Blake and Torino and Anor

[2015] FamCA 512

FAMILY COURT OF AUSTRALIA

BLAKE & TORINO AND ANOR [2015] FamCA 512

FAMILY LAW – CHILDREN – sole parental responsibility – with whom a child lives – where the mother is restrained from obtaining the child’s passport – where the mother is restrained from communicating with the children

Family Law Act1975 (Cth) s 60B s 60CA s 60CC s 61DA s 65 DAA s 65 DAC
Evidence Act 1999 (Cth) s 140

Adams & Torino & Anor [2014] FamCA 695
Banks & Banks [2015] FamCAFC
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
N & S & The Separate Representative (1996) FLC 92-655
Re Andrew (1996) FLC 92-692
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768

APPLICANT: Ms Blake

FIRST RESPONDENT: Mr Torino

SECOND RESPONDENT: Ms Adams

INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton

FILE NUMBER: BRC 1072 of 2010

DATE DELIVERED: 30 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 5 March 2013, 22, 23 July 2013, 4 May 2015

REPRESENTATION

THE APPLICANT: In person (on 5 March 2013 and 22 and 23 July 2015 only)

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENT: In person (on 5 March 2013 and 22 and 23 July 2015 only)

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Mr Cameron

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Jennifer Boulton Solicitor

Orders

1. All previous parenting orders made in relation to the children of the marriage, D born on … 2000, E and F both born on … 2003 (“the children”) are discharged.

2. All parties are released from any undertaking given by them in the proceedings.

3. The children live with the father.

4. The father is to have sole parental responsibility for the care, welfare and development of the children.

5. The mother and the maternal grandmother are hereby restrained from contacting, whether directly or indirectly, the Department of Communities, Child Safety and Disability Services (Qld) or the Queensland Police Service in relation to the children, or any one of them, and from facilitating, orchestrating, causing or asking any other person to take the children, or one or other of them, to the said Department or Queensland Police.

6. The mother and maternal grandmother are hereby restrained from communicating or attempting to communicate with any of the children, whether directly or indirectly, by themselves or their servants or agents or any other person save for providing to the father any present, birthday care, Christmas card or similar communication or letter for the children with the father to ensure before giving the communication to the children, or one or more of them, that the content of the communication is inappropriate and that it is then in the children’s bests interests to receive such communication.

7. The mother and the maternal grandmother are hereby restrained from approaching within 200 metres of any place where the children reside or are visiting or staying or any school or other educational facility where the children are attending from time to time, and are restrained from contacting any such school or educational facility in respect of the children.

8. The Registrar of this Court shall forthwith release to the father each of the children’s passports presently held in the safekeeping of the Court.

9. The father shall retain the children’s passports.

10. The mother, whether by herself or by her servants or agents, is hereby restrained from doing any such thing or taking any such step to apply for, or cause, an Australian passport to be issued for any of the children.

11. The father is hereby authorised to do all such things necessary to cause an Australian passport to issue for each of the children, the cost of such passports to be borne by the father.

12. The necessity for the mother’s signature to be on any application for an Australian passport to issue for any of the children is hereby dispensed with.

13. The father is hereby authorised to holiday with the children out of the Commonwealth of Australia provided that the Children’s residence remains within the Commonwealth of Australia.

14. The Independent Children's Lawyer is hereby authorised and directed to provide to the Department of Communities, Child Safety and Disability Services (Qld) and the Queensland Police Service copies of the following documents:

    (a)a copy of this Order;

    (b)a copy of the Reasons for Judgment of the Honourable Justice Tree made 30 June 2015;

    (c)a copy of the Family Reports of Ms G dated 12 February 2014 and 25 March 2015 in respect of the children;

    (d)a copy of the affidavit of Dr H filed 28 April 2015 (exhibiting a copy of Dr H’s professional report); and

    (e)a copy of the Report of Ms I, Psychologist, dated 30 April 2015.

15. The Independent Children's Lawyer’s is discharged upon her complying with paragraph 14 of this Order with the thanks of the Court.

16. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.     

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1072/2010

Ms Blake

Applicant

And

Mr Torino

First Respondent

AND

Ms Adams
Second Respondent

AND

INDEPENDENT CHILDREN'S LAWYER

REASONS FOR JUDGMENT

INTRODUCTION  

1. By his Amended Response to Initiating Application filed 16 February 2015, Mr Torino (“the father”) seeks parenting orders in relation to the three children the subject of these proceedings, being D (commonly referred to as D) born in 2000 (and hence presently 14 years of age) and non-identical twins E and F, both born in 2003 (and hence presently 12 years of age) (collectively “the children”).  The orders which he seeks are that he have sole parental responsibility for the children, who ought live with him and spend no time with Ms Adams (“the mother”).  He does however propose that the mother be at liberty to send presents and letters to the children, save that the father may check them to ensure that they are appropriate.  He also seeks orders permitting the publication of certain documents generated in these proceedings to the Queensland Department of Communities, Child Safety and Disability Services (“DoCS” or “the Department”) and Queensland Police.  Finally he seeks orders requiring the mother to be of good behaviour towards him, his partner, and the children, and restraining the mother from going within 100 metres of where they are living, or staying, or at school, or from contacting or having others seeking to contact the father or children.

