Darley & Darley (No 12)
[2024] FedCFamC1F 559
•23 August 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Darley & Darley (No 12) [2024] FedCFamC1F 559
File number(s): BRC 2317 of 2013 Judgment of: HOGAN J Date of judgment: 23 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks that the children remain living with him and communicate with the mother according to their wishes – Where the mother seeks that the children return to her care and have no time or contact with the father – Where the mother seeks that a recovery order be made and that the same lie in the Registry to facilitate the children returning to, and remaining in, her care – Where the children have left the primary care of the mother to live with the father – Where the children have expressed views that they will abscond if they are returned to the mother’s care – Where it is ordered the children live with the father and spend time with the mother in accordance with their wishes – Where the father has sole parental responsibility
FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks that a Vexatious Litigant order made against her in 2019 is dismissed – Where the Application is dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks a Vexatious Litigant order against the father – Where the Application is dismissed
Legislation: Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Darley & Darley [2019] FamCAFC 238
Darley & Darley (No. 4) [2021] FamCAFC 54
DJL v Central Authority (2000) 201 CLR 226; [2002] HCA 17
LAF v AP [2022] QDC 66
Division: First Instance Number of paragraphs: 372 Date of hearing: 28 August 2023; 4, 5 21 & 22 September 2023; 11 December 2023; 11 July 2024 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DARLEY
Applicant
AND: MS DARLEY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 AUGUST 2024
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All previous parenting orders are discharged.
2.The children, X, born 2006, and Y, born 2009, live with the father.
3.The father have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the children.
4.The children shall spend time and communicate with the mother in accordance with their wishes.
5.Each parent keep the other parent informed at all times of a contact telephone number and email address and notify the other as to any change in those details within forty‑eight (48) hours of such change.
6.The father shall advise each child of the mother’s contact telephone number and email address and, in the event that he is notified of any change to the same, shall advise each child of the mother’s changed contact telephone number and email address.
7.The father has leave to provide a copy of this Order to any school or educational institution at which the children attend and to any medical practitioner upon whom the children attend.
8.The father has leave to provide a copy of this Order, the Reasons for Judgment published in support of the same, the Child Impact Report dated 7 September 2022 authored by Mr AH and the Family Report dated 7 August 2023 authored by Ms AF to any therapist upon whom either of the children attend for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services (by whatever name that agency is then known) and/or the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
9.Each of the children be permitted to travel outside of the Commonwealth of Australia and, pursuant to s 11 (1)(b)(i) of the Australia Passports Act 2005 (Cth), be permitted to have an Australian travel document, as that term is defined by s 6 of the Australia Passports Act 2005 (Cth).
AND IT IS FURTHER ORDERED THAT
10.Save as is otherwise ordered herein, no party is permitted to use the documents provided to or obtained by them in the course of this proceeding, including those obtained in answer to any subpoena which has issued, for any purpose other than this proceeding or any appeal in respect of these Orders.
11.All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
12.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley & Darley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
In these proceedings for a parenting order[1] in relation to 17 year old X (who was born in 2006) and 15 year old Y (who was born in 2009), I may, subject to s 61DA[2] and s 65DAB[3] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (the Act), make such parenting order as I think proper.[4]
[1]Family Law Act 1975 (Cth) s 64B; Family Law Amendment Act 2023 (Cth) s12.
[2] Presumption of equal shared parental responsibility.
[3] Parenting plans.
[4] Family Law Act 1975 (Cth) s 65D.
I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects[5] and, in deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[6] The matters to which regard must be had in determining the parenting orders which are in the children’s best interests are set out in s 60CC of the Act. However, the requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[7]
[5] Family Law Act 1975 (Cth) s 60B.
[6] Family Law Act 1975 (Cth) s 60CA and s 65AA.
[7]See, for example, Banks & Banks (2015) FLC 93-637- whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings.
X has left school; she works full-time, has saved for and purchased her first car[8] and plans to study[9]. Y is now in Grade 9. Both currently live with the father. Neither has spent time with the mother nor communicated with her in any significant or meaningful way since each ran away from her care.
[8] Family Report, paragraph 53.
[9] Family Report, paragraph 5.
Very brief summary of the children’s past care arrangements
In the period from the parental separation in September 2012 until toward the end of 2021, both children lived primarily with the mother, who was primarily responsible for their care. They spent time with the father; after an order was made in December 2018 for them to live with the mother and spend time with him on alternate weekends and during school holidays, they generally spent time with him in accordance with the terms of that order.
I accept that both children removed themselves from the mother’s care – X in December 2021 and Y in early November 2022. On the evidence, neither has had any significant communication with the mother since leaving her care; neither has spent time with her. This has occurred despite it being highly likely that each child knows how to contact the mother.
The current competing proposals
The father proposed that the children continue to live with him and that they spend time and communicate with the mother in accordance with their wishes and at their discretion.
The mother proposed that she be accorded sole parental responsibility for the major long-term issues relating to the children, that the children return to live with her and that they have no communication and spend no time with the father. She also proposed, amongst other things, that a recovery order be made and that the same lie in the Registry to facilitate the children returning to, and remaining in, her care. The mother also sought that the father be restrained from taking possession, removing or causing, either directly or indirectly, the removal of the children, and upon any breach he be arrested without warrant. Her case involved the contention, in essence, that the children would return to her care and remain with her if they knew the possible consequences for their father if they ran away from her in the future.
The mother’s evidence included that:
(a)children of any age are not permitted to “self-place” in the Family Court;[10] and
(b)the way to solve what she described as the “Run-Away issue” was for the Court to put a permanent Recovery Order in place with an Arrest Warrant attached so that the father could not take possession of the children again;[11] and
(c)it was in the children’s best interests for there to be “intensive therapy” to reunify their relationships with her and to address the children’s alienation from her, for which she asserted the father was responsible.[12]
[10]Affidavit of the mother filed 15 March 2023, paragraph 31; affidavit of the mother filed 23 August 2023, page 159/2642 at paragraph 667.
[11] Affidavit of the mother filed 23 August 2023, page 164/2642 at paragraph 720.
[12] Affidavit of the mother filed 23 August 2023, page 28/2642 at paragraph 187.
The mother also sought to be permitted to move any distance she chose from the father without providing a physical address or any medical or schooling details to him. She said that “given [Mr Darley’s] conduct”, she would now need to relocate to ensure that he refrained from stalking, monitoring and tracking her and the children.[13] She said she intended to move to be closer to family and friends and that her plan was that Y would be enrolled in a high‑performance high school and X could continue her studies with another institution.[14]
[13] Affidavit of the mother filed 23 August 2023, page 85/2642 at paragraph 449.
[14] Affidavit of the mother filed 23 August 2023, page 93/2642 at paragraph 490.
The mother’s evidence included that the effects of the children returning to her care could only be positive. She also said that their return had to include reunification-style therapy for them and programs that engendered respect, discipline, morals and ethics; she proposed that they would be totally removed from social media until they could demonstrate responsibility; if they returned to live with her, she intended to focus on the children to undo the damage caused by the father’s “criminal and coercively controlling behaviours”.[15]
[15] Affidavit of the mother filed 23 August 2023, page 93/2642 at paragraphs 489 & 491-492.
The reports and the circumstances that pertained when they were prepared
Whilst Y continued to spend time with the father after X moved to live with him at the end of 2021, this stopped when, in February/March 2022, the mother advised the father that Y would no longer spend time or communicate with him. A further consequence of this was that the children ceased spending any time together; it also meant that neither child was spending time or communicating with the parent with whom that child was not living.
It was this situation that prompted the order, made on 5 August 2022, for the preparation of a report – ultimately the 7 September 2022 Child Impact Report authored by Mr AH – in the hope that the same would assist in the determination of the parenting orders which were in the children’s best interests and proper to make in the circumstances that had, by then, arisen.
Consequently, when Mr AH interviewed the parents (separately by video call on 31 August 2022) and the children (in person on 1 September 2022):
(a)X was living with the father, had not seen or communicated with her mother for about eight months and had not spent time with Y for about five months; and
(b)Y was living with the mother and had not seen or communicated with her father or X for about five months.
As noted earlier, Y ran away from the mother’s home in early November 2022 (about two months after she spoke with Mr AH).
When the parents and children were interviewed by Ms AF (then a Court Child Expert) on 26 June 2023 as part of the process by which the 7 August 2023 Family Report was prepared, both children were living with the father; X had not communicated or spent time with the mother for about 18 months and Y had not communicated or spent time with her for about seven months.
The parents
The mother
The difficulty in accepting the mother’s evidence without reference to the source documents relied on by her for her assertions about the contents of the same is, I think, aptly demonstrated by the following paragraphs taken from her trial affidavit:
350. [Dr J] stated in his report “hesitant to label him as having a personality disorder per se” and “Holds a high degree of emotional valance towards the Mother”. [my underlining]
351. It is clear that [Dr J] was noting the Father is likely to have a Personality Disorder and the Mother is a risk of his sharp negative feelings toward her affecting the Children and their relationship with her. [my underlining]
The above demonstrates, in my view, that the mother is highly likely to take, from whatever source material available to her, the interpretation of the same which accords with her view of whatever is being discussed or considered; the differences between what has actually been said and, most importantly, the context in which it has been expressed and the mother’s recounting of the same are highly likely to be subtle and very hard to appreciate unless close regard is had to the actual source documents themselves – as opposed to the mother’s interpretation of them or her recitation of them or her use of extracts of the same.
Whilst I am prepared to proceed generally on the basis that the mother regards her evidence to be nothing but a completely factual and accurate recitation of events, reference to the source material upon which she has based some of the assertions she has made suggests that this may not always be the case.
The following provides further examples of why it has been, and is, so important to approach the mother’s evidence with significant caution.
Mr ZZ’s evidence
Mr ZZ, who was a witness in the mother’s case, is a government official who listened to an audio recording and certified that a transcript of the same, which had been provided to him by the mother, accurately recounted what was on the recording. The audio recording was one obtained by the mother from Auscript; it was a recording of aspects of an appearance in the Magistrates Court at Brisbane in mid- 2020. The transcript provided to Mr ZZ by the mother was one that she had created or caused to be created – it was not a transcript provided by Auscript.
Despite this, the mother’s evidence at paragraph 197 of her affidavit[16] is as follows:
……The audio transcript was provided by Auscript and it was typed, and certified by a [government official] to being and true and correct copy of the proceedings. They are not “assertions”, the transcript is an OFFICIAL document.
[16] Filed 23 August 2023.
