Bouchard and Lyall and Anor
[2012] FamCA 766
•6 September 2012
FAMILY COURT OF AUSTRALIA
BOUCHARD & LYALL AND ANOR [2012] FamCA 766
FAMILY LAW – CHILDREN – With whom the children should spend time – where the children have lived with their respective fathers for some years – Where the children were removed from their mother’s primary care by the Department – Where there are serious concerns regarding the mother’s mental and emotional health – Where ongoing supervised time with the mother is appropriate – Whether the mother should be restrained from bringing further applications pursuant to Part VII without first obtaining leave – Where the proceedings have not been dismissed as frivolous or vexatious – Whether there is power otherwise to make the restraining order sought – Where it is not considered appropriate to make such a restraining order.
Family Law Act 1975 Part VII Division 12A, s60B, s 64B, s 60CA, s 60CC, s 61DA, s 65AA, s 65DAA, s 65L, s 69ZN, s 69ZQ, s 118
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Preston v Preston [2011] FamCA 618
Heath v Hemming (No 2) [2011] FamCA 749
W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235; (2005) 34 Fam LR 129
Moose and Moose (2008) FLC 93-375
Rice and Asplund (1979) FLC 90-725
Vlug v Poulos (1997) FLC 92-778
APPLICANT: Ms Bouchard
1st RESPONDENT: Mr Lyall
2nd RESPONDENT: Mr West
INTERVENOR: Department of Human Services
INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers
FILE NUMBER: MLC 6957 of 2010
DATE DELIVERED: 6 September 2012
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: Forrest J
HEARING DATE: 6, 7 & 8 December 2011 REPRESENTATION
FOR THE APPLICANT: Ms Bouchard in Person
COUNSEL FOR THE 1ST RESPONDENT: Mr Barbayannis
SOLICITOR FOR THE 1ST RESPONDENT: McDonald Slater & Lay
COUNSEL FOR THE 2ND RESPONDENT: Ms Steiner
SOLICITOR FOR THE 2ND RESPONDENT: Lucy C Steiner
COUNSEL FOR THE INTERVENOR: Ms Buchanan
SOLICITOR FOR THE INTERVENOR: Court Advocacy Unit
Department of Human Services
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers
Orders
IT IS ORDERED
1.That all previous parenting orders and injunctions are discharged.
Parental Responsibility
2.(i) That the First Respondent father, Mr Lyall, shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”)) in respect of the children, K born … June 1999 and T born … March 2002.
(ii)That the Second Respondent father, Mr West, shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, M born … December 2005 and R born … September 2007.
Live With
3.(i) The children, K and T shall live with their father.
(ii) The children, M and R shall live with their father
Time with the Mother
4.(i) The children, K and T shall spend time with the mother as follows:
(a)for a period of 2 consecutive hours each fortnight, such time to be supervised by GordonCare Contact Centre in Suburb N with the father and the mother each paying no more than half of any costs levied by the centre in respect of the provision of the supervision, with arrangements for the payment or waiver of same to be made between each parent and the centre in respect of his and her share of those costs; and
(b)upon GordonCare Contact Centre being unable to continue to provide supervision of the children’s time with the mother, then a private supervisor shall be engaged to provide supervision for a period of 3 consecutive hours each second weekend.
(ii)The children, M and R shall spend time with the mother as follows:
(a)for a period of 2 consecutive hours each fortnight, such time to be supervised by GordonCare Contact Centre in Suburb N with the father and the mother each paying no more than half of any costs levied by the centre in respect of the provision of the supervision, with arrangements for the payment or waiver of same to be made between each parent and the centre in respect of his and her share of those costs; and
(b)upon GordonCare Contact Centre being unable to continue to provide supervision of the children’s time with the mother, then a private supervisor shall be engaged to provide supervision for a period of 3 consecutive hours each second weekend.
5.The supervised time that the two sets of siblings spend with the mother pursuant to paragraphs 3 (i) (b) and (ii) (b) of these orders shall, unless otherwise agreed between the mother and the two fathers in writing:
(i)be undertaken with X Community Services;
(ii)take place at the same time;
(iii)be paid for by the mother and the two fathers in equal one-third shares;
(iv)commence each second weekend at the same time and place and finish at the same time and place as directed, in the very first instance, by the Independent Children’s Lawyer (“the ICL”) after she consults with each of the mother, the two fathers and X Community Services.
6.During the time that the two sets of siblings spend with the mother pursuant to paragraph 4 of these Orders, the mother shall comply with all reasonable directions of the supervisor.
Communication with the Mother
7.The mother shall communicate with all four children by telephone as follows:
(i)by calling K and T between 7:30 pm and 8:00 pm each Monday and Thursday, the duration of the calls to be no longer than thirty minutes and should the children not be available at home to take such a call when the mother rings then the father shall cause them to call the mother to speak with her for up to thirty minutes within 24 hours of the missed call.
(ii)by calling M and R between 7:00 pm and 7:30 pm each Monday and Thursday, the duration of the calls to be no longer than thirty minutes and should the children not be available at home to take such a call when the mother rings then the father shall cause them to call the mother to speak with her for up to thirty minutes within 24 hours of the missed call.
Injunctions
8.The mother is restrained from:
(i)denigrating either of the two fathers or any member of their families to or in the hearing or presence of the children;
(ii)discussing with the children or in the hearing or presence of the children, any court proceedings she is involved in;
(iii)discussing with the children or in the hearing or presence of the children, the issues of sexual abuse, self harm or suicide
(iv)attending at or communicating with any school or child care centre at which any of the children are enrolled without the prior written consent of that child’s father.
9.Each of the two fathers is restrained from:
(i)denigrating the mother or any member of their families to or in the hearing or presence of the children;
(ii)discussing with the children or in the hearing or presence of the children, any court proceedings he is involved in.
Passports and Travel
10.The First Respondent father is at liberty to apply for passports for the children K and T and, once obtained, to retain possession of such passports.
11.The Second Respondent father is at liberty to apply for passports for the children M and R and, once obtained, to retain possession of such passports.
12.The mother shall sign passport applications presented to her by the fathers and, to the extent that it might be required in order for passports for the children to issue, the Registrar of the Melbourne Registry of the Family Court of Australia is authorised pursuant to s106A of the Act to sign any passport application that the mother refuses to sign in lieu of the mother.
13.Each of the two fathers is at liberty to travel overseas with the children conditional upon providing the mother with at least 14 days notice in writing of the details of such travel including dates of departure and return and the proposed itinerary for such travel and making up, on return, any time the children have missed spending with the mother pursuant to the terms of these orders.
Therapeutic Assistance
14.The mother shall undertake a course of psychotherapy with any one of three psychologists and/or psychiatrists nominated by the ICL, payment of the costs of same to be a matter determined between the mother and the particular professional she chooses from the nominated three, the ICL to consider that issue when nominating the panel of three.
15.The duration and nature of the course of psychotherapy that the mother undertakes shall be determined by the mother and the particular therapist she chooses from the three nominated by the ICL but it is to be reportable in any future proceedings pursuant to the Act in respect of any of the children the subject of these Orders.
16.Once the mother has chosen the therapist from the ICL’s nominees, the mother shall notify the ICL of her choice and the ICL is authorised, pursuant to s 121(9)(g) of the Act, to publish an account of these proceedings including these Orders and the Reasons for Judgment delivered herewith, any affidavits filed herein, the reports of Dr D and Mr S and any of the reports of psychologists and psychiatrists previously obtained in respect of the mother to that nominated therapist.
