Cappetto and Cappetto (No 3)
[2011] FamCA 345
•11 May 2011
FAMILY COURT OF AUSTRALIA
| CAPPETTO & CAPPETTO (NO 3) | [2011] FamCA 345 |
| FAMILY LAW - CHILDREN – With whom the children should live – Where the mother’s actions threatened the children’s social development – Where the mother’s extensive allegations against the father were unfounded – Where the mother has developed and exposed the children to irrational fears about the father – Best interests of the children to live with the father – Where the mother has made comments insinuating harm to herself or the children – Period of supervised time with the mother ordered |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 |
| APPLICANT: | Mr Cappetto |
| RESPONDENT: | Ms Cappetto |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels |
| FILE NUMBER: | SYC | 7342 | of | 2008 |
| DATE DELIVERED: | 11 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 7 April 2011 to 14 April 2011 and 19 April 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels & Associates |
Orders
All previous parenting orders in respect to the children of the marriage namely B born … September 2005 and S born … July 2007 (the children) be discharged.
The father have sole parental responsibility in respect to all long term issues relating to the children. Before making and implementing decisions about long term issues, the father is to give 21 days written notice to the mother of the decision he intends to make and consider any view expressed by the mother in writing within 14 days after giving her the notice.
The children live with the father.
Subject to compliance with orders 5, 6 and 7, the children spend time with the mother initially as follows:
4.1.
From 11.00am until 2.00pm on Saturday 21 May 2011, Saturday 4 June and 18 June 2011;
4.2.On expiration of paragraph 4.1 of the Orders contained herein each Saturday from 10.00am until 4.00pm, the first such period to be on Saturday 25 June 2011 and to continue until 28 January 2012;
4.3.From 4.00pm until 6.00pm on the Mother’s birthday, … September 2011;
4.4.From 11.00am until 2.00pm on S’s birthday, … July 2011 (noting that B’s birthday in 2011 already lies on a visitation day); and
4.5.The father is to make the children available to receive a telephone call from the mother between 6.00pm and 6.30pm on every Tuesday and Thursday, and he is to otherwise facilitate that communication. The father may listen to the phone call, and terminate the phone call in circumstances where the mother does not comply with order 5 below.
During the mother’s time with the children in accordance with orders 4.1 to 4.4 and 9.1 to 9.8, and her telephone contact in accordance with 4.5 and 9.9, she shall not do or say anything which endangers the safety, health or well-being of the children either physically or emotionally, act inappropriately or say anything inappropriate to or in the presence of the children, denigrate the father or attempt to undermine the effect of these orders.
The mother’s time with the children pursuant to paragraph 4.1 to 4.4 of the Orders is to be supervised by Dr M or by such other person as agreed to by the parties in writing (“the supervisor”). The supervisor is to read a copy of my reasons for judgment prior to supervising the mother with the children.
The mother’s time with the children pursuant to paragraph 4.1 to 4.4 of the Orders be further subject to the following conditions:-
7.1.
Prior to the children’s supervised time with their mother the supervisor sign the Undertakings set out at the conclusion of these orders and such Undertakings be lodged by the mother with the Registry of the Family Court of Australia at Sydney.
7.2.
The mother provide a sealed copy of the signed Undertakings to the father and to the Independent Children’s Lawyer.
7.3.
In the event that the Mother endangers the safety, health or well-being of the children either physically or emotionally, acts inappropriately or says anything inappropriate to or in the presence of the children, denigrates the father or attempts to undermine the effect of the orders contained herein, the supervisor is forthwith to terminate the mother’s time with the children and the supervisor is to immediately contact the father so that he might collect the children.
In the event that the mother breaches Order 5, all further time between the children and the mother is to be suspended pending further agreement between the parties or further Order of the court.
Subject to Order 11 and in the event that the mother complies with paragraphs 4, 5, 6 and 7 of the Orders contained herein and in addition completes a post separation and counselling course, the mother’s time with the children from 10 December 2011 to be as follows:
9.1.From 4 February 2012 to 14 April 2012 each alternate weekend from 6.00pm on Saturday until 6.00pm on Sunday;
9.2.From 27 April 2012, each alternate weekend from 6pm on Friday until 6.00pm on Sunday;
9.3.
For half of each school holiday period at times and dates to be agreed by the parties and failing agreement to be the first half of the school holidays commencing at the conclusion of second term 2012.
9.4.From 4.00pm until 6.00pm on the Mother’s Birthday should it fall on a school night, or 12.00pm until 6.00pm should it fall on a weekend where the mother would not ordinarily be spending time with the children.
9.5.In the event Mother’s Day falls on a non-contact weekend, from 12.00pm to 6.00pm on Mother’s Day.
9.6.From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an odd number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an even number.
9.7.From 4.00pm to 6.00pm on each of the children’s birthdays should they fall on a school day, or 1.00pm to 6.00pm should they fall on a weekend day where the mother would not ordinarily be spending time with the children;
9.8.At such other times and dates as agreed to by the parties; and
9.9.
The father is to make the children available to receive a telephone call from the mother between 6.00pm and 6.30pm on every Tuesday and Thursday.
10. In the event that the mother fails to comply with the conditions referred to in order 9 and 5, the mother’s time with the children to be in accordance with paragraph 4.2, to 8 of these Orders.
11. Notwithstanding any other order which might be inconsistent, the children spend time with the father:
11.1.From 12.00pm until 6.00pm on the father’s birthday, should it fall on a day the children would ordinarily be spending time with the mother;
11.2.In the event Father’s Day falls on a contact weekend with the mother, from 12.00pm to 6.00pm on Father’s Day;
11.3.From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an even number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an odd number; and
11.4.From 1.00pm to 6.00pm on each of the children’s birthdays, should they fall on a weekend where the father would not ordinarily be spending time with the children.
12.
Neither parent physically discipline the children.
13.
