Cadriel & Gabbey (No 5)
[2023] FedCFamC1F 1028
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cadriel & Gabbey (No 5) [2023] FedCFamC1F 1028
File number(s): ADC 4072 of 2019 Judgment of: BERMAN J Date of judgment: 4 December 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with – Where the children currently live with the mother and spend no time with the father – Where the mother seeks a complete cessation of any relationship or involvement with the father – Where the mother makes allegations of sexual abuse and family violence – Where the mother considers the father is an unacceptable risk of harm – Consideration of risk – Where the mother’s evidence is unreliable – No evidence to support the mother’s allegations – Where the single expert considers the mother will promote a false narrative – Where the evidence supports a finding that the mother is an unacceptable psychological and emotional risk of harm to the children – Consideration of best interests – Where the father and Independent Children’s Lawyer seek a reversal of primary care – Where the father is effectively a stranger to the younger child – Consideration of the long term and the short term impacts – Where the Court finds there is a greater risk of harm in the children remaining in the mother’s care – Orders for the children to live with the father – Orders for the mother to deliver up the children to the Court – Orders for a Recovery Order failing the mother’s compliance.
FAMILY LAW – CHILDREN – With whom a child spends time with – Consideration of whether the mother could spend time with the children if they are not in her primary care – Where the mother’s antipathy towards the father was so entrenched she could not articulate his name – Where the mother’s evidence confirms she will not comply with any order that would see the children come into contact with the father – Orders for no time with the mother.
FAMILY LAW – CHILDREN – Name of child – Where the children are 7 and 4 years old – Where the father seeks an order to hyphenate the children’s last name – Consideration of a change in the children’s surname – Where the younger child’s last name has not been registered and a birth certificate has not been issued – Where the mother cannot say the father’s last name or accept the father as being the father – Where the Court considers this unacceptable – Orders made for a hyphenated last name – Orders made for the younger child’s name to be registered.
Legislation: Evidence Act 1995 (Cth) ss 135, 136, 140
Family Law Act 1975 (Cth) Div 12A, ss 60CA, 60B, 60CC, 61DA, 69ZT, 69ZN, 69ZX
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.18
Family Law Rules 2004 r 15.13
Cases cited: Baglio & Baglio [2013] FamCA 105
Cadriel & Gabbey (No 4) [2023] FedCFamC1F 235
Chapman & Palmer (1978) FLC 90-510
Harridge & Harridge [2010] FamCA 445
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
Maluka & Maluka (2007) FLC 93-464
N & S & the Separate Representative (1996) FLC 92-655
Vasser & Taylor-Black (2007) FLC 93-329
Division: Division 1 First Instance Number of paragraphs: 524 Date of last submission/s: 30 January 2023 Date of hearing: 19, 23 September & 4, 5, 6, 7, 31 October & 1, 2, 3, 4, 9, 10 November 2022 & 30 January 2023 & 3 February 2023 & 15 March 2023 Place: Heard in Adelaide, delivered in Sydney Counsel for the Applicant: Ms Ross Solicitor for the Applicant: Southern Vales Legal Counsel for the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Olsson Solicitor for the Independent Children’s Lawyer: Silkwoods ORDERS
ADC 4072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CADRIEL
Applicant
AND: MS GABBEY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.Mr Cadriel (“the father”) have sole parental responsibility for X born 2016 and Y born 2019 (collectively “the children”).
2.Ms Gabbey (“the mother”) forthwith deliver up the children to the father at the Court Children’s Services (“CCS”) in the Adelaide Registry of the Federal Circuit and Family Court of Australia (Division 1) by 2.00 pm on 4 December 2023 and failing compliance with this order, a Recovery Order be issued pursuant to s 67Q of the Family Law Act 1975 (Cth).
3.Following the delivery up of the children, the mother be escorted by court security to a secure room forthwith and remain there in the presence of security until advised that the father and the children have left the Court premises.
4.Within 24 hours of the date of this order, the mother deliver up to the father, at an address nominated by him, the children’s clothing including school, sport and extracurricular activity uniforms, their personal belongings and toys.
5.The children live with the father.
6.The children spend no time with the mother.
7.The father have leave to apply to the Registrar of the South Australian Registry of Births, Deaths and Marriages to amend and/or register the birth certificates of the children so that:
(a)The name ‘X Gabbey’ be changed and registered as ‘X Gabbey-Cadriel’; and
(b)The birth of ‘Y Gabbey’ born 2019 be registered as ‘Y Gabbey-Cadriel’.
8.The order for the appointment of the Independent Children’s Lawyer be discharged.
9.The mother be restrained and an injunction granted restraining her from:
(a)Communicating with the children directly;
(b)Attending at or being within 100 metres of any school, preschool, out of school hours care and/or school or extracurricular activity attended by the children;
(c)Communicating with any school, preschool or out of school hours care attended by the children; and
(d)Communicating with the children’s medical and allied health professionals.
10.The mother be at liberty to provide cards, letters and gifts to the children to coincide with their birthdays, Christmas, Easter or other special occasions providing that the frequency of cards, letters and gifts does not exceed more than one occasion in each calendar month.
11.The father will authorise the children’s school to provide the mother with copies of any school reports, reports on behavioural issues, school circulars and other information in respect of school activities.
12.The father will advise the mother as soon as practicable of any significant medical issues concerning the children including details of any treating practitioner or allied health professional.
13.The parties be restrained and injunction granted restraining each of them from removing the children from the Commonwealth of Australia without an order of the Court and that the children’s names, both now and when amended, be placed on the Airport Watch List until Y is 12 years of age.
14.The father is at liberty to provide a copy of this judgment and the orders made to the children’s school, treating health or allied health professionals, Department for Child Protection and other State and Commonwealth agencies.
15.Should the mother not comply with the order for delivery up of the children to the care of the father on or before 2.00 pm on 4 December 2023, pursuant to s 67Q of the Family Law Act 1975 (Cth), a Recovery Order do urgently be issued directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover X born 2016 and Y born 2019 and to deliver the children to the father at such place as the father and the person effecting such recovery agree to be appropriate.
16.Failure by the mother to comply with the order for delivery up of the children may result in a Warrant to issue for the arrest of the mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
BACKGROUND AND INTRODUCTION
Ms Gabbey (“the mother”) was born in 1978 and is 45 years old. Mr Cadriel (“the father”) was born in 1980 and is 43 years old.
The parties cannot agree the future parenting arrangements for X born 2016, aged 7 and Y, born 2019, aged 4 (collectively “the children”).
For reasons set out below, the parties have been unable to agree a middle or last name for Y and as such, her name and her birth has not been registered with Births, Deaths and Marriages.
The mother was born in Australia. The father was born in Country G where he resided until he relocated to Australia in 2018.
The mother has two children from a previous relationship, D and E who are aged 17 and 11 years old, respectively. D lives with her father and spends time with the mother subject to her wishes. E lives with the mother and spends significant time with his father.
The parties met online in 2015 via a dating website. The mother travelled to Country G with her brother, Mr DD, to meet the father in 2015 and during this trip, the parties became engaged and the father’s family hosted an engagement party. The mother alleges that at the conclusion of the engagement party, the father went into the mother’s bedroom and sexually assaulted her. A few days later, the mother’s brother left Country G and the mother remained with the father for a further two weeks.
During 2015, the parties remained in regular communication via telephone and they set a wedding date for later that year. In 2015, the mother travelled to Country G with her daughter, D. The mother’s parents and her younger brother, Mr EE, also travelled over and joined the parties in City SS for their wedding.
The parties were married in City SS in 2015 and later travelled to City TT for their honeymoon. The parties, the maternal grandmother and D travelled from Region UU to City SS and the mother alleges that on one evening, the father sexually assaulted her.
The father deposes that the parties physically slept with each other and that they were intimate however, he denied that he sexually assaulted the mother or that the parties engaged in any kind of sexual intercourse.
The mother returned to Australia in 2015. Later that month, she informed the father that she was pregnant and in 2016, X was born. The father asserts that upon being told the mother was pregnant, he commenced the application process for a spousal visa to enable him to travel to Australia and live with the mother and X.
In early 2016, the parties ceased communicating until about mid-2016. The mother alleges that the father demanded that she fund the cost of his spousal visa and she considered the relationship had ended. The father denies the allegations but concedes that communication ceased until mid-2016.
The parties recommenced communication in mid-2016 and in 2016, X was born in Australia.
Between mid-2016 and early 2018 the parties remained in communication, the father provided the mother with money each month and the mother sent photographs of X to the father. The mother asserts that during this period, the father was abusive on occasions, that she ceased communication with him and considered that the relationship had ended. The father denies the allegations that he was abusive or that he financially pressured the mother into paying for his visa.
Ultimately, with the support of the mother, the father obtained a spousal visa and in 2018, the father arrived in Australia and stayed with the mother and X for three weeks. The mother asserts that the parties were separated however the father considers that the parties were in a relationship.
The father stayed in Australia until the end of the month. The mother and X attended at the airport to pick up the father and they returned to the mother’s house, where it was agreed the father would stay during his visit.
The mother alleges that in 2018, upon arriving to her home from the airport, the father sexually assaulted her and presented her with a “pregnancy dress” stating “you will be wearing this soon as you will be pregnant”. For reasons set out below, the “pregnancy dress” became a feature of the proceedings and the mother brought the “pregnancy dress” into Court during the trial and proceeded to put it over the top of her clothing. The mother considered the “pregnancy dress” to be evidence as to the father’s intention to sexually assault her upon his arrival in Australia.
The father returned to Australia later in 2018, exited for a period in late 2018 and on his return, he remained living with the mother and X until the parties’ separation on a final basis on 3 April 2019.
DOCUMENTS RELIED UPON BY THE PARTIES
The father relies upon the following documents:-
(1)Fourth Amended Initiating Application filed 10 February 2022.
(2)Affidavit of father filed 3 June 2022 (as to annexure MC “11”).
(3)Affidavit of Ms VV filed 3 June 2022.
(4)Trial affidavit of father filed 11 February 2022.
(5)Case Outline document dated 23 May 2022.
