Bickford & Bickford
[2021] FedCFamC2F 305
•28 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bickford & Bickford [2021] FedCFamC2F 305
File number(s): MLC 5007 of 2019 Judgment of: JUDGE BLAKE Date of judgment: 28 October 2021 Catchwords: FAMILY LAW - parenting – interim – change of residency - where the Mother has made serious allegations against the Father – where there have been previous findings that the Mother has embellished evidence – consideration of section 60CC(2) of the Family Law Act 1975 – children removed from the Mother who is the primary carer – children placed into care of the Father – application granted. Legislation: Family Law Act 1975 Act ss 60CC, 60CC(2)
Surveillance Devices Act 1999
Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 28 October 2021 Place: Dandenong Counsel for the Applicant: Ms Dwyer Solicitor for the Applicant: Knight Family Lawyers Counsel for the Respondent: Mr Ambrose Solicitor for the Respondent: Duane Portway Family Law Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Westminster Lawyers Pty Ltd ORDERS
MLC 5007 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BICKFORD
Applicant
AND: MR BICKFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS THAT:
1.The matter be adjourned to 16 March 2022 at 10am for Final Hearing, with an estimated hearing time of 3 days (‘Final Hearing’) before Judge Blake at the Federal Circuit and Family Court of Australia in Melbourne.
2.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Ms Q (‘Single Expert’) is appointed as the single expert to enquire into and provide an updated report upon issues relating to the welfare of the children X born in 2012 and Y born in 2014 (‘children’).
3.The parties shall each pay one-half of the single expert’s fees.
4.In the event that any of the parties request the attendance of the single expert at Court for the purposes of cross-examination, the parties shall be equally responsible for the single expert’s costs in respect of such attendance.
5.The single expert shall prepare an updated family report (the single expert report) which addresses the following matters:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon children relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon children relationship with the father if the Court made orders as sought by the mother; and
(e)any other matters that the family report writer considers important to the welfare or best interests of the children.
6.Paragraphs 4 and 5 of the Orders made 11 August 2021 be discharged.
7.Paragraphs 3, 4, 5 and 6 of the Orders made 15 October 2020 be suspended.
8.The children X born in 2012 and Y born in 2014 live with the father.
9.The mother or her agent deliver the children to the Suburb C police station at 5:00pm on this day for the purposes of the collection by the father either personally of by his mother Ms J or partner Ms S.
10.Commencing not before 11 November 2021, the children spend time with the mother as follows:
(a)all such time be supervised by Family Contact Services (“FCS”).
(b)each of the parties without delay complete all intake procedures and documents required by FCS to enable the following time by the children with the mother to commence without undue delay after 11 November 2021.
(c)the mother spend time with the children not less than once per fortnight for up to 4 hours, at the times that the resources of FCS permit.
(d)the costs of FCS be paid at first instance by the mother, with the ultimate responsibility for same to be reserved to the trial judge.
(e)as otherwise agreed in writing between the father, mother and the ICL.
11.The parties obtain a professional contact supervisor report to be paid by the mother at the first instance, with the ultimate responsibility for same to be reserved to the trial judge.
12.The mother attend upon Dr T for psychiatric assessment and report, AND IT IS NOTED that the ICL has arranged an appointment for the mother with Dr T on 3 November 2021 at 3:00pm.
13.The ICL provide to Dr. T copies of the following:
(a)Orders and reasons for judgment made 15 October 2021.
(b)Court documents filed by the parties, and orders made, in the current proceeding.
(c)Short-form family report of Ms. Q dated 12 September 2021.
(d)Supervised contact report dated 27 October 2021.
14.The cost of Dr T’s assessment and report be paid by the mother.
15.Pursuant to section 68P of the Family Law Act 1975, these orders prevail over any inconsistent family violence orders with respect to the children X born in 2012 and Y born in 2014.
16.Each party has liberty to apply.
17.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Trial Directions
18.The Applicant electronically file and serve any further affidavits to be relied upon by the Applicant at the Final Hearing not later than 21 days prior to the Final Hearing, such affidavits to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 .
19.The Respondent electronically file and serve any further affidavits to be relied upon by the Respondent at the Final Hearing not later than 14 days prior to the Final Hearing, such affidavits to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
20.The Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by them at the Final Hearing not later than 7 days prior to the Final Hearing, such affidavits to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
21.Each party be permitted to rely upon only one affidavit by each of the parties and each witness unless the party has first obtained leave of the Court.