Section 65L Supervision
17.Pursuant to Section 65L of the Family Law Act 1975:
(a)Compliance by the parties with the provisions of these Orders, as far as practicable, to be supervised by a Family Consultant of the Family Court of Australia Melbourne Registry as might be nominated by the Manager of Child Dispute Services, Family Court of Australia Melbourne Registry and, if possible, that Family Consultant is to be Mr S;
(b)The said Family Consultant shall give any party to these parenting Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting Orders;
(c)The parties shall do all such things, sign all such documents, attend all such appointments, and ensure the children attend all such appointments, as are reasonably necessary for the purposes of same;
(d)The said Family Consultant shall, at his or her discretion, communicate with any person who is supervising the time that the children spend with the mother pursuant to these Orders with a view to monitoring compliance issues and potentially reporting to the Court on such matters if required in the future.
Specific Issues
18.Each of the two fathers shall:
(a)advise the mother and keep her advised of the landline telephone number at which the children are to be called by the mother for telephone communication;
(b)advise the mother in writing of decisions he has taken in respect of major-long term issues (as that term is defined in the Act) in respect of each of the children he has sole parental responsibility for;
(c)send the mother copies of all school reports received in respect of each of the children in his care;
(d)notify the mother as soon as reasonably practicable of any significant injury or serious illness suffered by any of the children in his care and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.
19.The mother shall comply with all reasonable directions of any therapist that any of the children are attending from time to time to participate in such therapy as required by the therapist.
Further Publication
20.The ICL is authorised, pursuant to s 121(9)(g) of the Act, to publish an account of these proceedings including these Orders and the Reasons for Judgment delivered herewith, to:
(i)GordonCare;
(ii)X Community Services;
(iii)Any other person responsible for supervising the time the children spend with their mother pursuant to these orders.
AND IT IS FURTHER ORDERED THAT
21.The ICL is discharged on 30 September, 2013.
22.All extant applications are otherwise dismissed and removed from the list of cases awaiting finalisation.
23.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bouchard & Lyall 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: MLC 6951 of 2010
Ms Bouchard Applicant
And
Mr Lyall First Respondent
And
Mr West Second Respondent
REASONS FOR JUDGMENT
Introduction
1.K Lyall is 13 years old. Her sister, T Lyall, is 10 years old. The two girls live with their father, Mr Lyall, and have done since April 2009, when they were removed from their mother’s care by Departmental intervention and placed in their father’s care pursuant to a Children’s Court order. They remain in their father’s care pursuant to an order of a Senior Registrar of this Court made on 8 November 2010.
2.M West is six years old. Her brother, R West is almost five years old. These two children live with their father, Mr West, and have done since December 2009, when they too were removed from their mother’s care by Departmental intervention and placed in their father’s care by a Children’s Court order. They remain in his care pursuant to an order of a Federal Magistrate made on 19 April 2011.
3.The applicant, Ms Bouchard is the mother of all four children. All of the time the children have spent with her since they were removed from her care has been supervised. Initially, it was supervised by Departmental officers and then, more recently, it has been supervised at a children’s contact centre.
4.By an Amended Initiating Application filed 22 September, 2011, the applicant mother sought several parenting orders from this Court, including, most notably, an order that all four children live with her. The applicant sought no orders in respect of the time the children should spend with their fathers if they were to again be living with her other than such time as this Court “deems fit”.
5.These proceedings were not just between the applicant mother and the two respondent fathers. An Independent Children’s Lawyer (“ICL”) was also a party by appointment of this Court and the Victorian Department of Human Services was an intervener by election. The two fathers, the ICL and the intervening Department all opposed the mother’s application and sought orders that the time the children spend with the mother continue to be professionally supervised.
6.Before I commenced the hearing in this matter, I read the Case Outlines that had been filed by the parties and I read the affidavits of evidence that were listed in the Case Outlines as being relied upon by the parties. Having considered that evidence, at the commencement of the hearing, mindful of the provisions of Division 12A of Part VII of the Family Law Act 1975 (“the Act”), particularly the principles for conducting child-related proceedings (s 69ZN) and the duties and powers related to giving effect to the principles (s 69ZQ), I informed the parties that I would not be determining an application by the mother for the children to live with her but rather would be focusing the trial on the issue of whether or not the time the four children spend with their mother should continue to be supervised and, if so, on what terms. I did so being completely satisfied, on the evidence in chief that was presented by all of the parties, that the children’s best interests could not be met by an order that they go back to living with their mother.
7.I determined to make my position in this respect clear to the parties so as to assist them in focussing their case presentation from the outset of the trial in such a way as to best utilize the limited time the Court had to hear the matter and to ensure the hearing finished within the allocated days. I considered that to be in the best interests of all four children.
8.Although I made my position on this absolutely clear at the commencement of the hearing, the mother apparently did not accept my determination and continued to conduct her case on the premise that the Court should order that her children return to live with her. At the end of the trial, in response to prompting by me that she ought commit her position to writing that could be handed to the Court, the mother handed up a handwritten document which included as its first two points the following:
All children be returned to my care, where they want to be and where they feel safe, wanted, permitted to have an opinion, be allowed independance [sic] to be the person they aspire to be without judgement [sic].
All children to have an input within reason, into where and when they see/interact with the other parent, without any pressure and influence.
9.The advancement of this position by the mother at the conclusion of the trial demonstrated to me, and I so find:
(i)that the mother has little capacity to process and act upon direction that does not accord with her pre-determined course; and
(ii)that the mother has very little insight into the circumstances that have led to the situation she now finds herself in, particularly, her own contribution to them; and
(iii)that the mother places little, if any, value on the children’s relationships with their fathers.
10.Having considered all of the evidence that was before me in this matter, I have reached the conclusion that any time these four children spend with their mother must continue to be professionally supervised. I am satisfied that supervision must continue at least until the mother can, with the assistance of a sustained course of psycho-therapeutic counselling, demonstrate a change in her mental state such that the children could, without unacceptable risk to their emotional well-being, spend unsupervised time in her care.
11.These are my reasons for reaching this conclusion and making the orders that I do.
By what principles is this matter to be determined?
12.An order of this Court that deals with the person with whom a child lives, the time a child is to spend with another person, the allocation of parental responsibility for a child and/or the communication a child is to have with another person is a parenting order (s 64B of the Act).
13.Any parenting order that this Court makes in respect of the four children that are the subject of these proceedings must be made with regard to the best interests of the children as the paramount consideration.[1] The Act expressly sets out how the Court is to determine what is in the best interests of children who are the subject of proceedings in the Court.
[1] s 60CA and s 65AA of the Act
14.In determining what is in the best interests of the children, consideration must be given to the expressly listed “primary” and “additional” considerations.[2] The process of determination is a broad one. That is clear by reference to one of the expressly listed “additional” considerations, namely s 60CC(3)(m). It lists as a matter to be considered “any other fact or circumstance that the Court thinks is relevant”.
[2] s 60CC(1), (2) and (3) of the Act
15.Determination of the parenting orders must also be made in the light of the expressly listed “Objects” of Part VII of the Act and the “Principles” underlying those Objects. These Objects and Principles are set out in s 60B of the Act. I consider it important to remind myself of these when determining cases in which children’s time with one of their parents is sought by other parties to be significantly restricted.
