Bendon and Bendon

FAMILY COURT OF AUSTRALIA

BENDON & BENDON

[2017] FamCA 247

FAMILY LAW – CHILDREN – Application for variation of final orders – where monitored telephone contact has been unsuccessful – where trial judge had determined it was still important for children to have contact – Skype communication ordered through supervised contact centre.

Family Law Act 1975 (Cth)

Godfrey v Sanders (2007) 208 FLR 287
Grella & Jamieson (2017) FamCAFC 21
SCVG & KLD (2014) FLC 93-582

APPLICANT:

Mr Bendon

RESPONDENT:

Ms Bendon

INDEPENDENT CHILDREN’S LAWYER:

Kenna Teasdale Lawyers

FILE NUMBER:

DGC

672

2014

DATE DELIVERED:

26 April 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms O'Connell

SOLICITOR FOR THE APPLICANT:

Fiona R McGregor

COUNSEL FOR THE RESPONDENT:

Mr Levine

SOLICITOR FOR THE RESPONDENT:

Allan McMonnies

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kenna Teasdale Lawyers

Orders

That paragraphs 2 and 4 of the orders made 2 December 2015 are discharged.
The husband has sole parental responsibility for the children D born … 2005, E born … 2007 and F born … 2009.
The wife communicate with the children by electronic means as follows:
(a)Under the supervision of a duly appointed staff member, or members, of the Child Contact Services at I Town in Western Australia;
(b)The coordinator of the contact service may:
· direct that the timetable below be varied to a date as close as practicable to those set out; and
· determine the duration of such communication,
but not otherwise.
(c)The wife shall be responsible for the cost of any such supervision arrangement;
(d)The supervisor shall be at liberty to terminate the communication if the wife discusses subjects deemed by the supervisor to be directed towards undermining or destabilising the children’s relationship with the husband;
(e)The Coordinator of the contact service is requested to receive on behalf of the children, and vet, any parcels sent by the wife for the benefit of the children and only receive them on the proviso that they are sent by her so that they arrive no later than 4 days before the designated supervised contact time; and
(f)The timetable for supervised electronic communication shall be as follows:
·On the Friday before term 1 school commences;
·On the Friday before F’s birthday (…);
·On the Friday before term 2 school commences;
·On the Friday before Mother’s Day;
·On the Friday before term 3 school commences;
·On the Friday before E’s birthday (…);
·On the Friday before term 4 school commences;
·On the Friday before D’s birthday (…);
·On the first Friday in December;
·On the Friday before Christmas Day;
·On the first Friday in January after New Years’ Day; and
·On Friday 21 April 2017 (but not other years).
The husband co-operate with the contact service and deliver the children on the dates that the service nominates and at the times required to enable the children to participate in the arranged electronic communication, provided that at all times, the husband shall only be obliged to adhere to the dates and times nominated by the contact service if they are close to the timetable in

paragraph 3.
The Independent Children’s Lawyer shall provide a copy of this order and the reasons for judgment published this day to:
·The contact service;
·The principal of the schools attended by the children; and
·The various health professionals attended by D.
The husband is at liberty to produce these orders and the reasons published this day to:
·All members of the police force for the State of Western Australia;
·The principals of all schools attended by the children including the relevant staff and health professionals of those schools;
·The contact service;
·The various health professionals attended by D as well as the other children; and
·The relevant welfare department of the State of Western Australia.
If the coordinator of the contact service refuses to agree to all of the terms and conditions set out in paragraph 3 of these orders, that whole paragraph is not otherwise to be implemented and the matter is otherwise to be relisted before the Honourable Justice Cronin for further determination as soon as practicable thereafter.
Should the husband receive parcels directed to, or for, the children either from the wife or persons and organisations associated with her outside of the terms of paragraph 3 hereof, he is at liberty to return them or dispose of them as he sees fit without giving them to the children.
That the husband forthwith sign all necessary authorities provided by the solicitor for the wife, directed to the health professionals dealing with D authorizing them to communicate with, and answer all questions of, the wife about D, subject always to the health professionals’ absolute right to determine whether or not they consider it is in D’s interests for them to do so.
Save for the obligations created by paragraph 5 of these orders, the order appointing an Independent Children’s Lawyer is discharged.
All extant applications are otherwise dismissed.
Pursuant to ss 65DA(2) and 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those 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 Bendon & Bendon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 672 of 2014

