Galbraith and Galbraith (No 2)
[2015] FamCA 841
•9 September 2015
FAMILY COURT OF AUSTRALIA
| GALBRAITH & GALBRAITH (NO 2) | [2015] FamCA 841 |
FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time
FAMILY LAW – CHILDREN – Where there is a finding that alleged physical and sexual abuse did not occur
| Family Law Act 1975 (Cth) | |
| APPLICANT: | Mr Galbraith |
| RESPONDENT: | Ms Galbraith |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lloyd |
| FILE NUMBER: | CAC | 1192 | of | 2014 |
| DATE DELIVERED: | 9 September 2015 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 2-5 June 2015, 31 August 2015 and 1-3 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gill |
| SOLICITOR FOR THE APPLICANT: | Farrar Gesini Dunn |
| SOLICITOR FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms J. Lloyd |
Orders
Parental responsibility
The father will have sole parental responsibility for C (born … 2004) and D (born … 2005) (“the children”).
Notwithstanding Order 1 the father will have responsibilities to notify, inform, authorise and consult with the mother as follows:
a)The father will notify the mother about any major matters relating to the children including but not limited to significant medical treatment or requirements, education and extracurricular activities. He will notify her by email, unless the parties otherwise agree.
b)The father will inform the mother as soon as is practicable after any major event relating to the children and in particular will report to her what occurred and how it affected the children.
c)The father will authorise any medical or similar practitioner upon whom the children attend (including any counsellor or therapist) to provide to the mother at the mother’s cost, and at her request, any information relating to any treatment administered to or required by either of the children. In particular, the father will not change the person upon whom D is attending from time to time without giving due notice to the mother.
d)The father will consult with the mother about which high school each of the children will attend. In particular, the father will consider the points raised by the mother about which school would be best for the children. But ultimately the father will make the decision about which school the children will attend. The father will not change the school(s) the children attend without giving the mother reasonable notice of the proposed change.
e)In relation to a dispute between the parents as to the matters referred to above, the father will have a duty to consult with the mother. If the parties are unable to reach agreement, subject to any Court Order to the contrary, the father’s decision will prevail.
f)Neither parent will enrol either of the children in any extracurricular activity without the consent of the other parent unless such extracurricular activity occurs completely within the time that the children are spending with that parent.
Arrangements about with whom the children will live and the physical time that they will spend with the other parent.
From the date of these orders, the children will live with their father and spend time with their mother as follows:
a)For a period of one month after the date of these orders, the children will live with their father and spend no physical time with their mother.
b)Thereafter, the children will spend from Friday after school on every second weekend with their mother starting on the first Friday after the completion of the one-month period referred to in the preceding order, until the commencement of school on the following Monday, unless that Monday is part of a long weekend, in which case the children will spend until Tuesday morning when they are to be returned to school with their mother.
c)For periods when the children would otherwise be on school holidays, at the end of term three this year and during the long vacation at the end of this year, the children will continue to spend time with their mother on each second weekend but the time with their mother will commence at 3 PM on the Friday and end at 9 AM on the Monday. The changeover point will in each case be outside the Shopping Centre in Suburb C.
d)Each of the parties will do all such things as may be necessary to cause the attendance of each of them and of the children upon Ms G or such other person as may be included by her into the therapeutic process described in her affidavit affirmed on 20 August 2015. The cost of such therapy will be borne by the father except that each of the parties will cooperate in ensuring that a Mental Health Treatment Plan is obtained for the children, if possible, which will reduce the cost to the father.
e)The provisions set out in order in Order 3(b) above, will from the first week after the end of the term three holidays in the year 2016 vary so that the children spend from after school on Thursday until the mother returns the children to school on the following Monday. (This is to provide to the mother some time with the children during their school activities.)
f)Commencing with the holidays at the end of term one in 2016 the children will spend one half of each school holidays with their mother, with that being the first half of the school holidays in years ending in an even number or zero, and the second half of the school holidays in years ending in an odd number. (For these purposes the time that the children spend with their mother in the first half of the school holidays will commence after school on the last day on which either of the children is obliged to attend school and will end at noon on the first Saturday of the school holidays for the three shorter school holidays and at noon on the midpoint of the longer school holidays. Where the children are to spend the second half of the school holidays with their mother, that period will commence at noon on the midpoint of the school holidays and end at noon on the last day of the school holidays before the children are obliged to attend school for the new term.)
g)If Father’s Day should fall on a day when the children are otherwise, by these orders, required to be with their mother, then the weekend time the children would otherwise be spending with their mother will take place with their father, and the weekend time between the children and their mother will take place on the weekend immediately following the weekend on which Fathers’ Day falls. (It is noted that this will mean that the children will spend two consecutive weeks with one parent. The pattern of alternating weekends will resume immediately after the second weekend.)
h)If Mother’s Day should fall on a day when the children would otherwise be with their father, then the weekend time the children would otherwise be spending with their father will take place with their mother and the next weekend and the weekend thereafter will be spent by the children with their father.
Christmas Day will be spent in accordance with the above-mentioned Orders after 2015 with the parent whose half of the school holidays it is in accordance with the Orders. (That is, in 2016 the children will spend the first half of the long vacation at the end of the year with their mother and accordingly will spend Christmas Day with her.)
j)If Easter Sunday falls outside the school holiday period then the children will spend each alternate Easter Sunday with one parent. The children will spend Easter Sunday with their mother in 2016 and their father in 2017.
k)Nothing in these Orders prevents the parents agreeing to some alternative arrangement. In particular, but without limiting the generality of the foregoing comment, the parents may agree if they wish to do so, to share the time the children have with each of them on Christmas Day and Easter Sunday.
l)If the children’s birthdays fall other than on a weekend where they would ordinarily be with their mother then the children will spend two hours (4 pm to 6 pm) with their mother – unless the parents otherwise agree.
m)The parents may consult and agree about the time (or some time) that the children might spend with each of them on each of the parents’ respective birthdays. However, if the parents are unable to agree about such an arrangement, no time will be spent by the children with the parent on his or her birthday if the children are not with that parent on that day.
Communication
The parties will share equally and pay the expenses (pre-paid or otherwise) for the children’s mobile telephones.
Neither parent will prevent or allow anyone else to prevent the children from calling the parent with whom they are not currently spending time.
The children may contact (including telephone, Skype or FaceTime) either parent at any time and each parent will facilitate such communication.
The mother may call the children on Tuesday nights and Thursday nights at 6:30 pm for a period not exceeding 15 minutes when the children are with the father.
The father may telephone the children during school holiday periods when they are with their mother at 6:30 pm for a period not exceeding 15 minutes on each Tuesday and Thursday evening.
Neither parent will solicit, or permit any other person to solicit, telephone calls to a parent or to that person from either of the children.
10. Nothing prevents the parents varying the communication arrangements as set out above by consent.
11. The mother be and is hereby restrained from attending at any school the children are attending except by prior arrangement with the father whose consent will not be unreasonably withheld.
12. Notwithstanding Order 11, the restraint order does not exclude the mother from attending ordinarily scheduled parent / teacher interviews at school or functions at school to which the parent body is invited.
13. Only the parent with whom the children are currently staying will accompany the children to extracurricular activities, unless the parents otherwise agree.
14. The children are free to communicate with the other parent by email but may not use other social media unless the father agrees that they may do so.
Other restraints
15. Each of the parties be and is hereby restrained from discussing these proceedings (or the judgment in this matter) with either or both of the children.
16. Each of the parents be and is hereby restrained from showing or causing anyone else to show to the children any document or documents from these proceedings.