All changeovers to take place at landmark 1 in the Sydney Suburb 1 Mall precinct or at such other place agreed between the parties in writing,
14.
The father complete a post separation and counselling course.
15.
The father do all things necessary and sign all documents required to ensure that the child B attend a public school or private school of his choice as soon as reasonably practicable, taking into account B’s medical needs and requirements.
16.
The father do all things necessary and sign all documents required to ensure that B’s school forwards directly to the mother copies of all school reports and notices relating to B.
17.
The father do all things necessary and sign all documents required to ensure that the child S continues to attend pre-school at least two (2) days per week.
18.
Upon S reaching school age the father do all things necessary and sign all documents required to ensure that S attend a public school or private school of his choice.
19.
The father do all things necessary and sign all documents required to ensure that S’s pre-school and/or school forwards directly to the mother copies of all pre-school and/or school reports and notices relating to S.
20.
The father keep the mother advised at all times of any significant health, medical, religious or educational issues relating to the children.
21.
The father ensure that the children attend on a paediatrician at regular intervals and that he follow all reasonable advice and recommendations of the paediatrician.
22.
The parties do all things reasonably necessary to ensure that both children are fully toilet trained and the parties follow the recommendations of the children’s paediatrician in that regard.
23.
Each party ensure that they keep the other advised at all times of their respective residential address and telephone number.
24.
Neither party shall denigrate the other or permit any third party to do so within the presence or hearing of the children.
25.
Neither party discuss any issues arising out of these proceedings with the children or permit any third party to do so.
26.
The children’s Australian passports be released to the custody and control of the father.
27.
The Order appointing the Independent Children’s Lawyer continue for a period of 12 months after the date of these orders, and that he facilitate the signing and lodging of the undertaking by Dr M, as soon as practicable.
28. All pending and/or outstanding Applications relating to parenting proceedings between the parties be otherwise dismissed.
29. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
30. Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
Undertakings
I [name] agree to act as supervisor in the time the mother, Ms Cappetto, spends with the children, B and S Cappetto. I will keep the mother within my sight and hearing at all times that she is in close proximity with the children. In the event that the Mother endangers the safety, health or well-being of the children either physically or emotionally, acts inappropriately or says anything inappropriate to or in the presence of the children, denigrates the father or attempts to undermine the effect of the orders contained herein, I will terminate the mother’s time with the children and immediately contact the father so that he might collect the children.
Signed __________
Dated ___________
IT IS NOTED that publication of this judgment under the pseudonym Cappetto & Cappetto (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7342 of 2008
| Mr Cappetto |
Applicant
And
| Ms Cappetto |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The mother and father were married for five years and there are two children of the marriage, now aged 5 years and 8 months and 3 years and 10 months.
Until 22 March 2011 the mother has been the primary carer of the children. Court orders have been made from time to time to ensure the children spend time with the father. Compliance by the mother has been problematic.
On 22 March 2011 I made interim orders that the children live with the father. This was a decision that erred on the side of caution following a letter from the mother to the Court, which on one interpretation, indicated that harm might come to the children.
After the final part of the hearing, spanning seven days, my task is to now make final orders regarding where the children are to live and how much time they are to spend with the non-resident parent. The main issues are the allegations of domestic violence and sexual abuse made by the mother against the father on one hand, and the father and court expert’s fears about the mother’s parenting on the other. The Independent Children's Lawyer generally supports the children being with their father and initially only spending supervised time with the mother.
APPLICATIONS
Independent Children’s Lawyer
The Independent Children’s Lawyer handed up the following amended orders sought on the final day of the hearing:
1.
That all previous parenting orders in respect to the children of the marriage namely [B] born […].9.2005 and [S] born […].7.07 be discharged.
2. That the father have sole parental responsibility in respect to all long term issues relating to the said children [B] born […].9.2005 and [S] born […].7.07.
3.
That the children live with the father.
4.
That the mother spend time with the children initially as follows:
a.From 11.00am until 2.00pm on Saturday 30 April, 14 May and 28 May 2011.
b.
On expiration of paragraph 4a of the Orders contained herein each Saturday from 10.00am until 4.00pm first such period to be on Saturday 4 June 2011 and to continue until the end of November 2011.
5.
That the mother’s time with the children pursuant to paragraph 4a and b of the Orders contained herein be supervised by [Dr M] or by such other person as agreed to by the parties in writing.
6.
That the mother’s time with the children pursuant to paragraph 4a and b of the Orders contained herein be further subject to the following conditions:-
a.
The said [Dr M] sign the attached Undertakings and such Undertakings be lodged by the Mother with the Registry of the Family Court of Australia at Sydney.
b.
That the mother provide a sealed copy of the signed Undertakings to the father and to the Independent Children’s Lawyer.
c.
In the event that the Mother endangers the safety, health or well-being of the children either physically or emotionally, acts inappropriately or says anything inappropriate towards or in the presence of the children, denigrates the father or attempts to undermine the effect of the orders contained herein the mother’s time with the children is to be terminated forthwith and the supervisor is to immediately contact the father with a view that he collect the children.
7.
In the event that the mother breaches any of the above conditions and in particular Order 6c above the mother’s time with the children is to be terminated and that in such circumstances all further time between the children and the mother is to be suspended pending further agreement between the parties or further Order of the court.
8.
In the event that the mother complies with paragraphs 4, 5 and 6 of the Orders contained herein and in addition completes a post separation and counselling course the mother’s time with the children from December 2011 to be as follows:-
a.
Each alternate weekend from 6.00pm on Friday until 6.00pm on Sunday.
b.
From Easter 2012 for half of each school holiday period at times and dates to be agreed by the parties.
c.
Telephone communications no more than once per week unless the parties shall otherwise agree.
d.
At such other times and dates as agreed to by the parties.
9. In the event that the wife fails to comply with paragraph 8 herein the wife’s time with the children to be in accordance with paragraph 4(b) of the Orders contained herein.
