CRAMOND & CRAMOND

[2013] FamCA 368

FAMILY COURT OF AUSTRALIA

CRAMOND & CRAMOND [2013] FamCA 368

FAMILY LAW – CHILDREN – With whom children live – With whom children spend time – Where there are allegations of sexual and physical abuse of the children by the Mother – Where there are allegations of alienation by the Father – Where the children have not seen the Mother for two years – Where the children refuse to see the Mother – Where the Mother is associating with a man of serious concern – Where the Father has failed to comply with previous Orders aimed at facilitating a re-introduction of the children spending time with the Mother – Where the Father is not capable of facilitating the children having a meaningful relationship with the Mother –  Where it would be speculative whether the risks of a change of residence would be justified in terms of the children’s best interests – Where there are concerns in relation to the Mother’s parenting capacity – Where two of the children are intellectually disabled and require stability – Whether the children would accept and adjust to a change to the Mother’s primary care –  Where it is more likely than not that the children’s alienation from the Mother is complete and entrenched – Where the children have an extreme alignment with the Father –Where the Mother’s proposal is not sufficiently viable or feasible and does not have sufficient prospects of achieving the aim of restoring the children’s relationship with the Mother as to justify, in the children’s bests interests, their removal from the Father’s primary care

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the parents are in a “highly conflicted” and “toxic” relationship – Where it would not be in the children’s best interest for the parents to have equal shared parental responsibility – presumption of equal shared parental responsibility rebutted

Family Law Act 1975 (Cth)

Brandon & Brandon (No. 2) [2012] FamCA 374
M and M (1988) 166 CLR 89

APPLICANT: Ms Cramond

RESPONDENT: Mr Cramond

INDEPENDENT CHILDREN’S LAWYER: Mr Kalle

FILE NUMBER: BRC 8342 of 2010

DATE DELIVERED: 27 May 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 29, 30 October and 1, 2, 3 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Hofstee Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DK Law Solicitors

Orders

1. All previous parenting Orders be discharged.

Parental Responsibility

1. It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of R born … February 1999, T born … July 2000 and S born … February 2002 (“the children”).

2. The Father shall have sole parental responsibility for the children. Notwithstanding such Order, prior to the making of any decision for the long-term care, welfare and development of the children (or each of them) the Father is to:

   (a)not less than fourteen (14) days prior to making such decision (save in the case of emergency) advise the Mother in writing of the decision intended to be made;

   (b)seek the Mother’s written response in relation thereto;  

   (c)consider, by reference to the best interests of the child or the children the subject of such decision, any such response prior to making any such decision;

   (d)inform the Mother in writing as soon as reasonably practicable of the Father’s ultimate decision.

Live With and Time

1. The children shall live with the Father.

2. The children or any of them shall spend time with the Mother at all such times as may be agreed in writing between the parents from time to time.

Communication

1. Within fourteen (14) days of the date of these Orders each parent is to provide the other parent (and thereafter is to keep the other parent informed of):

   (a)       the parent’s postal and email addresses;

   (b)in the case of the Father, an email address or email addresses for each of the children;

   (c)in the case of the Mother, a contact telephone number

2. The Father is to provide each of the children with the Mother’s email address and contact telephone number as provided by the Mother from time to time pursuant to these Orders.

3. The Father shall facilitate any request of any of the children seeking to communicate with the Mother at any time whether by post, email or telephone.

4. The Mother shall be at liberty to send letters, cards or gifts to any of the children to the postal address provided by the Father from time to time pursuant with these Orders.

5. The Mother shall be at liberty to forward email communications to the children or any of them on a weekly basis or otherwise at such intervals as requested by the children or any of them.

6. The Father shall ensure that any letters, cards or gifts, or email communications from the Mother are provided to the children or child to whom they are directed forthwith upon receipt.

7. The Father shall keep the Mother informed, in writing, of the children’s ongoing health and treatment for any illness or accident and provide the Mother with any medical reports obtained by him.

8. At the conclusion of each school semester, the Father is to provide to the Mother a copy of the children’s school reports (including any written reports from any extra-curricular activity). For the purposes of this Order the Father is at liberty to delete any details on such reports that would disclose the location of the children’s schools, extra-curricular activity providers or names of teachers.

Miscellaneous

1. The Independent Children’s Lawyer be discharged.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8342 of 2010

Ms Cramond

Applicant

And

Mr Cramond

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed in the Federal Magistrates Court on 7 September 2010, Ms Cramond (“the Mother”) commenced parenting proceedings in relation to three children: R born in February 1999 who is 14 years of age; T born in July 2000 who is 12 years of age; and S born in February 2002 who is 11 years of age.

2. On 26 October 2010, Mr Cramond (“the Father”) filed a Response and supporting affidavit material as well as a Form 4 Notice of Child Abuse or Family Violence. The Father alleged the Mother had sexually abused R and physically abused T and S.

3. An Independent Children’s Lawyer, Mr Kalle, was appointed in this matter on 26 October 2010 pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) to independently represent the interests of the children in these proceedings.

4. The parents of the children are half-siblings sharing the same father. The parents have a highly conflicted and acrimonious relationship that has spanned over at least the last several years. The relationship is such that the Department of Communities, Child Safety and Disability Services (“the Department”) assessed the children to have suffered significant emotional harm from exposure to the parents’ relationship from as early as 2010. Since this time, the relationship can only be said to have deteriorated further which has caused substantial detriment to the children.

5. The Father has made allegations against the Mother relating to sexual abuse of R and physical abuse of T and S. By the conclusion of the trial, given the submissions on the Father’s behalf by his Counsel, it can be taken that those allegations are abandoned. The Father is primarily concerned with the Mother’s association with Mr B who has a violent criminal history and has been allegedly stalking the Father and his family. The Mother has denied all allegations of abuse and alleges the Father has intentionally alienated the children from her. The situation is now such that the children refuse to see or communicate with the Mother.

6. For reasons which follow, I have no confidence in the ability of these parents to work together in any cooperative sense in parenting these children. If the children are to have any relationship with the Mother, I find that they would need to be separated from the Father and his controlling, narcissistic behaviour. I do not believe the Father is capable of facilitating the children having a meaningful relationship with the Mother. However, there are many concerns in relation to the Mother and her parental capacity, particularly those surrounding her apparent inability to see Mr B as a concern. I have similar concerns about the Mother’s capacity now to facilitate a relationship between the children and the Father if they were in her primary care. A fundamental concern is that the position reached as at trial for reasons which will be discussed is that the children’s alienation from the Mother is entrenched.

Brief Background

1. The Applicant Mother was born in 1963 and is now 50 years of age. The Mother is unemployed and currently resides between New South Wales with her father, and Ipswich and the Gold Coast with friends. The Mother has an adult child, C, from a previous relationship who no longer lives with her. The instability of the Mother’s circumstances looms large in these proceedings.

2. The Respondent Father was born in 1964 and is 48 years of age. The Father states his occupation as a writer however as at the trial he was not in paid employment and was receiving a disability pension due to injuries sustained in a truck accident. He resides in the Brisbane area in an undisclosed location for reasons which will be detailed later.

3. The parties commenced cohabitation in or around August 1996. They had a prior, one-off sexual encounter when they were in their early twenties but no relationship was formed at that time. The Mother and Father are half-siblings, sharing the same father, Mr D (the “grandfather”).

4. The Father has denied the grandfather’s paternity throughout the matter. The Father gave evidence under cross-examination that he confronted the grandfather about the issue of his paternity in 1996 but the grandfather had been drunk at the time and had denied paternity. The grandfather has however confirmed in his affidavit filed 18 November 2011 that he is the biological father of both these parents. He further deposed the Father had confronted him about his paternity on Father’s day in 1996 and the grandfather had confirmed this fact. The grandfather was not cross-examined on his evidence and I accept it as uncontested that the parties are blood relations. It follows that I reject the evidence of the Father. This topic was one example of the Father’s evidence being utterly unconvincing.

5. It is a sad consequence of the parties’ relationship that two of their three children have been diagnosed with a form of disability. R has been diagnosed with Global Learning Delay and assessed to have an Intelligence Quotient between 62 and 68.[1] S was assessed as being on the autistic spectrum with an Intelligence Quotient in the low 60s.[2] The Father asserted that S had been suggested by Dr A to have Aspergers but no conclusive diagnosis was made at that time due to his age and no subsequent diagnosis of Aspergers has been made.

   [1] Report of Dr F (paediatrician) dated 26 August 2010 summarised in Dr G’s Psychiatric Assessment dated 29 July 2011.

   [2] Report of Dr F (paediatrician) dated 26 August 2010 summarised in Dr G’s Psychiatric Assessment dated 29 July 2011.

6. The parties lived together until 2008 when the Mother left the family home. The Father states the parties’ relationship essentially ceased in 2002 when they began sleeping in separate rooms whilst continuing to reside under the one roof. The Mother contends the relationship continued until September 2008 and ended after the Father’s introduction of Ms E to the household in August 2008; who subsequently began sharing a bed with the Father. Both parties agree Ms E had been a friend of theirs for many years. Ms E gave evidence that when she moved into the family home she had an amicable relationship with the parties and was encouraged to stay by both. The Mother gave evidence that she was under the belief that Ms E was moving into the family home to receive care from the Father. Ms E indicated in her oral evidence that this was nursing and emotional care; however the Mother deposes it was medical care. There is ample evidence to indicate the Father has misrepresented himself as a medical doctor in various contexts which I will turn to later.   

7. The Father has continued a relationship with Ms E since this time and I understood as at trial they were engaged to be married. It would be an understatement to say that Ms E has played a central role in these proceedings and the children’s lives.

8. Upon the Mother leaving the family home the parties commenced an informal, shared care arrangement which continued up until 23 August 2010. The Father deposes in his affidavit filed 16 December 2011 (at [16]):

   On or about 20 August 2010, the children informed me that they did not want to spend any further time with the Applicant. [T] said words to the effect of “I will run away if you make us go back to her house”.

9. The Father withheld the children on 23 August 2010 after what he deposes was a weekend of “discussions” where the Father and Ms E spoke to each of the children separately, allowing the children “…separate opportunities to make disclosures…” and spent the weekend “…cross-referencing the disclosures the kids were making”. As already noted, in the way the trial proceeded any such alleged disclosures regarding anything sinister in the Mother’s conduct toward the children were abandoned or ultimately not pursued by the Father. 

The Proceedings and the Parties’ Ultimate Proposals

1. The Mother commenced proceedings in the Federal Magistrates Court on 7 September 2010 seeking sole parental responsibility for the children; that the children live with her; and that the children spend time with the Father on each alternate weekend from after school Friday to before school Monday.

2. The Father, on 26 October 2010, filed a Response and supporting affidavit material as well as a Form 4 Notice of Child Abuse or Family Violence alleging the Mother had sexually abused R and physically abused T and S. The Father sought orders that he have sole parental responsibility for the children; that the children live with him and spend time with the Mother at the H Contact Centre.