This is not correct: the “official” document is the Auscript audio recording and not the transcript subsequently brought into existence by the mother. However, anyone reading this aspect of the mother’s evidence without an appreciation of how the transcript certified by Mr ZZ as being accurate came into existence may well be misled into thinking that the transcript was the “official” record of the proceedings when it clearly is not.
The assertions about what was said by a Senior Judicial Registrar
The mother said that, on 17 November 2022, a Senior Judicial Registrar said that it is “normal teenage experimentation” for X to be meeting up with complete strangers for sex after being groomed on the internet.[17]
[17] Affidavit of the mother filed 23 August 2023, page 38/2642 at paragraph 264.
However, what was said within the Reasons of the Senior Judicial Registrar on that day was that:
The mother for her part is particularly focused in this case on certain behaviour of [X]. Some of that behaviour might be regarded as normal teenage behaviour, I do not know, but there is a focus on that behaviour and a link of that behaviour towards [Y]”.[18]
[18] Affidavit of the father filed 13 February 2023, page 33, paragraph 21.
Further, nothing in the transcript of that appearance, prepared by the mother[19], supports her evidence that the Senior Judicial Registrar spoke as she said he did.
[19] Affidavit of the mother filed 23 August 2023, page 1965/2642 – 1975/2642.
I reject entirely that “[Senior Judicial Registrar] said that it is “normal teenage experimentation” for [X] to be meeting up with complete strangers for sex after being groomed on the internet.”
One of the father’s assertions to Mr AH
When interviewed in August 2022, the father told Mr AH that “the Child Care environment seems to have made her [X] more relaxed and not as angry”.[20] This was a reference to X’s relatively recent work-experience placement.
[20] Child Impact Report dated 7 September 2022, paragraph 10.
In responding to his contention and in seeking to prove that the father had been “once again lying to people for his own benefit”,[21] the mother referred to X’s school records (which showed that she had started school-based work experience in June 2022) and the notes of X’s medical consultation in August 2022, which included the words “angry, moody”. Based on this, the mother’s point seemed to be that X was still angry in August 2022 (when the father told Mr AH what is noted above) and, consequently, the father had lied to Mr AH for his own benefit.
[21] Affidavit of the mother filed 23 August 2023, page 105/2642 at paragraph 540(j).
Despite the father’s comments to Mr AH clearly being only that, from his perspective, working seemed to have made X “more relaxed” and “not as angry”, the mother seems to have interpreted them as conveying an absolute position, which she then relied on as the basis for asserting that the father had lied to Mr AH when he told him that X was “more relaxed and not as angry”.
Perhaps, if the father had told Mr AH that, after she started at work, X was never angry, there may have been some validity in the mother’s point. However, given that he did not speak in such absolutes, there is not.
The real relevance of this example is, I consider, two-fold: first, it provides a good example of the way in which the mother’s overwhelming view of the father as a liar (amongst other negatives) influences her interpretation of data available to her and, secondly, it provides another example of why it is so necessary to assess her evidence very, very carefully and to pay special regard to the source documents (in their original form and totality) from which she has obtained whatever information she has sought to convey in her affidavits.
The criticisms made against Ms AF
The mother’s criticisms of Ms AF are far-ranging; I do not intend to canvass every one of them here. However, aspects of her evidence given in criticism of Ms AF provides a further example of the difficulties inherent in taking the mother’s evidence – or at least aspects of it – at face value without carefully checking back to the source documents. It also provides a further example of her penchant for interpreting the content of documents to say what she appears to think they should say, as opposed to what they actually say; it provides a further basis for the decision to assess her evidence with significant caution.
The mother’s evidence relevantly included that:
I submit the reason [Ms AF] did not contact [Dr VV] and [Dr JJ] as ordered is because she did not want people with superior qualifications than her detracting from her chosen narrative and prejudicial outcome.[22]
…….
The Report Writer was given Orders that allowed her to contact any Practitioner with further knowledge of the matter to confirm any details.[23]
…….
I also seek [Ms AF] be removed from her employment with the Family Court immediately, as clearly, she is VERY dangerous to Children and victims of Violence. She has blatantly ignored the Court Orders of [the Registrar].[24]
[22]Affidavit of the mother filed 23 August 2023, page 130/2642 at paragraph 613; page 168/2642 at paragraph 768.
[23] Affidavit of the mother filed 23 August 2023, page 141/2642 at paragraph 626.
[24] Affidavit of the mother filed 23 August 2023, paragraph page 141/2642 at paragraph 629.
It is obvious that such assertions constitute serious allegations of alleged malpractice by Ms AF; they clearly suggest that, in furtherance of what the mother said was “her chosen narrative” (that is, bias), Ms AF deliberately failed to comply with court orders made to assist her to discharge her function.
However, this aspect of the mother’s sworn evidence must be assessed having regard to the following.
On 25 May 2023, a Judicial Registrar ordered the preparation of a Family Report; she also made other orders to facilitate this, including that the Family Consultant nominated by the Court Children’s Service to prepare the report:
(a)shall be permitted to speak to any health or allied health practitioner treating the children in the preparation of the Family Report;[25] and
(b)had leave to inspect any material filed by the parties and any documents produced pursuant to subpoena issued in the proceedings once leave has been granted to any party to inspect those documents.[26]
[25] Order made 25 May 2023, Clause 17.
[26] Order made 25 May 2023, Clause 18.
The May 2023 order did not require Ms AF to contact the children’s treating health or allied health practitioners; rather, it permitted her to do so. No order was made to compel Ms AF to contact either Dr VV or Dr JJ or any other medical practitioner or allied health practitioner. Given this, any failure by Ms AF to speak to any health or allied health practitioner treating the children would not, in my view, constitute her “blatantly ignoring” the May 2023 orders made by the Judicial Registrar.
Given the terms of the May 2023 order, the mother’s evidence that the author of the Family Report was ordered to contact Dr VV and Dr JJ is false. The mother’s evidence that the author of the Family Report “was given Orders that allowed her to contact any Practitioner with further knowledge of the matter to confirm any details” is also false – the May 2023 order only permitted Ms AF to speak to “any health or allied health practitioner treating the children”; it did not permit her to make inquiries in the manner deposed to by the mother.
Further, there is nothing in the evidence to suggest that, at the time Ms AF completed her August 2023 report, either Dr VV or Dr JJ were “treating” the children or either of them. In fact, in her 26 October 2021 correspondence to Dr AJ at AK Medical Centre about X’s consultation with her in October 2021, Dr VV advised that “I have not arranged to see [X] again through this Child Protection Clinic and have emphasised the benefit of you continuing to see both of them to support them through this journey of [X] completing her adolescence”.[27]
[27]Affidavit of the mother filed 23 August 2023, pages 648 & 649/26423 (Report by Dr VV electronically signed 26 October 2021).
The mother also asserted that Ms AF deliberately did not seek input from X's paediatrician nor the forensic Child Safety paediatrician (Dr VV) despite there being an order in the May 2023 orders that she could.[28] However, if Dr JJ and Dr VV were not treating the children at the time Ms AF conducted her interviews (26 June 2023) and prepared her August 2023 report, the order did not permit her to contact either of them.
[28] Affidavit of the mother filed 23 August 2023, page 175/2642 at paragraph 803.
Another of the mother’s criticisms of Ms AF was that she found it telling that Ms AF “ignored the clear evidence of [X] trying to commit suicide in the care of her Father in the September/October school holidays”;[29] she also asserted that, because both Mr AH and Ms AF “failed to read the medical records”, they both ignored that X “tried to commit suicide in the care of the father by taking his sleeping tablets”.[30] However, there is nothing in either of their reports or Mr AH’s notes to suggest that the mother ever specifically raised this assertion with either of them.
[29] Affidavit of the mother filed 23 August 2023, page 175/2642 at paragraph 805.
[30] Affidavit of the mother filed 23 August 2023, page 176/2642 at paragraph 814.
Some other aspects of the mother’s evidence
The mother’s evidence included the assertion that “[Y] has lived her whole life of 13 years in the care of the Mother until the Father took her on 3 November 2022”.[31] Absent knowledge of the final parenting orders made in 2018 (which provided for Y to spend time with the father on alternate weekends and during school holidays) and the subsequent implementation of the same, there is a very real risk that such assertion may convey a completely different scenario to that which actually happened.
[31] Affidavit of the mother filed 23 August 2023, page 185/2642 at paragraph 36.
The mother said that, on 11 November 2022, another child’s mother advised her that X and the father were communicating via social media; she said, “this is not permitted by the Family Court Orders”.[32] However, the December 2018 parenting orders refer only to communication between the children and their parents by telephone, Skype or FaceTime;[33] they enable the children to call the parent with whom they are not then spending time or living with at all reasonable times[34] and they contain no prohibition or restriction on either parent communicating with either child via social media when the child is in the care of the other parent.
[32]Affidavit of the mother filed 23 August 2023, page 232/2642 at paragraph 22; page 37/2642 at paragraph 255.
[33]Order 12 December 2018, Clauses 18 and 22.
[34] Order 12 December 2018, Clause 23.
The mother’s evidence included that a comment made by the father during an appearance before a Magistrate in the Magistrates Court in mid- 2020 proved his dishonesty: she said the father’s assertion that “[X] can’t get onto the internet without his thumbprint” was proven untrue by her subsequent investigations into the times she said X had accessed her Instagram account.[35]
[35]Affidavit of the mother filed 23 August 2023, page 248/2642 at paragraph ii; page 1771/2642 at paragraph 51.
However, reference to the relevant aspect of the mother’s transcript of this appearance shows that the following occurred during the Court’s interaction with the father (who then appeared for himself, as the mother did):
[MR DARLEY]: ……. Because I found out - a friend of mine did message me and say, your daughter has an Instagram account. This is when she was on school holidays with me. She said…..
BENCH: Right
[MR DARLEY]: ….. I don't like what's going on. I addressed it and told her to delete it. She wasn't allowed to have it. That was the last conversation I had about it. And she hasn't had my phone since. You need a thumbprint to make my phone work.
As the above makes clear, what the father told the Magistrate that day was that a thumbprint was needed to access his phone – not that X could not access the internet without his thumbprint. Given this, the mother’s evidence that the father had asserted to the Court that X could not access the internet without his thumbprint and her evidence that “his assertion that she could not access the Internet without his thumbprint was proven to be untrue” are themselves untrue.