2. In her Initiating Application filed 30 January 2012, the mother sought orders that the parties have equal shared parental responsibility for the children, who should reside with her and spend alternate weekends and half of school holidays with the father.

3. This litigation has an extraordinarily long and unusual history, although the instant proceedings were only commenced by the mother on 30 January 2012.  However the parties had long been litigating in relation to these children for many years prior to then, and I will review that history in due course.  It is pertinent to note that both in these proceedings and in the earlier litigation before other Judges, it has not only been the mother and father who have been active litigants, but also Ms B Blake (“the maternal grandmother”). 

4. Pursuant to an order of the Judge who up until then had judicial responsibility for this matter, on 5 March 2013 I conducted the first day of trial in these proceedings, which proceeded with the receipt of oral evidence from some police officers.  It was not then intended that the hearing would immediately, or even shortly thereafter, continue, but that the trial would resume later that year.  Further evidence was received by me on 22 and 23 July 2013.  The hearing then again abated with a view to resuming later. 

5. During the course of readying the matter for the conclusion of the trial, it became apparent that the Department had been recently involved with the mother’s child to a subsequent relationship, C (“C”) born in 2006 and hence presently 8 years of age.  On 9 July 2014, despite opposition from the mother and maternal grandmother, I gave leave for the Independent Children's Lawyer to issue subpoenae in relation to certain records of C.  The subpoenae were answered, and documents produced.  However the mother filed an objection to the Independent Children's Lawyer inspecting or copying any of those documents.  For reasons given on 12 August 2014 (Adams & Torino & Anor [2014] FamCA 695) I gave leave to the Independent Children's Lawyer to inspect and copy the subpoenaed documents.

6. Whether directly connected to that or not, unexpectedly on 28 November 2014, the mother and maternal grandmother both filed Notices of Discontinuance in relation to all extant applications to which they were the moving party.  In consequence the only application which thereafter remained on foot was that made by the father in his Amended Response.  Although prior to the Notices of Discontinuance being filed, it had been anticipated that the final hearing of the trial would take some weeks, in fact ultimately the matter proceeded in the absence of both the mother and maternal grandmother, and with no further oral evidence being received.  Whilst it is not technically correct to say that the matter therefore proceeded by way of undefended hearing, the reality is that the trial concluded in a manner indistinguishable from that which would have prevailed if the hearing had been undefended.

7. Ultimately the Independent Children's Lawyer supported the orders sought by the father.  However because of the tumultuous history of litigation between these parties – which to date has somewhat amazingly never resulted in any judicial determination of the competing proposals other than by way of consent order – both the father and Independent Children's Lawyer seek findings of fact with a view to having the parties bound by them in the event that any further attempt at re-litigation is made.  Therefore these reasons, albeit in substance arising from an undefended trial, will therefore be more extensive than might ordinarily be the case.

BACKGROUND FACTS

The father

1. The father was born in 1973, and is therefore presently 42 years of age.  He was academically successful at school obtaining a TE score of 990, the highest possible.  He then went to university and ultimately obtained a degree.  He is employed in a professional capacity.

2. He was 26 years of age when he met the mother and commenced a relationship with her.

The mother  

1. The mother was born in 1972 and is therefore presently 42 years of age.  She was born Ms G, and was known by that name when she met and later married the father, and changed her surname to his.  She only changed her Christian names to Ms R in 2004-5, after the father, post-separation, formed a relationship with his current partner, who also had the Christian names of Ms R.  It appears as though the mother changing her names to those of the father’s new partner was an act of mischief. 

2. The mother told the single expert psychiatrist, Dr H, that she did well at high school, before going on to complete a degree at university.  She later obtained employment in the health field.  The mother has a relevant criminal history: on 13 July 1993 she was found guilty (but not convicted) of assault occasioning bodily harm; on 9 June 1994 she was found guilty (but not convicted) of making a false representation causing an investigation by police. 

3. She was working as a health consultant when, at the age of 27, she met the father.

The relationship

1. Six months after the parties met in 1999, they married in 2000.  Shortly afterwards the mother stopped consulting work and again took up full time employment where she remained for two years.  She told Dr H that at that time she was “very career orientated.”  It seems likely that she ceased work when D was born in 2000, and did not return until after separation.  Separation occurred in April 2003, about five weeks after the twins were born.  The relationship therefore spanned a little more than 3 years.