3. On 16 December 2010, Federal Magistrate Cassidy made interim parenting Orders providing that the children live with the Father and spend time with the Mother at the H Contact Centre. Orders were made for the children to engage in therapeutic non-reportable counselling with the Mother and for each party to enrol in a Parenting Orders Program.

4. The Mother registered with the H Contact Centre on 10 January 2011 and on 31 January 2011, the Mother commenced sessions with Centacare pursuant to the Orders. The Mother applied for the Foundations Parenting Orders Program but was advised she was unsuitable to attend the program at the time as she was not then spending time with the children.

5. The Father began registration with the H Contact Centre on 28 January 2011 but at that time advised the H Contact Centre that various investigations were being conducted in relation to the Mother. The Father was advised that the registration process could not be completed until the Father provided written evidence that all investigations by the police and Child Safety regarding the children had been completed. The Father did not provide such evidence. The Father stated in cross-examination that the reason for this was that all investigations were never completed. Despite the Department of Child Safety concluding that there was no risk of harm in the Mother’s care and the police concluding their investigations of the Mother due to insufficient evidence, the Father had advised the H Contact Centre that the Mother was complicit in the stalking charges the Father had made against Mr B and that this investigation was ongoing. On 14 November 2011, the Mother was notified by the H Contact Centre that the intake process had not been able to be completed and thus the service had been withdrawn. I find that the Father deliberately thwarted the process contemplated by FM Cassidy to reintroduce the Mother and the children having a relationship with her.

6. The Father later registered with the J Contact Centre. The Mother deposes that she was advised of this by the H Contact Centre and subsequently in January 2012 also registered at J Contact Centre. On 3 February 2012, the Father attended an intake interview at the J Contact Centre however the Father suspended the children’s orientation appointment for this centre on 22 March 2012 due to his concerns in relation to the safety of the family which appears to have arisen from the alleged stalking by Mr B.  

7. The children did not begin attending Centacare for counselling pursuant to FM Cassidy’s Order made on 16 December 2010 until 4 April 2011 and have attended only a few times. On the Father’s evidence, the children’s appointment on 12 May 2011 was cancelled due to the resignation of the children’s counsellor. This caused delays and the children did not resume attendance at Centacare until 27 October 2011. On 1 December 2011, R and T attended a Centacare appointment but on 14 February 2012, the services of Centacare were suspended.

8. The Father’s oral evidence relating to the non-attendance at Centacare was that the children were “…coming out traumatised…” and were distressed as the counsellor was suggesting that the children give their telephone number to the Mother for communication purposes and was indicating to the children that they would be spending time with the Mother in the future.

9. The Mother filed a contravention application in April 2012 however subsequently withdrew that application. The Mother gave evidence that she had understood that application was to be heard during these proceedings, but as noted it was in fact withdrawn.  

10. The Father chose to engage R with psychologist, Ms K from the L Counsellors organisation. This is despite the Father being told specifically by the Independent Children’s Lawyer that the Independent Children’s Lawyer did not support such an approach given that the L Counsellors organisation is a service for children with disabilities who are victims of crime and sexual abuse. The Father deposes he took R to this service following a recommendation by the school counsellor and Special Education Program teacher and that the purpose of the counselling was to deal with her medical disability and the “trauma” she had experienced.

11. The sessions at Centacare were restructured due to the Father’s concerns and the children attended another session on 24 May 2012. They further attended on 12 July 2012 but at this stage Centacare advised the Father that due to the anxiety the Father described the children as having, he should seek referral to Child and Youth Mental Health Services (CYMHS) to look at a treatment program and that any further treatment should be carried out by child psychologists. The Father stated in cross-examination that following this recommendation, he did not ring CYMHS as the children had “…been to CYMHS before and it had turned out to be useless…”. The Father instead spoke to Ms K about it and felt that counselling at L Counsellors would be of more benefit to the children. This is despite the Independent Children’s Lawyer previously advising that he did not support this treatment and there being clear Orders in place for therapeutic counselling to take place.

1. Further, the Father deposed that he registered for a Parenting Orders Program but was advised by the course coordinators that his participation in the program was not necessary. In cross-examination the Father stated he was told he did not need to attend the program as he did not lack parenting skills. If he was ever told that, which I doubt, the assessment was flawed.

2. In any case, the Father has not complied with the interim Orders and I do not accept the excuses he has offered for non-compliance. I find the Father has taken convenient (to him) advantage of any means to delay or hinder the process designed to re-introduce the Mother into the lives of these children, to their disadvantage.

3. The Mother gave evidence during the trial that she was in fact, seeking orders that she relocate with the children to Town M, located on the Central Coast of New South Wales. She proposed that the Father spend supervised time with the children at a contact centre in New South Wales.

4. The Mother was criticised during the trial (reasonably in my view) for the lack of specificity in her proposed orders and the limited planning she had done in relation to where the children would live; where they would attend school; where they would receive support and counselling; and how the Mother would financially care for the children in the event they lived primarily with her.

5. The Mother handed up amended orders sought on the final day of trial, marked as Exhibit 24, which attempted to, belatedly, overcome uncertainty by providing that the children were to be handed over to the Mother within 28 days of orders and further that:  

   within 28 days of the making of the Orders, the Applicant Mother shall provide to the ICL, written confirmation of her having secured the following:

   a)         Accommodation in the Gold Coast area suitable for the children.

   b)Enrolment of the children in a school suitable to each of their needs.

   c)Engagement with a family home support service.

   d)Engagement with a counsellor for her own assistance.

   e)Engagement with [N Counsellors].

   f)Receipt by Centrelink of her application for any benefits she may be entitled to receive.

6. Notably, the Mother did not persist in seeking an order that she be permitted to relocate with the children to New South Wales.

7. Upon questioning about the orders sought by the Mother, Counsel for the Mother made it clear that the orders relating to the Mother’s parental responsibility and who the children live with were conditional upon the Mother providing written confirmation of the details listed above. It was conceded that if the Mother failed to do so, then the current status quo would remain. 

8. In line with the evidence of Ms O, Family Consultant, the Mother is also seeking that if the children were placed in her care, there be a moratorium of the time the children spend with the Father for a period of 4 months. Following this period, the Father is to spend time with the children for a period of 4 months at the H Contact Centre, at such times as may be available, for a period of four months. Thereafter, the Mother seeks the children spend time with the Father in accordance with her Initiating Application, i.e. alternate weekends.

9. The Mother ultimately (and belatedly) sought an order that:

   …the Applicant mother be and is hereby restrained from allowing or bringing the children into any contact of whatsoever nature and kind with [Mr B].

10. The Mother had given evidence at trial that she saw Mr B as a good role model for the children as she had never personally witnessed any behaviour to indicate he should not be in the children’s company. However, Counsel for the Mother, Ms Oakley, submitted that while there is no doubt the Mother was aware of some significant criminal history (which in itself brings her quite properly in line for criticism in relation to her views of an association with Mr B) there were details of Mr B’s criminal matters put to her during cross-examination that she had heard for the first time and that since being made aware of the extent of such matters, the Mother is now prepared to follow such an order.

11. I formed the clear view of the Mother when observing her give evidence that she lacks genuine concern about Mr B and that her seeking the order referred to was more driven by perception by the Court rather than her own reflection upon the merits or otherwise of her association with Mr B. More about this is outlined below.

12. The Father seeks orders similar to his original orders sought, however he now adopts the proposal of the Independent Children’s Lawyer sought at the beginning of the trial that the children receive counselling from Mr I, and that a graduated regime of supervised time be spent with the Mother. The Father had originally sought a much more restricted order regarding the time the children would spend with the Mother. This order required the Mother to submit, from time to time, written proposals to the Father on the time she sought and the Father would then outline such proposals to the children’s counsellor to discuss with the children and only upon the counsellor’s positive recommendation would the parties then attend mediation to organise time.

13. The Independent Children’s Lawyer ultimately sought orders substantially different from the proposed orders handed up at the beginning of the trial. The original orders sought that the Father have sole parental responsibility for the children and for the children to live with the Father; that the children attend upon Mr I for at least six sessions of non-reportable therapeutic counselling to assist in restoring the children’s relationship with the Mother; and following such sessions, that the Mother spend time with the children, as agreed, but failing agreement, supervised for up to two hours per fortnight at a contact centre. Based primarily on the evidence of the Family Consultant, Ms O, and psychiatrist, Dr G, the Independent Children’s Lawyer ultimately proposed two alternate forms of orders which were handed up at the end of the trial and marked as Exhibit 22.

14. Option 1 of the Independent Children’s Lawyers proposed orders is that the Father have sole parental responsibility; the children live with the Father; and the children communicate with their Mother by telephone as the children reasonably request. The proposed orders do not provide for the children to spend any time with the Mother. 

15. Option 2 of the Independent Children’s Lawyers proposed orders is that:

    …upon the Mother undertaking to:

    i)Within 7 days, take all steps required of her to retain the services of [Mr I] (for the purposes of another order dealing with counselling);

    ii)Provide evidence in writing to the parties that she has obtained stable and suitable accommodation for the children in a location close to the children’s school;

    iii)Provide evidence in writing to the parties of her financial position and her access to finances to support the children;

    iv)Provide evidence in writing to the parties that she has retained the services of [N Counsellors] and provide consent to the ICL to contact that service;

    v)Provide evidence in writing to the parties that she is engaging with her psychologist;

    vi)Enroll (sic) in  POP program within 7 days,

    the Mother have sole parental responsibility for the children and the children live with the Mother.

    The orders sought also provide that the children not spend time or communicate with the Father for a period of four months and the children have sessions with Mr I to restore their relationship with the Mother and to prepare the children for the re-introduction of time with the Father. The children would then spend time with the Father as agreed between the parents in consultation with Mr I.

16. Counsel for the Independent Children’s Lawyer submitted that “…this is a case where the court must determine who is the “least worst” parent.” The Independent Children’s Lawyer is concerned about the parenting capacity of both parents and Counsel for the Independent Children’s Lawyer submitted in written submissions that (at page 16):

    …the conservative yet very unpalatable solution for this matter is to leave the children with the alienating father. This is because the children’s special needs require stability and the Mother is not currently in a position to ensure the court that she can provide the security and stability that they need.

Credibility and Primary Issues

1. In Brandon & Brandon (No. 2) [2012] FamCA 374 I discussed the issues surrounding making findings as to credit in parenting cases. Similarly to that case, I find here that in making conclusions on the considerations the Court must have regard to in determining best interests of the children, it is necessary for me to consider the credibility of the parties and the evidence put before me highlighting that aspect.

2. I find that cross-examination of each of the Mother and Father respectively revealed deficits in the credibility of each. The Mother and the Father each provided evidence that was inconsistent and conflicted with their own respective sworn affidavits. Neither party demonstrated capacity to provide balance or to make concessions where they could fairly be made or where a concession was obvious.

