Bartel & Schmucker (No 3)

FAMILY COURT OF AUSTRALIA

BARTEL & SCHMUCKER (NO. 3)

[2012] FamCA 1094

FAMILY LAW – CHILDREN - Parenting orders - Mother continues to make allegations against the father without foundation - Children removed from the mother to live with the father - Reintroduction program for the children and the mother

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

B and B (access) (1986) FLC 91-758
Donaghey and Donaghey [2011] FamCA 13
Johnson and Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
Leveque and Leveque (1983) 54 BCLR 164
M v M (1998) HCA 68; (1998) 166 CLR 69
Macgregor and Macgregor [2012] FamCAFC 69
Marriage of M (1987) 11 Fam LR 765
Rivas and Rivas [2010] FMCAfam 55

APPLICANT:

Mr Bartel

RESPONDENT:

Ms Schmucker

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

4233

2008

DATE DELIVERED:

20 December 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide

JUDGMENT OF:

Cronin J

HEARING DATE:

22, 23, 24, 25, 26, 29, 30, 31 October 2012; 1, 2, 6 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Andrew Hill and Co

COUNSEL FOR THE RESPONDENT:

Ms Merkin

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

Orders

That all existing parenting orders are forthwith discharged.
That the father have sole responsibility for all decisions about major long term issues affecting the children K born … August 1999 and P and C both born … July 2003.
That the father advise the mother by email or such other written means as she may desire about the long term decisions he has made.
That the children live with the father.
That the father make all necessary appointments at his expense for the children to attend upon a therapist for the purposes of assisting them to understand:
(a)that the Court has found that they are not at risk in the care of their father; and
(b)that the Court has determined that they should have a relationship with their mother but that it will be initially restricted because of the unfounded views of their mother about their father,
and the attendances upon the therapist by all persons shall not be confidential.
That the father and mother do all things necessary to assist the therapist to resume the relationship with the mother having regard to these orders.
That the children spend time and communicate with the mother as follows:
(a)For a period of up to 30 minutes on each Tuesday evening at 7 pm commencing on Tuesday 15 January 2013 and every Tuesday thereafter by telephone with all children together as much as is practicable and their telephone discussion occurring on a loud speaker telephone system within which the father and/or his partner may be in hearing;
(b)As part of the therapy referred to in paragraph 5, at such additional times as the appointed therapist considers necessary and helpful to the children;
(c)From 1 February 2013, for 6 fortnightly visits at a contact centre nominated by the Independent Children’s Lawyer and at times made available by the contact centre under supervision, for a maximum of 2 hours at any one time, with the mother attending without other persons accompanying her;
(d)Upon the conclusion of the 6 periods referred to in paragraph 7 (c) and for a period of 6 fortnightly visits, during each alternate Saturday from 9 am until 5 pm with the mother collecting the children from and returning them to, the residence of the father; and
(e)Upon the conclusion of the 6 visits referred to in paragraph 7 (d):
(i)during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday (or Tuesday if the Monday is a public holiday) with the mother collecting the children from the school and returning them there;
(ii)for one half of all school term holidays by agreement with the father and failing agreement, during the first half with the mother collecting the children from the father and returning them to him at the conclusion; and
(iii)during the long summer holidays commencing in the summer of 2013/2014, for a period of 2 weeks by agreement and failing agreement, from midday on 1 January and for a similar period in each year thereafter with the mother collecting the children from the father and returning them to him at the conclusion.
For the avoidance of doubt:
(a)Paragraph 7 (d) is not to take effect unless and until the completion of all of the 6 periods of supervision;
(b)Paragraph 7 (e) is not to take effect unless and until the completion of all of the 6 periods; and
(c)For the purposes of paragraph 7 (e), all holidays commence at 10 am on the first day after the children finish a school term and concludes at 6 pm on the last day prior to them returning to school.
That for the purposes of paragraph 7 (a), the father shall be responsible for facilitating the telephone call including telling the children of the importance of their involvement but it is a matter for the mother to provide the father with a landline (not mobile) telephone contact number.
That if the mother acts inappropriately by raising issues of protection of the children or sexual abuse in the said telephone calls, the father has the right to terminate the call referred to in paragraph 7 (a).
That for the purposes of paragraph 7 (c), both the father and the mother forthwith complete all such administrative requirements as the nominated contact centre may require and to assist the supervisor, the Independent Children’s Lawyer provide that person with a copy of these orders and such paragraphs of the reasons for judgment this day as the Independent Children’s Lawyer considers will assist the centre’s obligations and understanding of the necessity for the supervision.
That if the mother acts inappropriately by raising issues of protection of the children, sexual abuse, is critical of the father or in any way speaks inappropriately to the children in the contact centre, the supervisor has the right to terminate the visit.
For the purposes of these orders, the father shall be responsible for ensuring that the children attend the D Medical Centre unless there is agreement to the contrary.
The mother shall be entitled to attend upon;
(a)the D Medical Centre and be given information by that clinic about the health of the children;
(b)the school principal and with his or her agreement, the teachers of the children’s schools, but she shall not attend at any time when the children are in attendance other than in (c) below; and
(c)the children’s schools to attend sports and cultural events when the children are participating.
That the father and mother each be at liberty to provide a copy of these orders to the principal of any school at which the children attend, South Australian Police, Families SA and the children’s medical practitioners.
That the mother be restrained from communicating with the children other than as provided by these orders or from making comments to the children about these proceedings and is further restrained by injunction as are her agents, from contacting the children through any social medium other than as may be provided in these orders.
That all outstanding applications be otherwise dismissed.
That all exhibits be returned to the parties tendering them after 1 month from the date of these orders.
That all subpoenaed material be returned forthwith to the recipient of the subpoena who provided such material.
That the order for the appointment of the Independent Children’s Lawyer is discharged as and from 1 March 2013.
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.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bartel & Schmucker (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 4233 of 2008

Mr Bartel

Applicant

And

Ms Schmucker

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

K now aged 13 and C and P, twins, now aged 9 have been the centre of their parents’ conflict for six years. In the case of the twins, the majority of their lives has involved litigation.
After numerous hearings which included three sets of final parenting orders including an agreed week-about arrangement between the parents, I heard a fully contested trial over 11 days involving serious and consistent allegations of sexual impropriety and poor parenting against the father of the children.
Similarly, I heard of concerns expressed by the father and various professionals about the children’s mother’s persistence in making allegations all of which involved the children engaging directly with various police, medical and welfare authorities.
Each parent therefore alleged that the children faced an unacceptable risk in the care of the other.
Over the six years and numerous hearings, this hearing was the first in which all of the allegations were closely and strenuously tested. I not only had evidence from a variety of expert and non-expert witnesses as well as the parties but also information gathered from various health and welfare authorities. Numerous documents were tendered in evidence arising from the parties’ attendances on health professionals, police and welfare authorities. I have carefully weighed that enormous amount of evidence.
I am satisfied that not only is there no unacceptable risk for these children in the care of the father but that all of the allegations against him have no foundation.
I am further satisfied that the children are unacceptably at risk in the care of the mother by being exposed to the unfounded and incorrect view that their father is a sexual predator. I also reject the mother’s contention that the father behaved appallingly as her partner. That unfounded belief has also placed the children at risk of emotional harm.
I find the mother’s views are most likely based upon and affected by, her cognitive dissonance which (at least at the moment) will not countenance any alternative view about what is good for the future of these children.
Having regard to my findings which I shall set out below, it is essential for the Court to intervene to protect the children from ongoing emotional and psychological harm. My reasons for that conclusion follow.