16.Section 60B of the Act provides:
(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).
18.I have previously discussed the application of these Objects and Principles in parenting cases and the relationship between them and the matters required by s 60CC to be considered when determining the best interests of the children in question.[3] I have made previous reference to the decision in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and to the principles that were there set out by the Judges of the Full Court. I continue to be mindful of all that I have previously said about these matters.
[3] Preston v Preston [2011] FamCA 618, at paragraphs [37] – [47]
19.The ultimate obligation of the Court is to apply, in a commonsense way, the individual sections of the Act so as to achieve the best interests of the children in the particular case. The actual weight to be attached to the individual components of the statutory provisions will vary, sometimes significantly, from case to case.
20.In B and B (supra), the Full Court pointed out that it is well accepted that in most cases meaningful contact by a child with both of their parents is important to their welfare in the short and long-term. Their Honours, however, were also quick to acknowledge that there may be cases where the best interests of the child will require contact with a parent, or even both parents, to be curtailed or even terminated.
21.With which parent a child lives, and how much time they spend with the other parent, are then matters to be determined having regard to the evidence that is presented in the particular case, considered with regard to the paramountcy of the best interests of the child and the Objects and Principles set out at the commencement of Part VII of the Act. That determination must also be made by way of the statutory pathway set out in the provisions of Part VII.
22.That statutory pathway requires the Court to:
·apply the presumption of equal shared parental responsibility (s 61DA (1))
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply (s 61DA(2))
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility (s 61DA(4))
·if the presumption applies:
· determine whether it is in the child’s best interests for there to be an order for equal time with each parent (s 65DAA(1)(a))
· make findings as to the matters set out in section 65DAA(5) which are as follows:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
·as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable (s 65 DAA (1)(b))
·if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order (s 65DAA(3))
·if neither an equal time order, nor a substantial and significant time order, is to be made, proceed to determine what orders are in a child’s best interests.
23.At various steps along that statutory pathway, the best interests of the child have to be considered. As already observed, this is done by giving weight, in appropriate amounts, to those “primary” and “additional” considerations set out in s 60CC that are relevant to the particular child in all of the factual circumstances of the case.
24.However, Kent J has observed[4] that it is appropriate to undertake consideration of and make findings about each of the s 60CC “best interests” considerations, having regard to the respective proposals of each of the parties, before commencing down the pathway just set out. Then after considering, weighing and assessing the evidence adduced in the proceedings, it is appropriate for the Court to indicate to which of the matters greater significance is attached and how all of the matters balance out. I respectfully agree with those observations made by his Honour.
[4]In Heath v Hemming (No 2) [2011] FamCA 749 at [87],
The mother’s precise application
25.The orders that the mother actually sought in her Amended Initiating Application were:
1.That the Children; [K Lyall], [T Lyall], [M West] and [R West], reside with Ms [Bouchard].
2.That the Children are listened to and receive regular ongoing counselling.
3.That Ms [Bouchard] be permitted to change any and all arrangements, to coincide with the Children’s residential address.
4.That the Children be given full medical check ups, to address any health issues prior to residing with Ms [Bouchard].
5.That both Mr [Lyall] and Mr [West], have their income garnished to make regular Child Support payment sand contribute equally for any other of the Children’s costs for;
(a)Counselling
(b)Education
(c)Medical – including Insurance, Hospital, Dental, Optical and Audiological
(d)Replacement of Lost, Missing or Damaged items
6.That Financial Security be obtained for each of the Children
7.That orders be made pertaining to Mr [Lyall] and Mr [West] individually, as this honourable court deems fit
8.That Ms [Bouchard] receive full renumeration [sic] for damage and financial hardship
9.That DHS be removed from the family, to the extent as this honourable court deems fit and the workers previously and currently involved with the Children and Ms [Bouchard] be dealt with respectively.
10.Any further and other orders as this honorable court deems fit.
26.Having regard to my determination to focus the case on the issue of whether or not the children’s time with the applicant mother should continue to be supervised, it is relevant to record here that which the Family Consultant, Mr S, observed in his report dated 28 November 2011 that was put into evidence by the ICL in respect of the mother’s proposal.
27.At [9] on page 2, he reported that the mother had informed him that failing return of the four children to her care, she “saw no need for supervision whilst the children were in her care and would want a substantially increased amount of time with the children than what is currently taking place.” He went on to report that the mother does not want supervision to continue at the contact centre but would prefer either her uncle and aunt or her cousin and his wife to take up supervision if it is considered necessary.
28.The Family Consultant reported that the both the fathers seek to have their children’s time with the mother supervised at the contact centre on a continual basis, rejecting the mother’s preference for members of her extended family to take over supervision. The Family Consultant reported, too, that both fathers seek an order for sole parental responsibility in respect of their particular children.
Some relevant background
29.The mother is almost 40 years of age. Mr Lyall is 43 years of age and Mr West is 40 years of age.
30.The mother and Mr Lyall married in February 1998 and they separated in July 2002 when K was only three years old and T was only several months old. There is evidence that there was some domestic violence in their relationship. However, final parenting orders providing for the children to live with the mother and spend time with Mr Lyall each alternate weekend and overnight on Thursday in the other week were made with the consent of both parents in this Court in October 2004.
31.There is evidence of Departmental involvement that began in February 2000, when a notification was made to the Department that K (who was only six months old at the time) had sustained a fractured skull after being in the care of Mr Lyall and his mother. The Department’s evidence in these proceedings was that subsequent inquiries of doctors revealed that there was no skull fracture. However, at trial, the mother maintained that the child had sustained a fractured skull and asserted there was corroborative documentary medical evidence in existence but that she was unable to put it before the Court as it was “at the Children’s Court”.
32.I cannot be satisfied on the evidence before me that the child did have a fractured skull. I certainly cannot make a finding that she sustained a fractured skull whilst in the care of her father as an infant. The mother’s position is not enhanced by maintaining steadfastly that it happened without adducing any corroborative evidence in circumstances where I am satisfied that she has long been aware that the Department asserts that there was no skull fracture.
33.There was evidence of another notification being made to the Department in June 2002 alleging the two children were being exposed to domestic violence. During the Department’s involvement with the family at that time, the mother and Mr Lyall separated. Then, according to the Department’s evidence, there followed several further notifications over the next four years, including during the time that parenting proceedings between the parents were before this Court, that included allegations that the girls were being sexually abused by their father. All were investigated by the Department. There were a number of medical examinations and interviews of the girls, none of which led to any determination supportive of the allegations and adverse to the father. In fact, there is evidence that the Department’s concerns became increasingly focused on the mental health of the mother and the issue of her potential emotional abuse of the children.
34.The mother was first psychiatrically assessed at the direction of the Department in late 2005. The psychiatrist observed that the situation of the family as presented was “quite complicated” and warranted further appropriate family assessment by a professional. He was unable to give any conclusive opinion about the mother’s mental state. Notably though, he did say of the mother:
[the mother] presents as someone with a sense of certainty that the children’s father is molesting them, including a sense of him being involved with others in paedophilic activities. She gives the impression that this is a firm belief on her part based on what she knows.
I shall later return to a discussion of the relevance of noting this.