3. Dr G, expert Psychiatrist, states in her report dated 29 July 2011 that (at [69]):

   If the Mother’s account is accurate there is a possibility that the Father suffers from a narcissistic personality disorder. Similarly if the Father’s account is accurate it is possible that the Mother suffers from a histrionic personality disorder. Each makes claims against the other which are serious but can’t be verified or discounted in two psychiatric interviews.

4. I found the Father evasive and unconvincing in much of his evidence. The

   
   

   Father made no concession in relation to the Mother’s parenting ability and would not admit to any failure on his part in relation to any of the circumstances that have arisen. As will be discussed, there was ample scope for the Father to acknowledge failures on his part.

5. The Father’s lack of credibility is evident in the issues surrounding his holding himself out to be a medical doctor. The Mother provided evidence that the Father has been involved in litigation in New South Wales surrounding a joint venture project called Z Organisation within which he falsely pretended to be medically qualified. Counsel for the Mother, Ms Oakley, questioned the Father in relation to him holding himself out to be a medical doctor. The Father adamantly denied that he had ever done so. He continued to deny this despite evidence in the form of letters and articles (Exhibit 15) which clearly referred to the Father as “Dr” Cramond with the letters M.D. and/or O.M.D. after his name. The Father, in one of the most bizarre examples I have witnessed of a witness attempting to convince a Court of what is in fact utterly unbelievable, gave evidence that such letters stood for “Martial Arts degree” and “Oriental Martial Arts degree”.

6. A promotional video for Z Organisation was also shown in Court (Exhibit 14) describing the organisation as a charitable organisation seeking donations to assist in the treatment of Disease BB patients through natural medicine. The Father was questioned about the description of him on the cover of this DVD where he is referred to as an “Australian [Disease BB] specialist” and “Renowned Research Scientist and Physician”. The Father responded that he had not written the cover nor the script for the DVD and only spoke his part but stated that, “…yes…my speciality was investigating [Disease BB]...”. In relation to being described as a physician, the Father stated:

   …I think that was a mistake using that word, but I didn’t hold myself out to be a medical doctor and made it widely…publicly known that I was not.

   (emphasis added)

7. The Father has no formal medical or research qualifications and I find it clear on the evidence that he has knowingly held himself out to be a medical doctor. His proclaimed renown as a “research scientist and physician” is a false claim and any renown only exists in his own mind. The Father’s continual denial in light of the evidence is an indication of his lack of ability to concede the obvious. Whether this is a feature of his narcissistic personality or not, that he apparently thought this Court would accept utterly incredible evidence speaks of the Father’s misplaced faith in his own ability to persuade others.

8. There are many varying accounts of what occurred prior to the children’s removal from the Mother’s care and the Father has failed to clearly identify a catalyst for such drastic action. The Father gave evidence that he did so after there had been numerous disclosures from the children about the Mother regarding “physical and emotional abuse” and the children pleading to not be returned to the Mother’s care. The Father states that he had made many disclosures to Child Safety in the hope that they would intervene but that such a hope was “…naïve on [his] behalf.”

9. The Father began making notifications to Child Safety in February 2010. The Father conceded (ultimately and after much prevarication) in cross-examination that he was the person recorded as “N1” in a notification made on 11 February 2010 advising Child Safety that the police intended to issue an arrest warrant for the Mother and alleging the Mother had mental health issues; had neglected the children; and had a long history of drug use.

10. On 15 February 2010 the police attended the Mother’s home while the children were present and recovered marijuana. The Father conceded in cross-examination that he had notified the police of the Mother’s drug use which could have lead to the drug raid and exposure of the children to that trauma. The Father made a notification to Child Safety about this raid and advised that the children were “traumatised”. The Father also notified Child Safety that T had told the Father that the Mother had given him “herbal tea” indicating that this had been marijuana. Child Safety found there “…was insufficient evidence gathered to support the concerns that [T] had been harmed or was at an unacceptable risk of further harm”.[3]

    [3] Magellan Report dated 11 February 2011 at page 6.

11. The Father also took T to the police where T reported he had been given tea with special herbs. The Father was advised by the police to take the children to a pathology centre to be tested for drugs in their system, however, the Father did not do this. He gave evidence that because T had not been given the herbal tea recently the substance would no longer have been in his system. I find that the Father elected not to have the recommended pathology testing because of the likelihood, as he well knew, that the Mother had not provided drugs to T as such tests would confirm.

12. There were 14 Child Concern Reports and two Child Protection Notifications made to Child Safety from 11 February 2010 to 11 February 2011. The Child Concern Reports about the Mother included the impact of her alleged chronic marijuana use and mental health issues on her parenting capacity; her inappropriate physical disciplining of the children; her verbal abuse of the children and other general neglect issues.

13. In these proceedings, the Father has made many allegations. The Father filed an amended Form 4 Notice of Child Abuse or Family Violence on 2 November 2011 which records, amongst other things:

    …The Children have told me very extensive accounts of ongoing abuse and neglect they have experienced while still in the Mother’s care. These include but are not limited to the indecent treatment of [R] (which incidences have been reported to the Police). The continual hitting around the head and buttock of both [T] and [S], intimidation and the use of extremely bad language in their presence, trying to coerce the children to steal from our home for the Mother as well as continually (sic) derogatory statements said to the children about myself and [Ms E]. The children have also told me that they have witnessed a “sex act” between the Mother and her boyfriend.

    …

    …One evening in August 2010, I [Ms E]was sitting on the lounge chair with [R] on my lap. [R] started touching my breast inappropriately and I straight away took her hand away. After several minutes, [R] put her hand back on my breast and tried to put her hand under my top to hold my breast. This time I told [R] not to do it and removed her hand from my breast. I asked her why she thought I would like it and she told me “Mummy likes it” so I would also. I asked [R] to show me on herself what she did with Mummy and she showed me how she fondled her Mother. [R] made pleasurable noises while showing me this. I was shocked and asked her if her mother told her to stop this and [R] said “No because mummy liked it.”

14. In relation to the allegations surrounding the Mother’s mental health and drug abuse, the Family Report of Ms O, dated 15 December 2010, outlines (at [13]):

    [The Father] suggested that [the Mother] failed to meet the children’s needs, that he was essentially their primary caregiver and performed the parenting tasks because she was regularly “Stoned”, that she was “Withdrawn” and slept “Excessively”.

15. Further, Ms O records that the Father (at [10]):

    …detailed allegations relating to the children being exposed to physical, sexual, emotional abuse and neglect as outlined in his affidavit material. In brief, concerns related to [the Mother] and [Mr B], the mother’s former partner, whom he believes is still associating with [the Mother] hitting [T] and [S] and at times leaving bruises; that [the Mother] encouraged [R] to fondle her breast and that [the Mother’s] parenting capacity was impaired by her alleged serious long term mental health issues and substance abuse. [The Father] alleged further that [the Mother] knowingly gave [T] cannabis in his tea.

16. The Father provided conflicting evidence as to when the children first made disclosures of physical and sexual abuse. In the Father’s original Form 4 – Notice of Abuse filed on 26 October 2010, the information is incomplete and the only concerns provided relate to the Mother’s mental illness and drug use. The Father stated in cross-examination that the document is incomplete due to the negligence of his previous solicitor. He contended that he provided further detail to his solicitor that was left out of the Notice and such solicitor was later dismissed for incompetence. I do not accept this.

17. I find the Father’s attempts to blame his solicitor’s alleged incompetence was in fact an attempt to conceal his own failures to be truthful.

18. The Father was cross-examined by Ms Oakley of Counsel for the Mother on the allegations. He gave evidence that R began making disclosures regarding the sexual abuse around the last two weeks of August. When confronted about why the Father had deposed in his affidavit filed 16 December 2011 that the children began making disclosures about sexual and physical abuse in June 2010, the Father stated, for the first time in any context, that the reference is to S reporting that he had been interfered with by Mr B. There is no prior evidence in any of the Father’s material alleging that S was sexually abused. The Father then again resorted to the assertion that the material is not complete due to his previous solicitor’s negligence, however the Form 4 filed by his current solicitor also fails to outline such allegations as does the Father’s own very detailed affidavits. Further there are no recordings by Child Safety or the police of such disclosures despite the many notifications made by the Father of the other allegations.

19. I find that, pressed to resolve irreconcilable inconsistencies or gaps in his evidence the Father invented, in the witness box, an allegation of sexual abuse perpetrated by Mr B. He falsely purported to attribute fault to his legal representatives in the respects referred to.  

1. None of the allegations of sexual or physical abuse made by the Father have been substantiated by the police or Child Safety.

2. At the conclusion of the trial, as noted, the Father abandoned or did not pursue findings about these allegations. He did not press for a finding in regards to them. The Father ultimately submitted that his concerns primarily relate to Mr B and in particular the Mother’s lack of ability to protect the children from the risk of physical or emotional harm in relation to coming into contact with Mr B. The Father also maintained his concerns surrounding the Mother’s parenting capacity, drug use and mental illness.

3. I find it more probable than not that concerned about Mr B the Father has adopted an “ends justify the means” approach and the means he adopted included fabricating allegations of sexual abuse, amongst other things, in limiting the Mother’s relationship with the children, to the point of its extinction.  

4. In relation to Mr B, the Mother began a relationship with him in May 2009. There does not appear to have been any problem with the children spending time at the Mother’s household throughout 2009 with no evidence being provided to indicate the children were refusing to go into her care during this period or making complaints about either the Mother or Mr B. An interview with Child Safety on 9 April 2010 reports[4]:

   CSO [Q] asked [T] what he likes about living at mum’s house and he stated that it is fun and he likes to go to the skate park. [T] stated that he likes that mum makes angels.

   [4] See bundle of subpoenaed documents marked as Exhibit 25.

5. R was also interviewed by Child Safety on this day and reported that she liked the trampoline and there was nothing she did not like about the Mother’s or the Father’s place. R reported that she got along well with both her parents and got along with Ms E “a bit”. S also stated in an interview on this day that there was nothing he did not like about his Mother’s place.

6. In relation to Mr B’s presence in the household, T stated on 4 April 2010 in an interview with Child Protection Unit Officer, Mr U, that Mr B “…was a good person until they found out what he did”.[5]

   [5] See bundle of subpoenaed documents marked as Exhibit 25.

7. The Father also stated in an interview with Child Safety on 14 April 2010 that he was happy for the Mother and her relationship with Mr B at first until he found out about Mr B’s criminal history.

