the first place?
Returning then to the substantive issue just to make it clear that this was not just about a confused case preparation, the mother says that the two children gave vivid descriptions of inappropriate behaviour by the father including of a sexual nature such that at the time she heard them, she believed the events had occurred. In October 2017, when asked whether she had a firm belief that the father was touching the penis of B in an inappropriate way, said that she did have that firm belief.
The substantive factual case
There were repetitive statements by B which until the end of November 2016, had only been heard by the mother. After November 2016, B repeated statements to other people.
Despite denying all accusations of impropriety, the father was not cross-examined about any of the specifics to test whether something in his conduct might have explained the accusation or indeed, whether there was an alternative possible explanation.
The father was also not challenged about his capacity as a parent nor about the nature of his relationship with the children.
The mother’s solicitor began his approach to challenging the father by suggesting that he had said he would do anything for the children but had also said he would walk away from them. The question was presumably to test credibility but in the context of the frustration endured by the father arising from the mother’s unilateral actions, it reflected badly on the examiner. That then moved to the father being questioned about how he would have felt and what he would have done, had he been in the position that then faced the mother of having the child(ren) making the statements they did. That of course depended upon the probability that there was some foundation for the statements and how the parent reacted. The father handled the questions well indicating he would have questioned what had occurred to give rise to the problem. The one thing the mother did not do was contact the father. The cross-examination was not only ineffective it was also pointless.
What is the father’s position?
The father denies any inappropriate conduct. He pointed to B’s undisputed behavioural problems as an indication of a lack of attachment between mother and child. That possibility has now been rejected by two psychologists and there is no reason for me to contemplate it further.
The father asserts that the mother’s implacable belief has reached the point that she will not countenance any alternative possibility, thereby placing the emotional health and well-being of the children at risk. There is much to be said for his position. Despite the suggestion of the Independent Children’s Lawyer of the need to adjourn the proceedings and make interim orders, the father maintained the only solution was to immediately remove the children from the mother’s care.
But even with that implacability, he appeared at times concerned about the impact of change on the children. He volunteered that, apart from the accusations against him, the mother was a good mother to the children. In one reflective moment, he proposed a week about arrangement but then abandoned that because of the schooling difficulties created by the geographical distances between the parents not to mention the concern expressed about the mother’s propensity to listen to B and report what he said. Ultimately, he settled upon the mother having weekend time.
Unlike the mother, I found the father reflective and child focused. Although argumentative (which is understandable having regard to what he has endured), I found him responsive and honest.
The mother as a witness
The mother was not prepared to listen to an alternate view. As the father’s counsel did not press her in respect of credibility, I do not find her dishonest. When she gave evidence on 6 February 2018, the mother was still of the view that she was simply doing what she was told to do by professionals including lawyers. Her attitude to her own family’s unreasonable and strident attitude to the father and the prospect of them making “notifications” was concerning. Her answer to what might happen in the future if these statements again arise was simply to refer to Dr D for assistance. Dr D made clear that is not his role. The mother has a long way to go to establish that she understands the future risks to B and C .
The father’s relationship with the children
All of the objective evidence pointed to a happy, loving and caring relationship between the father and the children but the mother unilaterally, and in a high-handed way, thwarted it. I find that the orders of the court in 2014 were designed to ensure a significant involvement of the father in the children’s lives and because of their ages at that time, there had to be consultation about change. I am not optimistic there is any possibility now of future dialogue.
The issues in the October trial
The case had two major (and various minor) issues. The first was whether there was an unacceptable risk of harm to the children by them being exposed to time with their father. Significantly, at least for a number of months, the father’s time with the children had been supervised but even then, the statements of B continued to flow.
The second issue was whether, if there was no unacceptable risk in the father’s care, was there such a risk in the mother’s care because of the disruption to the father’s relationship.
Some of the important events from the evidence
After the July 2014 orders, the father spent time with the children. The mother kept a diary. It was not produced other than in the form of excerpts. Inappropriately and unhelpfully, many documents of the mother from the court file were said to be relied upon; they had no apparent relevance to the issues. It would seem that the mother’s practitioners had not read the orders of August when the case was set down for final hearing.
The diary excerpts were found in an earlier affidavit but strikingly, the context for almost all was not apparent. In addition, their relevance was questionable and what the mother wanted the court to do with it, remained obscure.
Some of the entries will suffice as the mother was at pains to observe that she was not saying that they were incidents of sexual abuse but that something had happened in the father’s house to make the children copy behaviour there seen. That was a difficult concept as she had not spoken to the father about this behaviour. But what should have been a warning to her and the catalyst to discuss matters with the father, she engaged professionals who dismissed the behaviour as innocent child behaviour. That said, there was common ground that B was behaving erratically.
The quotes that follow have been taken directly from the mother’s affidavit.
In October 2014, B and C were in the bath. B was four years of age and C two and a half. B said:
My doodle hurts because I am sticking the handle up my bottom.
C said:
I will stick the handle in my vagina. I will stick this toy up my bottom.
Absent context, not to mention the totality of what was said, the statement was of no relevance in explaining why it was being said or of its relevance to what the court now knows. The demeanour of the children and the language capacity of the children were not explored. Having heard what C said, the mother asked:
Who said that?
Context in this instance would be important. Asking a question such as that just mentioned, makes no sense. Neither of the children had mentioned anything about some other person doing the things that they were describing. In response to the mother’s question however, she said that C said “Daddy”. I fail to understand the relevance.
On 7 November 2014, the mother reported speaking to the children whilst they were in their father’s care to say goodnight to them. C said her father had hopped in the bath and they had a “special cuddle” and “lollipops”. This was sufficiently important to be recorded in her diary but having been copied into the affidavit, it is legitimate to ask its relevance for admissibility purposes. The mother did not speak to the father about it so there was no way at that time for her to understand whether indeed what her daughter was explaining, occurred. It can therefore have no immediate relevance. No objection was taken to this evidence by the father but nor was there any cross-examination of him to suggest that “special cuddle” or “lollipops” has some sinister connotation. In a case as serious as one involving allegations of sexual harm to children, the court deserves better.