17. Each of the parents be and is hereby restrained from saying unkind or unpleasant things about the other parent, his or her family, associates or partner, or from permitting any other person to do so in the presence or hearing of the children.
18. The mother is hereby restrained from taking either child for medical or psychological or psychiatric treatment or assessment or for further counselling or therapy except that which is contemplated by these orders or upon which the parties agree about prior to the commencement or commitment to such treatment.
19. Each of the parents and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of either of the children from the Commonwealth of Australia.
20. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children's names on the Watch List for a period of three years.
21. Upon expiration of the period referred to in Order 20 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children's names from the Watch List.
Other matters
22. Pursuant to s 62B and s 65DA(2), 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 document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
23. The Independent Children’s Lawyer is discharged upon the expiration of the appeal period.
24. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
25. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
26. All applications about parenting matters are now finalised.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Galbraith & Galbraith (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1192 of 2014
| Mr Galbraith |
Applicant
And
| Ms Galbraith |
Respondent
REASONS FOR JUDGMENT
FOREWORD
I want to begin by saying - and this comment is really directed more to Ms Galbraith than anyone else - that I appreciate how difficult it is to conduct a case in any court, let alone in the Family Court, as a person without legal representation. It inevitably means that some of the objectivity that comes with interposing a legal representative between the litigant and the Court is not available, and it means that in some cases the sort of experience and knowledge that comes with a lawyer is not available to a person who is representing herself.
There were instances during these proceedings where that lack of knowledge and experience meant that there was a protraction of the time that might have been spent on the conduct of the trial, however, I think in the end Ms Galbraith was successful in putting before the Court all the matters that she considered appropriate to put. It did, however, generate a couple of minor hitches during the course of the hearing, and that is exemplified perhaps in the fact that at no point did she actually challenge directly Mr Galbraith on the proposition that he had, as she asserted, sexually abused D. That was dealt with in a supplementary hearing recently.
The second introductory comment I want to make relates to the nature of evidence. During the course of these proceedings and before Ms Galbraith was consistently asserting to whomever might listen, and to some who did not, that there had not been an adequate investigation of the allegations that had been made against Mr Galbraith in relation to D. It became clear as the matter unfolded that by that Ms Galbraith was (a) complaining about the fact that Mr Galbraith had not been the subject of any police interrogation or criminal trial and (b) that, from her point of view, there had been no independent investigation of what had happened outside the Department of Family Services in New South Wales, the Joint Response Team, JIRT, and the New South Wales Police, or the ACT Police for that matter.
NATURE OF EVIDENCE – what a trial in this Court can and cannot do
The evidence in proceedings before this Court is in accordance with a standard of proof that is dictated by the Family Law Act and in part by the Evidence Act. The evidence, or the determination of issues, or matters of fact, in this Court is to be on the basis of the balance of probabilities. Most lawyers when they talk about this tend to put two hands out as if they are holding a set of scales, and talk about it as saying that something weighs more heavily on one side or the other. It is, indeed, a balancing of the likelihood or not that something has happened, and it is to be contrasted with the standard of proof applicable in criminal cases, which is that what has to be proved by the prosecution must be proved beyond reasonable doubt.
What that means in either case is not that something has to be proved to an absolute standard, because there is no absolute standard of proof, but, rather, that in the case of criminal matters where the standard of proof is beyond reasonable doubt that all but fanciful alternatives to the innocence of the accused must be eliminated. So far as a proof in accordance with the balance of probabilities is concerned this is not simply, as has been said by the High Court in the past, a mere mechanical balancing of possibilities, or an indication or consideration of the evidence without any ultimate sense of persuasion on the part of the person who is making the determination. Indeed, the more serious the allegations the more convinced the judge needs to be that something has occurred.
It is inherent in the process that I have just outlined that the Court can only operate on the evidence that is before the Court. It is that evidence which has to be evaluated, not evidence that may appear in textbooks somewhere else, or in articles, learned or otherwise, available on the internet or in other places, or witnesses who are not before the Court whose evidence cannot properly be evaluated. In the end the judge in this Court, as the finder of fact, must ultimately be persuaded that whatever it is that is asserted has occurred. And I make that comment in the light of the expectation that was previously indicated by Ms Galbraith that the matter had never been properly investigated.
PROCEDURAL BACKGROUND
This trial has occupied some seven days of hearing, being 3, 4 and 5 June 2015, and then 31 August 2015, and 1, 2 and 3 September 2015. The Orders that were sought by each of the parties in relation to the children appear in the trial books that were prepared for the purposes of the hearing and include in the case of the father - Orders that he have sole responsibility for C and D, the two children who are the subject of these proceedings. He agrees that, notwithstanding that, he would consult with and inform the mother before making any long term major decision for the children and would try to reach agreement with her about those decisions.
He seeks the children live primarily with him; that until the start of the next school year, which is at the end of January 2016, the children spend time with their mother on each Sunday from 10 am until 7.30 pm; and that from the start of the next school year the children spend time with their mother on each alternate weekend from after school Friday until before school on the following Monday. There are provisions about what happens for long weekends. He also proposes that from the end of Term 1 2016, that the Orders about weekend time with their mother would be suspended for the children and that they would spend one half of each of the school holidays with their parents.
He then sets out a formulation for determining what the first and second halves of the holidays might be and what should happen in each year. Those are fairly common provisions and are expressed in different ways. He also makes provision for special days, such as the parents' birthdays and the children's birthdays, and he also makes orders about telephone time that the children might spend with their mother. He then seeks certain restraints, which include the fact that the parties be restrained from discussing these proceedings or Orders with the children or allowing any other person to do so.
He also seeks that the parties be restrained by Order of the Court from denigrating or saying unpleasant things about each other. He seeks an Order that the mother be restrained from attending the children's school except while delivering the children or collecting them, or otherwise as agreed in writing, and that the mother be restrained from contacting or attempting to contact either of the children except set out in these Orders. He also seeks that on an interim basis, or perhaps as a preliminary basis to the implementation of those Orders, that the time that the children would spend with their mother on weekends, would be suspended for a month. That is, they would live solely with him during that period.
For her part the mother in the response filed provides a fairly complicated set of Orders. The numbering in her system went awry and this, I suppose, just illustrates some of the difficulties that self-representing people have. The essence of her arrangements, however, are the mirror reverse of the father's, in that she seeks that she have sole parental responsibility for the children, that the father undertake what she describes as a risk assessment for incestuous sex offenders, and, subject to a number of therapeutic interventions thereafter, which are set out in some detail, that if all of that works out that he might then spend time with the children every Sunday from 10 am until 3.30 pm.
And she seeks that the father be entitled to have the children telephone him once a week for 15 minutes, and she agrees, as did the father about her, that she will consult and inform him before making any long term major decisions about the children and will try to reach agreement with him about those matters. She seeks that he be restrained from attending the children's school except for some particular events such as parent/teacher interviews, and that he be restrained from contacting, or attempting to contact, either of the children. That probably covers most of the major matters.
That was the nature of the dispute before me. One of the matters which occupied an enormous amount of time (but was not necessarily the only matter that was really an issue before the Court) was the question of whether or not the father had sexually abused D. This is not a trial of a criminal nature to determine whether or not the father had been guilty of some crime or, indeed, of any of the charges that were brought against him in the course of the criminal proceedings. This is a trial about what would be in the best interests of the children, and under the Act I am obliged under s 60CA, in deciding whether to make any particular parenting Order, to regard the best interests of D and C as my paramount consideration.
I was assisted in the course of my consideration of these matters, and I note in passing that I had the assistance - perhaps it might be so called - of a significant amount of material in this case. I had two trial books, and nearly 800 pages of the first tranche of material produced by the Department in answer to an order pursuant to s 69ZW of the Family Law Act. The two trial books, which involved initially the father's material and the reports of Ms B, constituted some 270 pages, and the material relating to the mother, and some supplementary material from the Department, occupied over another 700 pages.