8. Mr B has a substantial criminal history with many convictions for various offences including stealing, break and enter, and stealing with actual violence whilst armed with a dangerous weapon for which Mr B served eight years imprisonment. He also has been charged with deprivation of liberty and burglary. There have also been charges made in 1995 relating to indecent dealing with a child under 12 years old and rape which were dismissed in 1998 and Mr B explained in his evidence, and I accept, that there was no sound basis for such charges. However it is understandable that a person in the Father’s position would understandably have concerns about learning of such charges even if the information was sketchy and incomplete and without the detail Mr B supplied in evidence at this trial about the charges being unsubstantiated.

9. Upon finding out about Mr B’s criminal history, the Father communicated to the Mother that the children should not come into contact with Mr B. The Mother deposed that she and Mr B ended their relationship in December 2009. In her affidavit filed 19 October 2010 the Mother swears that a couple of days before Mr B’s son’s funeral she had become “…aware that [Mr B] had been convicted of arson where two children had died.” The Mother states she had not been aware of this previously but “…had not had any association with [Mr B] since December 2009.”

10. It appears that concerns that the Mother was still associating with Mr B surfaced around early August 2010 when the Mother indicated to the Father that she would be attending the funeral of Mr B’s son and would take the children to the funeral unless the Father was able to look after them. The Father notified Child Safety of his concerns about Mr B. Child Safety then informed the Mother in September 2010 that she was under investigation due to concerns about her mental health and her association with Mr B following notification by the Father. The Mother in cross-examination agreed that Child Safety had said that if the Mother had an association with Mr B then Child Safety “…would have a problem with her”. The Mother, however, gave oral evidence that she did not think this was good enough reason to be concerned about Mr B as Child Safety had not given any reasons or explain why.

11. The Father gave evidence in cross-examination that it was over the next couple of weeks that the children were making more and more disclosures about the Mother leading up to their removal from her care on 23 August 2010. There have been many inconsistent statements made by the Father about Child Safety which were noted in the family reports. The Father appears to have realised that Child Safety were not going to intervene in the children’s care by the Mother despite his numerous notifications and thus decided to take the matter into his own hands. The Father states that upon notifying Child Safety of the Mother’s intention to take the children to Mr B’s son’s funeral, Child Safety had told the Father that he should “…do everything in [his] power…” to ensure the children were not taken to the funeral and to ensure the children were kept out of harms way. The Father further states that the Child Safety department officer “…essentially said that if I don’t [keep the children away from the funeral] that I could be seen as responsible for placing the children in harms way…”. I do not accept that it was on Child Safety’s advice that the Father took the children from the Mother.

12. The Father alleges T found out about Mr B’s criminal history when he overheard the Mother and Mr B talking about it one night. Ms E indicated in her evidence that the Mother had told the children. However, an interview with Child Safety records:[6]

    Officer [U] asked [T] about [Mr B] and [T] said that he was a good person until they found out what he did. [T] stated that [Mr B] had spent eight years in jail and he robbed and lied and maybe killed people. Officer [U] asked how he knows this and he stated that mum told dad and dad told him.

    (emphasis added)

    [6] See bundle of subpoenaed documents marked as Exhibit 25.

13. I am satisfied that, as revealed by T it was the Father who told the children about Mr B; the attempts to suggest they learnt such information elsewhere are further examples of the Father’s lack of credibility.

14. In any case, the position was reached that the children became so fearful of Mr B from learning about his history (and, I have no doubt, the Father’s continuing input to the children about Mr B and his history) that they did not want to see the Mother. This seems to be largely the consequence of the stalking allegations and the children’s involvement within the dispute.

15. Mr B was questioned in regards to his stalking of the Father and the Father’s family. He agreed that he had been sending letters and text messages to the Father and Ms E but states he did so because he was “a registered police informant” gathering evidence to prove the Father is committing fraud by holding himself out as a medical doctor. Mr B gave evidence that the stalking charge is a “mistake” by a junior constable who did not have authority to look at the details of him being an informant. Mr B maintained this explanation despite the stalking charges being scheduled to proceed to trial in the District Court in May 2013.

16. It appears that Mr B holds the Father responsible for the suicide of Mr B’s son. In one of his letters to the Father (Exhibit 10), Mr B writes:

    …You made me a player in this game when you killed my son with your bullshit. Even after his death, you dishonoured and disrespected my son [V]...You know that I am doing everything in my power to burn you for what you have done to my son and your children.

17. Mr B is also alleged to have been stalking the paternal grandmother, Ms W. The Father and the paternal grandmother deposed that Mr B had read previous affidavits filed by them in these proceedings which caused the stalking. The paternal grandmother provides evidence that after she disclosed her address in a previous affidavit, Mr B travelled to her home in Sydney in or about January 2011 and took photographs of her home which were included with threatening letters sent to the Father. The events have caused the paternal grandmother to relocate to Queensland and move in with the Father and his family. In May 2011, the family relocated to a new home due to the protracted stalking. The paternal grandmother deposed that she suspected Mr B obtained the affidavit material from the Mother.

18. When asked to explain his conduct, Mr B provided evidence that he is himself a priest in the same faith as the paternal grandmother and that he went to see her priest to inform him of her lies and to have her “repent her sins”. He took photographs of the paternal grandmother’s home when he attended there for the reason, he says, to show the Father that he had been there but asserted no intimidation by him was intended. I find Mr B’s evidence unbelievable. Mr B has written many letters which clearly indicate an intention to intimidate and I have no doubt he intended to, and did, intimidate by this conduct.

19. Mr B was questioned about a particular letter sent to the Father in which Mr B writes:[7]

    In 1995 in the foyer of the Family Law Court [Mr Y] called me a child molester, (sic) I had a bran (sic) snap and became enraged. I bashed him, I broke his cheekbone, his jaw, three of his ribs, his kidneys were dislodged and his hip was broken. I was arrested and charged by the Australian Federal Police, they have the Jurisdiction in the Family Law Courts and I was found guilty. I was sentenced to a term of imprisonment. I appealed my conviction in that matter to the Court of Criminal Appeal in the Supreme Court of Australia and I won that appeal.

    My conviction was overturned by the full bench…You should aks (sic) your Solicitor to check this out [the Father’s first name]…You can view it for youreslef (sic)…It is now precdent (sic) Law and it evidences the fact that arseholes like you, cannot make false and vexatious allegations about men like me and expect to get away with it. I want you to know that I still carry the guilt and shame of what I did to that man…but the Justices of the Supreme Court agreed with me and they agreed that I had a lawful right to retaliate against him due to his false and vexatious allegations and his provocation of me. In my view there is no comparison between what [Mr Y] did to me and mine (sic) and what you have done.

    [7] Exhibit 10.

20. Mr B admitted in cross-examination that the letter was written by him, save for the part about “dislodged kidneys”, and sent to the Father around January or February 2011.

21. What is most alarming is that Mr B then also admitted to knowing the Father’s current address. In fact Mr B appeared quite triumphant in giving evidence that he knew where the Father lives. This is despite the Father being relocated to an undisclosed location as a result of the alleged stalking and the ongoing proceedings surrounding those issues. Mr B did not make any concessions as to the inappropriateness of his actions. He appeared to be proud of his ability in locating the address.

22. The children have sadly been involved in Mr B’s alleged stalking and the escalating and ongoing conflict between the Father and Mr B. The Father has shared with the children that he has received threats and letters and the police have attended the family home to discuss “protective behaviours” with the children. The children also came to be afraid to see their Mother because of her association with Mr B. The children have seen Mr B with the Mother on occasions since the stalking began which has caused them great distress, I find, because they have been taught to be afraid of Mr B. That fear is associated with their expressed views about the Mother given that the children obviously link the Mother with Mr B.  

23. One occasion was given by the Father where the Mother and Mr B were sighted together at a car park. The children were in the car and when they saw the Mother and Mr B together and “pandemonium” erupted with S taking his seat belt off and attempting to get away and all three children screaming and crying. Notwithstanding the Father alleging the children were so agitated, Ms E was able to take photographs of the Mother and Mr B from the car with the children being “chaotic”.

24. The Father alleges the Mother is complicit in the stalking because it appears from the material received by Mr B that he has read documents filed in these proceedings. The Mother gave evidence that she also received letters from Mr B and denies she is involved in any stalking conduct.

25. The Mother in her affidavit material swore that she has had no association with Mr B since December 2009. The Mother said this again in her sworn oral evidence during her cross-examination; however, when presented with evidence and accounts of her interactions with Mr B subsequent to this time, the Mother reluctantly accepted that she had in fact seen Mr B since December 2009. The Mother then attempted to assert that she had only seen him a few times to gain his assistance with her motor vehicle but it was then further established that she had been to dinner with Mr B and spoken to him occasionally on the telephone.

26. Remarkably and fundamental to the Mother’s credibility on this issue, the Mother eventually conceded that she had spent nights sleeping in the same bed as Mr B and had done so as recently as only a few days before the trial. At that point, if not before, it was obvious that the Mother was utterly unreliable as a witness at least on this topic. It was also established that the Mother was currently staying with Mr B’s ex-wife and both Mr B and the Mother stated their current addresses as being in X Street, albeit listing different street numbers.

27. The Mother was questioned at length about her knowledge of Mr B’s criminal history and the stalking. When questioned about how Mr B obtained the information about the proceedings and the paternal grandmother’s address, the Mother stated that she may have left affidavit material out on her desk at her house where Mr B may have had opportunity to see it. She thought Mr B may have also had access to her address book on her desk. I reject that evidence. It is probable that the Mother willingly shared the information with Mr B.

28. The Mother stated she was not aware of Mr B going to the paternal grandmother’s home and threatening her. The Mother said she was aware that Mr B had gone to the paternal grandmother’s pastor to confront him about the paternal grandmother needing to repent for “having a bastard son” and when asked whether what Mr B had done was okay, the Mother replied “…I’d want to know if someone was lying in my congregation”. Despite seeing the photographs of the house and the paternal grandmother’s affidavit, the Mother stated that she did not believe Mr B was threatening the paternal grandmother as she did not believe he would do that.

29. I find that the Mother is completely unreliable as a witness of truth concerning Mr B and her association with him. It follows that if she deliberately obfuscates on such a central issue doubt must attend the reliability of any of her evidence. It also follows that there necessarily must be reservations about her belated proposal concerning the injunction about Mr B she ultimately sought in terms of her adherence to that.

30. Counsel for the Father detailed Mr B’s criminal history for the Mother but despite this, the Mother stated that because she had never herself witnessed any violence from Mr B, she did not think the children were at any risk of harm in his presence. She did not seem to have much insight into the feature that, rightly or wrongly, the children now have a perception of Mr B as a person to be wary or fearful of. The Mother seemed determined to defend Mr B in preference to acknowledging that the children, rightly or wrongly, came to fear him.  

31. When asked what would happen if the Court made orders that the children live with the Mother, the Mother’s evidence was that she did not see why Mr B could not come into contact with the children. She further stated she accepted that it would take time and the children would need counselling before being re-introduced to Mr B due to their current fears. This clearly indicates in my judgment that the Mother intends for the children to see Mr B in the future.