10.
That neither parent physically discipline the children.
11.
That failing agreement between the parties all changeovers to take place at [Landmark 1] in the [Sydney Suburb 1] Mall precinct.
12.
That the father complete a post separation and counselling course.
13.
That the father do all things necessary and sign all documents required to ensure that the child [B] attend a NSW Public School or Private school of his choice as soon as reasonably practicable taking into account [B’s] medical needs and requirements.
14.
That the father do all things necessary and sign all documents required to ensure that [B’s] school forwards directly to the mother copies of all school reports and notices relating to [B].
15.
That the father do all things necessary and sign all documents required to ensure that the child [S] continues to attend pre-school at least two (2) days per week.
16.
Upon [S] coming of school age the father do all things necessary and sign all documents required to ensure that [S] attend a NSW Public School or Private school of his choice as soon as reasonably practicable.
17.
That the father do all things necessary and sign all documents required to ensure that [S’s] pre-school/school forwards directly to the mother copies of all pre-school/school reports and notices relating to [S].
18.
That the father keep the mother advised at all times of any significant health, medical, religious or educational issues relating to the children.
19.
That the father ensure that the children attend on a paediatrician at regular intervals and that he follow all reasonable advice and recommendations of the paediatrician.
20.
That the parties do all things reasonably necessary to ensure that both children are fully toilet trained and the parties follow the recommendations of the children’s paediatrician in that regard.
21.
That each party ensure that they keep the other advised at all times of their respective residential address and telephone number.
22.
That neither party shall denigrate the other or permit any third party to do so within the presence or hearing of the children.
23.
That neither party discuss any issues arising out of these proceedings with the children or permit any third party to do so.
24.
That the children’s Australian passports be released to the custody and control of the father.
25.
That the Order appointing the Independent Children’s Lawyer continue for a period of 12 months after the date of these orders.
26.
That all pending and or outstanding Applications relating to parenting proceedings between the parties be dismissed.
Applicant Father
The father generally supports the Orders proposed by the independent children’s lawyer. There are only five areas where the father’s orders sought would differ in terms and these are:
6.1.That the father have sole parental responsibility, but that he consult with the mother about long term decisions;
6.2.That overnight time pursuant to proposed order 8(a) begin at one overnight rather than two consecutive nights;
6.3.That telephone time pursuant to proposed order 8(c) begin at 6pm to 6:30pm on Tuesday 19 April 2011 and occur every Tuesday and Thursday at those hours after that. I made an interim order on the last day of the hearing that such telephone contact occur until I deliver judgment and should the children live with the father I intend for that order to continue;
6.4.That special days should be provided for, including Christmas, birthdays and Mother’s Day, with Christmas Day being split between the parties; and
6.5.The father noted, in relation to proposed order 15, that S now already attends preschool 4 days per week.
Respondent Mother
The mother’s Response was filed on 28 April 2009, simply seeking that the children live with her, and spend 2 supervised hours with the father each week, and any other time as agreed. Various affidavits by the mother since that time contained different proposals by the mother, including that the children see the father only when they want to and are not to be forced. At the conclusion of the hearing the mother sought that the children live with her and that she have equal shared parental responsibility. Throughout the hearing the mother was unable to articulate what time the children might have with the father and in what circumstances, contenting herself by saying she would leave it to the court to make an order which was in the children’s best interests, but making it clear she would want such visits to be supervised.
DOCUMENTS RELIED UPON
Applicant Father
The Applicant Father relied on the following:
8.1.Father’s affidavit filed 4 April 2011;
8.2.Father’s affidavit filed 22 February 2011;
8.3.Father’s affidavit filed 28 January 2011;
8.4.Father’s affidavit filed 19 October 2010;
8.5.Father’s affidavit filed 6 April 2010;
8.6.Father’s affidavit filed 29 June 2009;
8.7.Father’s affidavit filed 15 May 2009;
8.8.Affidavit of Mr G filed 30 March 2011;
8.9.Affidavit Mr T filed 5 April 2011;
8.10.Dr R’s report dated 10 November 2010;
8.11.Exhibit L (from previous proceedings) which is a letter from registrar George to the father and the independent children’s lawyer of 24 May 2010;
8.12.Exhibit M (from previous proceedings) which is a letter from the independent children’s lawyer of 16 January 2010
Respondent Mother
The mother had filed a large number of documents, many of which she said she did not want to rely upon in the final part of the hearing. The mother explained in her affidavit of 4 April 2011 that she had included inappropriate “emotion laden statements” in her previous affidavits, and apologised, explaining “I guess it was a result of long standing abuses and pressures”.
Nonetheless I thought these documents should be in evidence even though the mother didn’t rely upon them and wasn’t to be tested about what was in them. On my own motion I made this material an exhibit (Exhibit W) as it was read by Dr R and is the material upon which he formed his opinions. The material also demonstrates what the mother was prepared to say about the father, and the way in which she was prepared to say it.
The documents the respondent mother sought to rely upon are as follows:
11.1.Mother’s affidavit filed 7 April 2011;
11.2.Mother’s affidavit filed 7 April 2011 (attaching witness statements);
11.3.Mother’s affidavit filed 4 April 2011 (No. 1);
11.4.Mother’s affidavit filed 4 April 2011 (No. 2);
11.5.Mother’s affidavit filed 4 April 2011 (No. 3);
11.6.Notice of Child Abuse filed 3 May 2010 and affidavit 3 May 2010;
11.7.Mother’s affidavit filed 5 March 2010;
11.8.Mother’s affidavit filed 10 June 2009;
11.9.Mother’s affidavit filed 28 April 2009; and
11.10.Affidavit Ms C filed 7 April 2011.
Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following:
12.1.Affidavit of the Independent Children’s Lawyer filed 30 March 2011;
12.2.Affidavit of Dr L filed 30 March 2011; and
12.3.Single Expert Report of Dr R dated 10 November 2010.