In addition, there were a number of pages of transcript that had been obtained from time to time and they also required some attention. I was also assisted by the provision of two chronologies, one from the father and one from the independent children's lawyer. I have, in broad terms, used those chronologies (not without question in the sense that if one of the facts stated in the chronology was not otherwise verified I have disregarded it). To the extent that the chronologies included comments that might or might not have been established by the evidence I have, in broad terms, disregarded those comments, but accepted the assistance of a complex and accurate setting out of the various dates on which different events happened, and there were many.
BACKGROUND
In practical terms there are a few points of major significance which need to be set out as background information. The parents began living together in 1995 and married in 1999. The two children of their marriage are C, who was born in 2004, and D, born in 2005. The parties separated under the one roof on 23 October 2013, that being about a month after the mother confronted the father in relation to an affair that she asserted, and he acknowledged, that he was having. The father finally left the home on 20 December 2013.
Since separation the children have lived principally with their mother except for some time when D was in foster care as a result of an Order made in the Children's Court in New South Wales. It is also common ground that since she was 18 months of age D has exhibited difficult behavioural problems, which have included extended periods of tantrums, and defiant or oppositional behaviour which has been diagnosed in a number of ways at different times.
In particular - and I make mention of these - there are five instances where D has been the subject of some assessment by: the Children's Hospital in Suburb H on 1 December 2011, as appears in pages 62 to 64 of the s 69ZW material; the J course or institution (I am not quite sure what it is) on 28 November 2012 at page 65 of the s 69ZW material; the New South Wales mental health assessment - so-called - on 6 February 2014, which appears at pages 249 to 256 of the s 69ZW material; the Children's Hospital in Suburb H again on 25 February 2014 at page 560 of s 69ZW material; and the CareSouth treatment plan at page 837 of the s 69ZW material.
What is consistent in all of those assessments, as is affirmed in the report of the single expert B, is that there is no definable mental illness in D. It is commented that she suffers, and was diagnosed as suffering, from ODD, and there was an opinion expressed that she also suffered from enuresis. I am not quite sure that is so, for a variety of reasons, but it does not bear upon the result of these proceedings.
For my part I am not entirely satisfied, notwithstanding the number of interventions that have occurred, that the medical assessment of D has been accurate in the end. Her behaviour and her complaints about intervention by, I suppose, extra or outside her body experiences through her Tweebles - which I think is a misspelling of what are known as Tweevles (with a "v") in the Bratz doll series - her recent concerns about the possibility of a dark man with an axe dripping with blood somewhere in her house, are such that, in my opinion, it is necessary that there should be some continued intervention and concern about her mental health.
Fortunately, the parties have agreed that they should seek some assistance and have agreed that this can occur through Ms G. One of the Orders I make mandates the parties' involvement and attendance upon her as set out in the affidavit affirmed, out of time but with my consent, on 20 August 2015.
CREDIBILITY
There is in this matter a significant question about credibility. In general terms I am opposed to the proposition that judges might begin a judgment by saying that, having observed the parties, listened to their evidence and considered the corroboration that might have applied to either or both of them, that one party's evidence is, in general, to be preferred over the other. It has been my experience in court cases that most people try to tell the truth according to their best endeavours, that sometimes their memories are faulty; sometimes they have a distorted view of what has happened, and sometimes they do set out deliberately to mislead the Court.
That does not mean, however, that in relation to every possible conflict that may occur between the evidence of two people in court that one ought automatically to be preferred over the other because of the way in which the other person has given evidence on one occasion. Notwithstanding that, in this case there is a serious credibility problem so far as Ms Galbraith is concerned. Ms Galbraith conceded in relation to an issue about the electronic audio surveillance of the children that she had told a lie on oath on one day of the proceedings which she then changed to a different story on the next day. I have no idea why the story changed. The person who might have explained it in some way was her mother who was not a witness to the proceedings.
Whether that was by oversight brought about by a lack of experience on the part of Ms Galbraith, or whether it was a deliberate decision, I do not know. However, the blatant example of the telling of an untruth on oath is something that I cannot entirely overlook. In addition to that, during the course of evidence I formed the impression, very strongly, that Ms Galbraith in giving answers to questions both deliberately prevaricated by repeating the question, or apparently misinterpreting the question, or asking a question in reply, or delaying her answer. That led me to believe that she was in many instances being evasive in her answers.
None of that means that I would disregard everything she says, and in many cases the evidence she gives is corroborated in other ways, which means that I can happily accept what she says, for example, about the way in which she physically cares for the children, and her devotion to her children. Both are particularly confirmed by, among other people, Ms B, who was the single expert appointed with the consent of the parties in this matter. And because it was the subject of controversy during the proceedings I wish to record in my judgment that on 15 October 2014 I made an Order appointing Ms B as a single expert in circumstances where my Order included the following notation:
Noting that the parties are in agreement that there should be an expert report commissioned from [Ms B] the following orders are made.
Those appearing on that day were Ms Bales, on behalf of Mr Galbraith, and Mr Stagg, a lawyer from the Legal Aid office, at that point, on behalf of Ms Galbraith. There is no doubt that Ms B was a single expert and was appointed with the consent of the parties. Relevantly she was not, as was suggested by Ms Galbraith, the pick of Mr Galbraith and, therefore, it might be inferred from that comment, partial towards him and not fair to her. Her reports I found of significant assistance to me and I will return to parts of them in due course.
Returning to the issue of credibility, it would be fair to say that, subject to one strange omission, which was sort of rectified before the matter came on for judgment, Mr Galbraith presented a much calmer response to questions than did Ms Galbraith. He did answer questions directly. He did say a number of positive things about his former wife and, generally speaking, he did not appear to evade the questions that were asked of him. This may be my assessment. I suspect that Ms Galbraith would take the view that he did not answer all the questions she put to him in a manner satisfactory to her.
The exception that I mentioned above related to the fact that it was only when I was in the course of preparation of my judgment that I was able to ascertain that, in fact, at no time during the course of the proceedings, either in writing or orally (so far as I can find recorded anywhere) had Mr Galbraith denied that he had sexually assaulted D. He had denied that he had physically assaulted her in ways that have been suggested, but there was never a denial of the specific allegations about sexual interference. This troubled me to some extent because it was clear that Mr Galbraith had not (as Ms Galbraith was fond of pointing out frequently) engaged in any interview with the police at any point, exercising his undoubted right not to have an interview with the police when criminal charges were pending.
It was therefore possible that Mr Galbraith was deliberately not giving evidence of the sort that I just indicated. Accordingly, I reconvened the Court for the purposes of determining whether, in fact, this was a deliberate action on his part, or whether it was an omission on his part and of his counsel in the presentation of the case. As it transpired Mr Galbraith did give evidence in the witness box, on affirmation, that he had not sexually assaulted D at any time. He was then subjected to further cross-examination (as was appropriate) from Ms Galbraith, and he did not vary from that clear and unequivocal assertion. The importance of that will become clear in due course.
PARENTAL RESPONSIBILITIES
One of the first matters that I am obliged to consider in determining what Orders I should make is to determine the question of parental responsibility. Under the Family Law Act there is a presumption that there should be equal shared parental responsibility. That presumption is capable of being rebutted in a number of different ways. In particular, if there has been violence then the presumption is rebutted. Violence has not been the subject of significant detailed evidence before this Court, although there are allegations in relation to D which were certainly aired and were the subject of contrary evidence.
