Carpenter and Carpenter
[2016] FamCA 979
•18 November 2016
FAMILY COURT OF AUSTRALIA
| CARPENTER & CARPENTER | [2016] FamCA 979 |
| FAMILY LAW – CHILDREN – where final parenting orders were made in November 2012 – where the children live with their father and spend five nights per fortnight with the mother – where the father now seeks to reduce the time the children spend with their mother – where the father also seeks to restrain the mother from attending the children’s school – where the mother seeks the children live on a week about arrangement – whether there has been a change of circumstances sufficient to warrant a re-consideration of the matter – where the evidence does not persuade that there has been a sufficient change in circumstances to warrant substantial changes to the final orders – where the final orders are varied such as to restrain the mother from attendance at the children’s school – where the mother is restrained from approaching the father’s wife or her children. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Rice & Asplund (1979) FLC 90-725 SCVG & KLD The Marriage of N & S (1996) FLC 92-655 |
| APPLICANT: | Mr Carpenter |
| RESPONDENT: | Ms Carpenter |
| INDEPENDENT CHILDREN’S LAWYER: | Judy Stewart |
| FILE NUMBER: | BRC | 3510 | of | 2011 |
| DATE DELIVERED: | 18 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 2 - 4 November 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kirkman-Scroope |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
Orders
The Order made by this Honourable Court on 29 November 2012 is varied by including the following further restraints on the mother:
(a)The mother is restrained and an injunction hereby issues restraining the mother from:
(i)Attending at any school attended by B born … 2005, D born … 2007 and E born … 2010 (“the children”) for any reason unless such attendance is pursuant to paragraph 17 or 23 of the Order dated 29 November 2012, save with the prior written consent of the father;
(ii)Approaching or instigating any communication with Ms R Carpenter or her children OO and PP, save with the prior written consent of the father and Ms R Carpenter; and
(iii)Taking the children or any of them to the Police of any State or Territory of Australia or the Department of Communities, Child Safety and Disability Services or any equivalent service without the prior written consent of the father or by order of the Court.
The Amended Response (parenting orders) filed on 22 August 2014 as further amended is otherwise dismissed.
The Amended Reply (parenting orders) filed 25 March 2015 as further amended is dismissed.
Miscellaneous
All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.
The appointment of the Independent Children’s Lawyer is discharged.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. And these particulars are included in this Order.
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 Carpenter & Carpenter 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 BRISBANE |
FILE NUMBER: BRC 3510 of 2011
| Mr Carpenter |
Applicant
And
| Ms Carpenter |
Respondent
REASONS FOR JUDGMENT
In August 2012 Justice Murphy of this Court heard a parenting case between Mr Carpenter (“the father”) and Ms Carpenter (“the mother”) over six days and delivered judgment on 29 November 2012. The result of the case was that the primary care of the children changed to the father with the mother to spend time with the children for five nights each fortnight. The mother unsuccessfully appealed against Murphy J’s decision. The appeal was finalised in mid-2014.
The father and mother are again before this Court agitating for a rehearing of parenting matters and discharge of the final Order made on 29 November 2012 (“the 2012 order”). These further proceedings were commenced in late 2013. The father seeks an order reducing the mother’s time with the children from five nights a fortnight to two nights (which is what he sought at the 2012 trial)[1] and the mother seeks an increase of her time from five nights a fortnight to seven nights.
[1] Reasons for judgment Murphy J 29.11.12 at [9]
The Independent Children’s Lawyer submits that there should be no change to the 2012 order.
Although the father’s proposed parenting orders are contained in an Amended Response (as further amended),[2] he has been treated as the applicant in the current proceedings. The mother’s Application concerned property issues only and that Application has been determined. Her alternative parenting orders are contained in her Amended Reply (as further amended).[3]
[2] The precise orders sought by the father are as contained in annexure JC-04 to his affidavit filed 12 September 2016 save paragraph 11 was further amended to provide for time from 5.00pm Friday to 5.00pm Sunday
[3] The precise orders sought by the mother are contained in her Amended Reply save she sought sole parental responsibility
Issues to be determined
Although the parties relied upon thousands of pages of affidavits, annexures and exhibits, the substantive issues in this case are of short compass:
a)Does the mother’s conduct since the August 2012 trial warrant a reduction in her time with the children and restraints on her attendance at the children’s school; and
b)Should the children’s time with the mother be extended given the older two children’s expressed wishes.
Relevant background facts
The father and mother were married in 2002, separated in 2011 and divorced in 2013. They have three children together, namely, B born in 2005, D born in 2007 and E born in 2010 (“the children”).