SHORT HISTORY
The father was born in 1960, and is currently 50 years of age.
The mother was born in 1971, and is currently 39 years of age.
In 2003, the parties married.
B was born in September 2005, and is currently 5 years and 8 months.
S was born in July 2007 in India, and is currently 3 years and 10 months.
On 9 June 2008, the parties separated.
CREDIT
Father
The father maintained a calm and controlled demeanour throughout the proceedings. The father made a denial of each of the incidents that the mother and her family alleged against him whilst the parties were in India. The mother chose not to attempt to test the father about any of those incidents, given the father’s blanket denial.
Both parties represented themselves in the proceedings, I had the opportunity to observe both of them at length, not only over the seven days of the final hearing, but during the earlier phases of the less adversarial hearing and also during interlocutory hearings. During the final phase, I particularly was able to observe the interaction of the parties during their questioning of one another. At one point I commented that the mother seemed to be more assertive than the father and it was my general observation that the mother did not seem in any way intimidated in her verbal interactions with the father. She certainly gave me no impression in the final phase of the hearing that she was in any way fearful of the father. The mother told me that this was her demeanour since separation. She explained that throughout the marriage she was ‘timid’ and that this court proceeding is the first time where she had not been timid with the father. All of this was in contrast to the assertions at a time not long ago that she was so fearful of the father that she would not reveal her residential address to him and not allow B to go to school because she was afraid of what the father might do to B. ‘Timid’ behaviour is certainly not reported by the Pastor when he observed the parties one night in 2008.
Although I was mindful of the mother’s claim that the father had a ‘public’ and a ‘private’ face, I saw no glimmer in all the time I observed the father of any anger or belligerence. It should be remembered that the father comes to this hearing as a late and reluctant candidate to fulfil the role of primary carer for the children. At one point during the less adversarial trial, he wasn’t putting his hand up to have the children at all, and that necessitated me making a request to the Department of Community Services to intervene in the proceedings (which request they refused). At my suggestion, the father easily agreed to put aside at least two contravention applications he had brought against the mother, seemingly on strong ground, in order to focus on the children’s future arrangements.
The father was not caught in any obvious lie. I formed the view that the father was attempting to honestly respond to what was put to him.
Pastor B
Pastor B appeared to give evidence as a result of being served with a subpoena. The subpoena set out paragraphs 68 to 72 of the father’s affidavit of 15 May 2009 in which the father dealt with the day when Pastor B came to the parties’ home. The subpoena asked the pastor to come to the Court and give evidence about what he remembered happening on that day in May 2008. The Pastor’s memory was not perfect. For example, both parties agreed that after the Pastor arrived at the parties’ home, the Pastor went to a neighbour’s house to fetch the mother. That was not the Pastor’s initial memory. The mother also tested the Pastor about his memory of his involvement with her and with the family generally on occasions prior to this date. I formed the view that the Pastor’s memory of the parties prior to this date was vague. However, what I accept is the Pastor’s expression of a clear memory about the mother’s demeanour and behaviour at the home of the parties on that particular occasion in May 2008. He agreed with the father’s description that the mother was “aggressive, rude and irrational”. The mother herself, when questioning the Pastor, did not seem to dispute this categorisation of her behaviour. She explained to the Court that she was acting in the manner described because of the way the father had treated her earlier in the day.
Mr G
Mr G gave his evidence seemingly without guile. He is the father’s ‘best friend’ and has helped him out in settling the children with the father since they came to live with the father on 23 March 2011. In fact, the father used his motor vehicle, because it had child restraint anchors, when a recovery order had been made at short notice. I accept Mr G’s evidence, that in all the time he has known the father, he has not known him to have a nature or to have behaved in any way that would indicate that he was likely to be violent or that he was an alcoholic.
Mr T
Mr T was an acquaintance and former flat-mate of the father. He had seen the father angry, but he had never seen the father violent. He had not seen the father act in any antisocial way or drink heavily. Mr T had come to the mall in suburb C on three occasions when the mother made the children available to the father. He took video footage of the children with the father’s implicit approval. The mother seemed to believe that this was either illegal or immoral, given she had not given her permission for that to happen. I indicated to her that I found nothing wrong with what Mr T had done. There is no need for me to doubt anything that Mr T had said.
Mother
The mother did not impress me as a reliable witness. At times she appeared to be fabricating evidence. At other times it appeared that she had misinterpreted events to such a degree that her evidence lacked any credibility, though I could see she was convinced of her own version of events. The mother obviously feels that she was mistreated by the father and his family during the marriage. I accept the mother was very unhappy during the marriage, and this, combined with vulnerabilities in her personality, colours her view of the value of the father in the lives of the children.
In regards to the mother misinterpreting events, this was an opinion similarly held by the single expert. In his report of 10 November 2010, Dr R stated that the mother’s “ideas appeared overvalued in nature and anxiety based” though not delusional. He said she exhibited “paranoid personality features”. Without a full testing of the mother’s allegations against the father (some of which were not known at the time) Dr R’s view was that the mother’s fears about the children being maltreated and abused at the hands of the father, or any other person, were ‘irrational’, ‘overvalued’ and ‘fantasies’, and her resulting behaviour was “extreme”. Based upon the information he had at the time including information obtained during interviews with the parties, Dr R concluded that “there was no substance to any of the allegations of abuse. The allegations of sexual abuse appeared to be extremely whimsical and vexatious”.
In oral examination Dr R was updated as to the mother’s most recent allegations. He did not change his opinions as to the credibility of the mother’s allegations. He reiterated that the mother’s fear regarding her children was ‘extraordinary’ and lacked reason, often with no basis in fact. He explained that the mother’s interpretation of events was over the top, leading to a “catastrophisation” of the event. I note in the simple and innocent act of the father bringing a book for the children to the session with Dr R, the mother concluded the father was trying to manipulate the children.