Mr Bendon

Applicant

And

Ms Bendon

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In December 2015 Johns J ordered that D (now 11), E (now nine) and F (now eight) live with their father Mr Bendon (“the husband”). By those orders, the children were removed from their mother Ms Bendon (“the wife”). The orders then provided for the relationship between the wife and the children to be maintained by contact:
(a)at a supervised contact centre in Western Australia at various times to be agreed in writing;
(b)if not at the contact centre then supervised by the paternal grandfather;
(c)by Skype or telephone twice a week with the husband being at liberty to monitor the communication and terminate it if subjects or issues were raised by the wife that “may undermine the children’s relationship with the paternal family or destabilise the care arrangements”;
(d)by Skype or telephone on special occasions such as Christmas Day, birthdays and Mother’s Day; and
(e)by letter, card and/or gift on the special days just mentioned.
A number of other orders were made relating to obligations on the husband to keep the wife informed about the welfare of the children.
Although Johns J referred to the parties as “father” and “mother”, I have referred to them as husband and wife notwithstanding their marriage has long ended. That is for my convenience only. Neither party has remarried or repartnered.
It will be evident from the orders of Johns J that her Honour thought it in the best interests of the children that there be face to face contact on up to six occasions each calendar year; that was to be at the mother’s expense and electronic communication was to occur twice a week as well as special occasions. That observation is relevant to two things. First, for reasons which I set out below, Johns J made very strong and critical findings against the wife as a parent of these children. Secondly, although it will be apparent from what follows, the object of the orders has failed. Johns J found there was benefit to the children in having a regular relationship with their mother. Those are matters that weigh heavily in the determination in this case.
All three children live with the husband in Western Australia. As I have observed, both parties agree, but for different reasons, the orders of December 2015 have not worked. The husband’s current application is for a variation of those orders which if granted, would severely restrict what Johns J intended and limit the nature of the relationship between them and their mother. Further problems have arisen from the orders of Johns J that the wife be able to communicate with the children by “letter, card and/or gift” on the “special days” providing the husband could vet them. The husband’s evidence was that a number of parcels have arrived, some of them from the wife, others from church groups and others again, from the wife’s mother. The husband’s evidence was that these parcels contained an assortment of things including torn underwear, family violence pamphlets, books with $5 notes totalling $65 secreted in them, story books that were inappropriate for the ages of the children such as “Sesame Street” and a number of babies’ bottles. In her evidence, the wife denied control over some of these gifts and explained others. Insofar as some of these gifts were conceded such as the milk bottles and the money, I find the husband was an accurate historian. As such, it is difficult to know why he would embellish and/or lie about the other matters.
It is significant that some of these parcels were opened by the local child protection unit of the State of Western Australia and the husband described their reaction as indicating that the items were “disgusting”. Some of this evidence was not in the husband’s affidavit as he gave it orally and nothing he alleged was corroborated by such organisations as the local police or State welfare department. That does not mean that the evidence is not true. Inferences can be drawn based on the plausibility of other evidence and in this case, I find that it is more likely than not that the husband was truthful.
That also does not mean that the wife was responsible for all of these gifts. One example of a bizarre message appears to have come from an acquaintance of the wife when she and he were in Queensland. It was a postcard and the wife was unable to say when it was sent or its details but she was supportive of the gentleman who sent the message on the basis that in her view, he was pursuing justice as was she. Indeed, it appears that he has accompanied her to court. One of this man’s messages said that he hoped that the children’s father was “not breaking the rules”. I find that entirely inappropriate.
Turning back to the orders of Johns J, I cannot find anything to indicate that this was the sort of communication that her Honour intended. Finding a solution to that problem is not simple. The problem of these packages was not just limited to the description that I have given. Some of the husband’s evidence was elicited in cross-examination. For example, on D’s birthday, he received a card but no parcel. On E’s birthday, he received a parcel but most of the items were for his brother and sister. The husband also described the receipt of broken toys and food-stained books. Some of these parcels came thrice in a week.
One of the gifts by the wife was a plastic debit card enabling D access to credit funds in bank account. The husband’s response was that that was divisive amongst the children. I find it can also send confusing messages when the children were aware that their mother could visit them in Western Australia but had not done so. The same materialism also gives a confusing message to the court in circumstances where the wife pays a nominal sum in child support which is less than the weekly sum provided in this surreptitious manner. Apparently, the wife is a Centrelink beneficiary and her explanation for some of these sums of money was that other people collected it for her or provided it. They would do better to ensure that an appropriate level of child support was paid so that both parents contributed to the more basic needs of these children. As it is, the only inference I can draw from the evidence is that the husband is the only one supporting the children.
Although Johns J made provisions for Skype communication, it has never been operated because the husband has indicated he did not have access to it and accordingly, the parties used the telephone.
The husband had the authority to vet the wife’s telephone calls and to terminate them. The appropriateness of the exercise of his power was the subject of contention largely because of a dispute between the parties about the very meaning of the words that they used. I return to those details below.