35.After another notification received by the Department in June 2006 that the girls were being sexually abused by their father, Departmental evidence is that the children’s counsellor told a Departmental professionals’ meeting that the girls had told her that their mother makes up stories about the father sexually abusing them. The Department concluded its investigation of that notification shortly thereafter with the mother remaining engaged with a support service and the children receiving counselling.
36.In the meantime, the mother had met Mr West and formed a relationship with him. He lived in South Australia at that time. Their first child, M, was born in December 2005. Mr West moved to Victoria and the couple married in October 2006. Their second child, R, was born in September 2007.
37.In March 2009, a further notification was received by the Department alleging that the mother was gaining attention from medical professionals by taking the children for examination and fabricating their symptoms. The following month, a further notification was received by the Department that the eldest child had called Kids’ Helpline reporting that her father had been sexually abusing her and had been for years and had started abusing her sister. The Department’s evidence is that when the child spoke to a Departmental officer she reported that she could not remember any details of the abuse but that her mother had told her this had happened to her when she was little and that now it is happening to her sister. The Departmental officer also spoke to T who allegedly said that she knew K had called Kids’ Helpline because their father was “sticking things in [their] bottoms.”
38.Those events were quickly followed by a police interview of the children in which the Departmental evidence is that the children disclosed that their mother had regularly told them that their father had been inserting objects in their genitals when they were sleeping and that their mother checked their “private parts” following “most” times they had been with their father.
39.The Department then acted by issuing Protection Applications in respect of all four children. The applications were heard in the Children’s Court on 28 April 2009 and interim orders were made for the two eldest children to live with their father and for the two youngest children to continue to live with their mother and their father, Mr West.
40.The Departmental evidence is that the mother’s then solicitor commissioned a report from a psychologist. The Departmental evidence is that the psychologist read the Department’s application report at the time, interviewed the mother and performed psychometric testing of the mother. In her June 2009 report, Departmental evidence is that the psychologist said the allegations of sexual abuse were “characteristic of a false belief arising from misinterpretation and misconceptions rather than from motives which are malicious or intentionally deceptive”. The psychologist expressed the opinion that the matter was not likely to be a case of shared psychosis (aka a folie a deux) or factitious disorder by proxy (aka Munchhausen Disorder by proxy). The evidence is that therapeutic intervention and education for the mother was recommended by that psychologist.
41.In June 2009, a Children’s Court Clinic Report was prepared. The Departmental evidence is that the author of that report disagreed with the mother’s psychologist and found that:
there is considerable indication in the assessment of [the mother] that she suffers from a disturbance of thinking and belief of the kind observed in the condition of a Factitious Disorder also known as Munchhausen syndrome by proxy, in which her anxiety for her children takes on inferences that they are suffering great harm or ill-health requiring professional intervention which go way beyond the actual evidence of such risk or harm.
42.There was a seven day hearing of the Department’s application in the Children’s Court in July 2009. Mr West, then still married to the mother, supported the mother in that case. They were both represented, though separately, by solicitors and counsel. The Magistrate’s decision was handed down on 7 August 2009. It included a finding that allegations of sexual abuse relating to the father were without foundation. It included a finding that the mother has told the children that their father abuses them and that the mother telling the children these things has had a significant impact on the children’s psychological state. It also included a finding that the mother “does suffer from a significant mental disorder” although the Magistrate did not accept that the mother actually met a formal diagnosis of Munchhausen’s disorder, observing that could only be concluded after a “comprehensive and continued further assessment process.”
43.The Magistrate noted in her judgment that her impression of the mother was that she:
has unconsciously taken what she wants to hear and ignored what she doesn’t and has embellished and reconstructed events as they fit within her view.
44.The Magistrate ordered that the two eldest children live with the father and the two youngest children continue to live with the mother and Mr West with all such arrangements to be under the supervision of the Department. Included in the conditions attached to each order was a condition that the mother must go to a psychologist and/or psychiatrist as directed by the Department for assessment and treatment and the mother’s time with all four children was to be supervised by Mr West.
45.The mother then had another psychological evaluation done by a different professional at the direction of the Department. That report was prepared in November 2009. Departmental evidence is that this psychologist reported that the mother’s presentation was such that she “embellished and reconstructed events to fit with her view and indicative of an inability to separate the children’s needs as separate to her own.” That psychologist further reported an opinion that the mother’s problems were “always attributed to others” and that she “lacked the capacity for insight even when challenged with compelling information contrary to her view.” She expressed the view that the mother’s ongoing care of the two younger children “may place them at risk of physical or psychological harm” and that “without intensive ongoing psychological intervention the likelihood of Ms [Bouchard] placing the children at risk of harm was high.”
46.Shortly after the receipt of that report, the Department received another notification in respect of the two eldest girls. K, whilst spending time with her mother and Mr West, had been driven to a police station and had gone into the police station by herself and dropped an envelope on the station desk. That envelope contained 20 pairs of dirty girls’ underwear. K and T were interviewed by a Departmental officer later that same day and the Departmental evidence is that K reported that her mother had given her a typed piece of paper and told her to copy the typed words onto the envelope in her own handwriting, addressing the envelope to Child Protection. T reported that her mother had made her check what underwear was stained in a big bag and that she had not wanted to do it. Only weeks before, the mother had handed a small plastic bag of dirty underwear to Departmental officers with instructions to send them back to Mr Lyall. Departmental evidence is that when spoken to about these matters, the mother denied anything to do with the underwear incident and could see nothing wrong with it. When he was spoken to about the matters, Mr West acknowledged that he should have taken more action and agreed he was no longer suitable to supervise the mother’s time with the girls unless he was more vigilant.
47.At the trial, Mr West gave oral evidence that he had arrived home from work that particular day that he drove K to the police station to see the girls, the mother and the mother’s uncle and aunt already packaging up the envelope. He said that the mother told him that he would be taking K to the police station and that he thought it best to do what she told him to do to avoid confrontation.
48.On 4 December 2009, the Departmental evidence is that Mr West attended Departmental offices with his own father, presenting as extremely exhausted and shaking throughout the interview. The Department’s evidence is that from that time on the mother refused to communicate with the Department’s case worker and then sent the case worker an abusive email.
49.Departmental officers then attended at the home of the mother and Mr West at around that time, after the Department received another email from the mother that caused concern. It said:
I am at the end and I not afraid anymore, you can only push a person around or bully them so much, before life is no longer interesting or bearable.
50.The Departmental evidence is that the officers were quite concerned about the mother’s presentation and her observed interaction with the two youngest children. They reported that Mr West arrived home and reported to them that the mother had been talking of driving her car off a cliff.
51.The Departmental officers then acted and took the two youngest children from the mother’s care and placed them in the care of their maternal grandfather overnight. The next day the matter was back in the Children’s Court and interim orders were made for the two youngest children to live with their father. Mr West had decided to separate from the mother at this point. The children’s time with the mother was initially supervised by their paternal grandfather and his wife.
52.The matter was again back in the Children’s Court on 20 January 2010. Agreement was reached between the Department and the mother for the mother to attend upon another psychiatrist for an assessment and treatment. Departmental evidence is that the mother would not agree to the psychiatrist being provided with all of the earlier reports. The psychiatrist concluded that the mother was suffering from a partially treated reactive depression and found no evidence of Munchausen’s disorder, although the doctor acknowledged limitations to her assessment caused by her having no accompanying information and no opportunity to observe the mother interact with her children.