(6)Updated Case Outline/ Written Summary of Argument document dated 16 September 2022.
The mother relies upon the following documents:-
(1)Response to Application for Final Orders filed 11 February 2020.
(2)Trial affidavit of mother filed 11 May 2022.
(3)Affidavit of Dr WW filed 16 March 2022.
(4)Affidavit of Dr WW filed 23 September 2022.
(5)Affidavit of Dr K filed 16 March 2022.
(6)Affidavit of Dr K filed 23 September 2022.
(7)Affidavit of Ms XX (Autism assessment for X) filed 22 May 2022.
(8)Report of Ms V (Autism assessment for Y) Exhibit “29”.
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:-
(1)Family Assessment Report of Dr P dated 24 July 2021.
(2)Reports of Ms B dated September 2020 ("the first report"), November 2020 ("the second report") and May 2021 ("the third report").
(3)Report of Ms YY and Ms ZZ of the Department for Child Protection ("DCP") dated 10 August 2021.
(4)Written Summary of Argument dated 18 September 2022.
CHRONOLOGY
1978 Date of birth of mother in Australia. 1980 Date of birth of father in Country G. 2005 – 2014 Mother commences a relationship with Mr F. 2006 Date of birth of D. 2012 Date of birth of E. 2014 The mother and Mr F separate. 2015 The parties meet on a dating website. 2015 Mother travels to City SS, Country G with her brother. The parties are engaged soon after the mother’s arrival. The mother remains in Country G for two weeks before returning to Australia. 2015 The mother travels to Country G with D and her mother. 2015 The parties marry in City SS, Country G.
The parties then honeymoon in City TT, Country G.2015 The mother returns to Australia. 2015 Mother advises the father that she is pregnant. 2016 Birth of X. Early 2018 Father travels to Australia and spends approximately 22 days with the mother and X. Parties reside at the mother’s home in Suburb J. Mid-2018 – late 2018 The father returns to Australia and resides with the mother initially at her Suburb J home and following sale of the Suburb J property, then into the mother’s property at Suburb AB. Late 2018 Father leaves Australia to finalise, and subsequently receive, a subclass 309 (Partner) Provisional Visa. Late 2018 Father returns to Australia and resides with the mother. 3 April 2019 Parties separate following an irreconcilable breakdown of their relationship 3 April 2019 – mid-2019 Parties reach agreement that the father will spend time with X each Thursday and Saturday. Mid-2019 Last day that the father spends time with X (until time ordered by the Court in June 2020). 2019 Birth of Y. 20 September 2019 Father files an Initiating Application and commences proceedings. Late 2019 Mother alleges that she was sexually assaulted by the father in 2018. 11 February 2020 Mother files a Response to Initiating Application. Mid-2020 Mother makes report made to SAPOL alleging that X was sexually assaulted by the father. 19 June 2020 Interlocutory judgment delivered by Judge Kari (as she then was) ordering that the father spend supervised time with the children initially at C Children’s Contact Centre and then supervised by Ms B. 19 June 2020 – June 2021 The father spends supervised time observed by Ms B. 24 July 2021 Family Assessment Report prepared by Dr P. 10 August 2021 Report of Ms YY and Ms ZZ of the DCP. 2 December 2021 Orders made setting the matter down for trial on 17 March 2022 with a further order suspending paragraph 2 of orders made 19 June 2020. 17 March 2022 Trial is supposed to commence. Upon mother’s application for an adjournment, the trial is relisted to commence on 23 May 2022. 23 May 2022 The matter is re-listed for trial to commence. Mother contracted Covid-19 and mother’s solicitor and counsel withdrew. 7 July 2022 Order made for children to spend time with the father pursuant to s 65L of the Act. 10 August 2022 Section 65L Report is received advising that the mother did not attend the Court Child Expert on 8 & 10 August 2022. ORDERS SOUGHT
The father initially sought orders that the parties have equal shared parental responsibility for the children and after a period of the children living with him for six months without spending time with the mother, then the children spend time with each of the parties on a week about basis.
In the alternative, the father sought that there be a gradual increase of the children spending time with him such that when X is in year 6, the children would spend equal time with the parties.
At the commencement of the final hearing, the orders sought by the father were amended such that he now seeks sole parental responsibility for the children, that they live with him and spend no time with the mother.
A further aspect of the father’s orders sought is to seek a change in the current registration of the children’s birth certificates with the Registrar of Births, Deaths and Marriages. The father seeks that the name ‘X Gabbey’ be changed and registered as ‘X Gabbey-Cadriel’ and the name of ‘Y Gabbey’ be registered as ‘Y Gabbey-Cadriel’.
The orders sought by the mother are that she should have sole parental responsibility for the children, that they live with her and spend no time with the father. It is an appropriate summary of the mother’s position that she does not consider the children should have any relationship with the father whatsoever nor should there be any information provided to the father as to the care, welfare and development of the children.
Moreover, the mother was resolute in her determination that she would not comply with any orders that provided for the children to spend time or communicate with the father or that would enable a meaningful relationship to be fostered.
The orders sought by the ICL support the father’s proposal. The ICL considered that the best interests of the children would be served by a gradual increase in time spending by the father however, the ICL acknowledged that the mother’s strident opposition to the children having any relationship with their father was such that they now support the more dramatic position of the final orders sought by the father namely, that the children live with him and spend no time with the mother.
THE MOTHER’S REPRESENTATION
The history of the mother’s representation is as follows:-
(1)Ms GG – 14 November 2019 to 7 February 2020;
(2)HH Lawyers – 11 February 2020 to 30 June 2020;
(3)The mother representing herself – 20 July 2020 to 21 September 2021;
(4)Ms JJ of KK Lawyers – 22 September 2021 to 12 October 2021;
(5)The mother representing herself – 13 October 2021 to 2 March 2022;
(6)LL Lawyers – 3 March 2020 to 17 March 2022;
(7)MM Lawyers – 18 March 2022 to 12 May 2022;
(8)The mother representing herself – 3 June 2022 to 5 July 2022;
(9)Ms NN of OO Lawyers – 6 July 2022 to 19 September 2022;
(10)Mr T of PP Lawyers – 16 September 2022 to 23 October 2022;
(11)Ms QQ of RR Lawyers– 24 October 2022 to 6 November 2022; and
(12)The mother representing herself – 7 November 2022 to present.
A feature of the mother’s presentation was to assert that her legal representation was either unprofessional and/or incompetent.
The conduct of the proceedings reflects that the father was the subject of cross-examination by the mother’s solicitor, Mr T, which extended over a period of two days. The proceedings were the subject of an order made pursuant to s 102NA of the Family Law Act1975 (Cth) (“the Act”). The mother was prevented from the direct cross-examination of the father.
As discussed in Cadriel & Gabbey (No 4) [2023] FedCFamC1F 235 at [27], the mother’s concerns were set out. Further, I formed the view that the mother’s history of representation, and her clearly enunciated assertion that for different reasons each of her various legal representatives were incompetent, that she may have difficulty in obtaining representation.
I considered that the mother had every opportunity to assess the case, to consider the separate proposals of the parties and to assess what evidence would be required.
Given that the proceedings were assisted by the active involvement of an ICL, I am satisfied that notwithstanding that the mother was a self-represented litigant for the balance of the proceedings, all that could have been said on her behalf was before the Court.
TREATMENT OF EVIDENCE
On multiple occasions prior to the commencement of the trial, the Court highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against the application of the provisions of s 69ZT of the Act. I considered that the principles pursuant to s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to admissibility of evidence particularly if it was contentious.
The nature of the proceedings is relevant when determining how the Court should apply s 69ZT(3) of the Act.
The High Court in M & M (1988) 166 CLR 69 (“M & M”) said at 77,081 as follows:-
22.His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
In considering the exercise of the Court’s discretion, the Full Court in Maluka & Maluka (2007) FLC 93-464 gave consideration to the circumstances of the application of s 69ZT of the Act in a case that involved allegations of family violence and sexual abuse. The Full Court considered the extent of judicial discretion in the application of the section and held that:-
121.Before us, it was submitted that where the subject matter of the hearing involved consideration of the determination of a child’s relationship with a parent, a trial judge might apply Section 69ZT (3) of the Act to the entire hearing. Whilst it was acknowledged the subsection is not expressed in mandatory terms, any other outcome was said to be erroneous.
122.The Full Court in Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 adopt a common approach to s 69ZT. Namely, that the decision to apply sub-section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein.
123.We do not accept the father’s argument that the effect of s 69ZT is to establish a rule of general application but in cases where a court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the rules of evidence excluded by s 69ZT(1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victims why, notwithstanding that an order is sought terminating the child’s relationship with a parent, a judge might determine the risk issue by reference to s 69ZT (1) and (2) of the Act.
It is a matter of discretion for the Court as to the application of the rules of evidence where the circumstances are exceptional namely, where one party seeks a positive finding that a sexual or physical assault occurred, that a party poses an unacceptable risk of harm or where the proposed orders do not allow for any relationship between a parent and the children.
The mother makes very serious and targeted allegations of sexual assault in respect of the father. She alleges that father is the perpetrator of family violence, committed sexual assault on her and presents as an unacceptable risk of harm to the children because of him having engaged in either sexual abuse of the children or because of the likely risks of sexual assault occurring should the children spend any time him.
The proposed orders as sought by the mother would not allow for any relationship between the children and the father nor would it allow for any relationship to ever develop.
The mother seeks that the Court make a finding in respect of the sexual assault allegations, that the father is an unacceptable risk of harm and he should spend no time with the children.
I consider that the circumstances are exceptional and the rules of evidence should apply to the allegations of the sexual assaults of the mother, grooming of the children, and the sexual abuse of X.
I do not consider that s 69ZN and s 69ZT of the Act removes the ability or the desirability to consider objections to affidavit evidence particularly where it would be inadmissible if the provisions of the Evidence Act were applied, and its utility limited if rendered inadmissible by the application of the provisions of s 69ZT of the Act.