The legal pathway

The determination of this parenting case is governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The guiding hand of the legislature can be seen in s 60B where the objects and principles of Part VII are set out.
The Part VII principles are in the forefront of the Court’s mind when making assessments of the evidence. They also affect what orders can and should be made. They endeavour to see that children have the benefit of a meaningful involvement of their parents in their lives provided that whatever that involvement is, the children’s best interests are the paramount consideration.
Consistent with that approach, the children should be protected from the physical and psychological harm that comes with exposure to abuse, neglect and family violence. Additionally, the Court needs to ensure that children receive adequate and proper parenting so that they can achieve their best potential. Thus, the Court is urged to try to ensure that parenting is not only adequate but proper. Adequacy and propriety are obviously very subjective and affected by the parents’ physical, emotional and financial capacities but by its very emphasis, the legislature has indicated what the Court should ensure wherever possible.
An element of the subjective assessment is to try and work out ways that ensure that parents, subject to their capabilities, fulfil all of their duties and responsibilities and that they jointly share those parenting tasks and agree about how their children should be raised so that the children ultimately do benefit from the guidance and role modelling of their parents.
These objects focus very much on what parenting is about. As will be seen below, there have been serious flaws in the mother’s parenting and I hold concerns about her capacity to change. I shall find her parenting neither adequate nor proper since the parties separated.
The underpinning principles to Part VII focus largely but not entirely, on the rights of children. The Court is mandated to be conscious in every case when crafting orders, to keep the child’s best interests at the forefront of its thinking and to remember that children have a right not only to know their parents but to be cared for by both of them and spend time with them accordingly. Unjustifiably, that did not happen in this case and it required an eleven day hearing to get to the bottom of not only what happened to these children but also what will enable them to enjoy some of these legislative objects and principles in the future.
Because of the impasse between the parents, the Court was entreated by both parents to make parenting orders. A parenting order may deal with a variety of matters (s 64B(2)) one of which is the exercise of parental responsibility. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B).
When deciding who should exercise parental responsibility, subject to what is mentioned below, the Court is obliged to remember again the objects and principles I have set out above. It is clearly the intention of the legislature that both parents exercise that role always subject to the impact on the interests of the children.
Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.
In this case, for the reasons set out below, there is no prospect of joint parenting in the future on the evidence of the parties as it currently stands.
To reinforce the issue of a joint parenting approach, the legislature mandates that when making a parenting order, a court must apply a presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility. Whilst this concept is not defined, equality strongly indicates the joint approach described in the objects and principles.
Parental responsibility is a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.
The presumption however is rebutted if there are reasonable grounds to believe a parent has engaged in child abuse or family violence (s 61DA(2)).
So far as it is relevant in this case, unaffected by the recent legislative changes, abuse of a child is defined to mean an assault on the child which is an offence at law or involving the child in inappropriate sexual activity. There is no suggestion here that the mother has physically abused the children. Her abuse is of a different kind to that definition. On the other hand, there is every imaginable allegation against the father which fits within the defined conduct but as I shall set out below, there is no basis upon which I could or should, make such a finding against him.
The presumption may be rebutted (s 61EA(4)) if the Court is satisfied on the evidence that it would not be in the children’s interests for the parents to have equal shared parental responsibility. The approach to that issue may be twofold.
First, is it possible that the legislative objects and principles can be met? If not, an equal sharing of all the duties required by law of a parent is problematic and unlikely to benefit the children. Communication, a modicum of respect and a child-focussed approach are important even taking into account the various levels of adequacy and propriety of parenting. One indicator is whether the parents could fulfil s 65DAC(3). Here that is not possible.
Because the presumption falters if the best interests principle cannot be satisfied, the second but equally important approach is to look at what the legislature asks of the Court to consider when making an assessment of what is in the child’s best interests (s 60CC).
I turn to those parts of the legislation later in these reasons but suffice to say, that assessment shows the mother’s focus is on anything other than the children’s best interests even though she has provided for their physical care extremely well in difficult circumstances. I have no similar concerns about the father.
I could not find it in the children’s best interests for the parents to share the responsibilities of parenthood and the presumption of equal shared parental responsibility is therefore rebutted.

Factual background

The parties

The mother is a 45 year old healthcare worker. The three children are her only children. She is in a relationship with Mr E to whom she is engaged to be married. Mr E’s evidence was that their marriage would take place within about a year. The mother lives in rented accommodation and currently, she and Mr E are looking to buy a small rural property.
The father is 42 years of age and currently a student. He has some healthcare worker qualifications and works in that profession casually. He is currently studying to become a healthcare worker with the requisite tertiary qualifications. He is living with Ms F who is also a student and employed part-time. The three children of this dispute are his only children. Ms F has children, two of whom live in her household. The father and Ms F have been living together for about a year. Their accommodation was a five bedroom home but has now been converted into six bedrooms to accommodate the children of this dispute.

THE PARTIES’ RELATIONSHIP

The mother and father began living together in about 1997 and K was born in 1999. C and P followed in 2003.
The relationship came to a permanent end on 28 November 2007. In between the start and the end, there were many and significant problems.

The children are removed from the mother during the hearing

After 10 of the 11 days, upon the contested oral application of counsel for the Independent Children’s Lawyer, I removed the children from the mother and placed them all with the father. I gave reasons at that time and do not intend to repeat them here. The focus of the remaining part of the hearing thereafter shifted to how the children’s relationship with their mother could be maintained into the future. For a variety of reasons as set out below, the task here is not easy.
From a situation where two of the children have had no relationship with their father for a long time, the pendulum has swung the opposite way so that as a result of my orders, they have now no time with their mother. That happened very quickly and it has now been some weeks since they have had any contact or association with her. It is important to resume a relationship of some type.

The 11^th day of the trial was spent hearing final submissions and I then reserved judgment.

The conduct of the proceedings

By an order of Dawe J, the evidence of the mother was to be given first. Although there was some confusion about that order, it had no impact on the hearing. An unusual feature of this hearing was the approach adopted by the mother who was represented by counsel directly briefed without a solicitor. Counsel was at pains to point out to me that she had been briefed late in the piece. I do not accept that as a handicap.
Although the mother prepared her own affidavit for the hearing, her outline of case filed 22 October 2012 (the first day of the hearing) was signed by her counsel. It sought orders that the mother have sole parental responsibility and that all children live with her. Importantly, it was sought that all three children communicate with the father according to their wishes but that P spend “supervised” time with the father during “day light (sic) hours” every alternate Saturday in the company of his partner or other acceptable supervisor.
Until this hearing began, K had not seen her father for two years. Before that, and pursuant to court orders, K was shared between the parents on a week-about basis.
Similarly, C had not seen her father for one year before when, she too had been involved in a week-about arrangement. P had until the commencement of hearing, been continuing on a cycle of shared care on a week-about basis.
The radical changes in the lives of K and C came about from allegations they made about their father. Those allegations were initially innocuous but grew and I find them baseless. P continued on with the week-about arrangement regardless of his sisters’ distress and their complaints about their father.
It was therefore a radical change on Friday 2 November 2012 when I removed the children and placed them all with the father finding there was no unacceptable risk in his care but conversely that I had serious concerns about the mother.
On the 11^th day of the hearing, I heard final submissions which are referred to in some detail below. Bearing in mind the opening proposals of the mother and the course of the trial to which I shall now turn, her final submissions and proposals which were in my view at odds with one another, were deeply troubling.
Although the mother’s outline of case referred to a variety of affidavits and witnesses, that was not the course that she ultimately followed. Her evidence was confined to her trial affidavit and not the plethora of material filed in 2011. She named witnesses who filed affidavits but of those, only her current partner was required for cross-examination.
At her opening, counsel for the mother told me she would call two police officers, one of whom would give evidence about the father’s demeanour when interviewed. When the evidence was about to begin, the mother’s counsel said she wanted to call a person named as Emeritus Professor G. I reminded counsel of the proper course to be taken. Nothing further eventuated until the 8^th day of the trial when the mother’s counsel sought and was given leave, to file an application in a case to call that witness. Only after I discussed with counsel the inappropriate approach that she was taking, the application was withdrawn. However the issue did not go away.
On the 3^rd day of the hearing, counsel for the mother said she wanted the Independent Children’s Lawyer to produce the psychiatrist who had examined her client. She wanted to cross-examine him about his knowledge of child abuse and domestic violence. In essence, this would have been the mother’s own witness.
On the 4^th day of the trial, counsel for the mother said she would call a church acquaintance of the mother to give evidence about what she had been told by C about the father’s sexual assault of her. It was submitted by the mother’s counsel that if this witness was not so called, an inference might be drawn by me of the kind set out in Jones v Dunkel (1959) 101 CLR 298.
On the 8^th day of the trial, counsel for the mother said she wanted to call the mother’s sister for whom an affidavit had been prepared notwithstanding the sister had initially been a witness for the father. Because the evidence sought to be led by the father was deemed no longer controversial, I was told that the sister would not be called and the affidavit would not be relied upon. Counsel for the mother then indicated she wanted to call the sister and that gave rise to another affidavit being prepared. The sister was ultimately not called and her affidavit was not relied upon.
As the 9^th day began, the mother’s counsel announced that she had instructions from the mother that if I was minded to grant the father any time with the children on an unsupervised basis, the mother would walk away from all of her children. She said that these instructions were in the form of an affidavit that she had prepared for the mother during the previous evening. The mother’s position was confirmed in discussion and clarified because it meant her walking away even if P was to spend unsupervised time with his father as he had for a number of years. Counsel was adamant that I should receive the mother’s written statement as to her reasons into evidence. This was at a point where the mother’s evidence was concluded. The mother’s counsel also said the mother wanted to file an affidavit in reply to the father’s evidence in chief notwithstanding the father’s evidence had been in the mother’s hands for some weeks. Counsel for the mother said this was necessary because the mother had been unrepresented when the affidavit was prepared. The absurdity of that proposition was that no application to lead further evidence had been made by her counsel when the mother entered the witness box. In addition, at that late stage, no other counsel, let alone the Court, could test that evidence without a reopening of the whole case or the Court putting off the hearing. I refused that request.
The new “instructions” were also significant because they were nothing short of an ultimatum to the Court. Counsel for the mother persisted in wanting her client’s explanation noted. Underlying the new proposed orders was the mother’s view that this was not so much about the safety of her children but necessary also because the father would use the children to get back at her. Nothing I heard in the evidence justified the fear expressed. That is significant in this case because the mother was cross-examined for five days and the father for between two and three days. Be that as it may, there was yet another dramatic change to come.
On the 10^th day of the hearing, counsel for the mother told me her instructions were that the mother withdrew the proposed orders from the previous day and wanted to revert to her initial proposals. Counsel also sought to withdraw the previous day’s explanation in writing from the record but it must have been obvious to her that as the document had been received into evidence at her request, it could not be so withdrawn. In addition, the family consultant had been cross-examined upon it.
The mother’s counsel then asked to be permitted to file a further application in a case seeking to call a person by the name of Ms H who was said to be an expert (according to her curriculum vitae) in child sexual abuse. A brief examination of the document drawn by the mother’s counsel showed that with the paucity of evidence it contained, the application could not succeed. Without argument, counsel for the mother withdrew the application.
I have laboured the point about these various attempts to put expert evidence before the Court because of what appears in the mother’s counsel’s final written submission. It read:
…it is submitted that the use of expert material can be properly utilised to guide the court’s understanding of the evidence, particularly from the children, when read critically and appropriately. During this trial this court did not have the benefit of a single expert to help guide the court’s understanding as to whether this case involves (sic) deliberate, unintentional or genuine child sexual abuse.
Leaving aside what that statement was intended to mean, it was clearly wrong if an inference was to be drawn that the issue was not contemplated. If it was intended to mean that the evidence was not contemplated, it was mischievous and irresponsible given the highly charged nature of the dispute and the consequences for the children. Counsel for the mother ultimately conceded she had not pursued either application even though all of the applications had been drawn by her and had been handed to the Court at various stages during the trial.
Counsel for the mother, no doubt on instructions, challenged a number of witnesses about their ability to interview children and gather information for the benefit of the Court. Presumably the purpose of this exercise was to raise doubts in the Court’s mind about the opinions of the various police and social scientists involved. If that was the intention, it failed.
The mother’s counsel submitted that her client was a person affected by family violence and also that the children’s behaviour could only be rationally explained by an expert in child sexual abuse. For the reasons that follow, that simplistic analysis missed a very significant part of the evidence. The mother believed her children’s statements to mean much more than they were saying and she encouraged them to believe their father was a bad person in whose company they were at serious physical risk.
In final submission, the mother’s counsel said that her client “consented” to getting help and thus, a glimmer of hope for the children arose but it was only to be largely dashed by counsel’s persistence in maintaining that her submissions were justified on the evidence. They were, in my view, misconceived.

