BEACH & HOFFMAN

[2018] FamCA 1166

FAMILY COURT OF AUSTRALIA

BEACH & HOFFMAN [2018] FamCA 1166

FAMILY LAW – CHILDREN – Best interests – children to live with the father and spend supervised time with the mother

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
Cox v Pedrana (2013) FLC 93-537

APPLICANT: Mr Beach

RESPONDENT: Ms Hoffman

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 7901 of 2013

DATE DELIVERED: 2 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 4, 5, 6, 7 and 8 April 2016;  27 May 2016 and 28 & 29 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tucker

SOLICITOR FOR THE APPLICANT: Damien Greer Lawyers

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Indigo Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting Orders are discharged.

2. The children B, born … 2006 and C, born … 2008 (“the children”) live with the father.

3. The father have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) for the children with such issues to include but not be limited to:

   (a)       the children’s education;

   (b)       the children’s religious and cultural upbringing; and

   (c)       the children’s health.

4. Except in the event of an emergency involving the children, the father is to consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:

   (a)the father shall inform the mother about the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision, in writing; and

   (b)       the father shall give the mother fourteen (14) days to respond;  and

   (c)the father shall consider the mother’s views/response when coming to his decision;  and

   (d)the father will inform the mother of the final decision he has made with respect to that issue as soon as practicable thereafter.

5. Each party has responsibility for daily decisions about the day to day care, welfare and development of the children while they are in his or her care.

6. The children shall spend time and communicate with the mother at all times as may be agreed in writing between the parties and, failing agreement, as follows:

   (a)for two (2) hours each alternate weekend, with such time to be supervised at the E Town Contact Centre or by staff from the Centre at an offsite location or, if agreed between the parties, by a private supervisor jointly engaged by the parties on the proviso that the parties share equally in the costs of the supervision; and

   (b)by telephone each Wednesday (or such other day as may be agreed between the parties in writing) between 6.30 pm and 7.30 pm (or at such other time as may be agreed between the parties in writing) with:

   (i)the mother to initiate the telephone call to a telephone number to be provided to her by the father; and

   (ii)the father to ensure the children are available to receive the telephone call.

7. The father shall be at liberty to determine whether the telephone communication between the children and their mother occurs with the call on speakerphone or not.

8. During the time the children are with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;  and

   (b)       speak of the other parent respectfully;  and

   (c)not denigrate or insult the other parent in the presence or hearing of the children;  and

   (d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

9. The mother and father shall:

   (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change;  and

   (b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the children;   and

   (c)inform the other, as soon as is reasonably practicable, of any serious medical condition, significant health issue or significant illness suffered by the children;  and

   (d)inform the other immediately in the case of any emergency concerning the children;  and

   (e)       keep the other informed of any school attended by the children.

10. Any school attended by the children is hereby authorised to provide to each parent, at that parent’s request and cost, all information about the children’s educational progress and school related activities.

11. Any medical or other health professionals who treat the children are hereby authorised to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the children’s attendance and treatment.

AND IT IS FURTHER ORDERED

1. The Independent Children’s Lawyer is discharged.

2. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beach & Hoffman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7901 of 2013

Mr Beach

Applicant

And

Ms Hoffman

Respondent

REASONS FOR JUDGMENT[1]

[1]I extend to the parties a sincere apology for the extensive delay in finalising this matter. I have revisited and reread my notes, the affidavit material, the exhibits, the expert reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to the transcript of the proceedings. I also note that the parties were told on 9 October 2018 of my intention to deliver Judgment in this matter today. There being no application for leave to re-open the evidence, I have proceeded to finalise the matter by making orders and delivering Reasons for Judgment in support of the same.

1. Mr Beach[2] and Ms Hoffman[3] met and commenced their relationship in or about 1998.  At that time, the mother was 18 years of age and the father 19 years of age. They married in 2005. They have two children together: B (born in 2006) and C (born in 2008).

   [2]The father.

   [3]The mother.

2. After the late December 2012 parental separation, the children remained living with their mother. They spent sporadic time with their father, including supervised time. The circumstances surrounding this time, the mother’s support (or alleged lack thereof) for it and the nature of the children’s relationships with each of their parents from separation until late December 2015 will be the subject of consideration later in these Reasons. 

3. On 22 December 2015, the children’s living arrangements changed. An order made that day provided that they live primarily with their father and, after a period during which they were not to spend time with their mother, spend supervised time with her each alternate weekend. The December 2015 order also accorded the father sole parental responsibility for the major long term issues relating to the children. At the trial, the father sought to maintain the existing parenting regime, whilst the mother sought that the children return to her primary care and spend unsupervised time with the father.

The Proposals

The father

1. The father contended that it was in the children’s best interests for him to continue to have sole parental responsibility for major long term issues relating to them. He also advanced that their best interests would be met by continuing to live with him and spending supervised time with their mother (either at a Contact Centre or by a person mutually agreed between the parents) for two hours per fortnight. He proposed that the children be able to communicate with their mother once per week by telephone.

2. The father relevantly proposed that, upon the mother’s treating psychiatrist providing notice in writing to the Independent Children’s Lawyer of his or her opinion that the children’s time with their mother could be unsupervised, a review of the parenting arrangements occur. Such review would also be conditional upon the children’s counsellor and the supervisor not raising concerns about the continuing contact between the children and their mother, and the mother not sending text messages or other similar communication of an abusive or unwelcome nature. He did not advance what the children’s time with their mother might look like after such review.

3. The father also sought that the mother be restrained from coming within 500 metres of his residence, the paternal grandparents’ residence or the children’s school or extra-curricular activities.

   The mother

4. The mother proposed that she have sole parental responsibility for the major long term issues relating to the children. She sought that they return to live primarily with her and spend time with their father each alternate weekend (from Friday after school until the commencement of school the following Monday), for half of each gazetted school holiday period, on Father’s Day and on their birthdays. She proposed that the father collect the children from school at the start of their time with him and return them to school at the conclusion of the same and that any changeover which occurred on a non-school day be facilitated by the E Town Contact Centre. She also proposed that the children speak with their father by telephone twice each week.

5. The mother sought that each parent be restrained from denigrating the other (or members of the other’s family) in the presence, or within the hearing, of the children and that each parent encourage, and not undermine, the children’s relationship with the other parent. She proposed that she continue to attend upon her treating psychiatrist as directed by that person and that the parents communicate via email no more frequently than once per week about parenting issues.

   The Independent Children’s Lawyer

6. The Independent Children’s Lawyer proposed[4] that the children continue to live with the father and that he have sole parental responsibility for major long term issues relating to them, on the proviso that he seeks the mother’s input into the same and takes her input into account in making his decision.

   [4]By way of submissions.

7. The Independent Children’s Lawyer also proposed that the children spend supervised time with their mother and communicate with her by telephone twice each week and also on specified occasions which include birthdays and Christmas Day. It was advanced that the children continue to attend on Mr F for any necessary counselling until arrangements could be made to transfer the same to another counsellor located in the Brisbane area (Ms G if no agreement about this could be reached) and that, save for in emergency situations, parental communication occur via telephone.

8. The Independent Children’s Lawyer also proposed that the parents attempt to make arrangements for the children’s supervised time with their mother to move “off-site” if the relevant Contact Centre could accommodate this.

Relevant History

1. In order properly to understand what resulted in the children’s primary living arrangements changing so significantly in December 2015, it is necessary to appreciate that which occurred during the latter aspects of the parental relationship and between the December 2012 parental separation and the making of the December 2015 order.

2. The family spent a large amount of the marital relationship living in H Town, Central Queensland. Ms J and her then husband also lived in H Town at that time. The four adults were friends. The father and Ms J commenced their relationship in May 2012. They are now married and have children together.[5]

   [5]At the time of the hearing they were expecting a second child.

3. It is accepted that the mother, who has a disability and some mild learning difficulties, experienced mental ill-health from no later than about November 2011 onwards. She was hospitalised in a Brisbane hospital for about six weeks from about March/April 2012. After she was discharged, the family lived with the maternal grandparents on their property near K Town. At that time the father was working a two week on/two week off roster from a base at L Town. After the father obtained a transfer to Brisbane, the family moved to live here in about August/September 2012.

4. The mother was readmitted to hospital in December 2012 and remained there until January 2013. She was diagnosed as suffering from major depressive disorder and underwent 13 sessions of electro-convulsive therapy; she has subsequently been prescribed medication to assist with the management of her disorder and has participated in cognitive behaviour therapy under the overall management of a treating psychiatrist.

5. I accept that, with the assistance of members of their extended family, the father cared for the children during the mother’s admission to hospital. I also accept that he ensured that the children visited their mother in hospital several times each week.

6. It was during the mother’s December 2012/January 2013 admission to Q hospital that she learned that the father had been having an affair with Ms J, whom, until then, she had regarded as her best friend.

7. The father said he and the mother had agreed that, in order to maintain some consistency for the children given the marital separation, they would continue to care for the children in Brisbane after she was discharged from hospital. However, after her discharge from hospital on 25 January 2013, the mother immediately instructed her solicitors to inform the father that the children were now living with her at the maternal grandparents’ property near K Town and were going to attend a local church school. I accept that the tenor of the communication was very much “this is how it is going to be.”

8. I accept that the mother did not consult with the father at this stage about these changes and that she unilaterally implemented them. However, I also accept that, having been told that the marriage was at an end, the mother wanted to return to the support of her parents.

9. The mother and the children lived on the maternal grandparents’ property near K Town from about mid-January 2013 until December 2015. The mother has continued to live there. The father and Ms J and their children live at Suburb M in Brisbane. B and C have lived with them there since late December 2015.