Section 69ZX of the Act sets out the Court’s general duties and power relating to evidence and in order to give effect to the principles in s 69ZN of the Act, I have the ability to make directions as to how the matter is to proceed, presentation of evidence, the extent of the examination in chief, cross examination and re-examination and the manner in which the evidence is to be given generally, whether a proposed witness should be heard at all and the extent to which I should receive transcript evidence in the proceedings.
Rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides as follows:-
(1)Subject to section 69ZT of the Family Law Act, the court may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a)is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
The rule differs from r 15.13 of the Family Law Rules (2004) in that r 8.18 of the Rules provides for the ability to strike material out of an affidavit subject to s 69ZT of the Act. Whilst I do not consider that the current rule is without application if the provisions of s 69ZT are applied, the section does not exclude a consideration of s 135 and s 136 of the Evidence Act, or other sections which apply to evidence of alleged serious sexual assault and abuse.
Objection was taken to significant portions of the mother’s trial affidavit filed 11 May 2022. The objections that were upheld represent a significant proportion of the entirety of the mother’s trial affidavit. The objectionable material was struck out on the basis that it was unfairly prejudicial to a party and of limited or no probative value.
As a result of the objectionable material, it was raised whether an application for the Court to grant the mother leave to file an addendum affidavit would be forthcoming in circumstances where the mother’s affidavit of 11 May 2022 raises significant and serious allegations in respect of the father.
THE EVIDENCE
The father
The father relied upon his trial affidavit filed 11 February 2022. His evidence was supplemented by an exhibit book to his trial affidavit. The father’s counsel referred to an interim Intervention Order naming the mother as the applicant and protected person with the father as the defendant. The interim Intervention Order was made in mid-2020. It is not known whether the Intervention Order is still in force however, reference was made to the remarks of the Magistrate who adjourned the hearing on the basis that he considered that the parties would seek personal protection orders in this Court.
Counsel submitted that the interim Intervention Order is still current. The mother alleges in paragraph 217 of her trial affidavit that on an occasion that she visited City AC and stayed in the apartment of the father’s brother, she woke in the night to the applicant sexually assaulting her in her sleep.
The mother considers that even recalling the event was traumatic and refers to the father as a “sex offender”.
The father denied that he had ever sexually assaulted the mother. The father’s evidence, together with objection by the mother’s counsel, Mr T, and interjection by the mother, is as follows:[1]
[1] Transcript 4 October 2022, p.70, line 20 to p.70, line 42.
[Ms Ross]:That in [the mother’s] trial affidavit, in paragraph 217, she alleges that you [sexually assaulted] her in her sleep in [City AC] […]. What do you say about that?
[The father]: There was – I just like to say there was intimate relationship – intimacy that I’ve touched her without her consent.
[Mr T]:Objection, your Honour.
[His Honour]: Yes.
[The mother]: Objection, interjection.
[Mr T]:That’s a general statement. It doesn’t address the question put and that is about that night.
[His Honour]: Yes.
[The father]: Yes.
[His Honour]: There was a specific question put to you?
[The father]: Yes. That was not without any consent.
[The mother]: Objection – I was asleep. Can’t give consent when you’re asleep. You’re a rapist.
The more direct proposition was put to the father by his counsel as follows:[2]
[Ms Ross]:[Mr Cadriel], [Ms Gabbey] goes into some detail in this paragraph, saying that you [sexually assaulted] her and that you had your arm embedded up her pyjamas, […], and you were forcefully [sexually assaulting] her. She says she kept asking you to stop but …
[His Honour]: Look, just stop there for the moment. Let’s get – what’s your response to that assertion, [Mr Cadriel]?
[The father]: Your Honour, I deny what she says in that manner, but we did have intimacy, but she is exaggerating everything. That’s what I say, your Honour.
[2] Transcript 4 October 2022 p.72, line 18 to p.72, line 27.
The mother’s counsel objected to the evidence on the basis that the mother should be given an opportunity to expand upon her evidence. I had indicated that as presently presented, the allegation lacked particularity and detail however, the mother’s counsel was satisfied that there would be an opportunity for the mother to give further evidence about the allegation of sexual assault. The father’s evidence was that at no stage was there a sexual relationship between the parties without the mother’s consent. It was the father’s contention that sexual intercourse did not occur until after the parties married but he conceded that there was sexual touching and interplay between the parties.
The mother also alleges that in preparation for the wedding in 2015, the mother, the father, the mother’s daughter, D and the maternal grandmother spent time together on a trip from Region UU to City SS by bus. The allegation is that in an overnight sleeper booth the father continuously sexually assaulted her thereby preventing her from sleeping the entire night with the sexual assault occurring in the near presence of her daughter and mother. The father admitted that the parties had engaged in sexual relations but that it was consensual.
At paragraph 347 of the mother’s trial affidavit, she alleges that the father sexually assaulted her in 2018 shortly after he had arrived at her home from Country G.
The father acknowledged that he arrived in Australia in 2018 and that he stayed for 20 days.
The father’s evidence is that the mother and X met the father at the airport and whilst he concedes that the parties engaged in sexual intercourse on that day when they arrived at the mother’s home, it was consensual and underpinned by a conversation that the parties had in the car whilst travelling home. The alleged incident has some relevance to a further aspect of the proceedings which involves a dress that the mother identifies as the “rape dress” and on one occasion, in Court, she wore the dress over her clothing.
The father’s evidence is that when the parties arrived at the mother’s home, she identified her bedroom and after the father had showered, the parties engaged in sexual intercourse.
An area of contention arises in respect of the father’s evidence that the mother requested that he bring some Country G textiles to Australia. Part of the various items of clothing was a dress that the mother had selected via a video call whilst the father was in a fabric and dress shop.
The mother did not agree with the father’s evidence as to the contention that she had selected the dress and, by further interjection during the course of the father’s evidence, the mother told the Court that the father was lying and that the item was a “big fat pregnancy dress”.[3]
[3] Transcript 4 October 2022, p. 80 line 1.
It is a significant part of the mother’s case that the father may have committed either a fraud or, at the very least, a significant misrepresentation that he is legally entitled to use the surname “Cadriel”. There is some uncertainty as to what it is that the mother considers the father has done however, the issue was the subject of detailed cross-examination that the father was previously known by his other names but that the father sought to add “Cadriel” as his surname, being his father’s first name. The father’s evidence is that all that was required was to prepare an affidavit in support of the application for a change of name upon submission to the relevant department for approval.
It is uncontroversial that the father’s surname of “Cadriel” appears on his passport and other relevant documents.
The basis for the questions being put to the father concerning his surname was the subject of challenge by me as highlighted in the following exchange:[4]
[4] Transcript 4 October 2022, p.88 line 17 to p.88 line 39.
[Mr T]:The evidence, as I understand it today, working through [Mr Cadriel’s] process of applying, my submission is that does not marry against the …
[His Honour]: But hang on a moment. So for what you want to put, to be correct, I have to accept an understanding of the process because you’re telling me in some way this document is part of the process and if [Mr Cadriel’s] name doesn’t appear in this document or in this – in these gazettes, then that means he hasn’t changed his name as far as [Country G] law is concerned. Is that what – is that …
[Mr T]:Yes, your Honour.
[His Honour]: But how do I know that’s right?
[Mr T]:Well I rely on the evidence…
[His Honour]: You’re – you’re telling me but where’s – where’s the – where is the – where is there something from a practitioner in [Country G] to be able to assist me as to what is the law in [Country G] in relation to the change of names? I mean, this is not [Mr Cadriel] asserting something. This is your client asserting that [Mr Cadriel] is not entitled to use that surname because apparently he hasn’t complied with [Country G] law. How do I know how this fits in with [Country G] law? It might have something to do with [Country G] law. It might have nothing to do with [Country G] law.
Exhibit “14” is a photocopy of the relevant pages from the father’s passport issued by Country G for the period 2009 to 2019. The father’s name is recorded as “Mr Cadriel”.
Exhibits “7”, “8” and “9” relate to applications for a Visitor Short Stay Visa submitted in 2018 and a document being the “Sponsorship for a Partner to migrate to Australia” document submitted 2017 with the mother as the sponsor.
The content of the documents will be the subject of further discussion however, it is apparent that the mother confirmed the marriage of the parties in 2017 to the father and that she was aware of his surname in his passport being “Cadriel” and further, that under the heading of “Other Names Spellings”, the following appears:[5]
Family Name: no surname
Given Names: […]
Reason for name change: Other
Give details: [Mr Cadriel] was born with no surname. His family don’t carry one. He used school records for identification to obtain his [Country G] passport. The school had him recorded as [his given names], son of [Cadriel]. So he ended up with the surname [Cadriel] in his passport.
[5] Exhibit 8.
The evidence that arises from the Immigration and Visa documents and the father’s evidence under cross-examination does not establish on the balance of probabilities that the father is either not entitled to use the name “Cadriel” or that he has committed a fraud or significant misrepresentation on the Commonwealth.
I consider that any issue that might arise in respect of uncertainty as to the father’s surname, if any, is of little relevance to the parenting orders that the father seeks although I accept some issue arises in relation to the father’s application to change the children’s surname from “Gabbey” to “Gabbey-Cadriel”.
At 10.35 am on 5 October 2022 (“day 4 of trial”), the mother’s counsel advised the Court that his instructions had been terminated.
There then followed a discussion as to where that would leave the matter in circumstances where counsel was funded pursuant to a s 102NA order. Consideration was given to how the matter would proceed if the mother’s counsel was released. I indicated that I considered every possible opportunity had been given to obtain legal representation and upon consideration of s 101(2) of the Act and s 41 of the Evidence Act, the simple termination of counsel’s instructions would not automatically result in an adjournment of the proceedings but rather would be an effective end to the father’s cross examination given that the mother would not be able to cross examine him.
The discussion with counsel was the subject of frequent interruption by the mother indicating that she did not wish to terminate counsel’s instructions but rather that she considered counsel to be ill prepared to complete the cross examination, that he did not have “required material” and that there was a raft of other documents that counsel needed to consider and presumably put to the father in cross examination.
