Calder and Andrews

[2019] FamCA 284

FAMILY COURT OF AUSTRALIA

CALDER & ANDREWS [2019] FamCA 284

FAMILY LAW – CHILDREN – Best interests of the child – mother failing to return children in accordance with final orders of Cronin J made in January 2016 – whether to alter Cronin J’s orders – no basis shown.

Family Law Act 1975(Cth) ss 60CC(3), 61DA, 67V(2)

In the Marriage of Rice v Asplund (1978) FLC 90-725

APPLICANT: Mr Calder

RESPONDENT: Ms Andrews

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 391 of 2013

DATE DELIVERED: 3 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Wilson

HEARING DATE: 30 April, 1 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Hoult

SOLICITOR FOR THE APPLICANT: Coulter Roache Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

Orders

1. All extant applications filed by the respondent are dismissed.

2. The proceeding MLC4149/2019 Andrews & Calder is to be consolidated with proceeding MLC391/2013 Calder.

3. Each party has liberty to apply.

4. The warrant issued on 18 April 2019 for the recovery of the children –

G born … 2005;

D born … 2006; and

E born … 2008

(collectively “children”), is hereby discharged.

1. The respondent’s request made ore tenus this day to have a duty lawyer present at the hearing for the purposes of cross-examination of the family consultant is refused.

2. Leave is granted to the applicant to produce my reasons for judgment in the Magistrates’ Court proceedings issued by the respondent for an intervention order against the applicant.

Request

1. The independent children’s lawyer and the family consultant inform the children of the content and implications of the order made this day.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 391 of 2013

Mr Calder

Applicant

And

Ms Andrews

Respondent

REASONS FOR JUDGMENT

introduction  

1. On 28 January 2016, following the trial of parenting issues, the Honourable Justice Cronin made final orders in this proceeding for the father to have sole parental responsibility for the children, for the children to live with him and for the mother to have time with the children by agreement.

2. During a weekend when the children were in the mother’s care, she did not return the children to the father stating that the children feared the father’s violent ways.

3. The father obtained a recovery order.  Urgent arrangements were made for the children and the parents to be seen by Ms B, in my view one of the country’s pre-eminent family consultants.  Ms B interviewed all six persons (mother, father, children and the father’s fiancé Ms Q) in urgent circumstances and provided viva voce evidence on 30 April and 1 May 2019.

4. With the benefit of Ms B’s evidence I considered –

   a)the father’s application for the children to be returned to him and for the orders made by Cronin J to be restored; and

   b)the mother’s application for sole parental responsibility and for her time with the children to be increased.

5. In view of the urgency of this case I heard it over two days on 30 April and 1 May 2019, pronouncing orders on 1 May and undertaking to provide written reasons as soon as possible thereafter.

Synopsis

1. These are my written reasons for making orders as follows –

   a)granting leave to reopen the litigation notwithstanding the fact that final orders were made by Cronin J in January 2016;

   b)reinstating the orders made in paragraphs 4 to 15 of the orders of Cronin J dated 28 January 2016; and

   c)dismissing the mother’s application made 18 April 2019.

relevant factual setting

1. On 18 April 2019 the father filed an initiating application to commence this proceeding.  In it, he sought final orders for the children G (born in 2005), D (born in 2006) and E (born in 2008) to live with the father and to spend time with the mother by agreement.  Other more comprehensive orders had been previously made by the Honourable Justice Cronin in January 2016.  The father sought urgent interim orders including a recovery order.  In his affidavit filed in support of his initiating application, the father deposed to the following –

   a)the mother had overheld the youngest child since 19 February 2019 in breach of the orders made by Cronin J on 28 January 2016;

   b)on 16 April 2019 the Magistrates’ Court of Victoria ordered the mother to return the children to the father by 4 pm on 17 April 2019;

   c)the mother failed to return the children to the father in accordance with the orders made by the Magistrates’ Court;

   d)on 17 April 2019 the mother served on the father an application for an intervention order asserting that the father had engaged in family violence;

   e)the children were at significant risk of emotional and psychological harm if they remained in the mother’s care;

   f)the father and mother had previously agreed that the mother would have time with the children each alternative weekend from Friday until Sunday, each Monday and Wednesday evening from the end of school until 8pm and for one week during each school holiday;

   g)on the morning of 19 February 2019 the youngest child and the father disagreed about the child playing video games so after school that day the youngest child went to the mother’s home rather than to the father’s and the youngest child stated he did not wish to return to the father’s home;

