Denny and Purdy

[2009] FamCA 547

FAMILY COURT OF AUSTRALIA

DENNY & PURDY	[2009] FamCA 547
FAMILY LAW – CHILDREN – With whom a child lives and spends time – High level of conflict between parents – Interim arrangements

APPLICANT: MR DENNY

RESPONDENT: MS PURDY

FILE NUMBER: ADC 3567 of 2007

DATE DELIVERED: 26^TH JUNE 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

JUDGMENT OF: BURR J

HEARING DATE: 24^TH JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Father in person

COUNSEL FOR THE RESPONDENT: Ms Parker

SOLICITOR FOR THE RESPONDENT:	Norman Waterhouse
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Bowler
SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission (A Kent)
COUNSEL FOR THE OTHER PARTY:	Ms Cox / Ms Olsson
SOLICITORS FOR THE OTHER PARTY	Crown Solicitors Office

Orders

Having heard Counsel’s submission, the intimation from the Representative for the Minister as to the process that will now be undertaken and the agreement the parties have reached as to the way forward
UPON NOTING:-

(a)the intimation of Counsel for the Minister that a detailed review of the circumstances of the family and of possible beneficial outcomes for the children will now be undertaken by the Department for Families and Communities – Families SA;

(b)that the parties have agreed to the process and provided necessary consents to the Department to contact all relevant organisations, schools and the like;

(c)the agreement of the parties as to what is appropriate in the interim;

(d)that the parties propose to enter into the process of Alternative Dispute Resolution, subject to the conditions attached to the mother’s suspended sentence;

(e)that the father will use his best endeavours to encourage the child S to spend time with the mother

IT IS ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO 17 AUGUST 2009:-

1. That the children N DENNY (“N”) born … May 1995, S DENNY (“S”) born … September 1996, M DENNY (“M”) born … March 1999 and C DENNY (“C”) born … February 2000 spend time with the mother each weekend from 10.00 am on Saturday until 5.00 pm on Sunday.

2. That the time the children N and S spend with the mother in accordance with this Order be subject to their wishes.

3. That the parties be restrained and an injunction is hereby granted restraining each of them from:-

   (a)discussing these proceedings or any criminal proceedings relating to the father with or in the presence or hearing of the said children and from allowing any other person to do so; and

   (b)showing the said children any documents relating to these proceedings or any criminal proceedings relating to the father and from allowing any other person to do so.

4. That the mother do ensure that the said children are at no time left alone with Mr Purdy during any period when the said children are in her care.

5. That handovers in accordance with the time the said children spend with the mother do occur at the commencement and conclusion at the X CCS UPON NOTING that in the event CCS is not available handovers are to be conducted inside the X Police Station.

6. That the father do ensure that the child S is forthwith engaged in counselling with Ms H or such other person or agency as Ms H may advise.

7. That the father do acquire a communication book to be used by the parties to exchange relevant information about the children’s needs, commitments and health and any other matters relevant to their best interests to be exchanged at each handover.

IT IS NOTED that publication of this judgment under the pseudonym DENNY & PURDY is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC3567 / 2007

MR DENNY

Applicant

And

MS PURDY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me for determination the father’s Application in a Case filed on 17 June 2009.  In that application, he asks the Court to discharge orders made as recently as 2 June 2009 in favour of the mother which permitted her to spend time with the children of their relationship.  There are four children, N DENNY (“N”) born in May 1995 (aged 14), S DENNY (“S”) born in September 1996 (aged 12), M DENNY (“M”) born in March 1999 (aged 10) and C DENNY (“C”) born in February 2000 (aged 9).

2. Regrettably for these children it is yet another application in a long standing and very bitter feud between their parents.  What is clear within what is otherwise a very complicated factual matrix, is that the children have become the victims of their parents’ bitterly intense disputation over many years.  The Court’s attempts to look out for the children’s best interests during the frequent occasions that their parents have been unable to, have been regularly frustrated.

3. Whilst the reasons for the Court’s decisions in the past are well known to the parties, their willingness to engage the public arena in their dispute obliges me to set out in some detail for the sake of the children, the history of the matter to date.  Each parent has been guilty of sacrificing their children’s interests in their desire to attract as much adverse publicity as possible to the other parent in the public arena and to serve their own interests as distinct from the children’s, in this Court.

4. The father is 48 years of age and the mother 30 years of age.  They formed a relationship in 1993 when the mother was only 14 years of age and the father was 32 years of age.  The Court has recently been informed that as a consequence of that relationship the father has now been convicted by jury of rape and other sexual offences against the mother.  He is presently awaiting sentence although he has informed the Court that he has appealed his conviction and has been advised that he has excellent prospects of succeeding in that appeal.  In his affidavit filed on 2 June 2009 he observes variously:-

   “9.The presiding Judge is supporting the application for appeal as to the best of my knowledge he fells [sic] the jury incorrectly convicted me.

   10.During the trial the mother was caught out right [sic] lying under oath.  Many times [sic]

   11.The Judge stated during the trial that the mother ([Ms Purdy]) is a committed lyre [sic].  the [sic] Judge also noted the mother has lied to three courts for personal gain.”

   We will have to wait and see.

5. However, for now the father stands convicted of the heinous and unforgivable crime of rape of the mother when she was 14 years of age.  I hasten to add that the Court has not been provided with any confirmatory documentation from the criminal proceedings but the father has admitted the substance of that detail and convictions.  It is for that reason that he has attracted unto himself the identification as described in a recent press article, as a paedophile.  It is important to note that he is not identified as a paedophile in respect of his own or any other children.