The mother’s position was summarised in the following interjection:[6]
[Mother]:Your Honour, he’s not prepared. He’s not prepared. He’s not prepared. Like, I’m sorry, your Honour, the documents that he has got to cross-examine are like this. I have a car load and I haven’t been able to put them before the court as exhibits or any other fashion, because no solicitor that has acted on my behalf has managed to go through everything and finalise an admissible trial affidavit with the documentation…
[6] Transcript 5 October 2022, p.117 line 41 to p.117 to line 46.
The mother continued her interjection by indicating that whilst she did not wish counsel’s instructions to be terminated and counsel to withdraw, he was nonetheless, in her opinion, unprepared.
I was not satisfied that the mother’s concerns in respect of the preparedness and/or competency of her counsel were made out and whilst the suggestion of an adjournment was not made by counsel, but rather by reason of the mother’s interjection, I did not adjourn the proceedings.
The father was challenged as to his purported representation to the Department of Immigration and Border Protection (“the Department”) that the relationship between the parties was “good, happy, committed relationship”.[7]
[7] Transcript 5 October 2022, p.122 line 10 to p.122 line 11.
Counsel was challenged as to the relevance of the topic of what may have been represented to the Department in order for the father the secure the necessary visa for entry and in the mother’s sponsorship application.
Counsel was asked whether a submission would be made that some form of visa fraud was committed by the parties which, by necessary implication, might suggest some uncertainty as to the father’s current visa status and his ability to remain in Australia. Counsel confirmed, despite the mother’s objections to the contrary, that there would not be a challenge to the representations made by each of the parties.
It is clear from the interjections by the mother, that she places significant weight on her belief that the father’s visa can, or could be, revoked.
The mother denies, by interjection, that the parties ever had a relationship. Part of the mother’s case involves an assertion that the father was not genuine in respect of the relationship with the mother but rather that he was looking to gain some financial advantage. The father was asked to consider communication between the parties on 30 January 2016 which spoke of loans that had been incurred by the father for his visa.
The father explained that the reason for conveying the information to the mother was because he had originally instructed a migration agent to assist with a visa however, the agent acted fraudulently, retaining the father’s money but not processing a visa application.
Whilst difficult to discern the relevance of the topic, counsel submitted that there had been a misrepresentation by the father to the mother of his financial position and personal circumstances. The purported misrepresentation is now considered by the mother to have been part of a strategy to make him appear as a desirable companion and partner whereas the ulterior motive was to obtain money from the mother and gain visa status leading to permanent residency.
The following exchange highlights the relevance of the issue to the mother:[8]
[8] Transcript 5 October 2022, p.130 line 19 to p.130 line 35.
[His Honour]: At the moment, I think it’s only reasonable that I let you know I’m struggling with the relevance of all of this.
[Mother]:This is how [X] came to be. He’s trying to getting money out of me to get the debt back. He thought making me pregnant would get money out of my family to pay that debt back, because he didn’t think pregnant ladies could be alone. That’s [Country G] mentality.
[His Honour]: Thank you, [Mr T]. Next question, please.
[Mother]: That’s how we’ve got [X].
[His Honour]: Next question, please, [Mr T].
[Mr Jelbert]: In the – is it, [Mr Cadriel], is it fair to say as ‑ ‑ ‑
[Mother]: I’m a cash cow.
It was put to the father that he understood the mother did not want a relationship with him but that she wanted the father in Australia to assist with X’s care. The father denied that he had any understanding of that proposition or that the mother did or said anything that would support such a contention.
Again, the mother interjected when counsel conceded that the mother considered it important that the father meet X and assist her in the care of X. The mother’s interjection was to the effect that the parties were separated in 2018 and she only permitted the father to come to Australia so that X could see who his father was.
The father acknowledged that upon the mother travelling to Country G, she stayed in a separate bedroom in his uncle’s house with the father remaining in his own house situate at the back of the uncle’s residence.
The father also agreed that he and the mother had discussed whether there would be intimate relations between them. The father’s recollection was that the parties did not intend to engage in intimate relations.
The father’s attention was directed to the night of the engagement party in 2015. The mother alleges that the father had sexually assaulted her.
The father agreed that after the engagement celebrations, and later in the evening, he went to the mother’s room. The mother was wearing an engagement dress.
The father agreed that he told the mother that given they were now engaged they had a right to be intimate with each other and that until the formal engagement had taken place, he would not have wanted any physical intimacy to occur.
The interaction between the parties commenced with hugging and kissing but did not develop to intimate touching. The father rejected any contention that the mother was other than a willing participant.
There was some apparent misunderstanding on the part of counsel and the father as to what conduct might be encompassed by the use of the word “intimate”. It was put to the father that sexual relations would involve sexual intercourse and genital touching. The father corrected counsel and denied that he had engaged in sexual touching but that to him intimacy was used to describe the parties hugging and kissing each other.
The mother’s interjection made it clear that she considered the father to be lying and that counsel should put again her allegation that she was the subject of non-consensual sexual assault.
The mother alleges that on a trip between Region UU and City SS, the father sexually assaulted her to the extent that the father would not stop his sexual assault and the mother was prevented from sleeping for the entire night.
The mother was also accompanied on the trip by her mother and her daughter, D. The topic was prefaced by questions as to who paid for the tickets. For reasons that are not relevant, it appears that the father was unable to do so, and the mother bought the tickets for the travelling group.
Counsel was challenged as to the relevance of the ticket payment and he submitted that if the father’s recollection was poor as to the travel arrangements, then I should be equally as cautious in accepting the father’s denial of the mother’s allegation of sexual assault.
Counsel conceded that there was no uncertainty as to the ticket payment given that the father admitted he did not have the money to pay for the tickets and accepted that the mother did.
The father agreed that he shared a double berth with the mother on the basis that they were travelling as a couple. He stated that if the mother had not wanted to share a berth with him then a different arrangement would have been made. Whilst the father conceded that the parties had kissed and cuddled, he denied that there was any sexual intimacy involving touching and in particular, genital penetration.
The father denied that he had in any way engaged in sexual assault of the mother. The father’s evidence was not that there may or may not have been consent but rather there was no conduct that required consent.
The focus of counsel then turned to a trip taken by the parties to City TT following their marriage. The father accepted that the mother had paid for the flights but that he had also contributed to some of the trip expenses.
For reasons that will be later discussed, the father’s contention is that the mother was keen to go to City TT because of her interest in clothes and textiles which feature prominently in that area of Country G.
The father was questioned as to whether following marriage the parties had engaged in sexual intercourse.
Whilst it was not alleged either by the mother, or inherent in the questions put to the father that he had sexually assaulted the mother, the father was asked whether he had an expectation that following marriage the parties would engage in sexual intercourse. The father conceded that he had that expectation. He did not link it to any cultural aspect.
The father was uncertain as to what it was that counsel was asking and after objection by the father’s counsel, and some concern expressed by me as to the relevance of the topic, it appears that the cross-examination strategy was that if the father had an expectation that there would be sexual intercourse following marriage, then if sexual relations occurred prior to marriage, it was at least possible that it occurred without the mother’s consent.
When challenged, the father considered that the parties had engaged in sexual intercourse every day of their City TT holiday and that frequently the mother was the instigator of sexual relations.
There was nothing about the father’s evidence of parties’ conduct on their honeymoon that would suggest or support a contention that the father was more likely to have sexually assaulted the mother without her consent.
The father was asked to consider his interaction with the mother following his arrival in Australia. The mother apparently attended at the airport with X to meet the father on his arrival. The father remembers that he hugged the mother when he first greeted her and then held her hand in the car.
The father denied that he tried to kiss the mother in the car and that she pulled away from him. He accepts that the parties did not kiss in the car but rather at the airport upon his arrival.
The father also acknowledged that when they arrived at the mother’s home they engaged in sexual intercourse.
The father had brought a suitcase of clothing from Country G, as requested by the mother. The father thinks that the mother may have put on one of the dresses but he was not sure.
For reasons that I indicated were not clear to me, the father was questioned as to the conduct and actions of the parties leading up to intercourse. In the course of questioning, the mother interjected and advised the Court that she considered the parties were separated and that she had been sexually assaulted by the father on this first occasion of his arrival in her home.
Ultimately, I was not assisted by the evidence. Counsel challenged the father’s assertion that the mother was a willing and consenting participant in the act or acts of sexual intercourse.
The father was questioned as to his history of employment dating back to a period of six months when he was in Australia between mid-and late 2017. The father acknowledged that he was not able to work until he had received an appropriate visa. The mother interjected that the father was once again lying.
The father did however state that he worked as a volunteer for a charitable organisation.
Once again, it was difficult to understand the relevance of the father’s work history or opportunity to do so in 2017.
When challenged, counsel explained that it supported the mother’s contention that the parties were not in a relationship, that the mother was not pursuing one and was not actively involved in a relationship even though the parties ultimately married. Whilst possibly an incorrect extrapolation, it seems that the mother’s case is that she was duped into the marriage because the father wanted to prey upon her financially and also to obtain a visa to remain in Australia and ultimately transition to citizenship.
The issue was crystalised in the following exchange:[9]
[9] Transcript 5 October 2022, p.188 line 37 to p.189 line 17.
[Mr T]:We’re also partly talking about the father’s commitment to be child‑focused by earning, providing and caring for [the children] over and above his own interests.
[His Honour]: [Mr T], is that really what we’re talking about in this case? Are we not – unless I’ve missed something, are we not talking about your client’s clear view that this man presents as an unacceptable risk to these children directly because she either considers he has or has the very real and probable intention of sexually abusing them and assaulting them, firstly; secondly, because of what she says is the family violence as between the parties; and, thirdly, because she says that her own mental state now, whether it be as a result of the relationship between the parties or in spite of the relationship, is such that now if the court were to make an order in favour of the father, her ability to parent the children would be significantly compromised to their detriment?
Now, that’s – if I have missed an aspect – a significant aspect of your client’s proposal, tell me, but I don’t think I have. Is this really nuanced? Are we really – is this really – is there sort of a sub or an alternative position which is that your client doubts this man’s veracity in terms of his assertion that he wants a relationship with his children, that he really doesn’t, it’s just a game or an ---
[Mother]: It’s to maintain a visa.