Post-separation

1. The parties’ lives post-separation have been tumultuous and have involved virtually non-stop disputation, litigation and involvement of DoCS.  The first notification to the Department was on 26 April 2003 and related to E having a broken arm.  The notification was substantiated, with both parents responsible.  Criminal charges brought against the father relating to that injury were later dropped.  There have been many notifications since then, relating to alleged physical, sexual and emotional abuse of one or more of the children.

2. Since separation both the mother and father have re-partnered.  The mother appears to have re-partnered twice, but is not, so far as the evidence permits me to determine, presently in a relationship.  To one of those post-separation relationships, the mother gave birth to C.  On the other hand the father has permanently re-partnered with Ms R Torino, who now calls herself Ms Torino-Cotter.  The children refer to her as “Aunty K.”  Ms Torino-Cotter brought into that relationship her son, L presently aged 11.

3. The father has subsequently had another child to his relationship with Ms Torino-Cotter, namely a daughter M, who is presently a little over 18 months of age, having been born in 2013. 

4. Proceedings were first commenced by the father in this court in 2004.  In that Application he sought final orders that the children spend time with him on alternate weekends and half of school holidays.  Interim orders permitting that time were made.  However at one of the changeovers in October 2005, the oldest child threatened to kill the father with a knife, declaring him as having “a black heart.”  A subsequent notification to DoCS in relation to this episode found that the children were at risk of emotional harm from the mother, who together with the maternal grandmother, were coaching them to make false allegations.  It seems that, in consequence, the children were removed from the mother and placed with carers.

5. However on 27 February 2006 the Family Court proceedings settled with final consent orders which saw the children live with the father and spend supervised time with the mother, with liberty to re-list the matter no earlier than 10 months later so as to review the terms of the mother’s contact with the children.  DoCS were agreeable to the children going into the father’s care under those orders, and they did so.

6. However the maternal grandmother, Ms B Blake then commenced proceedings in the then Federal Magistrates Court seeking to be able to join the mother during her supervised time with the children.  Interim orders were made to that effect by then Federal Magistrate Baumann on 14 August 2006, who otherwise transferred the maternal grandmother’s application to this court.

7. By consent interim orders made 9 September 2008, Blake J discharged all previous parenting orders in relation to the mother and maternal grandmother spending time with the children, and ordered a regime which permitted the mother and maternal grandmother to commence spending unsupervised time with the children.  The matter was then listed for trial on 2 March 2009 but did not then proceed.  Rather, the trial was relisted for November 2009, on which occasion the matter again settled on an interim basis by consent.  Blake J made orders that the children live with the father, who was to have sole parental responsibility, but the children would spend unsupervised time with the mother on alternate Saturdays, progressing ultimately to alternate weekends.

8. After some period of time of those interim orders operating, the matter was listed for trial on 25 May 2011 with an estimate of three days.  On 26 May, further interim consent orders were made by Blake J, which again saw the children living with the father, but the mother and father having joint parental responsibility.  The mother was then permitted to spend unsupervised time with the children on alternate weekends and for half of school holidays, together with provision for special days.  The trial was then listed to be heard on 31 October 2011.  On that occasion, the trial dates were vacated and a Family Report was ordered.  There were some minor variations by consent to the earlier interim orders, but otherwise the matter was intended to be further readied for trial.

9. On 4 May 2012, Murphy J ordered that the trial commence before Blake J on 17 September 2012.  For reasons which are not clear from the court file, the trial did not then commence.  It was apparently administratively listed to commence before Murphy J on 27 February 2013, however on that date, it was vacated.  That was because of significant factual matters that had recently arisen, again involving police and DoCS.  On 28 February 2013 Murphy J ordered that the matter be listed before me on 5 March 2013, at which time, as earlier noted, I commenced to receive evidence (albeit limited to the recent events which had caused the trial before Murphy J to be vacated).

10. Throughout the litigation, and indeed since the trial commenced before me, both the police and DoCS have continued to be regularly involved with these parties, the children and most recently with C.  I will consider the specific aspects of that involvement later in these reasons.

THE ISSUES

1. There is really only one issue for my determination in these proceedings, as they ultimately evolved. That issue is whether the mother poses an unacceptable risk of emotional harm to the children if they are in her care, or if they are permitted to spend time or communicate with her. Both the father and the Independent Children's Lawyer urged me to make such a finding, and on that basis the Independent Children's Lawyer supported the orders sought by the father. Of course, as a matter of reality, there is no other competing set of proposals on the table, and the mother and maternal grandmother have had notice that these were the orders that the father would be seeking. I will consider that issue in advance of a general traverse of the s 60CC factors, but after I have considered the relevant statutory provisions and legal principles.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

2. However s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

3. In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

4. Finally s.60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s.60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

The standard of satisfaction required

1. S.140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  father’s allegations against the mother, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

IS THE MOTHER AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN?