The mother’s evidence also included the assertion that the father lied to the Principal of AB School that he had orders that Y live with him – she said that, whilst he provided the school with the orders made by the Senior Judicial Registrar on 17 November 2022 and the Reasons delivered in support of the same, he did not provide the school with the Orders made by Smith J on 15 December 2020 “where it notes at Part E that the Father is in contravention of Court Orders”.[36] In fact, the Order made by Smith J on 15 December 2022 does not note that the father is in contravention of court orders – rather, Note E says that “the parties today confirmed that the child is still living with the father contrary to the current orders”. This subtle difference in recounting provides yet another example of the issues associated with assessing the mother’s evidence without having regard to the source document/s on which she purports to rely for the assertions she makes.
[36] Affidavit of the mother filed 23 August 2023, page 71/2642 at paragraph 383.
Given the examples adverted to above, I consider the mother to have demonstrated an inability or an unwillingness to place conversations and/or information in its true context; such evidence also persuades that, absent appropriate corroborative documentation, it is simply unsafe to rely upon the mother’s recitation of past events, including her recounting of asserted comments made by the children about the father’s asserted conduct.
The mother’s practice of recording conversations, including those with Y and between the father and the children
The mother’s evidence included that the police had advised her to record the father to protect her legal interests.[37] She said that she had recorded a conversation with him at changeover on 14 November 2021.[38]
[37] Affidavit of the mother filed 23 August 2023, page 111/2642 at paragraph 559.
[38] Affidavit of the mother filed 23 August 2023, page 112 & 113/2642 at paragraphs 562 & 564.
Even if the mother was following police advice when she recorded her conversations with the father, it is clear that she has not restricted her recoding to only such interactions; instead, it is abundantly clear that she has adopted a practice of routinely recording those with whom she interacts, irrespective of the forum in which such interactions occur (including in various courts); it is also abundantly clear that she does not inform those whom she records that she is recording them.
It is, I think, clearly established that the children know that the mother routinely records conversations. So much is evident from X’s comments to Ms AF when interviewed in June 2023. Further, during the conversation between the mother and Y on 9 August 2023, Y told her mother that she hopes she has fun giving this to Ms AM and Ms AL because “I know you’re fucking recording it”; at the end of call she said “Hi [Ms AM]. Hi [Ms AL]” before hanging up.[39]
[39] Affidavit of the mother filed 23 August 2023, paragraph 463.
The mother’s interpretation of Y letting her know that she knew that she (the mother) would be recording their conversation and that she (the mother) would make the recording available to “[Ms AL]” and “[Ms AM]”, was that all that Y was doing was acknowledging them; she said both children had great friendships with Ms AL and Ms AM, who are the mother’s best friends and who live in New South Wales. [40]
[40] Affidavit of the mother filed 23 August 2023, page 84/2642 at paragraph 439.
Given:
(a)the mother’s clearly established penchant for recording the people with whom she is conversing – a penchant she extended to the only direct communication she had had with Y since the child left her care in early November 2022; and
(b)X’s comments to Ms AF about the mother recording people and, in essence, celebrating if she thought she obtained something that was useful to her; and
(c)Y’s comment to Ms AF that the mother had put a recording device on her when she was interviewed by Mr AH,
I am inclined to think that, in speaking as she did, Y was letting her mother know in August 2023 that she fully appreciated that she would have been recording their conversation and that she fully appreciated that the mother would provide a copy of the recording and/or discuss the contents of the same with her friends.
The mother’s evidence also included that she had recorded some of the father’s telephone calls with the children. She said this was “because he was continually trying to track where we are and manipulating them [the children] by getting them to pass messages” to her and “involving them in court”.[41] The transcript prepared by the mother of the conversations between the father and predominantly X on 30 June 2021[42] seems to me to show that the father was trying to find out whether he was to collect the girls from the airport or from Suburb R (as provided for in the December 2018 order); it also revealed that, on a number of occasions during the call, X muted the father – actions which certainly suggest that it is highly likely that X thought the mother would have been recording the call.
[41] Affidavit of the mother filed 23 August 2023, page 50/2642 at paragraph 322.
[42] Affidavit of the mother filed 23 August 2023, pages 52-60/2642.
It should not be forgotten that the mother’s decisions to record the girls’ telephone communications with the father were made despite the terms of the December 2018 parenting order requiring both parents to ensure that the children had privacy during telephone communications with the other parent.[43]
[43] Order 12 December 2018, Clause 18.
The mother’s evidence also made it clear that, on some occasions at least, she extended her proclivity to record conversations to her conversations with the children: for example, on 14 February 2021, she recorded herself asking X about the father letting them read her email and asking her why he had done that – to which X said, “Because he was like, look at what your mother sends me”. When, during this conversation, the mother asked the girls if they thought it was appropriate for the father to show them such correspondence, they both said they did; X also said, “Because I’ve been living with this nearly my whole life”[44] – a comment which is both completely accurate and overwhelmingly tragic.
[44] Affidavit of the mother filed 23 August 2023, page 52/2642.
The father
The father’s approach in these proceedings was to attempt to say as little as possible; whilst he frequently told the Court that he would leave it up to the Court to decide about a particular issue, he also raised occasional objection to a course proposed by the mother.
The mother repeatedly and insistently urged that the Court make findings that the father had committed perjury and had deliberately sought to mislead it (and the numerous other courts before which he had appeared – usually as a result of her repeated applications for domestic violence orders) and that, consequently, his evidence should be rejected.
The mother’s evidence included that she also relied on any statements the father had made from the Bar table “as being his sworn testimony under Oath” and that, by virtue of these, he should be held in contempt for any untrue or inconsistent statements made during proceedings (including in the various Magistrates Courts) in the lead up to and within the trial.[45] However, she may choose to regard the father’s comments from the Bar table, they are not comments made under oath; they are not sworn testimony.
[45] Affidavit of the mother filed 23 August 2023, page 10/2642 at paragraph 65.
I have already expressed my conclusions about the father’s comments to Mr AH about his view of the impact on X of working; I do not intend to reject the father’s evidence in its entirety.
However, a number of matters have persuaded me that I should assess the father’s evidence very carefully – for example:
(a)when cross-examined by the mother during the trial which culminated in the 2018 final parenting orders, the father initially denied having been charged for breaching a protection order – but, when asked again, he said that he had initially been charged and sought to explain his initial answer on the basis that he had not been charged and prosecuted;[46] and
(b)when interviewed by Mr AH, the father told him that, insofar as family violence was concerned, he had been accused and interviewed at length and had not been charged or found guilty of anything[47] – which contradicted his earlier acceptance that, whilst he had not been prosecuted for allegedly breaching a protection order, he had initially been charged with doing so.
[46] Affidavit of the mother filed 23 August 2023, page 30/2642 at paragraph 201.
[47]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642; pages 1723-1737/2642: Mr AH’s notes.
Further, the mother’s evidence included that, when cross-examined during the trial heard by Judge Howard[48] in 2014, the father made certain admissions in relation to expenses claimed for tax purposes. Reference to the relevant transcript established that Judge Howard informed the father he would issue a certificate pursuant to s 128 of the Evidence Act 1995 (Cth). A search of the Court file indicated that no certificate was in fact issued by Judge Howard; this may be explained by the fact that the parties subsequently entered into consent orders. That the father answered as he did does not persuade me that he has otherwise deliberately lied in order to “win” (to use the mother’s terminology) or that he has consistently deliberately misled the Court; it does, though, provide another reason for considering his evidence carefully.
[48] As his Honour then was.
I have been left with the very real concern that an aspect of the mother’s repeated applications for domestic violence orders in various Magistrates Courts has been to involve the father in litigation for the purpose of repeatedly cross-examining him about the same historical events with a view to obtaining inconsistencies – which she then seeks to use to support her submissions that he has perjured himself and/or that he has deliberately misled the various courts before which he has appeared in response to her various applications.
SOME OF THE RELEVANT CONSIDERATIONS
Given the children’s ages, it seems to me to be appropriate to focus initially on their reported views and attitudes. In taking this approach, the Court should not be seen as failing to appreciate the existence of the primary considerations prescribed by s 60CC(2) of the Act – rather, these reasons confront the reality of these children’s current situation.
The children: their views, the nature of their relationship with each of their parents and the likely effect on them of any changes in their circumstances, including if orders are made in the terms sought by the parents[49]
[49] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d), (g) and (m).
Consideration of the evidence about the children’s previous presentations and attendance at school will occur later in these Reasons. At this point, it seems to me to be more pertinent to focus upon those views they have more recently expressed to persons other than their parents.
X
X was 16 years of age when she spoke to Mr AH in September 2022. I accept she told him, amongst other things, that:
(a)living with the father was “good”; she felt safe in his care, he did not want to know what happened in the mother’s care, was more “chilled” and did not “worry as much” as the mother;[50] and
(b)the area she had lived in with the mother was “shit” and the way the mother treated them was “like shit” and she did not feel safe there – the mother would always get in moods, be “angry as” and take it out on everyone when she was angry by hitting her, throwing things, screaming and locking them (the children) out of the house;[51] and
(c)she was not going to talk to the mother (“no not happening”) and did not want anything to do with her – but she would like to see Y as she had not seen her in ages;[52] and
(d)she had experienced “years and years” of abuse in the mother’s care – her mother “whinged to her friends about us”, prohibited them from going out and “yelled at us” if they did not arrive home from school on time;[53] and
(e)her mother spoke about her father “all the time”, called him an “arsehole” and said it was because of him she had to go to Court: she said her mother had made “false allegations” about the father and, when asked how she knew about any of the allegations, she said that she had been interviewed by police in relation to them;[54] and
(f)she had “run away” from the mother three times and, on the third occasion, she contacted her father, who picked her up and took her to the police;[55] and
(g)when she lived with the mother, she and Y used to talk about running away;[56] and
(h)if an order was made for her to live with the mother, she would “run away” and she indicated that, next time, she would take “my sister”.[57]
[50] Child Impact Report, paragraphs 21 and 22.
[51]Child Impact Report, paragraph 23; Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
[52]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
[53]Child Impact Report, paragraph 27; Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
[54] Child Impact Report, paragraph 24.
[55] Child Impact Report, paragraph 25.
[56]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
[57] Child Impact Report, paragraph 26.
I accept that Mr AH assessed the mother’s proposal for X to live with her, have no contact with the father, be required to re-engage with schooling and live in an environment in which the mother would restrict her access to the internet (as she explained she had done by not allowing the children access to social media and changing the internet password each day)[58] as being at odds with X’s wishes.[59] It clearly is.
[58] Child Impact Report, paragraph 15.
[59] Child Impact Report, paragraph 49.
I also accept that Mr AH assessed X as impressing as “fiercely independent”; he noted she had absconded from the mother’s care previously and had indicated an intention to run away again if an order was made for her to return to live with her mother.[60] He said he did not have confidence that X would comply with orders which were not in accordance with her wishes. He also opined that, if X could be oppositional, “using power to force her to live with the mother could result in her displaying challenging behaviour, sabotaging arrangements, rejecting a relationship with the mother or self-placing elsewhere”.[61] I think there is much force in Mr AH’s assertions.