[His Honour]: An exercise for him, and that really even if he gets the orders he wants, he won’t be able to fulfil those orders, and he really doesn’t have the interest anyway.
[Mother]: Yes. It’s to maintain a visa, your Honour. It’s a visa .....
The following allegation appears in paragraph 100 of the mother’s trial affidavit:
100.In early 2018 I observed [X] was wet and lying back naked on a towel on my couch in the lounge room when I entered the room and was horrified to see the Applicant grasping [X’s] little penis between the Applicant's thumb and forefinger, and the Applicant had the palm of his hand cupped over the top of [X’s] testicles. The Applicant was grasping and gyrating [X’s] genitals from left to right, right to left, left to right, right to left, while simultaneously singing [X] a rhyme, "goochey goochey goo" (repeatedly). [X] was resting his head back on the couch with a contented expression on his face, with his little legs splayed out, and to my horror, appeared to be enjoying the genital stimulation facilitated by the Applicant. I was in shock. When I could get my voice to work, in a panicked state I confronted the Applicant, and he said something about his "culture" and that in his "culture" this "was acceptable" behaviour. A massive argument ensued, in which the Applicant told me his uncles had done the same thing to him, his brothers and his cousins, and that they had found it "funny". Distressed I yelled at the Applicant that molesting a child is not acceptable in any culture and that what he was doing was 'grooming', and that if he did this to [X], then [X] would think it was normal which would leave him open to the predation of others. I told the Applicant "NEVER to do it again".
At paragraph 360 of the mother’s trial affidavit, the mother again states that she observed the father molesting X and whilst she had thought that it had occurred in early 2018, she now recalls that it occurred in mid-2018.
The detail of the purported conduct of the father with X was put to him and was the subject of ready denial. The father’s evidence was that there was no occasion where he had taken X out of the bath coinciding with the mother’s return to the home.
The proposition of the mother being away from the home and then returning was given further consideration by counsel for the parties and it was highlighted that the complete allegation, as contained in paragraph 100 of the mother’s trial affidavit, did not indicate that the mother had been away from the home and it was upon her return that she, in effect, surprised the father mid-act.
The mother’s counsel was not able to characterise the purported actions of the father as observed by the mother. It was not suggested that the alleged conduct of the father amounted to the father masturbating the child but was confined to the father placing his hand on the child’s penis. It is likely that X was aged under 2 years of age.
During the discussion with counsel, the mother interjected by attempting to demonstrate what she alleged were the actions of the father, in grasping and gyrating X's genitals from left to right. In addition, the mother mimicked the rhyme purportedly sung by the father including the words “goochey goochey goo". It is apposite to note that at this point in the father’s evidence, the mother’s propensity to interject was unhelpful and disruptive.
The father denied that he had masturbated X on any occasion but does admit that he had changed X’s nappy. The father specifically denied that he engaged in any conduct with the intent of gaining sexual gratification.
The father categorically denied that there had ever been an occasion when he had changed X’s nappy and the mother entered the room. The father did concede that there were times when he did change X’s nappy, laid him flat on the floor and sang a cultural song to him. He also agreed that he had put his hand over the child’s penis in order to assist in the nappy change. The father also accepted that there had been an occasion when the mother was in the kitchen and the parties discussed their method and manner by which the father changed X’s nappy.
The mother continued to interject and summarised her position by confirming her view that the father’s conduct was abusive and that he was attempting to mask the sexual assault of the child as a nappy change.
The mother considered that the evidence of the father of the method and manner by which he had changed the child’s nappy was a distraction from her allegation that the father’s conduct with X, as observed by her, did not involve changing X’s nappy.
In order to assist counsel, I summarised the state of the evidence as follows:[10]
[His Honour]: And at the moment, all he has got – all I’ve got is that at some stages he changed this child’s nappy, either in the presence of your client and sometimes not in the presence of your client and that’s it. So if there’s more, I need more. I’m just telling you what I make of the evidence to date, [Mr T]. I’m not quite sure why this is hard.
[Mr T]:Well, with some constraints that I have, I’ve challenged the evidence. I’ve attempted to ---
[His Honour]: You haven’t put to him that during the course of his nappy changes, to the extent that there is any particularity, which in and of itself is a problem – but to the extent that you haven’t put to him that he was using the opportunity of a nappy change to interfere with the child, to molest the child, to sexually assault the child, then put that to him. So at the moment, all I’ve got is a nappy change, where he has placed his hand on the child’s genitals.
[Mother]: There was no nappy.
[His Honour]: Well, I can tell you, that doesn’t constitute sexual abuse.
[10] Transcript 5 October 2022, p.204 line 26 to p.204 line 44.
The father was asked whether he had an understanding that X had been diagnosed as being on the autism spectrum. The father acknowledged the diagnosis and when pressed, considered that he was able to control and manage X’s behaviour without difficulty.
The mother’s counsel concluded his cross-examination on 6 October 2022. The mother was not present because of an assertion that she was unwell, but she remained connected to the proceedings by telephone. The mother was able to listen to the proceedings and as became increasingly apparent, continued her frequent interjections which included the following exchange:[11]
[11] Transcript 6 October 2022, p.260 line 20 to p.261 line 20.
[Mother]: He’s lying through his teeth in the court.
[His Honour]: But the position – the position ---
[Mother]: And I’m not in there to talk to [Mr T].
[His Honour]: [Ms Gabbey]. [Ms Gabbey], the position in any other – in any other court hearing would be that a party is not able to interrupt the proceedings, particularly whilst other counsel are cross-examining. Now ---
[Mother]:The ICL is biased. The ICL in this case is biased. She’s always siding with him. She’s untrained in violence. I’ve written her emails saying, “What is your training in violence?”. She has actually reduced rape, child molestation, stalking, my panic – she has reduced that to a parent’s issue.
[His Honour]: Yes.
[Mother]:I’ve written her emails about it. I’ve said, “Excuse me, can you please disclose your training on violence?”.
[His Honour]: Anyway, Ms ---
[Mother]: She has none.
[His Honour]: [Ms Gabbey], Ms Ross has asked me to mute you. I’m not prepared to do that just yet. I don’t think it’s appropriate and I’m respectful of the situation in which you find yourself in but, having said that, remote ---
[Mother]: The court ---
[His Honour]: Remote hearings are now a common feature of proceedings and if they’re done in a way that’s respectful and courteous, then we can get through what is a difficult situation but if you ---
[Mother]: But, your Honour, he has also lied about the bus.
[His Honour]: If you continue to ---
[Mother]: He has lied about the ---
[His Honour]: If you continue to interrupt, I will have to consider muting and I don’t want to do that. So for the moment, I’m going to refuse Ms Ross’ application but you indicating to me in open court that you – what you think of [Mr Cadriel’s] evidence isn’t actually helping.
[Mother]: I can’t ---
[His Honour]: I can’t do anything.
It was at that point in the evidence that the mother did not consider that her counsel had cross‑examined the father to her satisfaction. It was her contention, on interjection, that the father was lying to the Court and that there were documents that would prove the extent of his lies.
Upon resumption of cross-examination by the ICL, the father was asked to consider the extent of his involvement in X’s care during the various periods that the father travelled to Australia before his final move.
The father confirmed that as and from the date of Y’s birth in 2019, he was not provided with any information as to her birth, the date of delivery, nor has he had any contact with her thereafter.
The father acknowledged that an interim Intervention Order had been reissued in mid-2020 and that included the mother and the children as protected persons.
The father confirmed that whilst he spent time with X under the supervision of Ms B, Y did not attend. Although the orders provided for the father to spend time with both children, Y appeared distressed and upset and as such, the father did not press to see her. It was the father’s observation that X was excited to see him and demonstrated conduct consistent with the child being delighted to be in his company.
The father gave evidence as to his current employment and the arrangements that he would put in place in order to care for the children.
The father was asked to expand upon his employment commitments and his proposed arrangements to care for the children.
As at the date of trial, the father had three different employment positions. He worked in a retail business four nights a week from midnight until about 6.30 am. Whilst there were some day shifts, mostly his employment was at night. The father recognised that sleeping during the day would significantly compromise his ability to supervise and care for the children, and if he was successful in his orders sought, he would switch his night shifts to day shifts.
The father contemplated that there was some flexibility in his current employment that he could change from one day to another and take up different shifts but that he would need childcare for three days a week.
The father also recognised that school holidays could be problematic however, he had explored out of school hours care and expected that it could be managed.
In addition to his retail employment, the father works at an institution setting up equipment. As at trial, the father worked three days from 2.30 pm to 5.30 pm. His job involves setting up equipment and other materials. Again, the father considered that the employment had an opportunity for flexibility in days and hours worked. The father intended to take up a permanent position at the institution and if successful, he would then stop his employment at the retail business.
He also had an employment obligation working in a food outlet on Saturday and Sunday from 4.00 pm to 8.00 pm. Obviously, given that the children spend no time with the father at present, his ability to work is unimpeded. If he was successful in either having the primary care of the children or at the very least, significant and substantial care, then he would look to retain his other job (if it was made permanent) and cease employment at the retail business and the food outlet. The further advantage to the university position, if it materialises, is that he would not have to make special arrangements for the children to be cared for during school holidays.
Whilst the father was enthusiastic in his preparedness to look after the children and ensure that their therapeutic and developmental support was continued, an obvious area of uncertainty was the reality of there being no relationship with Y and what might now be an uncertain relationship with X. This was brought about by the actions of the mother in refusing to comply with orders that would have maintained a relationship between the father and at the very least, with X and possibly Y. The father confirmed that after an initial period of two months during which time the children would not see nor communicate with the mother, thereafter he would hope to establish a relationship such that the care of the children could be shared. The father agreed that the relationship between the parties was irreversible and that the mother would continue to believe that he posed a serious risk to the children and that she had been the victim of sexual assault by him.
The father impressed as having a close and highly supportive network within his church community who are able to assist in the care of the children and provide for their material needs.