By 10 November 2014, both children were back with the mother. She recorded in the diary that B said to her, when she was changing her shirt:
Nice boobies, can I kiss them?
But she added that C was “continually touching and wiping between my legs”. C was playing with toys and referring to touching her “red doodle” and her “white doodle”. Was the inference the mother intended drawn that this was adult conversation and concepts? Nothing was said by the mother about the language ability of the child at that time nor anything about what B had then understood of the concept of “boobies”. Was that a word she used? I have no idea and the context was not explored.
A similar thing happened on the following day, 11 November 2014, with B being recorded in the diary as passing a woman in the street saying:
When I grow up I’m going to kiss a woman because I like kissing women.
Later at home, B said:
I’m going to open up your clothes and take them off and kiss you everywhere and kiss your boobies.
The mother asked B where he got that from, presumably meaning the concept as well as the language, and B replied:
Daddy at bed time.
The probative value of this sort of evidence taken in isolation ought to be obvious but as part of a larger narrative, what conclusion is supposed to be drawn?
The first DHS report 2014
On or around 12 November 2014, the first of four significant reports by the mother was made to the Department of Health and Human Services. The court has the benefit of a collation of the Department’s file entries prepared pursuant to an order. The report is dated 27 July 2017 and chronologically sets out the investigations of the Department and their various conclusions. Pursuant to s 69ZW of the Act and specifically s 69ZW(5) that evidence is admitted.
The first report was that the children were engaging in “inappropriate sexualised behaviours” after their contact with the father. That conclusion could only have arisen from what the mother told the Department and her diary entries if the Department knew of the details. I am cautious about drawing the conclusion that the Department understood the mother was alleging sexual abuse because she has maintained the behaviour was for control rather than gratification but the statement by the Department must indicate that the staff were not examining the protective issue from that perspective.
As a result of the mother’s “notification”, the Department contacted police who advised that no further action would be taken as “the behaviours were most likely to be age appropriate”. The Department was not just fobbing off the problem; they had brought in the police. B’s kindergarten was also contacted and they advised he had not displayed any inappropriate sexualised behaviours to warrant concerns. The kindergarten advised B presented as very young for his age and that he struggled to socialise. The kindergarten thought B was not ready to progress to the next level which would have been a four year old kindergarten. The Department knew that the children had already been linked into SECASA .
The Department notes which were not said to be inaccurate. They indicated that the mother told them she intended to suspend contact and, more importantly, that the father could then apply to the Family Law Court. I find this incident reflects badly on the mother. She was told the behaviour she had witnessed was normal for children. The father was being challenged by the mother to do something about his relationship with the children in circumstances where he had court orders and, based on the Department’s view, there was nothing to warrant their intervention.
The mother’s position when cross-examined about her attitude to orders, was that she was advised “legally”, she should stop contact. I clarified with her that this advice came from her lawyers. No corroborating evidence was called. Nothing in the file of the Department would seem to indicate that such advice was given and it is difficult to understand how a lawyer would where orders were recent. The attitude of the Department and the Police was clear that what the mother was witnessing was normal childhood conduct.
It is also timely to remember that attached to the 2014 orders (and in this case it is paragraph 10 of the orders of 15 July 2014) reference was made to s 65DA(2) and s 62B and to the “Fact Sheet” attached to the order. In this case, that relevantly read:
Your legal obligations
■You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order (see details above).
■The order remains in force until a new parenting order or parenting plan changes it in some way.
■Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations, you enter into a parenting plan with the other party.
■Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.
In re-examination, the mother’s solicitor asked specifically about the advice she was given. The mother’s position was and remains, she was not only told to report these behaviours but also had to act protectively by stopping the father’s time. Nothing corroborates either of those concepts.
On 13 November 2014, the mother’s solicitors wrote to the father describing “concerning behaviour” observed since the previous August which the mother considered “out of the ordinary” for the children. The letter said that she had contacted the Department of Human Services and pending that investigation, the children would not spend time with the father under the 2014 orders. The letter had an enclosure purporting to replicate the mother’s diary entries but I doubt the correctness of that. A fair reading of the letter would have given the father no idea what the “concerning behaviour” was or what was “out of the ordinary”. The father had cared for the children under limited circumstances to that point so he should have been a good resource for the mother to see whether he too saw “out of the ordinary” behaviour. The mother left the father in the dark.
As to why she did not contact him, she said that she knew him “quite well” and his reaction would have been defensive but she quickly added that she did not want to “accuse” him. That answer did not make sense because she had done that by suspending his time unilaterally.
The mother said she emailed her notes to her solicitors who selected what they wanted to tell the father. I am perplexed about the professionalism of that if it is correct. This letter is consistent with the mother’s evidence about her confused state of what she should be doing. In his 2018 evidence, Dr D said that the mother felt “hijacked” and she told him she felt uncomfortable with what the lawyers were doing. The difficulty I have with that is that she must have known the confusion the letter would have caused in the father’s mind and she took no steps to ameliorate it. It is to be remembered that she told the Department that, having stopped the father’s time, he could make the effort to get his contact back on foot again. That suggests a malevolent intention.
Further allegations
Despite the professionals closing their files, the mother continued to record her notes. She said that on 18 November 2014, B came into her bed and said “when I get big I can kiss boys” She said he started “touching and rubbing” her between her legs and telling her to be very still and quiet and not to worry because it would not hurt. In the context of advice that B’s previously reported behaviour was just childhood conduct, the mother said she was in shock about what B was now doing. I find she wanted the court to accept was that this was B participating in adult sexualised behaviour and that he had learned it from the father. There is no other explanation open. Having seen what he was doing, the mother said B told her:
And if you don’t want to, you can find a lively woman with no boobies to lick and kiss.