However, in this matter, there can be no doubt, given the animosity that exists certainly from Ms Galbraith towards Mr Galbraith, and I suspect also reciprocated by Mr Galbraith towards Ms Galbraith, that the parties could not reasonably share matters relating to the responsibility for their children. Sharing parental responsibility requires that the parents are able to communicate with each other; that they are capable of having a discussion on a relatively rational basis about what might be best for the children; and coming to a conclusion which is going to be best for the children.
It is impossible to contemplate under present circumstances - one hopes not necessarily into the future but certainly so far - that these parents could have such an effective communication about these things. If, therefore, I were to apply the presumption and to make an order that there should be equal shared responsibility for the children is not capable of practical implementation between these parents at this time.
Accordingly, as each of them seeks that there should be one parent with sole parental responsibility, I have taken the view first that the presumption is rebutted, second, that the nature of the relationship between the parents is such that it is not possible or practicable for the arrangement to be put into place, but that it is necessary, given the commitment that both parents have towards the children, that there should be a sequence of Orders that I put in place which moderate the absolute effect that may occur where one parent is said to have sole parental responsibility.
It seems to me (I hope accurately) that in the life of most children, there are few matters which are of such moment that both parents need to come to some informed decision. I think, for example, one matter in relation to D and C in this category is the question of what high school they will attend. It is important, in my opinion, that the parents should try to reach agreement about that if they can. Common sense would dictate that the high school should be something that is both affordable to both parents, and reasonably close to both if it can be. But if it cannot be close to both parents it should be close to the parent with whom they are primarily living.
That is not to say that the parents might not seek to take into account other things altogether. For example, it is not unreasonable the parents should, if they are so minded, feel strongly about whether the school should be a private school or a public school. It may be the case that parents want their children to go to a school which has a religious background, if that is important to them. Those are not necessarily factors that I can reasonably decide on their behalf, although ultimately this Court may have to do so if the parents cannot. However, in the end it seems to me that one parent should have the right to make that decision, notwithstanding that there should be consultation and conferring about it in advance. The Orders that I will provide in due course deal with that situation.
Similarly, among the major issues that might relate to the children are questions of health and, in particular, in this case what is to happen to D, who requires assistance and has done so since she has been 18 months old. In this regard I commend the parents for reaching agreement that they would accept the advice of Ms B in her second report that the children should be engaged in a form of therapeutic intervention and through Ms G. They have agreed that they will follow the prescriptions set out in her report about how she feels this should be undertaken.
That eliminates one of the areas that might have been the subject of dispute between the parents and the fact that they have been prepared to do that is very much to be commended. That having been said, the question that would then arise is - and I mention this simply because if it should be the case that this matter was taken on appeal - whether in the circumstances there should be equal shared time between the parents for the children, and if that is impracticable whether there should be substantial and significant time, as that is defined in the Act, for the children with each of their parents.
Without elaborating, because in my opinion it is unnecessary in this case, it seems to me, for reasons explored in some length in Ms B's report, and identified by the parties in the Orders they are seeking themselves, it would not be practicable for the children to spend equal time with each of their parents. And it would not be practicable for them to spend substantial and significant time with the parent with whom they are not primarily living. However, my view about the time that the children should spend with the parent with whom they are not primarily living does not coincide with the views expressed by either of the parties and I will explain my reasons for that in due course.
CONSIDERATIONS
The matters that I am obliged to take into account in determining what is in the best interests of the children are set out in s 60CC of the Family Law Act and these are divided into two categories. The first category are referred to in the Act as “primary considerations” and they are: (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, from being subjected to, or exposed to, abuse, neglect or family violence. The Act was amended in 2012 to give predominance in the consideration of those two so‑called primary considerations to the matters set out in paragraph (b) – that is, the protection of the child from physical or psychological harm.
THE ALLEGATION OF SEXUAL ABUSE
There then follow a series of additional considerations which I will turn to in more detail in due course, but that which has been a primary focus during these proceedings is brought immediately into consideration and focus in a consideration of the first primary matter that I must take into account. That is the need to protect the children from physical or psychological harm. There are a number of aspects of this matter which need consideration, but the one that tended to be at the forefront of the mind of the mother in particular, and indeed of all the proceedings, was the question of whether or not the father had been involved in sexually abusing D.
In this regard I return briefly to the matters I set out above about the nature of the evidence and how it is to be considered. It is not my part or ability to be able to see into the souls of people to determine the truth of the matter, and I am obliged by law, and by my oath, to make a determination according to law, and in this case that means according to the evidence that is before me.
In this regard the evidence before me in relation to the allegations against the father began with the interview that took place on 23 December 2013 when D was interviewed. That appears in the material from the s 69ZW report at pages 414, through to 428. It includes, though in a somewhat confusing way, the handwritten notes of the interviewer of D and a printed summary. Notable among the allegations made is that until the interviewing officer had actually asked a specific, and in legal terms, leading question, "Someone told me that you spoke to them about daddy touching your vagina" - that question arose out of the blue in the course of the interview and is, in legal terms, a leading question because it suggests an answer and directs the witness's, in this case D's, attention to a specific matter. D then gave some evidence about what she said occurred. The fact that it was a leading question was, in fact, noted in the file note record on page 415 of the material. It is there recorded as follows:
As there was no disclosure at this point JIRT officer stated, "Someone told me that you spoke to them about dad touching your vagina. What can you tell me about that?"
Taken alone, the evidence then given may or may not have constituted a reasonable basis for concern and consideration or investigation. The fact that it was elicited by a leading question does not entirely assist, but it is only part of the story in this particular matter. Before I leave those allegations I want to point out, however, one other matter which constitutes an improbability which reduces the believability of the comments that were made. On page 415 the reporter records this:
[D] said that her father takes her and [C] up to bed and while [C] is brushing her teeth her father touches her with both hands on her vagina area outside of her undies.
The improbability of such an event occurring in those circumstances is, to say the least, a factor that needs to be taken into account.
On 24 December at page 309 and following of the s 69ZW material C was interviewed as well and in the course of her interview C said this at question 139 on page 321. Question, "You mentioned that you brush your teeth and go to the toilet. Tell me more about that." Answer, "Um, we go into where our toothbrushes are, which is in my mum's, um, bathroom. We brush our teeth and go to the toilet there." Question, "And is that before or after dad says goodnight?" Answer, "Before."
Question 141, "And does dad ever say goodnight to you when you are on your own?" Answer, "Um, when we're at [I Town], yes." And at question 143, "So when you are at home in your [Suburb K] house, um, does your dad ever say goodnight to you when you are on your own?" Answer, "Um, no." Question, "Does your dad ever say goodnight to [D] when she's on her own?" Answer, "I don't know."
That evidence does not support the contention that there was a problem. However, that was but the start. That having occurred on 23 December, almost immediately afterwards (according to the record of the mother in reporting to different authorities) on about 4 January, D said to her mother that what she had said to the JIRT interviewer was not correct, and, in fact, a further interview took place on or about 30 January in which the following exchange occurred:
What have you come to talk to us about today?
[D]: About the lie I did. Daddy didn’t do all the things I said I did. Just wanted to teach him a lesson for cheating on my mummy.
Questioner:Tell me more about the lie.
And the answer was:
[D]: Told you he touches me in the rude parts, but I only said that to get him into any trouble.
Questioner:Anything else?
[D]: Chucking me about the room and pulling me by the hair is not true.
Questioner: Tell me more about touching on the rude parts.
[D]: Daddy didn’t do it. He just tickles me on the tummy because that is where it tickles the most. He knows I’m ticklish.
Questioner:Anywhere else?
[D]:Sometimes on the feet.