   h)on 22 March 2019 the father attempted to collect the youngest child from school but the youngest child refused to accompany his father stating that he did not wish to go with the father and that the mother had told the youngest child that he did not have to go with the father;

   i)the eldest and middle children spent time with their mother by agreement between 8 and 14 April 2019;

   j)the eldest and middle children were not returned to the father as agreed at 8pm on 14 April 2019;

   k)the mother did not respond to the father’s telephone calls and messages asking about the whereabouts of the eldest and middle children on and after 14 April 2019;

   l)shortly thereafter the mother sent the father a text message telling the father that the children did not want to return to the father and that the father should contact the Department of Health and Human Services;

   m)the father then applied to the Magistrates’ Court for orders and on 16 April 2019 orders were made for all three children to be returned to his care;

   n)the children were not returned to the father in accordance with the order;

   o)the father did not know where the children were; and

   p)the father feared for the children’s safety and for the youngest in particular as he had learning and behavioural issues.

2. On 18 April 2019 the father brought an ex parte application before me for a location order under s 67N(2) of the Family Law Act and for a recovery order.  Ms Phillips, the father’s solicitor appeared on that occasion.  She persuaded me to make the recovery order as well as the location order.

3. The orders mentioned above were pronounced at 11:59am on 18 April 2019.  I signed the recovery order during the afternoon that day and a signed version of the recovery order was put in the hands of the Marshal of this court thereafter.

4. Slightly later that day, this is to say on 18 April 2019 the mother commenced a separate proceeding, being Andrews & Calder MLC4149/2019.  In that proceeding the mother sought –

   a)the dismissal of the orders made by Cronin J on 28 January 2016 in this proceeding;

   b)orders for the children to remain in the mother’s care;

   c)an order for her to have sole parental responsibility for the children; and

   d)orders limiting the father’s time with the children.

5. In essence, the mother sought to fundamentally recast the issues that Cronin J had determined adversely to her in January 2016.  In the same proceeding the mother brought a contravention application filed 18 April 2019.  In it she asserted that the contravention lay in the middle and youngest children running away.  No other details were given.

6. On 25 April 2019 Detective Sergeant P affirmed an affidavit about the events members of the Australian Federal Police encountered upon executing the recovery order.  Detective Sergeant P stated that she received a statutory declaration from the mother to the effect that the mother had attempted to deliver the children to the father on 24 April 2019 but they refused to exit the car.  Detective Sergeant P narrated in her affidavit how she and other Australian Federal Police officers attempted to persuade the children to return to the father.  She said the two older children climbed over a nearby fence and walked away.  She said the youngest child attempted to abscond (her word) but was intercepted, stating that he would run away if forced to remain with the father.  Detective Sergeant P stated in her affidavit as follows –

   Due to the Recovery Order having been executed by the return of the three children into the residence of the father and the risk that they would again abscond if the order was re executed, Police believed it in the best interests of the children to place them where they would not be an immediate flight risk until the matter is heard more fully on Tuesday, 30 April 2019 in the Family Court Melbourne.

7. On 26 April 2019 I ordered the appointment of the independent children’s lawyer, by consent.

8. Ms B saw all relevant persons on 30 April 2019 and presented her evidence in viva voce form at 3pm that day.  She had prepared a comprehensive children and parents issues assessment that she delivered verbally and later published on 1 May 2019.  Some important matters that she reported in her children and parents issues assessment may be synthesised as follows –

   a)the parents commenced cohabitation in November 1998, they married 1998, separated in 2012 and are now divorced;

   b)the orders made on 28 January 2016 by the Honourable Justice Cronin provided that all extant court orders were discharged, the father had sole parental responsibility for G, D and E who were to live with their father, spend time with their mother by agreement with the father and the mother being restrained from attending the school the children attend unless invited by the school principal or she attended with the father’s agreement;

   c)in interview the father acknowledged being deeply concerned about the children and uncertain how to proceed given the children’s entrenched behaviour;

   d)in interview the mother acknowledged there had been a change in the children’s attitude since E came into her care in February stating that although E “can be a challenge” she reported no problems with him in her care;

   e)at the time her report was presented to the court or during cross-examination it had not been reported to the consultant that the mother had commenced her own application in this court claiming that she and the children were victims of family violence and as a consequence, the mother had relocated from her home in Suburb T to reside with the children in a refuge and she had sought assistance from “Organisation R”; and

   f)in the absence of family violence perpetrated by the father as asserted by the mother, the mother’s actions were to be seen as part of a deliberate process that was both abusive to the children and one in which she chose to expose the children to environments that would be difficult for the children and “she perpetrated a travesty to those genuine victims of family violence through her actions by utilising resources to which she was not entitled promulgated systems abuse” (her words).

