BARBARO & SPALDING

[2018] FamCA 110

FAMILY COURT OF AUSTRALIA

BARBARO & SPALDING [2018] FamCA 110

FAMILY LAW – CHILDREN – Further interim parenting application – where the children require respite from ongoing conflict between their parents – where matter listed for urgent final hearing – where children to live with mother and spend supervised time with father pending trial

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Barbaro

RESPONDENT: Mr Spalding

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 10027 of 2011

DATE DELIVERED: 22 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers

SOLICITOR FOR THE APPLICANT: BGM Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Simonidis Steel Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lilley

Order

UNTIL FURTHER ORDER

1. The remainder of paragraph 17 and paragraph 18 of the Order made by this Honourable Court on 3 December 2013 be suspended (NB paragraphs 17.3 and 17.5 were discharged by Order on 7 July 2016).

2. Paragraphs 2, 3 and 4 of the Order made by this Honourable Court on 7 July 2016 be suspended.

3. The children D born … 2008, E born … 2009, B and C born … 2012 (“the children”) live with the mother.

4. The father spend time with the children at all such times as may be agreed between the parties and failing agreement each Sunday from 9.00 am to 5.00 pm to be supervised by Ms BB or such other person as may be nominated by the Independent Children’s Lawyer.

5. For the purpose of paragraph (4) herein the mother shall deliver the children to a place nominated by Ms BB at the time nominated by Ms BB and shall then depart forthwith and the mother shall return to collect the children at a place nominated by Ms BB and at a time nominated by Ms BB.

6. The father be at liberty to communicate with the children at such times and in such manner as agreed to between the parties and failing agreement the father be a liberty to send a letter, card or gift to each child via the mother’s postal address on no more than one occasion each week and the mother shall provide such items to the children on the day of receipt.

7. The mother be restrained and an injunction hereby issues restraining the mother from facilitating any of the children’s attendance upon any health or allied health professional (other than in the case of emergency) without the prior written agreement of the father save for facilitating the child D’s attendance upon Dr CC for any follow up appointments subsequent to the appointment that occurred on 17 February 2018 (agreement between the parties already having been reached that D should attend upon Dr CC).

8. The mother be restrained and an injunction hereby issues restraining the mother from facilitating any of the children’s attendance upon any member of the Queensland Police Service or any employee of the Department of Child Safety Youth and Women unless required by law to do so.

9. All extant interim applications be otherwise dismissed.

Trial date

1. The trial of this matter be listed before the Honourable Justice Carew at 10.00am on …April 2018 for a period of 4 days.

Court fees

1. The father shall pay the setting down and hearing fee by 4.00pm on 6 March 2018 unless a fee exemption application has been approved beforehand.

Filing material

1. The father shall file and serve any amended application and one affidavit of evidence in chief of himself and of any witness upon which he intends to rely by no later than 4.00pm on 6 March 2018.

2. The mother shall file and serve any amended response and one affidavit of evidence in chief of herself and of any witness upon which she intends to rely by no later than 4.00pm on 13 March 2018.

3. The Independent Children’s Lawyer shall file and serve any material upon which she intends to rely by no later than 4.00pm on 6 March 2018.

4. Any affidavit by the father or mother strictly in reply shall be filed and served no later than 4.00pm on 20 March 2018.

5. In the event that a party (including the Independent Children’s Lawyer) refers to an annexure or exhibit within the body of an affidavit of evidence in chief, any such annexure or exhibit is not to be annexed to or exhibited to the said affidavit but is to be included in an indexed and paginated folder (including a reference to the paragraph number within any affidavit where the annexure or exhibit is mentioned) and provided to the other party (including the Independent Children’s Lawyer) at the time of service of the affidavit AND a copy of the folder should be available to be tendered, if required, at the commencement of the trial.

6. Each party including the Independent Children’s Lawyer shall file and serve a case summary document no later than 4.00pm on 29 March 2018, including a chronology; list of applications or responses and affidavits to be relied upon at trial; list of any witnesses proposed to be called at trial pursuant to subpoena; and a summary of argument with any authorities relied upon.

Notification to Family Report Writer

1. The Independent Children’s Lawyer is requested to forthwith notify Dr DD and Mr F in writing of the trial dates and confirm their availability to give evidence on those dates, if required.