This was not long after the Department investigation and the police advice that the reported behaviour was childish behaviour but this incident had a distinct sexualised content.
Further notes in December 2014 included:
· C saying “can I stick salt up my bum?”
· B trying to open her shirt and lick her breasts;
· B, naked before having his bath, was “simulating” shaving his testicles with a set of keys saying “trim trim trim”.
At this same time, B was a troubled boy. He was urinating and defecating all over the house and hiding. In the context of what the Department learned from the kindergarten, they too saw an immature child but no-one saw this as linked to something the father had done.
The diary entries then reveal that B had an erection wearing tracksuit pants which he had pulled down and (presumably) to the mother said “Touch it”. She said that she told B not to touch other people’s “doodles” but she reported that B then started touching her between the legs. What she then said and did remained unsaid. As evidence, it was unhelpful.
Psychologist Ms F
The mother contacted the Department again and they spoke to B but their outcome indicated “no disclosure”. They then referred the mother to Ms F who is a forensic psychologist with many years’ experience including giving evidence in this court. Her evidence was not led by the mother. It was left to counsel for the Independent Children’s Lawyer to tease out Ms F’s views and involvement operating from subpoenaed material. In the meantime, the father continued not to have time with the children until Ms F apparently arranged its resumption.
The mother claimed that the father would not allow Ms F to observe any interaction with, or have a consultation with, B. The mother’s assertion of the father’s resistance did not withstand scrutiny. Emails were produced to show there was correspondence between the father and Ms F and it was obvious that he did want to have it happen but there had been a miscommunication about the timing. I accept the father’s version of those facts.
The mother made more reports to the Department between 5 December 2014 and 12 December 2014 about inappropriate sexualised behaviour but this time, it involved C as well as B.
According to Departmental notes, the Department contacted Ms F who confirmed she was aware of the concerns but she told them she had developed a plan with the parents so that the father had time with the children only during the day. She told them of the mother’s anxiety but in her view, the information did not indicate sexual harm to either child. It will be evident that despite the mother’s unilateral action and her high-handed approach, the father had been willing to participate with Mr F. Ms F was aware of the statements of B and C and she did not link them with any inappropriate conduct of the father.
The mother then recorded (again without context) that the “themes” of Ms F were “boundaries”. She noted discussion about “inappropriate movies” which frightened the children and gave them nightmares but also lack of cooperation by the father with toilet training. The father responded to some of these vague issues and denied the children watched these movies. In any event, the mother’s advocate did not cross-examine him about those matters so there is no reason for me to find he exposed the children to inappropriate media.
The Department noted, and seemed content, that the mother had approached SECASA to seek information and education about protective behaviours. By the end of December 2014, the Department had concluded that there were concerns about B’s behaviour but nothing to indicate exposure to sexual harm. They viewed his behaviour as age-appropriate.
For the year between December 2014 and December 2015, the mother recorded nothing in her affidavit relating to sexualised behaviour. However in cross-examination, she said the children behaved in the same way during that period. During that time, the attendances on Ms F continued and although her evidence was not before the court, it seems on Ms F’s advice, the mother removed B from kindergarten and kept him at home with activities for the purposes of “removing separate households as a reason for the poor behaviour”. On the mother’s assessment however, the children’s behaviour escalated, their sleep was interrupted and B was becoming more and more angry, disoriented and anxious. She gave a vivid description of the sexualised behaviour of both children around December 2015. However, there nothing in her evidence to indicate that the children experienced separation anxiety going to their father nor indications of his parenting incompetence when they returned. On the other hand, the father’s description was of the children having a good time. Of B, the father described no violent behaviour towards animals nor were there any problems with C. He saw no sexualised behaviour and nothing of the violent nature described by the mother. That too was not challenged.
One incident however, but not one that the mother had raised with the father, was said to be that the father used the derogatory term “nigger” in front of the children and instructed C to call her doll a “nigger”. The father’s responsive evidence was that he had never used that terminology and in his view, the allegation was “outrageous”. Rather than leaving it alone, and putting it down as a matter for testing at trial, the mother replied:
This is consistent with (the father’s) highly racist and derogatory disposition.
That response was not only unnecessary but inconsistent with the father’s denial. That affidavit was settled by her lawyer and I query how that could satisfy any test of relevance.
The father described caring for the children including taking them to a restaurant after going to a park. He described them doing colouring at the restaurant. All of this had an aura of settled and calm domesticity about it. He described that both C and he were lactose intolerant and how he dealt with that issue but the mother was not satisfied with that. She said that lactose free milk caused C to become constipated because she did not tolerate the protein. Curiously, nothing was said by either party about any joint medical appointment or discussion with Ms F about a joint parenting approach to such issues.
The father was not above stirring the issue either although he perhaps an excuse in that he was not assisted by lawyers. In relation to B’s angry behaviour, the father opined:
If [B] is angry with his mother then it is because she is so limiting with his time with me and discourages him from normal boy-like behaviour.
The mother could not let that alone either. She replied by indicating that B was engaged in tennis, soccer, Auskick, hip hop and was about to get a belt in karate. She said she did not like him being involved in boxing (something the father saw as a child activity) because of his violent behaviours. Her view was that as a way to find a healthy outlet for B’s energy, she had pillow fights with him at home instead. I remain mystified about the philosophical difference between the two concepts.
By December 2015, the parenting styles were remarkably different and there was no communication. To the extent that any form of common parenting might assist these children, and in particular B, it was not obvious. But, the distinction was that in the father’s household, both children were settled and had no behavioural problems; that was not the case in the mother’s home.
From December 2015 onwards, the mother expressed concerns that C was asking B to look at her vagina when she wore no underwear and was taking him into another room and asking him to touch her genitalia. She described C as exposing herself particularly to males who were not identified.