The aftermath of the marital separation

1. I consider it much more likely than not that, almost immediately after learning of the father’s involvement with Ms J, the mother told the children that she was no longer friends with her; that she did not believe that she was a very moral person and that “[John]” (their father) was a big boy who could make his own decisions. I accept, as more likely than not, that these types of conversations preceded B sending her father a text on 8 January 2013 in which she said (amongst other things) that “… if you love me and [C] then don’t hit me and [C], and get rid of [Ms J] and her stinky baby”.

2. This is but one of numerous text messages ostensibly sent by the children (mostly, B) to their father at various times. Whether the mother was the author of any of these or was involved in their creation (each of which possibilities cannot be discounted completely), it is clear that they were sent to the father from a mobile phone she owned. It is clear she made the phone available to the children on occasions. Despite this being the only sensible conclusion and despite the children’s ages at the time (namely, ten and eight years of age respectively), the mother initially denied that she read the texts sent from and received by this phone or monitored it: she said the children’s counsellor had advised her to let them have a phone so that they could vent to their father without her being involved in the communication; she also maintained that she did not supervise the children’s use of the phone.

3. I do not accept that the mother did not oversee the children’s use of the mobile phone. I do not believe that she would have been able to refrain from monitoring it. I also note that she later admitted that she looked at the contents of the phone on occasion and that, whilst she had not read all of them, she had read some of the messages on it. Given that the mother also accepted that she had told the father to use that phone number to communicate with her, I struggle to accept as likely that she did not monitor it closely.

4. The way in which the mother gave evidence about this mobile phone provides an insight into the manner in which she approached much of her evidence and indicates the basis for the care that I have determined must be taken in assessing the same. That is, whilst she first said that it was “the children’s phone” and that she never looked at it, her evidence evolved to be that the phone was there for the children and her to use and that she would not even say it was the children’s phone: rather, it was “simply a phone that the children and I use to communicate with [John]”.

5. I consider it established that the mother told the father to use the telephone number to communicate with her and then enabled the children to have access to it and to use it to send texts to their father, which contained abusive comments. I also accept as more likely than not that the mother was involved in this process, to the very least in the sense that she read the texts and, thus, knew what the children were saying to their father and, equally importantly, the manner in which they were “speaking” to him via these texts. The contents of the same easily demonstrate the extent to which the children were exposed to their mother’s anguish, hurt and anger about the end of her marriage and the father’s relationship with Ms J.

What happened between separation and the April 2013 mediation?

1. It is uncontroversial that between about mid-January 2013 and April 2013,  the children’s time with their father was relatively sporadic and amounted to time on a couple of weekends only.

2. According to the notes kept by the school counsellor with whom B started to communicate after she started at N Church School[6], B and C both wanted their father to come back to the family and were distressed at the news of the baby and hostile towards Ms J in late February 2013; in early March 2013, B referred to seeing her father most weekends and said that she “can’t decide whom to live with”.

   [6]As summarised by Ms O in the first Family Report.

3. The mother alleged that, on 17 March 2013, she and the father met to facilitate the children returning to her care after spending time with the father. Her account is that, when she was standing between the car and the trailer, the father got into the car and drove off, causing the trailer to hit her. She said she suffered a dislocated jaw and bruising. There is no evidence to suggest that any report was made to police or hospital about these asserted injuries.

1. The father said that his car and the mother’s car were parked next to each other; they were standing behind the mother’s car talking, but this developed into an argument. He said he was not going to continue to argue: he turned, walked around and hopped into his car to drive away; he started the car and checked the mirror and drove off. He did not see, feel or hear the trailer hit the mother at all.

2. The father said that the mother later called him, accused him of trying to run her over with the trailer and alleged that he had dislocated her jaw. On the evidence before me, I am not persuaded the father attempted to run the mother over with the trailer or that he caused her to suffer a dislocated jaw.

3. I note that the father accepted that, during a telephone conversation on 12 April 2013, he could have told the mother that he hated her and that she could go and get fucked.

The children’s interaction with their father from separation until April 2013

1. On 23 April 2013, the parents attended a mediation. They agreed upon the terms of a Parenting Plan. This provided that the children would live with their mother and spend time with their father each alternate weekend (from Friday night until Sunday night), each alternate Wednesday (presumably after school) and for half of the school holidays. It was also agreed that the family would attend family therapy.[7]

   [7]          Family Report dated 25 November 2013 at [94]

2. It is agreed that, when the parties implemented the April 2013 Parenting Plan, changeovers were conflictual.[8] On the mother’s account to the Family Report Writer[9] (Ms O), there was constant conflict: she said the father would telephone her, swear and say that he hated her. The father said changeovers became extremely distressing for the children: he said the mother would telephone him while driving the children home and, whilst the telephone was on speaker, would accuse him of being a bad father, of being a liar, of having an affair and of not loving the children.[10]

   [8]          Family Report dated 25 November 2013 at [103, 105]

   [9]Who authored the Family Reports prepared to assist in this matter.

   [10] Family Report dated 25 November 2013 at [105].

3. During her cross-examination, the mother denied that she was the person responsible for instigating and maintaining the conflict that engulfed the parents and children at that time. Whilst she rejected the suggestion that, every time the father returned the children to her care, she called him during the drive home and verbally abused him, she accepted that she had called him on occasion. She also accepted that, during these calls and in front of the children, she said things to him like he was a “bad parent”. I accept that the telephone calls which happened in the children’s presence rapidly descended into abuse and denigration toward the father; there is no doubt at all that the children would have been left with no doubt about their mother’s views of him, which included that he was a bad parent and a liar and had had an affair; I also think it highly likely that the mother’s  distress and anger at these times was such that she was simply unable to refrain from expressing her derogatory views of the father.

4. According to the notes kept by the school counsellor, B was still enjoying her time with her father in April and early May 2013, but wanted him to come back to the family and resented Ms J’s presence.

5. According to the notes kept by N Church School, C told Mr P (the counsellor) on 23 May 2013 that his father said bad things about his mother; when asked what they were, he said that his father had said that she was a bad person and that is why God gave her the disability. The father denied ever making any comment like that to the children at any time about their mother. I accept his evidence in this respect: I note that he accepted telling the children on occasions that their mother was sick – as she was on occasions. Whilst he denied telling them that she could not look after them, it is uncontroversial that, on occasions, the mother was hospitalised as a consequence of illness and could not look after the children.

6. I consider it easily established that, as a consequence of the mother’s decision to call the father whilst the children were with her in the car, to speak to him via speaker-phone and to speak to him in the manner that she did and about the topics that she did, the children were exposed to the content of unconstrained verbal arguments between their parents. By way of example of the nature of the arguments to which the children were exposed as a consequence of the mother’s decision to speak with their father via speaker phone when they were in her care in the car, I accept that, on 25 May 2013, she yelled at him and told him that he was a “fucking liar.”

7. I also accept that the mother told the father on a number of occasions of her view of him as a person who does not tell the truth. Given his admitted affair with Ms J, there is, objectively viewed, a rational basis for the mother’s assertion and I accept her evidence that she thought his actions warranted her forming that view. I accept it is highly likely that the children have been present when the mother told the father of her view of him. I also accept that it is much more likely than not that the children were very aware, from almost immediately after their mother’s discharge from hospital in January 2013 and their move with her to live with their maternal grandparents, that she thought their father a liar and a bad parent. There could be little doubt that they also knew that their mother was hurt and upset as a result of their father’s decision to end the marriage.

8. According to the notes kept by the school counsellor, both children were angry toward their father in late May: they reported that he was saying “nasty” things about their mother, including “god gave mummy [the disability] because she’s a bad person”.

The children are to spend a block period of time with their father: June 2013[11]

[11]The parents disagree about when this time was to occur: the father says it was to start on 2 June 2013 and the mother says it was to start on 21 June 2013. 

1. According to the terms of the Parenting Plan, the children were supposed to spend time with their father for ten consecutive days in June 2013. I accept that, when the father arrived at the school to collect the children, B had gone to the office and was waiting for the mother to collect her; I accept that, after B asked him to, the father called the mother who told him that she was on her way to the school and would be about 15 minutes. I accept that the mother also insisted that she had to see the children: during her cross-examination, she said she said that because the school had called her to tell her how upset the children were. The mother also said, during her cross-examination, that whilst she accepted that she could have managed the situation by asking the father to put the children on the phone rather than insisting that she travel to the school, she did what she thought best at the time.

2. The mother accepted that, having told the father that she wanted to see the children, she met him and the children at the K Town McDonald’s. She also accepted that she then told him, in front of the children, that he was a “bad father”. She denied telling him that he was a “fucking liar” or that he “didn’t fucking care” about his children. However, given her evidence that she was then angry with the father and that her understanding of an aspect of the cognitive behaviour therapy in which she was engaging included that it was better to tell people what she was thinking rather than keep her thoughts to herself, I think it much more likely than not that she made these comments too.

3. I accept that the mother then told the children to put their shoes on and that they were going home with her. However, the father had put C into his car seat in his car. I accept that the mother repeated that the children were going with her. On her account of what transpired, the father was “manhandling” C, who was crying: she said that, having seen the father carry a crying C to his car, she did what she believed any mother would do and told him to let the child go; she said she told C it would be okay and that he was going with her.

4. The mother said that, in hindsight, the right thing to do would have been to calm C and reassure him that it was okay to go with his father – especially given that that was what the agreed Parenting Plan provided. However, she also maintained that, given both children were absolutely hysterical, logic did not come into it and she was in “flight mode”.

5. The mother accepted that, by this stage on this day, B was in her car. She denied yelling to B to “lock the fucking door.” However, given her “flight-mode’ functioning, I think it much more likely than not that she did. I also think it much more likely than not that she pulled at C’s arm to get him out of the father’s car.