The father has since remarried. His wife, Ms R Carpenter[4] (“Ms R”) has two children, OO aged ten and PP aged seven. OO and PP generally live with the father and Ms R for twelve nights each fortnight.
[4] At the time of her earlier affidavits Ms Carpenter’s surname was Ms R
The mother has not re-partnered.
All of the children, including OO and PP, attend a State School in a small township about an hour’s drive north of Brisbane. The school is close to where the mother and father live. The school has only about 135 students.
The father manages a business about forty-five minutes’ drive from his home and generally works from 7.45am to 5.30pm Monday to Friday. Ms R is a full time mother.
The mother works two days a week when the children are not in her care.
The mother’s case at the 2012 trial involved allegations of sexual abuse of the children by the father. At the appeal the mother sought to rely on further evidence which alleged that Ms R’s children had sexually abused B. Her application to adduce further evidence was dismissed.
The mother does not make any allegation of sexual abuse in the current proceedings and indeed says that she accepts the outcome of the previous proceedings in that regard viz that the father does not present an unacceptable risk to the children.
Father’s case
Up until submissions the father sought an order that the mother spend no time with the children. During his submissions he sought and was granted leave to further amend his Amended Response to reduce the time currently spent by the children with the mother to alternate weekends from Friday at 5.00pm until Sunday at 5.00pm with changeovers at his home.
The reasons the father agitates for change in the time spent can be summarised as follows:
a)The mother maintains her belief that he is a sexual deviant and a risk to the children;
b)The children are not safe with the mother either physically or emotionally;
c)The mother has persecuted his wife, Ms R, and sought to disrupt the relationship the children have with her;
d)The mother has sought to undermine his relationship with the children; and
e)The risk of the mother emotionally abusing the children has not diminished since 2012 and has in fact increased.
The father submits that while Murphy J anticipated a continuation of the mother’s belief that he represents a risk of sexual harm to the children and considered that her behaviour may in fact deteriorate he did not contemplate the extent of her continued emotional abuse of the children.
In short, he argues that the extent of the mother’s disruptive and harmful behaviour and its effect on the children warrants the setting aside of the 2012 order and making of the new order as sought by him.
In particular the father presses for a conversion of an interim order made in December 2013 to a final order restraining the mother from inter alia attending the school and from having her parents see the children at times when she is not present.
The father gave evidence at trial that if the mother ceased to portray him as a sexual deviant and behaved in a ‘normal manner’ he would have no problem with her continuing to spend time with the children.
The mother’s case
The mother contends that her close bond with the children and the expressed wishes of the two older children to spend more time with her warrant the extension of the time spent as sought by her.
While initially seeking equal shared parental responsibility for major long term issues, the mother sought and was granted leave during her submissions to further amend her Amended Reply to seek that she have sole parental responsibility for major long term issues.
While not conceding that she coached the children to make ‘disclosures’ of sexual abuse against the father, the mother accepts the findings made by the Court that she encouraged B to make the claims and emotionally harmed him by causing him to be interviewed and re-interviewed by police, child safety officers and others. She accepts that the father is not a risk to the children.
The mother concedes that she took B to be interviewed by police on 27 and 28 November 2012 but says she did so because a child safety officer told her that if one of her children disclosed harm, she had to take them to police. She maintains that Ms G, a child safety officer, told her that she believed what B had said. The claims made by B and relied upon by the mother in the 2012 trial included such bizarre accusations as the father had put an electrical cord up his anus while at a large building supplies store. The mother contended at the 2012 trial that the claims made by B should be taken literally.
The mother sought to distinguish her behaviour up to the time of the delivery of judgment in her unsuccessful appeal in June 2014 with her behaviour after that time.
She concedes that she clashed with the children’s school and sought to involve them in the family dispute but argues she desisted from that conduct last year and has abided by the directions of the school principal for the last eighteen months. She contends she now has a good relationship with the school and teachers.
The mother seeks to be relieved from any restraint on her or her parents’ attendance at the school. She wants to be able to volunteer at tuck shop and other such activities. She concedes that although there is an Order restraining her from leaving the children alone with her parents she has not abided by that Order.
The mother’s affidavits are replete with statements allegedly made by the children to her which could best be characterised as complaints about life in the father’s household. In her oral evidence she said that she had included those statements just to demonstrate that the children said those things and accepted that they may well complain about life in her home. I have no doubt that when preparing her many affidavits containing the myriad of complaints the mother’s intention was to portray the father’s household in a poor light.