6. In sworn evidence before me on 24 June 2009 the mother’s present husband Mr Purdy admitted that he had contacted the Sunday Mail and provided all of the information which was contained in the article.  Despite the reference in the article to a transcript providing confirmation of the proceedings, no transcript has been ordered or supplied to anyone.  Mr Purdy said that he provided no transcript to the Sunday Mail but that he paraphrased and summarised various paragraphs in affidavits filed in these proceedings.  The mother denied being complicit in the provision of information to the Sunday Mail but acknowledged having been called by the Sunday Mail journalist prior to the publication of the article.  Mr Purdy said he did not admit to the wife that he had anything to do with the article.  He further said that when contacted by the Sunday Mail on the telephone number he had provided to the Sunday Mail, the mother did nothing to discourage the publication of the article.  In fact in her own sworn evidence on 24 June 2009 she advanced the fanciful and dishonest notion that the father may have arranged the publication of the article in order to discredit her and disrupt her relationship with her children.  Whatever the truth, between them by action or, in the mother’s case inaction, they clearly engaged in a deliberate distortion of the facts in order to represent that the father was a predatory paedophile who was a risk to the general community but particularly to his own children who have been placed in his care.

7. The continuing history of the matter is instructive in endeavouring to arrive at what might be the best arrangements for the children in the interim whilst the matter is awaiting trial.  It is appropriate to reflect at this time that the Court has experienced significant frustration in endeavouring to bring the matter to trial and determine the truth of the parties’ respective positions and hence the impact that this has all had upon their children and further, what pointers for the future might therefore be indicated for the children.

8. This is essentially as a consequence of the criminal proceedings which have been pursued against the father.  This Court is in a position to proceed to hear all of the evidence and make a determination even whilst criminal proceedings are outstanding in the event that the parties are willing for the Court to do so.  Although on at least one occasion the father indicated a willingness to proceed in this Court prior to the determination of the criminal charges laid against him (1 July 2008) all three parties ultimately indicated a preference for the criminal proceedings to be resolved prior to this Court dealing with the matter.  I understand their reasons to have been that they did not wish to risk prejudicing a fair trial in the criminal Courts by evidence in relation to those very activities being given in this Court.  This Court is in a position to offer a Certificate under the Commonwealth Evidence Act to enable a party to give evidence in this Court in circumstances where that evidence can not then be used in any criminal proceedings against them.  However, that option was ultimately declined preferring instead for the criminal proceedings brought against the father to first be resolved before they attended to the final determination of the important matters impacting upon their children’s lives which are before this Court.  The criminal proceedings brought against the mother and her present husband in Queensland (mentioned later) were conducted beyond the gaze of this court.  At the time those proceedings arose, there were no proceedings in this Court.

9. Back to the past.  Despite the father’s criminal sexual behaviour towards the mother from the formation of their relationship in 1993, the parties continued voluntarily in a close relationship until their separation on 3 February 2005.  Thus they were together for a further 12 years and committed themselves to each other in marriage in June 1997 by which time the mother was almost 19 years of age.  Their ultimate commitment to each other was further evidenced by the fact that they had four children together, those children having been born respectively in 1995, 1996, 1999 and 2000.

10. Shortly after separation the mother formed a relationship with her present husband Mr Purdy and reported the father to the police for the sexual offences of which he has now been convicted.

11. The mother alleges that on 10 or 11 February 2005 the father drugged and raped her when the children were in the home.  The parties have advised that there are no further criminal proceedings outstanding against the father in relation to these allegations or any other matters.  In her affidavit filed on 15 March 2005 the mother states that she did not report the matter to the police.  In his affidavit filed on 1 April 2005 the father alleges that he reported her allegations to the police as an “attempt to extort” and that they took no action, presumably against either party.

12. On 15 March 2005 the mother commenced proceedings in this Court seeking orders that the children reside with her.  She also filed a Notice of Child Abuse alleging physical abuse of the children and sexual abuse of her.  The father responded shortly thereafter seeking orders that the children live with him and an injunction restraining the mother from permitting the children to come into contact with Mr Purdy.  Yet to be resolved in the ultimate trial of the proceedings in this Court are some worrying allegations made by the father against Mr Purdy including:-

    12.1.that Mr Purdy has made numerous threats including death threats against the father;

    12.2.that the father obtained a domestic violence restraining order against Mr Purdy;

    12.3.that Mr Purdy along with the mother may be consuming drugs in front of the children;

    12.4.that one of the children had reported that she had seen needle marks in the creases of Mr Purdy’s arms;

    12.5.that the mother had told the father that Mr Purdy had Hepatitis C;

    12.6.that one of the children had reported that since the mother’s relationship with Mr Purdy she had seen evidence of a black eye and bruises on the mother;

    12.7.that Mr Purdy is not permitted to have any contact with his own children;

    12.8.that the children are afraid of Mr Purdy;

    12.9.that Mr Purdy was gaoled in 2005 for violently beating the mother in front of the children;

    12.10.that the mother was so violently beaten by Mr Purdy that she was taken to hospital by ambulance;

    12.11.that a police apprehension report can be secured to demonstrate the vicious assault.

13. What we also know about Mr Purdy as a matter of proven fact is that he was convicted of attempting to procure the murder of the father and served gaol time.  In the sentencing remarks of the Judge when the mother too was committed and sentenced to gaol for the same offence, he made reference to the fact that both the mother and Mr Purdy were using methyl amphetamines.  The potentially severe consequences of the illicit use of such drugs are widely known.  The Australian Government Health website ( makes reference to a few and they include:-

    13.1.severe physical health problems;

    13.2.dependence;

    13.3.risk of exposure to blood-born viruses, such as Hepatitis C and HIV;

    13.4.paranoia and paranoid delusions;

    13.5.anxiety;

    13.6.panic attacks;

    13.7.hallucinations;

    13.8.depression;

    13.9.mood swings;

    13.10.aggression;

    13.11.violence;

    13.12.family arguments and conflict

    and many more.  The mother has provided no drug tests or other evidence that she or Mr Purdy are presently “drug free”.  Until they do caution needs to be used to ensure the safety of the children.