[60] Child Impact Report, paragraph 50.
[61] Child Impact Report, paragraph 51.
I also accept Mr AH’s assertion that “the risks to [X’s] safety if she is precluded from living with the father and self-places are completely unknown”;[62] I accept that the requirement to protect X from harm needs to be balanced with the need to promote her independence; I accept his assessment that X could view attempts to control her interactions as intrusive rather than supportive and that, if her parents took an approach that was judgemental (around, for example, the use of social media and curiosity about relationships and sexual activity) or overly restrictive, she would be less likely to use them as a supportive resource.[63] Whilst others may disagree, it seems to me to be highly likely that X has found her father to be less judgmental than her mother and that, consequently, she has been more likely to use him as a “supportive resource” than attempting to obtain such support from her mother.
[62] Child Impact Report, paragraph 51.
[63] Child Impact Report, paragraph 53.
X was 16 years of age when she spoke to Ms AF in-person in June 2023. Whilst the mother challenged[64] Ms AF’s assessment that X presented her views with clarity and that she was able to explore and rationalise her preferences,[65] I accept Ms AF’s account that this was the case; I also accept Ms AF’s assessment that X presented well for the interview and was open and engaging in her interactions with her.
[64]Relying on details in the medical notes of X’s consultation on 18 July 2022 which she set out in her affidavit.
[65] Family Report, paragraph 48.
I accept that X told Ms AF that:
(a)she had been diagnosed with ASD and that she said there was little impact on her current functioning and that “it is something that is there, yes, but it’s not like my mother says, I am not disabled”;[66] and
[66] Family Report, paragraph 48.
(b)she wanted to live with her father and not see or communicate with her mother (“I don’t want to hate her, because she doesn’t deserve my time”) and that, in essence, the one thing she wanted from her mother was for her to “leave us alone”;[67] and
[67] Family Report, paragraph 49.
(c)her experience of living with the mother was “terrible, no one gets it; she is a really bad person” – she said she recalled being verbally and physically abused by the mother, including being referred to as “a retard”, “bitch and slut” and being struck and “pushed and locked out of the house”;[68] and
[68] Family Report, paragraph 50.
(d)she was not “scared” of the mother (because “she’s not that big”) but felt “desperate to get away” – her account was that her mother ignored her and they had few, if any, positive interactions: she said “she clearly didn’t want me, didn’t even like me, all she cared about was that Dad didn’t win”;[69] and
[69] Family Report, paragraph 50.
(e)her mother was “totally obsessed with court” and spent her time writing “court stuff and helping internet people with their court”: she recalled her mother “recording everything, and then getting really excited when she thinks she got someone”;[70] and
[70] Family Report, paragraph 50.
(f)she had run away from her mother on three occasions:
(i)on the first two occasions, she contacted her father immediately and was surprised that he “took me back to mums”: in the lead up to her absconding the first time, she had predicted he would be “so happy that I came to live with him” and, when he returned her, she felt “pretty let down, I didn’t really trust him for a while after that”; and
(ii)on the third occasion, she did not contact her father – rather, she met “some people” in the city (where she was sleeping) who “took me in”: she lived in a house with other “runaways” and did “smoke a lot of pot” and also frequently shoplifted as a means of gaining food and other necessities; when the residents of the house were evicted, she contacted the father and made him “promise” to retain care of her before she told him where she was;[71] and
(g)during the first few weeks she lived with the father, he “did not leave my side” – whilst it was not discussed between them (and “he just said you’re with me now”), she thought he had been concerned about her drug use; after she expressed an interest in pursuing a trade, “he got me an interview”;[72] and
(h)“I never thought I would say this but I love my job” – she also said that, until the day of the interview, she had never taken “a day off” and that she felt a sense of accomplishment and confidence about how she had managed her employment: she said she had saved for, and purchased her first car;[73] and
(i)in terms of the relationship between her parents, she stated “they hate each other” (and she clearly believed the father was justified in his view of the mother);[74] and
(j)she had been extremely embarrassed to come to the interview due to the content of her mother’s material (which included print-outs of explicit photographs taken from X’s social media): she asked if Ms AF had “seen all the court stuff”, “you know, the private stuff” and denied that her father had showed her the material – she said “I knew she put it in because the police talked to me”; she also told Ms AF that she had had a consensual sexual relationship with a peer and, in the context of this, had shared some explicit pictures – she said “my mother broke into my accounts and showing everyone” ; she described feeling exploited and dehumanised by this action;[75] and
(k)“I love it with dad” – she described a sense of controlled freedom with her father in that, whilst there were boundaries and expectations, these reflected her behaviour;[76] and
(l)she respected her father: “I never respected mum, I wanted to let her down”; and
(m)if she was forced to live with her mother, she would return of her own volition to her father and, if there would be repercussions for him, she would “just run away, I would still talk to my dad and see him, just make sure my mother could never find me”.[77]
[71] Family Report, paragraph 51.
[72] Family Report, paragraph 52.
[73] Family Report, paragraph 53.
[74] Family Report, paragraph 54.
[75] Family Report, paragraph 55.
[76] Family Report, paragraph 56.
[77] Family Report, paragraph 57.
I accept that Ms AF assessed X as a bright and charismatic 16 year old child, who appeared to have found a vocation that made her happy and a home that felt secure to her. I accept that, in some way at least, the father’s approach to her care is likely to have contributed to X’s feelings of security in his home. I also accept Ms AF’s assessment that the information provided by the mother about X’s attitudes and behaviours contradicted her assessment of her current functioning and her observations of X when interviewed.
Despite the mother’s contrary submission,[78] I accept Ms AF’s evidence that, if not a primary determining factor, X’s views and wishes should be accorded considerable weight.[79]
[78] Discussed elsewhere in these Reasons.
[79] Family Report, paragraph 70.
Y
Y was 13 years of age when she spoke to Mr AH in September 2022. I accept his account that she presented as anxious and that she provided him with concise responses to the questions he asked of her.
I accept Y told Mr AH that:
(a)living with the mother was “alright” and she felt safe with her – although she was not willing to discuss those aspects of her mother’s care that she did not like[80] and she was not going to say anything other than she was safe;[81] and
(b)she had enjoyed watching movies on the couch with the father, going out for dessert, visiting cousins and that she felt safe in his care;[82] and
(c)her mother believed she should not live with the father and would tell her that she should not live with him;[83] and
(d)the father “never talks about mum” (and she did not know what he thought about the parenting arrangements)[84] and “lets us call our mum if we wanted to” whereas, in comparison, “mum does not let us call dad if we want to”;[85] and
(e)she wanted to spend time with the father and X and missed them after the mother ceased her phone calls and contact with them.[86]
[80] Child Impact Report, paragraph 31.
[81]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
[82] Child Impact Report, paragraph 32.
[83]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
[84]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
[85] Child Impact Report, paragraph 34.
[86] Exhibit 1: Child Impact Report, paragraph 35.
I accept Mr AH’s recounting that, whilst Y had indicated to him that she had heard the mother saying things about the father when she was on the phone to her friends – and that this made her feel sad – she also told him that she was “not going to say” what she felt sad about.[87]
[87]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.
I do not accept, as the mother contended, that Mr AH “exacerbated and fabricated” his reporting of Y’s comments to him and I reject the mother’s evidence that he did.[88] I accept that Mr AH reported honestly and accurately that which Y had recounted to him during her interview.
[88] Affidavit of the mother filed 23 August 2023, page 108/2642 at paragraph 553.
As was the case in relation to aspects of X’s accounts to Mr AH, the mother’s response to his report of Y’s interview included the assertion, in essence, that Y had lied to him. The mother asserted, in particular, that Y had lied when she reported that the father never spoke about her (the mother) and when she said he allowed the children to call her whereas she did not allow them to call him; the mother’s evidence included that these comments were categorically untrue, were nothing more than a repetition of the father’s narrative, that he had said exactly the same things repeatedly in domestic violence proceedings and that he had passed messages to her via the children during their telephone conversations with him.
I am not remotely persuaded that Y’s comments are nothing more than a recitation of the father’s narrative; I think it much more likely than not that they reflect her own lived experience of being parented by the mother. Given that the mother’s antipathy to the father is so overwhelmingly pervasive, I struggle to be persuaded that she, at any time, facilitated the children having any more interaction with the father than was required by the operative parenting orders. I also think it highly likely that the children were well aware of their mother’s views about their father – given this, it seems highly likely that they would not have asked their mother to call him at times other than those prescribed by order.
I accept Mr AH’s assertion that the mother’s proposal for Y to have no contact with the father was not in accordance with the child’s wishes; I also accept his assessment that, at that time, Y missed her father and X.
I note that the mother’s contentions included emphasising that:
(a)despite the father telling Mr AH in early September 2022 that he thought Y was quite happy staying with her mother and that he thought the child had a good relationship with her; and
(b)despite Y telling Mr AH that she felt safe and failing to raise any concern about her mother’s care of her,
the father had alleged that, some two months later, Y had run away from her care.
Whilst others may disagree, I consider that Y’s account to Ms AF that her mother had placed a recording device of some kind on her when she was interviewed by Mr AH provides a significant explanation for the way she interacted with him during the interview.
Further, insofar as the mother’s contentions that the father was responsible for Y leaving her care – either because, as was asserted at some stage, he had allegedly abducted her or, as was later alleged, he had influenced her during the significant contact he had had with her while she was still living with her mother – I consider that it is highly unlikely that, if Y’s relationship with the mother was as strong and positive as the mother suggested, Y would have run away from her at all or, having run away, would have remained in her father’s care as she has and failed to contact her mother.
Whilst the mother was completely incapable of recognising this, it seems to me to be much more likely than not that Y’s lived experiences of her approach to parenting the children contributed in some way to Y deciding to remove herself from her mother’s home.
Y was 13 years of age when she spoke to Ms AF in person in June 2023. I accept that, during this interview, Y told Ms AF that:
(a)she felt proud she was able to voice her opinions and was excited to learn new skills and explore her increasing freedoms; and
(b)she struggled with feelings of anger and “hate”, which she wanted to gain better control over;[89] and
[89] Family Report, paragraph 6.
(c)the mother “put a recording device on me for the last one” – by which she was referring to her interview with Mr AH; and
(d)she wanted to speak to her because “this time I can say what I really think” – she said she “detests” her mother because she is “evil” and she did not want to spend any time with her; and
(e)her father had not told her to say anything (“... dad did not tell me to say anything”);[90] and
[90] Family Report, paragraph 58.