The mother also sought to convey that the father’s actions towards her since the 2012 order fall into the definition of family violence. By way of example she claimed the father had subjected her to “physical surveillance” which had caused her to be “jumpy and wary” and “stressed” and “under threat” that the father would use this against her in court proceedings. Another example of his “harassment” was not agreeing to an extension of time for her to reply to one of his affidavits in 2015 and “threatening” her with court action if she did not comply with court orders.
The mother also expresses concern that the school principal was “not trained in the issues of Family Violence I was experiencing on the school grounds from the kids Dad”.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth)(as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[5]
[5] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[6]
[6] Baghti & Baghti [2015] FamCAFC 71
Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the court must consider in determining what is in the best interests of the child. In considering the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(emphasis in original)
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[7]
[7] Banks & Banks (2015) FLC 93-637
In considering the ‘unacceptable risk’ questions Fogarty J observed in The Marriage of N & S:[8]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
the ‘rule’ in Rice & Asplund[9]
[8] (1996) FLC 92-655, at 82713-4
[9] (1979) FLC 90-725
While a parenting order is never final in the true sense of that word as the provisions of Part VII of the Act themselves make clear and in particular s 65D(2), there are restrictions placed on a party wishing to vary substantive parenting orders. The Court will need to be satisfied that there is a change of circumstances sufficient to warrant a re-consideration of the order or that some matter of sufficient gravity was not disclosed at the first trial.
There has been some discussion over the years about whether the principles espoused in Rice & Asplund are properly called a ‘guiding principle’ or ‘binding rule’.[10] However it might properly be described, it is fair to say that the ‘rule’ has been universally applied for well over thirty-five years.
[10] Poisat & Poisat(2014) FLC 93-597 for a recent discussion
Whether it is applied at a preliminary stage or after a full hearing the best interests of the child remains paramount and the Court is not relieved of its obligation to consider the relevant legislative provisions set out in Part VII.[11] The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer[12] although its significance is likely to be greater when applied at a preliminary stage.[13] An application of the rule is directed to the substantive order and does not prevent all variation to the primary order.[14] When applied after a full hearing two particular public policy matters remain of some significance, firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[15]
[11] Miller & Harrington(2008) FLC 93-383
[12] Bennett & Bennett (1991) FLC 92-191
[13] SPS and PLS (2008) FLC 93-363
[14] SPS and PLS (2008) FLC 93-363; Doherty & Doherty [2016] FamCAFC 182
[15] SPS and PLS (2008) FLC 93-363
When this matter came before Principal Registrar Filippello on 21 November 2013 on the father’s application to have inter alia the mother’s time suspended, the mother opposed the application and relied on the Rice & Asplund principles. While the Principal Registrar briefly referred to those principles and determined that certain injunctive relief should be granted, no change was made to the substantive live with/spend time with order. Accordingly, I do not regard that decision as determinative of the application of the Rice & Asplund principles.
At the hearing before me, the mother no longer sought to rely upon the Rice & Asplund principles and indeed sought her own variations to the 2012 order.
At the conclusion of the trial the Independent Children’s Lawyer submitted that the rule in Rice & Asplund should apply and that there are insufficient reasons to warrant any change to the final parenting order made in 2012.
Murphy J findings
Murphy J found that there was “no trust and, indeed, no real respect, between the parents” and that there was little likelihood of that changing in the foreseeable future. Further, that the mother’s view that the father is a danger to the children is unlikely to be changed despite the findings made to the contrary.
Relevant to this hearing, Murphy J found:
45. …The mother … has little or no ability to “reality test” what the children might say to her, or chooses to be blind to, or dismissive of, explanations alternative to that which accord with her entrenched ideas that the children have been abused. I consider there is a real risk that the mother will continue to portray things said by the children as being indicative of sexual impropriety by the father. As will be seen later in these reasons, I consider it very likely that she plays a role in the genesis of any such statements.
46. I consider that the father, too, lacks any heartfelt desire to promote a relationship between the children and their mother.
…
189. … Evidence giving cause for optimism of a change in the beliefs of the mother about the risk posed by the father, and her attitude toward the children’s relationship with their father, might in turn give cause for optimism that the emotional abuse of the children might cease. The evidence in this case … points, … to the opposite conclusion.
…
191. The impression I have clearly gained from the whole of the evidence, and my impression of the mother and her witnesses, is that allegations against the father are likely to continue. I think there is a real prospect they will expand; …
192. … I think it highly likely that allegations against him will continue to flow, time will not be promoted and a false impression of their father will be inculcated in the children. Those outcomes are antithetical to their best interests and the Court should not permit the children being abused emotionally in that way.