14. Pending final determination of these proceedings the Court has consistently made orders prohibiting the mother from allowing Mr Purdy to be alone with the children.  Like many allegations in these proceedings, some remain untested and may or may not be true.  Thus the Court can largely only proceed on the basis of preliminary evidence and observation.

15. Very soon after the parties filed their various applications the Court listed an urgent hearing which was conducted on 5 April 2005.  At that hearing the presiding Judge ordered the appointment of an Independent Children’s Lawyer to represent the children’s interests, requested a report from Families SA on the family and made an Order as follows:-

    “That pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for Families and Communities – Children, Youth & Family Services be requested to intervene in these proceedings and the Court requests that the Minister send a representative on the next occasion to indicate whether the Minister intends to intervene and if not, why not. ”

    It was further ordered that the children reside with each of the father and the mother on a week and week about basis. 

16. The matter came before the Court again on 23 May 2005 when a representative of the Minister indicated that the Minister declined to intervene but would assist with general advice and recommendations where possible.  The Court ordered a detailed and comprehensive family assessment and report to be conducted by an experienced family consultant to assist the Court on such matters as are relevant to these proceedings in respect of the care, welfare and development of the children.  It was required to be prepared as soon as possible in order to provide some guidance to the Court from someone expert in the field.  The Court also made orders to ready the matter for trial.  Of note, from the transcript of the hearing that day, it is significant that the mother’s counsel indicated:-

    “MS PARKER:   There are no further affidavits before your Honour in relation to the children’s issues at this stage.  Your Honour, although my client is most concerned about the long-term residence of the children, her instructions are that the current arrangements, although there are some hiccups and some difficulties, are not putting the children at risk to the extent that the extent [sic] that the children were previously at risk.”

17. It was at about this time that there were some extremely encouraging signs of the mother and the father being able to co-operate and agree upon a range of matters.  On 11 July 2005 I made final property settlement orders by consent.

18. On 10 August 2005 the first of the family reports ordered by the Court in order to provide it with some assistance in crafting orders that would best represent the interests of the children, was released.  I refer to a few selected passages from that report:-

    “No concerns emerged from observations of the children with their parents.”

    “ ….   [the mother’s] presentation, both in the course of this assessment and in her affidavit material, exhibited some worrying signs of lack of veracity.”

19. The report recommended that the existing shared care continue and significantly, in paragraph 55 of the report, indicated:-

    “In conclusion, the parents both indicated that they were happy with the equal shared care arrangement.  They both expressed some positive comments about the other parent, and overall this provided the impression that the arrangements between the parents was progressing in a satisfactory way. …..”

20. On 17 August 2005 the parties indicated to the Court that they were likely to be able to resolve the matter by consent and that is exactly what occurred on 26 August 2005 when agreed final parenting orders were made providing that the children reside with the parties on a week and week about basis and that school holidays and special occasions be shared.  All matters were removed from the Court’s lists.

21. Thus despite the criminal conduct of the father at the commencement of the parties’ relationship when the mother was 14 years of age, the parties put aside their differences for the sake of their children and agreed that each of them was an important figure in the children’s lives, each could contribute to their welfare and wellbeing and each was as important to their children as the other.  The mother did not suggest that the father’s criminal offending against her was a reason to prevent the children from living with the father for half of the time.  She did not suggest that the children were at risk at the hands of their father.

22. This was probably the best time in the lives of these four unfortunate children.  However, it very quickly turned sour for them again.

23. Between February and April of 2006, beyond the gaze of this Court (as there were no current proceedings between 26 August 2005 and 29 June 2007) the mother and her present husband Mr Purdy attempted to procure the murder of the father and another man.  The mother and Mr Purdy were subsequently arrested, charged and incarcerated.  The mother was ultimately sentenced to four years imprisonment but released after serving 396 days with the balance of the sentence suspended on entering a good behaviour bond.  Mr Purdy too was incarcerated.

1. Thus the mother not only attempted to procure the murder of the father who only shortly before she had recognised as being such a significant person in the lives of the children, but robbed them of the other significant person in their lives, namely herself.  By her actions she abandoned the care of the children solely to the father.  No application was made to the Court for any other person to assume that role.  No-one suggested that the father ought not to be the one to care for them at this time.

2. As if that was not bad enough, the father then acted in an entirely irresponsible and non child focussed manner by presenting the children to the public in a sensational front page press article on … about the attempts of the children’s mother and her husband Mr Purdy to secure another individual to murder the children’s father.  The children were photographed and named and clearly engaged by the father in a very public act of retribution against the mother.  This was not the children’s problem.  They had done nothing wrong and yet they were made to suffer in part the sins of their parents.

3. On 8 April 2007 the parties were divorced.  On 21 May 2007 the mother was granted bail and on 22 May 2007 she returned to South Australia.  Upon her return to South Australia the mother filed proceedings on 29 June 2007 seeking an order that the children live with her.  The child N had run away from the father and commenced living with the mother a little over a week beforehand.  On 6 July 2007, consequent upon the mother’s earlier imprisonment for attempting to procure the murder of the father, orders were made by the Judicial Registrar that the children live with the father and another appointment of an Independent Children’s Lawyer was made to represent the children’s interests, not those of the parents.  The mother was permitted to spend supervised time with the children in order to provide some security for them and to re-establish and rebuild the mother’s relationship with the children, she having been absent from their lives for many months.

4. On 10 August 2007 the mother’s present husband Mr Purdy pleaded guilty to two counts of attempting to procure the murders of the father and another man.  He was sentenced to five years imprisonment which was suspended after he had spent 482 days in pre-sentence custody.