Compliance Hearing

1. The matter is listed before Registrar Coutts for a Compliance Hearing at 10:30am on 29 March 2018, at which time all parties including the Independent Children’s Lawyer should be able to inform the Court of the name of Counsel briefed to appear at trial (if any).

Subpoena

1. Upon leave being granted to inspect documents produced to this Honourable Court pursuant to subpoena (if not already granted) each party is to arrange a time with the Registry to inspect all such documents (including any recordings) as soon as reasonably practicable. 

2. After inspection of documents produced to this Honourable Court pursuant to subpoena, the father and mother shall each provide to the Independent Children’s Lawyer a detailed list of documents (sufficient to enable the Independent Children’s Lawyer to identify the document) requested by them to be included in a bundle of documents to be tendered at trial by consent no later than 4.00pm on 19 March 2018.  The Independent Children’s Lawyer is requested to then provide a proposed index of the documents to be included in the tender bundle to the parties by no later than 4.00pm on 23 March 2018, and have available to tender, the bundle indexed and paginated.

3. Leave is granted to only the Independent Children’s Lawyer to photocopy any documents produced by subpoena from Queensland Police Service and Department of Child Safety, Youth and Women and provide the photocopies to counsel for the father and mother (if any) with any costs associated with photocopying to be paid by the party receiving the copies and on the condition that the photocopies are returned to the Independent Children’s Lawyer at the conclusion of the trial.

Disclosure

1. Pursuant to Chapter 13 of the Family Law Rules 2004 (Cth) (“the Rules”) each party must comply with their ongoing duty to give full and frank disclosure of all information and documents (including recordings) relevant to an issue in the case, in a timely manner.

2. Pursuant to Rule 13.15 of the Rules each party must file and serve a written notice:

   (a)       Stating that the party

   (i)Has read Parts 13.1 and 13.2 of the Rules; and

   (ii)Is aware of the party’s duty to the court and each other party (including any Independent Children’s Lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner;

   (b)Undertaking to the court that, to the best of the party’s knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and

   (c)Acknowledging that a breach of the undertaking may be contempt of court.

Costs Disclosure (Rule 19.04)

1. No later than 4.00pm on 27 March 2018 the lawyer for each party must give the party a written notice of:   

   (a)The party's actual costs, both paid and owing, up to and including the trial; and

   (b)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.

2. On the first day of trial a party's lawyer must give to the court and each other party a copy of the said notice given to the party.

3. On the first day of trial the Independent Children’s Lawyer must give to the court and each party a written statement of the actual costs incurred by the Independent Children’s Lawyer up to and including the trial.

NOTATION:           

A.The purpose of paragraph (5) herein is to enable the children to transition between the mother and the father without the parents coming into contact.

B.The parties continue to be bound by the Orders made by this Honourable Court on 3 December 2013 and 7 July 2016 save where parts of those Orders have been suspended or discharged.

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  Barbaro & Spalding 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 BRISBANE

FILE NUMBER: BRC 10027  of 2011

Ms Barbaro

Applicant

And

Mr Spalding

Respondent

REASONS FOR JUDGMENT

1. On 7 July 2016 I made an interim parenting Order after a contested interim hearing in relation to four children, D born in 2008, E born in 2009 (“the boys”), B and C born in 2012 (“the girls”).

2. The effect of that order continued the arrangement that had been in place whereby the boys spent equal time with each parent on a weekly rotation and provided for an increasing regime for the girls such that they would spend alternate weekends and alternate Thursdays overnight with the father in the same week that the boys were living with him.  

3. The parties to the litigation, Mr Spalding (“the father”) and Ms Barbaro (“the mother”), are the parents of the children.

4. The mother now applies for the suspension of the 2016 parenting Order and for the father to spend only supervised time with the children. The father cross-applies for the children to live with him and spend supervised time with the mother.

5. All parties agreed that the matter required an urgent final hearing and accordingly their request was accommodated. The trial will commence on 3 April 2018 for four days.

proposals

1. The mother adopts the proposal made by the Independent Children’s Lawyer.

2. The father proposes that all children live with him and spend supervised time with the mother or if he is unsuccessful with his primary proposal he contends that the current Order should remain in place.