22.The parties must confer and jointly electronically file with the Court by 12pm midday two business days prior to the Final Hearing, each of the following documents:
(a)a statement of agreed facts;
(b)a trial plan;
(c)a bundle of authorities containing each case to be relied on, such bundle to:
i.be in portable document format (PDF);
ii.be capable of being searchable for specified text;
iii.have an index and be paginated; and
iv.have each entry in the index bookmarked.
(d)word version of the proposed Orders sought, with the Applicant’s solicitors (or where there is an Independent Children’s Lawyer, the ICL) to prepare the proposed Orders in Word format, to be circulated to the other parties and other party’s amendments to the Applicant’s proposals should be made with ‘track changes’ in Word for Windows. The amended Proposed Minute (containing the ‘tracked changes’ and in MS Word format) is to be emailed to chambers
23.Each party electronically file and serve by 12pm midday two business days prior to the final hearing, a table setting out any objections to evidence (if any) and an outline of submissions in the following format:
(a)a list of each affidavit, annexure and tendered document sought to be relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)submissions with respect to each of the significant factors relevant to determining the best interests of the child/ren (s.60CC factors);
(e)a list of contentions relevant to the operation of s.65DAA;
(f)a list of any other contentions relevant to the decision; and
(g)the actual orders sought.
24.Each party electronically file, serve and email to the chambers of Judge Blake, by 12pm midday two business days prior to the Final Hearing, a paginated court book consisting of:
(a)an index;
(b)the Application and Response, or any amendment to these documents in respect of which the Court has granted leave to amend;
(c)any affidavit to be relied upon;
(d)annexures to affidavits;
(e)all documents to be tendered into evidence or shown to a witness;
(f)case outlines;
(g)objections to evidence; and
the court book:
(h)be in portable document format (pdf);
(i)be capable of being searchable for specified text;
(j)have an index and be paginated;
(k)have each entry in the index bookmarked, including affidavits, annexures and each document; and
(l)be set so that when opened:
(a)it displays at 100% zoom; and
(b)the bookmarks menu is displayed.
25.No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.
26.A party is not permitted to advance a case that is different from that set out in the Application or Response unless the party has first obtained leave of the Court.
27.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
AND THE COURT NOTES THAT:
A.The parties will be provided with a written record of the ex-tempore reasons delivered by his Honour Judge Blake on this day.
B.The Court notes that the Mother offered to withdraw the Intervention Order proceedings in the Magistrate’s Court of Victoria and the Court expressed the view that she should do so.
C.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
D.Failure to comply with the directions set out in these orders may result in a Trial being adjourned and costs awarded against the non-compliant party.
E.The provision of any documents to the Court pursuant these Orders does not place those documents into evidence and such documents shall only be accepted as evidence at the Court’s discretion in the usual manner.
F.The COVID-19 pandemic may see this trial proceed on Microsoft Teams if it cannot proceed in open Court. If that occurs, the Court may make further orders to facilitate a hearing on Microsoft Teams.
G.The parties are expected to use their best endeavours to limit the issues at trial by reaching agreement (where practicable) on a comprehensive statement of agreed facts.
H.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a) the filing of documents; or
(b) any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the party in default or their solicitor may be ordered to pay the costs of the other parties wasted as a result of the default.
I.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an associate or deputy associate of the trial judge, or by another appropriate court officer, shortly prior to the Final Hearing.
J.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
K.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
L.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
M.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bickford & Bickford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE, REVISED FROM THE TRANSCRIPTJUDGE BLAKE:
INTRODUCTION
This matter comes before the Court initially as an application by the Mother filed on 12 July 2021 in which she sought, among other things, the discharge of the final parenting orders that I made on 15 October 2020. In that application the Mother sought, among other things, orders for sole parental responsibility of the children X born in 2012 (‘X’) and Y born in 2014 (‘Y’), that X and Y live with her, and for any future time between the Father and the children to be supervised.
As part of that application the Mother raised a range of extremely serious allegations against the Father including physical abuse of the children. She had made at or around the time she filed the application in this Court, reports to both the Victoria Police and the Department of Families, Fairness and Housing (‘DFFH’). When the matter came before me for first return, the parties agreed to attend upon Ms Q (‘Ms Q’) for a short form family report which has now been produced to me. As a result of that Report, the Father now brings an application (supported by the ICL) to have the children live with him and for the Mother's time with the children to be supervised.