5. On 20 August 2007 a further family report was ordered to explore the children’s general circumstances at that time and to try and identify on the advice of an expert what might be best for them for the time being and how it might be best to reintroduce the mother into the children’s lives in a child focussed way.  On 3 September 2007 the parties agreed that the mother would continue to have supervised time with the three youngest children and that the oldest N live with her.  The matter was ordered to proceed to trial.

6. On 25 October 2007 the father was arrested and charged with 14 counts of rape, 13 counts of unlawful sexual intercourse and unlawful detention.  In her affidavit filed on 1 November 2007 the mother stated that she was “the victim of these alleged crimes”.  As this Court understands it, it is in respect of several of these counts that the father has been found guilty of recent time.

7. On 11 February 2008 the mother pleaded guilty to attempting to procure the murder of the father and, as indicated earlier, she was sentenced to four years imprisonment suspended after having already served 396 days in pre-sentence custody. 

8. On 13 February 2008 the mother filed contravention proceedings against the father alleging that he had failed to provide the children to her on a number of occasions as ordered.

9. On 7 May 2008 the second family assessment report was concluded and released to the parties.  It provided important guidance to the Court as to what arrangements might best suit the children pending the final hearing of the proceedings.  That report recorded variously:-

   “Observation of the children with their father indicated close and loving relationships where all the children appeared to be very comfortable.”

   “Ms [H] [Child and Adolescent Mental Health Service counsellor] was asked to comment on the allegations that [N] may be in a situation of being groomed by her father for future sexual abuse.  Ms [H] said that she had seen no signs in [N’s] presentation to alert her in any way in this regard.  She expressed the view that [N] was not in any danger from her father.” 

   “From Ms [H’s] point of view, the bond between [N] and her father was good, and [N] was ‘sometimes a bit scared of seeing (her mother)’.”

   “[N] had also said to Ms [H], ‘I like seeing my mum but I like living with my dad’.”

   In relation to a telephone interview with Ms B, child care provider, the Family Consultant reports:-

   “[N] would confide to me ‘I don’t know why mum and dad separated I didn’t even see them fight’.”

   “Ms [B] said that the children ‘are so happy with their dad’.  She said, ‘[M] and [N] love their mum too.  They are happy to hug their mum but when they’re with dad they touch him and hug him.’  Her comments indicated that she believed the children to be ‘really settled’ in their father’s care.”

   “The children essentially appeared to be relatively settled with their father, and there was no information gained during this assessment to support the mother’s allegations that the children were in an abusive situation while living with their father.  On the contrary, the information supported a conclusion that the children were well cared for by their father and have a comfortable warm and loving relationship with their father.”

   “In the writer’s view, if [N] had really been abused by her father to the extent that [the mother] apparently believes, then the overall picture about this child compiled from the information from the CAMHS counsellor, the school, and the children’s long term care provider would provide some corroboration of this, when in fact this is not the case.”

   “As stated above, there was no indication in any of the observations of the children to support the mother’s allegations that the children were or had been in an abusive situation while living with their father.  The children had been in [the father’s] primary care for about two years, and before that in the equal care of both parents.  The information gained by the writer supported an overall picture of a father who had genuinely endeavoured to take good care of the children, and who may have provided adequate parenting.”

   “These children have had a quite extreme degree of disruption in their lives through the various events that have occurred, especially considering that they have become known to be children whose mother had apparently intended to murder their father.  It would be surprising indeed if they did not now demonstrate a range of symptoms manifesting the effects on them of ongoing conflict between their parents and uneasiness with their overall relationship with the absent parent or with their parenting overall.”

10. As a consequence of the quite extreme situation in which the children have been placed by both of their parents and because of the complex issues impacting upon their welfare, the Court accepted the matter into its Magellan Project.  As Counsel would know, the Magellan Project is a special case management programme in place in the Family Court throughout Australia in order to specially and expeditiously manage cases involving allegations of sexual abuse or serious physical abuse of children.  For its success the Court relies heavily upon co-operative relationships established with child welfare departments, the police, legal aid officers, the private legal profession and child experts.

11. On 3 June 2008 the Court made the following significant Orders:-

    “1.Further consideration of the proceedings be adjourned to 11.00 am on Tuesday 1 July 2008 before the Honourable Justice Burr (allow 1 hour).

    2.The Independent Children’s Lawyer release to Families SA a copy of the Family Report dated 14 April 2008.

    3.Families SA indicate to the Independent Children’s Lawyer why it is that they have not investigated a number of quite serious allegations which have been made in these proceedings or if indeed they have investigated same, Families SA provide to the Independent Children’s Lawyer details as to their enquiries, investigations and conclusions.

    4.Pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for the Department for Families and Communities – Families SA be invited to intervene in these proceedings.

    5.A representative of the Minister for the Department for Families and Communities - Families SA attend on the adjourned date (1 July 2008) in order to offer assistance to the Court as to what might be relevant and appropriate interim Orders in the event that the Minister determines not to intervene in the proceedings.”

12. On the next occasion that the matter came before the Court on 1 July 2008, the Minister sent a representative but again declined to intervene.  The transcript reveals the following exchanges:-

    “MS COCKS:    May it please the court, my name is Cocks [sic]. I appear

    [sic]          for the minister.

    HIS HONOUR:  Thank you, Ms Cocks.  All right, so what has happened since last time?  My memory, reinvigorated by reading all the documents again last night, is to the effect that I had a family report of 7 May which recommended that the children remain with the father, but that if some of the issues were resolved then shared care was certainly an option.  The main obstacle to that was the parental conflict.  There were some concerns and issues about whether or not there ought to be some ordered time for the mother to have with the children and, if so, under what conditions.