There was a level of naivety on the part of the father that the parties could navigate their significant differences to enable shared care to be a viable option for the children.
Whilst there was some lack of clarity by the father in respect of the extent of the sexual relationship that existed between the parties prior to their marriage, the father did the best he could to answer questions put to him by the mother’s counsel and the ICL and I consider him to be a reliable witness.
Ms B
By Order made 19 June 2020, Ms B was instructed to supervise contact arrangements between the father and the children.
By reference to Curriculum Vitae, Ms B currently practices privately as a Family Consultant/ Therapist and as a Mental Health Social Worker (Senior Practitioner).
She holds significant qualifications.
Ms B has significant relevant professional experience in childhood trauma and in the application of collaborative process together with a long history of giving single expert evidence in parenting proceedings.
Exhibit “17” in the proceedings provides Ms B’s reports of supervised time being September 2020, November 2020 and May 2021.
Between 16 July 2020 and 28 April 2021 inclusive, Ms B supervised 22 contact periods. Seven further proposed appointments were cancelled by the mother some with no reason given, others because of child illness. A consistent observation of Ms B is that X delighted in his relationship with the father and he was excited in anticipation of seeing him.
X appeared to Ms B to be relaxed and happy in the care of the father and there was spontaneous laughter and affection. Ms B summarised the observations as X appearing to be comfortable with the father but also testing his boundaries.
The father was also observed to be child focused in his engagement with X. He was gentle in the interaction and was able to find teachable moments during the observed interactions. The father appeared to have little difficulty in reacting appropriately to X’s cues for further engagement.
Overall, Ms B considered that there was a positive relationship between X and the father and that X would benefit from spending more time with him.
Ms B brought to account X’s diagnosis of Autism Spectrum Disorder (“ASD”) but did not consider that it was a barrier or presented any significant impediment to a relationship between X and the father developing.
Ms B summarised her observations of interaction between the father and the child in the most recent report as follows:[12]
The Therapist has not seen anything, throughout the entirety of the hours supervised that indicate that the child is not safe in the care of the father. The father is attentive and attuned to [X]. He adequately supervises [X] and demonstrated that he was able to anticipate potential risks to the child. On several occasions, the father demonstrated sensitivity in how he managed difficult questions from the child. Frequently, [X] would ask the father to take items with him at the end of supervised time. However, the father, knowing the mother’s feeling about [X] taking items supplied by the father, would respond to [X’s] questions with respect to the mother, and in a way that shielded the child from the parental conflict.
[12] Supervision Summary Report dated May 2021, page 24.
Given that Ms B had observed over 42 hours of supervised time, Ms B considered that the father had the capacity to spend time with X without the need for supervision.
A feature of the interaction was that notwithstanding the orders, Y did not spend any meaningful time with the father. Ms B observed that Y was either distressed from being separated from the mother or was asleep.
Ms B did observe that the mother was clearly distressed at the prospect of X spending time with the father and any suggestion that Y should spend time with the father was greeted with incredulity.
Ms B noted that the mother referred to the father as “the rapist” and made it clear that he should have no relationship with the children.
On one occasion, the father attended a supervised session with a lunch box containing food. At the end of the session X asked if he could take the lunch box home with him. Upon the mother seeing the lunch box in X’s possession, she forcibly opened the box, emptied the contents, and gave the lunch box to the therapist.
Ms B’s observations of the mother is summarised as follows:[13]
It is apparent to the Therapist that the mother has a visceral response to the children spending time with their father. The mother frequently struggled to quarantine her emotional distress, and it was observed that [X] appeared to be confused and worried by the mother’s behaviour at [AD Counselling]. It should be noted that at the latter supervision times, the mother presented as superficially emotionally regulated. However, the mother was clear that attending the supervised appointments continued to trigger her PTSD (Post Traumatic Stress Disorder) symptoms. As a result, the Therapist is unsure how the father and children will be able to have a meaningful relationship given the mother’s feelings about the father.
[13] Supervision Summary Report dated May 2021, page 25 (Exhibit 18).
Exhibit “25” in the proceedings contains a bundle of documents passing between the mother, Ms B, the Court and the father’s solicitors. The mother was upset by the involvement of Ms B and what she perceived to be the biased nature of the reports in favour of the father. In email communication dated 3 June 2021, the mother threatened to report Ms B to the Social Work Board for operating unprofessionally in writing her reports. She considered that Ms B was unqualified to write the reports but that she was prepared to act unprofessionally “as she is being paid big money (which she is). This is corrupt”.
The mother considered that Ms B did not have any relevant experience in particular, in respect of violence training and that she was “partisan towards the lawyer acting for the perpetrator (which serves the perpetrator)”. The further assertion was that Ms B was prepared to put aside her professional obligations in order to pursue financial relationships with solicitors.
The mother considered that Ms B had contributed to the compounding trauma for the mother and that her premises were badly designed in a way that enabled “the perpetrator to walk in off the street and access relevant files and materials”. Her concerns in respect of the conduct of Ms B are adequately summarised in the following extract from email correspondence dated 2 August 2021.[14] Ms B was of the view that the mother had no regard for her skill or professionalism.[15]
Further I have been highly critical of the express bias employed by [Ms B] of [AD Counselling] in her reports and her bias towards the perpetrator in my filed material. [Ms B] has a history of taking private instructions from the solicitor acting for the perpetrator in 4072/2019 and has also released reports secretly privately to the said solicitor. She has taken instructions repetitively directly from this solicitor whilst simultaneously has refused to communicate with me by email or phone. In addition I have filed evidence of [AD Counselling’s] insecure and unprofessional client storage of documents and I have been critical of the fact they have (in my historic dealings with them) employed/prescribed to no professional guidelines or policies (which caused conflict/distress when my infant child conceived pursuant to [sexual assault] refused supervision sessions (entirely since the 19 June 2020 contact order) and [Ms B] refused to file in the FCC to cease supervision sessions for her).
[14] Exhibit 25.
[15] Annexure “11” to father’s affidavit filed 3 June 2022.
A matter relevant to the evidence of Dr P is a further allegation that in some way Ms B and Dr P were acting in concert, that they were biased towards the father and had taken a deliberate set against the mother.
Ms B attended to give evidence on 7 October 2022 (day 6 of the proceedings). Prior to her evidence, the mother’s counsel advised that his instructions had been terminated and he acknowledged receipt of the communication from the mother accepting the termination.
Counsel then advised the Court that the mother was not in attendance on the basis that she had a medical certificate suggesting she was unfit to attend Court.
There was then a discussion as to the utility of a medical certificate that did not provide some indication as to the nature of the disability or medical condition, the effect and consequence of the medical condition and the reason why the medical condition would prevent the mother from participating in the proceedings either in open court or remotely.
The concern expressed by the Court was that if leave was given to counsel to withdraw, it would have considerable impact on the proper administration of justice in the sense that the proceedings were mid trial. Whilst the Court could not be critical of counsel and solicitor if the client was determined to terminate their instructions, a medical certificate that contained no more information than “she is suffering from a medical condition” is of little assistance.
Eventually, the mother was contacted by telephone and advised the Court that she was undergoing certain medical tests but that there was not yet any diagnosis of her medical condition and certainly no documents which would support her inability to attend Court. The mother again emphasised that she did not have faith in her counsel and considered that he did not understand anything about the case, that he was not across the detail and further, that he had advised the mother he did not wish to continue to represent her.
The mother advised that she had made contact with Ms QQ who had indicated preparedness to become involved in the proceedings and assist the mother.
After significant discussion with the mother, the proceedings were adjourned until midday to await the attendance of Ms QQ. Upon the proceedings resuming at 12.12 pm there was no appearance by the mother or any legal representative.
Ultimately, the mother’s new counsel attended at about 1.00 pm. I advised Ms QQ that Ms B had been waiting to give her evidence since 10.00 am that morning and that I intended to hear her evidence in the afternoon.
Ms QQ was advised of the history of the matter and in particular, that the proceedings had been before the Court since 2019 and my concern that ongoing and endless litigation could never be considered as in the best interests of a child or children.
Whilst I was prepared to allow Ms QQ some opportunity to speak to the mother, I considered that the evidence of Ms B was uncontroversial and there would be no prejudice caused to the mother by having Ms B’s evidence concluded.
The proceedings resumed at 2.15 pm and Ms QQ advised that the mother would undertake the cross-examination of Ms B.
The cross-examination of Ms B by the ICL was the subject of repeated interruption and objection by the mother. The tenor of the objections related to the mother’s concern that Ms B was able to anticipate the questions being put by the ICL and that must indicate that there was a level concert between Ms B and the ICL resulting in bias in favour of the father. I did not come to the same conclusion.
Ms B was able to contrast a positive experience of the observations of X with the father to the trenchant reluctance of Y to separate from the mother. Ms B attempted to entice Y to enter the room with X however, she was unsuccessful. She was not able to gain any traction with Y throughout the entire period of the supervised sessions. Whilst Ms B was instructed to undertake supervised observations of the father and the children (in reality X only) she did not consider that her involvement could be construed as a family assessment and it was her recommendation that a Family Assessment Report be prepared.
Ms B was consistent in her view that the mother presented with genuine opposition to the children spending time with the father rather than it being confected.
The mother challenged the extent of Ms B’s training and her ability to recognise dysregulation and a panic attack in particular, if it is triggered by trauma.
Ms B confirmed that the various qualifications and professional development modules, as set out in her Curricular Vitae, provided extensive family violence training and recognising dealing with a person undergoing a panic attack or extreme anxiety.
A particular focus of the mother was to explore the extent to which the father’s legal representatives had made contact with Ms B prior to the order of 19 June 2020.
It was apparent that Ms B did not readily understand the underlying issue sought to be raised by the mother namely, whether Ms B understood that the mother considered there had been ongoing and significant family violence allegedly perpetrated by the father.
The mother’s efforts to secure the father’s deportation can be seen as part of a strategy to ensure that he did not develop or have an opportunity to have a relationship with the children.
The concern, anxiety and distress that the mother may hold in relation to the father could well be genuine, albeit without foundation, but her conduct in seeking his deportation, pursuing a private Intervention Order and other avenues of complaint against the father are likely to be malicious in their purpose and pursuit.