Dr R did acknowledge that I was the fact-finder in relation to such allegations, and I would make those findings based on the complete evidence put before me in the hearing, and then consider his opinions in that light. He advised that if I find the mother’s allegations had merit, then he would recommend the children stay with the mother, though his fears remained about their wellbeing under the mother’s care.
As mentioned above, Exhibit W contains a significant number of affidavits that the mother filed during the course of the litigation which she decided in the final phase of the hearing that she did not wish to rely upon. The mother is a highly intelligent woman. There are many exaggerated and emotional statements contained in those documents which have, as their central theme, the assertion that the father is a ‘bad man’.
The affidavits in Exhibit W show a gradual increase in the fantastical nature of the allegations the mother makes against the father. Among the more fanciful of the allegations are: that the father was in collusion with the Independent Children’s Lawyer, the Single Expert, and possibly even the child contact centre; that the father’s motivation in seeking the children live with him is financial greed, in terms of child support, government assistance and an increased property settlement; and that the witness or supervisor the father brought to one visitation was possibly a paid false witness. In relation to the collusion of Dr R the mother explained she “sensed some slyness” and was correct in refusing to leave the room when the Doctor was trying to view the children’s interaction with the father.
I find the mother seems to have no ability to test her extreme interpretations, and so she acts upon them in an ‘extreme’ way. Dr R described this behaviour as having a quality of “dangerous naivety”.
I detected a marked change in the demeanour of the mother in the last seven days of the hearing. This was at a time after the children had been moved from the mother to the father pursuant to the recovery order which was made on 22 March 2011. During the last seven days of the hearing, the previous hysterical aspects to the mother’s presentation were far less evident. She seemed calm and controlled. She turned up each day and was well presented. She did not get ill on any of the seven days. No illness of the children prevented the father himself coming to the hearing himself.
This is to be contrasted with the history of the mother’s application to participate in Court events by electronic means because of illness of herself or the children, and her inability to make the children available on many occasions to the father because of alleged illness. The mother herself conceded that the level of anxiety of herself and the children rose significantly on the day before a visitation or a court event. I have no doubt that this anxiety may have manifested itself in reported physical symptoms, particularly in the children.
On some occasions, it was difficult to determine whether the mother’s evidence about allegations is sincere belief arising out of overreaction and misinterpretation, or whether she purposely fabricated facts. I note that a police report records the mother’s allegations to be vexatious and the mother to be ‘inconsistent’ with the truth (see below). At times it became clear that the mother was fabricating evidence to support her stories, and where I find that is the case I note it below. I note a brief example that the mother mentions in her affidavits that the children’s births were “tragic” in the sense that she or they could have died, whereas she told the psychometric assessor that the children had normal births.
As I discuss later, a clear example of the mother embellishing an allegation against the father, was in 2010 when the mother asserted, inconsistently with contemporaneous statements made in 2008, that the father had held a knife to her throat in 2008.
Mother’s Witnesses
As will be mentioned below, the mother introduced, only days before the hearing, specific allegations of violence perpetrated by the father against the mother in India. The mother’s friends and family in India made statements in support of the mother’s story about the father’s behaviour whilst overseas. This late introduction of witnesses necessitated evidence from the witnesses (except the evidence from the mother’s brother) to be heard by telephone link. The telephone link made it very difficult to assess the credibility of the mother’s witnesses in India. For this and other reasons I now explain, I must be cautious when assessing the evidence of the maternal grandfather, Mr Z and Mr A.
I find there is a long standing family feud between the maternal and paternal families. The mother acknowledged this on the final day of the hearing when making an application for the maternal uncle to spend time with the children, and it also appears in the mother’s medical records on 15 May 2008. The mother and her witnesses, in their evidence, repeatedly referred to a dispute between the families, particularly about dowry said to be sought by the father. While the father denies he demanded dowry (which the mother said is illegal in India), he did acknowledge there was disagreement between the families, for example about whether weddings and Christenings involving the mother and father should be Catholic or Protestant ceremonies. For this reason, I need to have in mind when I am considering the evidence of the parties’ family members, the animosity felt by those members against the other party in mind.
The mother repeatedly refers to abuses directed towards her from the paternal family. In her affidavit of 28 April 2009, the mother said that when visiting the paternal household in India for Christmas 2007, the father’s sister said after lunch, that S was a curse to be born to the mother. In oral evidence the mother said that the father’s sister called her a ‘bitch’ and later called the baby a ‘wretch’ and told her not to look at the mother who would only make her cry. The maternal grandfather, who was present at the lunch, did not mention any curses, though they were apparently in English. The mother’s brother reported hearing the father’s sister call the mother a ‘bitch’ not long after arriving (the timing was inconsistent with the mother’s evidence). When reminded in questioning about possible use of abusive words about the baby, the brother said she was called a ‘wretch’ in the same sentence that the mother was called a ‘bitch’.
I do not accept that such unprovoked statements are likely to have occurred, in the context in which they have been reported by the mother’s family.
As will be seen in later discussion it is a feature of the evidence given by the mother’s witnesses from India that although their statements might use identical words about an incident, when tested their versions are often inconsistent.
Maternal grandfather (Mr V)
The maternal grandfather did not impress me as a truthful witness. When asked about the incident with the hot spoon, detailed below, the maternal grandfather offered the detail that he was cooking on two burners on the stove at the time. This detail was not in response to any specific question, and was a minute detail when the rest of the maternal grandfather’s evidence up until that point was quite general. I am conscious of the fact that the mother was questioned in detail about the hot spoon incident the day before, including more than one question about how many pots were on the stove and how many burners were in use. On balance it is probable that there was discussion during the hearing about the evidence being given between family members.
The maternal grandfather also changed his evidence more than once in response to leading questions, about the mother’s version of events at the dining table on Christmas Day 2007 and the autorickshaw incident (see below).