    Of course with a number of concerns, which prompts your attendance here today Ms Cocks given the nature and seriousness of the allegations and the response by the department in relation to them, the court felt it needed a bit more of an explanation.  They were serious.  They weren’t investigated.  Why not, was basically the issue there.  I’m not sure whether you and the independent children’s lawyer have had a chance to have some discussions about the matter and tell me where you’re at today.

    MS COCKS:Yes, your Honour.  First of all, I’m instructed to respectfully decline the court’s request to intervene in these proceedings.

    HIS HONOUR:  That’s not a new experience for the court.  I can’t remember the last time the department ever did intervene.  However, I can only request and you always say no, so – however, we can still seek your assistance, if you’re willing to give it.

    MS COCKS: Your Honour, at this stage it’s very limited, the assistance I can offer.  I have had a brief discussion with Mr Kent yesterday in relation to what is required from the department in order to comply with the orders, in terms of providing information about the investigation.  I seek further clarification about that today; whether it’s proposed that the department provide a report or whether it would be satisfactory for perhaps a conference to occur between the department and Mr Kent, and information can be provided according to the protocols which may assist Mr Kent in the matter.

    HIS HONOUR:  Sure.  Well, of course there are a number of ways we can approach it.  The first is we try the softly, softly approach of a request under 91B.  We know what the answer is always going to be, regrettably.  It doesn’t reflect my understanding of an agreement that I reached with the department in relation to 91B requests if they’re made at a late stage of the proceedings, but that’s something I’m going to have to revisit with the people with whom I spoke.

    I acknowledge that the standard 91B request made at the beginning of all these Magellan proceedings is perhaps inappropriate and we ought to abandon doing that; but it was I thought also on the understanding that if I then subsequently made a 91B request, the department would understand I meant it and that it was serious and it needed to be considered more than just the reflex response of, ‘We don’t want to get involved’.  Now, the other thing I can do of course, I’ve got the section 69ZW power to order various reports if I want to.  I can subpoena you to come along and give evidence irrespective of whether or not you’re intervening.  You would then be a witness, of course, not a party.

    I’d much prefer the cooperative approach that we’ve been able to establish over the last four or five years through the Magellan project.  That certainly could evidence itself in a number of forms.  It could be a conference with the independent children’s lawyer and indeed with the parties.  You could, I think, have perhaps a family case conference in the matter to try and see your way clear, because there are some complex issues here.

    I understand that not all the allegations that will have been made would be true.  People lie in this jurisdiction and sometimes they simply misunderstand the signals if they’re not lying, so they in those circumstances appreciate the assistance and guidance of experts in the area.  They are the various ways and means by which I think your department could greatly assist the court in getting to the bottom of the matter.

    If we litigated on every allegation in this matter, I’d need to set aside a few weeks for the trial.  It’s quite absurd in many respects as to the detail.  I appreciate a lot of them are repeat allegations, but they’re nonetheless serious and irrespective of what the department’s view of them is, if one of the parties in an inter partes jurisdiction continues to raise them and allege that they’ve occurred, we have to embark upon a fact-finding mission for all of them.  I’m trying to find a way to avoid a several-week trial, because ultimately it’s not so much about the outcomes of the fact-finding exercise as what it is that would represent the best interests of these four children, who range in ages from about 13, I think, down to eight.  That’s what the area of concentration is to be on.  I think that can be best achieved by a cooperative stance taken by the department, the independent children’s lawyer, and I would readily invite your department and the ICL to engage each of the parties in that process when you’re comfortable with your representative positions as to what represents the children’s best interests and then perhaps branch out from there to include the others.  Does that answer the question?

    MS COCKS:Yes, your Honour.

    HIS HONOUR:  In a very long way.

    MS COCKS:And perhaps if I may request a copy of the transcript today so I can faithfully put that to the department.

    HIS HONOUR:  Indeed.  Certainly.  I make an order now that a copy of the transcript of today’s proceedings be secured at the court’s expense and provided to each of the parties, the independent children’s lawyer and the representative for the minister.  All right, thank you.  I’ll hear from Mr Boehm.  He presumably would be a little more on top of what the issues are that impact upon these four children in terms of how we proceed from here.

    MR BOEHM:     Yes, thank you, your Honour.  If it pleases, from the ICL’s perspective certainly we would welcome any assistance and cooperation on a practical level that the department can offer us in terms of identifying more clearly the pertinent and relevant issues and moving the matter forward in a cooperative approach with the department, and hopefully with the assistance of the parties. …”

    After noting the Department’s refusal to intervene and their offer to assist the Independent Children’s Lawyer in discussing the appropriate approach to be adopted in providing for the best interests of the children, the matter was adjourned to 18 August 2008 to enable that process to occur.  Very comprehensive orders to try and find a solution for the children were made on 1 July 2008 as follows:-

    “UPON NOTING:-

    (a)the father’s intimation that the criminal proceedings brought against him are unlikely to be resolved until mid-2009;

    (b)the father’s further intimation though that his legal practitioner has informed him that there would be no difficulty in him giving evidence about the factual matters which form the basis of the criminal proceedings in the trial of the proceedings before this Court;

    (c)the offer of Families SA to assist the Independent Children’s Lawyer in discussing the appropriate approach to be adopted in providing for the best interests of the children

    IT IS ORDERED THAT:-

    1.Further consideration of the proceedings be adjourned to 11.30 am on Monday 18 August 2008 before the Honourable Justice Burr, with liberty to the parties and the Independent Children’s Lawyer to relist the matter at an earlier date on the giving of three [3] working days’ notice to the others in the event that the Independent Children’s Lawyer and the parties are able to promote to the Court alternative ways and means of dealing with the issues impacting upon the children’s best interests.

    2.The representative of the Minister be excused from attendance at any further hearings in these proceedings, unless otherwise ordered by the Court.

    3.A copy of the transcript of today’s proceedings be secured at the Court’s expense and provided to each of the parties, the Independent Children’s Lawyer and the representative for the Minister.