[1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

Overview

1. The father and Independent Children's Lawyer asked me to make a finding that the mother presents an unacceptable risk of harm, in substance because:

   ·She has a considerable history of making, or orchestrating others to make, false complaints to authorities in relation to the father;

   ·She has a history of poor parenting, culminating in the removal of the three children from her care in 2005, and most recently the removal of C from her care, in consequence of further intervention by DoCS;

   ·She has for many years used the children as a means of furthering her conflict with the father, and has regularly coached them to tell lies to relevant authorities about the father’s alleged abuse of them;

   ·The children spending unsupervised time with the mother simply has not worked, but has only led to further opportunities for hostility and conflict between the parties, involving the children;

   ·In any event the mother appears now to have disengaged from the children, and has not spent any time or communicated with any of them since last year.

2. I will consider those matters in that order.

Mother’s history of notifications

1. In summary form and in chronological order, the following are the major matters that the mother has raised historically in relation to the father:

   ·In April 2003 the mother accused the father of breaking the child E’s arm.  The subsequent criminal prosecution of the father did not proceed;

   ·In August 2003 the mother made a complaint to police that the father had child pornography on his computer.  The subsequent investigation did not see the father charged;

   ·In October 2004 the mother made a complaint to DoCS that the father had sexually assaulted the child D during the course of attending an interview with a court appointed psychiatrist.  The Department did not substantiate that notification.  Instead both the Queensland Police and DoCS were satisfied that the children had been coached to make the disclosures;

   ·Next in January 2013 the mother involved police in relation to an allegation that the father was hitting the children with a “whippy stick”.  Again the police determined that the children had been coached to say these things;

   ·During the course of the Family Report interviews in February 2014, the mother told the Family Report writer that the children had reported that they had seen the father’s brother inject a needle into his arm in their presence, and that he also attempted to inject one of the children.  She claimed that the uncle was a heroin and cocaine addict.  This does not appear to have been the subject of any police or DoCS notification.   

2. I am satisfied that the mother does indeed have a history of making notifications to police or DoCS, to the effect that the father has abused one or more of the children, which to date have never been substantiated.

Mother’s history of poor parenting

1. The children were removed from the mother’s care by the Department in 2006, which led, ultimately, to their care changing from the mother to the father.  The children were removed from the mother’s care by the Department because it was satisfied that she was an unacceptable risk of emotional harm to them.

2. At the time, there were extant family law proceedings between the mother and father.  A psychiatric assessment was undertaken in those proceedings by Dr N, with the Report bearing the date of 15 February 2006.  He reported that the mother had attended the interview with the maternal grandmother, and advised Dr N that the maternal grandmother “would be sitting with D during his interview with me in order to protect D’s right.”  The maternal grandmother apparently asserted that Dr N would be “breaching D’s human rights by interviewing him alone.”

3. At p 5 of his Report Dr N stated as follows:

   In summary, [Ms Torino] presented as angry, paranoid, defensive and controlling.  It was impossible for me to interview [D] on his own.  This was the first time in nine years of conducting Family Court interviews that a parent has refused to allow me to interview a child on their own.  The mother appeared to be trying to set up the expectation in the interviewer’s mind, and also in [D’s] that he was dangerous, aggressive and violent if he heard any mention of his father.  In this way, she condoned and subtly encouraged [D’s] behaviour.  She appeared unable or unwilling to set reasonable limits on this type of behaviour if it suited the theory that mention of the father upset [D].  The mother appears to set up the expectation in [D] that it was acceptable for him to act out, be boisterous and destructive when his father’s name is mentioned.  One may postulate that this is how the knife incident occurred.

4. There are many instances in the material before me of the children making complaints to others of abuse by the father, often in the form of anonymous notifications.  It appears as though many of those notifications are by mandatory notifiers.  It is unnecessary to traverse that material in detail, but it is suffice to say that it is over many years with many instances.

5. The most recent instance however introduced a new component to it, namely sexual abuse, albeit not by the father.  A notification was made to the police in about May 2014 that D had sexually assaulted C.  Then shortly thereafter, a notification was made that D had sexually assaulted F.  However the investigation of both matters by the police – including 93A interview of the relevant alleged victims – did not lead to any criminal prosecution of D.