6. The mother accepted that she then contacted her lawyer. The mother agreed that she told the father that her lawyer had said that the children would stay with her. I think it highly likely that she yelled words to this effect at him as she drove off with the children. I also accept as more likely than not that, after the mother had driven off with the children and whilst they were in the car, she called him to tell him, in essence, that he did not care for the children.

7. Despite this unedifying interaction – which can only have further cemented for the children that fact that their parents were in significant conflict about matters pertaining to them – the father said that the children spent time with him during that holiday period and on a few occasions thereafter, albeit not in accordance with the terms of the Parenting Plan but as agreed with the mother. He said that these interactions went well and I accept his evidence in this respect.

8. I note that, whatever her intention at the time she agreed to the terms of the April 2013 Parenting Plan, it is accepted that the mother subsequently became involved in the children’s previously agreed time with their father on two occasions, with the result that this time did not occur.

9. I think it much more likely than not that the mother was unable to restrain herself from acting to frustrate the implementation of the agreed April 2013 Parenting Plan. I also accept that the fact that the parents reached agreement, as reflected in the Parenting Plan, did not mean that they had resolved their underlying issues.

The scratch to B’s leg: 7 June 2013

1. I accept that the children were supposed to spend the weekend with their father at his home in Brisbane, commencing on Friday 7 June 2013. However, that did not occur.

2. I accept that, when the father spoke with the mother on the evening of 7 June, she swore at him, called him a bastard and told him that B wanted to go home; I accept that she also told him that the children should return to her and that she was coming to get them; I accept that, as he was concerned that the mother would turn up at his home and cause a scene in front of the children, the father decided that, to try and keep the peace, he would agree to meet her at McDonald’s Suburb KK so that she could collect the children.

3. Consequently, rather than spending the weekend with their father, the children returned to their mother’s care after only a few hours.

4. The mother said that B then told her that her father had deliberately scratched her with his keys because she said she did not like Ms J. She said B had a scratch on her leg.

5. When cross-examined about this allegation, the father denied that he deliberately harmed B or that he had injured her because of any comment she made about Ms J; he said it was possible that, when he carried B to the car (having attended at school to collect the children for their intended weekend time with him), it was possible that his car keys had scratched her leg and that, as she was then hysterical, it was possible she later told her mother that he had poked her with them. I accept his evidence in this respect; I am not persuaded that the father deliberately poked B with his car keys with the intention of causing her harm. Even if I am wrong in this conclusion I note that the mother accepted that, irrespective of what happened that day, B was not significantly injured.

6. I also note that, according to the notes kept by the school counsellor during June 2013, B provided the counsellor with conflicting accounts of the June long weekend: she claimed at one point that the father deliberately jabbed her in the leg with car keys causing a bruise, and at another time claimed that he was only joking around. At about the same time, she reported that her father physically hurt her and called her mother “stupid” and her grandparents “idiots”.

7. It is clear that, after this incident, the children’s relationships with their father deteriorated significantly; it became increasingly difficult for him to collect them from school at the commencement of their ostensibly agreed time with him.

8. I think a further relevant event occurred when the father’s daughter with Ms J (D) was born in 2013. I accept that the children first met her when she was two weeks old (in about mid-July 2013). I accept that they were initially excited and affectionate towards her but, on the second occasion they saw her, that B appeared conflicted and unsure about what to think about the baby.

9. According to the notes kept by the school counsellor, B told the school counsellor on 16 July 2013 that her father had threatened to lock her in her room if she did not like Ms J; she said he told her that Ms J would be their “new mum”. She also reported that the father told her it would be “better if mummy jumped off [the bridge] and did everyone a favour”.

10. During his cross-examination, the father accepted that, during a heated telephone conversation with the mother, he said words to the effect that, if she jumped off a bridge everyone would be happier. That is obviously a highly inappropriate and hurtful comment to make. I accept that it is quite possible that the children overhead such comment, although I accept that at the time it was made they were not physically in their father’s care but were with their mother.  The father denied telling the mother that he wished she was dead (although the comment about jumping off the bridge has that obvious implication). He also denied that Ms J made any inappropriate comments about the mother in the children’s presence. He said Ms J referred to the mother as “your mother” when speaking to children about her. He denied ever telling the children that Ms J was going to be their “new mother”; he also said he had never heard Ms J tell them that. I accept his evidence in this respect.

11. According to the notes from N Church School, C approached Mr P on 24 July 2013, pulled his tracksuit pants up to show him a bruise on his left lower thigh and said that his father had pinched him and made him cry; had bitten him on his left shoulder/upper back and then smacked him on his bottom with his hand. C also told Mr P that he did not want to see his father again and disliked Ms J because she swore at him.

12. I accept the father’s denial of pinching or biting C on any occasion. I also accept that, whilst he had previously smacked him on the bottom with his hand, this occurred prior to the marital breakdown. I also accept that Ms J had not sworn at C.

13. The events of 24 July 2013 provide a clear example of an occasion on which the mother monitored the texts sent by the children/or one of them. I consider it clearly established that, on that occasion, the mother permitted B to send her father a text in which she told him that “we don’t want to see you again”; that he had the chance “to fix this” and that he should stay away and live his own life without her and C. I accept that, when the father then replied to tell the mother that he had sent his previous message about coming to see the children the following Wednesday to her, she replied that they had a “right to know.”

14. I also accept that the mother allowed B to send a further text in which she referred to the father, Ms J and D in terms which included the following: “…you know how we feel about you, [Ms J] and her steeky [stinky] baby….. You thought your life is better with the rat and steek baby so live it bur not with me”.

15. I do not accept the mother’s evidence that she was not aware of the content of these text messages before B sent them. This is because it is clear that, in between them, she sent the father a text in response to his text to her. I think it highly unlikely that the mother read only some, but not all, of the children’s text messages to their father at this time: I think it highly unlikely that she would then have been able to restrain herself from doing so.

16. A further example of the way in which the mother managed the children’s (or at least B’s) use of a phone to text their father can be seen in the texts sent on 25 July 2013. The communication began with the father asking the mother whether she wanted a bed that was still in the house at H Town. After she sent him three consecutive short texts in which she told him that she wanted her possessions from H Town and Brisbane, the following text was sent: “Dad until u understand how me and [C] feel about u the rat and steeky baby we don’t want to talk to u or see u . U had chance to fix my family and make things right from [B] and [C].”

17. During her cross-examination the mother said that she believed that, in permitting the children to text their father in the manner that they did, she was following the suggestion of their then therapist to the effect that she should allow the children to “vent” against their father. She denied encouraging them to send the father the texts that they did. Whether she initially positively encouraged this behaviour (and/or acted on the therapist’s suggestion that the children be allowed to “vent” to their father) or not, it is clear that she acquiesced in them sending him such communications. The mother later conceded during her cross-examination, this course of action was unhelpful. In fact, I think it much more likely than not that it was positively harmful to the children’s relationships with their father.

18. Given the other aspects of the evidence which persuade me that the mother is a person who does what she thinks is appropriate and is not a person whose views can be easily changed once she has arrived at them, I consider it much more likely than not that she would not have acted on the suggestion she says she received unless she agreed with it.

19. I accept that, after D’s birth, the mother told the children that, in choosing that name, their father and Ms J had chosen a name that she and the father had chosen for C when they thought he was going to be a female child. I accept the mother’s evidence to the effect that she told the children she was disappointed that “[John]” (their father) was “that disrespectful” that he chose the name that he did for his and Ms J’s daughter. I accept the mother also told the children that she was concerned Ms J did not know the history behind the name “[D]”. I note that the mother was matter-of-fact in saying that she had told the children about her disappointment.

20. I consider it much more likely than not that the mother’s decision to tell the children what she did about D’s name resulted in B sending her father a text on 26 July 2013, the contents of which included the assertion “you know I remember the baby name, it hurt and upset me and you just don’t answer me”.  

21. I also note that, when the father, in effect, challenged B about why she had not said anything to him about D’s name when with him, she said that she had not because he would hit her and be madder; when he replied that he did not hit her, she maintained that allegation and also told him she had spoken with her mother’s friend, who had remembered about D’s name. B told her father that it was true that he hit her and C all the time and that he was a liar and a bad dad and that he was destroying their lives; she texted that he lied and hit and cheated and made up stories. I consider her use of the word “cheated” to be particularly telling and evidence of the detail her mother had chosen to give her children about matters which led to the marital separation.

1. I accept that the mother also told the children that she thought their father’s behaviour toward her was disrespectful, hurtful and very mean. I also accept that she was upset when she told the children this. Because of her view that all emotions should be shown and that she should not lie to her children, I consider it much more likely than not that the mother exposed the children to the full force of her negative and critical views about the father and Ms J. However, given the accepted manner in which she dealt with the “issue” of D’s name, I am less accepting of her evidence that she did not think that she needed to go into detail with the children about what had happened to make her feel as she described about him, or that she only told them “I’m upset” or “I’m disappointed” with, or about, things their father had done. Rather, I think it is much more likely than not that the mother was simply unable to contain herself in front of the children and drew no distinction between matters which it may have been appropriate to discus with them in an age-appropriate manner and all that she, as an adult, was experiencing.

2. I accept that the mother acted as she did with the absolute expectation that the children would want to “do something” about how she was telling them that she was feeling and to try to do whatever they could to help her not to feel upset.

3. The mother did not believe that the children were mirroring her feelings and views in their interactions with their father. However, I think it much more likely than not that this was the case. In arriving at this conclusion, I have accepted that, for B in particular, some of her comments may have had an element of her own feelings and views, particularly after she was exposed to the manifestations of the hurt and upset that her father’s actions caused her mother. I certainly consider it much more likely than not that the children would have been better able to manage and process the changes in their lives had they been better shielded from exposure to their mother’s hurt and anger about the same.