    4.Leave is granted to the mother to issue and serve a subpoena to produce documents directed to the [M] Hospital, such documents to be produced at this Court by 10.00 am on Monday 21 July 2008.

    5.Leave is granted to the parties and the Independent Children’s Lawyer to inspect and copy the documents produced pursuant to subpoena directed to the Modbury Public Hospital, subject to any privilege claimed.

    6.A copy of the Family Report dated 14 April 2008 be provided by the Independent Children’s Lawyer to Eastern CAMHS in order to assist the counsellors in their treatment of the children [N DENNY] born […] May 1996, [S DENNY] born [...] September 1996, [M DENNY] born […] March 1999 and [C DENNY] born […] February 2000 and in dealing with the range of issues that impact upon the said children.

    7.The parties forthwith do all such things, sign all such documents and pay all such fees as are necessary to enroll at the [X] Children’s Contact Service (“CCS”) in order that the mother can spend the maximum period of time with the children that the CCS will permit or can offer UPON CONDITION that all such time spent by the mother with the said children is supervised by CCS.

    8.Prior to the first occasion to be spent by the mother with the said children at CCS and at the earliest opportunity, the children’s therapist Ms [H], or the Independent Children’s Lawyer in the event of Ms [H’s] unavailability for the task, do explain to the children the Orders made this day as to their spending time with the mother in order to prepare them for the reintroduction of those occasions.

    9.In the event that the mother also wishes to propose her parents as potential supervisors of time to be spent by her with the said children, then within fourteen [14] days of the date hereof she do file and serve an affidavit of each of them indicating their willingness to do so, indicating that they have read the Legal Services Commission pamphlet outlining the role and responsibilities of supervisors and have engaged in discussions with the Independent Children’s Lawyer in order to enable the Independent Children’s Lawyer to form a view as to whether or not they may be appropriate supervisors.

    10.The Independent Children’s Lawyer discuss with the father’s legal practitioner the issue of whether or not the matter could proceed to trial in this jurisdiction prior to the resolution of the proceedings outstanding against the father in the criminal jurisdiction.

    11.The father provide to his legal practitioner the necessary authority to speak to the Independent Children’s Lawyer in accordance with paragraph 10 of these Orders.

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

1. At the adjourned hearing on 18 August 2008 the father indicated that it was now his wish to have the criminal proceedings resolved before he was prepared to continue the proceedings in this Court for the reasons earlier explained by me.  His trial was not expected until April 2009.  In order to facilitate the wellbeing of the children the Court ordered, on the advice of Families SA, that the parties attend a “Kids Are First” parenting programme and in order to continue to build on the mother’s relationship with the children, that she spend supervised time with them at a Children’s Contact Service.  Members of the mother’s extended family were encouraged to participate.

2. Other delays in the proceedings were encountered whilst the father’s criminal trial was concluded.

3. On 14 May 2009 after trial by jury in the District Court, the father was found guilty of two counts of rape and two counts of unlawful sexual intercourse of the mother all those years ago in approximately 1993 to 1995.  Full particulars have not yet been provided to this Court.  Sentencing of the father has been set in the District Court of South Australia for … July 2009.  The father advises that he has filed an appeal. 

4. On 26 May 2009 the mother filed an application seeking orders that the children live with her.  However, when the matter was heard by the Court on 2 June 2009 the mother did not pursue that application but instead sought increased time with the children and away from the Children’s Contact Service.  She did not suggest that the children ought to be removed from the father despite his convictions.  In fact at paragraph 12 of her affidavit filed with the application on 26 May 2009 she stated:-

   “I acknowledge that it will be hard for the children to make a transition from living with the father to living with me and I anticipate that it may be necessary for me to obtain professional assistance for the children including through CAMHS and the schools that the children attend. …”

   At that time the evidence before the Court was that the 14 year old daughter N wanted to live with the father and did not want to see the mother except when she wished to.  The 12 year old son S refused to have anything to do with the mother, let alone live with her.  The parties then engaged in some discussions with the Independent Children’s Lawyer outside of the Court room and returned with a position recommended by the Independent Children’s Lawyer, consented to by the father and not opposed by the mother.  The Court accordingly made orders in the terms requested which was that the children continue to live with the father, that they spend significantly expanded time with the mother each weekend from 10.00 am Saturday until 5.00 pm Sunday, but subject to the wishes of N and S.  It was also ordered that the mother ensure that the children were at no time left alone with Mr Purdy during any period when the children were in her care.

5. Concerned for the children’s emotional state consequent upon the ongoing and lengthy bitter and damaging feud between their parents, the Court ordered that the Independent Children’s Lawyer meet with the children as soon as possible to explain the orders of 2 June 2009 to them.

6. As is known to the legal practitioners in this matter, this Court has been presented with only two options in terms of the parenting of the children.  The Court is being obliged to make a difficult choice.  One option is a father who has been convicted of the heinous crime of rape and other sexual offences against the mother some 16 years ago, but a father whom the children love, with whom they enjoy a comfortable and happy relationship, who has cared for them well and with whom they wish to live.  The father has also been guilty of seemingly focussing upon his own need for retribution at the expense of his children’s interests by participating in the sensational reporting of the children’s mother’s attempt to procure the murder of the father, press reports which depicted the children in photographs and named each of the children in the newspaper article.

7. The other choice is the mother who has been convicted and served prison time for attempting to procure the murder of the children’s father.  She is married to, and indicates her intention to remain living with, her present husband who has also been convicted and served gaol time for attempting to procure the murder of the father.  There remain unresolved very serious allegations against the mother’s present husband Mr Purdy which need to be determined before the safety and best interests of the children can be established.  It is certainly untenable presently to place the children in the care of the mother on anything like a full time basis whilst such serious concerns about her present husband remain.  There is also the question of her own methyl amphetamine use to be resolved.