6. However, and very disturbingly, the mother appears to have, once those allegations surfaced, refused to take D into her care pursuant to the consent orders.  She rejected him.  Indeed it does not appear as though she has seen him since.  Necessarily, the father had to introduce strict supervision regimes at home in relation to D.  This caused D to become distressed.  It caused conflict between him and his brothers.

7. It should be noted at this point that all three of the children the subject of these proceedings are diagnosed with ADHD and/or autism.  They are high needs children.

8. In consequence of these allegations, the Department undertook a safety survey of the children.  Far from confirming any assault, the ensuing report noted amongst other things that “it is assessed that the pattern of emotional harm is escalating due to [the mother] escalating her behaviours and further isolating [D] from his siblings…  [The mother] is demonstrating a lack of willingness or ability to prioritise [F] and [E’s] emotional needs over her own need to discredit [the father] within family law court proceedings…”

9. Ultimately the Department concluded that all three children had suffered emotional abuse resulting in emotional harm with the mother being the person responsible.

10. The Department concluded:

    It is assessed that [F], [E] and [D] have suffered emotional harm resulting from the cumulative effect that their mother’s behaviours have caused.  During the investigation it was evident that [the mother] has been assessed previously to be coaching [F] and [E] to make statements to the police and various professionals in relation to [the father]…  The emotional harm that [F] and [E] have suffered was evident within their interviews…

11. The mother also seems to be susceptible to influence from the maternal grandmother.  In the Departmental file, there were case-notes created on 26 August 2014 dealing with the relevant case worker’s observations of the mother and maternal grandmother.  It relevantly reads:

    The dynamics between [the mother] and [the maternal grandmother] were those of an adult parent and a young child.  [The mother] presented as seeking her mother’s direction or following her mother’s lead in the conversation.  [The maternal grandmother] presented as the individual with significant power in the relationship and she would direct [the mother] both verbally and non-verbally throughout the conversation.  [The maternal grandmother] would suggest a memory or topic to discuss or “tell” Child Safety and [the mother] would go on and tell the story or provide the information.  This appeared to be a very similar dynamic to what the stakeholders had reported occurs between [the mother] and [C].

12. That was in the context of the Department’s involvement in relation to C, rather than the three children the subject of these proceedings.  

13. I have already adverted to the fact that her youngest child, C, was removed from the mother’s care by the Department late last year.  In the material before me there was, albeit heavily redacted, an affidavit of Ms O, a Departmental officer, filed in the Children’s Court proceedings which led to C being removed.  It sets out the somewhat complex facts behind the Department’s finding on 13 December 2014 that the mother was a substantiated risk of emotional harm to C.  The affidavit is replete with examples of highly disturbing behaviour by C (who, it should be recalled, is only 8 years old).

    ·His threatening to kill neighbours “in any way I can”;

    ·His having thrown a fist sized rock at a  neighbour, striking him or her;

    ·Beating a neighbour with two sticks;

    ·Calling a neighbour’s guests “cunts” and saying “fuck you” to them;

    ·Telling a neighbour he need to kill the mother, uncle and grandmother;

    ·Asking a neighbour if he can move in to live with them.

14. The Department was satisfied that these behaviours were, at least in substantial part, caused by the mother continuing to “expose [C] to emotional trauma by encouraging [C] to recite topics that are adversely impacting [C] and initiating conversations in [C’s] presence that significantly contribute to [C’s] complex behavioural issues and extremely high levels of anxiety.”

15. The affidavit concluded that “[the mother] appears unwilling or unable to prioritise C’s needs over her own and the strong suggestions from health, education, police and Child Safety Services regarding concerns for [the mother’s] mental health requires further assessment.

16. Amongst the Departmental records relevant to its intervention in relation to C was a note made on 10 May 2014.  It relevantly reported:

    The DETE Regional Officer reports the mother presenting as mentally and emotionally unstable.  That she has much difficulty maintaining constructive relationships with the Department.  Further that she is highly argumentative and presents as quite paranoid.

17. An illustration of that is contained in the Department’s summary prepared for court assessment dated 23 October 2014.  There it is reported:

    [The mother] has shown herself to be obstructive and is unlikely to agree to a care arrangement for [C].  [The mother] has indicated that she would “shut down all engagement” and “deny access to [C]” should the Department allege that she was responsible for harm to [C].  [The mother] has indicated that she will not engage with the Department anymore and she has refused to accept a recent registered letter which contained a written request to engage with the Department to further assessed current child protection concerns.

18. At the moment only temporary orders have been made in the children’s proceedings which saw C placed in care, and a final hearing will apparently not take place until later this year.  Presently however, C remains removed from the mother’s care.

19. I am satisfied that the mother has a history of poor parenting, particularly comprising her regular involvement of the children in disputes with the father, and inflicting psychological harm on them in the process.