The Racecourse incident: 31 July 2013

1. The father accepted that, when he collected the children from N Church School this day, B was resistant to spending time with him; he said her resistance was such that she may have suffered a bruise as he carried her toward his car.  She was seen to be kicking and screaming at him; a report was made to the Department of Communities, Child Safety and Disability Services. He said that, as he did not know many places to go around K Town, he decided to drive to the racecourse so that he could throw a ball around there with the children. However, B ran away up the street, yelling for her mother. It would appear that a further report was made to the Department by a member of the public who observed B’s distress. The father and C ultimately followed her and eventually picked her up.

2. When cross-examined about this incident, the father said he did not recall if he slapped B on her left knee; he did not recall pinching her and did not recall her complaining to him about a bruise on her left leg. He accepted that she was upset when she ran away from him.

3. The father also accepted that, on this day, he and C had been throwing twigs back and forth at each other; he accepted that C was hit on his forearm with a stick during their game. He said that, whilst the stick scratched C, he did not appear distressed at the time. I accept this evidence.

4. I accept that, after the children returned to their mother’s care, she telephoned the father from the car (whilst the children were present) and accused him of hitting C with a stick and smacking B. The father accepted that, to the extent that C had been scratched by a stick, there was an element of truth in the child’s recounting to his mother.

5. I am not persuaded that the father deliberately hit C with a stick in order to hurt him on this, or any other, occasion. I am not persuaded that he deliberately harmed B on this occasion.

6. The father was subsequently telephoned by the K Town police and questioned about the events of that day. I accept that, after he told the police his version of events, they informed him that his version accorded with that provided by the children. I also accept that the police investigation determined that there was insufficient evidence to corroborate the claims the father had deliberately hurt his children.

7. The father accepted that, on other occasions when he attended at the school to collect B, she yelled and screamed and punched him. I accept his evidence to the effect that, at the time, he did not think that B’s behaviours toward him were the result of her mother’s influence but, rather, because she was very emotional about the parental separation. I also accept that he thought that, as she had been exposed to the content of various telephone calls between him and her mother – and, thus, to a lot of parental arguing – this might have been another cause of her behaviour toward him.

8. The extent of B’s tantrums when her father arrived at the school to collect the children to spend time with him was such that he had to physically pick her up and carry her to the car; during this she kicked out and bit him. Further, on occasions, B ran away from her father, screaming for her mother. Her evident distress at changeovers resulted in the school noting reports about this from other students and parents; a member of the public made a report to the Department and, eventually, the school withdrew from any role in facilitating changeovers on its premises.

9. I accept that, on 1 August 2013, B sent her father a text message in which she said, amongst other things, that they did not want him to pick them up the next day and did not want to go with him for the weekend. I accept she told him that he had hit her and hurt her; she said that she and C had talked and they did not want to see him anymore. She told him that he had to pick between her and C or “[Ms J] and the steeeky baby”. She also told him that he treated them like “a door mat” and did not need them anymore. I accept that, during August, she also texted him to tell him that “they” hated Ms J; that what he and Ms J were doing was a wrong thing and was breaking God’s law and breaking their hearts and that he was bad. I also accept that the mother knew the children (or B alone) were sending such texts and that her response then (and later) was that it was fine with her if that was how the children wanted to text their father.

10. The mother accepted that, after she made a report to the Department, officers attended at her home.  According to a Child Concern Report created on 2 August 2013, this related to an occasion when the father collected the children from school to spend time with him; he was carrying B to the car; the school was concerned and notified the Department; after B returned to her mother’s care, the mother noticed a bruise. She said this happened just before the children were to have a sleep-over at their father’s home. It seems that, when the mother took B to school the next day, she went into the classroom with her: B went straight to her teacher’s desk and pulled up her shorts and said that, when she went with her father the day before, he had hurt her; she pointed to a bruise on her left thigh and said he had pinched her. She also said he had hurt her arm and showed her right forearm and told the teacher about the bruises. The school records include that there was a clear bruise.

11. Having investigated this and other complaints made about the father, the Department concluded that none were substantiated. No further action was taken against him.

The mother suspends the children’s time with the father: August 2013

1. On 2 August 2013, the mother’s solicitor told the father that his time with the children was suspended. That is, the mother had decided not to follow the agreed terms of the April 2013 Parenting Plan which provided that the children would spend time with their father on 14 August 2013. Save for the incident that occurred at the school that day, the children did not spend time with him for about six weeks thereafter. As I understood the evidence, the rationale she expressed to Ms O for this decision was that what she regarded as the children’s experience of being physically injured and emotionally abused while in their father’s care led to her feeling that she had no choice but to suspend their time with him.

   The 14 August 2013 incident

2. The mother said she saw the father at the school that day: her view was that he was there in an attempt to see the children (despite having been told earlier by her solicitor that they were not going to be allowed to spend time with him). During his cross-examination, the father said he was at the school because he had a meeting at the school with the school counsellor (Mr P). However, his recounting elsewhere was that he had arrived at the school early to collect the children for their time with him and had also arranged to speak with the school counsellor at that time. I think it more likely than not that the father had decided that he would attempt to at least see the children at the school, especially given that the mother had acted unilaterally in determining that she would not adhere to the agreed terms of the Parenting Plan.

3. I accept that the father saw the mother arrive at the school at 2:15 pm and that, when she saw him, she went to the office. I accept that he left some mail for the mother on her windscreen. I accept that the police were called and attended: whilst the mother may well not have actually made the call, I think it highly likely that the school acted at her instigation. I accept that the police escorted the children and the mother from the school grounds. I accept that, during this process, C waved at his father and called out “there’s my dad.” 

4. I accept that each parent later applied for a Domestic Violence Order against the other and that both of these applications were later withdrawn.

5. I accept that, after this incident at the school, the children spent no time with their father during August/September 2013. I accept his account to Ms O that the time that did occur after the approximately six week hiatus was, at the mother’s insistence, restricted to involving only him: Ms J and D were not allowed to attend.

6. I note that the mother told Ms O that, when the children returned to her care after spending time with their father, they said things like “[Ms J] is going to be our new mother and [D] is our new sister”, “Daddy says that we will soon be living with him”, “daddy says mummy is sick” and “daddy wishes mummy jumped off a bridge”.

7. I accept the evidence given by both the father and Ms J that neither have ever told the children that she is their “new mother” or that they have to call her “mum.” Because of the interaction between the two former couples before the parental separation, Ms J was known to both children. I accept that it is likely that they told the children that D was their “new sister” – as she is. I accept that, on occasions, the father may well have told the children that their mother was sick – as she had in fact been.

C is interviewed by police: about 16 August 2013

1. The police investigated the allegations that the father had hit the children and bitten C. C was interviewed by police on about 16 August 2013. During the interview he said that he and B were not happy when their father attended at the school to collect them because he yelled. He could not recall any occasion when his father collected them from school and took them to McDonald’s. When he was asked if his father had ever bitten him, he said “No.”

2. Despite the assertion that he was in the backseat of the father’s car during the alleged assault of B, C made no disclosure about that: the only injury he said B incurred as a result of her father’s actions was a bruise on another occasion.

3. Following their interview, the police concluded “report unfounded”. However, the report of the interview included the comment that both children were aware of the tension between their parents.

4. When the content of C’s interview was raised with the mother in cross-examination, her response was that she believed C was under a lot of stress that day as he was a little boy and did not want to get his father into trouble. This answer is certainly consistent with her overall view that he children have been physically harmed by their father.

August 2013 text messages

1. As noted above, I accept that the children did not spend time with their father for about six weeks after he was told on 2 August 2013 that the mother was ceasing their time with him.

2. I accept that, on 21 August 2013, the father sent a text message in which he said that he loved the children. In response, B sent him a text in which she asked whether he loved them more than “the rat”; that text was immediately followed by another one in which B told her father that she was not dumb; that by him not answering her question showed her that “the rat” was right: that he cared more about her than them; she told him that he was not her dad anymore but a “mean useless perthic and gutless lieer.” She ended by saying “hope you have bad life with the rat and her dum steeky baby.”

3. It is pertinent to note that, on 26 August 2103, a text message was sent to the father in which it was asserted that “Dad it was me texting and no one else I text because I don’t want you to talk…mummy has help with spelling that it these my worlds; they are from me and how I feel and C too; if you don’t like it tell me and stop blaming mummy it was all me I will stop text now I thought it was ok to text you from B and C: o this beteen me you and C and no one else.”

4. The contents of this text confirm the mother’s knowledge of, and involvement in, B’s texts to her father.

5. I also note that, according to the notes kept by the school counsellor, B maintained her anger towards her father in August and September 2013: she spoke to her counsellor about never being able to forgive her father for what he had done, but the counsellor had urged her to reconsider this position, given the Ten Commandments.[12]

   [12] Family Report dated 25 November 2013 at [146].

The father seeks that the children’s time with him recommence

1. I accept that, on 9 September 2013, the father asked that the children recommence spending time with him. I also accept that, on that day, C (or the children) sent their father a text in which they expressed comments which included that they had tried to put their family back together after he left them and got a new family; that they were so upset and hurt by him; that they hated how he talked about their family; that he said that he loved them and wanted to see them but, when he did, he was with Ms J and her baby and not them; that she lied and said mean things all the time and that they did not know why he picked her over them and that they were telling him this because they were sad and hurt.

2. The mother denied encouraging C (or the children) to communicate with the father in this manner and said it was just a coincidence that this text was sent on the very day, after about six weeks had passed, that the father asked for the children’s time with him to resume.