9. So far as all children were concerned, Ms B identified a collection of issues relevant to them all.  Elsewhere in her assessment she identified separate issues relevant to each child individually.  In respect of all children she said –

   a)they presented as guarded and to varying degrees quite confused;

   b)they reported nothing positive about life with their father but by way of contrast said the mother is kind yet there was no evidence to suggest that the children’s lives were other than marginally different between the two homes;

   c)the children denied seeing any medical practitioners or receiving medication other than for a cold and acne;

   d)both D and E claimed to be scared of their father because he was angry and swore and E used profanities yet there were no reports of the father’s anger from either G or Ms Q;

   e)exaggerated and inaccurate claims about family violence were made and although E talked about being hit he was unable to recall a single event;

   f)the mother spoke about the children running away from their father as if in response to threat but the mother could identify no threat and she acknowledged that the children may have misconstrued her suggestion to go to the mother if they were not happy;

   g)it was evident the children had been exposed to adult views and had been coached to say they were scared and to repeat phrases such as “you have ruined four years of my life” (E) or “the last five years have not been so nice” (G) or “you only want me for Centrelink payments” (E);

   h)G had been engaged in discussions with the mother and he was privy to the coaching as was revealed by G discussing parenting options as percentages in terms of “what is fair” when he called the consultant “a liar” and said that E would “only have had minimal time with his father”;

   i)the children were encouraged to leave the father’s care and they were encouraged to report their version of issues to police, behaviour that is both current and historical;

   j)the mother intruded on the father’s capacity to parent such as arranging for G to take a day off school on his birthday to spend time with his mother and the mother kept E at home on a Monday morning;

   k)the children had been used to solicit inappropriate information from the father, such as “whose name is on the contract” of his new house and querying the father’s prior depression, medication and treatment and the mother attended the father’s home when the children were in her care and at her discretion they had removed goods;

   l)the father reported that the mother’s attendance at his home was without his consent and that visit raised concerns as efforts were made by the mother to avoid parking so as to be captured by the video camera;

   m)the children had been coached and they espoused “my rights” and their entitlement to make choices about parenting arrangements, a view that was derived from conversations with the mother and her extended family; and

   n)the children reported that on their mother’s instruction, and lately by choice, they turned a location application off to avoid the father becoming aware of their location if the children were attending medical practitioners, D reporting that she disabled this application because the father did not need to know where the children were and for G it was an issue of trust.

10. Ms B addressed issues relevant to the eldest child.  She said –

    a)he was academically advanced;

    b)he disliked spending time with his father stating “I will see father, but that depends on final orders and then I will make my decisions,” advising that “within reason I may co-operate” with any pattern of spending time with his father but he provided no assurances that he would in fact co-operate;

    c)he called Ms B a liar when she suggested that a reversal of the current arrangements was consistent with his views;

    d)he told her his father did not listen to him; and

    e)his responses indicated an inappropriate level of empowerment by the children and an unrealistic expectation that their views will unquestioningly be adhered to.

11. Ms B addressed issues relating to the middle child.  She said –

    a)the daughter was unable to recall a single incident where the father expressed anger even though she said her father was angry;

    b)the daughter reported that the father had struck the youngest child yet the daughter had not witnessed any such hitting;

    c)the daughter agreed with the father to not access social media by telephone yet despite that agreement the daughter asserted that the father had engaged in family violence when he had looked at her telephone and checked messages;

    d)the daughter made no complaint about her relationship with her father but they argued over silly things;

    e)the daughter said it was the daughter’s choice about whether she would spend time with the father and she would give no assurance that she would spend time with him;

    f)the daughter reported a pattern of attempting to contact police to complain about the father;

    g)the daughter ran away after being returned by police but missed her train and was oblivious to the risks her behaviour presented; and

    h)the daughter said she wanted the current arrangements to be reversed.