32. The Mother’s lack of insight in this respect is reflected in the second Family Report dated 5 July 2012 where Ms O records (at [72]):

    …[The Mother’s] association with [Mr B] reflects that she may be experiencing poor choices with respect to her social networks.

33. As outlined, the Mother ultimately and belatedly sought an order that she be restrained from bringing the children into contact with Mr B. The Mother’s evidence indicates that she does not truly understand or accept the risk of harm or the children’s perception of and fear about Mr B.  The Mother gave evidence that she has never witnessed any untoward behaviour by Mr B and that he had been a good role model to the children previously so she had no concerns. This gives me no confidence that the Mother would abide by an order restraining her from bringing the children into contact with Mr B. Moreover, the Mother cannot control Mr B and the evidence surrounding his conduct, including his visit to the Father’s mother’s residence, gives cause for concern about Mr B taking matters into his own hands despite the Mother being restrained. The evidence concerning the paternal grandmother speaks volumes of the lengths Mr B will go to.

34. The Mother was inconsistent in her evidence as to where she had been living since separation and at what times she had been living there. She initially gave evidence that she had been living with the grandfather in Newcastle but conceded that she had also spent time living with friends at the Gold Coast and in Ipswich. I find that the Mother prevaricated in her evidence rather than being frank and forthright in her answers on this topic. The Mother could not provide any solid details of how she would implement her proposed orders such as something so fundamental as where she would live if the children were to live with her. 

35. The Mother proposed orders during cross-examination that she would reside with the children on the central coast of New South Wales and only on further questioning did she state Town M as the exact location. However, she had earlier maintained that the purpose of the relocation was to live with the grandfather for his support. The grandfather lives in Newcastle not in Town M. The Mother later stated that the location was halfway between the homes of the Mother’s sister and the grandfather.

36. The Mother indicated that she would be seeking the Father spend no time with the children for fear that he would take them away again. This is inconsistent with the orders proposed in her filed material including her Case Information Document. The Mother was ultimately amenable to remaining on the Gold Coast if required and ultimately sought orders at the end of the trial that she live with the children on the Gold Coast.

37. The Mother’s evidence surrounding her mental health conflicts with previous accounts given by her in interviews with Dr G and Ms O which will be touched upon later.

Statutory Framework

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

2. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

3. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. (s61DA(4) of the Act).

4. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the court must consider an order for substantial and significant time with each of the parents.[8]

   [8] Section 65DAA.

Relevant Best Interests Considerations

1. With respect to s 60CC(3)(a), it is clear that each of the children expresses strong views that they want to live with the Father and have no contact with the Mother. This is evident in the two family reports prepared by Ms O.

2. I find that the weight that can legitimately be placed upon the views expressed by R and S in my determination is tempered by their respective intellectual disabilities. In regards to all three children, I find the Father has played a central role in alienating the children from the Mother and therefore the children’s views must be considered in light of this and the allegations that the children have been so influenced by the Father in what they have expressed in their interviews.

3. In the first Family Report, dated 15 December 2010, Ms O described T as being angry and distressed about the Mother. She opines that T acts as the spokesperson for his siblings. T and R clearly and consistently stated they did not want to live with or spend time with the Mother and were highly critical of their experience in the Mother’s care. Ms O reports that the children alleged the Mother was verbally abusive, inappropriately physically disciplined T and S, and could not manage S’s behaviour. Ms O however noted “…the children were generally unable to provide specific or detailed examples about their mother’s physical abuse of them”. The children also alleged Mr B had “…purposefully rubbed soap into [S’s] mouth and eyes and zipped him into a shopping bag…” The children also discussed the Mother’s and Mr B’s drug use. Ms O’s observation of the Mother with the children recorded in the first Family Report (prepared almost two years prior to trial) is particularly alarming (at [49] and [50]):  

   … As [the Mother] and I entered, [T], [M] and [S] became distressed and hysterical, clinging to their father and [Ms E] having to be physically extricated with considerable effort. [M] and [S] soon calmed down when [the Father] and [Ms E] left the room. [The Mother] appeared unsure of how to respond to the children’s distress and only acted after being asked to assist comfort the children. [The Mother] placed [R] on her lap and told her she loved her and missed her. [S] happily accepted [the Mother’s] affections and happily ate the food and drink she offered him. [T] however was hysterical. He hit his mother several times as she attempted to approach him, told her to “Fuck off” amongst various other comments and attempted to escape from the room calling out for his father to help him. The observation was terminated after approximately 5 to 10 minutes due to the level of [T’s] distress.

   [T] immediately ran to his father who calmed him down. [R], who was also crying sought comfort from [Ms E]. [T] and [R] refused to take their mother’s food. [The Mother] was visibly distressed and shocked at [T’s] strong reaction to her. She stated that she had never seen him behave in such a manner before with anyone, that he is generally a placid child.

4. Ms O’s evaluation then was that if the Court were to accept the Mother’s assertions that the allegations made are unfounded, then the Father has shown an inability to fulfil his parental responsibility and the Court should consider if the children may be at risk of emotional harm remaining in their Father’s care. Ms O recommended the children:

   ….receive significant therapeutic intervention with some active involvement from the parents to assist them to understand and explore their familial relationships with the hope that they can resolve their issues with their mother and rebuild their connection with her. …

5. Ms O stated that if the issues outlined were not addressed then she held “…significant concerns for the ongoing emotional wellbeing of the children”.

6. As already discussed, the Father did not actively or meaningfully engage in the process contemplated by the Federal Magistrate’s Order in December 2010 which implemented such recommendations.

7. In her second Family Report dated 5 July 2012, some 18 months having elapsed, the children’s views about seeing their Mother had not changed. Ms O chose not to conduct a formal observation of the children with the parents given the previous response the children had had to the Mother as referred to. Ms O noted that the children call Ms E their mother and that the Father had stated in the interview that “…[Ms E] has been a better mother to my kids than their mother ever has”. Ms O stated that Ms E and the Father both referred to Ms E as being the children’s mother.

8. Ms O reports in the second Family Report that (at [46]):

   … [T’s] tone was angry and his comments brutal when he spoke about his mother. [T] refused to call [the Mother] his mother, referring to her as ‘[the Mother’s first name]’ and became angry with me persisting to do so. [T] said “She doesn’t deserve to be our mother’…describing her as a ‘crazy drug addict alcoholic’ and stated that he calls [Ms E] ‘Mum (because) she’s more of a mother to us’.

9. T in the interview reiterated the information about the Mother’s parenting that he had previously told Ms O. R also presented as an angry child and told Ms O, “We don’t call [the Mother’s first name] mum she doesn’t deserve to be called that. She’s hurt us. Me and my brothers…She doesn’t care about us…only herself”.

10. Both R and T were fearful of even giving the Mother their contact telephone number stating it was not safe to do so because the Mother may locate their address. Ms O opined that this fear was linked with the children then having recently seen the Mother with Mr B and the children’s awareness of the stalking and turmoil surrounding that for themselves and family members.

11. S also referred to the Mother as “[the Mother’s first name]” and described her as “scary”. When asked whether he wanted to see the Mother, S responded, “Dad said we’re not allowed to”. When asked why he did not want to live with the Mother, S responded that it was because she gave him “yucky food” but could not provide examples. He said he did not like the Mother because she “took drugs” and that his Mother and Mr B had been in bed and “…gave me coke and put a cigarette in my mouth to make me cough.”

12. Ms O’s opinion is that the children’s relationship with the Mother is “…most likely the consequence of an extreme alignment relationship existing between the children and their father” and that their concept of the Mother is “…disproportionate to their actual experience of her. They lack detail about the ‘abuse’ and are unable to recall any positive memories…” of the Mother. I accept Ms O’s opinion.

13. Ms O does however state the Mother has contributed to this rejection and that the children “…have experienced compromised parenting” such as the Mother’s response to challenging behaviour to be locking herself in her room. Also of concern for Ms O was the Mother’s previous drug use which was likely to have affected the Mother’s emotional and physical availability to the children. I accept the legitimacy of the concerns identified by Ms O in relation to the Mother. For reasons which will be discussed, the Mother has not by evidence removed the concern about her drug use.   

14. Ms O believes the Father has coached the children in their responses and records (at [73]):

    … [R’s] ‘distress’ after her interview appeared prompted by [the Father’s] repeatedly asking her if she was aright illustrates this. The children’s statements are the same as those made by [the Father], for example, their comments about [Ms E] being a better mother to them than [the Mother] matched. Child Safety also assessed it likely that [the Father] coached the children. [The Father] has controlled the children’s access to and interaction with [the Mother]. [The Father’s] intervening in the children’s counselling and [S’s] statement that they are not allowed to see their mother support this opinion. [The Father] has also dictated the terms on which [the Mother] is able to spend time and communicate with the children. His prescriptive parenting proposal illustrates this.

    In my opinion [the Father] has embellished or dramatized information to services with which the family has been involved. Inconsistencies in his statements appear to reflect this. For example, [the Father] initially advised the Court that, [Ms E] and the children were relocated ‘under police protection’ and in the ‘witness protection program’ and told Child Safety that he was applying to the Family Court to relocate. [The Father] also informed the children’s former schools that Child Safety had recommended he home school them.

15. I am in no doubt, and I find, that the Father’s malevolent influence in the respects referred to by Ms O play a central role in the children’s rejection of the Mother.

16. T and R’s diaries were presented to the Court and marked as Exhibit 19. They provide distressing evidence of the children’s thoughts on the Mother and the Father’s approach to such thoughts. As an example, on the page dated 24 August 2010 of T’s diary, T writes:

    last nigh (sic) – my mum came around when we were asleep. But my dad and [Ms E] were awake so they saw mum come around. She wasn’t ment (sic) to come around because there is a d.v.o. in place. On the 23 yesterday my mum was being a reall (sic) dick….’she is a fuckn Bitch. I neve (sic) want to see her again even if it means going to the U.S.

17. This is the tone of majority of the entries and after each entry the Father has written notes below which he has conceded in cross-examination the children would have seen. These notes include “trying to take S/AVO breach”, “psychotic episodes”, “mum naked”, “coercion”, “drugs”, “mum’s violence”, and “swearing/abuse/neglect/drugs/knife”. Thus the Father deliberately embarked on a course of conduct designed to reinforce and affirm the children viewing their Mother negatively.

18. It appears from Counsel for the Father’s oral and written submissions that the Father has conceded findings of alienation would be made against him. Counsel for the Father’s written submissions record (at [30] and [31]):

    Much criticism was levelled at the Father during the course of the trial with respect of his conduct in promoting and encouraging the relationship between the Children and the Mother, his motives with respect of many of the allegations made to the Department of Child Safety and other third parties, his role in the poor communication with the Mother and the controlling nature in his endeavours. It would be nonsense to not concede the veracity of such cross-examination and the inevitability of such adverse findings being made against him.