3. The Independent Children’s Lawyer proposes that the children live with the mother and spend weekly supervised time with the father; that he have telephone communication and that he be at liberty to attend school functions, extracurricular activities (something he and the mother are already at liberty to do pursuant to the 2013 Order) and send cards, letters, and gifts. The proposal includes an order relating to the attendance of D upon a Dr CC because the parties agreed for D to attend upon a psychiatrist on 17 February 2018. The Independent Children’s Lawyer submits that given the imminent trial dates there was no need for the children to continue to attend upon the psychologist, Ms EE, given that her involvement with the children has become contentious.  Accordingly, that part of the proposal was not pressed.

background

1. The father and mother commenced cohabitation in December 2007 and married in 2008. They separated in February 2011 and divorced on 29 June 2014. Neither parent is in a relationship.

2. Both parents live in close proximity to each other in Region H and the children attend local private schools.

3. In 2013 the parties consented to what appeared to be a final parenting Order that provided for the parents to have equal shared parental responsibility and for the boys to live week about with each parent and for the girls to spend gradually increasing time with the father. The 2013 Order also provided for a review of the girls’ situation with the assistance of mediation.

4. In January 2015 the parties attended mediation and it was agreed that the girls’ time with the father would increase and include overnight time which commenced in November 2015.

5. During the period February 2016 to May 2016 the boys lived with the father and did not see the mother or the girls and did not attend school. During the same period the girls lived with the mother and did not see the father or boys and did not attend kindergarten. This situation arose as a result of allegations made by each party against the other involving abuse and neglect of the children.

6. At that time child protection authorities investigated the allegations and it was determined that no further action would be taken. There was a suspicion expressed by authorities that the girls were being coached to make allegations by one or both parents.

7. Mr F has prepared two family reports in this matter and after the release of his report in 2016 the parties agreed to the boys recommencing spending alternate weeks with each parent and to the girls recommencing spending time with the father.

8. It is apparent from the observations made by Mr F that the boys were detrimentally affected by the absence of their mother for so long and E, in particular, made it clear that he missed his mother and wanted to live with her. Mr F did not consider that he understood the consequences of structural change to his living arrangements at that time.

9. Despite expressing significant misgivings about the shared care arrangements for the boys continuing into the future, Mr F recommended the continuation of those arrangements on an interim basis. In his 2016 report he said the following:

   [181]I have considerable misgivings about how an equal shared living arrangement can be sustained for the children in the longer term. My concern is that the quality of the parent’s co-parenting relationship leaves them poorly equipped to sustain it. Their communication is poor and their mistrust is high. … They interpret information from the children about events in each other’s home in a very negative way. They make significant allegations about their conduct towards each other and to the children. The longer-term risk in this matter is that rather than cooperate, the parents are likely to compete to assert their dominance over the lives of the children. …

10. A continuing theme in the father’s allegations against the mother is that she uses the children in order to gain financially from him and in the process fabricates allegations of abuse and violence against him. That said, the father conceded in 2016 that he had sent vile and abusive text messages to the mother for which he expressed remorse.

11. A continuing theme in the mother’s allegations against the father invites the inference that the father has engaged in sexually inappropriate behaviour with the girls or has exposed them to inappropriate conduct.

12. There is a history of the mother abusing alcohol and the 2016 Order required her to undertake Carbohydrate Deficient Transferrin (“CBT”) testing for a period.

13. Protection orders have been made against both parties for the protection of the other and the mother’s mother is also the respondent to a protection order where the father is the aggrieved.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper (Goode & Goode (2006) FLC 93-286), but such consideration will focus in particular on issues that will be determinative at an interim hearing. As the Full Court observed in Banks & Banks (2015) FLC 93-637:

   48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

2. In any event, whether the hearing is interim or final, the Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).

3. Consideration of the particular issues raised by the parties will be considered within the context of the legislative pathway.

4. Section 60B sets out the objects and principles to be applied when considering what parenting order is proper.

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

8. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

10. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

Mother’s case

1. In support of the mother’s application for the children to spend only supervised time with the father and, despite initially indicating an intention to rely on earlier affidavits sworn by the mother, counsel for the mother sensibly relied only on particular paragraphs of the mother’s affidavit filed 12 February 2018. It was candidly conceded by counsel for the mother that if his client’s affidavit were the extent of the evidence relied upon by the mother her prospects of success would be poor.

2. However, the evidence from the children’s psychologist, Ms EE, contained in a report dated 13 February 2018 is said to warrant further investigation by way of cross-examination and pending that opportunity it is submitted that the Court should adopt a cautious approach and impose supervision on the father’s time. I note that the father had not seen Ms EE’s report until the morning of the hearing.  