53.The mother then requested an independent review of the Department’s actions. That was put in place and a clinical psychologist conducted it. Departmental evidence is that the psychologist concluded that the mother “clearly has a mental health problem that prevents her from protecting her children from her own fixed belief that they have been harmed despite consistent evidence to the contrary.” She recommended the mother attend regular psychotherapy with a psychiatrist or a clinical psychologist.
54.The mother did then begin attending a psychologist of her own selection. That psychologist has written two reports in March and July 2010. Her reports are supportive of the mother and rather critical of the Department.
55.When the Department was advised in July 2010 that Mr Lyall had applied to this Court for parenting orders it informed this Court that it supported his application. Orders were made on the father’s application to this Court on 12 August 2010 discharging the 2004 final orders and providing for the two eldest girls to live with their father and only spend supervised time with their mother. On 28 September, 2010, the Department withdrew an application it had made to the Children’s Court to extend the previous supervision order.
56.On 1 June 2010, Mr West obtained a domestic violence intervention order against the mother from a Magistrates Court.
57.On 30 August 2010, a hearing took place in the Children’s Court in respect of the two youngest children. It went for 10 days and was conducted by a different Magistrate to the one who had conducted the previous 2009 hearing. The mother and Mr West were again legally represented at that hearing, only this time they were opposed to each other. The Magistrate handed her decision down on 7 October 2010.
58.The Magistrate made findings that included a finding that the mother had caused the girls to take the envelope of dirty underwear to the police station and that this was conduct consistent with the mother’s continued belief that Mr Lyall was sexually abusing the girls notwithstanding the previous Children’s Court decision. The decision included a finding that there were genuine concerns about the mother’s mental health state, including that she had threatened to commit suicide and that this presented an unacceptable risk to the children.
59.The Magistrate found that the mother had breached conditions of the previous supervision order. The Magistrate observed that she formed a positive picture about Mr West’s capacity to care for and meet the needs of the two small children since they had been in his sole care. Her Honour ultimately determined that it was in the best interests of the two children to continue living with their father and to spend time with their mother, supervised by the Department or its nominee, at least three times per fortnight. There were other conditions, including that the mother undertake psychiatric/psychological treatment, with reports as to her progress being given to the Department. The orders were made to be operative for a period of six months with acknowledgment that the parties would then seek orders pursuant to family law.
60.Relevantly, in her reasons the Magistrate said of the psychological therapy the mother was receiving:
Although [the mother] has established a therapeutic relationship it has focused mainly on the crisis and trauma for her of her relationship breakdown and separation from her children. Apart from addressing underlying [sic] and trauma, I find that at this point [the mother] has not undertaken any significant treatment that would assist her to moderate her behaviour and allow her to address the protective concerns, including issues arising in her access with [the two youngest children]. In order to do so, [the mother] needs to agree for her treating psychologist/psychiatrist to work in a collaborative manner with all other professionals involved, including child protection workers and for her treating practitioner to have access to all relevant materials in order to reach an accurate diagnosis and enable effective treatment. This could useful [sic] include timely reports on what is “going well” and “what is concerning” during access times.
61.In January 2011, the mother commenced proceedings against Mr West in the Federal Magistrates Court in which she sought orders in respect of financial matters. In February 2011, Mr West filed a response in which he sought parenting orders in respect of their two children. On 19 April, 2011, after the expiration of the Children’s Court orders, interim orders were made in the Federal Magistrates Court that the two children continue to live with Mr West and have supervised time with their mother. An ICL was appointed and the matter was transferred to this Court. On 11 July 2011, the two sets of parenting proceedings were consolidated and listed for trial. On 27 July 2011, an order was made for the mother to present for psychiatric assessment.
62.Dr D, psychiatrist, saw the mother in September, October and November of 2011 and his report, dated 16 November 2011, is exhibit 1 in these proceedings. He was provided with a vast array of affidavit material of the mother, past reports and other historical material to assist him in better understanding the matter and his task.
63.The Family Consultant, Mr S, saw the mother, the two fathers, and all four children in late November of 2011 for the purposes of preparing a family report. He also had been provided with the extensive affidavit material and the various psychological and psychiatric reports prepared over the years.
64.At the conclusion of the trial of the parenting issues, I heard property division applications as between the mother and Mr West and I made orders for the sale of the only significant asset of the parties, their former matrimonial home in which the mother was living at the time. Accordingly, I expect that property has since been sold in accordance with my orders and that the mother now lives elsewhere.
Evidence at the Trial
65.The Family Consultant’s report that was in evidence was detailed and very helpful. At paragraph 51 of the report, Mr S observed that all four children appear to be healthy, settled and thriving in the care of their respective fathers. He expressed the opinion that both fathers are caring, loving and very organised and competent parents. He reported that after also having considered the mother’s complaints about the care provided by both fathers to their respective children. Mr S said that it appears to him that both fathers are conscious of the children’s issues and have undertaken steps to address any needs the children may have.
66.Mr S pointed out that the mother presents as “a settled, articulate and reasonably intelligent person”. I do not disagree with that assessment. It is therefore, seriously concerning, that the mother maintains the position that she has been the victim of a conspiracy perpetrated by the two fathers and the Department to remove her children from her and to keep them from her. The Family Consultant proffers the thought that either the mother is aware of her own past actions and limitations and the reasons behind the Departmental action but simply does not wish to acknowledge this or she is totally unaware of and has no insight into her past actions and the reasons why things have progressed the way they have. Either way, he opines, it demonstrates that the mother has some very serious personal problems in her personality, personal integrity and/or mental health. That, I find, is one point of consensus between all the experts who have independently assessed the mother over the years.
67.In respect of the mother’s mental health and these related issues, I turn to consider the report of the psychiatrist that was commissioned for the trial before me. Dr D, the psychiatrist, said that the mother has a “patterned tendency to reorganise and reconstruct her narrative overtime.” He said this “is critical as it suggests she has moulded her story depending on the context of the assessment.” He went on to say:
It is unclear if the altered account is consciously driven, or simply a variation based on a changing memory. I gained the impression that [the mother] is not deliberately feigning stories; rather it appears to be driven by subconscious or unconscious factors. I also think it likely that [the mother] has the tendency to distort reality, and misinterpret conversations and behaviour.”
68.Dr D reported that the mother denied holding beliefs that the children have been sexually abused. He pointed out, correctly, in my view, that this seemed to contrast with her past fixed views. Again at the trial, the mother boldly asserted that she did not believe that Mr Lyall had ever sexually abused the girls and that she never had held such a belief. I do not accept that the mother never held such a belief. In fact, in paragraph 34 of these reasons I expressly quoted a passage from a previous report evidencing quite the contrary. Furthermore, Mr West gave oral evidence at the trial that the mother had told him that she believed that Mr Lyall had sexually abused the girls. He was not discredited on that point. I accept his evidence.
69.In this regard, Dr D offered the opinion that the mother may have presented such information to him in order to present herself in a favourable light, in order to enhance her opportunity to be given unsupervised contact with her children again. I am satisfied that is what she has done and what she was trying to do in the trial when she falsely denied ever believing that Mr Lyall sexually abused the girls.
70.Turning back to the psychiatrist’s report, Dr D observed that the mother does not present with any obvious features of an enduring psychotic disorder. He acknowledged though, given her history of having fluctuated into states of holding delusional beliefs, that it is likely she is prone to forming idiosyncratic and potentially delusional beliefs when her anxiety levels are elevated. He expressed the opinion that her personality fits within the dependent personality disorder construct. He neither confirms nor excludes the possibility that she has displayed features of a factitious disorder, or Munchausen syndrome by proxy, saying he is simply unable to do that given the history of the matter.