193. The finding that this is likely might be thought to lead to the possibility of the children spending significantly truncated time with their mother or, indeed, spending time with their mother that is supervised. …
194. … Each of the children plainly has a loving and mutually beneficial relationship with each of the parents. I have no doubt that the mother and father love their children dearly. …
Ultimately, the 2012 order provided inter alia that the father have sole parental responsibility for major long term issues and for the children to live with the father and spend time with the mother from after school Friday to before school Wednesday in each alternate week.
Many of the findings have proved prescient.
Evidence from Mr M – family report writer
Mr M has a long history of involvement with this family having first undertaken a family report in 2011. He has completed four reports in all. The first two were undertaken for the purposes of the 2012 trial and the second two for the purposes of the current hearing. I note in his 2012 report his observation that the mother’s complaints about the father, quite apart from the sexual abuse allegations, were continuing.
His third report undertaken in November 2014 opined that the children had made a “very good adaptation” to the transition from the primary care of the mother to that of the father. He was of the view that “their general presentation and development exceeds expectations, especially considering the context of conflict that has occurred within their family over time”. Despite the conduct of the mother since the 2012 trial Mr M did not support any change to the arrangements put in place pursuant to the 2012 order. He referred to the underlying bond between the children and the mother which, although not always positive, has been “very central for them in the past, and now”. The children, in his view, had made adjustments to the change of care and those adjustments had occurred without interruption to their development.
Mr M’s most recent report was undertaken very recently, in October 2016. He identified the issues remaining in this matter as follows:
·The micro conflicts between the parents over almost everything;
·The extent to which the children are aware of their parents ill-will; and
·The current presentation of the children and the question as to whether arrangements should change according to the issues raised by either parent.
He again interviewed and observed the children in addition to the parents. B described himself as being “pretty much happy”. As to the ongoing conflict between his parents he denied that it affected him saying “I’m used to it completely now” although adding “it is tiring”. He expressed a preference for equal time with each parent to make the arrangements less confusing. D felt she got on pretty well with both parents but expressed a view that it would be better to have equal time. She was unable to articulate why that might be so but said she would “definitely really like it”. E was happy and felt he gets on well with both parents.
Mr M noted that the “continual vitriol over the most minute matters” was perhaps to be expected given the history of this matter. He noted however that there is little direct communication between the parents. Their many disputes largely take place in writing. Nevertheless the two older children are aware of the continuing ill feeling.
While not dismissing the possibility that the mother’s encouragement of the children’s disclosure of anything negative about the father’s household might affect his relations with the children and disrupt current arrangements, he nevertheless pointed to the strong bond the children had with their mother and opined that:
… curtailing or ceasing that relationship would have a more direct detrimental effect upon their identity and development than not …
The solution which [Mr Carpenter] proposes is not, in fact, a solution but would merely be an introduction of new and greater problems to add to those that these children have already had to face.
Importantly, Mr M was of the view that:
…[the children] demonstrated happy relations and interactions with their parents, and their comments about each of them were within normal range …
… the matters raised in their respective material are not of such consequence that this should have an impact upon arrangements made by the order of this court from 2012. I am of the view that the continuation of the discord between the parents was a feature which would have been anticipated at the prior Court trial.
… the current arrangements are working relatively well … but it is more difficult to ascertain whether increasing their time with their mother by two nights a fortnight would be of direct benefit to them, given further stress which might be added to the parental system if that were to be the case.
The mother’s conduct after the August 2012 trial
Matters relating to sexual abuse allegations
There is no doubt that the mother did not, at least initially, accept the findings and decision of Murphy J. That much is clear given that she appealed against his decision.
The mother accepts that she heard evidence at the 2012 trial that her actions in repeatedly taking B to be interviewed were emotionally harmful. Despite knowing that the delivery of Murphy J’s decision was imminent[16] she again took B to be interviewed by police on 27 and 28 November 2012. A video recording of the interview on 27 November 2012 was played in court and it was clear B did not want to be there. His presentation was consistent with Murphy J’s observations at the first trial. On 27 November the mother was told that B had made no ‘disclosures’. Nevertheless the mother returned B the following day for a further interview. Again the mother was told that no ‘disclosures’ were made.
[16] The father had brought the matter back to court before His Honour and the parties were informed that a decision was imminent
The mother now concedes that, in retrospect, her conduct was emotionally harmful to B. There has been no repeat of that conduct since 28 November 2012. There has been an injunction in place since December 2013 restraining the mother from doing so.
During the appeal the mother sought to adduce further evidence in which she alleged that OO had been pulling E’s penis.[17] OO was at that time about seven years old and E three. The impact of that allegation was to cause a further deterioration in the relationship between the parents and between Ms R and the mother.