BACKGROUND
This is a matter which I have a great deal of familiarity. The orders I made on 15 October 2020 were made after a trial on parenting and property issues. At that time following that trial I made final orders that the children live with the Mother and spend time with the Father, ultimately working up to an arrangement where they spent every alternate Tuesday night with the Father and then alternate weekends from Friday through to Monday. The orders I made were made after I made findings in relation to the risk posed by the Father to the children. I also made those orders balancing the other considerations that I am required to balance under section 60CC of the Family Law Act 1975 Act (‘Act’).
Detailed reasons were issued underpinning my findings. I made findings, relevant for the purpose of this application, about the Mother at paragraphs [88] and [89] of my reasons for judgment delivered on 15 October 2020, including findings that the Mother had embellished the evidence before me to support her application in respect of the children. I also made findings that the Mother was not likely to or would not support a relationship between the children and the Father. At paragraph [93] of my reasons I referred to the section 11F report of the family consultant, and at paragraphs [95] to [96] of my decision I summarised the family report. Paragraphs [93] to [96] of my decision provide as follows:
93.The parties attended for a Child Inclusive Conference on 19 July 2019. The 11F Report was prepared a matter of months after the Respondent returned from Country G and after the Respondent claims that the children made concerning disclosures to her. Notwithstanding this, Consultant Ms N recorded the following observation between the children and the Applicant:
•‘Both children reported they wanted to see their father. They said they missed their paternal grandmother and their cousins.’
•‘On observation, the children ran to their father jumped into his arms and gave him hugs. The father became emotional and the children asked him why he was crying. He gained control of his emotions and told them he missed them and was pleased to see them. He then interacted with them in a familiar and comfortable fashion; they showed him pictures and played sports. The interaction did not seem forced and they all seemed to become more relaxed as the time progressed. The paternal grandmother also spent time with the children and their reactions to her were similar. They ran and hugged her and interacted with her with ease.'
94.On the basis of those observations, Consultant Ms N recommended that the children commence spending supervised time with the Applicant and that professional supervision occur.
The Family Report
95.I have already referred in some detail to the content of the Family Report. In addition to the matters that I have referred to above, it is important to record that Consultant Ms M observed that the children had a loving and positive relationship with their father. So much can be seen from the following extracts:
a)X expressing joy when speaking about her father and stating that she loves him to ‘infinity’, and wanting to spend more time with him, albeit not overnight because she would miss her mother (paragraph 81 of the Family Report);
b)Y also stating that he loved his father to ‘infinity’ and wanted to spend more time with him, his nana and his cousins, albeit not overnight because he would miss his mum (paragraph 90 of the Family Report);
c)Both children greeting the Applicant by ‘running up to him and giving him a hug’ (paragraph 95 of the Family Report);
d)X completing a painting which she made for her father which said ‘I love you dad’ (paragraph 97 of the Family Report);
e)the observation of Consultant Ms M that ‘the children were seen to have a positive relationship with their father and showed no signs of fear or distress around him and they appeared comfortable pushing the boundaries. Mr Bickford also presented with appropriate parenting skills to manage their behaviour in a positive manner and was not punitive’ (paragraph 99 of the Family Report).
96.It must be observed that the tenor of these reports is overwhelmingly positive for the Applicant. The picture painted by both report writers is diametrically different to what the Respondent reports about the children.
The short form Family Report
I have since been provided with the most recent family report of Ms Q dated 12 September 2021. At paragraph [41] of the report Ms Q outlined her observations of the Mother and the Mother’s husband who appeared cheerful and optimistic, and at paragraph [42], Ms Q noted the somewhat incongruent behaviour of the Mother and her partner with the serious matters that were raised in respect to the children. The Mother's unwillingness to discuss the recent allegations of violence she had made, at paragraph [43] of that report are also noted.
Ms Q’s observations of the children with their Father and her record of the interview with the children is of great significance. Paragraphs [60] to [75] of Ms Q's report provide as follows:
60.The children arrived with their mother for their interviews and observation session. For the majority of their time together, they played a card game called “Frustration," which they felt was appropriate given the current pandemic. Ms Bickford interacted with the children in a childfocused manner, and it was good communication between the children and their mother, which was predominantly focused on the game at hand. While Ms Bickford demonstrated a high emotional attunement with the children, it was noticeable that X continually interacted with the writer, indicating that she may have felt not including the writer in their interactions as a social faux.