    Further, he has inappropriately involved the Children in the dispute between he and the Mother and unnecessarily discussed “adult issues” with the Children. His lack of diligence with respect of the counselling for the Children is, again, a poor reflection on his decision-making.

19. I find that the children’s ages and levels of maturity, particularly taking into account R’s and S’s intellectual disabilities, combined with the Father’s role in alienation of the Mother from the children’s perspective and to some extent Ms E’s role in taking over as the children’s “mother”, must be taken into account in assessing the weight to be attached to the children’s expression of negative views about spending time with their Mother. There is substance to the issue of the Mother’s parenting capacity and particularly the fears associated with Mr B which will be discussed.

20. However it would seem that because the steps contemplated and provided for by the Order of 16 December 2010, particularly provision for time to be spent by the children with the Mother and therapeutic counselling, the children’s developing negative views and perceptions of the Mother (actively encouraged at every stage by the Father) were not arrested and developed with increasing intensity to the entrenched stage that Ms O ultimately witnessed in her latter interview.  

21. It is clear that the nature of the relationship the children have with the Mother (s60CC(3)(b)) is now non-existent and filled with anger and as Ms O opines, and I accept, a disproportionate reaction to their actual experience of the Mother. The Mother submits that prior to the children being retained in the Father’s care, she had a very good relationship with the children. The Father deposes that when the parties were together, the Father was the primary caregiver and the Mother barely provided any care for the children as she was suffering from serious mental health issues. I reject the Father’s assertions to the effect that the Mother did not play a significant role in the children’s lives prior to separation. I accept that the Mother had a good relationship with the children despite identified deficits in her functioning and parenting capacity.

22. As discussed earlier, I also find there is a lack of evidence that the children from the date of separation were complaining or refusing to go to the Mother’s household.

23. The Magellan report dated 11 February 2011 records that on 5 November 2010 it was reported (at page 13 and 14):

    During the investigation the department sought information from services that [the Mother] had accessed for (sic) support for herself and the children including [N Counsellors], private psychologist [Ms P], [CC Family Counsellors] and [DD Drug Counsellors] all of which confirmed that [the Mother] had engaged well with the services. None of the services contacted reported any significant concerns in relation to her ability to care for the children.

    [The Mother] has been identified as a parent who is willing and able to provide the necessary care and protection of the children… Evidence was gathered from a number of agencies and professionals whom have worked with and supported [the Mother] for a number of years. The information provided by the professionals outlines that [the Mother] has appropriately addressed her marijuana use and has successful (sic) abstained from any drug use. The evidence demonstrates [the Mother] does not have mental health instability and her emotional and mental health is stable and appropriate due to recent stressors. The evidence supports that [the Mother] is able to appropriately engage with services to ensure that R, T and S’s emotional, physical and daily care are met.

    I accept the accuracy of that report.

24. The Father has clearly demonstrated that he has no willingness or ability to facilitate or encourage the children’s relationship with the Mother (s60CC(3)(c)). I find on the evidence that the Father has in fact actively encouraged and made concerted efforts constituting an unrelenting campaign to bring about the children’s rejection of their Mother and has, as already detailed, alienated them from the Mother.

25. I do not accept the accuracy of the submissions made by Mr Alexander that the Father has reflected upon his conduct and “…acknowledges he has been deficient in a material way…” and does not wish to remove the Mother from the children’s lives. The Father’s evidence and lack of credibility has given me no confidence in his ability to facilitate and encourage such a relationship in the future. I think it more likely than not that the Father’s stated position is, rather than reflecting a genuine realisation of how poorly he has met the children’s needs, actually a response to that being revealed for all to see in this trial.

26. The Father’s final proposed orders include the Father undertaking to:

    (a)Within 7 days, take all steps required of him to retain the services of Mr I … and

    (b)within 7 days, take all steps required of him to enroll (sic) the Children into the EE Contact Centre …; and

    (c)Within 7 days, take all steps to enrol himself into a Post Orders Parenting Program (“the POP Program”); and

    (d)Provide to the Mother and the Independent Children’s Lawyer written confirmation of his completion of the POP Program not less than 6 months from the date of these Orders. 

27. Counsel for the Father submits that the Father is aware of the serious consequences of failing to comply with these undertakings, and this can assure the Court that he will comply. I have little confidence that the Father would genuinely act in support of such orders of the Court and such undertakings. The evidence and the findings made in relation to the evidence read with the expert evidence of Dr G lead to the conclusion that the Father probably suffers from a narcissistic personality and has demonstrated that he considers himself to always be right. Examples of this include his viewpoint in the Z Organisation DVD that traditional medicine is harmful to Disease BB patients; his belief that he could home school his children despite being advised he could not; his holding himself out to be a medical doctor without having any qualifications; his believing he did not need to attend a POP program because he did not have any parenting deficiencies; his deciding to take his children to a different counsellor despite the Independent Children’s Lawyer not agreeing to that; and his statements to the grandfather that from his knowledge of X and Y chromosomes, he could procreate with his half-sister without any danger to the children’s health.

28. Ms O gave oral evidence that she also has reservations about the Father’s ability to adhere to any order for the children to attend counselling and re-establish a relationship with the Mother given the Father’s pattern of non-compliance, his interfering with the Centacare counselling and his alienating behaviour. In response to questions relating to the Father’s reflection about his conduct, his ability to change, and the undertakings he has given, Ms O stated in cross-examination that:

    My response would be that the Father’s had quite a lot of ability to demonstrate his commitment to the Mother’s…to promoting the Mother’s relationship with the children and he’s actively sabotaged that, he’s very much become…not allowed the children to undertake counselling with Centacare, he’s sabotaged that process…as I said, I’m really not confident that the Father is able to do that.

    There is quite a pattern there that he has been quite controlling…his final application was extremely detailed and prescriptive then in terms of what the Mother was to do and he took no responsibility for his actions.

1. However I also have significant concerns about the Mother’s willingness and ability to facilitate and encourage the children’s relationship with the Father given all that has occurred. At trial, she had originally sought an order that the children be relocated to New South Wales and not spend time with the Father because she feared he would take the children away again. The Mother made statements during oral evidence that she is seeking the order because “…my family have been robbed…” and that she had been denied her “rights” as the children’s mother. When asked by Counsel for the Father, “…so you would deny them the right to their father?”, the Mother replied, “He has harmed them…;[we] need a fresh start.”

2. The Mother has an extremely negative view of the Father. In Ms O’s opinion there is no guarantee the Mother will be any different from the Father in promoting the children’s relationship with him. However, Ms O also points out that there is no evidence to indicate that the Mother has done anything in the past other than facilitate a shared care arrangement. However, things have worsened considerably, in terms of each parent’s views of the other, over the past couple of years, surrounding in particular the Mother’s association with Mr B.

3. The Mother and the Independent Children’s Lawyer both propose orders for the Court to consider removing the children from the Father’s care and placing them with the Mother. The evidence from Dr G and Ms O is that now separating the children from the Father is likely to have a drastic effect on them (s 60CC(d)).

4. Ms O recorded in her Family Report dated 15 December 2010 that due to S’s, and to some extent R’s, intellectual impairments, the children require a stable routine and structured care environment with consistent parenting. Ms O stated that children with development delays often do not cope with change or unpredictable environments and need boundaries and limits set. Those opinions, which I accept, resonate in the face of the Mother’s apparent lack of stability of her own circumstances and lack of detailed structure to her proposal.   

5. Dr G gave oral evidence that a change in residence would probably disadvantage R and S more so than it would non-disabled children. Dr G gave evidence that any answer on whether such disadvantage is outweighed by the children having a relationship with the Mother would be “speculative”. I accept Dr G’s evidence.

6. In relation to a change in residence, Ms O opines there are deficits in the parenting capacity of the Mother (s 60CC(f)). Ms O gave evidence that in alienation cases such as this there is likely to be an issue regarding the parenting capacity of the alienated parent already in existence upon which to build the alienation. It is likely here that a significant basis for alienation is based in the Mother’s association with Mr B. However Ms O does opine that the Mother’s history of drug use may have had an effect on her parenting capacity. I accept that.

7. Ms O states the Mother has demonstrated some parental capacity in that she had accessed support services when the children were previously in her care and she has participated in the Centacare counselling. The Mother had also put S and R into disability services. Ms O opines that if the Mother was willing to engage the children in a support service which was an in-home service, then there would be potential that she could manage the children’s change of residence into her care.

8. Ms O opined that a change in residence would be difficult but she seemed more confident about the Mother’s capacity to manage such than the Father’s capacity to engage in counselling and in facilitating a relationship with the Mother. However, Ms O was not at all confident as to which option would be in the best interests of the children, by either leaving the children in the care of the Father with only a limited possibility of them developing a meaningful relationship with the Mother versus the risks posed by a change of residence into the Mother’s care.

9. The fact that the Mother, as at the trial stage of these longstanding proceedings, does not have any concluded plans about the accommodation for the children, about the schooling for the children and about the support services she will have in place for the children, causes concern as to whether the children will be put into and maintained in a stable, secure environment if a change of residence were to occur.

10. Of particular concern is that knowing the case agitated against her about drug use and its consequence for her parenting as alleged, as at the trial the Mother was yet to fully comply with the requirements for drug testing. There was only one sample collected from the Mother on 12 April 2012 despite the Independent Children’s Lawyer making requests on 30 November 2011, 15 December 2011, 12 January 2012 and 21 May 2012. The Mother asserted that the reason for non-compliance is simply that she did not have the money to pay for such tests. The Mother handed up a “clean” drug test on the second day of trial, marked Exhibit 5 and dated 29 October 2012. The failure to provide tests when requested gives rise to the obvious inference that the Mother wished to conceal continuing drug use. Her reasons for not complying, if true, gives rise to obvious questions as to her capacity to provide for the children if they were placed in her primary care, even allowing for increased social security benefits she might receive. It is difficult to accept that on such an important issue, and having only her own support to concern her in the period under discussion, the Mother could not afford the drug testing requested by the Independent Children’s Lawyer.

11. The Mother has historically undergone extensive drug counselling and the Magellan report dated 11 February 2011 states (on page 13):

    The information provided by the professionals outlines that [the Mother] has appropriately addressed her marijuana use and has successful (sic) abstained from any drug use. 

12. The Independent Children’s Lawyer submitted in written submissions that while the Mother has performed a number of drug tests as requested, “…there was however a period of time between November 2011 and April 2012 where the Mother did not produce a drug test despite request from the ICL.” The Independent Children’s Lawyer states that “…it is a real possibility that the Mother deliberately avoided the tests because she was using cannabis at this time.” That is an obvious and concerning possibility.

13. The Mother also denies having any serious mental health issues. She states she suffers from depression due to not seeing her children. The Mother denies ever trying to commit suicide despite Dr G reporting what the Mother told Dr G, that she had been suicidal when she was 17 and that she had made an attempt at suicide with a razorblade. I accept the accuracy of Dr G’s reporting.