The solution has to be found if the children are to have any relationship with their mother. The tyranny of distance, the palpable anger of the wife and the complete lack of trust between the parties here, makes the fashioning of orders very difficult where the previously attempted restrictive nature of them has failed.
The basis behind the orders in the first place needs to be understood and even though the wife does not accept the findings of Johns J or, as she said, she accepts her Honour’s opinion but does not agree with it; that contributes to the degree of difficulty. I am bound by the findings that her Honour made but more importantly, they are instructive as to what is going on in these parties’ lives. It is an appropriate starting point.
Her Honour began her reasons by noting:
[2]The mother alleges that the father poses an unacceptable risk to the children; she alleges that [F] and [E] have been sexually abused by the father. The father denies those allegations.
[3]The mother seeks orders that she have sole parental responsibility for the children and that they live with her.
[4]The children [D] and [F] have each been diagnosed with mild cerebral palsy. The father challenges the mother’s capacity to meet the children’s day-to-day needs. He alleges that the mother has failed to appropriately attend to the children’s physical and emotional needs.
[5]Further, the father alleges that the mother and her family do not support the children’s relationship with him and have engaged in conduct so as to alienate the children; he says that the allegations of sexual abuse raised against him are evidence of such conduct. As a consequence, the father seeks orders that he have sole parental responsibility for the children and that they live with him in Western Australia.
Her Honour identified the issues as follows:
[50]The issues in this case, as identified in the parties’ affidavit material and the Family Report, and during the course of the hearing may be summarised as follows:-
·Whether the children have been sexually abused or exposed to sexually inappropriate behaviour by the father;
·Whether the father poses an unacceptable risk of sexual abuse to the children;
·Whether the children are at risk of harm in the mother’s care due to her failure to provide an appropriate level of care for the children, particularly having regard to the needs of [D] and [F] who have been diagnosed with Cerebral Palsy;
·Whether either parent poses an unacceptable risk to the children and the consequences from a finding of unacceptable risk;
·The extent to which the children have been exposed to the dispute between the parents and the impact of such exposure;
·The capacity of each parent to appropriately care for and make decisions regarding the care, welfare and development of the children;
·With whom the children should live;
·The time the children should spend with the non-resident parent and whether such time should be supervised.
It is clear from hearing the evidence of the wife now, the issues from her perspective have not changed. She maintains her stance that the husband sexually abused the children. The husband too maintains that the wife should have a relationship with the children but they have to be protected from her allegations against him. There is no secret that the wife continues to make allegations. Recently, she found a video which she says supports a conclusion that the husband did sexually abuse the children. That was not in evidence before Johns J. The wife took it to police who, she says, have declined to deal with it. That electronic form of evidence was not put before this court on the present application. It would also seem that the husband has not been approached by authorities about the matter at all.
Johns J examined the evidence and made the following about the sexual abuse allegations said to have been made by the children:
[87]I have significant reservations as to the weight that can be attached to those disclosures in circumstances where it would appear that the mother has discussed with at least one of the children the allegations and where there is so little particularity as to what is said to have occurred.
In part, concern arises in the current proceedings because of the words used by the wife in her communications with the children. For example, the husband deposed as follows in respect of a recorded telephone conversation the wife had with F in June 2016.
“How’s your donut?” and a second question was asked: “Does anyone touch your donut?”.
She then asked the boys whether anyone touched their sister’s donut. She asked the boys whether the husband had touched F’s donut. Bizarrely, in his affidavit, the husband had said:
Donut is the word that the mother has always used to describe F’s vagina.
But when cross-examined, The husband said that he did not know whether or not the wife used the word “Donut” as an euphemism for “vagina”. He added that he had never heard her use it. He then acknowledged that what he had said in his affidavit about the wife was not correct. How such a descriptive error could be made by the husband escapes me, particularly as he began his evidence confirming that everything in that affidavit was true and correct.
In her affidavit, the wife said that she did not use the word as “code for the word vagina”. When challenged about what words she had used, she denied any euphemistic intent saying she was asking about whether F’s brothers had taken or eaten their sister’s donut. There was no challenge to the use of the words nor could there have been because these conversations have generally been taped although none of those tapes were in evidence.
At one point, the wife remarked that she knew of my own views about requiring evidentiary detail and no doubt she is correct but the context in this case was not just important, it was critical. The wife’s use of “Donut” and then asking the boys whether the husband had “touched” F’s Donut does not fit with the wife’s context. The conversation does not appear to have been light-hearted; there does not appear any logical explanation for her use of “touching” as distinct from “taking” or “eating”.
In the context of the wife’s very strongly held and continuing belief that the husband has sexually molested at least F, her explanation would be entirely without plausibility except for one thing; there is no evidence as to how the children would have understood the sexual connotation if the husband’s written evidence is wrong. He certainly conceded that it was. There is no evidence that this language had been used before. I do not know whether this was simple banter or some subtle message to the children. Neither party assisted the court in their presentations notwithstanding each was represented by lawyers because whilst both admitted that they had taped conversations, those transcripts were not provided. Even if they had been so transcribed, the audio would have had to have been heard to understand the context.