The mother’s May 2017 affidavit was headed “Risk issues of a sexualised kind”. These same matters were included in her Notice of Risk of Child Abuse or Family Violence. I do not accept that she was not accusing the father of sexual abuse.
Throughout early 2016, the mother’s focus was on the anger of B. It again seems this was not the subject of any discussion with the father through Ms F. If there were such discussions and advice, the court was not told.
In May 2016 the Department received a further “notification”. This time it was described as the children being exposed to significant emotional harm as a result of the father’s contact. The report said that B was being “taught” to be violent resulting in physical aggression towards his mother. The assessment of the Department was not only enlightening but consistent with the earlier views of Ms F. The Department wrote:
It was assessed that [B’s] aggression towards his mother was more likely to have risen due to him struggling to deal with his parent’s separation.
The mother continued to note sexualised behaviour. Anything associated with the genitalia of the children was seen by the mother as sexualised behaviour. She noted B exposing himself to her, stroking his anus and telling her it was itchy and both children on all fours arching their backs and sticking their bottoms out. These entries show a link between the statement and the father. The accusation is evident in the notes. There does not appear to be any other person, let alone an independent one, having heard these statements or seen this conduct. B was seen by a paediatrician but apart from a referral to psychologist Dr G, I know nothing more. I do not know whether the paediatrician was told all of what happened and what, if any, advice the mother was given. I do not know why a paediatrician was needed. It seems logical that this professional saw the problems of B as behavioural such as to refer the mother to Dr G.
Dr G
Dr G is a registered clinical psychologist. The solicitors for the mother filed an affidavit by Dr G sworn on 6 May 2017. The contents of the report of Dr G were therefore known at the time that this case was set down for trial.
The affidavit of Dr G does not indicate her curriculum vitae other than a sloppy reference drawn by the solicitors to the fact that her qualifications were listed at the end of her report. That was simply her qualifications underneath her signature.
Dr G was not required for cross-examination by either the Independent Children’s Lawyer or the father. The solicitor for the mother began the trial by asking for an adjournment because of the inability of Dr G to attend as a result of advanced pregnancy. I understood that he wanted her at court but I was not told why. It transpired that no-one had given her notice to attend. If it was intended to expand upon her evidence, one wonders why an affidavit was not properly done.
In a letter that was simply headed “To Whom It May Concern” attached to an affidavit, Dr G noted that B had been referred to her for treatment and management of his longstanding anxiety and behavioural issues (my emphasis). That statement confirms in my mind why the paediatrician made the referral but it also raises questions of whether there was a concern by anyone other than the mother about sexualised behaviour and more importantly, sexual abuse. The issues for Dr G to address were reported as arising following contact weekends with his father but that could hardly be seen as accurate in the light of the referral.
Dr G was under no misapprehension about the mother’s position because in her notes, she recorded the mother being concerned about B having baths with his father, sharing a bed with his father and being exposed to sexually explicit and violent media. She recorded the mother saying that C had requested the father cuddle her whilst he was on the toilet. Having received those “details”, Dr G wrote:
It should be noted that [B] did not outline such details to me at the time his mother reported them but [B’s] clinical presentation at the time was consistent with his mother’s reports.
It is hard to know what to conclude from that statement particularly by reference to the observation about C cuddling her father. It is difficult to know what to conclude if B did not say that he resisted sleeping with his father or having baths with his father. If B and C were together on a contact weekend when this bathing occurred, where was C?
It is also difficult to understand how those reported behaviours are consistent with a clinical presentation when the presentation was not described.
Between August 2016 and April 2017, Dr G had 13 consultations with B. Dr G said that the focus and goal of her treatment was to enhance B’s understanding of his worries in an effort to reduce his anxiety and anger. In addition, support was given to B’s mother around behaviour management strategies at home. Bearing in mind that this program of assistance began in August 2016, on the mother’s evidence, it would be hard to conclude that it was successful. In November 2016, the mother recorded that B poured her glass of wine on the floor whilst punching and kicking her and noted the children were singing explicit songs.
The Department of Health and Human Services received a notification immediately after Dr G began her work. This one was specific to the children being at risk of exposure to inappropriate sexual acts by the father’s housemate. The matter was reported by the Department to the police and the same issues as previously raised, were canvassed again about sexualised behaviour. There was also a concern expressed about the father’s alcohol use.
What was not said by the notifier nor indeed mentioned by the mother until cross-examination, was that whilst that this new housemate was a homosexual, he just happened to be B’s godparent. It was not said why this man was sufficiently appropriate to be a godparent yet after the man went to live with the father, his sexuality became an issue. The mother confirmed that she had made the report to the Department. She then confirmed that she had spoken to Ms F and that what B had told his mother was that the house was dirty and that there were beer cans everywhere. The mother was critical of Ms F for failing to get to the bottom of that. More importantly, if the real issue was hygiene, why was the notification about sexual issues? The absence of an explanation highlights the confusion created by the mother.
In August 2016 the mother told Dr G that Ms F raised the question of whether the problem that B was having was connected to an insecure attachment. Dr G immediately dismissed that possibility. Although no such indication appears in her report, I am confident that was her view because Family Consultant Dr E maintained that a proper assessment would first be required.
The police welfare check
On 13 October 2017, the mother called the Department to report that on 11 October 2017 B said that his father had touched him inappropriately whilst his hand was under a doona cover whilst he was being watched by the grandfather.
Unlike the impression created in the October hearing of B making a complaint about his father as the court was told, the police report said that B had told the mother four times that week of inappropriate touching.
It is not clear how the police became involved but a fair reading of the report would suggest they anticipated a joint Department and police visit but they could not gather the Department’s resources that night.