12. Ms B addressed issues relevant to the youngest child.  She said –

    a)E’s account of how he came to be with his mother corresponded with the assertions of the father but varied from those provided by the mother;

    b)E resisted being parented and he behaved badly when he was chastised by his father so he sought comfort from his mother who did not provide consequences for E’s behaviour;

    c)E contradicted his mother’s claims that he “is fine when he is with me” and said his behaviour with either parent was similarly uncontained and he tells his mother to “F’ off” and that he can be unco-operative with his mother in the same ratio that he is unco-operative with his father;

    d)E presented as a confused and troubled child, bitterly unhappy despite being for an extended time in his mother’s care, which he claimed was his wish;

    e)E was infantilised by his mother as he sleeps in his mother’s bed;

    f)E reported poor behaviour at school and repeatedly disrupted the class for which he received detentions and stated he broke a window in a fit of anger when he was fighting with D then ran off to be with his mother to avoid the consequences of his behaviour;

    g)E said he had never been injured nor had he been bruised or physically hurt;

    h)E’s behaviour suggested he was a child caught between the parents and was both aligned with and trying to please his mother;

    i)at no stage did E suggest he was scared of his father but said that he was only scared of the dark;

    j)E reported that he spoken badly to both his mother and his father “because I don’t think about what I’m doing” but considered that the mother was more tolerant of his behaviour; and

    k)E admitted he struggled with parenting arrangements and his mother’s wishes stating that he wanted “fair living arrangements and more time with mum” but then promised to see his father.

13. Ms B considered various documents.  They included –

    a)a notice of child abuse, family violence or risk of family violence;

    b)a report from DHHS indicating that notifications received in 2019 related to historical matters and were closed; and

    c)an application for an IVO made in April 2019.

1. Ms B considered assertions by the mother about family violence. Ms B said the mother engaged in a pattern of seeking an IVO so as to minimise the father’s time with the children.  The IVO application was subsequently withdrawn.  The family consultant said there was no substance in the contention that the children were scared of their father.  Ms B said the following –

   It would appear that these family violence claims are wholly without foundation and reflect a continuing pattern of family violence and abuse that [Ms Andrews] directs towards [Mr Calder] and in which she enjoins the children to support her thereby creating emotional distress and confusion for the children.

2. Ms B said the mother had abused social systems designed to support those at genuine risk.

3. Ms B addressed the mother’s cognitive functioning.  She said the following –

   Concern is raised here about the level of [Ms Andrews’] cognitive functioning and her apparent incapacity to either hear or comprehend issues of concern, and an apparent incapacity to address behaviours that deliberately generate stress for the children.

4. Ms B said the children were at considerable risk by reason of their entitled attitude and running away behaviour as orchestrated by the mother.

5. The father presented as child focused and being concerned to facilitate proper arrangements for the children, according to Ms B.

6. Ms B was particularly critical of the mother.  Among the issues she addressed Ms B said the following –

   a)there was a pattern of the mother being non-compliant with court orders;

   b)after previously stating that the father threatened her with the cessation of time with the children the mother acknowledged that her time with the children had increased and that the father had never withheld the children from her;

   c)the mother stated that if she was late to changeover it was because the children were watching a show on TV and she would want them to finish watching that;

   d)the mother reported that E was spending no time with his father because “he is refusing” but the mother did not consider that the mother should direct E to spend time with his father;

   e)the mother could not explain why she had not made an application to the court to spend more time with the children but instead said she had sought mediation;

   f)the mother acknowledged that she had asked the children about parenting arrangements and she had presented to them the option of 50/50 shared care which the mother said “it should have been”; and

   g)in light of the mother’s apparent inability to facilitate the children spending time with their father to date, the mother suggested she manage pick up and drop offs and stated the children’s resistance about spending time with their father would reduce “if the children returned to my care”, a statement that indicated a high probability that the mother had initiated and exerted control over the children’s responses to the parenting situation.

7. Ms B added to the information in her assessment when giving viva voce evidence on 30 April 2019.  Some of the more important matters that emerged from her viva voce evidence were the following –

   a)the mother discussed parenting matters with the children, she denigrated the father and his current partner, she intruded on the father’s capacity to parent and constantly undermines him, she has considerable animosity towards the father and she made claims of family violence which Ms B said were utterly without foundation;

   b)the children’s lives with their father at his home were not that much different than that with their mother save that the father sets boundaries to their behaviour;

   c)E was a challenging child and did not like boundaries being set for his behaviour;

   d)in the interview the children presented as extremely guarded and, to varying degrees, their narratives were quite confused and it became apparent the children had been coached;

   e)the children could report nothing positive about their lives with their father, the children did report that the mother is kind, however, there is no evidence to suggest that the children’s lives were very different with either parent;

   f)categorically there was no family violence in this family;

   g)there was no history of violence as claimed;