Importantly, I find that all future supervisors need to be vigilant about such subtlety.
A second example of the same language usage can be seen in the conversation in which the wife said to the children that in an earlier telephone conversation, the husband had hung up on her. She went on to say that she was not going to let him ruin her relationship with D just because D had a “delusional” father. The use of the word “delusional” was deliberate but the context of the husband hanging up the phone does not assist. The criticism of the husband by the wife to an impressionable child is quite concerning particularly as Johns J in 2015 expressed a finding against the wife for manipulating a child.
Johns J went on to find no basis for the allegations of impropriety against the husband considered whether the wife and/or her family had coached or influenced the children to “make disclosures”. Her Honour described how the children spoke to a family consultant about “zipping” their “lips” and saying how they had “to get rid of” their father. Her Honour found:
[179…I accept the evidence of [Ms B] with respect to the statements made by the children to her during that interview. That evidence is extraordinary; having regard to that evidence I am satisfied on the balance of probabilities that the children’s statements to [Ms B] are the product of extensive coaching and direction by the mother as to how to behave and what to say during interview for the preparation of the Family Report. Those statements of the children are consistent with other statements made by them during police and DHS interviews to which I have referred earlier in this judgment. Accordingly, I am satisfied that little weight can attach to the children’s statements, which are the product of the mother’s coaching and influence.
Ultimately, Johns J found a long history of allegations to which the children had been exposed and that (at [204]) there had been a significant burden placed upon them as a result of the wife’s beliefs. That led her Honour to contemplate whether the children were at risk in the wife’s care as well as in the care of members of her family. Her Honour said:
[212]I accept the evidence of [Ms B] which accords with my own observations of the mother and the maternal grandmother as to their commitment to paint a picture of the father in the worst possible light as a perpetrator of sexual abuse; that conduct in my view is a form of emotional abuse from which the children must be protected. I am satisfied that the mother and maternal grandmother are unable to contain their views about the father and the risks they perceive he poses to the children. As a result, I am satisfied that the children are at risk of emotional and psychological harm in the care of the mother and maternal grandmother.
A witness in that trial had been Dr C who is a psychiatrist. He had provided a report to the court with an assessment of the wife. Her Honour said:
[111][Dr C’s] report provides a summary of the mother at page 6 in the following terms:-
From early on in her life she alleged she has been sexually abused. Her account of this was vague and it appeared that her mother had made her aware of such difficulties with men from an early age. She alleged she was raped at the age of 16. Those experiences she said made her particularly wary of the possibility of abuse involving children and their fathers.
Dr C went on to say that the wife’s “difficulties” lay in the area of her personality functioning and intellectual grasp. I too have concerns about the wife because of the evidence I heard. I turn to that now because it indicates that not much has changed.
It was the husband’s evidence that the wife spoke to D in March 2016 telling him that she had written a letter to his doctor because people had been “fabricated” things in his file which was not good so she needed to rectify that. D said that he wanted his mother to stop talking about this. Her response was:
Stay strong, tell the truth always. [E] make sure you tell [D] I believe in you children.
Later in March, the wife told E that she would never turn her back on him even if there had been no talk for months. She then told him that it was not her fault that they were not able to talk for a while but she had not only not given up but would never do so. Curiously, she then asked whether D had given up and told him that she might have to “soon”. The husband described D as distressed and upset by the wife’s call.
In May 2016, an argument occurred between D and the wife, raised by D, about her having sent the police over to do a welfare check whilst he was sleeping at his grandfather’s house.
On 16 May 2016, the wife said to the children:
Mum’s always here for you guys except your Dad. Just you guys, and it is very important that you tell the truth. People don’t like people who fabricate and lie about things.
A little later in May, the wife told the children that she had changed a lot but that the fight had not stopped.
In June, the wife said that she would see the children soon. She told them that she knew what was real and what was not but no-one seemed to take any notice of her.
Later in June 2016, the wife made reference to the fact that she was owed money to the extent of $3500 but she did not mention the name of the husband. I find she was making reference to her assertion that the husband owes her child support from years back. Whether or not the children understood the reference to child support or their father, I am unable to say but there was no justification for the subject to be raised with the children.
In July 2016, the wife asked F whether she missed her “baby bottles”. Notwithstanding all of the children were well past an age where baby bottles were necessary, some days after this conversation, the maternal grandmother sent a parcel containing baby bottles.
These conversations all have to be added to the packages sent as I have earlier described.
The wife’s response was to say that to understand what she was saying, one needed to understand the context. For example, in relation to the baby’s bottles, she said that F told her that she missed having them in front of the television. The wife said that the maternal grandmother probably did send those bottles notwithstanding she had not been specifically requested to do so but one must ask why that would have occurred without some conversation occurring between the wife and the grandmother. A cursory read of the judgment of Johns J shows her Honour was critical of the grandmother. F is eight years of age so one might consider this concept strange but even so, what was the context?