71.Dr D concluded that the mother has probably experienced a depressive illness in reaction to the loss associated with being separated from her children in 2010 on top of being physically unwell following the rupture of an ovarian cyst in late 2009. He recommended that the mother continue the therapy she has been receiving from her treating psychologist for the last couple of years but that she increase the frequency of appointments from every six weeks to at least fortnightly.
72.At the end of his report, whilst being quick to point out the limitations in his assessment, Dr D said he considered it reasonable to slowly introduce unsupervised time between the mother and the children within a tightly contained time framework. However, he stressed that should the mother present with similar problems to those purported in the past that unsupervised time be immediately interrupted for further independent mental health assessment.
73.Turning back to the Family Consultant’s report, I note that Mr S reported that the mother denied having ever said anything to her daughters that would have given them the idea that their father had sexually abused them. He reported her as also having denied ever having threatened suicide and telling him that her comments were misinterpreted and taken out of context. That is at odds with the evidence put before the Court by the Department, none of which, I find, was discredited by the mother. I do not accept the mother’s reported denials as truthful.
74.The Family Consultant reported that the mother was emphatic in expressing that she did not believe that the four children were being looked after adequately by their fathers or that they were having their physical and emotional needs met by them. He reported that the mother also did not believe that the two eldest children had a good relationship with their father. He also reported that the mother told him she based this belief on the way the girls spoke about their father, the way they complain about him and keep saying they want to come home. He reported that the mother stated that Mr West did not feed the children properly, basing this belief, apparently, on an assertion that the two youngest children told her that they only ate sausages and no vegetables.
75.The Family Consultant summed up this part of his report with the words:
[the mother] was unable to identify any positives whatsoever in either of her two ex partners as parents. She is of the view that her children’s physical and emotional needs are not being met by their fathers.
76.As I have already noted, the Family Consultant offered quite the contrary opinion about the two fathers. After having considered all of the evidence, I am quite comfortable accepting the correctness of his opinion in this regard.
77.The mother clearly maintains strong views that the fathers are not adequately parenting the four children. Those views do not accord with what I am satisfied is the reality; that the children are being appropriately parented by their fathers.
78.At the same time, the mother falsely denies serious matters in respect to her past conduct and beliefs. She does so, I am satisfied, with a view to enhancing her case for the recommencement of unsupervised time with the children.
79.The combination of those two matters is troubling enough. However, there is further evidence that was before the Court at the hearing that takes my level of concern, already heightened by the matters I have just referred to, to a point where I am satisfied that exposing the four children in this case to unsupervised time with their mother or even time that was supervised by non-professional members of the mother’s extended family would expose them to an unacceptable risk of psychological harm.
80.The ICL put into evidence affidavits by the co-ordinator of the children’s contact centre where the mother’s time with the children was supervised in the second half of 2011 and by the assistant contact supervisor at the centre where it was being supervised in the first half of 2011. Those affidavits attached reports containing very detailed accounts of the interaction between the mother and the centre staff and the mother and the children on each of the occasions of supervised time.
81.There is no suggestion in those reports of the children saying things that could be interpreted objectively as showing the children consider that they are not being looked after appropriately by their fathers or that they are anxious to return to live with their mother. Rather though, scattered throughout the reports are examples of the mother speaking to the children and behaving with them in ways that can only be described as inappropriate in all the circumstances of this case.
82.I shall set out some examples. On 3 April 2011, the mother is recorded as making negative comments towards the child T. The mother is reported to have said to the child “Will you sit like a person… you’ve always been a bit different.” The mother is then reported to have later begun talking with the children about another child and how that other child’s parents had separated, including further detail in regards to how the separation occurred. The centre supervisor had to divert the conversation away from that subject.
83.On 15 May 2011, there is a record that T gave her mother a birthday present which the mother opened there and then. It was an office organiser and the mother then said to T “I don’t work in an office”, appearing disappointed and disinterested in the gift. Later on that same day, whilst cooking together, the mother is recorded as being abrupt towards the children. It is recorded that T would ask for help and the mother would say “you work it out”. The report records that the centre supervisor said to the mother “I think [T] might need some help” to which the mother replied “she is not as dumb as she looks”. On the same day, it is recorded that when the father arrived to collect the two eldest girls, the mother said to them “I’ve got two questions to ask you before you go. Firstly, have any bad things ever happened to you?” It is recorded that K shook her head and T asked “why are you asking us this?” The mother is recorded as having replied in an abrupt tone “it’s for my documentation. So, no bad things have ever happened to you? And, if they did, who would you tell?” K replied “I’d tell my teacher.” T is recorded as having looked at K and then saying to her “didn’t you tell the teacher that time..” The mother is recorded as having interjected “so, I’ll put that when bad things happen, you tell your teacher?” At that point, the supervisor intervened telling the mother it was not an appropriate thing to be talking about.
84.On 25 June, 2011, it is recorded that the two youngest children were drawing with crayons in activity books and that they began drawing pictures of their family. The mother encouraged them to draw themselves, their mother and their older sisters. R drew his father and said twice “daddy’s part of our family” to which the mother made no reply at all on either occasion.
85.On 9 July 2011, it is recorded that M was playing with a doll in a pram. The mother asked her if she would like her mother to have another baby. M said she had a baby and pointed to the doll. The mother asked her “what about a real baby?” The child did not reply. The mother then said “Who would I have a baby with? You’ve got to have a baby with someone.” The mother then told the supervisor that the child would like her to have another baby and the mother then proceeded to tell the supervisor about her pregnancies and their complications.
86.On 23 July 2011, it is recorded that the mother kissed and cuddled R after cleaning his ears out and telling him four times that they “were full of yuckies”. After the mother then kissed the child, he wiped his face with his hand and told his mother that he did not like kisses. The mother then asked him four times why he did not like kisses. Each time he answered “because I don’t like them”. The mother told the child that she had to know why he did not like kisses. M then told the mother that he could not answer her. The mother then asked him if he did not like kisses because “they’re yucky, because they’re slimy or because someone gave you big kisses and you didn’t want them to?” M said that their father gave them lots of kisses and the mother then said “that must be why [R] doesn’t like kisses”
87.On 6 August, 2011, there is recorded that the mother gave new clothes to the two youngest children and encouraged them to try them on. She commented that the top that R had worn to the centre looked old and she asked him if it had come in a bag from the church. The mother told M that her new top was too big but that she could wear it when she grows. The mother said “you can wear that when you come home”. She also gave the children each a necklace with a cross on it. At the end of the visit, the mother told M and R to take off their new clothes and necklaces. M began to frown and cry and told her mother that she wanted to take the items home. The mother told her that the things would go home “to your real home, to our home where we live together.” M said that she wanted to take the necklace to the home where she lived with her father. The mother told her that the necklace was for God and that it belonged to God. Shortly thereafter, the mother took out her camera and called to the children to come and look at photos of their bedrooms. The supervisor tried to stop the mother from doing this by changing the subject but the mother continued to call out “come on [R], come and see all the toys that you’ve got in your bedroom.” At the end of the visit, the mother took the necklaces off the girls and told them that she would hang their new clothing in their wardrobe at home. T said that she would carry an exercise book her mother had given her. The mother then said in a stern tone “no, you won’t [T]. Then you know who will see it. That book is for me to read and your teachers only.”