There was then a question about some of the bruises that had occurred, and in answer to a question from the JIRT officer:
Why did you say it about bruises?
the response from D was:
Annabelle was whispering in my ear.
Annabelle, it appears from the material, was one of the two Tweebles as referred to by D – but I presume Tweevles. She is the bad Tweevle or Tweeble.
She was also asked on page 54 of the s 69ZW material – the inconsistency with the numbering was a feature of the material provided by the Department and not by any ordering that I have conducted of the papers - as follows:
Has anyone told you to tell us that? That is, that your daddy touches your pisda?
(which is – I am told – the Polish word for vagina, or perhaps for vulva – I am not sure which) to the question of:
Has anyone told you to tell us that?
The answer was “no”. Question:
Anyone told you to tell us that it wasn't true?
Answer:
No. I want to tell the truth. I don’t want to tell a lie any more.
She was also asked:
You said that your dad had choked you.
The response was:
It’s not true. Most of it’s a lie.
Question:
What is not a lie?
Basic all – all of it but the tree hug is true, so he can stop me.
Tree hug was a practice that was recommended by the J group who recommended that, in times when D became uncontrollable, I gather that she was to be hugged closely to a parent in an effort to provide comfort and immobilisation. This practice has been decried by the father who said in his interview with Ms B that it was an ineffective and inappropriate practice. But there can be no doubt that it was something that was agreed and recommended during the time it occurred.
I have left out a particular part of January and I will return to it in a moment. I will complete the formal part of the interview.
On 30 January, there was also an interview with C by JIRT and, in the course of that interview, which begins at page 286 of the s 69ZW material, the interviewer said this to C:
[D] said that she lied. Tell me more.
[C] said:
She said she wanted to get Dad back but didn’t think he would get in so much trouble – wanted to get him back for having an affair. She said it when we were in Melbourne. We were staying at the zoo in a swag. She said, “I think I told a lie but didn’t think he would get in this much trouble”. We all got out of the swag because we wanted to have a proper conversation about it, then [D] explained to us; she said, “I think I told a lie that Dad was touching me in those areas. I wanted to get him trouble but not this much trouble.”
THE JANUARY INCIDENT INVOLVING THE MOTHER
Now, the interesting part about this was that during the course of January, what happened was this: The father had been required to attend at the L Town Police Station and was then charged with 32 counts of assault, indecent assault and aggravated assault, and C had spoken to her father on the same day about D, saying that she wanted to pay her father back for hurting her mother and cheating on her. The children and their mother returned to Canberra from Melbourne on 15 January, and Ms Galbraith took the children to see a counsellor on 16 January.
On 17 January, the mother took the children to see a DoCS counsellor and, in the course of that session with Ms M, D retracted her claim of physical and sexual abuse by her father. On the following day, on 18 January 2014, I am satisfied and find that Mr Galbraith received a telephone call from C at about 9.18 pm. I am satisfied and find that C was distressed and that she told her father that her mother had threatened that she would commit suicide. C is alleged to have said (and I accept that she did) that her mother had some beer and that she – C – had seen a pill bottle and she thought that her mother had taken some pills.
It appears that the father sensibly made inquiries about the nature of the pills and ascertained that they were unlikely to have caused any serious consequences for the mother. They were – the mother says and I accept – vitamin pills. The father suggested (and, again, I accept this occurred) to C that she should call the ambulance, and he in turn called triple 0 later on and was informed that the ambulance had already been communicated with by C. The ambulance arrived. The mother resisted – if I can put it that way – a suggestion that she might need to go to hospital, but she was taken to hospital involuntarily and was then – in the words of one of the reports – “scheduled” overnight, but released the following day.
Now, what happened in relation to the time that she was with the police was this, and I am now reading from the same material commencing at page 226. The report from the Department is as follows. This report was not the subject of any particular testing under cross-examination and I accept that, to some extent, diminishes the weight that might be given to it. Nevertheless, it is a report that was made at or about the time that the events occurred and therefore is entitled to be accepted broadly as a matter of common sense and as a matter of appropriate evidence, both under division 12A of the Family Law Act and under the Evidence Act as representing a reasonable summary of what occurred - subject to the qualifications I have indicated.
On 19 January 2014, a risk of harm report was received. The report stated that the mother, Ms Galbraith, had been brought to L Town Hospital overnight by ambulance and had been scheduled under the Medical Health Act. The reporter said the ambulance was called to the home by one of the two children in the home. The child reporting seeing Mrs Galbraith taking tablets and the concern was that she had overdosed. The reporter said that when the ambulance officers arrived at the home and did an assessment of the situation, they could not find any evidence to suggest the mother had tried to overdose or to self-harm.
The police were called, as Mrs Galbraith was behaving erratically, and she was taken to hospital with the children being left in the care of the paternal grandmother – that is, Mr Galbraith’s mother – who had arrived at his request to look after the children. Nothing I might say in relation to this incident so far, reflects inappropriately upon Mr Galbraith. It equally does not necessarily reflect badly upon Ms Galbraith, but it certainly does not – as she suggested – constituted some inappropriate act on his part.
The reporter said that Mrs Galbraith appears symptomatic of obsessive-compulsive disorder but there had been a number of significant family changes/stressors in her life in recent weeks which she appears to be completely overwhelmed by. She – and I paraphrase –was looked at, medically cleared to leave the hospital and refused to undergo a follow-up assessment with mental health. Significantly, it was reported – bearing in mind this is some days before there is an interview between the police or the JIRT officers and the children:
[Ms Galbraith] said that she no longer wants to or can care for the children due to their “lying/manipulative ways”.
It was reported that:
[Ms Galbraith] had made threats to take the children down to the police and leave them there. On 19 January, JIRT received a copy of a COPS event from the police regarding the which [sic] occurred on 18 January 2014.
There were a number of matters mentioned which conclude as follows:
On arrival at the location, police spoke with nine year old [C] who stated that [Ms Galbraith] had taken pills and stated, “I have had enough, I can’t take any more”. [Ms Galbraith] was found seated against the fence behind a shrub. Police attempted to communicate with [Ms Galbraith] but she refused. The police looked around the house and could not locate any pills. When questioned, both children stated they were concerned about [Ms Galbraith] as she had stated, “she was going to drown herself in the bath”.
Further down the same page, 226:
On 20 January, during a home visit, [Mr N] is reported as having asked Ms [Galbraith] why the girls would make something like this up. It is reported that [Ms Galbraith] responded, “She said that that’s what they do. They lie.” [Mr N] explored with [Ms Galbraith] the fact that the girls may have been legitimately worried about her and they may have been doing what they felt was the right thing to do. [Ms Galbraith] was not accepting or open to considering this possible version of events.
It goes on to say that:
[Ms Galbraith] said that the girls always tell lies, especially [D]. [Ms Galbraith] said that two days before, when they went to Melbourne, [D] said that, “Most of what she said was not true”, referring to disclosures of sexual and physical abuse by the father and that she wanted to pay Daddy back.
On page 227, it is reported that:
[Ms Galbraith] said that [D] has lied many times before and played a recording from her phone that she said [D] made. The recording was dated 25.5.2013. [Ms Galbraith] played the recording and, in it, [D] could be heard saying she hates her mother, thinking she is a “fucking arsehole”, “needs to get nicer”, “she bes mean to me”, “fat like an oompa loompa”.
(I do not quite know how the extraordinarily slim Ms Galbraith could be so regarded but nevertheless.)
In the recording, she also accuses Ms Galbraith of strangling her and dragging her up the stairs. Mr N observed that it sounded as if D was reading from a page of written words.