3. In the absence of the other matters discussed in these Reasons, I might have been persuaded that the mother’s account was likely. However, given her own evidence that she thinks it appropriate that the children know the truth about things that are happening around them and which involve them, it seems much more likely than not that she told the children of the father’s request that they resume time with him and, at the very least, permitted C (or B or both of the children) to text the father. I consider her explanation of coincidence implausible.

4. During her cross-examination, the mother said that B knew how to use ‘voice to text’ and so she believed it was B rather than C (then about five and a half years of age) who authored the text sent on 9 September 2013.  Her evidence around this issue provides a good example of the manner in which she generally appeared to approach the beliefs and opinions she arrived at – having earlier said that “the children” knew how to use ‘voice to text’, her later evidence was that B did and, because she did, the mother had ‘assumed’ that C knew how to use that aid as well.

5. The father commenced proceedings on 13 September 2013.

6. The mother’s response to the father’s request that the children spend time with him for a week in September 2013 was that they should spend time with him for three consecutive days in September and four consecutive days in October 2013: she agreed that the children spend time with him from 9.00 am on 4 October 2013 until Monday, 7 October 2013. When the parties realised the Contact Centre was closed and could not facilitate the changeover at the end of this time, this happened on the street near the Centre. The mother said that the father followed her; he said that he drove the wrong way around the block: I accept his evidence in this respect. The mother said that it was on this occasion that the father gave her the finger; an allegation that he denied. He also denied pulling a face at the mother as he drove past.

7. It is clear that the hiatus in the children’s time with their father did nothing to improve things: according the notes taken by Mr P of N Church School, B told him on 9 October 2013 that she hated time with her father and Ms J because her grandmother had told her that she had to like Ms J as Ms J was her new mother.

The mother’s approach to the children’s supervised time with their father

1. On 4 November 2013, an order was made that the father’s time with the children occur on a supervised basis at the E Town Contact Centre. The children subsequently spent two hours of supervised time with their father on each of 16, 23 and 30 November 2013. The Contact Centre notes (the contents of which I generally accept unless I indicate otherwise) recorded that, “overall, staff don’t have any concerns with regards to [the father’s] interaction with the children and generally the visits are of a positive nature”.

2. On 30 November 2013, the mother called the Contact Centre to report her concern that B had been told that she was not allowed to talk to her father about feelings during the visit.

3. I accept that the Contact Centre manager told the mother that B had been told this at each visit. I accept that, during each visit, B had tried to have a serious conversation with her father about matters that the supervisor thought to be of an “adult content and theme.” I accept that the manager reinforced with the mother that the time at the Contact Centre was not therapeutic and that the Centre staff were unable to support B appropriately so as to allow her to explore and discuss her feelings with her father during the visits. I also accept that the manager told the mother that the nature of the topics B sought to raise with her father affected the overall tone of the visit and took his attention and time away from C.

4. The Contact Centre notes also record that, after the mother advised that B’s psychologist had told B to talk to her father about her feelings, the manager empathised, because this conflicting information would be confusing for B, and told the mother that the psychologist was welcome to contact the Contact Centre.

5. The mother said that, after this conversation with the Contact Centre manager, she spoke with B about what she was talking to the father about and she also spoke to Ms R (upon whom the children were attending) and was told that she was going to contact the Contact Centre. This does not seem to have occurred.

6. The Contact Centre manager spoke with the mother again on 4 December 2013. During this conversation, she told the mother about B’s topics of conversation with her father and her “very adult concepts”; the manager reported that staff at the Contact Centre had raised concerns about B’s level of knowledge about her parents’ situation and that they did not feel it appropriate to allow discussions to continue during visits. It was also noted that, when B attended, it appeared she felt the need to state her mother’s position and chastise her father – after which she quickly settled into the visit.

1. When asked during cross-examination whether she thought it a serious concern for B to feel like she had to state her mother’s position, the mother said she believed that B had been stating her feelings.

2. When the Contact Centre manager spoke with the mother’s solicitor on 4 December 2013 to advise about her conversation with the mother, she said the father always handled the situation well, but staff felt it was inappropriate to permit the continuation of conversations that were clearly of an “adult nature.”

3. The mother was asked during cross-examination whether the information provided by the Contact Centre, to the effect that the children’s interactions with their father had been going well, the visits had been generally positive and that he had handled B’s attempts to talk about adult things well, had provided her with any comfort. She said that it did not, because she was not reassured that the father was doing the right thing by “my” children.

4. Her response illuminates one of the difficulties in this matter: namely, that she appeared either unwilling (which might be of less difficulty in that the passage of time and occurrence of events might be thought to be likely to permit of a change) or unable (which presents as a greater difficulty, if such inability is considered to be resistant to therapeutic intervention) to accept that the father acted appropriately as a parent, even when provided with information from independent third parties.

5. The mother called the Contact Centre on 20 December 2013 to report that the father had followed her after the previous visit. She was advised that staff had not seen that. She was told she could stay at the Centre until he had gone.

6. According to the Centre notes, when the mother also reported that C had told her that the father had bent his fingers back during a visit, she was told that no incident had been recorded, the visits were going very well and the children had engaged positively with their father.  She then said she did not think that the Centre was a safe place for the children and asked whether it had been told that the father “was nearly charged with assault because of his behaviour with the children”.

7. During her cross-examination, the mother obfuscated when it was suggested that her purpose in making this statement was to have the Centre understand her view that the father was a dangerous person. When asked about the relevance of the comment, she said it was relevant because her child had said he had been hurt at the Centre. The Centre notes record that the mother was told that the visits were highly and vigilantly supervised – a contention with which she took issue – and that staff had raised no concerns. When the mother said that the children had told her that, when staff were not close to them, the father talked to them about things that were not appropriate, it was reiterated that, as a result of previously raised concerns, the visits were being highly supervised and that no concerns had been noted by staff.

The first Family Report Interviews: 14 October 2013[13]

[13]Report dated 25 November 2013.

1. Ms O, the author of three Family Reports prepared during the course of the proceedings, first interviewed the parties and undertook observations of the children with each of their parents on 14 October 2013.  

The father

1. The father’s proposal as at October 2013 was that the children live with him, Ms J and D in Brisbane. He asserted that the mother was incapable of providing properly for the children’s care because of asserted mental health issues. He also expressed that he did not believe the mother supported a relationship between him and the children and involved them in “adult matters”, which included the parental dispute. His allegations about the mother were focused on her mental health issues/instability and her failure to encourage the children to spend time with him.

2. The father told Ms O that he did not believe the mother had fully recovered from her illness; he maintained she was discharged from hospital prematurely in January 2013 because she did not want the children to go into his care. He outlined his concerns that she struggled to contain her attitude towards him; he said she had actively shown the children some of the parental communication because she believed they have a right to know.[14]

   [14] Family Report dated 25 November 2013 at [155].

3. He expressed concern that the children were sustaining emotional harm and damage whilst in their mother’s primary care: his view was that she was unable to meet their emotional needs and had exposed them to details of the legal dispute, which he thought was both confusing and emotionally damaging for them. He thought she placed the children in a position where they were expected to make adult decisions about matters such as whether or not they wanted to spend time with him. 

4. The father told Ms O that he thought the children would cope quite well if separated from their mother; however, he also acknowledged that they were fairly quiet and withdrawn when they first arrived into his care. He said that, after approximately an hour, they relaxed; whilst B in particular was initially quite “standoffish”, she thoroughly enjoyed her time with him once she relaxed. He said he believed B felt conflicted and did not want her mother to know that she enjoyed spending time with him and her half-sister. He said that, whilst B objected to him taking photographs of her and continued to insist that D was not her sister and did not want to be photographed with her, she was actually affectionate, gentle and loving towards D.

5. He acknowledged to Ms O that, if the children moved to live with him, they would miss their mother; he also acknowledged that the change to their living arrangements he proposed would have an effect upon them. However, he said that he thought that any emotional damage the children might suffer as a result was less than the emotional damage they were currently suffering whilst in their mother’s care.

6. He told Ms O that he believed he was the parent better able to provide the children with stability in their day-to-day life and to support them educationally.

Ms J

1. Ms J told Ms O, that after D’s birth, she started to receive abusive messages from the mother in which she asserted that the father was not D’s father and in which she voiced her objection to their choice of name.

The mother

1. The mother, whom Ms O considered was still obviously struggling emotionally with the situation, was tearful during her interview. She said the children should continue to live with her. She explained that the situation was complicated by the fact that the children already had a relationship with Ms J (and her ex-husband) because, when they all lived in H Town, they were close family friends. She said that, consequently, the children were very confused when their father and Ms J commenced a relationship and they had struggled to accept this.

2. She told Ms O that, having suffered health difficulties in early 2012, she later had her gall bladder removed and was admitted to two E Town hospitals for further testing and treatment. She said that subsequent investigations by her general practitioner revealed that she had high levels of arsenic in her system; she told Ms O that her general practitioner advised her to report this to police as he (the doctor) was concerned that someone was trying to poison her. Ms O noted that it did not appear that the doctor’s notes revealed such advice nor referred to arsenic poisoning. However, the father told her that the maternal grandfather has accused him of trying to poison the mother.[15]

   [15] Family Report dated 25 November 2013 at [72].

3. The mother expressed her view that the children were then suffering emotionally as a result of the breakdown of their family unit and the changes that followed, which included her ill-health and the father’s re-partnering with Ms J. She was concerned the children would be mentally and physically abused and/or at risk of physical and emotional abuse in their father’s household: she made specific reference to their asserted reports to her about injuries they sustained while in his care and to the negative comments he allegedly made to the children about her and about Ms J’s role in their lives. She also spoke about the children’s refusal to spend time with him and thought they would not cope emotionally if separated from her because of their close attachment to her.