What the parties relied upon

The evidence of the mother and her witnesses was contained predominantly in her trial affidavit filed 19 October 2012 and that of Ms I filed 19 October 2012. She relied on the affidavit of Mr E filed 22 October 2012.
The evidence of the father and his witnesses was set out in the affidavit of the father filed 28 September 2012, Ms F filed 27 September 2012, Ms J filed 27 December 2012 and Ms L filed 26 September 2012.
Other witnesses whose evidence was either in affidavit form or given viva voce included Dr B, a consultant psychiatrist, Detective Sergeant O, Police Officers Detective Q and Detective R and family consultants Ms A and Ms T.

The s 69ZT order

On the first day of this hearing, I made an order under s 69ZT of the Act that the rules of evidence should apply because I perceived this case was exceptional. I have given reasons in writing for that order. Hindsight is a wonderful thing but I consider that the pathway then envisaged was the correct one.
Section 69ZN(4) requires the Court to actively direct, control and manage the conduct of the proceedings. Because of the serious nature of the allegations and the prospect of a number of days of hearing, I directed that the cross-examination of the father and the mother be as close as possible together albeit that they were called out of sequential order. Other witnesses were interposed to suit their convenience and that course did not disrupt nor adversely affect the evidence of the main witnesses.

The issues

There were three issues requiring determination. They were:
1.Had the father acted inappropriately as alleged by the wife either to her or to the children such that the children or any of them, were at risk in his care? Was that risk unacceptable?
2.Had the mother placed the children’s emotional health at risk and subjected them to a form of abuse by consistently involving them in allegations to feed her obsession that the father was a sexual predator?
3.If the children are now at risk in the care of either parent, what orders best promote their physical, emotional and psychological health such that they might have some prospect of enjoying the benefits that children should have in a family?

The credit of the witnesses

The Mother

I observed the mother as an intelligent and articulate woman. She was subjected to cross-examination for five days. She thought carefully about her answers and was not evasive save that on many occasions, she answered that she could not remember having done things. There were two plausible explanations why that was so. First, the period prior to separation was a traumatic one in terms of her physical and mental health and subsequent to separation, she made numerous complaints to various reporting authorities and could hardly be expected to remember them all.
There were times however when her explanations were implausible and on at least one occasion, she acknowledged that she had lied. For example, she misled the family consultant about her family situation. She was disingenuous with psychiatrist Dr B about her background by saying that she thought he was only talking about her teenage years. As a health professional herself, she would have known the importance of the accuracy of reporting but also why she was actually seeing Dr B in the first place. When she was asked to explain why she had not told Dr B about important historical facts, she said she had mentioned it to him and had told him that there were “difficulties”. None of that evidence was confirmed by Dr B.
The mother was significantly tested about the nature of the relationship with her own extended family and why she had become estranged from them. Her estrangement extended to her refusing the children contact with their paternal grandparents. Her explanation about not endeavouring to see her own father prior to his death was interesting. Counsel for the father asked whether she knew that her father was dying and her response was simply that she knew he was critically ill. She acknowledged keeping her children away from her own mother because her mother had believed the father rather than her about the sexual abuse and other allegations she was making subsequent to separation. That ultimately led the mother in evidence to acknowledge that she was indeed estranged from her family and that the answer she gave the family consultant was a lie. When asked why, she said she thought that there would be some reconciliation and that it was her hope. Whilst clearly, hope springs eternal, no evidence was led that would suggest there was any possibility of that occurring in this case. In very recent days prior to the hearing, the mother’s partner had taken the children to see the extended family but the mother apparently did not attend. The mother was clearly painting a picture which was misleading to bolster her argument that she was a caring and responsible parent.
There was also evidence of the mother’s regular past description of having had cervical cancer. She maintained that she had not used that expression but rather had explained to professionals that she had pre-cancerous cells. It is implausible that professionals in a hospital in May 2001 would have inaccurately recorded her description. This supports a conclusion of Dr B referred to below that there is an element of cognitive dissonance about the mother.
Thus, I have grave doubts about the truthfulness of the mother. She would say whatever she thought would assist her cause.

The father

The father was cross-examined for over two days. He made appropriate concessions and endeavoured at times to explain the unexplainable. At no time did he criticise the mother. He had some doubts about some of the things that she described as her experiences during their relationship, but he did not dispute that she had been physically and mentally unwell. He described her as a good parent and wanted the children to have a part in her life.
He was cross-examined as to credit on some discrete issues. For example, evidence was given that he came home one day prior to separation and found the mother unconscious. She had taken an overdose of prescribed medication and was surrounded in vomit and faeces. His evidence was that he called the mother’s sister, a highly qualified healthcare worker, and together they monitored the mother until some hours into the night where a decision was eventually made to call an ambulance. He was criticised in cross-examination by counsel for the mother for not having called the ambulance earlier and his explanation was that this overdose was not something out of the ordinary. He volunteered that in previous episodes, the mother had begged him not to let anyone know of her attempted suicides because she worked in the health industry and if taken by ambulance, she would have gone to her very workplace. It was the mother who had wanted to end her life and on any view of the evidence, this was a difficult and traumatic time for everyone. I found the father thoughtful and plausible. The cross-examination in those circumstances was inappropriate.
Another example was that the father had said in two affidavits that when the mother was admitted to hospital, she was “detained” under the “Mental Health Act”. In cross-examination, the father acknowledged his description was wrong. He was cross-examined along the lines that he had lied. If he had lied, just what his motivation would have been, was hard to understand. The wife was clearly hospitalised as a result of an overdose. When tested, he calmly indicated that he had been wrong and that his perception had come from overhearing doctors talking about keeping the mother in hospital. Indeed, significantly, she was kept under observation because of her mental health state. The cross-examination was about his description in two affidavits about the mother being detained under the Mental Health Act. I would hardly criticise the husband for that description when all else in relation to the incident was not only not disputed but clearly true. Again, the attack on his credit was unjustified.
Another example of the attack on the father’s credit was that he had inaccurately described communications between he and the mother in his affidavit. He said they had come from a communication book. He annexed those communications to his affidavit. The description was clearly wrong. They were not from the communication book but rather, a record he had kept of telephone conversations between he and the mother. Whilst he may have been inaccurate in his description, he was accurate about the conversations that had transpired. The mother did not deny the conversations occurred. Again, to criticise his truthfulness on that basis was as puzzling as it was inappropriate.
The father was also cross-examined about what occurred at separation when he agreed to share the children on an equal basis. In a curious piece of cross-examination, counsel for the mother asked him why if he had thought the mother suicidal and swearing violently at her own children, he had agreed to shared care. His explanation was that there were many reasons. He said that the children were the mother’s as well as his and they deserved to have two parents. He thought that “50/50” was a good outcome but it also gave the mother “a week off to recover”. His evidence clearly indicated that even though he had concerns about the mother’s capacity as a parent, he wanted the children to be involved in her life. That has to be contrasted with the mother’s view that she agreed to a sharing arrangement because she was frightened that the father was trying to take “custody” of the children away from her. No court document of the husband, any letter from him nor any oral communication suggested that that was his position. Rather than show the husband’s credibility was lacking, I find this enhanced his credit as a parent.
The father was significantly tested in respect of the finer details of the allegations made against him in statements by the children. I carefully watched his demeanour and am satisfied that his answers were truthful.