Most importantly, I do not accept the wife’s evidence about context in circumstances where some, if not most, of the conversations were taped and none of that corroborative evidence was produced. Not only was it not produced, but it seems conceded by both parties that no discovery had taken place either.
To the extent that the wife was asserting that this was a selective cherry-picking of parts of the conversations, some of which had not been terminated by the husband, I find that they are concerning only because of the possibility that the children may be being manipulated. The wife cannot have it both ways. She conceded that some of the conversations actually occurred and she justified them on the basis that the children were entitled to be told to be truthful. The primary responsibility for that and the care of the children’s welfare, lies with the husband as a result of the orders of Johns J. The wife was entitled to ensure that the children knew who she was and that she was interested in their activities.
No evidence was presented by the husband to indicate the context of those conversations between the wife and the children but to the extent that he might be criticised for being selective, nothing was put to him by the wife’s counsel to indicate that other conversations had occurred or that his descriptions were not accurate.
I do not find that these conversations have been destabilising the children other than in respect of the specific incidents to which the husband referred where D was distressed. The evidence does not indicate a conclusion could be drawn that F is in the same position as D.
I have serious concerns about D because, in an inappropriately attached report from a Ms CC of the contact centre in Western Australia, she reported the following:
(The husband) attended with the children and stated that [D] (incorrectly spelt in the report) would not come in. [D] was observed to be sitting outside the door with his arms folded refusing to enter the office. (The husband) was asked to wait inside with the other children and I spoke with [D]. He advised that he was angry with his mother as she never answers the phone to talk to them. [D] also added that he was aware that his mother was allowed to visit the children but “doesn’t bother” so he was angry about this.
It is clear that the contact centre officer took a dim view of the husband’s role in getting D there. But D’s behaviour and reaction has to also be seen in the context of what he is going through. I do not know whether the contact centre was aware that D is having weekly counselling and also seeing a psychologist by the name of Ms DD.
It was the husband’s evidence that the local child welfare organisation had referred him to the relevant centre to assist D and that the child had been attending for over 1½ years. In May 2017, D is to attend a psychiatrist recommended by the psychologist. When asked why all this was happening, the husband said that it was for the purposes of an “assessment” and ongoing treatment to help him at school. At the school, there were also constant meetings with the school psychiatrist Ms EE and the principal.
Leaving aside the question of the regular expense, some of which is ameliorated by rebates, one must ask what is happening to D. Sadly, none of this evidence was before the court. Despite the orders of Johns J, the wife had not been told about any of these events. Presumably therefore, the contact centre staff were not made aware of D’s problems either.
In that regard therefore, the husband’s evidence was poor because this had to be elicited in evidence in chief by his own counsel who was directing it to the question of the costs of maintaining those specialist services rather than the reason for them. It does not take much imagination to understand that if D is about to commence visiting a psychiatrist as a result of a recommendation from a psychologist, there is a problem looming. Thus, the wife should be made aware of those details for the purposes of any conversation she has with D. But any supervising body must understand how to deal with D bearing in mind those problems. It goes without saying, the evidence before the court was significantly deficient in that regard.
Counsel for the wife was critical of the husband’s failure to advise his client of any of the matters just mentioned. The husband’s explanation was that it was a matter for other people including his lawyer. That explanation was not good enough. I propose to resolve that issue by requiring the husband to sign an authority for the wife to speak to the professionals who will use their discretion as to whether or not they will speak to her at all or indeed, involve her in any problem. I propose that those professionals be given a copy of these reasons just to make sure that they are made aware that the court is concerned.
Notwithstanding the orders of Johns J that the husband provide that information, counsel for the wife acknowledged that it was a pointless exercise order it again because there would be no such communication by the husband. I agree with that on the basis of the husband’s explanations and more importantly, as he has lawyers representing him, I am perplexed as to why they did not follow that issue through to its proper conclusion.
There is no better example of the problem than that which arose in relation to the wife’s application for an intervention order in 2016. The husband said that he had been making a number of telephone calls to enable the children to communicate with the wife unsuccessfully. He instructed his solicitor to raise with the solicitor acting for the wife and indeed a letter was sent on 5 December 2016 in which it was said that the wife was refusing to answer the telephone or if she did, she immediately terminated the call. No response was received from the wife’s solicitor but four days later, the wife attended at the local Magistrates’ Court in Victoria and signed a complaint seeking an intervention order alleging (and allowing for the shorthand):
The husband has been harassing (the wife) by continually ringing her. The most recent incident occurred on 8 December 2016 when the respondent telephoned the wife six times. The wife didn’t answer any of the phone calls. The children ring the wife twice per week for contact phone calls with the wife according to the Family Law Court orders…
The wife suggested that this telephoning was outside of the contact arrangements but that is hard to follow bearing in mind the time difference between Western Australia and Victoria. How that particular series of phone calls could be construed as harassment, is also hard to accept on the basis that the husband was simply fulfilling his obligations to ensure that the contact occurred. He was responsible for the facilitation of the order. Nothing in his evidence indicated that he had any desire to have anything to do with the wife and if so, harassment would seem unlikely. It may be a reflection of the wife’s personality as described by Dr C above.