8. Then to make matters worse for the children and without any apparent care or concern for the impact it might have upon the children, as recently as 14 June 2009 the mother’s present husband Mr Purdy, with the mother’s possible acquiescence, arranged for the publication of an article in the Sunday Mail which was headlined as “Pedophile granted child custody”. There is nothing by law to prevent the mother or Mr Purdy from pursuing that course and the press were certainly entitled to publish the story. They honoured their legal obligations in not naming the parties or the children or providing any identifying features which would have been in breach of Section 121 of the Family Law Act.

9. However, as I said earlier, the story provided to the paper by Mr Purdy represented a serious distortion of facts which were otherwise accurate in most of their essential elements.  Other elements were just plain false.  Quite what Mr Purdy and possibly the mother hoped to gain by arranging the publication of the article is unclear but its subsequent impact upon the children is now starkly clear.  It could not be argued by Mr Purdy or the mother that they had the interests of her children at heart when they went to the press.

10. Also, the passing reference in the newspaper article to “The mother and her current husband also both have criminal records”, as can be seen from the matters I have detailed above, grossly understates the position.  Those criminal records at a minimum are as to attempting to procure the murder of the father.  In his evidence to this Court on 24 June 2009, Mr Purdy said that he informed the journalist of the exact nature of their records and that it was the decision of the journalist or his editor not to publish the detail.

11. In his affidavit filed in support of his application now before me, the father deposes that the mother used that article in the most inappropriate way to involve the children again in the ultimate dispute and to provide it as evidence to two very young children who were in her care at that time, that their father was a paedophile.  He records that it was particularly distressing for the children and that as a consequence they are now demonstrating some extreme behavioural problems and issues at school.  He further alleges that the mother contacted the children’s school and informed them that the children’s father was a paedophile and legally should not be going near a school.  It is also his evidence that the oldest child now requires further urgent counselling.  Both of those latter two allegations have essentially been confirmed by the Independent Children’s Lawyer.

12. These allegations are yet to be fully tested but if true, demonstrate that the mother is unable to separate her children’s best interests from her own desire for revenge and retribution.  The issues in the criminal trials and in the proceedings before this Court are issues between the mother and the father.  They are adult issues.  They are not issues which should be brought to bear upon these young and innocent children.  They have done nothing wrong.  They should not be suffering as a consequence.  The Court is aware of an enormous weight of international and domestic social scientific evidence which demonstrates the severely deleterious effect upon children of being exposed to bitter parental conflict, particularly when of such an extended and protracted nature as is the case here.

13. As I stated earlier, the Court has only been given two choices in terms of who should parent these innocent and increasingly emotionally abused children.  One choice is the father who has been found guilty of the heinous rape and sexual abuse of the mother some 16 years ago and who took it upon himself to expose the children to further emotional turmoil by arranging to publicise in sensational media coverage the mother’s conviction for attempting to procure the murder of the father.

14. The other choice is of the mother who has been convicted and served a period of imprisonment of some 13 months for seeking to procure the murder of the father.  She lives with, and has indicated her intention to continue to live with, her current husband who was also convicted of seeking to procure the murder of the father and another man for which he served 482 days in gaol.  There are also the other untested allegations made against the mother’s present husband which require the Court to exercise caution before exposing the children unsupervised to his influence and behaviour.  Further the mother and Mr Purdy promoted an article in the local press which indicated a total lack of concern for the wellbeing of the children.

15. Keen to explore other options for the care of the children the Court has on at least two previous occasions requested the intervention of the Minister and at the hearing on 2 June 2009, again raised for discussion the intervention of the Minister but also enquired whether or not there was any other responsible adult or adults who could intervene in the proceedings.  The father indicated that if he is imprisoned his adult daughter and her husband may well intervene and provide another option for the Court’s consideration.   In an earlier hearing the father had arranged for his adult daughter to attend Court promoting her then as a possible option for the care of the children.  However, no formal application has yet been made by her.

16. In a further attempt to explore better parenting outcomes for the children the Court again on 17 June 2009 made a request that the Minister for the Department for Families and Communities – Families SA intervene in the proceedings and if the choice was made not to intervene, then the Court requested the attendance of a representative of the Minister at the hearing on 24 June 2009 in order to make submissions to the court as to what options might be deemed appropriate in representing the best interests of the four children.  A representative of the Minister did attend and requested a six week adjournment in which to investigate the matter more fully and provide recommendations to the Court.  A decision would then be made as to whether or not it was appropriate that they intervene.

17. If the father’s adult daughter and son-in-law do choose to intervene it will be important for Families SA and the Independent Children’s Lawyer to be in a position to advise the Court whether or not appropriate background checks have been made and whether or not indeed the father’s adult daughter and son-in-law provide a realistic and worthy option for the care of the children.  Certainly an option of that nature would likely prove far more beneficial for the children than being placed in foster care or commercial care, a situation which would likely see them separated.  Separating the children could do further harm to them.  They have been able to date to provide sibling support and care for each other.  The father has deposed that his adult daughter has already provided him with significant and important assistance in the care of the children including counselling, comfort and guidance for N on “women’s issues”.

18. If the Minister or no one else intervenes, then the Court is only left with the options of the mother or the father.  It is not able to make orders in favour of anybody who is not a party to the proceedings and who has not sought orders.  Also, consistently N has indicated she wants to live with her father and only see her mother when she wants.  S wants nothing to do with the mother at all, so the question needs to be asked, if they do not live with the father, where do they live?

19. It is to be sincerely hoped that in the very near future safe and appropriate options can be developed for the children which will assist the Court in making orders which until trial and the thorough testing of evidence, represent their best interests.  At the hearing on 24 June 2009 I again made a plea to the parties, the Independent Children’s Lawyer and the representative of the Minister to meet urgently and endeavour to develop a plan and a process which would end the bitter disputation between the parties and focus every effort on ensuring the children’s welfare.