Credit as between the mother and the father

Thus, wherever there is a dispute between the mother and the father over a particular incident (and here there are) I will have no doubt in preferring the father’s version.

Other witnesses

All of the professional witnesses were credible and thoughtful. Their evidence has a significant impact on the outcome of these proceedings.
The parties’ respective new partners were both subjected to cross-examination. The father’s partner Ms F, to whom I shall refer below, was an excellent witness. I found her thoughtful and very helpful. She was well aware of the problems that the father had endured and was tested by counsel for the Independent Children’s Lawyer. Her evidence corroborates that of the father in a very significant way. I believed her.
The mother’s new partner Mr E was not a good witness but I attribute that to his nervousness. He clearly wanted to distance himself from the difficulties in the mother’s case and most importantly, was ignorant of the background of much of what might have contributed to the problem for these three children. He was not able to shed much light on the nature of the relationship between the mother and the children and he knew nothing about the father at all. His evidence did not assist me.

The disputed facts

I will endeavour to make individual findings but where I set out statements of fact as follows, they are indeed findings of fact.
The parties began their relationship in about 1997 when the father moved into the mother’s residence. Not long after their relationship commenced, the mother developed painful symptoms which various medical practitioners diagnosed over time as possibly multiple sclerosis. The worry about this diagnosis and its consequent pain permeated the relationship and having regard to the father’s evidence, I accept the mother did suffer pain that might justifiably concern the medical profession that she had that illness.
K was born in 1999 and subsequently, the mother’s neuropathic pain made it difficult to lift the child. As months went by, the pain intensified and was debilitating.
Consistent with the mother’s evidence, her counsel put to the father that he was unsupportive and unaffectionate towards her. In a curious and irrelevant series of questions, he was asked about what gifts such as flowers and perfume he had bought the mother. He was questioned what he did for the mother and he volunteered that he massaged her legs and cooked meals but he also gave the mother credit for having contributed as well. It did not take much imagination to consider that the mother who was affected by pain and with three young children, two of whom were twins, had a difficult time. I am satisfied however that the father was supportive and indeed, took on the caring role himself.
The mother’s vague evidence was that the father was abusive calling her “fat” and “ugly” all of which he emotively denied under cross-examination. No specifics were set out by the mother and there was no temporal connection with her allegations. Despite being without legal representation when the affidavit was drawn, no attempt was made by the mother’s counsel to lead anything that might have been helpful on that issue. Cross-examination of the father on the same issue was equally vague.
On any view of the evidence, I could not find that this relationship was constantly abusive and denigratory as alleged by the mother nor could I find that at any particular time, the arguments between the parties rose to that level.
There were arguments as is evident from what the mother’s sister described to doctors in 2001 as significant mood swings and interpersonal conflicts with the father. The mother’s sister otherwise described the father to the doctors as a very caring man. On any view of the evidence, I could not find that interpersonal conflict fell within the definition of family violence in s 4 of the Act.
It is important to also record that in cross-examination, the mother conceded that save for the issue to which I shall now turn, the father was not a physically violent man.

The rape allegation

It was the mother’s evidence that the father drugged her and that when she was asleep, she awoke to find him having sex with her. This allegation became apparent in a statement made by the mother to the family consultant in March 2012. In her description to the family consultant, the mother said the father “raped” her. However, in cross-examination, she seemed at pains to say that it was not rape but rather sex without her consent. That distinction might mean a lot to lawyers and in particular the criminal law but it was clear that the mother was distancing herself from the concept of rape as she understood it. She added that on an occasion, the father produced a camera from under the bed and wanted a photo of “the act” but she said she objected. She said that when she did so, he had taken the picture and she told him to delete it and he did so. In his evidence in chief, the father strenuously and again emotively, denied any such events occurred.
These are serious allegations and applying a very careful analysis of the evidence as required by s 140(2) of the Evidence Act 1995 (Cth), I could not be satisfied on the balance of probability that any such acts occurred as described by the mother.
No evidence was led by the mother to show that she had raised these complaints against the father with anyone. That is of significance having regard to the numerous documents that were filed in the Court over the six year period and her attendances upon family consultants, welfare department officials and police officers. The mother’s statement that the father was not physically violent towards her along with her move away from the use of the word “rape” leaves me doubting her credibility that she feared for her own safety. In the statement that the mother made to the Court on the 9^th day of hearing she said:
I genuinely believe that the children have been and will continue to be used by the father as conduits of abuse towards me…I cannot protect myself when they are with me and tell me traumatic experiences they have with their father…I genuinely believe that the father will continue to perpetrate different types of abuse such as the ones I have raised in these proceedings…
These vague generalisations were not supported by any evidence that I could find. Having regard to the fact that the mother was legally represented throughout the trial, I reject any suggestion that her representation had something to do with the paucity of the evidence about these things.
The father’s counsel cross-examined the mother about an allegation that she had made of having been “raped” at the age of 14 by an uncle. The mother denied that she was “raped” but described the unsavoury and unfortunate incident. The difficulty I have is when the various health professional notes were put to the mother, they show that she consistently used the word “rape”. In cross-examination, she not only distanced herself from the description but denied using the expression. The consistency of independent record makes her response to this Court implausible. It is not possible in my view for the note takers in those professional settings such as medical clinics and welfare workers to consistently make those sorts of errors. This is one example of the mother being an untruthful witness.

Suicide

Returning to the parties’ relationship, the neuropathic pain caused irritability and depression in the mother. That led to medication to assist her pain management and sleeping. In March 2001, the mother conceded to her doctors that she had contemplated suicide but had a supportive family. Sadly, the depression was not resolved and in 2001, there was a suicide attempt by overdosing on prescribed mediation. Throughout 2001, the mother’s medical appointments were constant but they also involved the father. The mother reported to doctors how she was feeling including a reference to the father “yelling” and “marital disharmony”. The details of why these arguments occurred were not led in evidence. I am therefore unable to find that during this period, there was anything that resembled family violence. All of these problems, if they existed, were symptoms of a stressed and unhappy family. At that stage the parties had only K.
In 2002, the mother’s pain mysteriously disappeared and she became pregnant giving birth to the twins in July2003.

The period after the birth of the twins

From the birth of the twins, the family was under constant observation by doctors but until 2004, there were no reported signs of difficulties in the parties’ relationship. That is important because if it existed, complaints to doctors and other professionals would have corroborated the assertions of the mother about the father being abusive and unsupportive.
By April 2004, all of that changed when the mother reported that the father was playing “mind games”. That too altered in September 2005 when the father took on the homemaker role and the mother returned to work. That did not last all that long because in 2006, the father returned to part-time work. At this time, the parties had three young children and they were heavily assisted by both grandmothers each week but also day care facilities.
There was some dispute between the parties about who did what during this period in terms of the care of the children and housework but in my view, it has no relevance. The evidence of the mother relating to this period was led for the purposes of showing the father in a poor light. It did not do that.
The evidence of the father in respect of that period was led for the purposes of showing the difficulties that he encountered with the difficulties of the mother’s pain and mental health problems. It certainly did that.
Significantly, in 2006, the mother’s pain returned but the medical records about which she was cross-examined, showed that unlike earlier reports, she was then describing the father as supportive. That was reported more than once to her doctor whose records were tendered in evidence without challenge. That evidence is inconsistent with the mother’s broad-brush evidence that the father was abusive and playing “mind games”.
The evidence in relation to the “mind games” related to such things as moving objects to destabilise her and putting a particular pop song into the mother’s car audio system for the purposes of upsetting her. Leaving aside the denials by the father which I accept, it shows the mother as anxious and in my view, unwell.

The problems of the children during this period

In addition to the mother’s medical problems, the children were also having difficulty with enuresis and encopresis. I will not set out the details but it is clear from the evidence of both parties that life for the family was difficult. These problems affected K into her school years.
In 2007, K was attending doctors for problems associated with celiac illness. By then she was responding to a structured diet. The mother’s evidence was that at various times, the father ignored K’s gluten-free dietary requirements. The father was cross-examined at some length about that and was asked how he managed the diet in a house where K required gluten-free food and the other children did not. He was asked in depth about the names of products that he had purchased and how he calculated what he could and could not give to K. His knowledge was impressive. I find there is no evidence to suggest that the father was anything other than conscious of the need to provide an appropriate diet and that he was vigilant to ensure at all times that K received it. He was able to tell me how he tried to buy products of a similar nature to those that the other children used so that K was not treated differently to the other children. He explained (as did Ms F) how in the future, he would manage the dietary requirements of K if she came to live with him. I have no doubt about the bona fides of the father and find that any complaint about him ignoring K’s diet is without foundation.
In March 2007 the mother witnessed a suicide and when she attended her general practitioner, the doctor noted “more stress at home with kids than at work”. At that time, the dietary struggle with K was occurring, C and P were not quite four years of age and the mother was complaining again of neuropathic and other pain. The various records tendered in evidence from the medical centre show numerous attendances.
I find that life was difficult at that time but not because of any behaviour of the father.