The significance of this report has to be carefully weighed having regard to the mother’s evidence about control rather than sexual gratification but there can be no doubt the police understood that she was accusing the father of sexual abuse. The mother’s position as discussed with the police was that she had no choice but to allow the children to go because of the court order. That order was made on 2 August 2017 with the mother’s consent and at a time when she was represented by a solicitor. Thus, the complaint to the police was curious if not mischievous.
Two officers went to check on the children that night. B was asleep but at the insistence of the police, he was woken. On the description of the father which was not challenged, B was confused and distressed. However, according to the police report, B told him that his father “had never hurt him and he was not worried about anything”. The police officer thought the setting was not ideal but it did not take long and they left satisfied. Indeed, the officer recorded B appeared well cared for.
The mother expressed surprise by this visit saying that she had not asked for such an intervention. Having regard to the history of seven reports to the Department, and her knowledge that the Department usually involved the police in sexual abuse allegation matters, her expression of surprise is shallow.
The episode in October 2017 is concerning but not only was B disturbed by what had occurred but so was the father’s time.
More allegations
The mother complained that words used by C had been taken from a pop song by the father and somehow turned into an inappropriate song. The father’s explanation was specific about C’s level of language skills and when tested about the words in cross-examination, I found his explanation plausible and have accepted it. Nothing in the cross-examination of the father by the mother’s solicitor indicated he was being untruthful.
Another of the mother’s complaints was that the children told her that they were in the toilet with him including being on his lap. The father was cross-examined about this too and, having regard to the ages of the children, I accept his explanation was entirely innocent. The same applied to the mother’s concern about the children watching an inappropriate movie; again, when cross-examined, he was able to tell me what things the children had watched and any question of his evidence being incorrect was not taken further.
With all of the matters set out above, it is trite to say that I found the suggestion that there was other evidence remarkable. The solicitor said that there were emails in the mother’s possession and yet she had not produced them. In circumstances where throughout the substantial part of 2016 and 2017 the father had been representing himself and the mother was represented by solicitors, that sort of comment is not only confusing but it is also concerning in circumstances where the mother says that she was getting conflicting advice. It gave rise to a comment which I now repeat that to the extent that the mother was funded by a legal aid grant, questions need to be asked about how that grant was applied. She could be justifiably concerned that her case would be objectively viewed as disjointed particularly in the context of a directions hearing on 1 August when I canvassed all of the issues with her then solicitor.
In addition, if the father's explanation was implausible (and it was contained in his trial affidavit), why was not Ms F called. If she was unavailable as I suspect (as no approach had been made to her to be a witness) nothing was put into evidence from her notes even at the time that the submission just mentioned was made.
The inappropriate touching allegations
It was left to counsel for the Independent Children’s Lawyer to put to the father each of the allegations about inappropriate touching including in public places and under the watchful eye of his father who had given an undertaking as to the responsibilities of a supervisor. The father did not deviate from his sworn evidence. There is therefore no basis for me to reject it as it was plausible and not challenged.
The father gave evidence about his current working environment and his capacity to care for the children because he worked from home; he explained his flexibility. None of that was challenged by the mother and accordingly, I have no reason to doubt it. That also becomes relevant below on what sort of interim orders should be made as I must conclude that if the father has the capacity to manage the fulltime care of the children, he can certainly manage their part time care. His capacity to arrange his work life around the children is also the basis not to make any immediate moves of the children’s schools.
The father’s anger and frustration
I have no doubt the father’s reaction was one of anger and frustration. Not long before the final trial began, he wrote an email to the mother’s solicitor and made attempts to contact the mother’s brother about the position the brother had adopted. The attempt to contact the brother was after a text message was sent to the brother criticising him for not endeavouring to restrain the family’s disruption of B’s relationship with his father. As the text message was not answered by the brother, the father then began ringing and left one voice message, the details of which were not disclosed (and the brother did not seem to remember the details notwithstanding it was only some days before giving evidence) and that culminated in the brother making an application for an intervention order. I am unaware of the outcome of that but having regard to all that has happened and in particular, the view I have taken of the brother, I would not criticize the father.
The significant evidence of the family consultant
Dr E reported that she read extensively from the voluminous file including documents upon which the parties did not rely. No-one challenged her opinion based upon having possibly been misled by any of that material. She had the benefit which the court did not have, of reading the records of Dr G and endeavouring to understand what was being treated. To the extent that my questions about Dr G remained unanswered, the mother’s solicitor could have questioned Dr E to give strength to the report of Dr G.
Dr E conceded that a reading of the Dr G report would not have given any indication of what was happening in terms of treatment. The mother told Dr E that the father had and continues to use the children to “upset” her. She told Dr E that the father might be attempting to influence the children but conceded he had not directly threatened or intimidated her except for the one occasion that she described again in the court that occurred outside the corridor of the court room when the father gave her a “disconcerting” look.
The mother told Dr E also that she had endeavoured to obtain an intervention order during the period she had denied the father’s time with the children because she did not want him to attend the school and kindergarten to discuss things with the children. I find that approach indicates a significant degree of panic. It is particularly relevant in circumstances where experts such as the Department investigators and the police SOCIT unit interviewers all indicate the children are not at risk in the father’s care.
Insofar as psychologist Ms F had raised the subject of a potential attachment problem between B and the mother, Dr E rejected that as a possibility because there was no indication that a proper assessment had been done. She certainly acknowledged that in B’s case, he had not seen his parents together for many years and in C’s case, the separation occurred when she was a baby. She questioned whether it was sensible to have had the contact regime that had been agreed upon in 2014. The stability of the relationship between the children and both parents was no doubt compromised by the various changes all of which were unilaterally imposed by the mother.
At [55] of her report, Dr E noted that the mother reported that since the overnight time had resumed, things had settled down but that B made a further “disclosure” thereafter. Dr E interviewed the parties on 21 September 2017 and read the affidavit material on the court file up until that time. She obviously could not have known about the police welfare check in October so to that extent, even if things had “settled down” as described by the mother, the allegations continued.