Maternal Grandmother (Ms J)
The maternal grandmother was not called to give evidence, reportedly because she was elderly and too unwell. I found this odd given she had only signed a statement days before and evidence was to be given by telephone. Given that her statement was in near identical terms to the other maternal family members’ statements (as they were all written by the mother’s brother) and also given what I have said about the family witnesses in relation to the family feud that exists, I place no weight on the evidence of the maternal grandmother. I am particularly sceptical about her statement that she saw the father push the mother from the autorickshaw, given where she said she was in the house and where the autorickshaw was supposed to have been at the time of the incident.
Mother’s Brother (Mr Q)
Unlike the mother’s other witnesses from India the mother’s brother travelled to Australia to give evidence in person. I do not have confidence in the evidence of the mother’s brother. On three occasions the maternal grandfather did not report his presence at various alleged incidents at which the brother said he was present. Each time the brother made an excuse as to why he was not seen by him. Each in their own right was possible but unlikely; but when taken together, become entirely implausible. I place little weight on the brother’s evidence. I refer to his evidence in more detail below.
Mr Z
Mr Z is a close friend of the family and so the general concerns I have about the mother’s familial witnesses apply. His evidence in relation to the autorickshaw incident was less than convincing. As explained below, his account differs in detail to the other alleged witnesses. Mr Z had difficulty deciding whether his evidence was that he saw the father push the mother, or he saw the mother fall and assumed the father pushed her. From his description of the location of the vehicle in reference to him, and his description of the autorickshaw itself, it is highly unlikely he could have seen inside the vehicle. I take little notice of the evidence of Mr Z.
Dr M
Dr M is a close friend of the mother and a medical practitioner. On occasions she seemed reluctant to make concessions which did not favour the mother. When asked about B’s toilet training (a contentious issue) she said that he was previously toilet trained in December 2005 when the mother attended Dr M’s house with the children. B would have been 3 months old at the time. Dr M then changed her evidence to December 2010, a time when both parties agree that B was wearing nappies because he was soiling himself as a result of his constipation. I will accept Dr L’s evidence that B is not toilet trained, as one would ordinarily understand that term, notwithstanding Dr M’s reluctance to acknowledge this.
The mother sought to introduce new evidence from Dr M about what B had said when he was three. With Dr M out of the courtroom, the mother explained that while house hunting, B saw a man and expressed that he didn’t like that man because he looked like [the father’s first name] (the name B calls his father). Upon re-entering the witness box, Dr M was asked what B said when he was three. After some hesitation, she was able to repeat the mother’s story, which did not form part of her written evidence. I formed the strong impression that the mother and Dr M had discussed some of the evidence in the case in some detail. The mother said that she would work on her preparation of the case regularly when her need to care for the children allowed it.
Although a somewhat partisan witness, Dr M did seem to be a person who had the interests of the children at heart and was not particularly antagonistic towards the father. She mentioned in her statement for example, that the mother had not indicated to her that there had been any physical violence until after she returned from India following the birth of S. Certainly Dr M does not report that the mother showed signs of a physical injury at any time. I will later consider whether Dr M could be a suitable supervisor of the children’s time with the mother if they are to live with the father.
Mr A
Mr A did not impress me as a truthful witness. When asked if he had spoken to the Mother before preparing his statement, Mr A initially said no, but then that he had spoken to the mother ‘a couple of years ago, maybe last year’ about preparing a statement. He said the maternal grandmother asked him on the mother’s behalf when she was talking to the mother and he took the phone and spoke to the mother. He said he then drafted it and sent it over. He later said the mother asked him to prepare a statement ‘much before’ 5 April 2011, maybe a couple of months. When the independent children’s lawyer mentioned the date on the document as 5 April 2011 Mr A said the maternal grandmother asked him to make the statement around 4 or 5 April, which he did and then gave it to her. The inconsistencies over a few minutes of evidence about the timing of the preparation of the statement, the request and how the statement was delivered were unimpressive. I conclude that the mother spoke to Mr A recently about his statement and Mr A is attempting not to be drawn into the substance of that communication.
I was not able to conclude that Mr A’s evidence that he saw the father hit B was believable. He initially said this was December 2007, then when asked by the independent children’s lawyer if it was April, he said it was between April and September 2007. No other witness mentioned that Mr A was present, Mr A said he saw the father hit B through the open front door, whereupon he turned around and left so that he would not interrupt a family issue. This was not mentioned in his statement. I also note that Mr A’s definition of ‘beating’ is a slap to the back of the legs.
Similar to the above allegation Mr A said that although he had not seen the father hit the mother, he heard it from the next room, and left the home to leave the fight private.
Mr A also repeated a number of things B apparently said to him on the phone such as “My Daddy beat my mummy”. Whatever the truth of Mr A’s testimony, little rests on this claim, as Dr R made it clear that the child would have very few (if any) specific memories from that early period of his life.
Ms AA
Like Dr M, Ms AA struck me as a witness that was concerned about the mother’s interests in the trial, only more so. She said with confidence that there was violence in the marriage and that it increased over time, though she never saw any violence or any evidence of violence besides a burn mark on the mother’s wrist (which the mother also showed me in Court). When asked to explain the safety of the parties’ house, she explained that there were the paternal grandmother’s pills on the table and a knife to cut them, and described the knife as about 15 inches long, when the knife for the pills depicted in the mother’s photographs is approximately 5 inches long. She also described the safety gate being open, and when reminded that she had given evidence the father was not home when she visited and he could not be blamed if he was not present, she said that perhaps he was in the next room. Ms AA was also happy to give evidence that B was toilet trained, despite the fact the mother went into the bathroom with the child to help him, and that he was wearing pull-ups. I have reservations about accepting Ms AA’s evidence where it conflicts with the father’s.
Ms C
I found Ms C to be a reliable witness, however the value I can give to her evidence is reduced by the fact that most of the evidence she gave was retelling the things that the mother has told her, and as I have found, the mother’s interpretation of many events is in doubt.