In July 2007 the mother goes to Melbourne

In July 2007, the mother took a bus trip from Adelaide to Melbourne to St Vincent’s Hospital. She said that this followed an episode where the father was yelling obscenities at her and along with her pain and sleep problems, she was distressed. In cross-examination, the mother conceded that she told the hospital that she was “aggressive with everyone”. She conceded that her aggression was directed towards both the father and the children. It was the father’s evidence that she had sworn at the children but without specifically denying that, the mother simply denied the extent of the language. The denial is irrelevant because of the concession that she was abusive.
The language issue was largely insignificant because this trip from Adelaide to Melbourne was a spur of the moment decision by the mother. She did not tell the father or the children although she telephoned her sister. In response to a question I asked, the mother conceded that she had not had any concerns about the father’s capacity to care for the children when she left them in his care to go to Melbourne. She did not seem troubled about the fact that from the perspective of the children (let alone the father), she had simply vanished. All of that seems inconsistent with the broad brush allegations of the mother that the father was the person responsible for the problems of family violence in the household.
In response to a question by counsel for the father, the mother said that the father “frequently” said that if life was so bad, she should kill herself. This seems contrary to how the mother responded to questions put to her that it was she who kept telling the father she wanted to die. In response, she acknowledged making those statements sometimes when the pain was bad.
The mother acknowledged that she had been suicidal and indeed on at least two occasions wrote notes to that effect. When pressed about how supportive the father was in relation to the running of the household and the caring of the children during these troubling times, she acknowledged his support.
The issue of the father urging her to take her own life was not taken up with the father in cross-examination and certainly it was inconsistent with all of the other evidence about his role in supporting the mother. Accordingly, I reject the mother’s assertion that the father was abusive, violent or told her to kill herself.
In the second half of 2007, the mother attended counselling and there were a number of visits to doctors in November. Life was very difficult for the mother but not because of the behaviour of the father.

Separation occurs

The relationship came to an end on 28 November 2007. Even on that issue, the parties had a disagreement. The father’s evidence was that the mother’s behaviour had begun to seriously affect the children and he decided to leave. For her part, the mother said she found financial documents indicating dishonesty on the part of the father and challenged him about them which in turn led to the ending of their relationship. Neither position really matters. The father moved to live with his mother. In her affidavit, the mother said that the children were cared for by herself but then acknowledged that they also went with their father to their grandmother’s house. That was misleading because there is no doubt that the father was principally looking after the children with the assistance of his mother and making arrangements for the mother to spend some time with them. It was the mother’s position that between them, they juggled the children on the basis of their work shifts. However, I accept the father’s evidence that even on occasions when she had the children, the mother contacted him and asked that he come and take them back.
Despite the tumultuous period prior to separation and the dispute about how it happened, the parties reached an agreement that they would share the care of the children. It was the mother’s view however that all this was being done to set her up. Just what for, escapes me.
On 16 December 2007, the mother went to the Royal Adelaide Hospital in an anxious state. She maintained her anxiety arose because she was concerned that the father was endeavouring to take the children away from her. Only two days later, she attended at a local health service again with anxiety problems. She conceded that at that time, she was so unwell that she was unable to drive a car. She maintained that that was not affecting her care of the children but I reject that because she conceded that her time with the children centred around how the father assessed her coping and management skills. The clinic notes of 18 February 2007 clearly show the mother was unable to work or drive.
Even at that time however, there was still a possibility of a reconciliation in the parties’ relationship.
In January 2008, the mother telephoned the father and told him she was suicidal. A further discussion took place on the following morning in which the mother said she had spoken to her family but they wanted nothing to do with her. That was not entirely correct because the wife’s sister had very much been involved including contacting health professionals.
By February 2008, K had started to be affected by the acrimonious relationship of her parents and had expressed suicide ideation. That led to a referral to CAMHS which led to the preparation of a mental health care plan for K. She was described as anxious, tearful, clingy and having feelings of low self-esteem.
In May 2008, the mother expressed to health providers her own suicidal ideation. She described intense anger and that self-harm was triggered by communication with her parents. All of this followed an incident on Sunday 4 May 2008.
When the May incident was put to the mother in cross-examination, she indicated she had no recollection of the event. The father was not challenged about it and therefore I accept it occurred.
The father delivered the children to the mother’s home at 6.30pm on Sunday 4 May 2008. The mother told him that she did not want the children anymore and that she was going to commit suicide the following day. The father’s evidence was that he refused to take the children away from her notwithstanding her threat because he did not believe she would commit suicide if she had care of the children. However, on the following morning, he received a telephone call from the mother advising him that she would drop the children off at the local hospital and was then going to kill herself. Immediately following that conversation, the paternal grandmother contacted the father to say that the mother had attended with the children who had no school requisites or spare clothes. The way this incident occurred was supported by the paternal grandmother who was not required for cross-examination. The mother did not harm herself but attended at the local hospital where questions arose as to whether or not she may have had a borderline personality disorder.
The mother acknowledged the correctness of the hospital’s assessment of the situation as being one of chronic suicide ideation and intense anger.
All of this points to the fact that the mother’s life was in turmoil and the children were caught up in the middle of it but there is nothing there that would justify any criticism of the father.

The parties continued to share parenting duties but that came to an end in July 2008 when the father got moved on with his life and began his association with a social group and in particular, eventually began an association with Ms F. That disturbed the mother. Her complaint was that the father was dishonest with her. She said he was encouraging a reconciliation including looking at houses with her. I do not accept that by the middle of 2008 he saw any future in the relationship. He had indicated that the relationship was ended, an example of which being that he had sought child support.
The mother’s view about child support was also perplexing. She complained that when she endeavoured to buy presents for the children, the father refused to contribute saying that he could not afford it. She said that as a consequence, she worked harder. Working harder and earning more income caused her to pay more child support.
With the conclusion of the relationship by August 2008, the mother began attending upon counsellors and domestic violence workers and for the first time, she made serious reports to police about the father’s behaviour. When she was asked why the sudden change, the mother said that things had been reasonably amicable up to August 2008 but then it began to become unpleasant. She said she found a bank statement and credit card statement with her name on it from which she inferred that the father was hiding things from her. She referred to the father stalking her. In a family risk assessment form completed by the mother some time later, she said she believed that the father could kill her and the children. She made statements that he had a history of violence and that the children were present during family violence incidents. She said he was obsessed with her and was jealous or bitter towards her. She said the behaviour had been sudden. Nothing in the evidence supports those beliefs for the period prior to August 2008.
By the end of 2008, there were problems about handovers of the children. On 16 October 2008, the mother took K to CAMHS. The notes indicate a litany of concerns about financial matters, K’s celiac diet, her enuresis and sleeping problems at the father’s home. These were attributed by the mother to the children being allowed to watch certain television programs. At this time, the complaints by the mother to South Australian police and CAMHS were relatively innocuous in the context of these proceedings.
The parties began litigation in late 2008 culminating in a family report being released in June 2009. In relation to conflict, the mother said that problems were resolved by a form of mediation. She maintained that C did not wish the existing arrangements of sharing the children to continue. At least in respect of the children, the family consultant noted that both C and P expressed in clear and unambiguous terms a preference for the continuation of the week-about arrangement. When the mother was told about what her children said, she suggested that C had probably said those things to please everyone. The family consultant thought that the children’s demeanour indicated that there was no evidence of undue parental influence or coercion.
As for K, the same family consultant noted the child was concerned about her mother’s level of happiness. Nothing in the presentation of K suggested a problem with her father.
Having regard to the allegations by the mother against the father now being made concerning his behaviour, it is of some significance that the family consultant wrote that the mother had no concerns about the father’s parenting aside from the dietary needs of K and his propensity to denigrate the mother in relation to her mental health. She described to the family consultant the marital relationship as one where there were “putdowns” and social isolation. There was no suggestion of violence.
When released, this family report led to the parties reaching agreement culminating in final consent orders on 2 July 2009. Those orders entrenched the shared care of the children but that was short-lived.
By November 2009, the mother was taking K to CAMHS because she was dissatisfied with the father’s approach to parenting. CAMHS noted that they were concerned that they were being used to assist the mother to “leverage” the father to get compliance with what she wanted. The notes recorded a high level of complaint about conflict in that the father ignored the mother’s requests about medical appointments and diets and generally that he was not communicating with her. Then the following statement appeared:
Further [the mother] speculated that [the father] was emotionally unstable and dangerous, raising the spectre of possible inappropriate sexual material in his house (not actually witnessed) and speculated that he might be using drugs (“where else would all of our money have gone?”).
Despite the seriousness of that notation, the conversation with CAMHS appeared to have been in the presence of C and K and it was recorded that each nodded hesitantly when asked by the mother to confirm her complaints about the father. CAMHS reaction was one of doubt. Whilst the family report writer mentioned above had noted K’s concern about her mother, CAMHS recorded that an expression by K about being worried about her mother.
My assessment of the evidence to this point is that the mother was not coping and had begun to consciously manipulate the children involving them in her dispute with the father which was otherwise innocuous.