Mother’s coaching of children to lie about abuse

1. There have now been many instances where relevant authorities have been persuaded that the mother has actively coached one or more of the children to make false allegations of abuse.  I have referred to some of those in discussing the mother’s history of notifications.  One of the most alarming is the occasion at a changeover where the children were going into the father’s care, D – then aged 5 or 6 years old – brought a knife with him and stated that “he wanted to stab daddy’s black heart.”  Disturbingly the maternal grandmother attempted to film this.  It was apparently this episode which caused the Department to intervene and place the children into foster care.  I am satisfied that the mother knew what was likely to be said by the child, and hence arranged for her own mother to attempt to film it.  It is likely that the reference to “daddy’s black heart” was wording planted in the child’s mind by the mother.

2. There is also evidence that the children have disclosed on occasions that unless they tell things which their mother is requiring them to say, she will kill their pets and smash their toys.

3. Most recently police have been satisfied that the children were schooled to make allegations in relation to the father hitting them with a “whippy stick”, and I accept that it is likely that she did so.  The children have explained subsequently that they only made that allegation at the mother’s instigation.  Further, this coaching appears to not only occur during face-to-face time with the mother, but also it appears likely that she uses telephone time to influence the children, whether by bribe, intimidation, or a combination of both.

1. Finally there is the conduct of C in October 2014.  On that occasion Departmental Officers concluded that the mother had deliberately coached the child to make allegations which caused him emotional trauma.

2. A psychiatrist, Dr H reviewed much of this material in his extensive report dated 27 April 2015 (albeit relating to interviews of the parties in October 2013) in which he observed that “there appear to be longitudinal concerns that the mother had actively coached the children to make serious allegations with respect to the father.”  He said that if such a finding were made by the court, “it may indicate the presence of a delusional disorder” in the mother.  He did not however make such a diagnosis, because the tension between the parties’ various versions was too “fraught”.

3. On the material before me, I am satisfied that the mother has on numerous occasions in the past, tried to influence the children to make false accusations of abuse against the father, with varying degrees of success.

Unsupervised time with mother has not worked

1. In 2006 the children were removed from the mother and supervised time was ordered.  Ultimately, in accordance with recommendations from the Family Report writers from time to time, supervised time was replaced by unsupervised time.  However this has plainly not been successful.  On occasion changeovers have been hostile and conflictual.  The parties continue in unremitting conflict, to which the children are exposed.

2. Moreover recently the mother has refused to take D into her care pursuant to the orders because she believes that he presents a risk of sexual harm to C.  This has cause D considerable distress. 

Mother has disengaged from children

1. Since discontinuing all extant applications in which she is the moving party, the mother has apparently not sought to either spend time with or communicate with any of the children.  There is no direct explanation for that.  However in the DoCS records put in evidence before me, there appears the following entry in notes made on 31 October 2014, in the context of C being removed from the mother’s care:

   [The maternal grandmother] said she had told [the mother] that she needed to give up on her other children as that was what was causing all the current problems…

2. Given the influence which the maternal grandmother has over the mother, this is the most likely explanation for the mother and maternal grandmother having, effectively, abandoned any desire to obtain orders permitting them to even spend time or communicate with the children.

3. Moreover, even when the father brought an Interim Application before the Principal Registrar on 9 December 2014, the orders which were ultimately made then – absent the mother – nonetheless permitted her to continue to spend supervised time with the children.  She has not availed herself of that opportunity.

4. It cannot be in a child’s best interests to have a parent wander in and out of their lives unpredictably and without any apparent reason for either ceasing involvement, or resuming it.  The fact that these children are plainly high needs children only makes the criticism of the mother for having disengaged with all three boys all the more serious.

5. In her most recent Report dated 25 March 2015, the Family Report writer, Ms G, having reviewed much of the foregoing material, concluded at [33]:

   [D], [E] and [F] have not spent time with [Ms Adams] for some time.  If [Mr Torino’s] account is accurate, [Ms Adams] has not made any effort to remain connected to the children, even though she has not been denied the opportunity to spend time with them.  Regardless, it is my opinion that the children’s emotional development would be damaged, potentially irreparably, if they resumed their relationship with her.

6. I accept that evidence.

Evaluation

1. If the mother continues to spend time or communicate with the children, history supports the following predictions:

   ·She will likely continue to try and coach the children to make untrue disclosures of abuse by the father, or by others whilst they are in the father’s care;

   ·The mother is likely to continue to, either herself or via proxies, continue to make notifications to police and the Department;

   ·The mother is likely to continue to prioritise her needs above the children’s;

   ·The mother is likely to intermittently engage or disengage with the children without any rational basis for doing either.