Another recording was played in April 2013 in which D could be heard saying, “I want to kill you all”, and both Ms Galbraith and Mr Galbraith could be heard responding to D, telling her that she could not do that.
Ms Galbraith said that when D was four years and three months old, following a bath, she said, “I really hate you all. I’m going upstairs, get a ladder, get a suitcase, kill you all, chop you up into little pieces, put the pieces in a bag, take it down to the post office and send you away.”
Ms Galbraith said – it is reported, – “Is this normal for a four year old?”.
It is also reported that on 23 January 2014 that the mother, having refused further medical treatment, said as follows:
I’ve seen the light. I know what I have to do.
She said:
I need to walk away and the children will have to go into care.
Now, those matters are not put forward to demonstrate anything more than that, at that time in January, it is clear that not only was D saying that she was telling lies, but her mother was saying that D was telling lies. And in circumstances where, at that point, there was no particular reason to suggest that might not be so. Moreover, C was affirming that D had told her that she was telling lies. Those matters would suggest that the evidence that had been given on 23 December was significantly to be doubted so far as D is concerned.
DEPARTMENTAL INTERVENTION
The situation then ensued that the Department determined (after considering the matter) (and I will not go into all the details; although I am sure they are of considerable concern and worry to Ms Galbraith) that it would be appropriate in the interests of protecting D that she would be removed from her mother and placed into foster care. This was not something that – notwithstanding the comments that had previously been made and which I have read out – that
Ms Galbraith agreed with. In fact, D remained in foster care for some time, and, during the time she was in foster care, there were some problems about that.
This is a time where Mr Galbraith is not present and Ms Galbraith says – and I accept that this is true – that she did her utmost during this period to ensure that C continued to see her father on a regular basis notwithstanding the events that had occurred. This is, I might add, also consistent with what the mother had said was her belief, that D tells lies and that, in the circumstances, what she complained about regarding her father was not true. During the time that D was in care, the mother was offered, on a number of occasions, opportunities to spend time with D in supervised circumstances.
It must have been very galling for Ms Galbraith to be required to undergo that degree of supervision, and it must have been very unpleasant for her for that to occur. But the short answer was that she did not really take a great deal of care to take advantage of what limited opportunity she had. And, in fact, at page 457 of the s 69ZW material, in a report from a person called Ms O to Ms P, the following phrase appears:
[Ms Galbraith] stated that her priority was now [C], and she had activities every day after school. I -
(that is, Ms O –)
suggested that contact with [D] was also a priority. [Ms Galbraith] stated she would not be attending any supervised contact with [D].
To conclude this episode, a judgment on 7 April 2014 was pronounced by Magistrate Bone which meant that, in fact, D was returned to the care of her mother and certain additional conditions were imposed. The judgment, with respect to his Honour, is not entirely helpful. It does summarise some of the material relating to what has occurred but makes no findings that are of any particular assistance to me in these proceedings.[1]
[1] Upon settling this judgment I realised that the judgment of Magistrate Bone I referred to was not that causing the return of D to her mother. However, nothing turns on that alone.
Now that D was back with her mother, the situation again took a different turn. What occurred this time was that there was now a retraction. D now said that what she had previously said was true the first time and that when she said she was lying, she was in fact lying on that occasion.
The difficultly with this sequence of events is that I do not have a proper record of the interview that occurred. For some reason, notwithstanding the thousand-odd pages that have been received from the Department, the record of the interview with D on this occasion is not available in its original form. However, a report of the interview does appear at page 188 of the first s 69ZW material, and it explains a little about the way in which the Department and the police were proceeding, and I quote:
In regards to this current report –
that is, the report from D that what she had previously said on
23 December was true and that what she had said in January was not true –
a JIRT case meeting was conducted on 8 August 2014. JIRT police advised they will not be participating in a JIRT investigative interview of [D] at this time. The criminal prosecution in this matter will not be reopened due to lack of credibility of the child/victim and witnesses. The fact that the child/victim has already been formally interviewed by JIRT twice in the past and the consideration of the child/victim’s health and general safety has been addressed and is paramount at this time. JIRT CS case workers interviewed [D] on 14 August 2014. She stated that everything that she originally disclosed in December 2013 was true and disclosed that she had been physically and sexually abused by her father, [Mr Galbraith].
I pause to note that – as I said – I am without any benefit of the original terms of the interview so I am not sure in what way that was elicited or the context in which the words were used.
The report goes on as follows:
There are serious inconsistencies in the details and context of the disclosures made by [D] in her initial disclosure and her second disclosure. There are also inconsistencies in detail and context when analysed in conjunction with the witness statement given by [Ms Galbraith] and the interviews of [C] about the same events and allegations. In the JIRT interview 23.12.2013 [D] said that nobody touches her vagina. Later, when a leading question was asked, she said that her father touches her vagina every night and “puts it up there”. [D] has never said the words “puts it up there” in any subsequent interview. On 23 December 2013, [D] said that her father touches her vagina while [C] is brushing her teeth. Information provided by both [C], [D] and [Ms Galbraith] –
(being Ms Galbraith –)
is that the girls sleep in their mother’s bed, brush their teeth in the ensuite. In the interview on 14.8.2014, [D] says that her father touches her vagina on the outside of her clothes, that she is in her school uniform, and that it happens in [C’s] bedroom and that her father has locked the door.
The next reference in this report is, in fact, incorrect but I mention it for the sake of completeness:
On 23 December 2013 –
(That is in the first disclosures –)
[D] says that she was physically assaulted by her father in her bedroom. In her witness statement to the police, [Ms Galbraith] –
(that is, Ms Galbraith –)
talks about the same incident having occurred entirely in the kitchen.
That is not, in fact, correct but it probably does not affect the rest of it. The report goes on to say:
[C] says that [Mr Galbraith] has used the tree hug technique with [D] in her bedroom but that this has only happened about five times. [D] says it happened 20 to 30 times. There is also concern regarding the language used by [D] during the interviews which is more consistent with language that would be used by an adult and, more specifically, [Ms Galbraith]. [D] has stated that her father has “basically destroyed my life”.
Given that that constitutes the only real evidence I have in relation to that interview, it is difficult to argue with the conclusions reached by the police in relation to the matters that they had to take into account, which is that if they were to proceed with the prosecution, it would be necessary to demonstrate that Mr Galbraith was guilty beyond reasonable doubt.
The original statement by D – including its improbabilities – the inconsistencies with the corroborative evidence of both Ms Galbraith and of C, the subsequent retraction – unequivocal retraction – both to her mother and sister and then subsequently to the police would, in themselves, create a serious doubt in most criminal proceedings.
The reaffirmation of the original complaint but in terms which were, at least in part, inconsistent with the original complaint (even allowing for D’s age) is such that it could not reasonably have been expected by the police that any prosecution would have been successful in accordance with the standard of proof that was referred to previously. For their part, their role being to investigate and to take steps to ensure the safety of the children, the Department had acted after the first set of allegations and after the incidents relating to Ms Galbraith that I have referred to previously.
They had taken steps to ensure D’s safety in the short term, and the court had eventually released D back into her mother’s care, with the magistrate commenting that there was no reason to suppose she could not look after her daughter physically well.
EVALUATION
So far as the father is concerned, the evidence that is before me is to be considered by me in accordance with a different standard - as I suggested previously. It is necessary that I should weigh up the evidence for and against the fact that the allegation had occurred.
The evidence against something occurring in this way is, first, the unsatisfactory nature of the evidence given by D in the first place, her retraction, and the unsatisfactory nature of the second lot of evidence she gives or allegations she makes.
Against this is to be set – and this is why I was so concerned about what I thought may have been a deliberate omission by the father – the affirmed evidence of the father that he did not assault D. If that had not been before the court, it would be reasonable to say that the evidentiary onus of proof had not been satisfactorily discharged in way or the other.