The first of K’s complaints

On 27 January 2010, K called an organisation called Kids’ Helpline. This conversation was recorded by Kids’ Helpline. That came to light because it was produced under subpoena. In it, K said that her father was coming into the shower and looking at her. The receptionist asked about whether or not there was a lock on the bathroom door and the child said there was not. That was clearly not correct. She said she felt unsafe and that her father knew that because he kept on doing the same. This conversation was overheard at least in part by the mother who then spoke to the receptionist and indicated she had already told the relevant welfare authorities, the deputy school principal and the police. She then said to the receptionist:
However, this is a bit of a new thing.
The mother went on to say to the receptionist that she had rung these authorities at least 20 times and that the children’s complaints had been in relation to watching scary movies. She said she felt powerless and was getting legal advice.
The mother went further and told the helpline that what the father was doing was very inappropriate and that she had spoken to men who all agreed they would not go into the bathroom with their daughter. Listening to the audio recording, I concluded that K was either standing beside her mother or at least in close proximity. All of that would have reinforced in K’s mind that there was something wrong with her father’s conduct.
K’s statement to the Kids’ Helpline was repeated by the mother to her general medical practitioner two days later.
The father was not telephoned by the mother notwithstanding he was having a shared-care arrangement.
In her affidavit of evidence in chief, the mother’s evidence was more expansive than what K had said to the Kids’ Helpline or she had said to the doctor on 30 January 2010. In her evidence, she said that on 26 January 2010, K had told her about her father coming into the bathroom, opening the shower door and looking at her. She said that sometimes she woke in the night and found him standing there looking at her and that he told her he could do whatever he liked until she was 18 years of age. Importantly, the mother said that she asked K whether the father had ever touched her inappropriately and K said that he had not but she was worried he might do it when she was asleep. She said that K added that her father said that she should have a boyfriend at her particular age. This conversation culminated in K indicating that her father was acting in a creepy way.
At the time these conversations were occurring, the mother wrote the father a letter which on its face seemed sensible and innocuous. She suggested that the father should be more conscious of K’s privacy. That letter and its sentiments have to be looked at in the context of what was happening at that time.
In cross-examination, the mother could not remember what she said to K when the child responded that her father had not touched her inappropriately. She was asked whether she believed that he had the intent to sexually abuse K and she indicated that she thought he did. It was then put to her that the innocuous letter was simply a lie but her response was that she was hoping that it was not true. “It” meant that her daughter had been sexually abused. The letter was troubling because it did not suggest any concern other than what might be seen as a helpful reminder to the father that K was of an age where she might want her privacy respected. If that was the mother’s expressed sentiment, it was certainly not what she was doing behind the scenes.
Even on what K told her, there was no basis for a belief that the father had acted inappropriately.
This incident however unleashed a problem. The mother spoke to the school and went to CAMHS. She acknowledged that she wanted all of her concerns documented. When asked why she had not telephoned or communicated with the father about the real problem as she saw it, she replied that he was hostile towards her and that they had not communicated other than through a communication book for the previous 12 months. When asked why she had not rung the grandmother, she conceded she had not spoken to her for a long time but in hindsight it would have been the right thing to do.
The mother acknowledged that around this time, she gave K a book in which were written all of the telephone numbers for the Kid’s Helpline and the police. It was possible that other numbers including the mother’s friends were there. This book was said by the mother to enable K to understand that not only she could call these numbers but also that it would help her keep safe and record the events when she did not feel safe. This discussion was engendering a mistrust by K of her father without any discussion having taken place. Importantly, K was participating in a significant living arrangement with her father at this time yet he was oblivious of what the mother was saying in the background.

The supermarket incident

On 17 March 2010, K was in the father’s care and went with him to a supermarket to do some shopping. K subsequently told her mother that her father assaulted her in the supermarket. The mother then took K to local police where about six days after the incident, the child was interviewed by a police officer. K was then 11 years of age. At its highest, K asserted that her father had pushed the trolley against her and then he grabbed her by the arm. On any view, this incident was blown out of all proportion and the mother’s taking K to the police station made it worse. It was put to the mother in cross-examination that an assault by the father of K did not make sense but her response was that he had done it because K had “spoken out”. That made no sense. How the father knew about what had been going on to that point is hard to know because it is not in evidence before me.
Importantly, it would seem that the police officer investigating the supermarket incident was not particularly troubled about it so she then proceeded to pursue whether there was anything else that was troubling K. The child complained about her diet and then added that her father had been looking at her in the shower. She said she locked the door of the bathroom but somehow he could unlock it. Whilst that is two months after the Kids’ Helpline discussion, the locking of the door is completely inconsistent with the earlier version to the helpline.
In terms of time, the shower incident was said to have occurred after Christmas so it was only weeks before. She said it had happened on two occasions.
K went on to tell the police officer that her father watched “18+ movies” whilst they were having breakfast but she described those movies as “war and fighting and stuff like that”. No reference was made by K to anything of a sexual nature such as pornographic or sexually explicit magazines or screen savers with skimpily-clad women on them.
Even the mother conceded that upon reading the interview transcript of K, she thought the supermarket incident was innocent although she added that an attempt was being made presumably by the father, to minimise its seriousness.

The mother retains the children

The interview with the police ended with an indication to the mother that no action would be taken. The mother retained the children rather than allowing the father his time under the orders. This led to an unseemly situation in which the father went to the school and collected them but unlike the mother, he returned them to their normal school day the following day. For her part then the next day, the mother went into the school early and removed them. The police were called and the mother was told that she was not permitted to take them from the school. She told the police that she needed to protect the children from their father. The children were present when that conversation with the police occurred.
All of this led to an application by the mother to suspend the father’s time with the children.

The hearing before Lindsay FM

Even before the hearing in April 2010 in the Federal Magistrates Court, the mother told Families SA about magazines that she said were in the father’s possession. In cross-examination, the mother conceded that she told Families SA that the father encouraged the children to read these magazines. No such evidence was given by the mother nor was any similar allegation made by any child along those lines.
The mother’s interim application to suspend all of the father’s time based on the allegations came on before Lindsay FM. The mother was represented by counsel and the matter required a court determination. When Lindsay FM ordered the mother to return to the parenting arrangement under the existing orders, his Honour gave reasons. The mother said that having reflected on those reasons, in hindsight, she had overreacted. Yet when the changeover occurred that very same night as per the orders, it still did not go smoothly. The mother denied that she huddled with the children outside the police station where the changeover occurred. Despite her denial of being anxious and stressed about handing back the children, I accept that is exactly how she reacted and the children saw it all.
Only days after the hearing, a complaint was recorded in Families SA file about the children being subjected to “adult porn and gay porn”. Whilst the file appropriately did not identify the mother and she could not remember making the allegation, she conceded she had used the “gay porn” expression to a family consultant. Because of the age of the children, when asked what they actually said to her, she said it was that they had seen men having sex. She could not remember the specific words used by K but added that the child had reported it to her on numerous times. During the same period, the mother was telling the principal of K’s school as well as her own doctor of the same issues. That clearly indicates that the mother did not accept the decision of Lindsay FM and I find that it was at this point that not only did the mother’s pursuit of the father become obsessive but the allegations expanded.
In April 2010, K saw psychologist Mr M. In May 2010, the mother attended Mr M for the purposes of having someone document her concerns despite Mr M telling her that her approach was inappropriate. His view, acknowledged by the mother, was that a therapeutic approach should be taken. The very next day, the mother went to her personal counsellor Mr S and told him that the father had explicit pornography displayed around the house. Although in evidence, the mother quibbled about what Mr S had written, she describing it as magazines rather than pornography. Mr S was not called to give evidence and his notes were not in evidence but consistent with other reporters of statements of the mother over history, it is hard to see why Mr S would inaccurately record what he understood her to be saying.
In June 2010, the mother reported similar things to the police and the record showed that the mother expressed concern that the father was “grooming” K. The mother conceded that this was the first time she had used that word.
Although the mother said that this was all done to protect the children, I find it was unashamedly to gather evidence as well as cajole the various authorities into taking steps that would have stopped the father’s contact.
The mother’s counsel in final address said that this activity was what was expected of a concerned parent. On any view, that was a nonsense. The children must have been aware of the problem. In his evidence, the mother’s partner Mr E referred (albeit to the following year) to having heard discussions taking place in the household. It is inconceivable on the evidence for me not to find that the children were embroiled in their mother’s pursuit of the father.

K produces a photograph

In June 2010 according to the mother, K returned from the father’s house with a picture on her mobile telephone of what she said was a magazine cover. Although somewhat grainy, the picture appears to be of a woman clad in lingerie. The mother said that K took the photo. Rather than speak to the father about it, the mother went to the police. The police did not see any basis to investigate an offence.