20. I need now turn my attention to the specific application of the father before the Court.  In making my determination on that application I have had regard to all of the matters detailed by me above.  I am obliged by Section 60CA of the Act to treat the children’s interests as being the paramount consideration.  In doing that I am guided to Section 60CC of the Act which speaks of “primary considerations” and “additional considerations”.  The primary considerations are stated as being:-

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

1. Little further is to be gained by me repeating here the many relevant issues outlined above.  Suffice to say, the Court has been presented with a very difficult challenge in seeking to balance these two requirements of the legislation.

2. The additional considerations are many and varied and they are:-

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

1. The views of N and S are clear.  They wish to live with the father.  N only wants to see the mother when she wishes.  S does not want to see the mother at all.  M particularly, but also at times C, had indicated a clear attachment to their mother and wanted to see her.

(b)the nature of the relationship of the child with:

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. The relationship of each of the parties with the children is dealt with in detail above.  To expand the children’s enjoyment of extended family relations, members of the mother’s extended family were included in the CCS sessions.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. As indicated earlier, this is a matter of major concern in this case in respect of both parties but more particularly of late, the mother.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. These effects will be fully explored at trial but for now it is important to continue to strive to find a safe environment in which the children can continue to build healthy relationships with their parents and extended family members.  

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This matter is of no present relevance.

(f)the capacity of:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;

1. This sub-section highlights the challenges facing the Court and the children.  Each parent has demonstrated a significant incapacity on a number of occasions to provide for their children’s needs in these respects.  The more obvious recent failings though appear to lie with the mother.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

and

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. No matters of relevance emerge for my consideration pursuant to these sub-sections.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

and

(j)any family violence involving the child or a member of the child's family;

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. These issues have been canvassed fully above.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. It is difficult presently to contemplate how such an order might be crafted.  It is to be hoped that the criminal proceedings against the father can be resolved shortly so that the final trial of proceedings in this Court can be set and enable the Court to better craft appropriate outcomes for the children.

(m)any other fact or circumstance that the court thinks is relevant.

1. No further matters arise for consideration here.

Present application

1. Doing the best I can with this extremely complicated and complex factual matrix and competing issues which bear so significantly upon the well being of the children in this dispute and being left presently with only two options in terms of the parenting role to be assumed for these children, I deem it presently appropriate that the mother go on seeing the two youngest children.  However, I need to consider whether it ought to be in a supervised environment in order that she may not have the opportunity to continue to expose the children to the adult issues in dispute, to her own emotional turmoil and her seeming desire to demean or even destroy the father in the children’s eyes.   I will hear Counsel on that.

2. Even as recently as a few weeks ago it appears that the mother continued to distress the children by engaging them in her dispute with the father.  At paragraph 18 of his affidavit filed on 2 June 2009, the father states:-

   “on the 8^th of February 09 [Ms B] the children’s career [sic] found in [Ns] [sic] bag the mothers [sic] police apprehension report which went into great detail of the alleged 49 counts of rape of which the father was charged.  [Ms B] asked [N] why she had this report, [N] told her that the Mother had given it to her and said read what your precious father has done to me.  [N] was extremely distressed reading this and the father made her an appointment with her CAMHS psychiatrist.”

   The full truth of that allegation needs to be established but the Independent Children’s Lawyer’s enquiries of N’s counsellor tend to support that assertion.

1. The mother is her own worst enemy.  Every time the Court, numerous experts and most significantly the children try and re-establish her relationships with the children she does something entirely contrary to the children’s best interests.  Her hatred of the father and her seeming desire to achieve her own ends at any cost to the children has frequently not just clouded, but entirely overwhelmed, her judgment.  At times in the past she has appeared to understand the importance to the children of their relationships with their father and moved to support them.  Her greatest clarity on that topic was seen soon after separation when she agreed that a week and week about arrangement was best for the children despite the father’s sexual offending against her still being at the forefront of her mind.  She was at that time, but seemingly not since, able to separate her own needs from those of her children.  Maybe her judgment since has been clouded by her acknowledged methyl amphetamine use or by the influence of her new husband or she is simply unable to put her children first.  These are all matters for determination at the final trial of the proceedings and can for now only be preliminary observations.

2. I do not believe though that it is in the children’s best interests that they not see their mother at all.  Here I speak of course of only two of the four children, being the two youngest.  The eldest, by agreement still between the parties, will see the mother when she wishes to and only when she wishes to.  S refuses to see his mother and efforts need to be made, if it is at all possible, to rebuild his relationship with his mother and reacquire some trust in her.  The mother though will need to earn that trust and respect. 

3. The father also seeks a number of injunctions.  They seem entirely appropriate as additional measures to try and protect the children from being embroiled in their parents’ bitter conflict.

4. The father too will obviously have to play his part in this.   His role in making the children so acutely aware of their mother’s attempt to procure his murder and so publicly expose them to that issue both in the press and potentially privately behind closed doors, is a matter requiring serious rebuke.  I can contemplate no benefit to the children in his actions in that regard.  It is likely explained by a desire to hurt the mother, extract revenge upon her and possibly alienate the children from her.  Again, these remarks can only be in the nature of preliminary observations.

5. The Court continues to be frustrated in bringing the matter to a conclusion by the criminal proceedings which have been brought to bear against the father, the mother and the mother’s present husband, all of which have resulted in convictions.  The father’s convictions, he tells the Court, are now subject to further appeal.  It is to be sincerely hoped that for the sake of the children all obstacles are removed from this Court’s path in seeking to find the best outcomes for these children by bringing the matter to trial.

Orders

1. As I said, I will hear Counsel on the orders I should make.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  26 June 2009