2. In the past these children have demonstrated considerable distress at being involved in the parent’s conflict.  As to the future, Dr H opined:

   If the court remains concerned that the mother longitudinally has continued to expose the children to her own negative views with respect to the father and in particular had encouraged the children to make false allegations with their respect to their time with the father, this would raise significant concerns about the welfare of the children in either a supervised or unsupervised basis with the children as it is likely to cause significant emotional harm.  If the mother was to have supervised contact these concerns may be allayed somewhat but that supervision would need to be reasonably intrusive to ensure that she is not further encouraging the children in an ongoing manner.  Whether the children would benefit from such supervised contact I would leave to the expertise of others.

3. I accept that evidence.  I am satisfied that the mother has over a long period of time exposed the children to her negative views of the father and encouraged them to make false allegations about him.  I am not persuaded that long term supervised contact with the mother is likely to be of much, if any, benefit to the children.

4. I am satisfied that the mother presents an unacceptable risk of emotional harm to the children if she continues to spend time, or have any form of oral communication, with them.

5. For in excess of ten years these children have been exposed to ongoing severe parental conflict.  They have been the foot soldiers of the warring sides, although I assess that the mother has been the principal manipulator of the children.

6. Virtually every effort has been made – by many iterations of interim orders – to try and give the children a meaningful relationship with both of their parents.  It has not worked.  There is no reason to think the future will play out differently, and that the risks which the mother poses will reduce or otherwise become acceptable.

SECTION 60CC CONSIDERATIONS

Section 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. The children would benefit from having a meaningful relationship with their father.  They have such a relationship.  The mother presents an unacceptable risk of emotional harm to the children.  They would not benefit from having a meaningful relationship with her, even though I accept that on one level they love her.

Section 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This is the determinative matter in this case.  These children need to be protected from the psychological harm which the mother’s conduct exposes them to. 

Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. In the past the children have equivocated in relation to their desire to spend time or live with the mother.  However in doing so, the children have articulated that in a way which of itself is concerning.  For instance in the Family Report of 12 February 2014 at paragraph 67 F is reported as having said that he wanted to live with his mother because “I don’t want to upset her…. I need to show mum I really care.”  He continued “It’s time to show her I can do better.”  I say this is disturbing because it is consistent with the child suffering guilt at some inadequacy of himself when spending time with the mother, which motivates him to want to live her.  Likewise E disclosed that the mother “makes us feel guilty”.

2. Ordinarily I would give the views of children of these ages some considerable weight.  However the level of manipulation which the mother has exposed them to both in relation to their desire to where they wished to live and other matters, severely undermines the weight that I would otherwise give their views.  I should say that the children were not interviewed in the course of the preparation of the most recent Family Report of 25 March 2015, because the mother was by then not an active litigant in these proceedings, and there was no proposal that the children spend time or live with the mother.

Section60CC(3)(b): The nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii)      other persons (including any grandparent or other relative of the            child)       

1. The children have a good relationship with their father, step mother and her children.  The relationship of the children with the mother is a vexed one; it appears as though they still have affection for her, which is only to be expected, however the risk which the mother poses to them must outweigh any such emotion.

Section 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child

1. This consideration is relevant to the extent that since discontinuing proceedings, the mother has not involved herself in these children’s lives whatsoever.  She has neither sought to have any input in relation to decision making, nor to spend time with any of the children.  Further, since the events of last year in consequence of which the mother believed that D had sexually assaulted C, she has not sought to spend time or communicate with him at all.  That is a serious matter.

Section 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. This is not of any magnitude in these proceedings.

Section 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The orders which the father and Independent Children's Lawyer ask me to make will effect a permanent separation of the children from their mother.  It would also likely see a permanent separation of the children from C, or at least see that as a live possibility.  In saying that I note that since C was placed into foster care, no attempt at sibling contact has been made by the Department between C and the children.

2. To the extent that the children have been separated from their mother, the reality is that the effects of that have been experienced by them already.  There is no evidence from which I can conclude that there is likely to be any escalation of any distress which they may have experienced at the virtual rejection of them by their mother.  Presumably they are in the process of recovering from that.

Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. This is not a major issue in this case notwithstanding the fact that the mother lives on the Region P and the father on the Region Q.

Section 60CC(3)(f): The capacity of:

(i)       each of the child's parents; and  

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. I am satisfied that the father has sufficient capacity to provide for the needs of the children.  On the other hand I am not satisfied that the mother has the capacity to provide for the children’s emotional needs, and I rely upon the matters discussed previously in these reasons in that regard.

Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. This is not a matter engaged in this case.

Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

1. This is not a matter engaged in this case.

Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. This is a relevant matter in this case but has already been sufficiently traversed in the foregoing reasons.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. There are distant allegations of family violence by the father towards the mother.  It is unnecessary to determine whether or not those events occurred because even if correct, they are unlikely to have any determinative impact upon the outcome of these proceedings.