[17] Exhibit 11. Her application to adduce the evidence was dismissed
In July 2014 the mother retained Dr QQ, psychiatrist, to undertake a psychiatric assessment of her for the purpose of these proceedings. In support of his contention that the mother still maintains her belief about him being a sexual risk to the children, the father refers to page 5 of the report where Dr QQ reports the following:
Her current and previous concerns with the children’s father
… Her summary position at the time of the interviews was that she did not know what sexual risk her husband might pose to the children.
She felt distressed because she was worried that her doubts about the children’s safety could result in her not having any time with the children. She said that effectively it was impossible to know who was telling the truth about things and who was just trying to do the right thing.
She said it would be impossible to have no concerns although she then said later in the interviews that she could be reassured by an appropriate risk assessment report of the father. …Other relevant parts of Dr QQ’s report are as follows:
Her current and previous concerns with the children’s father
…
In summary she said that she would feel more certain about the safety of the children if the father had agreed to the same sort of assessment that she was undertaking as well is (sic) comments regarding his potential risk of sexual recidivism. She also believed his partner should be assessed.
Current symptoms
She reported ongoing anxiety about the well-being of the children and particularly whether she might have some of her time with the children reduced should she be perceived to be anything other than highly supportive of the contact with their father.
…
Mental State Examination
…
She had some anxiety about the safety of her children but this responded to perspective taking and reality testing appropriately and she had flexible insight which she was able to utilise at least during the interviews.
…
… She was honest enough to say that regardless of further assessments and reassurance she might still be worried. … She said she fluctuated sometimes in how she felt about the issues depending on how distressed she was.
…
Opinion
…
… She has developed severe anxiety regarding the safety of the children in the context of the marriage breakdown. …
…
Unless she was at the time of review inappropriately involving the children in the court matter or replicating one of the other behaviours that was of concern in regard to emotional abuse previously, she does not seem to pose a significant risk to the children at the point in time of assessment, …The mother attended counselling at ‘SCOPE’ regional domestic and family violence service at Centacare on 11 September 2014, 18 September 2014 and 12 August 2015. The father points to the mother’s various complaints to that service about him and in particular:[18]
11 September 2014
…
*client disclosed extremely concerning evidence regarding ex husbands sexual behaviours
…
*Domestic violence
…*Client wants better understanding regarding domestic violence[18] Exhibit 7 pages 60 - 71
In a summary document from ‘SCOPE’ the father draws attention to the further allegations made by the mother that were not raised at the 2012 trial and in particular that he allegedly had a male lover; that he had often threatened suicide during the marriage and that he had been cruel to animals. The father denied these allegations.
In relation to those allegations the mother said in her oral evidence that she was either describing matters raised by her in the 2012 trial or was just answering questions asked of her. She said that she had gone to counselling to get help with the way the father was treating her at the school.
In a letter to the children’s school dated 22 April 2015[19] I note the mother states:
I do NOT have any concerns of sexual abuse of the children. These matters have been investigated and finalised appropriately with the relevant authorities.
[19] Exhibit 7 page 143
In her oral evidence before me the mother confirmed this as her position.
While the mother would not agree with the father’s proposition that she had coached B to make ‘disclosures’ and maintained that Murphy J had found was that she had merely “encouraged” B to make statements, she nevertheless confirmed that she no longer had any concerns about the children being at risk of sexual abuse in the father’s care. Her use of the term ‘encourage’ left me with the clear impression that she thought her role was somewhat benign. Lest the mother remain in doubt about the findings of Murphy J, I quote as follows:
152. Whilst I am not satisfied specifically that the mother has told [B] what he should say to [Detective T] in the sense of providing a word-for-word ‘script’, I am satisfied that the mother encouraged [B] to state that he had seen his father insert objects into his anus. I consider that [B], who is undoubtedly a highly intelligent young boy, was left in no doubt about what he was required to say so as to get Lego and other toys. So much is … plain from [B’s] statement during the last interview … “if I say lots, I have to get Lego” (emphasis added).
…
181. I think it highly likely that the mother has, through words, actions and inducements, influenced – or sought to influence – what the children have said to both the police and the Department. … [Ms G’s] conclusion of substantiated emotional harm is consistent with my own findings in respect of that issue.
The mother’s role was anything but benign.
In my view, if the mother’s belief is as she now states, it is a belief of comparatively recent origin. Her expression of this belief is influenced at least in part, in my view, by her perception that to continue with a stated belief that the father posed a risk of sexual harm would be detrimental to her prospects in gaining more time with the children.
Having regard to the extraordinary list of ‘complaints’ included in the mother’s affidavits (which I assume she at least initially sought to rely upon in order to indicate problems in the father’s household) I remain concerned that she may involve the children in further interviews and intervention if she is not restrained from doing so.