3. Ms EE has met with the children on numerous occasions since March 2017 either individually or with one or more of their siblings. Unfortunately, Ms EE’s account of statements made to her by the children appear in narrative form and her questions to the child/ren and their actual responses are not detailed.

4. In summary, Ms EE states that C has reported some strange behaviours by the father which make C feel uncomfortable. C said that on the 17 January 2018 the father had dropped his pants and drawn a smiley face on his penis to make a worm and that “we saw the purple parts” and the father then took a photo and showed all the children.

5. Ms EE states that that on 31 January 2018 the girls told her that B had told the father that her “wee-wee” was stinging and he had put some pawpaw cream on his finger, on his penis and on his “bum-bum” and then had put some in her “bum-bum”. Through a series of questions Ms EE states that she elicited from B that the father had inserted his index finger up to his first joint into B’s bottom and that it had happened in the kitchen while the other children were in another room and that the father was naked.

6. Ms EE describes D as the “saddest little boy” she has met in quite some time. She states that on 24 November 2017 D reported having observed his father inhaling a fine powder through a yellow popper straw in his bathroom. D reported feeling overwhelmed at times and on one occasion holding a knife to his chest.

7. Counsel for the mother submits that imposing a regime of supervised time would protect the father against what may be unfounded allegations and protect the children from the prospect of further investigations.

8. The mother presses an order for sole parental responsibility in the interim as proposed by the Independent Children’s Lawyer in the event that a decision needs to be made regarding the children’s health pending the final hearing.

Father’s case

1. The father denies the further allegations now made against him by the mother.

2. Counsel for the father submits that the allegations made against the father, at their highest, could not support a finding of unacceptable risk. The chronology is submitted to be very important and supports a rejection of the mother’s allegations even on an interim basis. That chronology includes the following:

   a)In 2016 the mother made allegations against the father which were found by the child protection authorities to be unsubstantiated and Mr F concluded that there were no child protection issues;

   b)After the release of the 2016 family report by Mr F the parties agreed to reinstate the previous arrangements;

   c)The 2016 allegations were made at a time when the mother was attempting to increase the financial support provided by the father;

   d)The mother has orchestrated the deterioration in the co-parenting relationship since the release of the second family report in order to improve her prospects of gaining primary care of the children;

   e)The mother falsely accused the father of being responsible for the crude graffiti on her front fence and relied upon that false allegation to support an application that the father had breached a protection order which was later discontinued but only after the father had incurred significant expense;

   f)The mother refused to attend mediation;

   g)The allegation that the father drew a smiley face on his penis and showed the children, bears a striking resemblance to historical conduct between himself and the mother where they exchanged sexually explicit photos and videos. One such photo portrayed the father’s penis with a smiley face drawn on it. The father invites the court to infer that he has been set up by the mother. He contends that the boys have told him that the mother showed them the photo. (The mother concedes a vague recollection of such a photo but denies still being in possession of it);

   h)The mother informed Ms EE of the ‘disclosure’ and permitted her to question the children in a most inappropriate way;

   i)Despite the mother now relying on the allegation as a basis for suspending his time with the children, the mother presented the girls for their usual weekend time with him after the alleged ‘disclosure’ and the mother did not prevent the boys being in the father’s care up until very recently. It is argued that the mother’s conduct indicates she is either not a protective parent or a liar;

   j)The mother did not report the alleged ‘disclosure’ to the Department of Child Safety until 25  January 2018;

   k)The children were again questioned by Ms EE on 31 January 2018;

   l)The children made no ‘disclosures’ when interviewed at their school by police and child safety officers;

   m)On the very day that the mother withheld the girls from the father viz. 1 February 2018 the mother initiated a re-assessment of child support on the basis that the children would be in her care 100 per cent of the time (the mother denies that she initiated any re-assessment).

3. It is submitted that Ms EE has become an advocate for the mother and has lost all objectivity. Reliance is placed in particular on the boys’ school’s response to the many inaccurate allegations made by Ms EE who has apparently accepted on face value statements made by the children and the mother.

4. Ms EE purports to make findings of fact e.g. that the father caused bruising to D; that D has been punished by the father since the notification about the father causing bruising to D; that the father’s bizarre behaviour (drawing a smiley face on his penis) may go unchecked; that a psychiatrist who saw D had been influenced by the father’s opinion of Ms EE; that D has been the target of the father’s ire etc.