The solution to the intervention order seems to have been a compromise although the clear details are not in evidence. The husband has given an undertaking and as a consequence, the intervention order will be apparently withdrawn. What view the Magistrates’ Court may take of that approach is a matter for them but it is important that two different courts do not act obliviously to the other’s role.
Nothing about the husband’s conduct indicated he intended harassment of the wife. I find he has endeavoured to make the contact orders of 2015 work but he is now fearful of trouble including in relation to providing information to the wife. That justifies a discharge of the orders that have not been effective including in relation to the provision of information about parental responsibility decisions.
The crux of the husband’s case which precipitated this application arises because of statements that I have described by the wife. Her tenacity in persisting with the view that the husband has sexually abused the children flies in the face of the observations of Johns J. This is not a simple case of a trial judge making a finally balanced finding on the balance of probabilities. It is clear from reading her Honour’s long judgment that the evidence against the wife was overwhelming. As nothing has changed in her attitude, the court has every justification for approaching her description of what was said and her claims about the absence of context, with great caution.
That said, this is about the right of the children to have the benefit of a meaningful relationship with both parents. Again, the judgment of Johns J is a helpful starting point on that issue. Her Honour said:
]203]On any view, the environment in which the children lived with the mother is toxic, insofar as the attitudes of the mother and the maternal grandmother towards the father is concerned. The evidence of [Ms B] suggests that the children have been exposed to ongoing denigration of the father by the mother and her family…
Her Honour found the wife’s conduct undermined the children’s relationship with the husband. Her Honour then said:
[203]…In light of that conduct and the strength of the view expressed by the mother and [Ms J] as to their belief that the children have been sexually abused by the father, I have no confidence that the children would ever have the opportunity of a meaningful relationship with the father were they to remain in the mother’s care.
The psychological harm was not confined to manipulating the children about sexual abuse allegations. Her Honour was concerned about physical harm to the children as well. In addition, the children had missed school inappropriately.
For Johns J, the solution was to remove the children from the wife’s care. Her Honour said:
[258]Having regard to my findings in relation to the above matters, I am satisfied that the children are at risk of psychological harm and physical harm in the mother’s care.
As that led her Honour to contemplate how separation would impact on the children, she said:
When asked by counsel for the mother how the children would cope with a change to live with the father given that they have been in the primary care of the mother for a considerable period, Ms B stated:-
[305]I actually think that for the children it will be a relief. I am not saying that they don’t love or they won’t miss their mother. All of that is true. But I think they’ve been so burdened by this matter, they’ve been so over-engaged in it. Their behaviour is so constrained and difficult that for them to be children would be a relief. For them to be able to see their mother and throw their arms around her and be loving and to talk about something other than this matter would be a relief. And I think they need that.
…
[308]The evidence of [Ms B] overwhelmingly supports the view that whilst an order requiring the children to live with the father will be challenging for the children and will cause them to miss their mother, the long-term benefit for the children, in ensuring that they have attention to their physical and emotional needs, that they have an ability to have a relationship with both parents which is untainted by the misinformation to which they have been exposed in the mother's household is going to best provide for their physical, emotional and intellectual needs. I accept that evidence.
But her Honour then went on to say:
[323]In this case, the mother has demonstrated little insight or awareness as to the impact of her behaviours upon the children, which has had a devastating impact upon their relationship with the father.
Despite a recommendation by Dr C that the wife should have therapeutic counselling, there is no evidence that that has occurred. Her Honour said:
[326]If the mother were to engage in on-going therapeutic intervention to address the issues as identified by [Dr C] it may be that in the future she is in a position to seek orders for unsupervised time.
Thus, to the extent that it might be thought the wife’s manipulation has been ameliorated by the tyranny of distance, or time, or lack of face to face communication, I find it has not. That can be seen in the persistence of the wife in holding the view and so articulating it still, that the husband’s abuse of the children is continuing. It is seen in her irrational fear that the husband means to harm her in some way. It can be seen in her views about giving gifts to the children behind the husband’s back to destabilise their relationship with him. All of those matters were matters contemplated by Johns J. Thus, any supervisor of the orders must be vigilant to protect the children. As Johns J said:
[336]…However, I am satisfied that such limitation is necessary in order to protect the children from the damaging effects of the behaviours of the mother and the maternal family; since the children’s arrival in Victoria, they have been exposed to an on-going and relentless campaign by the mother and her family against the father…
Notwithstanding Johns J in 2015 dealt with all of the relevant legal issues that could be contemplated in a parenting case, the Act requires the court when making a parenting order to follow a particular pathway. Counsel for the wife indicated that there were still relevant matters in that pathway and I agree but on the basis of the evidence presented to me, it is difficult to see how many of the matters contemplated by Johns J could now be seen differently.