4. The mother told Ms O that the children had participated in counselling on seven occasions with a Ms R to try and assist them to adjust to the changes in their lives; she said she had been guided by this person about the time the children should spend with their father, given her (the mother’s) view that they were not coping with the agreed parenting arrangements.

5. Her proposal was that the children have “play dates” with their father on a one-on-one basis (in the absence of Ms J and D) and that their time with him gradually increase over coming months so that the relationship between them, which she said had broken down since the parental separation, could be rebuilt. She proposed that any weekend time initially occur at the paternal grandparents’ property at LL Town and that the children then be gradually introduced to weekend time in their father’s household in Brisbane (with him spending the majority of the daytime time with them initially and Ms J and D being brought into contact with them in the evenings) until, ultimately, they would spend each alternate weekend and half school holidays with their father. She proposed that, until C was eight, the holiday time occur in blocks of no longer than a week at a time.

6. The mother told Ms O that she had continued to attempt to hold their marriage together until June 2013 (that is, about one month before D was born), despite the fact that the father was then living with Ms J; she said she did this because he was telling her that he did not love Ms J. The father denied ever telling the mother this and I accept his evidence in this respect. The mother also told Ms O that the father told the children conflictual things: for example, that Ms J would be their new mother and that he was going to come home and put the family back together. The father denied ever telling the children those things and I accept his evidence in this respect.

7. In speaking with Ms O, the mother expressed clear doubts about D’s paternity: she asserted that Ms J had engaged in numerous extra-marital relationships and maintained that D was not the father’s child; she said that, until only weeks prior to the interview, he had said that D was not his child.  I do not accept that the father ever made such a statement to the mother. She also reported that, during June and July 2013, the children told her, when they returned to her care, that Ms J had told them that, when the baby was born, their father would forget all about them and that she and the baby would be the new family and that their mother was too sick to look after them. I do not accept that Ms J ever made such comments to the children.

8. The mother told Ms O that the children had protested at having to spend time with their father and returned to her care with physical injuries.[16] She said numerous school teachers had photographed bite marks on the children, which were sustained while in their father’s care. She also said the children had been interviewed by the police about these matters and that she had been interviewed by the Department.

   [16] Family Report dated 25 November 2013 at [121].

9. The mother told Ms O that her family was very supportive of her. She also acknowledged that they sometimes had arguments but then, somewhat contrastingly, dismissed claims that, at times, she was in conflict with her parents: this latter assertion appeared to Ms O to contradict the contents of records from both N Church School and Q Hospital which  indicated that the mother reported stress arising out of conflict with her parents.

10. The mother acknowledged to Ms O that, whilst the children were present, she had used the speakerphone in the car while speaking to the father on the telephone.

The maternal grandparents

1. The maternal grandparents told Ms O that the mother was coping “pretty well” (considering her poor health in 2012) and that the children were fairly well settled at school. They expressed to her their disappointment in the father’s lack of financial support for the mother and children after the marital separation. They said that, when the family lived at their property during 2012, there were lots of arguments between the parents.

2. The maternal grandfather disputed the father’s report that he had tried to prevent the father from seeing the children, but agreed that he had told him not to come to their property. He was critical of the manner in which the father parented C: he explained he thought he was very rough in his play with him and then expected that behaviour to stop, which he thought very confusing for C.

3. He and the maternal grandmother both said that the children’s accounts about how the father treated them concerned them: the maternal grandmother said that, in July 2013, B told her that the father had said the mother should jump off a bridge and everyone would be a lot happier; she also said that the children had told her that “we’re going to have a new Mum” and “Mum is always going to be in hospital.”[17] She found both comments very concerning. She also said it took the children a couple of days to settle down after they returned from their father’s care; she said that, at times, they had become so stressed and upset that they wet their pants. She said that the children wanted to please both of their parents and had been extremely embarrassed and upset about the marital separation and their father’s relationship with Ms J.

   [17] Family Report dated 25 November 2013 at [178].

The child B

1. B was seven years old when she first spoke with Ms O. She had then been attending the N Church School since late January 2013. She had previously gone to H Town State School (in early 2012), DD Primary School (between April 2012 and September 2012 – located about a kilometre from the maternal grandparents’ farm) and EE Church School (for the last school Term of 2012. She discussed school and said that she generally liked it, but that “sometimes it sucks because we have to see dad”.

2. Ms O reported that, while polite and friendly, B was extremely anxious about the interview. She asked to speak to Ms O before seeing her father and, when Ms O did this, she observed that B was obviously highly anxious. She was hugging a soft toy. She told Ms O that she did not want to see her father during the observations process. She also asked Ms O a series of questions, which included “are you going to pick who we live with?”, “Dad said that we are going to live with him and I don’t want to, I want to stay with Mum”. She also told Ms O that her father told lies. Ms O reported that B ultimately settled with her reassurance, but wanted to reserve the right to end the session with her father if she felt unhappy.

3. When Ms O explained to the children that they would be going into the other room to see their father, B cried and said she did not want to go; she was ostensibly fearful and clung to her mother. Ms O noted that the mother responded by giving her a very long cuddle, kissing her and whispering in her ear. She thought the maternal grandparents were more positive and matter of fact; they encouraged the children to spend time with their father.  Ms O noted that C adopted what she described as a protective role towards his sister.

4. Ms O said that, when the father greeted the children enthusiastically and affectionately, B said “I don’t want to play with you, you’re mean”. She said he responded appropriately: he greeted B in a positive way and put aside her negative behaviour but also allowed her the space to settle. Ms O reported that, within five minutes, B had completely dropped her negative attitude and played openly and happily with her father: in fact, Ms O thought she did her best to dominate his attention at C’s expense.

5. Ms O said that, as the observations progressed, B became more demanding of her father’s attention: she regressed in her manner of behaviour, squealed and spoke in a baby voice. He responded firmly and warmly to encourage her to settle down. Ms O noted that, despite her earlier anxiety, B did not elect to end her time with her father early.  Ms O thought she appeared to be “thoroughly enjoying” her time with him.

6. However, when Ms O attempted to bring an end to the children’s time with their father, B’s mood changed: she told her father: “Dad, Mum wants our money thing so that she can put us in high school.” As the children tidied up, B appeared to be angry: she punched her father with a closed fist very hard on the side of his head; when he appropriately reprimanded her, she angrily told him that she was not going to visit him and that she could not wait for him to leave. When the father tried to give B a kiss goodbye as he was leaving, she kicked him very hard in the shins a couple of times, poked her tongue out at him and hit and kicked him again quite hard and screamed at him to leave.

The Child C

1. C was five years old when he first spoke to Ms O. She noted that, when seen with his father, he was warm and positive in his interactions; he appeared to accept that B needed to dominate the playroom and engaged with his father when he could. Ms O thought C remained quite settled throughout the session and appeared better able than B to manage his emotions. She reported that he tried to ignore B’s disturbed behaviours at the conclusion of the observation with their father but appeared sad and worried. He kissed his father goodbye affectionately and seemed to accept the session was over.

2. Ms O noted in her report that, despite the mother saying in an affidavit filed shortly after her October 2013 interaction with her that C had been very upset after spending time with his father and had wet his bed and had bad dreams, she did not mention those things to her during the interview process.

The children together

1. Ms O spoke with the children after they interacted with their father. They spoke about their parents’ separation. B said the worst thing was her father getting “new mates”, which Ms O took as being a reference to Ms J. B told Ms O that she had been to five schools but might not stay at N Church School because it was too expensive; she said her mother did not have enough money to pay for the school fees and all of the bills and she complained that the people at the school are mean – a sentiment with which C did not agree.

2. Ms O reported that both children denied D was their sister. B said she wished her father would stop referring to D as her sister because it was “not true…because Dad and Ms J are not married and because she is not my Mum’s baby”: she said she learned this when she learned about God and that it was confusing when her father referred to Ms J as her new mother and D as her sister.

3. When Ms O asked the children about spending time with their father, each said they see him on Saturdays and Sundays but that they did not always like going. When Ms O challenged them about this assertion by observing that they had appeared to have fun with him in the playroom, B said “if you weren’t watching he would have hit us”.[18] Each then insisted that their father had hit them on the last occasion they had spent time with him.[19]

   [18] Family Report dated 25 November 2013 at [222].

   [19] Family Report dated 25 November 2013 at [223].

4. Ms O reported that the children were affectionate when they returned to their mother’s care and B, in particular, clung to her.

5. When Ms O observed the children with their mother and maternal grandparents, she noted they interacted very positively with their grandparents and spoke excitedly about the farm and the animals there. She thought B particularly animated when speaking about the farm; she was also openly affectionate towards her grandfather during the observation.

1. I note that, during her cross-examination, the mother, in essence, complained that the father “constantly” emailed her from the email address he had established to provide her with information about the children’s medical appointments. She complained that Ms J used that email address too. She said she was not pleased with the line of communication he had established because she felt that he only gave her the information he wanted her to have: she said she could ask him a question twenty times and still not receive an answer. I accept that the mother is quite capable of asking those questions she wants answered on multiple occasions.

2. Further insight into the parental interaction can be gained by having regard to the mother’s evidence about the communication book: she continued to provide it to the father at the start of the children’s supervised time with her, despite him returning it to her without having written anything in it (because he favoured them using email to communicate rather than allowing the children to access the book which would be with them as they passed between their parents). She said that she maintained this process despite knowing he wasn’t writing anything in it: that is, the book was, for all intents and purposes, a blank communication book.

3. I consider this also provides a good example of the difficulty the mother experiences if she has formed a view about the ‘right’ way to do something: she appears to persist, even when she knows that what she is doing is not achieving its intended aim.