61. X initially impressed as anxious and scared during her interview. When X was asked about the purpose of her interview, she provided a long narrative of her understanding of her parents' conflict from her mother's perspective. She cited information regarding the “lies” her father had allegedly written in his affidavit material, conversations which reportedly occurred in Court, emphasising that “Mr Bickford lied to the Judge”, “Mum says that she has proof and photographs”, “Mr Bickford wants me and my brother to live with him”, and “Mum won in Court”. Understandably, X was considerably confused regarding who had actually said what in Court, confirming that she was not there and that this was relayed to her by her mother. X confirmed, "Mum wants us to know all of the things that Dad says in Court.”
62. For clarity, when X was asked to name family members, she explained that she called Mr B "Dad" and that Mr Bickford "Mr Bickford" [sic]; however, she called Mr Bickford "Dad" when she spent time with him because he likes her and her brother to call him "Dad.”
63. In discussing the conflict between her parents, X reported that her mother had told her “Mr Bickford was really mean to her” when they were together and that he had thrown keys at her “about four years ago”. X stated, “Mum said Mr Bickford is not a safe person.”
64. X reported that her parents had gone to Court and that she and her brother were to spend time with her father every Tuesday and every second weekend, reporting that on weekends they generally spent this time in City U. Overall, X reported that she enjoyed spending time in City U with her father and “Ms S,” and she enjoyed spending time with her paternal family and her cousins.
65. In discussing the purpose of her interview, X explained, "Mum wants us to tell you the bad things about Mr Bickford." When she was asked why she thought her mother did not want her to tell the good things about Mr Bickford, she stated, “Mum doesn’t like Mr Bickford very much.”
66. When X was asked what bad things her mother wanted her to report about Mr Bickford, X stated, "all of the lying, all of the hurting and all of the yelling." She reported that during the last visit with her father that Y did not want to brush his teeth, and he was "rude to Dad.” She claimed that Mr Bickford had grabbed Y and made him brush his teeth and claiming that this was child abuse and that her mother took photographs, and they made a statement to Victoria police. According to X, the next day, she and her brother had fun with their father at the waterpark in City U.
67. When X was asked how she would feel about spending time with her father, she indicated that she was nervous and scared and stated, "I don't want to see him, I'm scared.” When X was asked the source of her fear, she explained that she was anxious that her mother did not want her to see her father. She further confirmed that she was less anxious and scared spending time with her father when she was collected from school. Furthermore, the writer asked if she would be less anxious and scared about seeing her father if her mother was required to leave the premises. X confirmed this.
68. Before the children were interviewed further, X was returned to the room with her mother and Ms Bickford was asked to leave before Mr Bickford arrived. After this time, the children were interviewed together.
69. When Y was asked why he believed he was being interviewed today, both he and X attempted to explain to the writer the details of the dramatic Court scene which reportedly took place earlier that month (11th August 2021). The children talked over each other as they attempted to explain “Mr Bickford’s lies,” that their father was trying to take them from their mother, and they were confused whether or not he wished to remove V from their mother too. X told her brother, "Mum said Mr Bickford wanted to separate us from V," which led the children to conclude the maybe their father did not want V to live with him also.
70. The children debated about what the 'the Judge' had said or what other lawyers had said, and they agreed that “Mum had won in Court and now we don’t have to see Mr Bickford." The children confirmed that they had been provided with a detailed account of the most recent Court hearing by their mother and that this was notably important and dramatic.
71. When the writer innocently asked why their parents had to go to Court, the children jointly explained that this was because "Mr Bickford lies" and because of "child abuse." When Y was asked to describe what had happened at his father's home, he stated that he did not want to brush his teeth, and his father picked him up and threw him around the room. Y started spinning around the room and dramatically acted out his father spinning him around and bashing his head on a bathroom sink. Both the children were laughing, and X stated, “no he didn’t”. Y confirmed that he had a bruise and a cut under his arm from his t-shirt. He confirmed that the following night he brushed his teeth when he was told to. Y stated, “I don’t want to see Mr Bickford ever again.”
72. The writer indicated that she was going to call their father into the building, whom she understood was nearby. In discussing this with the children. Y became excited and wanted to know where his father was when what time he would be coming. X indicated that she was no longer scared or anxious about seeing her father and indicated that since her mother had left that she was now excited to see her father. X confirmed that she was more anxious and scared about her mother being upset about her seeing her father rather than being anxious and scared about actually seeing her father.
73. When Mr Bickford entered the room, the children enjoyed an emotional reunion. Within two (2) minutes of Mr Bickford entering the room, Y looked at the writer and, in the presence of his father, stated, “I’ve changed my mind, I do want to see Dad, I want to live with both Mum and Dad the same.”