It is in Part VII of the Family Law Act 1975 (Cth) (“the Act”) that the pathway provides how a parenting dispute should be determined. Both in 2015 and again now, the focus of the court must be on “best interests” principles. Those principles are guided by the objects and principles set out in s 60B but they are also guided by the findings made by the 2015 reasons for judgment. Those reasons give an insight into what was going on but also how things have progressed. Significantly, they give assistance to determine whether the children have benefited in having any relationship with both of their parents.
The legislative objects in the Act are to ensure that the best interests of children are met by, inter alia, ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives. But, as the section provides, that will always be governed by whatever sort of relationship they are to have being consistent with their best interests. That requires contemplation of what Johns J found and an examination here of whether the s 60B aspiration can be met if its impact is adverse to the interests of the children.
Counsel for the wife stressed the importance of the children having a meaningful relationship with the wife because she was their mother and because she had so much to offer. The flaw in that submission lies in the fact that the court has previously expressed caution about her manipulative behaviour. Being the mother of the children is of little benefit if the wife continues to do what Johns J was so critical about. Here, I find that the wife does use adult concepts because she does not accept the findings were open to Johns J. No-one has to accept that the decision is correct but as the criticisms of her Honour were strong, one would have expected the wife to have had contemplated, if not sought, therapy and obtained assistance about appropriate subjects to discuss with the children. There is no evidence here that the wife has changed at all.
The husband’s evidence, which I accept because it was not disputed, was the D was distressed. There is the “evidence” presented by the wife herself of the contact centre’s observations. To the extent that the wife thought it showed some form of manipulation by the husband of D, I find it does not. It shows that D is a troubled child and is getting help. The wife must not destabilise that.
Section 60B also requires the court when contemplating a parenting order to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. The findings of Johns J indicate the wife had not been doing that. I find that she is subtle in her messages and the children deserve better than that. I do not know whether the wife can change her approach to the children and confine her discussions to things that interest and involve the children.
A supervisor must be conscious of subtle messages but also on ensuring that the wife talks about daily things of interest to the children and not the matters about which I heard evidence here. If the husband was selective, the wife did not provide positive evidence about what she does discuss. Johns J was sufficiently satisfied about the husband’s behaviour and parenting role to give him the discretion to terminate the wife’s behaviour. There is a strong message in that.
Section 61DA provides that when making a parenting order, the court is obliged to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. The orders in December 2015 dealt with that issue and solely gave the husband that role subject to information sharing which has failed miserably. It was the wife’s evidence that the order was pointless and counsel for the wife submitted that even if the order remained, the wife did not accept that the husband would not comply with it. These parties need to end this litigation.
A failure by the husband to provide information under the existing orders could lead to a breach and contravention proceedings. There is a problem with that possibility. On 7 October 2016 an order was made by Macmillan J which has not been the subject of appeal. It reads:
The wife be restrained from instituting proceedings in a court exercising jurisdiction under the Family Law Act 1975 without first obtaining leave of the Court unless the wife is legally represented with a solicitor on the record who has prepared her application and all relevant accompanying documentation to be filed with that application.
That order enabled the wife, with the assistance of a grant of legal aid, to present the case that she has but the evidence about addressing the issues raised by Johns J was curiously absent. That might have been important here.
Despite the mandatory nature of s 61DA, it is unnecessary for me to consider the presumption there referred to again. In SCVG & KLD (2014) FLC 93-582, at [80], the Full Court said:
Thus where there is agreement that notwithstanding an order for equal shared parental responsibility has or will be made, an order for equal time would not be in the child’s best interests, in agreeing to allow the hearing to proceed in this manner the court has, in effect and substance, considered both s 61DA (which in any event the existence of the order for equal shared parental responsibility renders irrelevant) and s 65DAA(1). With those matters resolved early in the proceedings, notwithstanding the “legislative pathway” described in Goode, ss 61DA and 65DAA(1) need not be addressed again.
The parties have litigated in that way here. It was not a contentious subject and accordingly, it is unnecessary for me to consider s 61DA further.
The focus of counsel for the wife (and properly so) was on the meaningful relationship I have already mentioned but a second consideration is the impact on the children of the absence of contact with the wife. It is unnecessary for me to make findings about the wife’s responsibility as a parent as those findings have already been made in 2015 and I have considered whether she has changed. I find she has not. The children get little benefit from her communications.
To the extent that the pathway requires the court to consider the benefit to the children of having a meaningful relationship with their mother, it is timely to recall the words of Kay J in Godfrey v Sanders (2007) 208 FLR 287, where his Honour said:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The “move” in that case concerned an international relocation but it could equally apply to any form of relationship between a parent and a child. The court can do little more than draw inferences from the evidence with which it is presented. Indeed, the orders under contemplation require some prediction of what will happen both in the short term and the long term for these children. That exercise is a highly discretionary one but some comfort can be taken from the fact that these parties have been in conflict for a long time and the children, other than D, seem to shrug it off.
Ultimately, the court must make an order which is proper (65D). As for what is proper and how the court’s discretion is exercised, in Grella & Jamieson (2017) FamCAFC 21, the Full Court stated, at [18], that:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. In U v U (supra) Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) said (at [90]):