4. The mother said that she had understood from the father’s evidence that he was willing to help her with therapy; she said she was still doing therapy and that her treating mental health professionals had advised her that the best way for her to communicate with the father was to tell him how she is feeling at any time, to write down her feelings and send them to him: consequently, she decided that email was the best way to do this, as he could choose to read what she sent or not and could do so in the manner that he chose. The contents of an email she sent him on 28 April 2016 provides an insight into the communication between the parents:

   Your not answers all my questions again.  No, this does not assist me and I’m not comfortable in your constant disruption to my day because you cannot provide what you would.  Putting Ms J into a relationship with you, I did not do that to your relationship with her and her child relationship and I haven’t.  You and Ms J made a choice to have a sexual relationship in our marriage and not be forthcoming with that information, so I do not wish to discuss my life – my children.  Please be respectful.  It is days after I sent you the email that you respond – you respond back, [John].  This is how you wanted to communicate that you’re not be respectful in doing it. 

   I am now not going to – I am now going to seek more legal advice.  You and Ms J have my decision about my children and not bothered to discuss it with me. Ms J can sit there and say she wants to be friends but she’s trying to take over the role of mother to my children and you think this is acceptable.  I have never done that to you, [John].  Ms J interfered in our settlement and is continuously interfering in something that was not part of her place to do, so [John], and I’m not interested in slap happy mess any more.  I will take this as far as I can and as long as I can, and if it means using all inheritance I will. 

   God bless, [Ms Hoffman].

5. When asked during her cross-examination to explain how that type of communication was likely to assist her and the father to build an effective co-parenting relationship, the mother emphasised that she was responding to his comment that the email he proposed for their communication about the children would be one to which Ms J would have access. She explained that she felt that, by saying this, he was pushing Ms J onto her, despite her having made it very clear to him that she was not yet therapeutically up to that and did not wish to do it.

6. The mother told the father in an email sent on 6 July 2016 that she was blocking “this Beach Children email” (the email address he had specifically established to facilitate communication between them about the children rather than him continuing to use his work email) because she had asked him “non-stop” to stop using it because she did not know if it was coming from him or not. However, when asked during her cross-examination whether she had blocked that mail, she said she hadn’t. When asked to explain why she had told the father that she was going to block it, she said that she did not like the fact that Ms J emailed her: she said she was comfortable with the father emailing her, but was not ready to email Ms J (whom she said she could recognise as the author of certain emails despite them being signed off as being from the father): she said she felt the children were hers and the father’s, but Ms J was writing about them as well.

7. She said that she and the father had previously used his work email to communicate but, when Ms J wanted to be involved, the “Beach Children” email was created and she was not comfortable with that yet. She said that, whilst she had not blocked that email address, she did not respond to it but, instead responded to his work email. This had the result that their communications involved the father sending her an email from the “Beach Children” email address and her responding to it by emailing him to his work email address. The mother agreed that this meant that there were two chains of communication passing between herself and the father: these were not connected, so that no one looking at them could easily follow what was happening. I consider the mother’s determination to act in this manner to be yet another example of her difficulty in adapting to something that she does not wish to do.

8. Given the matters adverted to in these Reasons, any conclusion other than that the parents’ capacity to co-parent and even communicate is almost non-existent would be perverse. I accept that it is unlikely that they will ever easily agree about matters relevant to the children. I also accept that the likely default position for the father in his interaction with the mother is one of avoidance, mostly out of a concern not to be embroiled in further conflict.

9. It was submitted on behalf of the father that the exercise of parental responsibility would best be managed by allocating the same to the father and imposing a communication structure established by “rules” or guidelines so that both parents know what their respective obligations around communication about the children are. That is – the children’s best interests will be met by mandating information exchange but not joint decision making.

Parental Responsibility

1. When making a parenting order, I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them.[38] The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in their best interests for the parents to have equal shared parental responsibility for the children.[39] If the presumption does not apply, then the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, albeit subject always to the children’s best interests being the paramount consideration.[40]

   [38] s 61DA of the Act.

   [39] s 61DA(4) of the Act.

   [40]         Cox v Pedrana (2013) FLC 93-537, [19]; s 60CA; s 65AA of the Act.

2. I consider that the presumption of equal shared parental responsibility does not apply in this case, given the findings I have made about the issue of family violence. Even if I am wrong in this conclusion, I am easily persuaded that it is not in the children’s best interests for there to be an order that their parents have equal shared parental responsibility for major long term issues about them. This is because, if there is an order that the children’s parents are to share parental responsibility for them and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by the parents[41] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[42]  

   [41] s 65DAC(2) of the Family Law Act 1975 (Cth).

   [42] 65DAC(3) of the Act.

3. Nothing in the evidence persuades me that these parents can make joint decisions or realistically consult each other or make a genuine effort to come to a joint decision. Regard need only be had to the tone and contents of the mother’s April 2016 email. I arrive at this decision even after taking into account the mother’s proposal that she wanted to continue in family therapy with only the father (as she did not think it was likely to be beneficial to put her and Ms J together in the family therapy) and her view that this process would need to occur for about 12 to 18 months.

4. When asked to consider the possibility that Ms J may fill the role of “conduit” for communication between the parents, the mother was clear in saying “that will never happen”.  As I commented during the trial, I agree.

5. I accept the submission made by Counsel for the Independent Children’s Lawyer to the effect that there is no trust between the parents and no helpful communication and no evidence that the nature of their communication is going to improve.

6. Given that the parenting order I will make will not provide that the parents have equal shared parental responsibility for the children, the power to make parenting orders is ‘at large’ (albeit subject always to the children’s best interests being the paramount consideration).[43]

   [43]         Cox v Pedrana (2013) FLC 93-537 at [19]; See s 60CA and s 65AA of the Family Law Act 1975 (Cth).

Living and time orders: what orders are in the children’s best interests?

1. I accept that the evidence suggests that the children’s relationship with their father and paternal family had significantly improved following the December 2015 order. I accept that moving to live with their father protected the children from ongoing exposure to the mother’s negative attitude toward the father and other adult issues and put them in a position where they could start to be able to form their own independent views of the father as a person and as a parent. It has also enabled them to further their relationships with Ms J and, in particular, D.

2. I consider that the children would be at an unacceptable risk of suffering emotional harm if they were to return to live with their mother because that would expose them again to her involvement of them in issues of the type adverted to above and to the consequences of her opposition to them being enabled to have a meaningful relationship with their father.

3. I accept that, having been provided with material generated after the preparation of her third Family Report filed in December 2015, Ms O remained firm in her recommendation that the children’s best interests would be met by living with their father.

4. I accept her evidence to the effect that, in essence, whilst the mother encouraged the children to spend time with their father, they were consistently exposed to her extreme distress and negative views about him such that their attitude toward him had more likely been informed by their observations of her behaviour than by her words to them.

5. Ms O said that, if the Court found that the mother’s presentation and attitude to the management of the issues was likely to remain in the future as it had been in the past (as I do find), then the likely consequence for the children if they returned to live primarily with her would be a reasonably quick loss of their relationship with their father. I accept her evidence in this respect. I also accept that, if the children returned to live with their mother, the progress they have made in developing their relationships with their father, Ms J and D would be highly unlikely to be able to withstand the pressure or influence of the mother’s environment. I accept Ms O’s assessment that, in such a scenario, it was likely that things would return to as they had previously been.

6. I accept her evidence that, if the children returned to live with their mother, it would simply be too hard for them to maintain a relationship with their father and they would lose the opportunity to have an ongoing relationship with him. I consider that this would be a significant loss to them and something that is not in their best interests.

7. I also accept that, if the children returned to living primarily with their mother, they would also return to a situation in which they were likely to be burdened with her concerns, rather than being afforded the opportunity to be children and do the things that children need to do. I consider that the father is the parent better able to deal with and meet the children’s emotional and educational needs. I also consider that he is the parent better able to support the children in having an ongoing and meaning relationship with both of their parents. I am not persuaded that either he or Ms J would not support the children in having an ongoing and meaningful relationship with their mother. I also consider it highly likely that, if the children retuned to live with their mother, they would lose the opportunity to continue to develop their relationships with D. Such a loss is certainly not in their best interests.

8. Ms O said that the fact that the mother continued to make reports to the school, police and the Department about the father’s asserted behaviour after the children moved to live with him and were spending supervised time with her, suggested that she remained highly concerned for them whilst in his care and that she did not trust him and believed that the children were at risk. Ms O opined that, whilst the mother might well hold such beliefs, the real issue was whether there was anything to support the same or provide a basis for the same or whether her beliefs were all tied up with her own grief and disappointment and lack of trust in the father as a person: she wondered if these views were so strong that they pervaded her overall assessment of him. Ms O accepted, as I do, that the mother loves her children desperately; she thought she might genuinely believe that they are not safe. She said that, if this was the case, it would make it very hard for the mother to deal with the father as anything other than a risk to the children. Given my findings that the father does not represent a risk to the children, this is another aspect of her approach to the post-separation parenting regime which the mother will need to address.

9. Ms O asserted that, as the maternal grandparents shared the mother’s views in many respects about the father, she could not be sure that they would temper the mother if she was inappropriate in her expressions about him in front of the children. I accept her assessment. I also accept her assessment that they have a very negative view of the father and have been very upset about his behaviour toward their daughter. I note that Ms O was unsure about the maternal grandparents’ capacity to embrace a situation where the children remained living with their father.

10. Ms O’s evidence was that, if the Court found, as I do, that:

    a)there was no change to the manner in which the mother had been able to approach and deal with the end of the marital relationship with the father, his re-partnering and the entire dynamic that she had reported on in her three reports, spanning three years of involvement with the family; and

    b)things remained as they were when she last interviewed everyone and that the mother struggled a great deal and was likely to continue to struggle a great deal to be able to restrain her expression of her own personal views about those issues in front of the children,

    then the children’s time with their mother needed to remain supervised in order to protect them from exposure to their mother’s comments and views about their father and his family. I accept this evidence.