The mother’s behaviour at school
The mother’s behaviour at the children’s school has been problematic since the primary care arrangements changed in 2012. Mr RR, the principal of the children’s school, gave evidence and left me in no doubt that the mother’s behaviour has been disruptive and unhelpful for the children. Mr RR stated that the mother had attempted to involve the school in the ongoing dispute between the parties.
The mother’s behaviour has impacted detrimentally on the children and also on a number of teachers whom Mr RR described as being anxious when having to interact with the mother. Scenes of distress and poor behaviour by the children when the mother is in attendance are described by the father and Ms R and also by Mr RR. Mr RR noted the difference in B’s behaviour at a sport’s day when the mother was not in attendance. There may be a number of reasons for such observations of course but it seems the mother can at times be a catalyst for such scenes.
Mr RR said that the school had received more emails from the mother than any other parent including the president of the Parents & Community Group. The mother accused the principal of favouring Ms R because of a long standing relationship with her. This was denied by Mr RR.
The mother made a number of formal complaints about the school. Thereafter, for an extensive period, the mother was advised that she could only communicate with the principal. The mother was also advised by the school that for the purposes of paragraph 17 of the 2012 order she could only attend at the school for a maximum of ten minutes when dropping the children at school or picking them up and that she was not to attend at the school for reasons other than changeover or extra-curricular activities. It seems the school relied in particular on the restraints placed upon the mother by the 2013 order. This directive arose as a result of the mother staying at school for extended periods after class had commenced; entering the school grounds up to forty-five minutes before the end of the school day or attending other activities at the school such as parades. This continued on occasion even after the injunction made on 12 December 2013 restraining the mother from attending the school for any reason other than changeover or extra-curricular activities.
Mr RR accepted that the mother’s conduct had not been such an issue this year and the mother is now permitted to communicate directly with teachers.
I accept Mr RR’s evidence in all respects.
The children should be able to enjoy their school day without the prospect of being exposed to conflict which seems more likely to occur if the mother attends at the school. The school should also be able to provide an education to the children without having to become embroiled in this family’s dispute.
The matter is further complicated by the fact that Ms R’s children also attend the school. There has already been occasion when the mother’s father was involved as a volunteer for a class in which one of Ms R’s children was a member. I do not find that his attendance was malicious in any way and I accept his evidence that he was not aware that the class he was assisting included one of Ms R’s children. However, given the hostilities between the parties his attendance was ill advised.
I note that the mother’s sister was intimately involved in the ‘evidence gathering’ for the 2012 trial and the subject of some criticism by Murphy J. I also note that the mother’s mother has been a vocal complainant about the father to the principal of the school on at least one occasion.
Mother’s behaviour towards Ms R
Ms R provides significant care for the children particularly while the father is at work. She was described by Murphy J as showing “intelligence and common sense as a loving mother”. She feels undermined and under threat from the mother. I accept her evidence.
Ms R’s attempts to assist the children’s transition into the father’s household in 2012 were not assisted by the mother’s lack of co-operation and at times undermining. One example is the request for the mother to provide contact details for some of D’s friends so that play dates could be organised. The mother’s response was less than helpful. Another example is the mother’s crossing out of the child D’s nick name in the father’s household where it had been written on the bottom of her drink bottle and replacing it with ‘mumma loves [loveheart] [D]’. Ms R understandably viewed this act as provocative.
Ms R describes behaviour of the mother which she understandably finds unsettling. The incident at school on 2 February 2016 is but one example. On this occasion the mother was late to collect the children and Ms R waited with them until the mother arrived. The mother parked Ms R in so that she had to drive up over the footpath to leave. I do not accept the mother’s version of what happened on that day, namely, that she was merely attempting to avoid having to have any communication with Ms R and thought it best for Ms R to leave first. In my view her actions were designed and did have the effect of intimidating Ms R. Another example is that the mother persisted in emailing Ms R despite very clear communication that she should cease doing so. Ms R felt that the mother was attempting to have her collude with her against the father. I am in no doubt that was the mother’s intention. Thankfully the mother ceased sending emails. It has got to the point where Ms R fears going to the school sports days without her husband such is her concern that she may run into the mother.
Ms R’s child OO has informed her of the mother repeatedly approaching him at a recent cross-country event trying to engage him in conversation. This is despite the 2013 order restraining the mother from approaching Ms R’s children.