(f)she loved living with her father and wished she had “run away years ago” – she also said, about her father: “we are enough for him, he is happy”; and
(g)the father’s care was less restrictive than the care provided by the mother – she was able to socialise with friends, had access to her own “money” and had “some privacy”;[91] and
(h)she liked living with her father and sister (“it’s really good, just feels like a family”) – whilst the mother had always said “[X] hurts me and stuff”, this was untrue and she had a close relationship with her sister “now that we are allowed to be near each other”; and
(i)“mum hated [X]” and, when X left the family home, “she turned on me” (which behaviours amounted, as I understood Ms AF’s account, to be the mother engaging in splitting behaviours);[92] and
(j)she had seen her mother assault and “abusing” X, refer to her in derogatory terms (such as “fucking bitch” and “stupid slut”) and that she had locked her out of the house, “pushed her around” and “slapped her”; she also said that, after X left the family home, she had experienced similar assaults to a lesser degree;[93] and
(k)she had attempted to self-harm whilst in her mother’s care by intentionally ingesting an item – she said that, when she was hospitalised “I pretended it was an accident, mum didn’t even notice me”;[94] and
(l)she often felt suicidal in her mother’s care and would “think of different ways to do it”;[95] and
(m)her mother hated her father (“she would do anything to beat him”) and that, for as long as she could remember, her mother had “interrogated her” after she spent time with him – she said “we would get home and she would make us take our clothes off so she could take photos”;[96] and
(n)she had always enjoyed seeing her father, although this was not always what she had told her mother because “I didn’t want her to treat me like [X]” – she said she struggled with feelings of guilt because she “did not stick up for [X] and Dad”;[97] and
(o)“I am not doing as well as I could” in her current schooling, that she felt less pressure to achieve academically and was exploring different areas of interest;[98] and
(p)she believed that, if she was to return to her mother’s care, she would “run away”, although she also said, “I don’t really have anywhere to go”; she also said that, if her mother “locks her in”, she will commit suicide “and […] I will write her a letter”.[99]
[91] Family Report, paragraph 59.
[92] Family Report, paragraph 60.
[93] Family Report, paragraph 61.
[94] Family Report, paragraph 62.
[95] Family Report, paragraph 63.
[96] Family Report, paragraph 64.
[97] Family Report, paragraph 64.
[98] Family Report, paragraph 65.
[99] Family Report, paragraph 66.
Y’s complaint to Ms AF about the mother photographing the children after they returned from spending time with the father is best considered having regard to the photographs of the children which the mother exhibited to her affidavit.[100] I consider those found at pages 1228 and 1231 of the mother’s 23 August 2023 affidavit to be particularly demonstrative of the likely impact on the girls of the conduct about which Y commented to Ms AF.
[100] Affidavit of the mother filed 23 August 2023, pages 1228 to 1231/2642.
Whilst others may disagree, I am not persuaded in this case that Y’s pre-emptive comment to Ms AF – namely, “and before you ask no dad did not tell me to say anything” – clearly demonstrates that the father had obviously done that. Both of these children have spent their childhoods moving between parents for whom trust is a foreign concept; I think it much more likely than not that they have been told or asked, on numerous occasions, whether something they said emanated from the other parent; it would be naïve to conclude otherwise.
I accept that Ms AF assessed Y as presenting as a young person who was struggling with considerable feelings of guilt and anger and that her past suicidal ideation indicated significant emotional distress. I also accept Ms AF’s assessment that Y was somewhat more reactive than X, although she was clearly an intelligent and capable young person; I accept Ms AF’s opinion that, whilst Y’s statements were motivated in part by her unresolved feelings towards her mother, the child’s fear of returning to her care appeared genuine – as did her recount of suicidal ideation/self-harm.
Whilst the mother dismissed Y’s complaint of a self-harm attempt and noted, amongst other things, that the child had not made any comment to that effect when hospitalised after swallowing the item, I am not prepared to be as cavalier.
Both parents agreed that Y’s school results had declined following her moving to live with her father but disagreed about the cause of this. As I appreciated it, the mother’s position was that this decline was the result of the father’s approach to parenting and his inability to impose appropriate boundaries around Y to ensure that she continued to attend school and achieve results of a similar standard to those she achieved when she lived with her, whereas the father’s position – at least as recounted to Ms AF – included that he believed the deterioration in Y’s results was a form of “protest” on her part; he also asserted that, whilst she continued to achieve sound results, these were well below her abilities and told Ms AF that, whilst he promoted Y’s school accomplishments, he was also mindful not to place “too much pressure” on her because “she has had enough of that for a while”.[101]
[101] Family Report, paragraph 36.
I accept Ms AF’s assessment that Y appeared to be using anger to mask the vulnerability she felt in the context of the unresolved parenting dispute. Given this, I think it highly likely that her behaviour at school after moving to live with the father has been, at least in part, a manifestation of this anger and/or the hate she described to Ms AF, as well as a consequence of her adapting to a new-found sense of freedom.
Despite the mother’s submission,[102] I accept Ms AF’s opinion that, whilst the risks associated with Y’s emotional functioning should be the primary determining factor in the determination of those parenting orders which are in her best interests, the child’s views and wishes should also be given significant weight.[103]
[102] Discussed elsewhere in these Reasons.
[103] Family Report, paragraph 71.
Both children
I accept that X and Y both refused to see the mother when interviewed by Ms AF in June 2023. I also accept that, whilst each child gave Ms AF a letter containing their expressions about their experiences in their mother’s care and their views about their future time with her, Ms AF decided not to provide these to the mother on the day of interviews because of the confrontational tone of the correspondence.[104]
The mother’s attitude to the children and their more recently expressed views and some of her criticisms of the reports[105]
[104] Family Report, paragraph 68.
[105] Affidavit of the mother filed 23 August 2023, page 99-101/2642 at paragraphs 523- 538.
As I appreciated it, a significant aspect of the mother’s case was, in essence, that given the children had previously demonstrated no malice or ill-will toward her (and had in fact on occasion written letters or cards to her in which they expressed their love for her)[106], their more recent expressions of hatred and ill-will toward her (as set out in Ms AF’s report) meant that it was much more likely than not that the father had coerced them into saying that they hated her, did not want to live with her and did not want to spend time with her.
[106]Affidavit of the mother filed 23 August 2023, page 28/2642 at paragraph 182; pages 651-653/2642 in relation to letters written by X to the mother).
Until each of them left her home, the children had been parented primarily by the mother for all of their lives. Given this, each has had their own lived experience of being parented by her. Had such experiences been as close and loving as I have little doubt the mother thinks they were, I think it highly unlikely that the father would have been able to persuade or coerce the children, as the mother suggests, to make the comments that each did to either Mr AH and/or Ms AF. Even more importantly, I think it highly unlikely that he would have been able to persuade or coerce both children to refrain from seeking the opportunity to spend time or communicate with the mother after they moved to live with him.
I accept that the mother told Mr AH in late August 2021 that X was a “liar” who had previously stolen from her and who had previously falsely alleged that a teacher had punched her.[107] I accept she denied behaving toward the children as X alleged that she had[108] and said it was not abusive to put boundaries around the children’s behaviours.[109] It seemed to me that she did not take any responsibility at all for X’s actions in running away from her care on the occasions she did – such behaviours were, on her account, either the consequence of the influences of one of X’s friends or of the father’s asserted failure to supervise her internet usage appropriately.[110]
[107] Child Impact Report, paragraph 16.
[108] Affidavit of the mother filed 23 August 2023, pages 106/2642 & 107/2642 at paragraphs 547 & 548.
[109] Affidavit of the mother filed 23 August 2023, page 108/2642 at paragraph 551.
[110] Affidavit of the mother filed 23 August 2023, page 107/2642 at paragraph 549.
In seeking to advance her case that X was generally a liar and, in particular, had lied when she complained to Mr AH in September 2022 about aspects of her care, the mother contrasted the difference between:
(a)X’s account to Mr AH in September 2022 that she had not seen Y in ages and would love to see her; and
(b)the doctor’s notes of X’s consultation in June 2022, included that X (described to have “looked more relaxed and happier than ever we have seen her”) had said that she had seen her 12 year old sister, they spent the day together and she was very happy about that.
As I appreciated it, the mother’s position was that X’s account to the doctor was untrue because, unless X was with the father when he went to the school to give Y a phone (as she believed had happened), X and Y had not seen each other since February 2022 because that was when she stopped making Y available to spend time with the father.[111]
[111]Affidavit of the mother filed 23 August 2023, page 108/2642 at paragraph 552; Affidavit of the mother filed 23 August 2023, page 114/2642 at paragraph 570.
Given that time is relative, it is, I think, possible that each of X’s accounts are true: she may have seen Y at school (as the mother thought possible) close to her June 2022 medical appointment and described, in September 2022, the time during which she had not seen her as Mr AH reported – namely, that she had not seen Y “in ages”.
I accept that the mother told Mr AH the things he recorded in his notes.[112] Included within the information that she provided was him that:
[112] Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642; pages 1723-1737/2642.
(a)X had sent her an email which reflected her enmeshment with the father and she was concerned that she was a liar; and
(b)the father, who just said what people wanted to hear, had not told her that X was in his care until he filed an affidavit in the Court; and
(c)she had managed to get onto X’s social media – X was autistic, with extremely low working memory and had had unprotected sex under the age of consent at 14 and 15 years and she was determined that Y would not go down the same path; and
(d)the father had ceased taking medication prescribed to him, was a high risk of suicide, lacked remorse, had no empathy, was a pathological liar and never apologised or admitted that he was a domestic violence perpetrator; and
(e)she was really sad for X and wanted her to have an education – she thought that her working would not last given she had previously sworn at teachers and had flipped tables over in the classroom; and
(f)she and X had had a good relationship until X started using Instagram – she had not allowed the children to have social media or go on sleepovers and had changed the internet password every day when X was in her care; and
(g)the father had been sexualising X by dressing her in tight clothing and letting her have her hair and eyebrows done; and
(h)her proposal for the children to have no contact with the father was because he had allowed X to meet up with a boy she met over social media, did not follow medical advice and approached his care of the children in a manner that placed them at risk of sexual harm; and
(i)Y was amazing – there had been a dramatic improvement in her behaviour and records since she (the mother) had stopped her contact with the father; and
(j)the children did not remember the stuff the father had done or understand that what he was doing to them amounted to emotional abuse; and
(k)she had not come lightly to the decision that the children should have no contact with the father – she felt that, when they were adults and could protect themselves, they could decide whether they wanted to have contact with him.