2. I am not satisfied that the father has been violent towards the children.  I am not satisfied that the mother has been physically violent towards the children.

Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)       the nature of the order;

(ii)      the circumstances in which the order was made;

(iii)     any evidence admitted in proceedings for the order;

(iv)      any findings made by the court in, or in proceedings for, the order;

(v)       any other relevant matter

1. In about 2004 there was a family violence order made in which the mother was the aggrieved and the father the respondent.  There is no relevant inference that can be drawn from that in these proceedings.

Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In the context of ongoing litigation extending over eleven years, plainly the need for finality is a major consideration.  It is remarkable that there has never been a prior judicial determination in these proceedings other than consequent upon the parties’ consent.  I give considerable weight to this consideration.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. I do not identify any other additional consideration relevant in this case.

PARENTAL RESPONSIBILITY

1. The mother no longer seeks any allocation of parental responsibility.  In any event I am not persuaded that these parties could share parental responsibility for these children.  The parent with whom the children primarily reside should have sole parental responsibility.

WITH WHOM SHALL THE CHILDREN LIVE?

1. The mother does not seek any order that the children live with her.  The father and Independent Children's Lawyer seek orders that the children live exclusively with the father.  Given my finding that the mother presents an unacceptable risk of emotional harm to the children, that nigh inevitably flows.  Weighing all of the relevant considerations in the balance, I am satisfied that it is in the best interests of these children that they should live with the father.

TIME AND COMMUNICATION WITH THE MOTHER

1. The mother does not seek any orders that she spend time or communicate with the children.  The father and Independent Children's Lawyer are agreed that the children should not spend any face-to-face time or have direct oral communication with the mother, who ought be restricted to sending them a present, birthday card/Christmas card or similar communication or letter, save that the father may vet such communication before passing it on, and if it is inappropriate, not do so.

2. I am satisfied that it is in the children’s best interests not to spend any unsupervised time with the mother.  I am satisfied that the risk which the mother poses to the children means that face-to-face, telephone or Skype communication, is also not in the children’s best interests.

3. That then brings into focus whether I should make an order for supervised time between the mother and the children.  Both Ms G and Dr H were of the view that there should be no such time.  At paragraph 35 of the most recent Family Report Ms G said as follows:

   In my view supervised time between [D], [E] and [F] is not a viable option.  It is my opinion that even in a secure setting the children’s sense of emotional wellbeing and security is likely to be adversely affected because of the severity and longevity of [Ms Adams’] emotionally abusive parenting and the damage this has caused them.  Re-emergence or escalation of challenging behaviour, poor self-construct and a problematic sibling relationship is likely to occur.  The potential also exists that [Mr Torino’s] parenting capacity would be impaired.  Consequently his ability to respond to the children’s heightened needs would be reduced, and, ultimately their emotional development may be further compromised. 

4. In Dr H’s recommendations in his report dated 27 April 2015 at p 26 he said as follows:

   (ix) If the Court remains concerned that the mother longitudinally has continued to expose the children to her own negative views with respect to the father and in particular had encouraged the children to make false allegations with respect to their time with the father, this would raise significant concerns about the welfare of the children on either a supervised or unsupervised basis with the children as it is likely to cause significant emotional harm.  If the mother was to have supervised contact these concerns may be allayed somewhat but that supervision would need to be reasonably intrusive to ensure that she is not further encouraging the children in an ongoing manner.  Whether the children would benefit from such supervised contact I would leave to the expertise of others.

5. I am not satisfied that long term supervision of time between the children and the mother would be in their best interests.  It would only provide a further opportunity for the children to be exposed to the mother’s negative view of the father, with little, if any, benefit being derived from them from the circumstances in which they would be experiencing time with their mother.

6. I am satisfied that this is a case where there should be orders for no time, whether supervised or otherwise, between the mother and children.  There is simply no other workable option which sufficiently protects the children.

OTHER ORDERS

1. I am satisfied that the restraints which are sought to be imposed upon the mother and maternal grandmother in the orders proposed by the Independent Children's Lawyer are appropriate, save that proposed order 7 is otiose given the terms of proposed order 8.

2. As to the proposal that the mother and maternal grandmother are restrained from commencing proceedings without leave first had and obtained, there is insufficient evidentiary basis in the material before me from which to make such an order.  I decline to make it.

3. Otherwise there will be orders in terms of exhibit ICL 10, save that order 13 will read that “The father is hereby authorised to holiday with the children out of the Commonwealth of Australia…”

CONCLUSION

1. For these reasons there will be orders in terms as set out at the commencement of these reasons.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 30 June 2015.

Associate: 

Date:  30 June 2015