Conclusion on Credit
Where conflicting versions of events are given, I accept the evidence of the father in preference to the evidence of the mother and her witnesses unless I indicate otherwise.
CHRONOLOGY
The father was born in 1960. He is 50 years old.
The mother was born in 1971. She is 39 years old. She wishes to become an Australian citizen.
The father immigrated to Australia in 1992 as a permanent resident and became an Australian citizen in 1996.
On 28 December 2002, the parties first met by arrangement between the parties’ respective families.
On 31 May 2003, the parties married in India. The mother alleges that physical, verbal, emotional and financial abuse by the father began from this point.
In early June 2003, the father was alleged to have banged the mother’s head against the wall while in her home in India. This was reportedly witnessed by the mother’s father, brother, and mother.
In November 2003, the mother first came to Australia on holiday and returned to India after three months. The mother says during that visit the parties had an altercation and the police were called. There is no evidence in the police records that any such event happened, and the father denies anything like this occurred.
In September 2004, the mother was granted a Spousal Visa.
In June 2005, the mother came to Australia and the parties commenced living at B Street, Sydney Suburb 1.
The parties visited India in 2005. The mother claimed during that time the father pushed her out of an autorickshaw to the ground. This was reportedly witnessed by the mother’s father, mother, brother and friend, Mr Z. The father denies anything like this event happened.
B was born in September 2005 in Australia.
Following the birth of the child, the parties were in dispute as to the child’s baptism, the father’s family wanting a Catholic baptism and the mother a Protestant christening.
In March 2006, the mother returned to India with B to live with her parents for about five and a half months. On 26 August 2006, the mother returned to Australia with the child.
In September 2006, the mother alleges that the father assaulted the mother and hit her on the back when the parties travelled to Town 1 for the child’s birthday.
The mother alleges for the first time in these proceedings that in October 2006 the father said he would masturbate for B. About the same time she alleges she found the father holding B’s penis when his nappy was being changed. These allegations are discussed in detail below.
On 18 April 2007, the parties travelled with B to India. The mother was pregnant with S at the time. The mother alleges that prior to the parties travelling to India, the father hit B with a belt on one or two occasions, and the father would hit the mother if she tried to intervene. She also alleges that the father grabbed hold of the child by a wrist strap and dragged him across the floor.
The father alleges that on the day of departure, the mother assaulted him by repeatedly hitting him on the arms with a telephone and abusing him whilst in the presence of the child. The mother alleges that the father told her, in a stopover in Kuala Lumpa, that “You and your children deserve to die…one day, I will definitely kill you.”
The mother alleges that in April 2007 while in India, the father slapped her, and when B ran to her and clutched her leg the father slapped B. This was reportedly witnessed by the mother’s father, brother and friend Mr A.
On 13 May 2007, only the father returned to Australia.
S was born in July 2007 in India.
The mother alleges that she remained living in India following the second child’s birthday for approximately six months with her family. The mother says that during this period the father would telephone the mother every two days.
On 18 December 2007, the father returned to India for Christmas. The parties lived with their respective families whilst living in India.
While the father was in India during this period, the mother alleges that he would beat B in front of her friends, pulling him out of bed to beat him and kick him. The maternal family gave evidence about the father “beating” B on one occasion, discussed below.
On 25 December 2007 the maternal family visited the paternal family for Christmas. The mother alleges that the paternal family abused her on that day, and that she saw the father’s niece fondling the father’s penis. There are various accounts of this day by the mother’s family, discussed below.
In January 2008, both parties and the children returned to Australia.
The mother alleges that in February 2008 the father was staring at S when her nappy was changed and mentioned that if he touched her genitals she would get excited. This is covered in detail below.
On 20 April 2008, the paternal grandmother travelled to Australia and resided with the parties.
On 23 May 2008 the father and mother had an altercation. The Pastor from the parties’ church attended the home of the parties.
On 31 May 2008, the mother reports that she was on the phone to a Ms C when she was abused by the paternal grandmother and father. The police were called. What happened is discussed below.
On 4 June 2008, it was alleged that the father and the paternal grandmother abused the mother. The police attended. No violence was recorded by the police.
On 8 June 2008, it was alleged that the father and paternal grandmother abused the mother. It was claimed that the father approached to hit the mother, but the mother retreated to her bedroom. The father denies the mother’s allegations and alleges that the mother was abusive towards him and the paternal grandmother, and that the mother approached the paternal grandmother in a threatening manner. This incident took place in the presence of the children.
On 9 June 2008, the parties separated. The mother alleged that at the time of separation, the father threatened her and the child with a knife. The police were called and the mother made a statement. The police applied for an Apprehended Violence Order on behalf of the mother.
On 3 July 2008, the father had first contact with the children since separation, in the presence of the mother. This was the last time the father spent time with the children until 28 November 2008.
On … July 2008, a 6 month Interim Apprehended Order was granted to the mother at Sydney Suburb 1 Local Court without admission and by consent. This was following the 9 July incident. The children were also included in the Apprehended Violence Order as protected persons.
The mother reported to the police on 29 August 2008 that she had been receiving strange silent phone calls throughout the month.
On 8 November 2008, the mother travelled to India with the children for her brother’s wedding, without the father’s knowledge or consent, but she claims not illegally, she says because there was an existing Apprehended Violence Order against the father.
The father filed his Initiating Application on 11 December 2008.
On 1 January 2009, the mother alleges that she received an anonymous phone call threatening that the child would not return to Sydney alive because the father did not want to pay any further child support. Generalised complaints about threatening phone calls were reported to the police on 7 February 2009.
On 2 January 2009 the father filed an application seeking that the children be placed on the airport watch list.
On 13 January 2009, the matter was heard before Registrar Chayna for directions. The mother did not attend as she was in India at the time. Proceedings were adjourned to 3 February 2009.