5. The father deposes to various statements made to him by the children indicating the mother’s inappropriate involvement of the children in the dispute e.g. that the mother showed the children the photo of his penis with a smiley face on it; telling the children that they would soon be living with her full time etc.

6. It is submitted on behalf of the trial that at the very least the current Order should remain in place pending the trial.

evidence from experts

Dr DD

1. Dr DD interviewed the parents in September 2017 in order to provide a psychiatric assessment. During his interview with the father, Dr DD noted:

   A significant and persistent feature of his interview was the intrusion into the conversation of negative themes with respect to his ex-wife and also her mother. This commenced even before the interview commenced formally ie when he sat down. This was difficult to contain and persisted throughout.

2. Based on the father’s presentation and information provided by him during interview, Dr DD opined:

   … there are significant obsessional traits in the personality but more particularly there appear to be narcissistic traits. He sees things entirely form his own perspective and negative aspects of his ex-wife intrude into the interview in a ruminative manner. Curiously despite his very negative statements about the mother he does not appear to have gotten over the relationship. He remains pre-occupied with her and I wonder to what extent this is the source of the current conflict.

3. In relation to the mother, Dr DD noted a history of depression which is now in remission and a history of alcohol abuse also in remission according to the mother. Dr DD detected no psychiatric or personality issues of significance. However, he commented that if what the father says about the mother is correct it would indicate that the mother is a highly manipulative woman with significant personality vulnerability.

Mr F

1. Mr F conducted interviews on 9 October 2017 for the updated family report and produced another very comprehensive report. He was struck by the preparedness of all the children to advocate for equal time with each parent. Mr F considered it likely that their views have been shaped by an “exposure to intense, overt parental conflict and mistrust” and that the children were “attempting to take responsibility for resolving the conflict”.

2. According to Mr F the children appear to have a close and affectionate relationship with each parent.

3. D displayed unusual behaviour during the family report interviews. He frequently swore and spoke about people calling him an idiot and retarded. He spoke of violence towards adults. He was agitated, fidgety and a bit obsessional. He was repetitive and fixated on a fear of change to his living arrangements.

4. Mr F was clearly very concerned about the continued exposure of the children to the ongoing and unrelenting conflict between the parents which he considered to be damaging the children. Rather presciently he warned against the ongoing risk of the parents relying on “small pockets of information from the children to make complaints to authorities and involve the children in unnecessary investigations.” Mr F urged the Court to “take whatever steps are necessary to provide the children with an opportunity for as much stability and day-to-day consistency as possible, while also preserving their connections to the parents.”

5. In Mr F’s view an equal shared living arrangement is likely to increase the prospect of the children being exposed to ongoing conflict and deliver poor outcomes. He recommended the children live primarily with the mother, absent findings of the kind sought against her by the father, and “regular, frequent and broad ranging time with the father”, absent findings against him of the kind sought by the mother.

Discussion – children’s living arrangements pending trial

1. This is a very troubling case where each party continues to make extraordinary allegations against the other which are denied.

2. It is impossible to make findings of fact in relation to the competing allegations at an interim hearing.

3. On the one hand I have statements attributed to the children which may or may not reflect their exposure to inappropriate conduct on the part of the father.

4. On the other hand I have a mother who has historically relied upon some dubious accusations against the father as a reason to limit the children’s relationship with him.

5. It may be that the children have been encouraged to report inaccurate conduct on the part of the father or it may be that adults have misinterpreted statements made by the children. Alternatively, it may be that the father has acted inappropriately. 

6. It may be that the mother has inveigled third parties to assist her in preventing the children seeing the father or, alternatively, the mother may be acting protectively and in her children’s best interests.

7. The children have been interviewed by a myriad of people in relation to the many allegations that have been made against each parent. They have been photographed, videoed and recorded on many occasions.

8. The most recent allegations against the father resulted in the police informing the father that there were no protection issues and no reason why the children should not continue to spend time with him. Of course, that occurred in the context of potential criminal conduct only.

9. The tendency to interpret information from the children about events in each other’s home in a very negative way (as noted by Mr F) has continued unabated.