   h)the mother also made a claim that she had received death threats on the telephone (not recorded) that remained a curiosity to Ms B as to why, at this stage and after having to struggle through a whole series of heinous sexual abuse allegations, the father would suddenly consider that that was the best way to behave in the circumstances;

   i)the father was always child focused, not wanting to intrude and upset the children;

   j)it was evident the children had been coached as they used very similar phrases such as “you ruined four years of my life” (E), “the last five years has not been so nice” (G) and “the Centrelink payment is rubbish” (E);

   k)Ms B had seen these children grow up in front of her and could recognise that the children had come up as if they were little puppets, wound up, ready to tell her a story, but as they unwound, their stories became replete with contradictions and it became apparent that the children had been coached, manipulated, and their view of events rephrased to achieve the mother’s goal and Ms B believed the mother was seeking revenge;

   l)the mother was seeking revenge for the fact that her behaviour was viewed as unhelpful to the children;

   m)Ms B was called a liar by G, an accusation Ms B found utterly shocking for the reason that a 14-year-old child had told an officer of the court that she was a liar;

   n)the mother phenomenally intruded on the father’s capacity to parent;

   o)the mother seemed to have a hand in the children asking the father questions about whose name was on the contract for the house that he purchased and asking him questions about his prior depression, medication and treatment;

   p)the children spoke to Ms B about their rights and their entitlement to make choices about parenting arrangements;

   q)it was apparent that the children had no anxiety or fear about their father, despite the mother’s historical pattern of behaviour of encouraging the children to make reports to Organisation S about their father or to report issues to the police, a behaviour quite entrenched in the children;

   r)the mother was repeatedly asked why she did not bring an application to the court if she was so upset and distressed about matters, to which she reported to Ms B that she had attempted to attend mediation, but Ms B was of the view that the mother’s discussions with the mediation centres would have been so contaminated by artificial claims of family violence it would be unlikely that mediation would proceed;

   s)the mother did not see it being her role to direct E,   to spend time with his father;

   t)the mother acknowledged she had asked the children about parenting arrangements and she gave Ms B an option of fifty-fifty shared care, which she said was how it should have been in the beginning, a matter expressed by Ms B but that Ms B said the mother was unable to support;

   u)the children were emotionally disturbed by their mother and Ms B believed the mother was abusive, that she hectored the children and that she undermined the father’s relationship with the children;

   v)the one genuine thread in the situation was that the children did want to spend some more time with their mother, a reasonable request in Ms B’s opinion, however the issue was under what conditions and whether or not the mother would actually permit the children to see and spend time with their father;

   w)the entire dilemma was managing the children;

   x)Ms B was of the view that a lot of damage had already been caused, creating problems in adult relationships, difficulties separating from others and making appropriate choices about relationships;

   y)there were no boundaries;

   z)enmeshment between the mother and the children had occurred;

   aa)Ms B considered this  a vengeful response not only in terms of the change of orders but because orders were made that the mother not attend the school, yet the mother had told the children the father was not to come to the school and the mother had told Ms B that the mother said the father should not be able to attend the school;

   bb)the mother needed to dominate and control the situation, she viewed herself as the only parent, she was enmeshed with the children, she does not believe they can act independently and without her, she does not believe they have views that are independent of hers;

   cc)Ms B was troubled by the mother’s choice not to cross-examine her because in 2016, the mother did not cross-examine Ms B on her report and instead she went to the Magistrates’ Court to seek orders;

   dd)Ms B’s concern was that the mother’s behaviour was egregious; and

   ee)Ms B said it was foolish for the mother to be combative and Ms B had expressed deep concerns that the children be informed that the reasons that there would be a change in arrangements was because the mother had elected to seek legal advice, and during that time, a different pattern of care emerged as a result of their mother’s choice, as opposed to the view that their demon father had done something terrible.

8. By the end of the day on 30 April 2019, Ms B had given her evidence viva voce and she had been questioned by Mr Hoult of counsel and by the independent children’s lawyer.  Ms B recommended that the children were to accompany the father to his home overnight and to return to court the next day.  I asked Ms B how her recommended course of action would unfold.  The exchange was as follows –

   HIS HONOUR: …

   [Ms B], is it your recommendation at the close of play today that the children return to the father?

   [MS B]:   I think that in – that might be a healing action if [Ms Andrews] were to say to the children I have decided that tonight you will go home and spend tonight with your father, that we need to do some rebuilding and repair and I would like you to spend tonight with dad and I will see you – dad will bring you back to court tomorrow and I will see you tomorrow.  And I would facilitate [Ms Andrews] saying good morning to the children in the childcare room should she present to level 5.