As I appreciated it, the mother’s contention was that X’s alleged enmeshment[113] explained the child’s decisions to leave her care and to tell Mr AH and Ms AF the various things that each of them recorded her as having said when interviewed: that is, what X complained of were not really her personal views or expressions of her actual lived experiences in the mother’s care, but only a false recounting based on the father’s falsehoods and influence. On her case, a similar conclusion should be drawn about the comments made by Y when she was interviewed by Ms AF.
[113] Affidavit of the mother filed 23 August 2023, page 106/2642 at paragraph 544.
In furtherance of this assertion, the mother’s evidence included that:
The Court also needs to consider that Childrens Wishes as expressed to the Family Report Writer are not their actual wishes.
The wishes, as shown with the evidence, are the coerced wishes of an obsessed Father; who has an untreated mental and psychiatric illness, and instead of getting required medical treatment per his Medical Practitioners advice as stated in his Medical Records, is using the Children to fulfil the demands of his illness. [114]
[114] Affidavit of the mother filed 23 August 2023, page 157/2642 at paragraphs 635(a)xxv; xxvi.
Whilst I accept that, as in any case, the Court needs to consider whether the views expressed by a child are that child’s own views, I do not accept the assertions contained within the second paragraph above. I am simply unpersuaded that the children’s comments to both Mr AH and Ms AF are wishes or views coerced from them by the father or that they were nothing more than a false recounting based on the father’s falsehoods or nothing more than a consequence of his influence. Whilst I certainly accept that the father consistently sought to spend time with the children, I am not persuaded that he is “obsessed”; I am not persuaded that he has used, or is using, the children to fulfil “the demands of his illness”, whatever the mother may think these to be.
Whilst it is probably unnecessary to express this view, it seems to me that many of the mother’s behaviours and her approach to these parents’ attempts to co-parent their children following their September 2012 separation more aptly fit the description “obsessive” than do the actions of the father.
The mother’s evidence also included the assertion that the children had been coached and rehearsed by the father to make the adverse comments they have made about her care of them.[115] She submitted, in essence, that the following evidence clearly established that both children had a positive relationship with her, a very positive view of her and that each was happy and settled in her care before each of them left that care:
[115] Affidavit of the mother filed 23 August 2023, page 74/2642 at paragraph 392.
(a)insofar as X is concerned:
(i)various emails from X in April 2019, May 2019, June 2019, December 2019, January 2020 and March 2020 in which X told her that she loved her;[116] and
(ii)in May 2021: X wrote a note on her computer apologising for her behaviour, thanking her for being a good parent and trying her best given the situation they had been forced into by the Court;[117] and
(iii)on 26 November 2021 (nine days before X finally left her care): the conversation between herself and X after X was interviewed by Dr AN (a psychiatric registrar with CYMHS at the hospital), which the mother recorded unbeknownst to X;[118] and
(iv)handwritten notes from X in which she expressed her love for her;[119] and
(v)her recorded interactions with X and Y on 3 December 2021 (two days before X left her care) when they went to a leisure/sport centre.[120]
(b)insofar as Y is concerned:
(i)her interactions with Y during the June/July 2022 holidays, including a recording of them having fun and joking around;[121] and
(ii)handwritten notes from Y in which she expressed her love for her mother.[122]
[116] Affidavit of the mother filed 23 August 2023, pages 76-79/2642 at paragraph 399.
[117] Affidavit of the mother filed 23 August 2023, page 74/2642 at paragraph 393a.
[118] Affidavit of the mother filed 23 August 2023, page 74/2642 at paragraph 393b; page 651/2642.
[119] Affidavit of the mother filed 23 August 2023, page 75/2642 at paragraph 393c.
[120] Affidavit of the mother filed 23 August 2023, page 75/2642 at paragraph 393d.
[121] Affidavit of the mother filed 23 August 2023, page 75/2642 at paragraph 393e.
[122] Affidavit of the mother filed 23 August 2023, page 75/2642 at paragraph 393f.
In essence, the mother contended that the above completely disproved and rebutted the content of Ms AF’s report; she submitted that the Court should disregard the children’s expressed views completely and place no weight at all on any of Ms AF’s recommendations. Whilst others may disagree, I am not persuaded by such submissions; that the children have, on occasions, told their mother that they love her and that they have, on occasion, appeared happy when spending time with her on holidays or doing a specific “special” activity does not necessarily mean that they lied when they spoke of other aspects of their lived experiences in her care. It is not, to my mind, an “all or nothing” issue.
The mother also submitted, in essence, that:
(a)no or very limited weight should be accorded to X’s expressed views because of her ASD and the fact that, in early 2019, she had been diagnosed by Dr JJ as suffering from Complex Trauma;[123] and
(b)any weight to be accorded to the children’s expressed wishes should reflect that Y was only 13 years of age and that “[X] is autistic with impairment of the mind and [a low IQ]”;[124] and
(c)it was not in either child’s best interests to control her or her parenting of them by making threats of self-harm because they did not get their own way.[125]
[123] Affidavit of the mother filed 23 August 2023, page 79/2642 at paragraph 401; pages 416-417/2642.
[124] Affidavit of the mother filed 23 August 2023, page 143/2642 at paragraph 635a.
[125] Affidavit of the mother filed 23 August 2023, page 144/2642 at paragraph 635(a)v.
I accept that, when interviewed by Ms AF in June 2023, the mother described X in a reasonably negative manner: she said X’s disability had significant functional limitations, that she was defiant and reactive and unable to accommodate change and was a “known danger” to Y.[126] The mother’s descriptions of X’s defiance, reactivity and inability to accommodate change should be noted when considering her submissions about X’s behaviours at school following her move to live with her father.
[126] Family Report, paragraph 45.
In disputing Ms AF’s recounting that X was able to present her views with clarity and that she was able to explore and rationalise her preferences, the mother relied on the content of documents from Town AB medical service which she asserted “completely contradict” what Ms AF said in this respect.[127] She noted, for example, that the notes of X’s consultation in mid‑2022 included that “[X] finds it difficult to express herself in conversation and her needs. She will only answer yes, no or no clue!”[128] Of course, these notes were made about 12 months before Ms AF interviewed X.
[127]Affidavit of the mother filed 23 August 2023, page 169/2642 at paragraph 771; page 175/2642 at paragraph 803; pages 927-937/2642.
[128] Affidavit of the mother filed 23 August 2023, page 934/2642.
Whilst the mother’s views of Y’s complaints to Ms AF about her alleged behaviour toward her included that, as Y used pretty much the exact same words as X had used when she spoke with Ms AF, it was “not hard to see the clear coaching and rehearsing of the Father”[129] – another explanation for any similarity between the children’s reporting is that they were each accurately describing their shared experiences of living primarily with the mother.
[129] Affidavit of the mother filed 23 August 2023, page 170/2642 at paragraph 785.
Whilst I do not intend to deal specifically with each of the mother’s far-ranging criticism of Ms AF and her report, her attitude toward Ms AF can, I think, be gleaned from the following evidence she gave about Ms AF’s recounting of Y’s information that, whilst in her mother’s care, she had deliberately swallowed an item, by way of self-harm:
It should have been obvious to the Family Report Writer this was fabricated, as the way in which a child or teenager would [self-harm] is either by (a) [body injury], or (b) [medication]. In an entire decade only three people have ever died from ingesting [an item].[130]
[130] Affidavit of the mother filed 23 August 2023, page 171/2642 at paragraph 792.
I accept that the mother also emphasised that, when interviewed by Mr AH, Y had had a chance to “have her say” and that, approximately two months before she left her care, he had recommended that she remain living with the mother[131] – she advanced that the stark contrast between Y’s views about her as expressed to Mr AH (two months before she departed from her care) and to Ms AF (some seven months after she started to live with the father) established that the father had severely alienated Y from her.[132] However, given Y’s report to Ms AF that the mother had “put a recording device” on her for her interview with Mr AH – which, given the mother’s proclivity to record conversations does not seem inherently implausible – another explanation for the differences in Y’s recounting to each of the interviewers is, as she said to Ms AF, that “this time I can say what I really think”.
[131] Affidavit of the mother filed 23 August 2023, page 185/2642 at paragraph 39.
[132] Affidavit of the mother filed 23 August 2023, page 86/2642 at paragraph 458.
Even looking to what the mother has set out in her affidavit, though, it seems to me that, contrary to the mother’s interpretation of what occurred on that occasion, the Deputy Chief Magistrate did not make the findings which the mother swears that she did. Instead – as is apparent from what the mother has set out – the Court there noted:
(a)the affidavit filed 13 October 2020 “gives me grave concern, obviously, when – if you see it, because there appears to be an allegation the child pornography as published in the affidavit was sent to [X]…”; and
(b)“that should be – that’s a significant issue. That is a serious criminal offence and the court is gravely concerned that the police have not been notified of those matters”; and
(c)“If it is genuine, the court’s gravely concerned about the child’s been exposed to significant, serious criminal offending”; and that given that it was gravely concerned about the matter and the material separate to the parties, it was going to direct that a notification be made to the Department and to publish a copy of the mother’s affidavit to the Department because it considered it had a duty, when the material was before it, to ensure that a notification was made to the Department.
The affidavit referred to is, as I understand it, the mother’s affidavit to which she exhibited the images she had obtained from X’s social media pages.
I also note that, in the extract provided by the mother, the father is recorded as telling the Court that he did not have an issue with an order being made for the provision of specified information, including the mother’s 13 October 2020 affidavit, to the Department; he also said: “I’m still unfamiliar with the affidavit and I’m not exactly sure if I’m being accused of something”.
Nothing in the extract included by the mother in her affidavit suggests that the Deputy Chief Magistrate found that X was at risk of sexual harm in the father’s care or that X was definitely at risk of sexual harm with exposure to the internet in the father’s care or that she made a conclusive judgment that X and Y are at risk of sexual harm in the care of their father.
This is yet another example of what is noted elsewhere in these Reasons about the issue associated with considering the mother’s evidence – namely, what appears to be a propensity to extrapolate from what has happened to conclude that what she thinks ought to have happened in fact did.
I reject the mother’s contention that, because he did not appeal DCM’s order to cause the mother’s 13 October 2020 affidavit (and any other material in the proceedings thought necessary for investigation) to be provided to the Department, the father accepted that X is at risk of sexual harm in his care due to his own supervisory neglect.[417] As the mother’s own extract of the appearance makes clear, the father did not oppose the documents being provided to the Department, although he certainly queried whether he was being accused of something.
[417] Affidavit of the mother filed 23 August 2023, page 66/2642 at paragraph 367.