10. It is unclear at this point whether Ms EE’s involvement has been a help or a hindrance. Certainly her allegations against the father are serious e.g. slandering her to third parties and failing to implement any of the strategies suggested by her to assist the children. It might be suggested that Ms EE has permitted her opinions of the father (which may be entirely justified) to cloud her judgment e.g. making rather extraordinary allegations against the teachers at D’s school.  Quite apart from those matters however, the content of her report raises a number of issues e.g. the reporting by her of the children’s statements in narrative form and failing to particularise her questions to the children which elicited particular responses. In this context I note that while Ms EE’s report is in narrative form, the mother purports to quote what the children said to Ms EE verbatim. In particular, the mother purports to quote B telling Ms EE that the father had “put pawpaw ointment on his penis and then his bum-bum and then he pulled down her pants and put it into her bum-bum”. Not only is this account inconsistent with Ms EE’s account, it is reported by the mother to be a verbatim account of the child’s words in circumstances where she was not present.

11. The risk for contamination of any actual evidence of abuse is high in the circumstances of this case and I am surprised by Ms EE’s apparent failure to appreciate the importance of providing an accurate and particularised account of her discussions with the children.

12. There can be no doubt, having regard to the evidence as a whole, and in particular the most recent family report, that the children are caught in the middle of their warring parents. It is a sad indictment on the parents that their four young children appear to be so affected by the parent’s ongoing conflict that each child in their interview with Mr F pleaded for “peace”.

13. I have come to the conclusion that the Court must intervene to provide a period of respite for the children from exposure to the ongoing conflict. In my view the best way to achieve that is to leave them in the primary care of the mother pending trial and impose a condition of supervision on the children’s time with the father. Historically the mother has been the primary carer for the girls. If time between the father and children were to be unsupervised it would be counterproductive because I consider it likely that the involvement of the children in the dispute would continue.

14. How frequently the children should spend with the father is a difficult question. On the one hand the children have expressed a wish to Mr F to spend equal time with the father. On the other hand the children appear to be carrying the burden of responsibility for resolving the dispute. I am conscious that the father is likely to feel disappointed and aggrieved by the result. I am also mindful of Dr DD’s opinion that the father is only able to see things from his perspective.  Despite the recommendation of Mr F that the children should spend regular, frequent and broad ranging time with the father, I have come to the conclusion that the children should spend time with the father in the supervised setting for one day each week between 9.00 am and 5.00 pm. Given the strength of the children’s relationship with the father, I am satisfied that spending time with him weekly will enable them to maintain a meaningful relationship. Any time in excess of that is likely to defeat the main purpose of this interim order viz. to provide the children with respite from the conflict.

15. I do not propose to make an order for telephone communication between the children and the father. Such an order would, in my view, also be likely to defeat the main purpose of this interim Order and I note that there have been ongoing issues between the parents about telephone communication.

16. I will adopt the Independent Children’s Lawyer proposal for the father to be able to send gifts, cards and letters but I propose to limit that communication to once each week.

other matters

1. The parents have been unable to agree, until very recently, for D to be tested for Autism Spectrum Disorder. There have been numerous disagreements about the children’s counselling. There have been a myriad of other disputes relating to decisions concerning the children’s day to day welfare. However, the parties have agreed for D to be assessed by Dr CC and a trial is imminent. I do not propose to vary the existing Order for equal shared parental responsibility for major long term issues which the parties agreed to in 2013. There may well be legitimate objections to D commencing particular treatment which can be investigated at trial.  

2. The father seeks a re-introduction of the mother submitting to CBT testing on the basis of his belief that the mother is abusing alcohol. In the absence of any evidence to support his belief I do not intend to make that order.

3. In relation to other orders proposed by the Independent Children’s Lawyer e.g. not to denigrate the other parent, I remind the parents that they continue to be bound by those parts of the 2013 and 2016 Orders that have not been discharged or suspended.

4. Included in the 2016 parenting Order was a requirement that the parents attend upon a psychologist for counselling either separately or together (as directed by the said psychologist) at all such times nominated by the psychologist and for such period as required by the psychologist. The purpose of the Order was for the parents to address their ongoing dysfunctional relationship. Historically they had attended upon a psychologist who commented upon their volatile and unstable relationship. The counselling that I ordered in 2016 has not occurred and the conflict between the parents has continued unabated. The parent’s failure to undertake counselling to address their own issues will be a matter for trial.

5. Given the imminent trial dates and the existing Orders to which the parties are bound I do not propose to make the remaining orders proposed by the Independent Children’s Lawyer.  

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 February 2018.

Associate: 

Date: 22.02.2018