   HIS HONOUR:   Is the risk that they may not remain in his care overnight?

   [MS B]: That depends how [Ms Andrews] presents it.  She can tell them this is an expectation, she wants them to be safe and to remain in his care and not to be running around the streets, and to tell them that they have possibly misunderstood her, that she does not want them running to see her.  She wants to know at all times where they are and that they’re safe.

9. At the end of the court hearing on 30 April 2019 I addressed the mother.  It was in the following terms –

   HIS HONOUR:   [Ms Andrews], you’ve heard what has been the subject of discussion back and forth, especially as to the suggestion that the children go home and spend the night with their father then return tomorrow.  Is there anything you would like to say about that?

   [MS ANDREWS]:   I’m happy to facilitate that.

   HIS HONOUR:   You’ve also heard that [Ms B] recommends that you may wish to take on board certain things that you – that she suggests you communicate to the children.  You’ve heard what she says.  No doubt you will want to say something about that tomorrow when you question her but is there anything you want to say about it to me now?

   [MS ANDREWS]:   No.  That’s fine.

10. Court then adjourned for the day on 30 April 2019.  On 1 May 2019 Ms B returned to the witness box.  In answer to a line of questioning through the independent children’s lawyer Ms B said that in her view the children should have some counselling.  Ms B then provided certain observations about the changeover after court on 30 April 2019.  She said the youngest child stated that no one had asked him whether he wanted to go, he said he did not want to go and so he was not going.  Of the mother, Ms B said the following –

    She needs to dominate and control the situation.  She’s the only parent.  She’s enmeshed with the children, that is, she doesn’t believe they can act independently and without her.  She doesn’t believe they have views that are independent of hers.  They only have her views, and she spends a lot of time discussing this with them.

    …

    It just tells me about the extent and breadth of the conversation, and how the children have become disciples to achieve the mother’s goal, but also as weapons of war.  They’re to claim the father is violent and abusive, which is a horrific thing for them to do, and is not their lived experience of their father.  And they’re to say that they’re scared of the father, which they’re clearly not, in order to achieve her goals.  And this speaks – either [Ms Andrews] can catch on and understand what I’m saying, or it speaks horribly about her mental state.  And it implies to me that her thinking about parenting is extraordinarily tainted and deeply concerning.

11. I then offered the mother the opportunity of pursuing any matters she wished to pursue with Ms B.  She told me that she had wanted to wait until she spoke to the duty lawyer and had an opportunity to get legal advice.  She told me she had sent an email to a firm of solicitors and she been placed in the queue of people seeking assistance from a duty lawyer on 1 May 2019.  Mr Hoult told me the mother had seen a duty lawyer on 30 April 2019 and that both Mr Hoult and Ms Lonergan had spoken at length on 30 April 2019 with the duty lawyer.  Ms Lonergan said this case may be in the category of cases where the duty lawyer may not appear to represent the mother.  It struck me as being peculiar that on the second day of this hearing, after Ms B had given a very considerable amount of viva voce evidence, the mother could usefully be assisted by a legal advisor who had not been present to hear Ms B’s evidence with the consequence that the mother could, at best, paraphrase the overall thrust of the witness’s evidence.  I refused the mother’s request to see the duty lawyer.  These were the brief reasons for so doing –

    HIS HONOUR:   Okay.  Thank you.  [Ms Andrews], I’m against your request.  You’ve had an abundance of opportunity to seek advice.  I can’t see how you could accurately convey the minutiae of [Ms B]’ evidence to this court, over the hour that she gave evidence yesterday, and the half hour that she has been in the witness box today, in such manner as might somehow alter the complexion of your case as it presently stands.  I accept what Mr Hoult tells me, that you had the benefit of a discussion with the duty solicitor yesterday.  You have sat through the entirety of this proceeding since yesterday and today.  You, better than anyone, are appraised of the facts of the case, and at all events whatever you might convey to the duty solicitor would be based on your instructions and you, better than anyone, are presently equipped to ask [Ms B] whatever factual information you, based on your personal status of this case, wish to put to her.  You’re the best person to do it.  So we’ve reached the moment for you to do that and let’s proceed.