When regard is had to the extracts, it seems to me that the father’s evidence under oath included that, whilst he accepted that the girls were in his care between 18 September and 25 September 2020, he did not know that X had been accessing his phone at the time; he accepted she had been subversively doing so (which, I note, other aspects of the mother’s evidence clearly establishes that she was capable of doing whilst under the mother’s control); when asked to comment about the asserted fact that she accessed Instagram 28 times via his phone on some days, he said, in essence, that the phone was on the table in his house – it was not in his pocket the entire time and if she picked it up and used it he was not aware of that; he denied knowing she was on Instagram: he said the children used the internet to stream Netflix and Disney and craft programmes but he had not allowed them to use social media and never had; he said he first learned about X’s use of Instagram that day (late 2020); his evidence included that X had clearly been using his phone subversively and without his permission and that he did not condone that at all and did not like the fact that it was being suggested that he did; he also asked the mother how come he was only hearing about this via material emailed to him at 7.37 pm the day before the hearing; he said X’s access to Instagram whilst in his care was not to his knowledge.
The mother’s evidence included that she logged into Y's Instagram account and became aware of death threats made by a girl via her private messages. The mother said the father “was aware of the death threats and didn’t inform me as I had no knowledge of this Instagram account and failed to take it to the police and continued to allow [X] to be on social media”.[418] The mother said that, when the father told X to delete the posts about death threats, rather than taking them to the police, he did this because he did not want to be incriminated and have evidence before the Court about the risk of harm to the children in his care.[419] I am not persuaded that this is likely to be the case.
[418] Affidavit of the mother filed 23 August 2023, page 216/2642 at paragraph 91.
[419] Affidavit of the mother filed 23 August 2023, page 379/2642 at paragraph 6.
The mother certainly emphasised that, despite the father telling the Court that X could not get on the internet, X had been accessing her Instagram account repeatedly whilst in the father’s care[420] – she went to the trouble of attaching a copy of the records of X’s log-ins whilst in his care, which she said showed, for example, that, on 22 September 2020, the child logged into Instagram 27 times between 7.24 am and 11.32 pm and 28 times during 24 September 2020. However, she also said that, on 3 October 2020, she discovered that X had used one of her old phones to log onto Instagram without her (the mother’s) knowledge or consent: it seems that this was the occasion on which the mother gathered the images posted on the account, given her evidence that “given that [X] did not have time to log out of her Instagram account, I was able to access it for more than a couple of minutes to gather the evidence to put before this Court”.[421] Whilst others may disagree, this assertion seems to me to suggest that the mother had been able to access Y's Instagram account before then, albeit for only a couple of minutes at a time.
[420] Affidavit of the mother filed 23 August 2023, page 379/2642 at paragraph 8.
[421] Affidavit of the mother filed 23 August 2023, page 380/2642 at paragraph 12.
The co-parenting relationship
I accept that the parents articulated frustration to Ms AF at the ongoing litigation, however saw no potential for amicable resolve.[422] I accept that the parents told Ms AF that there was no functional co-parenting relationship between them. I accept that Ms AF assessed that, whilst the mother appeared genuine in her belief that the father has perpetrated domestic violence and coercive control towards her, her behaviours were not indicative of an ongoing level of fear.[423]
[422] Family Report, paragraph 9.
[423] Family Report, paragraph 75.
I accept that, over the course of their acrimonious post-separation co-parenting, both parents have engaged in conduct such as showing the children the court orders and emails; I suspect that neither has really attempted to shield the children from the parental bickering that has dominated the vast majority of these children’s childhoods. On occasion, each parent has likely failed to keep the other informed about matters pertaining to the children; each have made unilateral decisions relating to the children. I suspect that aspects of the conduct of each of their parents since the parental separation has caused these children emotional and psychological harm.
Whether it is preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children[424]
[424] Family Law Act 1975 (Cth) ss 60CC(3)(l).
I accept, as set out in the September 2022 Child Impact Report, that the mother then believed that the only possibility of litigation ending was if the children lived with her and had no contact with the father.[425] I also accept Mr AH’s assessment that she did not appearing willing to support the children’s relationships with the father or to accept any view expressed by the children which was inconsistent with her own views.[426]
[425] Child Impact Report, paragraph 63.
[426] Child Impact Report, paragraph 64.
Nothing in the mother’s evidence suggest that there has been any change to her position in this respect. In fact, her evidence included that there would be no need for any further litigation (and she and the children would finally be safe) if the Court:
(a)made the orders she sought for the children to have “absolutely No Contact” with the father and allowed her and the children to move away to an undisclosed location; and
(b)made orders for the father to provide financially for the children in excess of the child support requirements; and
(c)declared the father to be a vexatious litigant so that he could not institute any further proceedings; and
(d)punished the father for his contraventions with the harshest possible penalty; and
(e)referred the matter for prosecution to the Australian Federal Police and the Queensland Police Service.[427]
[427] Affidavit of the mother filed 23 August 2023, page 99/2642 at paragraph 521.
I accept that, as set out in the September 2022 Child Impact Report, the father expressed to Mr AH that the father thought that the mother was “incapable of seeing something from another person’s view”; he also said he did not believe she would ever stop and that the litigation would only end when the children became adults.[428]
[428] Child Impact Report, paragraphs 37 and 40.
WHAT ORDERS ARE NOW IN THE CHILDREN’S BEST INTERESTS?
I accept Mr AH’s opinion, expressed in the September 2022 Child Impact Report, that he had not identified any immediate risk to the children’s safety in the father’s care which he believed warranted them not spending any time with him. I accept his account that both children had reported feeling safe in their father’s presence and that each had spoken positively about his care[429] and their time with him and that Y had suggested he was supportive of them contacting the mother when they were in his care.
[429] Child Impact Report, paragraph 56.
I also accept Mr AH’s assessment that, whilst Y’s academic results may well have improved in the period after the mother refused to facilitate her having any contact or communication with the father and X, the child had presented as anxious, had reported feeling “sad” about her exposure to her mother’s views and missed both the father and X.[430] He also noted that the father appeared to have engaged X in “a way she is receptive to” and that he was supportive of her decision-making.[431]
[430] Child Impact Report, paragraph 57.
[431] Child Impact Report, paragraph 58.
Mr AH noted that the mother had been the children’s primary caregiver; whilst he could not identify any immediate risks to their safety in her care, he reported that she articulated negative and absolute views about the father and did not appear to see any benefit to the children in them having meaningful relationships with him. Her evidence clearly establishes that her views in this respect have not changed at all.
I accept Ms AF’s assessment, in the August 2023 Family Report, that both children had expressed a desire to feel in control of their own directions.[432] I note she opined that X and Y’s experiences of childhood had, for the last decade, been compromised by litigation; she thought both wanted closure and to feel important in the proceedings.[433]
[432] Family Report, paragraph 46.
[433] Family Report, paragraph 72.
I accept Ms AF’s recounting that both children had articulated having suffered emotional, physical and psychological abuse perpetrated by their mother and that both described their father as supportive, loving and consistent.
I accept Ms AF’s opinion that it was highly concerning that X had chosen to live in seriously unsafe conditions to avoid remaining in her mother’s care; she also said that it was more alarming that Y had attempted to self-harm whilst in her mother’s care.[434]
[434] Family Report, paragraph 73.
I accept that Ms AF assessed there to be no indication from X or Y that they had been subjected to paternal influence; she considered their statements to support the father’s version of events.[435] I accept that Ms AF assessed that the children’s disclosures/presentations indicated that the father had a greater degree of insight into their needs and developing maturity;[436] I also accept her opinion that it appeared more likely that X and Y would comply with decisions he made[437] than with any decisions now made by their mother.
[435] Family Report, paragraph 74.
[436] Family Report, paragraph 43.
[437] Family Report, paragraph 76.
I accept Ms AF’s assessment that, whilst it appeared the mother had provided both children with access to quality health care, therapy, and education, they had come to reject her involvement and had withheld vital information relevant to their safety and wellbeing from her. I accept, given the accounts provided to Ms AF by both X and Y, that the mother’s behaviour, intentional or otherwise, has independently shaped their view of her; given their articulation to Ms AF that they felt the mother’s pursuit of “orders” had monopolised her time, I accept that this left them feeling rejected, neglected, and objectified and that both feel emotionally unsafe in her care.
I accept Ms AF’s opinion that both children appeared unlikely to comply with orders outside of their wishes; she thought that, if they were forced to live with their mother, they were likely to engage in high-risk activities such as absconding to assert their views. She also opined that, if the children were restricted from returning to their father’s care, the risks of self-placing in unsafe environments were considerable.[438] I agree.
[438] Family Report, paragraph 79.
I accept Ms AF’s evidence about the importance for Y of achieving emotional stability and that her capacity to explore learning opportunities is underpinned by healthy functioning; I accept that compromised mental health would undermine her achievements.[439] In this respect, I note that the contents of Y's Semester 1 school report (referred to above and which the mother opposed being accepted into evidence) certainly suggest that her equilibrium has returned, at least to some degree.
[439] Family Report, paragraph 78.
I accept Ms AF’s assessment that, if some form of reunification is not brokered between the children and the mother, this may constitute a significant loss in their lives; I also accept, though, that any reconciliation between the children and the mother is largely dependent on her ability to demonstrate that she is focused and interested in their expressed needs. Given her conduct to date, I am not remotely confident that the mother will be able to change her behaviours sufficiently to have any sort of relationship with X and Y on their terms.
I accept Ms AF’s opinion that the children see their father as a source of safety and security; I unreservedly accept that depriving the children of their interactions with him would cause them significant distress. I also think that they simply would not accept any requirement that they return to live with their mother, particularly noting that X will soon be 18 years of age.
That the mother suggested that an ongoing return warrant/recovery order was required to ensure that the children comply with any requirement to return to live with her clearly demonstrates that even she recognises the strength of their opposition to such a course.
I reject the mother's contention that the Court cannot legally make any other order but to remove the children from the father's care. I reject the mother’s submission that the damage to X’s relationship with her has occurred because of the father’s permissive parenting and lack of rules and boundaries and his incapacity to parent her, and because the Court and the Department of Child Safety have failed or refused to act despite there being clear evidence of risk to the children in the father’s care.[440] I assess the damage to X’s relationship with the mother as being causally connected to the manner in which the mother has approached her parenting and her focus on matters extraneous to the children: little more needs to occur, in my view, than to remember Y’s comment to Ms AF that she and her sister “are enough” for the father.
[440]Affidavit of the mother filed 23 August 2023, page 115/2642 at paragraph 572; pages 232 & 233/2642 at paragraph 25; page 1704/2642 at paragraph 60.