14. From Dr G’s report, there appears to be two occasions on which the Mother was admitted to a mental health ward. On one occasion, the Mother was found by police at a headland after she had left the house during a domestic dispute. The Father alleges that she was taken there by the police; however, the Mother states the police had merely found her and asked her if she wanted a lift to the hospital. The Mother was admitted to the mental health ward at FF Hospital on that occasion.

15. On another occasion, the Father alleges that he walked into the kitchen and found the Mother standing with a knife talking about killing herself. The Mother states that this is not true. Dr G records in her report that the Mother commented, “…I did pull a knife on [the Father].” The Mother gave evidence in cross-examination that she had said to Dr G that she had pulled a knife but that she had not done so on the Father. The Mother’s evidence was that upon realising the knife was in the air she decided it was time to leave the house. The Mother stated in her interview with Dr G that on this occasion she had gone to GG Hospital and was admitted for four or five days. Again, I accept the accuracy of Dr G’s reporting in preference to the Mother’s version.

16. The Mother continues to assert however, that all admissions to hospital have been a result of her thyroid condition and that she has never had an acute mental health issue. The Mother asserts that all suicidal thoughts were attributable to her thyroid toxicoses. The Mother concedes she is taking medications which include Valium and an antidepressant, and that she is also seeing a psychologist, Dr AA, in Town HH. She admits that she has depression.

17. It appears to me from the evidence, regardless of whether it is caused by the Mother’s thyroid problem or not, the Mother has some issues with her mental health that compromise her capacity from time to time to deal with stressors.

18. Dr G stated in her report that the Mother’s presentation at the interview suggested histrionic traits. Dr G did state in oral evidence however that if the Mother were diagnosed to have a histrionic disorder, this could be fairly insignificant in terms of the Mother’s parenting.

19. The main concern regarding the Mother’s parenting capacity includes the Mother’s ability to protect the children from harm in the face of evidence that she does not see a problem with the children coming into contact with Mr B given all that has occurred and the children’s own perceptions and fears about Mr B.

20. I am also concerned about the parental capacity of the Father. Counsel for the Father conceded in written submissions that the Father has ‘…inappropriately involved the Children in the dispute between the Mother and unnecessarily discussed “adult issues” with the children.’ That is, I find, some understatement.

21. One example is outlined in the Father’s own affidavit filed on 13 December 2010 where the Father deposes at page 3 that he had:

    … arranged for the children to write to the mother and accompanied with my fiancée, namely [Ms E], [T] and [Ms E] walked to the mother’s home on Wednesday, 1 December 2010 at approximately 8:00am – before the children went to school. I am told by [Ms E] and I verily believe that as [T] approached his mother’s home on that date, that upon seeing the car he identifies as that of [Mr B] (for whom we have previously referred to in previous correspondence as having a lengthy criminal history including offences of violence) that he became scared and in fact, panicked. As such he left the mail on the back of [Mr B’s] car and returned him (sic).

22. The letter being delivered was a demand for a number of the children’s possessions. When asked why the Father had allowed T to deliver such a letter, the Father replied that he had done so because the Mother requested a list of the children’s belongings required to be returned. The Father purported to suggest that he could see nothing wrong with facilitating the children writing such a letter and taking it to the Mother. That is just patent nonsense typical of much of the Father’s efforts to justify his conduct.

23. Another example is found in an interview conducted by Child Safety with R on 20 September 2010 which states[9]:

    …[R] stated she has been writing in a diary and that it was ok for departmental officers to read her diary. On quick perusal of the diary, departmental officers noted an entry on 10 September 2010 which stated ‘to pick up the statement that mum saved (sic) about getting us to live with her’. [R] stated that she was writing about when they ‘went to dad’s lawyer, annoying what mum wrote in affidavit’.

    [9] See bundle of subpoenaed documents marked as Exhibit 25.

24. When cross-examined on how R came to know the content of an affidavit, the Father gave evidence that:

    …Well she was in the back seat [of the car], [T] was in the front seat. I guess she must have seen over my shoulder what the document was. I don’t believe she would’ve been able to read any of the content of it.   

25. The Father then conceded that he had told the children they were going to the solicitor’s office to pick up documents. The Father suggested he could not see an issue with doing so. I do not accept the Father’s evidence. I find his evidence on this topic another example of his lies. I find that the Father has actively sought to align the children to his cause at every opportunity including by sharing with them the content of affidavit material.   

26. In the Father’s written submissions, Counsel for the Father states (at [35]):

    …The Father was not challenged during his oral evidence by either counsel for the Mother or the Independent Children’s Lawyer about his abilities to cater for the necessities of the children. 

27. I do not accept that this is the case. The Father was cross-examined on a number of issues relating to his parenting capacity.

28. R was hospitalised when she was approximately one year old for a period of eight weeks after the Department arrived at the parents’ house and removed the child from their care. The Father conceded in cross-examination that according to the Department, the basis for this removal was a failure on the part of the parents to provide medical care for R.

29. An interview with Child Safety on 14 April 2010 (notably with the officer adopting the Father’s self-proclaimed status as a doctor) records: [10]

    CSO [Q] asked Dr [Cramond] about their involvement with DOCS and he stated that [R] had failed to thrive. Dr [Cramond] stated that they took her to a paediatrician and he wanted them to take her to a hospital but they wanted a night to think about it. Dr [Cramond] stated that DOCS then turned up. Dr [Cramond] stated that [R] spent eight weeks in hospital and then the magistrate returned her to their care.

    [10] See bundle of subpoenaed documents marked as Exhibit 25.

30. The Father’s evidence in relation to this matter, like most of his evidence, lacked credibility. He asserts that the parents were given conflicting medical advice on what to do at the time and provided care under the advice they were given by one doctor. The Father, however, could not remember the full name of such doctor. R’s condition at this time was so serious she was transferred from GG Hospital to the Royal Children’s Hospital.

31. The Father had also taken the children out of school for a period of ten weeks following their removal from the Mother’s care on 23 August 2010.  The Father gave evidence that this was due to the children being afraid they would be taken by their Mother after the Mother had attempted to take S from the school bus on his way home. Ms O states in the first Family Report (at [18]):

    …Whilst [the Father] was unable to recollect, documentation on the Court file and subpoenaed material suggests that he was not advised to home school the children, as he otherwise claimed. He has subsequently informed me that he did not receive advice to home school the children, but to take appropriate measures.

32. Further, in the Magellan Report dated 2 February 2011, Child Safety notes that the Father spoke about the children being home schooled and stated he was providing a curriculum. The Report states “…[The Father] stated that he is able to do this as he has a background in education.” There was no basis for that claim by the Father which I find he made.

33. The Father was ordered by the Court to return the children to school. The Father has since put the children into mainstream schooling despite S previously attending special school due to his autism. The Father states S has a support person at the school. He made the decision to move S without consultation with the Mother and when questioned as to why he had not discussed such a move with her the Father stated that it was because she had previously indicated objection and he knew she would not agree. The school reports for 2012 were provided and marked as Exhibit 21. They show that S and R especially are not coping academically.

34. The Father also states that the children do not see a paediatrician and do not need to do so as they are in good health. No medical records have been provided to the Court to ensure that this is the case.

35. These examples, combined with the Father’s lack of cooperation with counselling services, indicate the Father has not been providing for the children’s needs appropriately. I find these instances are further examples of the Father’s narcissistic personality in that he has viewed his own opinions to be above those of others in various different contexts. This type of belief system, in the Father knowing better than others, is consistent with the evidence surrounding him presenting himself as a doctor. It also shows the Father’s disregard for the children’s educational needs and R and S’s needs for routine and a stable environment.

36. It is clear that the children have developed a strong bond with Ms E and removing the children from the Father’s care would also mean the children lose the support they have had from Ms E. It is necessary to consider the effect this would have on the children.

37. In relation to Ms E’s parental capacity, Ms E gave evidence that she had been diagnosed with a dissociate identity disorder in her childhood, but does not take medication for it. Ms E deposes she had not had any episodes for many years. Ms O states that while she is not a mental health expert, in her opinion, if someone were to have such a disorder and it was untreated, it would likely impair her parenting because her availability to the children would be inconsistent. There is no evidence before me that Ms E is so compromised and the children are recorded as speaking positively of her. The children appear to have a sound and positive experience of Ms E.  

38. In respect of the primary consideration expressed in s60CC(2)(a), there is a clear benefit of the children having a meaningful relationship with both of their parents, if that were possible. In the first Family Report, Ms O records (at [52]):

    It is well established that the children’s cognitive, emotional and social outcomes are benefitted by their ability to maintain healthy, positive relationships with their parents and significant others. The ability to remain connected also assists children to construct a positive sense of self and of belonging, as well as shaping their identity. …

    However, the benefit to promoting meaningful relationships with each of their parents must be balanced with each parent’s ability to provide a safe, secure and stable living environment where children’s physical, emotional and developmental needs are met appropriately. 

39. The children at present do not have a meaningful relationship with their Mother. Ms O states in her second Family Report dated 5 July 2012 that in light of her conclusion that the Father has alienated and coached the children, it is her opinion that the Father’s “… capacity to promote a meaningful relationship between the children and their mother is limited…”. I would put it at non-existent.

40. It appears on the evidence as a whole, and I find, that if the children are to have any chance of establishing a meaningful relationship with the Mother, they would need to be removed from the Father’s care. Therefore it is necessary to consider whether there are realistic prospects of them having a meaningful relationship with the Mother and whether taking these prospects into account, the benefits of that outweigh the risks associated with a change of residence, including those concerning the Mother’s parental capacity and her association with Mr B, and any limitations on her capacity to promote the children’s relationship with the Father.

41. There are a number of consequences for the children if they fail to develop a meaningful relationship with the Mother. Ms O gave oral evidence that the Father is:

    …sabotaging [the] relationship of the children with their Mother and creating a false construct of her as a bad and evil parent … and denying [the children] the ability to have a meaningful relationship with her which will have a significant detriment to the children’s development. Those detriments relate to the children having a distorted sense of self, they learn poor interrelationship skills, they can develop mental  health issues, they often have difficulty separating from the alienating parent as often usually an enmeshed relationship…

1. In Dr G’s opinion, if the children were to remain living with the Father and the Court found he had a narcissistic personality, along with the obvious disadvantage – that the children would be deprived of a relationship with the Mother – there are other consequences for the children, such as their future relationships as adults. They may have difficulties with partners, they may be more vulnerable to depression, and they may develop personality disorders themselves.

2. Ms O further stated in her Second Family Report that (at [76]):

   If [the Father] continues to shape the children’s construct of their mother and control the terms of their future relationship with her, the potential also exists for [the Father] to damage his own relationship with them…Further, the children need to have an opportunity to construct an independent view of their mother to assist with their identity formation and ability to negotiate their own future relationships.