74. While Mr Bickford attempted to engage in games and activities for the children, this was unsuccessful as the children spent their time climbing over their father and providing him with multiple hugs and kisses, which continually disrupted any activity they attempted. The children did not appear to be uncomfortable or scared by their father in any way. They competed for his physical attention, stated that they loved and missed him and Y, in particular, continually climbed on his father's shoulders using him as a climbing frame.
75. The writer experienced difficulties separating the children from their father at the end of this observation session as they continually wish to run back to their father to have their ninth and tenth hug. The children continually asked their father when they would be seeing him next, and Y stated that he wanted to leave with him that afternoon. When the children had successfully separated from their father, and he was walking out the door, the children spotted his partner, Ms S, through the glass door and immediately ran out to greet her, also providing her with multiple hugs and kisses. Unfortunately, this elongated the children’s departure from their father even longer, and the process of attempting to separate the children from him needed to be repeated. At various times during this observation session, both Mr Bickford and the children were in tears.
I note the uncanny similarity between Ms Q’s observations of the Father with the children and the observations made by the section 11F report writer prior to the trial.
Paragraphs [83] to [91] of Ms Q's report then provide as follows:
83. Mr Bickford claims that Ms Bickford has brought vexatious claims against him due to the previous history of this dating back to almost three (3) years. Paragraph 89 of Judge Blake's judgement dated 15th October 2020 indicated his belief that Ms Bickford did not have the capacity or willingness to support the children's relationship with Mr Bickford. Unfortunately, this appears to have continued post-Final Orders.
84. This assessment has also reinforced that despite Judge Blake making Orders that the children are to be encouraged to refer to Mr Bickford “Dad," both Mr and Ms Bickford maintain that the children continue to refer to Mr Bickford as Mr Bickford within their home, which is confirmed by the children.
85. Unfortunately, the children’s interviews have revealed that they have continued to be excessively exposed to their mother’s wholly negative views of their father. It was notable that both children reported that they had been exposed to their mother’s accounts of the most recent Interim Hearing, which was obviously confusing for them. It was especially concerning that Ms Bickford has clearly informed that the children regarding their father had "lied to the Judge" and that their mother had "won in Court.” This tends to suggest that Ms Bickford’s attempts to influence the children to her views and wishes overrides her concern for their exposure to adult concepts and stressors.
86. The children’s exposure to their mother’s views and wishes is beginning to have a considerable emotional impact upon the children. During her interview, X identified that she felt scared and anxious about spending time with her father when her mother was in the building. This fear and anxiety clearly overrode her reported fear over her father's violence against her and her brother, for once her mother was out of the building, X (and Y) demonstrated an affectionate and loving relationship towards their father. Similarly, Y informed that writer that he did not want to see his father again until he was reunited with him. He then reported that he wanted to spend the same amount of time with each parent.
87. Despite the significant risk of harm Ms Bickford has reported in relation to the children, the children clearly enjoyed a loving and affectionate relationship with him. As stated above, during this preliminary assessment, the writer experienced difficulties separating the children from their father, and Y specifically requested to leave with this father that afternoon. The children’s behaviour towards their father did not raise any safety concerns for the children within his care.
88. The Court may need to determine whether Mr Bickford poses such a significant risk to the children that the children’s time with their father requires ongoing supervision or whether the Final Orders made by Judge Blake are reinstated.
89. Notwithstanding the above, this assessment also suggests that Ms Bickford has no capacity to promote the children's relationship with their father and therefore, it is highly likely that the children may once again be encouraged to report possible exaggerated accounts of violence within their father's care to professionals, which in itself exposes the children to emotional and psychological harm.
90. It is Mr Bickford’s position that the children will be continually exposed to their mother’s views and wishes and encouraged to exaggerate or fabricate incidents of violence against him until such time as the children begin to believe these falsehoods and ultimately, their relationship with him is severed. Unfortunately, this assessment tends to support this view as, notwithstanding the allegations surrounding Mr Bickford’s possible assault of Y, the children’s interviews appeared to be more focused on the views and wishes of their mother in the drama surrounding the most recent court proceeding.
91. It is therefore suggested that in the event the Court determines that the children are not placed at significant risk within their father’s care, that consideration should be given to the children living primarily with their father and spending time with their mother in order to protect them from the ongoing exposure to their mother’s negative views, and additional investigative and legal processes.
THE APPLICATION
The application before me by the Father is an application made in an interim hearing and the principles of Goode v Goode [2006] FamCA 1346 apply. I cannot make findings of fact, and, unsurprisingly, in a matter as contentious as this, there is little agreed facts between the parties.