11. I also accept Ms O’s evidence that the children should have the opportunity to have some telephone communication with their mother provided that this is managed and monitored. She said this recommendation arose because of her concern about the potential for that communication to be counter-productive, given the most recent evidence about the telephone calls between the mother and the children. I accept her evidence in this respect.

12. Ms O considered that there would need to be some sort of independent assessment of how the mother’s interactions with the children were progressing before there was any move to them spending unsupervised time with her. She thought that, if the time reverted to unsupervised time, but things in the mother’s household reverted to how they had previously been, there was a very real chance that the children would be put in a very confusing situation. I accept this evidence.

13. I also accept Ms O’s evidence to the effect that it is preferable to err on the side of caution. I accept her evidence that the children’s time with their mother should only become unsupervised if it is established that she can support the children living with their father and has been able to let go of the need to revisit, with the children, her concerns about the way in which the marital relationship ended and the issues associated with this, as discussed in these Reasons. I accept Ms O’s evidence to the effect that,  in order to persuade that she had made sufficient changes to mean that it would be in the children’s best interests for their time with her to move to being unsupervised, the mother would need to demonstrate: that she recognised that involving them in her own distress about the breakdown of the relationship and the feelings she has towards the father and Ms J was painful and damaging to the children; that she could desist completely from involving the children in the issues surrounding the marital breakdown and its consequences (which she explained really meant that the mother would have to be able to resolve those issues herself sufficiently to be able to contain them emotionally); that she has been able to embrace the children living with the father and be able to show that she supported that in a congruent way; and that she was able to shield the children from exposure to the adult issues (by which I understood her to mean discussions like those about sexual positions and issues of D’s paternity) which had previously caused them to suffer stress and upset.

14. Whilst Ms O was unsure about how these matters could be measured and thought that they would need to be given time to occur, she also said that, maybe over time, the mother would be able to achieve them.

15. I accept Ms O’s evidence that the mother’s most recent affidavit did not give her much confidence that things had changed. Whilst she accepted that the evidence suggested that the mother had complied with the suggestions made by her treating professionals, she noted that this was a positive aspect of her self-care, rather than her parenting; she outlined that there was a difference between this and the mother’s capacity to deal with the changes imposed upon her by the father’s decision to separate. I accept her evidence in this respect.

16. I accept Ms O’s evidence that, given the amount of therapeutic input and support the mother had received over the four years since the marital separation, she remained sceptical about whether the mother could change such that she could demonstrate that she had the capacity to refrain from exposing the children to her feelings about the father and Ms J and their children and that she was able to protect them from the impact on them of those feelings.

1. I accept Ms O’s evidence, in essence, that the circumstances of this case are such that the Court cannot simply put in place a system whereby the mother slowly progresses to spending unsupervised weekend time with the children. I accept her evidence that this is because such a scheme would place the children at risk of suffering emotional harm from exposure to their mother’s inability to filter her thoughts and feelings about the father and her inability to refrain from expressing the same to them, whereby they are enjoined into her view of him.

2. I accept Ms O’s evidence that the mother is extremely important to the children; I also accept that she needs to be at her best for them to be able to benefit as much as they can from interactions with her. I also accept, though, that they need to be shielded from exposure to her emotions and feelings so that they can have an emotionally safe place within which to grow and develop. At present, the father’s household is that which offers them the best chance of living in this emotionally safe place. It is also the household in which, in my view, their educational needs are more likely better able to be addressed.

3. Ms O was asked to consider whether, if it was concluded that the mother was unlikely to be able to change in the manner she identified and/or that she was always going to struggle to refrain from exposing the children to the impact of her emotions and feelings about the father and his actions, there would likely come a future point where the children’s time with her could transition to unsupervised time in any event because, by then, they might have been able to acquire the skills to manage their mother’s outpourings of emotions and/or to accept that that was simply how she is as a person; she was also asked whether there were things that could be done to assist the children to build their capacity so that they could interact with her on an unsupervised basis and deal with any comments she might make to them, but not be unnecessarily destabilised themselves or not suffer the risk of a destabilisation to their relationship with their father.

4. I accept Ms O’s evidence to the effect that she thought this would be a very big ask for the children, whose primary attachment was to their mother: she thought they would find it very, very difficult to withstand the sort of pressure to which they would likely be re-exposed if their mother had not been able to change as she suggested. She said she thought this would be the case because she thought it likely that they would feel like they were adding to their mother’s pain. She thought the children did not have the emotional strength to ignore that feeling, so it was likely they would be enjoined back into their mother’s world and be very confused such that, when the time came to return to their father’s care, they would likely return to his household feeling very, very angry with him and Ms J and take some time to settle there. As I interpret her evidence, which I accept, participating in this likely cycle of emotional turmoil would not be helpful to the children.

5. I accept Ms O’s evidence to the effect that the Contact Centre notes suggested that the children’s supervised time with their mother had been going quite well. However, I also accept that she was concerned that the mother’s account differed and suggested that the time was not going particularly well and that the children were saying some very disturbing things to her (which asserted comments were not recorded in the Contact Centre notes). I accept Ms O’s evidence to the effect that, if the children’s time with their mother is unsupervised, there will be no independent way of assessing whether the children are in fact saying those things the mother reported them telling her.

6. That is, as I understood her evidence, Ms O thought that the disconnect between how the Contact Centre reported the children’s time with their mother was going and the mother’s account of the same was another reason why supervision over the children’s time with her should continue until she establishes those matter adverted to earlier. I otherwise accept Ms O’s evidence about the reasoning underpinning her recommendations that the children’s time with their mother should remain supervised until she is able to establish that she has addressed those matters adverted to in paragraph 696 of these Reasons.

7. Whilst the prospect of long term supervision over the children’s time with their mother has the significant potential to impact adversely on the development of their relationships with her and members of their extended family, I consider that the risk to the children’s emotional functioning and relationships with their father and members of the extend paternal family is such that their best interests require this step until the mother establishes that she has addressed the matters identified by Ms O.

8. I accept Ms O’s refutation of the suggestion that a downside of an extend period of supervised time between the children and their mother is that the relationship between them would completely breakdown. I accept that this would not occur if the children and mother attend the visits. I also note that Dr Y denied that there had ever been a conversation between herself and the mother in which she advised the mother that, if her time was going to be supervised, that would be bad for her and, perhaps, she should walk away from the children. She said that, whilst the mother had said things like “maybe it’s all too hard”, they had never had any kind of detailed discussion about that being a plan or something the mother would work towards. I consider that Dr Y would continue to support the mother; I also accept that she will have the support of her parents, given that the maternal grandfather’s evidence was that, if the children lived with their father and spent supervised time with their mother, he would do all that he could do to support his daughter and the children in that arrangement.

9. I note that the mother’s evidence in opposition to the father’s initial proposed orders was that, if the end of the process was that she was only going to be able to spend very limited supervised time or even limited time with the children, she would walk away from them. She also said that both Dr Y and Dr W had said that they believed it would be a very negative thing for her to only be able to see the children for such a short period of time and that they thought it would impact negatively on her health, by causing her more anxiety and depression. She said she had spoken with Dr Y about the potential impact on the children if she walked away from having a relationship with them and that it came down to her own mental health; she said Dr Y believed that it would be more detrimental to the her (the mother’s) mental health for her to only engage with the children for a limited period of time. As outlined above, that was not the account given by Dr Y in so far as the suggestion that the mother might “walk away” from the children and I do not accept that Dr W made such a recommendation to the mother either.

10. I also accept that a further crucial aspect to the children’s ability to maintain their relationship with their mother is the level of support likely to be given by the father to them in this. As I have already expressed, I accept that the father and Ms J will support the children in maintaining a relationship with their mother, because I accept that they recognise how important that is for the children.

11. I accept Ms O’s evidence about the importance to the children of being afforded the opportunity to continue in counselling for as long as that might provide them with benefit. I consider that the father is the person best able to make that decision, particularly given the extent to which the children have previously been involved in counselling.

12. Ms O said that supervised time could continue to occur at either the E Town Contact Centre or another Contact Centre or out of centre. She was also very supportive of the maternal grandparents being involved in this, given the children’s relationships with them, and I accept her evidence in this respect.

13. I also note, though, that Ms O emphasised that, whilst it would be good for the children to maintain a connection with their extended maternal family (because they had been so important over the years), any inkling that such interaction would be destructive and undermining of the children’s stability meant that such time should not be unsupervised. I accept her evidence in this respect and note that I remain concerned that the maternal grandparents would find themselves unable to refrain from exposing the children to their negative views about the father if their time was unsupervised. I also note that Ms O said, and I accept, that there would have to be a dramatic change in their attitude toward and about the father before the maternal grandparents could be entrusted with overseeing the mother’s time with the children.

14. Fraught as it has been with the difficulties outlined above, I accept that email communication is probably be the best way for the parents to communicate in the future. Whilst initially oppositional to this method of communicating, the mother ultimately said that, if the father wanted to send her emails, he could and she would print them off and take them to a family member for help in understanding what was said.

15. Whilst the father initially sought injunctive orders to prevent the mother from approaching his home and the paternal grandparents’ home and from approaching the school without him providing prior consent in writing, this relief was not pressed. I note that the father said during his cross-examination that it had not then been a concern to date that the mother approach his home or the home of the paternal grandparents.

16. For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of these children’s circumstances, as established by the evidence before me and as adverted to above, are in the children’s best interests.

I certify that the preceding seven hundred and fifteen (715) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 November 2018.

Associate:     

Date:              2 November 2018