The mother alleges that on one occasion, she observed the father touching X’s genitals whilst he was naked on his back. The mother contends that the father was using the ruse of changing the child’s nappy as an opportunity for sexual abuse.
The father denies that he had any intention or interest in sexually abusing X who at the time of the allegation was a child not yet two years of age.
The father’s evidence is not that he was changing the child’s nappy and the mother might have been entitled to come to a wrong conclusion but rather the alleged incident did not occur.
There is no evidence that would support a finding that whilst the father was changing X’s nappy, he took the opportunity to touch X’s genitals for prurient purpose or interest.
I do not consider that the determination that the mother has not established that she was the subject of sexual assault and the child X is the subject of sexual abuse on the balance of probabilities as representing a matter of degree.
I consider that there is barely a scintilla of evidence that could be considered relevant or of probative value in support of the mother’s allegations. Such a finding is important in that whilst the mother is not able to obtain a finding that an incident as alleged by her occurred, nor do the circumstances and the conduct of the parties and their interaction enable the exercise of my discretion to find that the father presents as a risk to the children and on the mother’s case, an unacceptable risk.
There is scant evidence capable of bearing upon the existence of a fact in issue that would support a finding that the father presents as a risk.
The father’s time with X was the subject of strict professional supervision over a period of 22 separate sessions. The observations of Ms B were that the father’s time with X was entirely satisfactory and established that there was an emotional attachment between the father and the child and that he exhibited appropriate parenting skills.
Whilst the same cannot be said for the father’s relationship with Y, under observations of interaction by the family consultant, the father demonstrated reasonable parenting skills given that Y was very young and the father was effectively a stranger.
If the position is that there is no finding that the father perpetrated sexual assault upon the mother, he was not the perpetrator of family violence and did not sexually abuse X and that there is an absence of other evidence or circumstance which would enable the Court to find that he presents as a risk to the children, and certainly not an unacceptable risk, then the focus must turn to the mother’s presentation.
The concern expressed by the family consultant as to the potential for the mother’s resistance to the father’s time with the children and her malevolent attitude towards him places the children at considerable risk. The family consultant was concerned that the proper development of the children may well be impaired by the false narrative that will inevitably be conveyed to them by the mother that their father was a rapist, that they were conceived as a result of sexual assault and that the father was grooming the children to be the willing victim of child sexual abuse.
As considered, the mother is not able to recognise the father as having any beneficial relationship connection or involvement with the children. The mother is not able to refer to the father by his name nor any information about him. Nothing that the father has touched is able to be touched by the mother without some level of revolution.
The mother conceded that while she was uncertain as to how it would be done, at some point she would tell the children the truth about the father, albeit her truth. The likelihood that the children would grow up with a false belief of the father in terms of his conduct, character and culture has the real potential, according to the family consultant, to adversely impact upon the children’s mental health both as adolescence and then into adulthood.
The family consultant considered that the father had the potential to make a positive contribution to the children’s development and that it was critically important that the children spend time with him, even if this resulted in the children being placed in the father’s sole care.
It may be that if the children remain in the sole care of the mother, in circumstances where they will have no positive knowledge, awareness or engagement with the father, his culture and extended family, they are likely to be the subject of serious psychological risk and possibly to an unacceptable level.
I do not ignore that the report of the family consultant was dated 24 July 2021 and was prepared consequent upon orders made at an interim hearing. It is however not controversial that the matters raised by the family consultant were demonstrably evident in the mother’s presentation at trial. The family consultant was accurate in her prediction that the mother’s attitude towards the father was unrelenting and unlikely to have changed. What is different is that whilst the family consultant considered that the presentation of each of the parties might be inconsistent with the mother’s belief that the father is a violent man who has sexually assaulted the mother and X, a comprehensive consideration of the evidence does not lend any support for the mother’s allegations.
Wishes of the child
The children have not been given any opportunity to express their wishes and perceptions.
The family consultant did opine that the Court can have confidence based upon the reports of time supervised with Ms B that the father “has positive parenting skills, and skills which are likely to support the children’s development. Indeed [the father] has the potential to play a significant and important role in the children’s lives.”[31]
[31] Family Assessment Report dated 24 July 2021 at [27].
Recognising that some further evidence as to the presentation of the children would be of assistance, by order made 7 July 2022, a s 65L report was ordered. As is evident from the report and then corroborated by the mother’s evidence, she did not attend with the children and could not be contacted despite the best endeavours of the Court Child Expert. Two sessions were arranged following a discussion between the Court Child Expert and the mother’s then solicitor, who confirmed that the mother was aware of the order and the scheduled sessions but was unlikely to attend.
I consider that all reasonable attempts were made to ascertain the presentation of the children and if appropriate to do so, their wishes, perceptions and observed interactions with the father.
I find that the mother was deliberate in her non-compliance with the order and intended to thwart the process.
The mother’s evidence confirms that any order that would see the children coming into contact with the father will not be subject of compliance by her.
The nature of the relationship with the parties and the others
At present, it must be assumed that the children’s primary attachment is with the mother. She has managed their care, welfare and development since their birth and whilst there was what might be considered extensive supervised time between X and the father, he concedes that he has spent almost no time with Y.
The reality is that the children have not spent any time with the father that might be considered as an opportunity for him to demonstrate his parenting skills, although in that regard, I note the favourable observations of the family consultant.
Ms B considered that the father had much to offer by her observations of his interaction with X. The family consultant also considered that the father demonstrated important sensitive parenting skills and was able to encourage the children in their various activities.
Under observation by the family consultant, the children were positive in their response to the father even though Y had spent little or no time with him prior to the assessment.
Whilst there were concerns raised by the family consultant in respect of the mother’s interaction with the children, it was apparent that she had capacity to support their development. The difficulty however, was that the mother described the children’s behaviour as dysregulated, aggressive and difficult.
The family consultant did not notice any adverse behaviour by the children when in the care of the father but that there was some dysregulated behaviour when in the care of the mother. The concern of the family consultant was that there may well be an impairment to the mother’s mental health which adversely impacts upon her ability to remain emotionally attuned to the needs of the children.
Simply put, the mother’s ability to parent the children is significantly impacted by her inability to reconcile that the father should have any relationship, involvement or engagement with them.
I do not ignore the evidence presented by the mother that a diagnostic assessment of X in 2019 resulted in an assessment outcome that X’s presentation meets the DSM-5 criteria for Autism Spectrum Disorder (“ASD”) and he is therefore diagnosed with ASD.
A similar assessment was undertaken for Y in 2019 with a diagnostic outcome that meets the DSM-5 criteria for ASD.
In anticipation of the proceedings, the father undertook various parenting courses comprising the AF Program completed in late 2019 and courses run by an autism support organisation comprising AG Program and “encouraging interaction through play and social learning” completed in mid-2022.
It could not be said that the efforts undertaken by the father to gain better insight into the challenges that might flow from the children’s diagnosis of ASD were overly comprehensive, but the father impressed both Ms B and the family consultant as to his ability to form an attachment with the children, be respectful of their needs and provide the necessary support for them.
By letter dated 16 December 2022, the DCP acknowledged the s 91B order made on 9 November 2022 inviting DCP to intervene in the proceedings. The matter was adjourned to 30 January 2023.
DCP conducted a child protection investigation in relation to X and Y which included an assessment of the risk and safety issues in each of the party’s households. The further report of DCP dated 24 January 2023 considered that the children were safe in the mother’s care noting her current support network and further were not able to identify any child protection concerns should the children be placed in his care. For those reasons, DCP declined the Court’s invitation.
The likely effect of any change in the children’s circumstances
The orders sought by the mother would not result in any significant change to the children’s current arrangements. They are currently cared for in the mother’s home and there is now the assistance provided by the DCP report that does not highlight any concerns in respect of the mother’s home.
The circumstances in respect of the father are somewhat different. At trial the father effectively held down three jobs, predominantly comprising a part-time/casual work at a retail business supplemented by work at an institution where he prepared equipment and materials.
The father’s evidence was that he held high confidence that he would secure the second job as permanent employment and would then give up his other casual employment. The father would care for the children by using before and after school care and on occasion, he would utilise friends to supervise the children.
The father conceded that whilst there were advantages to a child of attending childcare given the exposure to other children may enhance their social learning, it is his preference that he be more available to care for the children if possible.
The father impressed as having given proper consideration to the educational requirements of each of the children taking into account their ASD. The father had ascertained an appropriate school for the children and that they have out of school hours care. The father was also prepared to attend upon relevant special appointments for the children.
At the time that the father gave evidence, his orders contemplated that the children would live with the mother and spend time with him commencing with time supervised at a Contact Service or by a professional supervisor and thereafter gradually increasing to each alternate week.
The separate proposals of the parties must be given careful consideration. The orders now sought by the father, and supported by the ICL, would see the children being removed from the mother’s care in circumstances where their current environment appears safe and they have an attachment with the mother. The orders proposed would see the children going from a position of some stability to considerable uncertainty.
The possible transition of the children from the mother’s care to the father was considered by the family consultant who conceded that there would be a level of anxiety and distress occasioned to the children which would need to be appropriately managed.
The family consultant considered that the father had demonstrated the necessary skills to be able to manage the initial adverse impact upon the children of such a transition but that leaving them in the mother’s care and being subject to the false narrative in respect of the father, was more likely to have adverse long-term impact upon the children.
Family violence
I have not found that the father perpetrated family violence as alleged by the mother. The father does not present as a risk to the children. The evidence is that the mother is not capable of supporting the children’s relationship with the father but he is likely to support the children’s relationship with the mother, to acknowledge her existence and to try and give the children a chance of a balanced view of each of the parties.
The advantages and disadvantages of the separate proposals of the parties
As discussed, the orders sought by the mother, supplemented by her evidence, would mean that the children would have no relationship with the father and would not know him or their cultural connection with him other than the false narrative that the mother will tell them should they ask questions.