That is not to suggest that the father has an onus to prove his innocence in this respect or to prove that he did not do anything. It is simply the case that if he had not denied the allegation the “evidence” may well have prevailed.
In addition, however – and it is not to be in any way suggested that this was not of particular importance – are a number of other factors. In the course of her two reports, Ms B paid particular attention to a number of factors relating to these issues, and I quote first from her first report in which she says as follows (and it deals with a number of other matters that I will come to in a moment) at page 27 of Ms B’s first report at page 59 of the first trial book, from line 1320 and following:
Given the complex and significantly dysfunctional family system, in my opinion, it cannot be established from a psychological perspective that [D’s] behaviours are directly attributable to sexual or physical abuse perpetrated by [Mr Galbraith]. JIRT acknowledged in an October 2014 case management meeting that there was also a lack of credibility with the child victim and witnesses. They went on to note there were serious inconsistencies in disclosures made by [D] and inconsistencies between witness statements given by [Ms Galbraith] and [C] about the same events and allegations. In addition to this, the Galbraith family were consistently engaged with [Dr Q] at L Town CAMHS throughout the time of the alleged abuse and her notes do not reflect any reports of abuse. Further, she recalled [Mr Galbraith] and the girls as having a positive relationship, with him being the more emotionally stable of the two parents. [Mr Galbraith’s] psychological profile is not consistent with those of sex offenders and his developmental, occupational, legal, stress coping and substance use history would suggest he does not experience uncontrollable anger.
The second report also concludes that none of the events or assessments of
Mr Galbraith would support the proposition that he was either likely to be or a person who would have perpetrated the events referred to.
Summarising those matters, although D had been under assessment on the five occasions to which I have referred previously, two at least occurred during a period where it might reasonably be inferred on a time scale that he had assaulted her if he did. When she was under treatment by Dr Q there was no suggestion of any intervention by the Department. There is no report from anyone, including Ms Galbraith, that before December 2013 D had said anything to anyone about this – including, it would appear, her sister. We have the assessment that none of the events or none of the matters that are raised as being perhaps corroborative of Mr Galbraith’s propensity for these matters is likely to be determinant.
In this regard, I draw attention specifically to a number of matters which were particularly put forward by Ms Galbraith which she said, consistent with her researches on her own behalf, were indicative that something inappropriate had happened. I should add for the sake of those who are not parties to these proceedings that after the second disclosure by D, the mother now firmly adopted D’s position and has the implacable view that the father has sexually assaulted D.
The mother instances the fact that the father had been viewing pornography. Interestingly, the father denied that a swag of pornography that was produced belonged to him or was stored, as had been suggested, in his daughter’s bedroom. This seemed an extraordinary allegation, but, in any event, Ms B concluded that none of that was consistent with any deviant sexual behaviour or, more particularly, any paedophilic tendencies or desires.
Equally, his involvement in an affair and having selected his partner via the Ashley Madison site is not something which was regarded by Ms B as being determinative or, in fact, indicative that anything was likely to have occurred.
His profile, she concluded, was not such as would call into question or give rise to a concern that he had in fact assaulted indecently his daughter.
In addition, in the course of cross-examination of Ms B, Ms Galbraith suggested that Mr Galbraith had an obsession with the singer Britney Spears and had constructed a “shrine” for her. (There was a picture of the shrine included in some of the material.) This was dealt with at page 279 of the transcript on 5 June 2015, and she said this in answer to a question from Ms Galbraith as follows:
Can you please provide your opinion about [Mr Galbraith’s] obsession and shrine with Britney Spears of 18 years worth?
The answer was:
So [Mr Galbraith] reports that it was a shared interest the two of you had, and that – so I can only – I don’t know what’s true, whether it’s what you’re saying or he’s saying – their collection. I think we had photographs of her after he had left the house, so that was what he told me, that he had nothing to do with it. The fact that he left the house and it was still there suggested, you know, from his perspective, it really wasn’t about him.
Ms Galbraith responded:
All right. So are you – are you suggesting that this collection is mine?
Answer:
I don’t know whose it is. If you’re asking me if I’m concerned about his sexual deviance, then, no, I’m not concerned about that. I did a full assessment and there was nothing else in the assessment, or there was nothing in the assessment that would lead me to believe he was sexually deviant or had paraphilic tendencies.
Ms Galbraith then asked this question:
As I recall – I might be testing my memory here, but I thought, there, you stated in your report that there was no such assessment for sexual offenders and you could always only -
to which the answer was:”
There’s no such measure.
Sorry.
Ms Galbraith:
So that’s a psychological test. That’s what I’m referring to, but we don’t do a test. We look at other indicators. So we ask questions about other personality traits or about substance use, for instance. Yes.
So Ms Galbraith then moved to pornography:
So you’re aware of the pornography that he was using?
Answer:
So, from memory, I can’t remember him or you talking about anything about pornography that would raise a flag with me. I don’t think it’s unusual for men to use pornography or for people to use pornography. That wouldn’t necessarily raise a flag with me.
And in answer to a further question, she said this:
I questioned him about his pornography use and there’s nothing in his responses which made me think he was sexually deviant.
So taking all of those factors into account, weighing in my consideration the nature of the evidence before me, listening to the evidence of each of the parties, considering the nature of the allegations made, I have to say that in this matter I cannot be persuaded that the events as described – however they may be categorised – by D took place. In fact I am satisfied with the reverse of that.
I find, on the balance of probabilities, that the sexual assault on D did not take place, and I am satisfied to the extent of being properly persuaded by the evidence that is the case. I have gone to some lengths to explain all of those matters because it seems to me that it is very important that the process of my thinking about these matters should be made clear.
I do not want it to be thought that I regarded this matter as a trial as to whether those events happened or not, but I do think it is important that what was a significant issue before me should not be seen in any way to have been overlooked by me in my considerations.
As a consequence of that finding, I do not believe that there is any evidence that there would be any unacceptable risk imposed on the children if they were to spend time with or even to live with their father, or of their being subjected to abuse, neglect or family violence.
However, that is not the only part of that particular consideration that I have to take into account. There is no doubt that part of the difficulty associated with this matter is the ferocious defence by Ms Galbraith of her children. While, in many respects, that is to be commended, the obsessive nature of that defence that generated difficulties in relation to the children. As was put by Ms B in the course of her evidence, she – Ms B – had no doubt whatsoever that the children had been significantly influenced by their mother – not necessarily coached although, in her report, she does used the word “coached”.
The conclusion that she reaches in relation to that matter is that if the children were to remain living with their mother, there is an almost inescapable conclusion that their relationship with their father will no longer be capable of being maintained.
As I interpret the evidence of Ms Galbraith – and I have had the opportunity of seeing her in court over a long period; longer than, in fact, any of the people who have had the opportunity of assessing her professionally – this is not, inconsistent with the statements by Ms Galbraith that she believes the children should have a relationship with their father.
I believe that intellectually, that is exactly what Ms Galbraith believes. I think that emotionally, protectively and instinctively, she cannot agree with herself on that conclusion. That is, although I think intellectually she believes it should happen, I do not think that she is capable emotionally or otherwise in allowing it to happen for whatever reasons. It is not my part to speculate as to the reasons that she may or may not have had for the firmness with which she adopted the second disclosure on behalf of D or the almost impenetrable barrier that she puts against the possibility the children might want to or be able to spend time with their father.