More final consent orders on 2 August 2010

Less than two months after the photo incident, the mother again consented to parenting orders. When asked for an explanation as to why she consented to the orders when she had the photograph in her possession, her curious answer was that she may have got her dates wrong. That could not have been possible because on 9 June 2010, a report was made to Families SA confirming that K had taken a picture. In addition, the police had examined the material and refused to do anything about it. The mother did not give up.
The orders in August 2010 were made with the benefit of legal advice even if the mother maintained that she agreed to them under pressure. That pressure, she said was that she would lose the children. I reject that. The mother freely acknowledged that she was pressured by her lawyer yet nothing corroborated that statement. She had waived legal professional privilege after receiving advice from her counsel. Because I would not accept what the mother said without some corroboration, I reject that she was pressured; she may have been given advice which, in hindsight, may not have been sensible but I do not accept that she was pressured. No file of her lawyer nor any evidence from that lawyer was produced on that subject.
In an anonymous report to Families SA on 9 June 2010, whoever it was, and I find it was the mother or her agent, talked of the children being groomed and if the father was to spend time with the children, it had to be supervised before they were “molested or raped”.

K produces a DVD

Less than a month after the photograph incident and before the August order, the mother said K found a DVD in the DVD player at the father’s home. The mother said that K wanted to know if the father would ultimately do to her what was apparently depicted on the cover of the DVD. The cover produced in evidence appears to depict women gagged and wrapped tightly in some type of plastic. Again, Families SA were notified and the police as well but they were uninterested.
When asked about the DVD, the mother said that K presented it to her the day after returning from the father’s house. Sadly, according to the mother, when K and she discussed all of this, no attempt was made to verify the truth of what K was saying. No suggestion was made that the mother should contact the father or his then well-known new partner. The mother conceded when it was discussed that both she and K were crying.

Ranging over a number of pages in a chart format, counsel analysed what had become known as the supermarket incident to show that K could particularise the event because she experienced it. Counsel did not cross-examine Ms F about what K subsequently said to her concerning that and other incidents. K denied to Ms F what the mother had alleged and what K herself had initially said. I can also point to the father’s evidence on the issue about what he said happened in the supermarket. As I have found, his explanation was believable. It is clear that the police who interviewed K thought the incident innocuous. This was not a case in which the police considered that there was not enough evidence to prosecute. This was simply a case of the child being dragged to the police station by her mother to garner evidence against the father.
In respect of the shower complaint that underpinned many of the mother’s arguments, counsel submitted that the statement by K to the police was “direct evidence” of how she felt. This statement followed with a submission that that evidence indicated a violation of the child’s personal boundaries which was made “more stark by the fact that children still need intimacy of a healthy nature from both parents”.
No evidence was led in this trial about such an assertion. No cross-examination occurred of the family consultant by counsel for the mother that would enable me to make such a finding nor should I make any statement along those lines based on common knowledge.
In respect of the door lock issue, counsel ignored the evidence that did not suit her client’s case. I propose not to deal with that any further. The selective quoting of authorities as counsel did, does not make the submission more forceful. The counsel’s quote from Rivas and Rivas [2010] FMCAfam 55 was hardly helpful.
Counsel then turned to the Facebook incident in which all of the evidence showed that K lied. It was submitted that this particular incident in and of itself was not direct evidence that K’s other statements were false. It was submitted that that was because the statements were highly particularised and exhibited congruent emotions that were involuntary. I am not entirely sure what this submission was intended to say but there is no suggestion that I am finding that K’s “other statements” were false. I am tasked with seeing whether there is an unacceptable risk of harm by exposure of the child to one or more of her parents. I make no criticism of K at all but I certainly do of her mother.
Counsel dealt with the statements of C by saying that they were detailed, age appropriate language and so forth. She concluded that these were therefore genuine events the child had personally experienced. I reject that because of the fact that the evidence does not support it. Counsel chose not to deal with the contrary evidence.
In another unusual submission, counsel for the mother submitted the reason that the family consultant did not “believe” the statements of C and K was because she acknowledged she was not an expert in child sexual abuse and therefore did not recognise “the validity features” in these children’s statements. The family consultant was then criticised for inappropriately relying upon Families SA. These statements (rather than submissions) have no foundation in the evidence above. There was no suggestion that the family consultant believed or disbelieved the children. She evaluated the evidence which was something counsel did not do. Further, the family consultant properly indicated what her experience was and what her role was. To criticise her for not being an expert and then complain that no expert evidence was available to the Court, is a bit rich.
Of the mother’s evidence, her counsel said it was “filtered through a sceptical paradigm”. I reject that if it meant that the starting point was a scepticism about the mother’s evidence. As earlier mentioned, the Independent Children’s Lawyer took an entirely different course after the evidence became clear. That evidence was tested by all counsel. This Court applied s 140(2) of the Evidence Act 1995 (Cth).
Counsel submitted that as both mother and father denied the allegations (made against them) the children’s evidence should be the focus. That misunderstands how children’s views and statements could become part of the evidence.
It was submitted that the mother was “pathologised and demonised”. This submission related presumably to the cross-examination by counsel. I reject any suggestion that the mother was treated in that way. The questions were pointed and at no stage did I see the mother pressurised nor was she treated unfairly. Importantly, counsel for the Independent Children’s Lawyer gave the mother a number of opportunities to provide any further evidence beyond what she had provided. As I have earlier said, the mother may have prepared her own affidavit as the basis of her case but her counsel led nothing more than that evidence and sought no further explanations of the mother in re-examination.
Of the father’s evidence, counsel for the mother submitted that his case was based on inexact proofs, indefinite testimony and indirect inferences. Those words were obviously taken from Briginshaw (supra). This has to be seen as a submission in the light of the father being cross-examined at length by two counsel. It was not put to him that he had sexually abused his children.
Counsel for the mother dealt with the mother’s statement made on day nine of the trial in which she said she would walk away from the children. It was put that she had done this to avoid not being believed in the future if accusations of sexual abuse were made. It was a pity that was not canvassed properly in the evidence in the mother’s case. It was submitted that she would be accused of influencing the children in the future if they had been in her care. That was said with the benefit of legal advice so I have presumed that its consequences were well considered. As the family consultant said in evidence, it showed the mother was not child-focussed. It was very strange that the statement was made before the evidence was closed and at a time when an application to bring forth expert evidence in respect of child abuse was still being foreshadowed by the mother’s counsel. I am satisfied it was an ultimatum by the mother and one that the mother’s counsel presented on instruction and after advice about its impact not only on the Court but on the proceedings.
Counsel criticised an observation by Murphy J in Donaghey (supra) that acceptance of a child’s statement is not the proper starting point. His Honour was referring to some evidence from an expert. Counsel submitted that the research which was not tendered in evidence nor the subject of discussion, supported the witness whose statement Murphy J rejected. I found this submission perplexing having regard to the law.
In criticising the family consultant for relying on research that was requested of her, counsel for the mother did not then tender that research. I am not prepared to rely upon the supposed research much of which is littered throughout the written submission. The subject of research was barely put to the family consultant in cross-examination. This submission formed the basis of an assertion that the family consultant’s opinions were not admissible. That point was not taken at the time and is disingenuous.
I cannot conclude without comment on a statement by counsel that read as follows:
[the children] were interviewed by [police], they were interviewed by three family consultants for the Family Court but they were not interviewed by Fam SA [sic] and they were not interviewed by CPS [whatever that is]. Therefore it is submitted that the least helpful and possible abusive interviewing has occurred for the production of family reports by three different interviewers. These occasions different multiple interviewer family consultants would have been avoided had there been a single expert report sought [sic].
Leaving aside the question of the offensiveness of the allegation about the family consultants, two things are important to note. First, it was the mother who consistently took these children to a variety of people wanting them to tell their stories. It was the mother who ignored her obligations under court orders. She exacerbated litigation that culminated in the Court making orders for family consultants to see the children. She did not produce expert evidence nor pursue the appointment of another expert witness. It was K who did not want interviews to continue yet it was the mother through her counsel who was proposing at the conclusion of the trial that the children be interviewed again by such named persons as a Ms U and a Ms H.
I have laboriously set out my response to this submission for two reasons. First, it will be evident that that the submission was unhelpful. It ignored the critical pieces of evidence that were covered over at least ten days. Secondly, this was a very serious case which had been in the court’s system for years. In those years, the evidence had never really been tested in any of the many hearings but this time, it was and, the mother was found wanting. The testing of the evidence in this case enabled the Court for the first time to not just put the father’s conduct under scrutiny but for the first time, that of the mother. To the extent that the mother’s case was found wanting, its conduct was completely in her hands. She had the benefit of counsel. Witnesses who had things to say were made available by the Independent Children’s Lawyer for the purposes of scrutiny and cross-examination even though they were not witnesses of the mother. I am satisfied that the diligent approach of the Independent Children’s Lawyer and the skilful preparation by counsel for the father was not some “pea and thimble trick” or smart advocacy but a genuine attempt to get to the bottom of what had been going on in the lives of these children. The outcome was quite clear. Accordingly, the submissions of counsel for the mother did nothing to assist me.