12. The mother then said she had no questions. 

13. Ms B made several observations about that.  They were as follows –

    Can I just backpedal for a minute, in terms of how troubled I am about what has just transpired because in 2016, [Ms Andrews] didn’t cross-examine me on the basis of the report I presented.  She went down to the Magistrates’ Court to seek orders and a restraint to any court – or Family Court orders for 21 days, a delaying tactic.  And I’m sitting here again listening to her, effectively, tell the court, “I have” – “I” – “If I’ve heard anything, I’m” – “that has been said this day, I’m not interested in it, and I’m not going to use this opportunity to make changes.”  That’s what bothers me greatly.  So we are left with the dilemma of trying to facilitate [Ms Andrews] to spend time with her children when she’s actually abusive not only to the children, to the father, but also to the court process.

14. Mr Hoult and Ms Lonergan were invited to ask about anything further.  Both took up the invitation.  In answer to a request for Ms B’s recommendation about the mother’s time, Ms B recommended that I do nothing to interfere with the orders made by Cronin J.  Ms B said that under the regime ordered by his Honour, the father determines what time the mother spends with the children.

Consideration

1. A primary issue involved my consideration of the appropriateness of making orders the effect of which was to reconfigure the final orders made by Cronin J following the trial of this proceeding.  The parties recognised that the circumstances in January 2016 when Cronin J addressed this case were materially different to those that presented themselves in April 2019 and therefore it was appropriate to revisit the orders previously made even though the orders made in January 2016 were expressed to be final orders.  To my mind, one of the most compelling factors pointing to the existence of a material change in circumstances was the fact that the children are actively engaged in absconding from the care of the father.  Ms B was of the view that the mother was wholly participative in the children’s absconding either in inciting it or in failing to denounce it.  Their running away exposed the children to very great personal risks.  It seemed to me that not only was it appropriate for the court to intervene in those circumstances but that such intervention was consistent with the role of this court to act protectively towards minors as each of the children are.

2. In addition, the mother sought orders for the hearing of her application in a case in which she wanted sole parental responsibility for the children.  In order for me to at least embark upon a consideration of her application I was required to invoke the principle in Rice v Asplund[1] by considering whether to alter the final parenting orders that were made in this case in January 2016.

   [1] (1978) FLC 90 - 725

3. It is instructive to observe that neither the father, the independent children’s lawyer nor the mother protested about my embarking on a detailed consideration of the case, especially with the assistance so helpfully given by Ms B.

4. One of the biggest issues in the case was whether the father or the mother should have sole parental responsibility for the children having regard to the assertions by the children that they did not wish to spend time with the father.

5. At an evidentiary level, it was unduly glib and inaccurate to paraphrase the evidence in that way.  Ms B more correctly distilled the evidence.  As she said, the issue was not whether the children did not wish to spend time with their father but rather, the issue was whether the mother interfered in and thereby derailed valid orders previously made by Cronin J in January 2016.  Ms B took into account the expressed wishes of the children and concluded that the older two children did not in fact express the view that they did not wish to spend time with their father.  She said that once directed about proper, acceptable and appropriate behaviour following the hearing on 30 April 2019, the eldest two children responded positively and then returned the next day, having successfully spent an overnight with the father.  Ms B had successfully dug to the bottom of the complexity before her by expressing the real reason for the children’s assertions that they did not wish to spend time with the father.  Her view was in two words – the mother.  The mother had undermined the father’s relationship with the children.  The mother had immersed herself so deeply in the advancement of her disdain for the father that she used her own children as weapons against him.  Not only did that reveal highly inappropriate parenting but it revealed a disdain for the court process and a willingness to do all in her power to ensure that the orders made in January 2016 were rendered nugatory.  This court should set its face against that conduct.

1. So far as the youngest child was concerned, his age rendered him particularly vulnerable to the mother’s manipulative behaviour.  His bravado in his presentation of empowerment was the product of years of his mother engaging in inappropriate conduct.  That ranged from discussing the case with him to not ensuring previous orders were honoured.  Ms B spoke of the children being the mother’s “disciples”.  To my mind there was considerable force in that characterisation.

2. In the passages above I have set out in some little detail the evidence given in this case by Ms B.  In particular, I rely on her evidence about –

   a)the inappropriate behaviour of the mother;

   b)conversely, the commendable and child-focused behaviour of the father;

   c)the absence of risk when the children are in the father’s care;

   d)conversely, the chaotic lifestyle to which the children are exposed when in the mother’s care;

   e)the early indicators of enmeshment;

   f)the early indicators of alienation;

   g)the absence of physical or emotional risk to the children when they spend time with their father; and

   h)how a diligent mother would and should ensure that children are exposed to a harmonious relationship with their father rather than one embedded with a vitriolic approach to the father.