Dr E probed the mother as to her views about the father’s behaviour as she saw it. At [59] Dr E recorded that the mother saw the father as a risk to the children because he was unable to control his “reactions” particularly those directed at her. Consistent with the way her solicitor opened her case, the mother told Dr E that she wanted the father’s time supervised. I find this issue confusing. On 27 October 2017 on day two of the hearing, her solicitor announced that he had new proposals. This proposal was said to be “consistent” with the Department of Health and Human Services plan. Whatever that “consistency” was meant to be, what was announced was that the father could have unsupervised time contingent upon both parents going to therapeutic counselling with the one joint professional. There were undoubtedly peripheral things such as bedding but the mother’s position was that on the basis of that arrangement, she would undertake not to contact the Department. However, her fall-back position was concerning because she substituted going to SECASA instead to indicating that she would seek directions about any statements that the children made. Now, in February 2018, her position is that she will seek the assistance of Dr D who has made clear that is not his role.
The family consultant was aware of that proposal in giving evidence.
To the family consultant however, the mother had contemplated moving to unsupervised time dependent upon how the children were “coping”. There was no indication of how that would be assessed and by whom. She was looking for an improvement in the “mental health and controlled outbursts” of B. Remarkably, since October 2017, these have disappeared.
In relation to communication between the parents, the mother made it clear that she would begrudgingly contact the father.
Dr E then interviewed the father. She saw frustration and underlying distress. In relation to the allegations of sexual abuse, Dr E noted that the father denied any form of sexual activity with the children and reported feelings of disgust of being so accused. His explanation for why it was happening was that there was a pattern to the allegations increasing in severity over time. He described them as the mother being fixated on removing him from the children’s lives and he was unsure why. I now accept that has been the mother’s position.
The Department interviewed the mother and they wrote that she had wanted the father out of the children’s lives. When that was put to the mother in cross-examination she denied it was an accurate record of what she had said. It is certainly inconsistent with what she articulates as a need for the father to have a role but I find her actions speak louder than her words. That conclusion could be drawn from the fact that after unilaterally terminating contact, in 2014, the mother saw it as the father’s responsibility to make the application to the court to get the contact started again. In 2017, having stopped the time, it only resumed when the father agreed to a form of supervision initially from a so called professional supervisor and later by the grandparents. In both cases however, the mother did not accept that the supervision had successfully prevented the father from behaving inappropriately with B.
The father also reported to Dr E of problems at the changeovers. Evidence before the court shows that the mother insisted that both parents be present and was only disavowed of that view on seeing the formal court documents. Dr E interviewed B who she found shy and anxious, clinging to his maternal grandmother and resisting separation. Once separated, he settled quickly. He was described as happy, talkative and appeared comfortable talking about his family with no obvious signs of distress. He did not know why he was attending the interview. To the extent that any inquiry was made by Dr E of B about the allegations, she reported that no disclosures were made and B did not exhibit any unusual behaviours. The solicitor for the mother did not test Dr E about how she concluded any of that so I have accepted her evidence.
C presented to Dr E as far less anxious than B and she seemed easily settled.
Both children were observed to have a close relationship with both parents. Dr E opined that B’s behaviour as disclosed by the mother was concerning but that it led to different interpretations. She was of the view that it was reportedly stemming from difficulties coping with the transition from time with the father and she considered that it could be viewed in a continuum with the behaviour ranging from developmentally appropriate reactions to changes in routine and parental separation to indeed, concerning sexualised behaviour.
Dr E said that consideration needed to be given to alternative explanations as to the origins of B’s behaviour. In her opinion, it could not be deduced that the statements were proof of sexual abuse occurring in the care of the father. She described some of the comments as ambiguous given their context but significantly, she saw that the statements and behaviours explainable by B being of a “highly suggestable age”. That is consistent with the mother’s explanation to Dr G that B had a wild imagination. Indeed, she went further to Dr G and described him as telling lies at times. It also puts into context the danger in what the maternal uncle was doing and the need to ascertain how Dr G dealt with B on 6 December after his months of silence on these allegations.
Dr E queried whether some of the statements made by B arose from leading questions which she said, “increases the likelihood of affirmative responses”.
Combined with the highly suggestable age of B and the consistency with which the statements were made, leading questions were a problem. Notwithstanding the caution expressed by Dr G, the rejection of the probability of misconduct by Ms F and the dismissal of the behaviour of the Department as simply being age-appropriate behaviour, the mother continued to press B rather than dismiss or suspend acceptance of his allegations. It was clearly not helped in this case by the views adopted by the maternal grandmother and the maternal uncle.
At the time of the interviews in September, the mother was seeking supervision of the father’s time for three years and as I have indicated, that changed to six months. The family consultant said that there was no empirical evidence to support a three year supervision and quite frankly, nothing to support six months either.
In the view of the family consultant, the mother was unlikely to be dissuaded by evidence and recommendations that contradict her position including as she opined, a determination by the court. In evidence, the mother said that she would accept whatever the court said but I reject that on the basis that she has no other way of dealing with statements by B other than by noting them, reporting them and accepting them as having a foundation. In addition, she is supported in that conclusion by her mother who took the view that those matters had to be reported.
As the family consultant opined, that sort of conduct has an inherent risk of emotional and psychological harm to the children through unnecessary service intervention and forensic interviewing. Whilst the police interview in October may not have been of a forensic nature, it was certainly disruptive. That is particularly so where he has been consistently described as shy when approached to be interviewed.
The family consultant’s evidence was that exposure to this sort of disruption can lead the children to pathologise their feelings and emotions and increase anxiety.
All of that has led to the mother demonstrating unwillingness to foster a positive relationship between the children and the father. The inconsistency in her position in September and through the hearing, was not adequately explained. When she was recalled for further evidence on Monday 30 October 2017, she said that she had been getting inconsistent advice from her lawyers. That is a matter that she can take up at another time and place but there may be some substance to what she says if the outline of argument document is any indication. It failed to address the real problem in this case.