I am required to determine this matter having regard to the factors set out in section 60CC of the Act, and also having regard to the paramount consideration of making orders in the best interest of the children. The principal considerations set out in section 60CC(2) are the principal factors engaged in this case, and, in particular, an appropriate assessment of the extent of any harm posed to the children by either parent. Here, when the material before the Court is looked at, the family report writer's observations are in stark contrast to the Mother's serious allegations against the Father.
It is clear from Ms Q’s observations that these children have no fear of their Father, that they love him and that it is difficult for them to separate from him. It is apparent from Ms Q's report that the children embellished the story of the incident that occurred in the bathroom with the Father. These matters and the other comments made by Ms Q point very strongly against there being any serious risk posed by the Father to these children.
The Mother has made serious allegations of abuse and violence. I have weighed them carefully. Ordinarily, in a case like this they would be given very significant weight. However that is not the case here today, given the content of Ms Q's report, given the children's observed recent interactions with their Father, given my previous findings about the Mother's embellishment of her evidence and given the Mother's late submission that time with the Father should now be reinstated.
The Mother's reports to the DFFH and the Police need to be addressed. Ms Q gave little weight to the DFFH report that was before her, and so do I, given the extensive interaction that Ms Q has now had with the children. The status of any report that the Mother made about the Father to the police is unclear. It may be that serious allegations are contained there, but, equally, I cannot wait for those. Indeed, I have been given direct evidence now about the threat, if there is any, from the Father to the children, given I have the report of Ms Q.
Counsel for the Mother submitted eloquently that she ought not be punished for acting protectively. I accept that is a matter I need to weigh, but the evidence tends to suggest that the Mother has done much more than simply act protectively. Ms Q’s report discloses that the Mother - and I note she denies this - has discussed the state of proceedings with the children. The Mother and her husband appear to have gathered evidence by way of secret recordings at least of the family consultant, and potentially others, in order to bolster her case. I pause to observe that on one view, that would look to amount to potentially a breach of the Act, and potentially a breach of other legislation such as the Surveillance Devices Act 1999. I am not asked to do anything about those matters today, but it seems to me they are extremely serious allegations. In the circumstances, the Mother has done more than act protectively. The manner in which she has conducted herself both before me at trial, and apparently since then, discloses an agenda whereby she seems stop at nothing to get the result that she wants. Her conduct since trial tends to support, in that sense, the observations I made about her at trial.
It is not a decision to be made lightly to remove children from their primary carer, and I accept, as the Mother’s counsel says, that removing the children from their friends and family may well have some impact on them. It is, indeed, a very significant step to remove children in an interim hearing.
In the ordinary course I would be very reluctant to do so. Here, however, I have concluded, given the content of the family report from Ms Q, that this is one of those rare cases where orders should be made immediately placing the children in the care of their Father. The emotional, psychological and welfare risks to the children appears too great, given the apparent conduct of the Mother that emerges from the evidence. The risk to the children's emotional wellbeing and mental health is very significant. Quite apart from the matters outlined in Ms Q’s report, I observe from long involvement with this matter that this will be the third occasion that the children have been before a family consultant, and that they have also been exposed to further police and also to DHHS involvement. There is a real chance not only of emotional harm inflicted by the Mother, but emotional harm inflicted from what can only be described as systems abuse, and the Mother seems apparently unconcerned about the damage that may result.
The Mother’s counsel said that the Mother had taken on board the comments of Ms Q and my comments earlier today prior to making these orders. That seems to me too little, too late. I made it very clear in my judgment what I thought about her conduct. To come here today and say that she now regards herself as being on notice, in my view, does not adequately address the seriousness of the conduct with which I am confronted and the impacts on the children. I will list the matter for trial on 1 to 3 June 2022 and make the usual trial directions.
Finally, the Father’s counsel sought that I make an order that the short form family report be permitted to be placed before the Magistrate’s Court in the intervention order proceedings. I decline to make that order (for the reasons that I discussed with Mr Ambrose). What I will do is ensure that a written record of these ex tempore reasons is published and given to the parties. Insofar as the Magistrate’s Court proceedings are concerned, I note that the Mother’s counsel indicated that the Mother was prepared as part of the orders she sought, and which I have not acceded to, to withdraw the intervention order proceedings against the Father in light of Ms Q’s report. In my view, that is something that should happen now and ought to obviate the need for the Father’s counsel to require any family report.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.
Associate:
Dated: 28 October 2021
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