Unfortunately, every action now taken by the mother is viewed negatively and it will take some time I suspect for any trust to be restored, if it ever can be. The incident involving the camera in July 2015 is one example where sinister connotations are attributed to the mother when I do not consider that to be a fair interpretation of events. Ms R provided B with a camera for his school camp. She had forgotten that the camera still had photos of herself and her family on it and when B returned home without the camera she assumed the mother kept it for the purpose of viewing her private photos. She describes feeling “horribly violated”. Emails were sent by the father requesting the return of the camera and a deadline set for its return. The camera arrived in the post two days after B returned which indicates to me that the mother did all she could to promptly return it. The criticism is made that the mother did not inform the father until the second day that she had posted it. Perhaps she could have but it seems to be an extreme reaction by Ms R and the father.
Further conduct about which the father complains
The father makes a myriad of complaints about the mother’s conduct, some of which are certainly justified particularly in the period up to mid-2014. I will not refer to them all but the following are some examples.
The mother did not assist the children’s transition to the father’s household. In the Skype conversations she would tell the children it was only so many more sleeps until they can return home. Her inability to accept the Court’s decision was made plain to the children. This led to the father recording the Skype sessions and informing the mother in the hope she would restrain herself. He stopped recording some time ago when he became aware that D was upset by his doing so. He did not inform the mother he had ceased recording the interactions in the hope that her belief that she was being recorded would curtail any disruptive behaviour.
The mother repeatedly enrols the children in activities not associated with the school without his consent and expects that he will take the children to the activity. An example is her enrolling B in cubs. The father had to re-arrange his family’s activities to take B to avoid disappointment. The father explained that with a family of five children they need to be able to make their own arrangements. The mother’s actions have created unnecessary conflict in the father’s household when he has been unable to take the children. The issue is complicated by Ms R not wanting to associate with the mother.
He contends that the mother negligently caused an injury to B’s leg in May 2016 to become infected by not following the doctor’s instructions which were conveyed to her by email on 13 May 2016. On the mother’s own version she concedes she did not follow the instructions by removing the bandage however in the absence of medical evidence I am not inclined to find that the mother’s actions caused the infection. The father also complains about her failing to ensure that B had a tetanus booster and failing to inform the father of that failure.
The mother abuses the order that each parent be at liberty to speak to the children by telephone at all reasonable times and that the Skype calls he has with the children are often ‘futile’ although he wants to continue to have them.
He complains about the size of the hamper the mother brings to the school sports days which entices the children to spend all their time with her and about her lack of discipline of the children as demonstrated by B’s unchecked behaviour at the sports day.
She encourages the children to be disgruntled and unhappy about his household.
Conclusion about mother’s conduct
The mother contends that I should distinguish between her conduct prior to the determination of her appeal in mid-2014 and her conduct after that time and in particular this year.
It is true that her conduct subsequent to the trial and the 2012 order up to mid-2014 was particularly troubling. She caused B to be interviewed a further two times on 27 and 28 November 2012 in circumstances where she could not have been in any doubt that her previous conduct in that regard had been soundly criticised by the Department of Communities, Child Safety and Disability Services. She did very little to assist the children in making the transition to live primarily with the father. She undermined his role and that of Ms R. She certainly did not put the interests of the children before her own. She continued on what was described by Murphy J as her ‘mission’. Murphy J predicted such actions as likely.
Her conduct did not immediately improve after the appeal was determined. Far from it. She continued for some time to be a disruptive force at the children’s school and ignored the order made in December 2013 on numerous occasions.
While I find that the mother’s behaviour has improved greatly I remain unconvinced that the mother’s improved conduct is entirely due to the mother gaining insight about her behaviour. I consider it more likely to be reflective of a worry that if she were to continue such conduct her time with the children might be curtailed. Despite that being spelt out to the mother in the Reasons of the Principal Registrar in December 2013 the mother did not temper her behaviour for a considerable period thereafter.
I consider the continuation of the restraint against the mother attending the school at times other than changeover and extra-curricular activities should remain.
Despite the tendency of Ms R and the father, in more recent times, to perhaps overreact, there is a sufficient basis for the reasons identified to continue the restraints made against the mother in relation to Ms R and her children.
I do not find it necessary to make findings about all of the ‘complaints’ made by the father and Ms R or indeed the mother. I encourage both parties to reflect on the evidence of Mr M when he said:
I think they complain about some things, as most children do and I don’t sense any confusion in their attachment to [the father] at all so in terms of those things, I think that the children have been fairly positive. In relation to the comments that the mother says they have made to her, it depends on the context. I think that any child from time to time will make detrimental, negative comments about one parent or the other. Part of it depends on the weight and how the other parent deals with it but in separated families it is relatively common unless the parents have a good relationship, see each other relatively frequently and the children can see that there is some model of co-operation between the two of them. That is not the case here so invariably with children who are articulate, they may use language at times to convey to the mother they feel, perhaps victimised by [the father] or in trouble too much from [the father], maybe to get her attention of for other reasons however, I don’t place much weight on it of itself, I think that those sorts of comments by children in this type of scenario and circumstance are to be expected. I don’t think they are nice to hear but I think the way that you deal with them as a parent is that you listen to what the children say and you perhaps provide some support for the other parent whether they are there or not. I don’t know whether that happens but I didn’t think from the children and what they said about you and what they said about the mother that it was anything other than time to time complaining perhaps about each of you.