3. In relation to the primary consideration in s60CC(2)(b), I must also consider the need to protect the children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence. The children have already been subjected to emotional harm in respect of the parents’ “toxic” relationship.

4. It is necessary to consider if either parent poses a risk of harm to the children. The test is whether granting access to a parent would expose the child “to an unacceptable risk of” abuse: M and M (1988) 166 CLR 89.

5. There is no independent or credible evidence to support the allegations of sexual abuse of R by the Mother, sexual abuse of S by Mr B or physical abuse of the children by either the Mother or Mr B. As noted, the Father no longer appears to be seeking a finding in relation to such allegations.

6. The Father alleges the Mother poses an unacceptable risk to the children due to her association with Mr B. Counsel for the Father states in written submissions (at [23]):

   The Mother’s lack of ability (or more importantly, willingness) to place the Children’s’ (sic) protection above her own desires evidences a severe lack of ability to protect the Children from the risk of physical or emotional harm…

7. Counsel for the Independent Children’s Lawyer states in written submissions that (at page 9):

   …the court should find that the mother is still associating with [Mr B] and that [Mr B] is not a good role model (given his conduct towards the Father and criminal history).

   It is submitted that the Mother, despite being taken through [Mr B’s] criminal history and past allegations of a sexual nature made against him and conceding that [Mr B] can be aggressive (a characteristic that was amply demonstrated in his oral evidence), showed absolutely no insight into the risk he could pose to the children. The court should find that the Mother’s ability to protect the children from [Mr B] is compromised given that she does not think that she needs to protect the children from [Mr B] and that she still believed that he was a good role model for the children.

   It is also submitted that given that [Mr B’s] aggressive and presentation (sic) and the mother indicating that she was aware that [Mr B] could bring legal proceedings against (sic) is open to the court to find that even if the Mother wanted to protect the children from [Mr B] she would be unable to do so. 

8. There is also a risk of the children suffering emotional and psychological harm if they were to remain in the Father’s care.

9. Counsel for the Independent Children’s Lawyer submits (at page 11):

   …there is ample evidence to suggest that the Father has “alienated” and “coached the children” and that through his actions he has “controlled and manipulated the contend (sic) and dissemination of information to the children about their mother to fit his construction of her as a dangerous and abusive parent.

10. The issues surrounding the alienation and coaching have already been discussed. 

11. The Independent Children’s Lawyer contends that both parents pose a risk to the children because of the parental acrimony. There are mutual Domestic Violence Orders between the parties with both alleging violence against the other. The Mother “pulled a knife” on the Father during a domestic dispute and the Father has tipped the police off about the Mother’s drug use, has videoed the Mother driving past his house which he gave to the police leading to the Mother spending a night in the watch house. Neither party has a positive thing to say about the other. As Ms O stated in her oral evidence, the parties’ relationship is toxic. Dr G states in her report (at [70]) that “…it can be said with reasonable confidence that the children are disadvantaged by the extremely hostile relationship between the parents.”

12. As already noted, I find it more probable than not that concerned about Mr B the Father has adopted an “ends justify the means” approach and the means he adopted included fabricating allegations of sexual abuse and involving the children in the proceedings and the stalking issue. I find that the end of these proceedings will also mean the end of the Father needing to involve the children in the dispute and coaching the children in making allegations surrounding the Mother thus removing the risk of emotional harm the children that have been subjected to in the past.

Balancing s 60CC Considerations

1. By reference to the findings made above I am not satisfied that the Mother’s ultimate proposal is sufficiently viable or feasible, or has sufficient prospects of achieving the aim of restoring the children’s relationship with the Mother as to justify, in the children’s bests interests, their removal from their present care arrangements with the Father and Ms E.

2. I am not satisfied that the Mother demonstrates that she can provide and maintain the stability of circumstances that would be required in attempting to manage the children’s adjustment. Even if she could, I find it to be so speculative as to whether the children would adjust to such a change, profound in all the circumstances given the history of events particularly since about mid-2010, as to be unjustifiable on best interests considerations overall.

3. In this context, the ongoing issue of Mr B and his alleged stalking and the ongoing District Court criminal proceedings casts a shadow over these proceedings yet to be resolved.

4. It is, to say the least, regrettable that the orders of FM Cassidy made on 16 December 2010 were never brought into practical effect. Particularly the order for the children to then commence engaging in therapeutic counselling in conjunction with restoration of regular time with the Mother. Had that then occurred, the deterioration in the relationship between the children and the Mother might have had prospects of being arrested and reversed. In the event, it is clear that such deterioration worsened over the period of about two years that elapsed between then and the trial.

5. I have no doubt that the children are alienated from the Mother. I have no doubt that the Father has malevolently played a central role in that occurring. It may be a product of his narcissistic personality which stands in the way of his doing what is best for the children in priority to what he perceives as his own needs but it is clear that that is what has occurred.

6. I have no doubt that leaving the children in the Father’s primary care is a poor option in many respects. He is unable to allow them a relationship with the Mother with all the downside risks of that for their development as earlier discussed by reference in particular to the expert views expressed by Ms O and Dr G. He has demonised the Mother and has inculcated in the children beliefs that their Mother is bad or evil. That is unfair to her and is not the reality.

7. As outlined above, the evidence reveals the respects in which there is a gulf between the Father’s inflated views of his own abilities to determine what is best for the children and the reality including that identified by experts, a gulf into which the children fall. That is so for all of them but particularly R and S who have particular needs.

8. For all of that, removal of the children from the Father’s primary care and that of Ms E would, I find, more likely than not realise drastic consequences for the children of an adverse kind.

9. I find it more likely than not that the children’s alienation from the Mother was complete and entrenched well before this trial. As already noted, as at the time of the First Family report in December 2010 T, described as acting as the spokesperson for his siblings, was entrenched in his negative views of the Mother. As also already noted, at the observation then made by Ms O all of the children became “distressed and hysterical” when the Mother was introduced even in that setting. T remained oppositional and the session only lasted five or ten minutes in total due to T’s level of distress.

10. Based upon this episode Ms O did not even attempt a similar exercise of observing the children with the Mother for her second report some 18 months later in July 2012. Then, R and T in particular were strident in the negative views they expressed about the Mother as at that second report stage. As already noted, Ms O then assessed an extreme alignment relationship between the children and the Father.

11. The expert evidence of Ms O and Dr G, which I accept, can be taken to be to the effect, in summary, that it would be speculative whether the risks of removing the children from the Father’s primary care would be justified in terms of the children’s best interests. Neither expert expressed any firm opinion to the effect that such a drastic step carried any guarantee of success or even a probable degree of success.

12. I am concerned that the ages and stages of development of the children (notwithstanding the disabilities of R and S); their entrenched positions; the length of time over which their alienation from the Mother has occurred; and their extreme alignment with the Father make it tenuous at best that in real practical terms they would accept and adjust to a change to the Mother’s primary care. Fundamentally I find that the risks of failure of placing the children in the Mother’s primary care are heightened by the likelihood that the Mother will do no better than the Father historically has in promoting the children’s relationships with the other parent. The toxic nature of the relationship between the parents and their views of each other, against the background of all that has occurred with respect to the involvement of Mr B, is extreme. I have no confidence that the Mother genuinely accepts that the children are fearful of Mr B or that she embraces their needs in this respect. I detected in my observations of her giving evidence a determination to have the children overcome these fears and I have no confidence that her future does not include continued association with Mr B, a topic about which her credit was demonstrated to be fundamentally flawed.

13. I am not satisfied that in her circumstances the Mother can provide and sustain stability of circumstances and care for the children particularly given the immediate and high degree of challenge she would face if the children were placed in her primary care with a moratorium upon time and communication with the Father.

14. Option 1 of the Independent Children’s Lawyer’s proposed alternative orders, advanced in light of the expert evidence of Dr G and Ms O including their oral evidence at trial reflects, in my judgment, the reality of this case as expressed by Counsel for the Independent Children’s Lawyer in submissions to the effect that this case devolves into one of selecting between the “least worst” option in terms of the competing proposals having regard to the children’s best interests.

15. I accept the submission on behalf of the Independent Children’s Lawyer that the option of leaving the children in the primary care of an alienating parent is “unpalatable”. That is so for all the reasons already discussed, particularly the potential compromise of the children’s healthy development of them continuing to believe the Mother is such a poor or abusive parent or such an undesirable person as they have been lead to believe.

16. It is also unpalatable that the Father will respond to a decision that the children remain in his primary care as some kind of victory when the reality is that he has been instrumental in securing for the children a profound loss. R and S in particular face enough of life’s challenges without the added imposition that the Father’s conduct has produced in terms of their views of the Mother.

17. It would be a triumph of hope over expectation to conclude there is any realistic prospect that the Father in future has the intellectual and selfless capacities to reflect upon his past conduct and what it means for the children and their destinies if they continue to maintain unfair and unrealistic views of their own mother and do not have an opportunity to relate to her.

Parental Responsibility

1. It is clear for the reasons already outlined and the findings made that the presumption of equal shared parental responsibility under s 61DA of the Act is rebutted as it would not be in the best interests of the children where the parents are in a “highly conflicted” and “toxic” relationship for parental responsibility to be shared.

2. The children have suffered significant emotional harm by being subjected to the acrimony in the parents’ relationship. In this case, equal shared parental responsibility would likely lead to increased conflict between the parties which could not be said to be in the best interests of the children.

3. I find that it would be unworkable for these parents to undertake the consultation contemplated for the making of decisions were there to be an order for equal shared parental responsibility. Whilst the Father will have sole parental responsibility I will include orders for him to provide notice to the Mother of major long-term decisions to be made; for her to have the opportunity to provide her views; and for the Father to consider them before making a decision.

Orders

1. If I am wrong about the Father in that he in fact has come to honestly and genuinely believe in supporting a restoration of the children’s relationship with the Mother then nothing in the orders to be made or these reasons will prevent the Father from pursuing steps along the lines as outlined in his ultimate proposed orders. On my findings any counselling process only has any prospect of success if it is genuinely supported by the Father and equally, on my findings, there is no indication that that will occur. However, if I am wrong about that the Father can put those matters in train.

2. The children ought be permitted to communicate with the Mother if they choose to do so and provision ought be made for them to have access to a telephone number and email address for that purpose. Conversely, the Mother should be permitted to send letters, cards and gifts to the children and email communication and for that reason provision ought be made, in circumstances where the outstanding stalking issues cause the Father to live at an undisclosed address, for those communication details to be provided within that constraint.

3. As already noted I intend to provide for the Mother to have input in long term decisions for the children albeit that the Father is to have sole parental responsibility. I adopt the proposed orders about the Mother being provided with school reports and the like.

4. For these reasons I make the orders set out at the commencement.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 May 2013.

Associate: 

Date:  27 May 2013