Dr E also noted that the timing of the allegations was also significant coinciding with the resumption of overnight time and then once that had commenced, the allegations continued.
The new evidence
An affidavit was filed by the mother on 22 December 2017 at which time, she had instructed new solicitors for the purposes of complying with the order made when the trial was adjourned in October 2017 and “by way of update to the Court”.
At the time the mother filed the affidavit, she had not seen the results of the subpoenae that she had her solicitors issue but it would seem that that did not matter.
As for her beliefs about the reporting of the statements of the children, she went back over much of the evidence that was given in the trial. Of the meetings she had with Detective J of the SOCIT unit in November 2016, she said she was asked whether the father knew of the statements made by B. She said she explained that she had told Ms F and then emailed the father to tell him to contact Ms F. I have raised concern earlier about that convoluted way of getting back to the bottom of what B was saying. In any event, she said she asked the detective whether telling the father what B had said would make the police investigation difficult and her recollection was that the detective replied:
That’s our problem.
The mother conceded that none of the conversation mentioned appears in the notes of the police. However, she maintained that it still her recollection of what was told. I do not accept that.
The mother’s view was that the day after B was interviewed, the detective suggested she could bring him back on another day when he was not so shy in declining to talk. The absence of formal corroboration of not just the conversation with the police officer but the very fact that they would take that approach, does not sit comfortably with the mother’s own evidence that when she did contact them immediately thereafter, they declined to undertake the interview.
As is now self-evident, an interview occurred two months later but nothing has been said as to what then happened. In this affidavit, no mention is made about what B said other than that he “completed a disclosure interview and made a visual and audio recording of evidence statement”. That document was not produced.
In the recent affidavit, the mother obliquely refers to the submissions made by her previous lawyer but it was not until counsel indicated that the statements were not consistent with what the solicitor had said on 31 October 2017 that the mother’s position became clearer.
The most important statement that came out of the mother’s affidavit was that she is now working with psychologist Dr D to whom I have earlier referred. When she was asked about her attendances, she said that Dr D was there for the children. She became obtuse in indicating that he was not there for her personal issues although the children were her personal issues. As far as she was concerned, the issues were in the “process of being resolved”.
When pressed about all of the material she had read and the people to whom she had spoken, she still expressed confusion about what she thought she should do. She maintained that she believed it was right to report yet the advice was clearly conflicting.
The mother’s belief as of February 2018 was still that she was unsure how she now thought. She maintained there was a small concern but acknowledged that the children’s behaviour had “improved immensely”. She said she had had no further statements of disclosures and B was sleeping through the night. She proffered that he could have fabricated things but her position was that there was still a doubt about the father.
I remain troubled about her evidence.
Dr D
Dr D is a psychologist with extensive experience including as a family consultant in this court. He had only a limited history from the mother but by the time he gave evidence, he had read more widely. He explained the various sessions that he had had. Significantly, Dr D said that the mother was encouraged to avoid reinforcing disclosures and to adopt an inherently neutral posture if the children were to make comments so to avoid biasing or otherwise reinforcing them. It is remarkable that this sort of concept had not been mentioned earlier having regard to all of the professionals that the mother had seen. Dr D provided her with information and strategies to respond to what the children said but of course, since 31 October, no such comments have been made.
In his clinical impressions, Dr D reinforced that his role was a therapeutic one and not an assessment one. He thought her engagement in treatment was entirely satisfactory and she had not been superficial in her engagement. Most significantly, he said:
Indeed, she appears a woman vastly unnerved by the prospect of a change in residence for her children, and keen to understand how her own behaviour may have contributed to this possibility arising.
That profound statement might be remarkable save for the fact that the mother’s position, at least until 31 October 2017, was that she was consistently told that she had to report statements and that B continued to make them but she also consistently said that she was confused about her legal advice. There is no evidence to suggest that what Dr D was quite properly putting in front of the mother was what she was hearing for the first time. Whilst that might fly in the face of the concerns expressed by the family consultant who gave evidence in 2017 and also what I understand Ms F was dealing with, Dr D described the mother as “pretty positive” but at the same time there was “considerable work to be done”. He said that he was encouraged that the mother would have skills to deal with all of these issues once his various sessions had been completed.
Dr D described the mother by disposition as a “fairly insecure person” who lacked confidence in her own abilities. He said:
There are potentially some anomalies in her own interpersonal style and emotional needs, and by extension, the way in which these children have attached to their mother. In all, it could be exactly these features that have fostered some of the behaviours she describes in the two children, particularly [B]. I suspect also these characteristics have contributed to problems in the co-parenting relationship, where (the mother) may come across as equivocal or non-committal or fail to provide certain pieces of information to the children’s father, or struggle to understand how her own conduct is interpreted by the other parent.
I accept the professional diagnosis of Dr D and having regard to his perception of the way she deals with the children along with the caution expressed by Dr E, I am convinced that the treatment by Dr D should be continued without any serious alterations to the existing orders made in October.
I make that finding on the basis that the mother at least articulates to Dr D that she recognises the need for the children to have a relationship with their father rather than the opposite. He described the mother as showing flexibility in her thinking and the capacity to reason and accommodate new/contradictory information. In his view, that assessment is inconsistent with the typical features of an alienating parent.
Ultimately Dr D said that his clinical impression of the mother more closely approximated that of a confused, anxious, uncertain parent attempting to gain support and acknowledgement around her concerns as opposed to a deeply pathological, highly concrete mother intent on disaffecting her children from their father. He thought that her position could change which could only benefit the children. I tentatively accept that but there appears much still to be done.