88.On 17 September 2011, it is recorded that the mother’s mobile phone rang and after she looked at the display and did not answer it she said to the children “I did not tell you, kids, but I have problems.”
89.At the trial, the mother denied that the reports were all accurate and denied that she had said and done some of the things reported therein. However, she did not cross-examine either of the deponents of the affidavits. I do not accept her denials and accept the reports as accurate recordings. The examples I set out are just some that I consider reflect the mother’s inability to understand the inappropriateness of what she was saying or an inability to restrain herself from saying things, even if she realised they were inappropriate, even when in the presence of professional supervisors.
90.The Family Consultant had read the same reports before he wrote his report. He expressed the view that those reports suggest that at times the mother “continues to be inappropriate in her dealing with the children.” He rightly asked the question then as to how the mother would be in an unstructured unsupervised setting with the children. He immediately followed that up by expressing the opinion that unless the mother:
has had extensive counselling (and if in fact she is suffering from a specific psychiatric condition, specific treatment) and a demonstrated (observed) period of stability in her interaction with the children, then an unsupervised scenario is contraindicated given the observations made by the supervisors at the [centre]
I accept that opinion in its entirety.
91.I turn back to the evidence of Dr D. In the oral evidence he gave at the trial, he confirmed that he had read the reports from the supervisors in the time between writing his report and the trial. He was asked whether if he had seen the reports before he wrote his report that would have been enough to cause him concern that unsupervised time between the children and their mother would create too much of a risk to the welfare of the children. He answered with an emphatic “yes”. He expressed the view that the mother is certainly unwell and does not have a “healthy personality state” or a “healthy mental health state” although he conceded it is very difficult to try to put some form of label on her the nature of her difficulty.
92.The doctor also expressed some concerns about the nature of the therapeutic counselling that the mother has been getting from the psychologist she has been seeing over the two years leading up to the trial. He expressed the opinion that given the psychologist supported the mother in the sense “that she has been a victim” the benefit of the therapy to the mother was limited. He suggested that for therapy to be beneficial it needed to challenge the mother to see things in a broader light and to contain the nature of her anxieties.
93.When the mother cross-examined Dr D she attempted to discredit him by putting to him that he had documents in his possession when she first saw him that he had received from Mr Lyall’s solicitors, somehow implying that was inappropriate. The doctor simply referred the mother to the list of material that he had received that was in his report, saying it represented all the material he had been provided with. The mother’s attempt to discredit the doctor was most unsuccessful and merely highlighted, in my opinion, the paranoid personality traits that Dr D had already said that she displayed.
94.I accept the opinions expressed by Mr S and Dr D. It is clear that both independent experts were satisfied that the mother has serious difficulties with her personality and mental health that she needs to address through psycho-therapeutic treatment and that until she does, she poses an unacceptable risk to the psychological well-being of her children. I am satisfied that they are undoubtedly correct.
95.In the concluding parts of his report, Mr S went on to discuss the difficulties now faced in considering where this matter should proceed to. He opined that supervision of time is limited conceptually and practically. He pointed out that the fathers each pay $60 per fortnight for the supervision to take place at the centre. He observed that centres have limitations as to the duration that they are prepared to continue providing a service. They are all reasonable observations.
96.He pointed out that the two elder children had actually expressed a desire for “a slight increase in the time they spend with their mother” and that this too created difficulties given the constraints imposed by a supervised environment. However, Mr S did acknowledge that if supervision is to continue then an increase in the time the children spend with the mother may not be achievable.
97.He concluded with his recommendations. They were:
·that the children remain in the full-time care of their respective fathers.
·that the fathers have sole parental responsibility in respect of their own children.
·that the children continue to spend supervised time with the mother at the contact centre and that an alternative arrangement for supervision would need to be considered if the centre they were attending could not continue to supervise.
·that the parents consider enrolling in the Parenting Orders Program at the contact centre in order to support the development of better relationships.
·that if there is evidence to suggest the mother is suffering from a diagnosed condition that impedes her ability to parent the children then steps be taken to address her issues and a report as to her progress be provided by the treating professional before any attempt is made to address the issue of the children spending unsupervised time with their mother.
98.In oral evidence at the trial, when asked his opinion as to how long into the future supervised time should continue, Mr S suggested that there should be at least twelve months of supervised time before any move to unsupervised time was considered. He suggested that a s 65L order or a s 11F order could be made to facilitate communication by a Family Consultant with the supervisor to discuss how matters were developing. He also suggested the names of three professionals he considered appropriate as therapists for the mother to provide her with the critically important therapy to promote the changes necessary before unsupervised time should be considered.
99.The evidence I have read and heard in this case completely satisfied me that providing for the children to spend unsupervised time with their mother is not in their best interests and would expose them to a completely unacceptable risk of emotional abuse. I find that the mother does not accept that the children should continue to live with their fathers and I am satisfied that she would be unrestrained in her behaviour and her language around the children if they were in her unsupervised care, just as I find she has been in the past. I am satisfied that lack of restraint would be directed at damaging the children’s attachment to and relationships with their fathers, including, potentially, by again alleging sexual abuse by the fathers without foundation.
100.I do accept that the children should, at this point in time, continue to see their mother though, as it is in their best interests to maintain a relationship with her. Whether that remains the case in the future will depend greatly on how the mother responds to psycho-therapeutic treatment and whether she begins to develop the insight that she currently lacks.
101.I do not accept that any members of the mother’s extended family would be appropriate supervisors in this matter. None of the evidence I have read or heard gives me any confidence that any of the persons proposed by the mother could contain the mother’s conduct and conversations during time with the children or that they would act appropriately to report inappropriate conduct and conversations after the event. Consequently, I will be ordering that the time the children spend with the mother will continue to be professionally supervised.
Parental Responsibility
102.I turn briefly to consider the question of parental responsibility before I consider the precise nature of the orders that should be made.
103.The evidence easily persuades me that it is not in the best interests of any of the four children in this case for an order to be made that their parents equally share parental responsibility. The statutory presumption that it is in their best interests is readily displaced in this case. I can see there being no reasonable prospect of the mother making a genuine effort to consult with the fathers in respect of decisions about the major long-term issues in these children’s lives. I consider the prospect of agreement being reached in respect of any such decisions as fanciful. Any order for the sharing of parental responsibility will, I am satisfied, lead the parties inexorably back to Court. I will not make such an order in this case.
104.Granting each of the fathers sole parental responsibility in respect of their own two children will ensure necessary decisions are made as and when required for these children. That is in their best interests. As no equal shared parental responsibility order will be made, the Court is not mandatorily required to consider any equal time or substantial and significant time living arrangements for these children. Clearly, neither of those types of living arrangements is in the best interests of these children in any event.
How should the mother’s supervised time progress?
105.The Court was informed in addresses at the conclusion of the trial that the organisation which operates the contact centre where the children’s time with their mother was supervised up to the time of the trial would not be able to continue to offer supervision on an indefinite basis. As I have determined that continuing professional supervision of the mother’s time with the children is in their best interests at this point in time, the orders that I intend to make will provide for supervision to continue to be provided by a private service provider. Counsel for the ICL informed the Court of a suitable private provider of such a service in her submissions. That service has an $85 intake fee and charges $70 per hour for a minimum of three hours at a time.