Relevant s 60CC matters and the rule in Rice & Asplund
This matter has proceeded to a full hearing and the rule in Rice & Asplund is but one matter to consider when determining what order is in the best interests of the children.
It is apparent from Mr M’s observations that the children have a close bond with each of their parents and with Ms R and that these relationships are of benefit to the children.
Despite the mother raising issues of family violence I am not persuaded that the father’s conduct falls within the definition in s 4AB of the Act. For example, I do not accept that the father has been subjecting the mother to physical surveillance. What clearly occurs is that if the mother stays at the school for a period in excess of what might be regarded as necessary for changeover Ms R informs the father and he sends a text message to the mother reminding her of her obligations under the order. The mother complains of a range of behaviours of the father causing her to feel stressed or jumpy etc. The requirements of the section are that a party is controlled or coerced or fearful. The mother does not claim the behaviour has that impact and even if she were to do so I would not be satisfied that the conduct of which she complains could reasonably be expected to cause those outcomes. The extent to which the mother complains about family violence has a manufactured air about it in which she seeks to portray herself as a victim. She is certainly not a victim in my view. Her attempt to involve the school in these allegations is regrettable and does her little credit.
The father contends that the mother’s conduct is emotionally harming to the children. It certainly has been in the past but her conduct has ameliorated in the past year. The two older children are aware of the continuing conflict between their parents although most of it is conducted in writing. Despite the long history of conflict, Mr M assesses the children to be doing better than expected. They are achieving well at school and seem happy overall. They would certainly benefit from their parents having a better relationship but the impact on them is not such that I am persuaded that a change in care arrangements is warranted. In any event this was an issue about which Murphy J had regard when making the 2012 order and in particular the likelihood of the mother’s conduct continuing and even deteriorating.
B and D have expressed a view that they would like to spend more time with their mother. Mr M was not confident that an increase in time would on balance provide any benefit to the children given the added stress it may cause to the ‘parental system’. There are certainly ongoing issues between the households with each party descending into minute detail about numerous issues. It was important in Murphy J’s assessment that the father have the primary care of the children. I do not consider there to be any reason of significance to depart from that view.
The father has sole parental responsibility for major long term issues and has exercised that responsibility to date. I am not persuaded that there should be any change in that regard.
Conclusions
Having embarked on a consideration of the extensive evidence relied upon by each party and having heard the oral evidence from all witnesses subject to cross-examination I am of the view that there is no change in circumstances sufficient to warrant the changes to the final orders that are urged upon the Court by either party (with some exceptions).
For the reasons stated above I consider it necessary to vary the 2012 order so as to include some further restraints on the mother.
The mother’s conduct at the school, while improved, has been an ongoing issue for a considerable period. Neither the children nor the school should have to endure such behaviour. Accordingly, the mother will be restrained from attending the school for any reason other than changeover and extracurricular activities save with the prior written consent of the father. I will include this caveat as I note that the parties have already agreed that the mother will attend a graduation ceremony for B shortly.
Further, the mother will be restrained from approaching Ms R or her children or from instigating any communication with them save with the prior written consent of the father and Ms R.
While the mother maintains there has been a major shift in her belief about the risk the father poses to the children I remain concerned for the reasons earlier referred to that the mother may subject the children to further interview by authorities if not restrained.
Apart from the maternal grandfather attending as a volunteer at the school for a short period and the maternal grandmother making complaints to the school about the father I was not taken to any other evidence that would support the restrictions on the children spending time with their grandparents or restricting the grandparents attending functions at the school to which grandparents might otherwise be invited. I do not consider the evidence supports the continuation of the remaining interim injunctions.
As to any remaining ancillary orders sought, I am not satisfied, on the evidence before me, that any further variation is warranted.
Finally, I observe that there are many litigants in this jurisdiction who seem to regard the courts exercising family law jurisdiction as a revolving door which adds to the burden and delay in the administration of justice. The Court cannot live people’s lives for them nor can legislation change people’s personalities. One can only hope that six years of litigation for this family is enough.
I certify that the preceding one-hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 18 November 2016.
Associate:
Date: 18 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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