90.…The appellant’s submission is that the trial judge gave too much weight to the child’s short term welfare, and commensurately too little to her long term welfare, and that the Full Court erred in failing so to hold. That is, as the respondent submits, no more than a complaint about the weight which the trial judge attached to admittedly relevant considerations. Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one…
In my view, these children should have regular (albeit not optimal) contact around times when there is a topic of interest such as birthdays, school holidays and Christmas. Those times will give the wife an opportunity to discuss what the children have been doing with a focus on exciting and happy times. That was certainly the position of the husband and the Independent Children’s Lawyer (although perhaps not articulated that way) but I consider there should be more time than they proposed on the basis of what Johns J considered these children needed. The wife has not been able to communicate with the children effectively and the husband has every right to be concerned with what she has been doing. Her doing has brought this to a head. Thus, the specific dates I have in mind should enable a clearer focus around events of significance to the children.
The wife also raised fear of the husband but there is no evidence of family violence here. I am not prepared to find that the recent intervention order proceedings justify a finding of family violence for the reasons I have already set out.
Section 60CC requires of the Court that it “consider” each of the relevant provisions. I have considered each of those matters that were contemplated by Johns J and to the extent that the evidence here permits, I adopt her Honour’s findings.
In respect of the primary considerations, the two factors mentioned repeat the objectives set out in the Act that I have already mentioned. It was clearly suggested that the wife was engaging in psychological abuse or neglect of the children but I consider there is still benefit to the children in having a meaningful relationship with their mother and the best way for that to occur is first by her changing her ways and secondly by her approach being closely monitored.
Whilst the focus of counsel for the wife was on his client, it cannot be overlooked that the husband’s complaint about the wife is that she is being destructive of his relationship with the children. I find there is justification for that assertion. That can be seen in the comments I have mentioned about the wife referring to him as delusional and that she did not care for him. It occurs with the manipulation about money. Johns J was concerned about the damage the wife was doing to the relationship between the children and the husband. I find it is still happening.
There are “additional” considerations found in s 60CC(3) which can be briefly mentioned.
The views of the children are hard to assess here but the objective evidence is that they enjoy conversing with their mother. Nothing suggests they want no such communication nor is there any objective evidence they are concerned about the frequency of time or duration.
Insofar as any finding can be made about the relationships of the children with their parents, a number of observations have already been made including those of Johns J. I do not need to repeat them here but it is disconcerting that notwithstanding the findings in the final hearing, the wife’s current affidavit, drawn by her lawyers, amounted to an attack on the husband’s capacity as a parent. She said (at [8]) that when the children were with her, she provided them with extra tuition and she did not believe the husband was attentive to their needs. She referred to the husband’s reference to D being “meted out” punishments when living with the wife. She then denied that. An examination of the reasons of Johns J shows that her Honour found the wife’s conduct inappropriate. Even so, this was not an application by her to change residence.
In that same affidavit, the wife justified the police welfare checks on the basis that one of the children had complained he was being poisoned by the husband’s food and on another occasion, a child had complained of being sick where the husband would not take him to a doctor. These were after telephone discussions with the children and the wife’s view was that, as a mother, she had a responsibility to protect her children. She defended the police attendance on the basis that they were happy to do it as part of their job. I consider that to be wrong. The examples given would not require police intervention at all. It might be justifiable for welfare officers to be involved but not police and not in circumstances where the child says what the wife alleges. All of these matters are destabilising for the children and must be confusing for them. D said so in one of the recorded telephone conversations.
Suffice to say, the relationship of the husband and the children must not be destabilised because he is the person with the primary responsibility for their care. I repeat my concern about D.
I have also mentioned the financial commitment of the wife is minimal based on her Centrelink entitlements. Against that is the money which she estimated at $10 per week going to the children. From the husband’s earnings which the wife shrugged off as far more than hers, he pays $45 for the counsellor and $200 per month for the psychologist but with a rebate. There is then the proposed psychiatric assistance. He has to provide for the full needs of the children on the basis that even on the wife’s description of what she provides, they are not basic items that a parent would normally be expected to provide. In my view, whilst the wife might feel better providing her children with things she sees as important, she would be better to provide adequate assistance to the father.
For the reasons earlier mentioned, there should be more occasions than suggested by the Independent Children’s Lawyer. However, I will not tie the contact centre management to provide more than their resources permit. I do however desire that these children see their mother by video link if that can be supervised. I do not intend to be prescriptive as the duration but common sense dictates that about 30 minutes or so is about the normal concentration span of these children. If it can be extended, the supervisor will no doubt judge the efficacy of so doing. I also acknowledge that these arrangements cannot last forever but if the contact centre terminates the contract, negotiations will have to occur between the husband and wife or through their lawyers. I do not consider it appropriate for the community to continue to fund the independent children’s lawyer’s role and she will be discharged after providing the necessary documents to give effect to these orders.

I certify that the preceding Ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 April 2017.

Associate:

Date: 26 April 2017

[2017] FamCA 247

26 April 2017

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