3. It was readily apparent that Ms B agonised over the best way forward in this case. After deep reflection she recommended that the mother’s application for sole parental responsibility should be rejected, that the orders of Cronin J should be reinstated and that the father should determine when and in what circumstances the mother should have time with the children. Having heard extensive evidence on the point I am of the view that the presumption of equal shared parental responsibility has in fact been displaced in the circumstances of this case. The mother has demonstrated her inability to behave in a manner consistent with the intendment underpinning s 61DA. I have carefully considered the best interests of the children in accordance with s 60CC(3) of the Family Law Act in arriving at my decision. In particular, I have considered –

   a)the children’s expressed views;

   b)the nature of the relationship of the children with both parents and the parents’ attitude to their responsibilities as well as their parental capacity;

   c)the extent to which one parent has failed to participate in decision-making about the children;

   d)the extent to which either parent has fulfilled or failed to fulfil his or her obligation to maintain a child;

   e)the likely effect of any change in the children’s circumstances including separation from a parent; and

   f)the best order that will be least likely to lead to further litigation.

4. Section 60CC(3) of the Family Law Act calls for other issues to be addressed, as I have done, but those set out above are the most presently relevant.  In response, in my view the following may be said –

   a)the children’s expressed views have been conveyed through Ms B, the details of which I have recorded above;

   b)the children enjoy a favourable relationship with both parents yet the father provides an environment that is considerably more child focused and it is constructive whereas the environment the mother provides is unstructured, chaotic and has at its core the denigration of the father;

   c)the wife has failed to participate in proper decision-making for the children, especially to ensure the children regularly attend school and instead she allows them to play video games prior to school or fails to insist they stop watching television when they should be with their father, conversely the father has the children’s interests squarely in his focus;

   d)the maintenance of the children was not an issue that occupied any attention before me so the observations of Cronin J in paragraphs 96 and 97 of his Honour’s reasons continue to apply;

   e)the likely effect of a change in the children’s circumstances has been addressed extensively by the evidence of Ms B.  I accept the evidence that once directed to behave in a proper manner the children are not fearful of their father and have come to accept that they live with him yet they spend time with the mother;

   f)the children are not suffering from not living with their mother and they seemed to enjoy the time they spent with her; and

   g)the orders least likely to propagate further litigation involve restoring the orders made by Cronin J.

5. When properly analysed, there is a high degree of validity in the concept that the mother orchestrated the events leading to the making of the recovery order.  She encouraged the children to not return to the father.  That enlivened the father’s fears for the children’s safety.  Quite properly the father applied for orders in the Magistrates’ Court.  The mother ignored those.  The father then applied ex parte for a recovery order.  Rather than insisting on the children returning to the father the mother filed her own application seeking to wholly reconfigure the orders made by Cronin J.  She persisted in her mantra that the children feared their father, that he was violent and that if returned to his care he would physically and emotionally mistreat them.  None of that had substance, as Ms B observed.  Instead, the mother’s behaviour was a ploy to orchestrate the maximum amount of disarray in the children’s interaction with the father.  Then, during the running of this hearing, at the precise moment the mother could have challenged Ms B on all her theories, the mother chose not to do so in exactly the way she conducted herself before Cronin J.  Ms B was correct in observing how the mother exhibited disrespect for the court process.

6. I have concluded that no proper basis has been shown to interfere with the orders made by Cronin J.  The final orders will be to the following effect –

   a)the proceeding MLC4149/2019 is consolidated with this proceeding and I order the evidence in one to be treated as evidence in the other;

   b)the warrant directed to the Marshal dated 18 April 2019 is discharged;

   c)I grant liberty to apply;

   d)the contravention application filed by the wife on 18 April 2019 is dismissed;

   e)the initiating application filed by the wife on 18 April 2019 is dismissed;

   f)I order that the orders made by the Honourable Justice Cronin on 28 January 2016 remain in full force and effect; and

   g)otherwise all applications are dismissed.

Parting note

1. The mother would do well to abide the observations of Ms B given on 30 April 2019 and 1 May 2019.  To do otherwise may compromise further time she has with the children.  Given the time and effort involved in this hearing and the conclusions reached, these reasons may provide context to subsequent litigation so I grant leave for these reasons to be produced before the Magistrates’ Court on the hearing of the mother’s application for an intervention order against the father.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 3 May 2019.

Associate:

Date:  3 May 2019