On 23 January 2009, the mother and the children returned to Australia.
On 27 January 2009, Apprehended Violence Order proceedings were listed for hearing on … April 2009. The father claims that the mother continued to harass him after the court appearance.
In these proceedings the mother alleges that during two visitations (which I assume occurred in 2009 as very few visitations occurred in 2008) the father was inappropriate with S. At one visitation he allegedly kept squeezing S’s bottom. At another the mother says he put his head between S’s legs to look at her genitals. These allegations are discussed below.
On 1 February 2009, the father had time with the children supervised by the mother at the Sydney Suburb 1 shopping centre.
On 28 February 2009, the mother filed a Response to the father’s Amended Initiating Application of 16 February 2009, seeking orders that the father spend supervised time at a Contact Centre for two hours each Saturday.
A Parenting Plan was entered into on 2 March 2009, which was not followed.
On … April 2009, the father presented evidence during the Apprehended Violence Order proceedings at the Sydney Suburb 1 Local Court of numerous phone calls (over 800 at an average of over 16 a day) made by the mother to the father. By consent, the mother accepted the father’s undertakings and her application for an Apprehended Violence Order was withdrawn.
On 10 June 2009, former Judicial Registrar Loughnan made Interim Orders for the children to live with the mother and spend supervised time with the father at Children’s Contact Centre 1 each alternate Saturday or Sunday for two hours. However, the mother failed to attend an Intake Assessment at Children’s Contact Centre 1 and accordingly this Order was never put into effect.
On 22 September 2009, previous orders were set aside by consent. Interim consent orders provided for the father to spend time with the children supervised by the mother at two agreed venues. This Order was not regularly complied with by the mother. Some of the visits were held at medical centres on the mother’s request, when the children were reportedly sick.
The father filed an Application for interim orders seeking time with the children on 18 January 2010.
On 19 February 2010 the mother reported to the police that the father has threatened by the phone the previous evening that he would keep the children over night and make their and the mother’s life hell. The mother says she feared he would take the children and sell them for prostitution. A provisional ex parte Apprehended Violence Order was granted on 19 February 2010. The interim Apprehended Violence Order hearing was adjourned from early March 2010 to … May 2010.
On 5 March 2010 and 3 May 2010, the mother filed a Notice of Child Abuse and Family Violence, alleging for the first time, a number of sexual abuse and sexual assault allegations against the father, already referred to and discussed in detail below.
On 6 April 2010, the father filed a Contravention Application.
An interim Apprehended Violence Order was made against the father on … May 2010.
On 4 May 2010, the mother filed an Application in a Case seeking orders for the children to travel with her to India so that the mother could undertake a medical procedure which the mother said was urgent, and to facilitate her travel, for the children to be removed from the Airport Watch List. This application was refused on 24 May 2010.
On 31 May 2010 I made orders for Dr R to prepare an expert report.
On 6 September 2010, the father filed a Contravention Application in respect to the mother allegedly failing to attend an interview with Dr R, and not complying with intake procedures at Children’s Contact Service 1.
On 6 November 2010, the mother alleges that the father failed to spend time with the children after changing the location.
On 13 November 2010, 27 November 2010 and 8 January 2011 the father spent time with the children at the mall in suburb C for 2 hours 25 minutes, 2 hours 20 minutes and 2 hours 15 minutes respectively.
On 20 November 2010 and 4 December 2010, the mother claims that she and the children were unwell and the children were not able to spend time with the father. On 11 December 2010, the mother claims that S was unwell, and as such, the children were not able to spend time with the father.
On 18 January 2010 the father made an Interim Application for unsupervised time with the children.
Dr R’s report was received by the Court on 17 November 2010.
On 2 December 2010 I made an order that the Department of Community Services be asked to intervene in the proceedings. They were forwarded relevant documents and declined the offer on 31 January 2011.
On 24 December 2010, the father spent time with the children, under the supervision of the mother. The mother alleges that she said to the father that the children do not like him and do not want to see the father. The mother alleged that the father harassed her that day and she called the police. She further alleges that the paternal family harassed her by telephone that night.
On 4 January 2011, the mother cancelled the time the father was to spend with the children, alleging that B had an accident on the way to see the father and hurt his knees.
The mother alleges in her affidavit that on 14 January 2011 B was unable to attend school due to her concerns as to the child’s safety from the father and the child suffering from chronic constipation and eczema.
On … January 2011, an Apprehended Violence Order Application by the mother was dismissed by the Local Court at Sydney Suburb 1 following a defended hearing.
On 1 February 2011, the matter was heard before me. Orders were made to the following effect:
124.1.That the mother ensure that B be enrolled in and commence attendance at school;
124.2.That the father spend unsupervised time with the children initially each Saturday for 4 hours per week and then increasing to 6 hours each Saturday; and
124.3.That the mother ensure that the children refer to the father as “Dad”.
The mother filed a Notice of Appeal on 22 February 2011, and an Interim Application on 28 February 2011 to stay my orders of 1 and 15 February 2011 involving B attending mainstream schooling and the father having unsupervised time with the children. The appeal was heard on 18 March 2011. The mother’s appeal against my interim orders was dismissed.
On 22 March 2011, proceedings were listed urgently before me at the Court’s own motion. The father and the Independent Children’s Lawyer were only invited to attend the telephone hearing. An exparte recovery order was made in favour of the father based on a threat made by the mother in a letter written to the father and provided to the Full Court which stated it was “all gonna end very soon”. I ordered that pending further order, the children were to live with the father and to spend no time with the mother.
Given the great changes, I expect there may be issues that arise which will need to be determined. I will remain as the Judge to manage any further applications filed (at least in the first instance) and have the Independent Children’s Lawyer continue his role for a period of 12 months.
I certify that the preceding 279 are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 11 May, 2011.
Legal Associate:
Date: 11 May 2011
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