106.My orders will provide for the children to spend three hours at a time, once every second weekend, with the mother, all at the same time, unless otherwise agreed between the mother and the two fathers. This will cost $210 which I consider should be met in equal one-third shares by the three parents. If the cost was left to only the mother to bear, as counsel for Mr Lyall submitted should be the outcome, I would not expect the mother to be able to afford it and it probably would not happen. I do not consider that in the best interests of these children. Sharing the cost is, in the circumstances, more appropriate. The ICL shall be responsible for initially setting up the arrangements for this supervised time that will then continue to apply each fortnight. The ICL will also be authorised to publish the Court’s orders and these reasons for judgment to the supervisors of the time the children spend with their mother so that they can be appraised of the reasons why such supervision is necessary and also as to what they need be vigilant for.
107.Of course, if another children’s contact centre was able to accommodate the family for supervised visits, they could all agree to take advantage of that.
108.My orders will provide for the mother to continue to communicate by telephone with the children. Neither father opposes such arrangements continuing as they have been.
109.The orders will allow the fathers to apply for, obtain and keep in their possession passports for the children and to travel overseas with them on the giving of appropriate notice to the mother of their itinerary and the provision of make up time on return for any missed. I have no concerns that the children will not be returned to Australia after overseas holidays.
110.I will put in place restraints against conduct that I am satisfied are necessary and in the children’s best interests, including restraint against the mother attending at or communicating with any school or child care centre any of the children are enrolled at. I consider this necessary having regard to the particularly disturbing email the mother sent in November 2010 to the Principal of the school that M attends, which is the same one that Mr West works at (see exhibit 5 to Mr West’s affidavit filed 24 February 2011). The mother was also totally inappropriate and unrestrained in what she included in the content of that email. She is to have no communication with the children’s schools at all at this point in time.
111.I do consider it necessary and in the children’s best interests for the mother to be kept informed of the telephone number at which she can call the children pursuant to my orders, to be advised of the decisions that the fathers are taking in the exercise of sole parental responsibility, to provide the mother with copies of the school reports received by the children and to be kept advised of any significant injury or serious illness suffered by the children.
112.I am very mindful of the fact that long term supervision of a parent’s time with their children is generally regarded as undesirable. That is accepted by this Court[5] as well as the community.[6] Its consideration in this case requires careful balancing of the need to protect the subject children from psychological harm and the benefit to them of maintaining a meaningful relationship with their mother. As I have already said, I am satisfied that the children’s best interests are served by continuing to spend time with their mother on a regular basis so that their relationship with her can be maintained until such time as unsupervised time can recommence. But at the same time, they must be protected from psychological abuse at the hands of their mother that could do a lot of harm to them in the long term. That is why supervision remains necessary.
[5]See W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114 and also Moose and Moose (2008) FLC 93-375 per Boland J at [113]
[6]Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia)
113.I am mindful that the Family Consultant expressed an opinion that supervision should probably continue for twelve months and he said that at the trial last December. I expect it has continued in the time that my judgment has been reserved. However, I am not inclined to make an order that supervision of the mother’s time with the children be limited in duration. The evidence causes me to comfortably determine that the mother’s time should be supervised until she has benefited from psychotherapy and demonstrates greater insight and is able to restrain herself in her conduct and conversations with her children.
114.I am optimistic that the mother, who is very keen and determined to maintain her relationship with the four children and to remain an important part of their lives, will undertake and benefit from the psychotherapy that I will order she undertakes. Whether the mother chooses to continue to see the same psychologist that she was seeing over the last few years of her own volition is a matter for her. But I am satisfied, having heard the evidence of Dr D, that the psychotherapy should be conducted by a therapist who comes at the matter afresh. My orders will provide for that. They will also provide for a Family Consultant, preferably Mr S who is already fully aware of the case, to monitor compliance with them pursuant to s 65L, as he effectively proposed in the witness box would be appropriate in this case. I expect he will then be in a position to provide a further report if ever required by the Court.
115.As such, whilst I will put no time limit on the period of supervision, my orders for continued supervision are not orders that I expect will never be able to be changed. Absent agreement between the parents, their change will, of course, having regard to the principles first espoused in Rice v Asplund (1979) FLC 90-725, depend on this Court being satisfied by the parent who wants to change them that there has been a sufficient change in circumstances from those that determine the outcome in these proceedings to justify embarking on another consideration of the parenting arrangements for these children. Clearly, that would include the mother demonstrating sufficient change, thus making the psychotherapy that she undertakes critical for her.
116.I am satisfied that this is one of those rare cases where supervised time should be ordered without any limitation imposed in respect of its duration. Although I cannot pinpoint when it might happen, I am hopeful that there will be sufficient change in circumstances for there to be change in the regime in the future. That is best left in the hands of the parties though, in my view.
117.The evidence also established that the two youngest children have been seeing a therapist under the auspices of the Department. It was submitted that I should make an order that the mother comply with all reasonable directions of the children’s therapist to participate in the process. I am satisfied that is in the children’s best interests and will make the order.
Should the mother be restrained from making further applications without leave?
118.Finally, the First Respondent father applied for an order that the mother be restrained from making any application under Part VII of the Act to any court having jurisdiction without the leave of a Judge of this Court, such leave not to be sought within three years of the making of orders in this case. The Department, through counsel who appeared for it at the trial, supported that application.
119.No submissions were made as to the source of the power for such an order. It is clear, that s 118(1)(c) of the Act provides the Court with express power to make such an order. However, the power in s 118 to order that a person shall not institute further proceedings without leave can only be exercised where the Court has already dismissed, or is simultaneously dismissing, proceedings which it was satisfied are frivolous or vexatious instituted by the person against whom the order is to be made. See Vlug v Poulos (1997) FLC 92-778.
120.I have not already dismissed proceedings which I was satisfied were frivolous or vexatious that were instituted by the mother. In fact, I have not dismissed the mother’s application. She has obtained orders from the Court albeit not in the terms that she applied for. I have made orders in respect of the four children that I determine are in their best interests. I do not consider the mother’s application for parenting orders was a frivolous application. I do not consider it was a vexatious application. Accordingly, I am not satisfied that the power that is conferred in s 118(1)(c) of the Act is actually enlivened and I can make no such order under that section.
121.I am prepared to consider that the injunctive powers expressly provided for in s 68B of the Act could provide a source of power for such an order. That section gives the Court power to grant such injunction as it considers appropriate “for the welfare” of the child. It sets out specific examples, none of which compare to the order sought. However, they are not meant to be exclusive examples. There is, I consider room for an argument that the order sought is an injunction in relation to the children and goes to their welfare.
122.That said, I will not determine that question in this case, as I am not satisfied that such an order, at this stage, is “appropriate for the welfare” of the children in any event. I am not convinced at this point in time that the mother, unless restrained, is going to be bringing unwarranted and unmeritorious applications. The mother will have the benefit of these reasons for my decision and will have had every opportunity to consider them before she brings any application in the future. If the mother does bring an application in the future, the provisions of s 118 exist and the respondents can consider their positions in respect of any rights that section confers on them at the time.
123.It is a serious step to deprive a parent of the right to bring an application pursuant to Part VII of the Act. I am not satisfied that such a serious step is justified at this stage. I will not make that order.
124.I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 September 2012.
Associate:
Date: 6 September 2012.
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Costs
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0
2
1