I reject the submissions made by the mother to the effect that there is no evidence to support the making of findings that it is in the children’s best interests to remain living with the father and to only spend time and communicate with her as they choose. I consider that the reports by Mr AH and Ms AF of X’s views about her mother, her recounted experiences of being primarily parented by her, her age and the fact that, since she has moved to live with the father, she has been able to find employment provides a very substantial conglomeration of evidence for the conclusion I have reached that it is not now in her best interests to be required to return to live with the parent from whose care she has previously absconded on no less than three occasions.
Similarly, I consider there to be significant evidence to support my conclusion that it is not in Y’s best interests to be required to return to live with the mother – insofar as she is concerned, her comments to Ms AF and her comments to her mother (and the mother’s comments to her) during her telephone conversation with her mother on 9 August 2023, seem to me to constitute expressions by her of her own lived experience of being primarily parented by her mother; I also note and accept Ms AF’s recounting and assessment of the risk that, if forced to return to live with the mother and spend no time and have no communication with the father (as the mother proposes), Y may run away again or, even more concerning, may attempt self-harm as she has said that she would.
Given the mother’s conduct and her views of the children (as considered throughout these Reasons), I am easily persuaded that it is not in the children’s best interests to live with her. I consider that it is in their best interests to remain living with the father, the parent whom they have identified as providing them the safe and supportive emotional base that they require. It is also in their best interests that he be accorded sole parental responsibility for the major long‑term issues relating to them. Nothing Ms AF’s recommendation that the children be at liberty to communicate and spend time with the mother at their discretion, an order in such terms seems in their best interests and proper. It is also appropriate that the father be required to keep the children informed of the mother’s contact details.[441]
[441] Family Report, paragraphs 82 – 84.
In the September 2022 Child Impact Report, Mr AH commented that, perhaps, consideration could be given to X and the mother attending a combination of individual and/or joint counselling to repair their relationship.[442] However, the mother’s evidence included that counselling between herself and X would not work “especially to establish rules and boundaries to manage her behaviour and have her able to participate in schooling and be regulated for work environments, while the Laissez-Faire style parenting of the Father continues”.[443]
[442] Child Impact Report, paragraph 55.
[443] Affidavit of the mother filed 23 August 2023, page 1706/2642 at paragraph 65.
This attitude, when considered with the opinions expressed by Ms AF in particular about the difficulties associated with attempting to have the mother and children engage via a therapeutic process, persuades me that it is not now in the children’s best interests to make an order compelling either of them to participate in a therapeutic process with the mother. Both children know her telephone number and, at their age, are capable of contacting her via telephone or email if they wish to communicate with her.
The mother sought that orders be made to allow the children to travel outside of the Commonwealth of Australia. The December 2018 orders contained provision to facilitate overseas travel and it is in the children’s best interests and proper for orders to be made to enable them to undertake overseas travel.
THE BALANCE OF THE RELIEF SOUGHT BY MS DARLEY
Whilst my conclusions about those parenting orders now in the children’s best interests make it unnecessary to consider some of the relief sought by Ms Darley (such as her application for a “permanent Recovery Order” to lie on the file),[444] other aspects of the same remain outstanding.
The application for the discharge of the Vexatious Proceedings Order made by Carew J on 23 August 2019
[444] Affidavit of the mother filed 23 August 2023, page 186/2642 at paragraph 52.
On 23 August 2019, Carew J made an order pursuant to s 102QB(2) of the Act prohibiting the mother from instituting proceedings against the father or the Independent Children’s Lawyer under the Act in a court having jurisdiction under the Act without first obtaining leave pursuant to s 102QE of the Act (the August 2019 order).[445]
[445] Affidavit of the mother filed 23 August 2023, page 4/2642 at paragraph 19.
The mother appealed this order. On 4 December 2019, Kent J made an order reinstating the mother’s appeal against the August 2019 order for the reasons he expressed in the Reasons for Judgment delivered on 6 December 2019.[446] On 23 April 2021, the Full Court dismissed the mother’s appeal against the August 2019 order for the reasons expressed in the Reasons for Judgment delivered that day.[447]
[446] Darley & Darley [2019] FamCAFC 238 at [6] to [9].
[447] Darley & Darley (No. 4) [2021] FamCAFC 54 at [163] to [172].
The mother now applies for the August 2019 order (which is a final order)[448] to be discharged.[449] She does so because she contends that:
[448] Family Law Act 1975 (Cth), s 102QB(5).
[449] Response to Initiating Application filed 15 March 2023 at #9 of the “Final orders sought”.
(a)the order prevents her from having any matter heard quickly when orders have actually been breached and the children are at risk;[450] and
[450] Affidavit of the mother filed 23 August 2023, page 184/2642 at paragraph 24.
(b)the existence of the order has “emboldened” the father to make unilateral decisions about the children despite the existence of an order according the parents equal shared parental responsibility for the major long-term issues relating to them;[451] and
[451] Affidavit of the mother filed 23 August 2023, page 184/2642 at paragraphs 25–27.
(c)in making the order, the Court placed the children at risk of harm and such risk has become a reality for X;[452] and
[452] Affidavit of the mother filed 23 August 2023, page 1865/2642 at paragraph 98.
(d)her previous assertions about the father’s conduct were correct and not without foundation and she had been attempting to protect the children;[453] and
[453] Affidavit of the mother filed 23 August 2023, page 1865/2642 at paragraph 98.
(e)the making of the order was entirely unfair and an abuse of her by the Court;[454] and
(f)there was absolutely no basis for the order to be made against her;[455] and
(g)the order amounted to her being punished for trying to protect the children;[456] and
(h)the father has used “that unfair and prejudicial label” (namely, of her being the subject of a vexatious proceedings order) with services like Centrelink and Child Support and in Domestic Violence proceedings to cast doubt on her credibility,[457] to prejudice others against her so that she does not get a fair hearing,[458] and as a perpetual licence to abuse her and the children without enforcement by police or any legal consequence from the Courts;[459] and
(i)the existence of the order discredits her as an honest citizen and implies that she is not entitled to enforce her legal rights;[460] and
(j)the evidence now available demonstrates that:
(i)she never brought proceedings by way of an abuse of process; and
(ii)she simply filed material in response to the father breaching orders including retaining the children in flagrant disregard of the December 2018 order; and
(iii)she has never improperly instigated proceedings in the Court.
[454] Affidavit of the mother filed 23 August 2023, page 1865/2642 at paragraph 98.
[455] Affidavit of the mother filed 23 August 2023, page 1865/2642 at paragraph 98.
[456] Affidavit of the mother filed 23 August 2023, page 1865/2642 at paragraph 99.
[457] Affidavit of the mother filed 23 August 2023, page 12/2642 at paragraph 71(d).
[458] Affidavit of the mother filed 23 August 2023, page 1920/2642 at paragraph 18.
[459]Affidavit of the mother filed 15 March 2023, paragraph 91; affidavit of the mother filed 9 December 2022, paragraph 20.
[460]Affidavit of the mother filed 15 March 2023, paragraph 92; Affidavit of the mother filed 9 December 2022, paragraph 20.
To the extent that the mother relied on any comments I made during the course of the previous trial,[461] it is, of course, pertinent to note that the August 2019 followed the finalisation of those proceedings. Further, whilst the mother also submitted that, before the August 2019 order was made, I had made a finding that she was not a vexatious litigant and, therefore, it was not open to Carew J to make such finding, the reality is that I did not make such a finding because, when I commented as recorded in the transcript of the trial determined by the December 2018 orders, there was no application before me that the mother be declared a vexatious litigant.
[461] Affidavit of the mother filed 23 August 2023, page 12/2642 at paragraph 71(d).
None of the prerequisites to the exercise of the power to vary or set aside an order accorded to the Court by r 10.13 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) apply in this case.
Noting the final nature of the August 2019 order, the mother’s unsuccessful appeal in relation to the same, the purpose of vexatious proceedings orders, the absence of specific legislative authorisation to permit the discharge of the August 2019 order[462] – although I accept that the power to do so may be implied[463] – and the fact that the parenting orders to be made will finalise these proceedings, I decline to accede to the mother’s request. Her application for an order discharging the August 2019 order will be dismissed.
[462] Contrast, for example, the power accorded to the Court by s 83 of the Family Law Act 1975 (Cth).
[463] See, for example, DJL v Central Authority (2000) 201 CLR 226.
The application for a Vexatious Proceedings Order against the father
The mother sought that the Court make an order pursuant to s 102QB(2) of the Act prohibiting the father from instituting proceedings against her under the Act in a court having jurisdiction under the Act without first obtaining leave pursuant to s 102QE of the Act.[464]
[464] Response to Initiating Application filed 15 March 2023 at 10. of the “Final orders sought”.
Before an order prohibiting the father from instituting proceedings under the Act in a court having jurisdiction under the Act may be made, I must relevantly be satisfied that he has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.[465] For the purposes of determining this issue, I may have regard to those matters particularised in s 102QB(6) of the Act.
[465] Family Law Act 1975 (Cth), s 102QB(1)(a).
The mother contended that the evidence demonstrated that such an order was clearly necessary and desirable.[466] She also submitted that the Court would be persuaded that father had:
(a)repeatedly used the Court system by lodging what she described as many false and vexatious contravention applications and then withdrawing them after she had spent hundreds of hours doing affidavits and gathering evidence to prove that he was not telling the truth;[467] and
(b)lodged applications seeking an order for “full custody” of the children “despite never having had anything to do with the children prior to separation”; and
(c)lodged objections to her divorce application and to her viewing subpoenaed material in the Magistrates Court and then failed to attend at the hearing of the objections;[468] and
(d)filed 23 applications and affidavits and that, whilst had she had filed approximately 15 applications, she had been required to respond to his applications.[469]
[466] Affidavit of the mother filed 23 August 2023, page 14/2642 at paragraph 80.
[467] Affidavit of the mother filed 15 March 2023, paragraph 8.
[468]Affidavit of the mother filed 23 August 2023, page 230/2642 at paragraph 207; page 311/2642 at paragraph 207; page 1865 &1866/2642 at paragraph 100.
[469]Affidavit of the mother filed 23 August 2023, pages 183 & 184/2642 at paragraph 20; page 214/2642 at paragraph 4; page 1865 & 1866/2642 at paragraph 100.
Having regard to the evidence before me, I am not satisfied that the father has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; consequently, I decline to accede to the mother’s application for an order pursuant to s 102QB of the Act. It too will be dismissed.
I certify that the preceding three hundred and seventy-two (372) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 23 August 2024
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