The father’s proposal is that the children will live with him and spend no time with the mother although, considered by the family consultant, should the mother obtain therapeutic assistance to recognise and enable her to support the children’s relationship with the father then time spending could conceivably resume.
The evidence does not support a finding that the children would be at risk in the care of the father but they are at risk of emotional and psychological harm in the current care of the mother.
The advantage to the children of the mother’s proposal is that they would remain in their current circumstances and would not be troubled by any involvement with the father. It is also possible that if the children were not required to spend time with the father, there would be a lessening of the mother’s anxiety and presentation of a diagnosis of PTSD.
The disadvantages to the children would be that they would have no relationship with the father in circumstances where the Court has found that he does not present a risk to them and that the mother’s allegations that he is the perpetrator of sexual assault, family violence and child sexual abuse have not been made out.
The mother is not capable of referring to the father by his name or that he is the children’s father. The mother is not able to touch anything that has been touched by the father and cannot refer to any aspect of the father’s life, his cultural heritage or his extended family.
The mother is only able to refer to the father in the most derogatory terms such as “the rapist”, “the [Country G] man”, or by using the initials of his name. I am left in no uncertainty that upon an enquiry by the children as to the status and circumstances of their father, the mother will not hesitate to tell them that she considers that they were conceived as a result of sexual assault and that the father was grooming them for child sexual abuse.
The father’s proposal has the advantage of reinstating a relationship between the father and the children in circumstances where such a relationship would not be promoted by the mother. There are however disadvantages to consider. The father has at best, only a modest relationship with X and a scant relationship with Y. He has not had experience in parenting the children in respect of their current needs and despite the best assessment by the family consultant, there remains some uncertainty as to the reaction of the children in leaving the mother’s home and moving to the full-time care of the father.
On balance, I place weight on the assessment provided by the family consultant and the observations of Ms B that whilst untested, the father has demonstrated the necessary and requisite parenting skills to be able to appropriately deal with the likely distress occasioned to the children following their transition into the father’s sole care.
The alternative outcome for the children would be to live in the toxic environment of the mother’s home and be subjected to a litany of false allegations in respect of the father, his culture and extended family. The consequences of the anxiety likely to be experienced by the children in transitioning to the father’s care are short term whereas the family consultant considers the detriment to the children remaining in the sole care of the mother will be long term with the potential to impact upon their mental health in their adolescent and adult years.
It must be remembered that the mother’s presentation did not leave room for any other option or outcome other than the children living in the sole care of or other of the parties. It is regrettable. The father’s initial position was to not challenge the mother’s primary care of the children and to undertake a gradual restoration of his relationship with the children. The mother’s extreme position leaves no reasonable alternative.
I do not ignore that all attempts to assess the impact and reaction of the children to the orders sought by the father were thwarted by the mother’s deliberate non-compliance that with orders promoting a s 65L assessment and report.
Are the orders sought by each of the parties practical?
I accept there remains some uncertainty in terms of the father’s current circumstances. I accept however that he has secure and appropriate accommodation, that he is prepared and capable balancing his employment with the care of the children and I see no difficulty with his proposed arrangement that would utilise out of school hours care.
The father presented as being a responsible person who impressed Ms B over a long period of supervised interaction with X and the family consultant in terms of the manner in which he managed the children during the observed interaction as part of the family assessment.
The father’s evidence was that he has made arrangements with his manager to alter his shifts and to give him sufficient flexibility to prioritise the children’s care.
His current accommodation comprises a two bedroom unit. The accommodation was provided by his parish church. The rental arrangements appear to be secure and appropriate.
The father has expanded upon his one day sessions with the autism support organisation in terms of the presentation of X and Y as ASD.
The father impressed as having read widely in respect of the challenges in caring for a child with autism and has also considered the school arrangements for the children.
The father proposes that X would continue at AH School and once Y completes kindergarten, she would also be enrolled at X’s school.
It is evident from the father’s evidence that whilst not being able to anticipate every possible eventuality, sufficient and appropriate thought has been given by the father to establish that his accommodation and plans for the children to be supervised and attend school are adequate.
I consider there is merit in the father’s proposal that the children are placed in his primary care. The extent to which the children will spend time with the mother will be entirely depended on the mother’s ability to rationalise and recognise the importance to the children of having a meaningful relationship with the father, her ability to put aside her false belief as to the father’s conduct and support the relationship going forward.
Future litigation
It is likely that the children will be the subject of ongoing litigation. The history of the current proceedings and the evidence of litigation in the Magistrates Court and also efforts by the mother to seek the deportation of the father suggests the delivery of this judgment will not end the litigation for these children.
It is an unfortunate observation that never ending litigation is unlikely to ever be in the best interests of a child. I bring to account the potential adverse impact on the children but given the only other alternative would be to accede to the proposal of the mother, such an outcome would place the children at an unacceptable risk of psychological harm. That risk is not able to be mitigated or contained.
PARENTAL RESPONSIBILITY
Each party seeks sole parental responsibility. Whilst I suspect that the father would concede a more generous outcome, the mother’s position is that the father should not spend time with the children and that he should have no further involvement in their lives.
There is no alternative position either put by the parties or available on the evidence.
CHANGE OF THE CHILDREN’S SURNAME
At present X is registered as “X Gabbey” as appears on his birth certificate dated 2016. The father seeks it be changed and registered by the addition of a hyphenated surname being “Gabbey-Cadriel” but the removal of one of his given names. The father presented no evidence as to why the given name should be removed from the birth certificate.
The mother seeks that X’s name be changed to remove a different given name. The mother’s concern is that whilst this relates to the name of a Saint, because it is associated with the father, she is not able to say the name and she ensures that X’s name when written or stated does not contain the word.
The mother seeks that Y’s name be registered as “Y Gabbey”.
Y is not yet registered. The parties refer to her as “Y Gabbey”. The father seeks that she be registered as “Y Gabbey-Cadriel”.
The Full Court gave consideration to the change of a child's surname in Chapman & Palmer (1978) FLC 90-510. At 77,674 the Full Court said:-
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
The Full Court provided further assistance at 77,675-6 in relation to the factors to which the Court should have regard to in determining whether there should be any change in the surname of a child include the following:-
(a) The welfare of the child is the paramount consideration.
(b) The short and long term effects of any change in the child's surname.
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage or relationship; and
(f) The effect of frequent or random changes of name.
In circumstances where I propose to order that the children live with the father and that he have sole parental responsibility, it is appropriate that leave be given for X’s surname to be hyphenated and to reflect the father’s surname of Cadriel.
I see no good reason to cause the deletion of one of the given names from X’s name. The mother’s reasons are without any proper basis.
The consideration of Y’s name is made more complex by the mother’s resistance to having Y registered and obtaining a birth certificate. Whilst not made clear, I suspect that the mother did not want to apply for a birth certificate in circumstances where she would have to disclose the identity of the child’s father.
It is not acceptable that Y has not been registered and that a birth certificate has not issued. It is likely that to the present date Y has been known as “Y Gabbey”. I do not consider that her name should be further changed other than by a hyphenated surname to include the father’s surname being “Cadriel”.
I have given consideration to whether the addition of a hyphenated surname may become unwieldy in respect of each of the children.
The potential for change of a child’s surname requires careful consideration both as to issues of practicality in terms of whether a change will make a name complex and unwieldy however, I consider that the children should be properly connect to the identity of their parents.
It is important that children retain the potential to reflect upon their relationship with each of the parties and bring to account the welfare of the children as the paramount consideration. I do not consider that the children will experience any embarrassment, difficulty or distress by effectively retaining their current names but with the addition of a hyphenated surname.
CONCLUSION
I propose to make orders as sought by the father and supported by the ICL.
I anticipate that there will be significant reluctance on the part of the mother to comply with the orders and as such, I propose to issue a recovery order but that it be suspended for a period of a few hours pending compliance by the mother.
Even though I am concerned as to the potential for the mother to interfere with the care arrangements put in place by the father, it is nonetheless reasonable that the mother should be permitted to received information in respect of the children’s schooling, significant medical issues that might impact upon them, and the ability to forward to the children cards, letters and gifts to mark appropriate special occasions.
I also consider that the parties should each be restrained from taking the children out of the Commonwealth of Australia as sought by the father.
The Court is obliged to consider the manner in which proposed orders will likely be given effect.
As discussed, the mother has indicated that she will not comply with any Court order that provides either the father to come into physical contact with the children or even that he be able to communicate with them.
The mother’s entrenched position was highlighted by her refusal to provide the children for the purposes of the s 65L assessment.
By reference to the report of Dr K dated 10 September 2022 succinctly summarises the mother’s position as follows:
A Court order requiring [Ms Gabbey] to facilitate any contact between the children and [Mr Cadriel] would be very detrimental to [Ms Gabbey’s] mental health. In the event, that such an order is made, [Ms Gabbey] would be unable to personally safely transport the children to a contact venue.
Dr K considered that the mother was suffering from a severe and complex post-traumatic stress disorder with panic attacks and obsessional ruminations that are debilitating.
Similarly, in her report dated 13 September 2022, Dr WW expressed a similar sentiment:
If contact of the applicant with the children is granted, [Ms Gabbey] will experience heightened anxiety and autonomic arousal which along with general distress would dramatically impair and significantly impact her capacity to provide adequate care for the children… I have raised concerns for her, and her children’s safety should the Court force contact of the children with the applicant at the Court or anywhere else as she is high risk for having a panic attack in such circumstances, which presents a risk to herself, her children and other road users.
Given the concerns raised by the mother’s health professionals, I propose to order that the children be delivered up to the father at Court Child Services in the Court Registry. In anticipation that the mother will either not comply with the order or be unable to do so, the orders will provide for a Recovery Order to issue to enable the children to be delivered up to the father. The concerns expressed by Dr K and Dr WW raise the spectre and possibility that the mother’s reaction to the orders will be so extreme as to place the children at high risk. Accordingly, it is appropriate for a Recovery Order to issue and to be given immediate effect in the event of non-compliance by the mother.
I make orders as appear at the commencement of these reasons.
I certify that the preceding five hundred and twenty-four (524) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 4 December 2023
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