The statement by Dr D that there is considerable work to be done leaves me with the position that I ought review the situation again in the future. It would seem that Dr D will conclude his work in about two months’ time at the most. In my view, that will not give adequate time to assess whether there has been a change in her attitude in all of the aspects that Dr D mentioned. I consider four months is more likely to give a better indication because it will be some weeks after Dr D concludes his work during which the mother will have the skills that Dr D thinks he can provide but at the same time, she will have to negotiate and navigate a relationship with the father. It was abundantly clear from cross-examination of her on 6 February 2018 that she saw no prospect at this stage of communication with the father. That can be seen in her ideal solution of seeking advice from Dr D and using his resources in some way. As Dr D observed, that is impracticable and not his role. Sooner or later therefore, the mother has to face the prospect of working out a way of sorting out the arrangements with the father.
Counsel for the Independent Children’s Lawyer observed that the parties had managed to do that over the Christmas period and including in relation to the schooling pending these orders but I draw little comfort from that in the light of the evidence of Dr D at this stage.
In my view, it would not be in the best interests of the children to radically change what is now working having regard to the absence of complaints by B and the fact that both children have settled into a new regime smoothly.
School
Over the adjourned period, the father made arrangements with a local school nearby to him in case the children were removed from the mother’s care. Agreement had been reached that B and C would continue at the school near their mother but if by June, there is not a remarkably different approach from the mother, it may be that the option to change is necessary. I draw comfort from the fact that both children are very young and should easily transition to a different school.
The issue of schooling however gives rise to another problem associated with the proposal of the father that they change to a school near him. One way or the other, these children will be travelling for up to 45 minutes every second week. That travelling will be twice per day. I do not have evidence at the moment as to how well they have adjusted to that and whilst it may be inconvenient for the moment, I consider that is an issue that should be carefully considered in four months’ time.
It was the father’s position that there should be a change now but I refer back to his cross-examination at the end of October 2017 where he told the court that he would be living at the home of his parents because the children were familiar with that address. He said at the time that living there would give the children some grounding before looking for alternate accommodation. He may very well have been accurate about that because on the undisputed position of both parties, these children have settled into that regime extremely well.
Counsel for the Independent Children’s Lawyer at the time asked him whether or not he was contemplating a change of B’s school and he said that he would get advice about a good time to move them from their schools. I do not have that advice at the moment. He then went on to say that he would be willing to transport them to their present school and that he had not only the availability to do that but also his parents.
All of that cross-examination was in the context of a conclusion of the proceedings that day which was thwarted by the mother’s application for an adjournment and a reopening of the evidence. However, it shows the father in a positive light in that he put the children first and it seems to me that there is no evidence of inconvenience for him at the moment nor more importantly, the impact on the children of a change so early in the school year. In his evidence, the father also told the court that he had the capacity as a manager in his employment situation whereby he could do all of the work from home and meetings could be conducted electronically. That latter point could obviously fit around school days. Appointments could also fit around the period of time at least for the foreseeable future where the children are shared between the parents.
The father’s unchallenged evidence in October was that he had spoken to the Chief Executive Officer of his employer who was also working from home because he had his own children.
In the circumstances where I am troubled about whether there has been an epiphany for the mother, I do not see the inconvenience which did not trouble the father in October, as being a significant issue now.
The law
The court is now (again) asked to make a particular parenting order in relation to B and C. As such, the best interests of the children are the paramount (but not the only consideration) (s 60CA).
Part VII of the Act dictates how a particular parenting dispute should be determined with its emphasis on “best interests” principles. Section 60B of the Act provides the legislative objects which focus on the best interests of children being met by both of the parents having a meaningful involvement in the children’s lives consistent with the best interests of those children. Here I am satisfied the mother unilaterally endeavoured to exclude the father from having a meaningful relationship with the children. There are no better examples of that than her unilateral actions to simply cease his time but also to challenge him in 2014 to take court proceedings to get that time reinstated. I am not at all convinced at the moment that Dr D has yet found the answers.
Based upon all of the objective evidence that the father is protective and positive about the parenting role, he should have a meaningful involvement in the lives of these children to the extent that they benefit from it. The mother is the one who has thwarted that role without justification and her continued attempts to have the state intervene in the children’s lives gives rise to questions about her protective role at least in respect of the psychological welfare of these children.
Section 60B also provides as an object that the children be protected from psychological harm in various ways and nothing I have heard suggests that the father has not fulfilled that responsibility. I could not make the same finding at the moment about the mother.
There is no evidence outside of those particular allegations to indicate that both parents cannot provide for the physical needs of the children. It was not the mother’s case that the father had lacked capacity as a parent although in her most recent evidence, she suggested in cross-examination that there were “mixed messages between households confusing and upsetting” B. I do not know what that she meant because it was her evidence that things had gone smoothly. That too is a matter that I would like to have examined in a few months’ time.
All of the objectives in s 60B indicate that the father should be involved in the lives of B and C because he can meet those requirements.
Section 61DA requires the court to apply a presumption of equal shared parental responsibility when making a parenting order but in circumstances where an interim order is being made, the importance of s 61DA is less significant. I do not consider it appropriate at this stage to make any finding about whether the presumption is rebutted by the relevant parts of s 61DA in its two aspects. Accordingly, that is an issue that can wait.
The best interests of the children have to be examined through the eyes of s 60CC and the only issue there that has not already been covered by the same aspects as set out in s 60B relates to the protection of the children from harm. This raises the question of unacceptable risk. I am not in a position of finding at the moment about the mother presenting the children with an unacceptable risk of harm and as I earlier mentioned, the statement by counsel for the father does not make the position any easier. In my view, it is unnecessary for me to make any finding about that at this stage on a final basis but at the return of these proceedings, that will be a significant focus.
I find in the circumstances that it is in the best interests of the children to remain in the status quo albeit inconvenient to the father until the matter can be reviewed in June. In those circumstances, the orders pronounced this day are in my view, in the best interests of the children.
I certify that the preceding two hundred and seventy-five (275) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 February 2018.
Associate:
Date: 16 February 2018
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