Parental responsibility

For the reasons set out earlier, there is no prospect of consultation between the parents and little prospect of any decision being made jointly.
I accept that the father was willing to consult and I find he is very much focused on the children’s development. He is the more responsible parent in respect of medical and education issues. Accordingly, he should have that responsibility solely.

Therapy

Therapy is important for the children if they are to have a relationship with both parents. By the time these reasons are delivered, I hope that will have begun. I will order the mother to attend but it will only be of value is she follows the directions of the therapist.

What is in the best interests of these children?

I have to now turn to what particular parenting order should be made.
The best interests of the children are the paramount consideration (s 60CA). In determining that, the legislature requires the Court to consider the matters set out in s 60CC. Much has been written about the legislative expressions “primary considerations”, “additional considerations” and “meaningful relationship”. I need not repeat those various approaches and authorities.
What I have found on the evidence is that these children would not enjoy the benefit of that meaningful relationship with their father unless an order was made giving him significant control over their lives. Final orders previously made by courts have been ignored by the mother. Had the father accepted her proposal in September 2012, they would have been ignored again.
It is important not to forget the right of these children to benefit in the same way from a meaningful relationship with their mother. They will not benefit, and it will not be meaningful, unless I make orders that control their time and communication with her. They need respite from the relentless pursuit by the mother in proving that they have been, and are, at risk in the father’s care.

The authories about unacceptable risk

The obligation of the Court is to determine whether the risk as asserted that sexual abuse may occur in the future is unacceptable. In M v M (1998) HCA 68; (1998) 166 CLR 69 the High Court of Australia referred to previous approaches to that assessment. Courts have used expressions such as “an element of risk” (Marriage of M (1987) 11 Fam LR 765), “a real possibility” (B and B (access) (1986) FLC 91-758) and “a real risk” Leveque and Leveque (1983) 54 BCLR 164). The unanimous view of the High Court was that the test as to risk was that the court would not grant a parenting order if the parent would expose a child to an unacceptable risk of sexual abuse but there was no onus on the court to make a positive finding that sexual abuse had occurred. The court referred to the satisfaction of the civil standard of proof in Briginshaw (supra). The High Court pointed out the obligation to regard the child’s welfare as the paramount consideration irrespective of the child abuse allegations. The findings of a court about allegations will have an impact upon what is in the child’s best interests. I do not have that difficulty here.
In Johnson and Page (2007) FLC 93-344 the Full Court referred to the paper by the Honourable John Fogarty AM to which I have already referred and indicated that it largely agreed with Mr Fogarty’s summary of the principles. Clearly, “unacceptable risk” is an evaluation of the nature and degree of risk and then whether the risk is acceptable with or without safeguards.
In this case, I am satisfied on the evidence that there is no risk of sexual abuse or psychological harm coming to the children in their father’s care without supervision or other safeguards.
It has been argued that the conduct of the mother is abusive. It is not the abuse as defined in s 4 that I refer to; it is the constant pressuring of the children to believe that what were either innocuous incidents or the mother’s deliberate distortion of facts about C that has placed them in this situation. The perpetuation of their beliefs has drastic consequences for their futures as indicated by family consultant Ms A. The mother’s approach was an abuse of her responsibility as a parent and a failure by her to meet the rights and needs of the children. Her conduct has been an abdication of the responsibilities entrusted to her. It is important for me to work out how to control that so that the children can benefit from a relationship with her. I have no similar concerns about the father and specifically the children being cared for by him. He can and I expect will, meet the responsibilities of parenthood. I turn to the detail of that below.
In respect of other statutory consideration in s 60CC, I have the very clear evidence of the mother about the views of the children. My findings indicate those views were not well-founded but manipulated. The evidence of three family consultants as well as the father’s partner Ms H confirms that manipulation. The children’s views about their mother are a little less clear but I have no doubt that they would wish to have her as part of their lives. They will have that opportunity in the future.
I have analysed the depth of the relationships and it is clear on that evidence particularly of Ms A, that without court intervention, the father’s relationship would have been destroyed. The children deserve better than that.
The mother’s relationship may change but the children will have therapy to enable them to understand both parents better and to be stronger about believing that they are not at risk. In my view, the children believed they were at risk when they last spoke to the family consultant. That belief was without foundation.
The facilitation of the various aspects of the relationships is very much in the hands of the parents. I have every confidence about the father. At no stage did he criticise the mother. Quite the contrary, he said he wanted the children to have a relationship with the mother. I accept that.
The mother needs help to understand the dilemma. Her counsel said in final submission that she would “consent” to doing all the things that should have been done a long time ago. I consider she needs an opportunity to see that she can not only participate in the children’s lives but also be a force for good. She needs to fulfil her responsibilities as a parent. Accordingly, I think a quiet and absent time will not harm the children. That view was clearly expressed by the family consultant. It will give her an opportunity to seek help after considering these reasons. I would not expect a sudden “epiphany”; her evidence made that clear. A process of monitoring is therefore required and I want to avoid the sterility of a clinical environment for the children. I therefore propose some formal supervision in a controlled therapeutic environment then at a contact centre followed by some less restrictive arrangements which will require consultation with the father. It is not appropriate for the mother to simply continue on where she left off but even if nothing changes for her, the children will be older and hopefully able to withstand the suggestions of their mother that they are at risk. The supervisors will have the responsibility to ensure that no suggestion is made by the mother to the children that they were at risk or are at risk.
I clearly understand the children will miss their mother but the family consultant’s evidence is that I need to make orders to help them settle.
The other matters in s 60CC(3) and (4) are adequately covered in my findings save for family violence. The definition of family violence in s 4 of the Act focuses on the reasonableness of a view or a fear. I repeat again, I am satisfied no incident occurred that would justify any findings against the father.
Finally, there was a temptation to make interim orders and review the progress of the children. They have spent the majority of their lives in an acrimonious conflict zone. That fails every one of the principles and objects in terms of the responsibilities of parents. I consider the order I will make should give them an opportunity to have a safety net.
A number of professional and other people integrally involved in the lives of these children may be assisted by reading the orders and the reasons to debunk myths created by the mother but also to help rebuild the broken lives. I propose that those people will have these reasons accordingly.

What is the appropriate time for the mother?

It can be seen that the father and the Independent Children’s Lawyer all sought exclusion of the mother for a lengthy period and that a therapist should control the reintroduction. I disagree.
Despite the negative things I have just said, these children had a physical dependence upon their mother and that came to an end because of the orders I made. The reports of her physical care were good. The educational progress of the children was also good which is an indication that the mother concerned herself with that part of their development. Their emotional dependence on their mother has also been fractured. That relationship was strong according to the family consultant reports. It is important that the children have an opportunity to share in their mother’s life contrary to what the mother was doing to them in respect of their father.
The children will also have missed her spiritual guidance because of their absences from attending church services with her. That seemed an important part of her life and as such, it is something that the children are entitled to share. The children will also no doubt have seen their mother develop a new personal relationship with a partner whom, it is said, she intends to marry. When she was not distracted by these events, the indication from her partner is that she was happy and that would have been important for the children to see having regard to the dysfunctional relationship they had witnessed for a number of years. Thus, the mother has important things to offer.

The children must be prevented from being exposed to the mother’s destruction of their father’s involvement in their lives. The good things just mentioned must be balanced against the risks of a repetition of the mother’s behaviour. A telephone reintroduction sooner rather than later will e3nsure that the children learn that she is still willing to be an important part of their lives whilst the safeguard against her behaviour in the past can be in place pending her getting help. I see no reason why that should not start after the new year begins.
The step beyond that is a reintroduction of the physical attraction but until the children have had sufficient time to adjust and understand that they are in safe hands with their father, the mother needs to be monitored. The Family Consultant thought that would take some months and that there was no simple answer. In my view, the reintroduction again with safeguards should start just after the children resume the school year in 2013. The contact centre can keep a watchful eye on the children and they will have the benefit of understanding why. I expect that after three months, the supervision should cease. I would have expected by then that the children will have had sufficient exposure to their father’s way of life and the therapist’s work; they will also by then understand that their mother will have a much lesser role in their lives in terms of time. I do not intend to have the children revert to a shared care regime having regard to the lack of confidence that I have in the mother’s ability to make that work. The father seemed more optimistic than that and he is at liberty to make whatever arrangements he considers appropriate.

Social media

Concern was expressed about the children’s exposure to social media. There is much debate in the community about it but my intention is to stop the mother using it as a form of communicating with the children in circumstances where that cannot be monitored and supervised. I intend to injunct her having that access to the children accordingly.

Medical centres and schools

As the father will have sole parental responsibility, he should decide on what schools and medical centres the children attend but at the same time, the mother should have access to information from those sources so that she can watch the progress of the children. The father must therefore keep the children attending the clinic with which they are familiar.

Counselling for the mother

On the final day of the hearing, the mother’s counsel said her client would go to counselling. I do not propose to order that because it suggests that there is an air of compulsion about it. If the mother cannot see the benefit of making that course a priority for herself, I suspect there is little that the law can do to help.

I certify that the preceding Three Hundred and Eighty Eight (388) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 December 2012.

Associate:

Date: 20 December 2012

[2012] FamCA 1094

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Evidence

Legal Concepts

Injunction