And I am satisfied from the evidence that not only has she put barriers in the way but she has also, in fact, in various ways – not necessarily deliberately – dissuaded the children from wanting to have any time with their father. In this regard, the Response that was filed by the mother (which appears in the second trial book at page 26) in which she sets out the conditions on which she sees it to be possible that the father might resume a relationship with the children. I quote them because I think they are important. She says (and these are not necessarily grammatical and I am not being critical for that reason) that:
The allegations and untested nature of sexual abuse and physical abuse toward [D] by her father; the allegations of physical abuse, emotional abuse and lack of parenting by the father see the children’s anxieties and fear about seeing their father and the past and current relationship the children have with their father in effect cause her to seek the follow orders:
That she have sole parental responsibility.
And the next order is:
That the father undertake a risk assessment for incestuous sex offenders.
When I asked Ms Galbraith what she meant by that Order, she was unable to explain that to me, and it seems to me that this was deliberately inserted by her into the Orders she is seeking as a barrier which was not capable of being overcome by Mr Galbraith.
I know that is not what she said in answer to her question to me but, frankly, in this instance, I do not believe her answer.
The second step was following any positive results of that Order, “the father seek and receive appropriate treatment prior to any unsupervised visitation is ordered.” Again, leaving aside the grammar, which is irrelevant, it appears that there is to be a risk assessment by an unnamed and unnameable person and, presumably, if it was positive in some way, the father was to receive treatment, although it does not follow that if it was positive, that he would need to seek treatment because he would not be seeing the children.
So, again, I see no basis for this particular intervention and see it only as a barrier inserted for the purpose of preventing the relationship between the children and their father.
After that, she seeks that on 2 September, which is now a week gone – the children attend therapeutic visitation with their father entailing supervised therapy sessions together once a week. After a clearance (from the risk assessment) after treatment we then have this session, (or perhaps it is parallel but, either way) there then be (subject to a positive outcome of the treatment referred to above) the children attending supervised visitation with the father every Sunday from 10 am until 2 pm. And that if there is a positive outcome of one of the preceding things – and the numbering is strange, so I cannot work out which it is – the children might then spend time with their father every Sunday from 10 am until 3.30 pm based on the children returning to their mother for current tutoring requirements.
Now, the bottom line of this is that these Orders have not been well thought out under any circumstances. Apart from anything else, having the children involved every weekend with seeing another parent is not a satisfactory arrangement either from the parent’s point of view or the children’s point of view because it means that neither parent will ever have a whole weekend with the children and I do not consider that was the likely result that had been expected by the mother in these proceedings.
I form the conclusion from those matters that this is, in fact, on her part, a further indication that she wanted to put a barrier in the way of the children having a relationship with their father. This is a barrier which has been found to be unjustified by the allegations that were made about his purportedly sexually abusing D.
I am satisfied that the mother is not entirely motivated only by those matters but by what she perceives as the father’s failure properly to care for the children and, in this regard, to not spend as much time with the children as he might have. She subpoenaed documents and put to the father in cross-examination that he spent more time away doing his sea rescue work than he did spending time with the children.
Unfortunately – and this is another instance of one of the difficulties associated with self-representation – the cross-examination on these matters was not conclusive so far as demonstrating that this was in some way, on his part, an activity designed to avoid spending time with the children. Against this, needs to be said the fact that this matter has been continuing now for some time and the father has persisted in circumstances where others might have given up, given the nature of the response from both the mother and from the children to the time that they might spend with him.
I am also unsatisfied that the father is not capable properly of looking after D. There is no doubt that D is, by any measure, a difficult person to look after. In this matter, for my part at least, almost unprecedentedly, I have material from the parents which extraordinarily initially recorded several of the tantrums that D was undertaking and which implicitly recorded what each of the parents was doing in relation to those tantrums.
It is said that the family agreed that the tantrums would be recorded for the purposes of ensuring that the counsellors would know exactly what the parents were up against and, having spent some hours on one afternoon during this trial listening to the perpetual screaming of D over the time that a tantrum was occurring, I can understand why the parents would want the nature and extent of the tantrum to be known.
However, what was noticeable during that period was that the father, except at the very end of the various recordings that were made, had maintained a very calm approach to dealing, and patient approach to dealing, with D. It was not effective but it was calm. In contrast, in the evidence given, interestingly enough recorded by Ms Galbraith but on a video camera, on a subsequent occasion it appeared that far from being calm in dealing with the tantrum, Ms Galbraith was almost provocative.
It appeared to me, and I may be completely misconstruing the videos that I saw, that on the two videos where D was being filmed, D was taking grievous exception to the fact that she was being filmed and, in fact, the tantrum was almost exclusively devoted to the fact that was occurring. That did not in any way inhibit the continuation of the filming by Ms Galbraith, and, in fact, on one occasion where D hid herself in a pantry and closed the door, Ms Galbraith pulled open the door so she could continue filming her.
I cannot say from the evidence that I have from the parties themselves, independent of what each of them might say, that it is more likely than not that the father is going to have more difficulty in caring for D during the times of her stress than the mother does.
While I am talking about the tantrums, it is evident from almost all the reports about D that her tantrums seem to be exclusively associated with her parents and not with anyone else. Now, that may not be the case but it appears from the reports from the school, the reports from Ms B, the reports from DoCS, the report of Dr R which is annexed to the affidavit of the mother that while D was with her foster parents, she was largely under control.
Now, I do not know whether that means that her tantrums are being generated or were generated by the conflict between her parents. I do not know whether it is generated by something else in her life but it is noticeable that the two tantrums that were the subject of video recording occurred at a time when the father was not in the house and it was the mother, in fact, who was there and who was filming the tantrums. It cannot be said then that the tantrums are necessarily father-centred or related or caused as opposed to family and family instances.
For those matters, therefore, it seems to me that there is a potential risk that if the children remain living with their mother, that there will not be a proper relationship between them and their father. In this regard it has occurred to me, and I did give very serious consideration to the prospect that it is probably more important for the children that they live a relatively calm, clear, fruitful life rather than necessarily having a relationship with both parents because, after all, the Act does not say that it is important that the children have a meaningful relationship with both parents but, rather, that the Court should take account of the benefit to the children in having a meaningful relationship with both parents.
OTHER CONSIDERATIONS
And I did give consideration to the proposition that even if the mother were deliberately or otherwise intractably opposed to the children spending time with their father, that it might be better for them to be removed from the situation of conflict by not seeing their father so that they had at least one parent who was a stable person in their environment. However, that consideration needs to be taken into account in conjunction with the other matters that I am obliged to consider and that I will now turn to as briefly as I reasonably can.
Matters that I am to take into account include the views expressed by the children. As was commented by Ms B in this matter, there is no doubt that the children have a very strong view that they do not want to live with their father. They want to live with their mother. There is no doubt that they have expressed to her a very strong view that they do not want to see their father. These are factors which need to be weighed in the context of the maturity of the children and the circumstances in which they may have acquired those views.
I am satisfied, having listened to the mother’s evidence, having listened to the father’s evidence, having seen the videos and listened to the sound recordings that I have, and having accepted, as I do, the evidence of Ms B about her assessment of the parties, that there is no doubt that this attitude on the part of the children is at least in part, if not substantially, generated by the mother and that she is responsible for the attitude that the children take.
In this regard, I draw attention to page 281 of the transcript of 5 June 2015 where the following question was put to Ms B:
[Ms B] is alleging in her report that I am coaching her, coaching [D]?
That is the question. Witness:
Coaching her to – I don’t know whether you’re actually coaching her in terms of sitting down and telling her that this is what has to happen. I don’t think it’s as direct or as overt as that but certainly it’s very clear that the dad is causing you pain and that you know you’re upset and all the dramas at the moment are caused by [Mr Galbraith].
And I emphasise this paragraph:
So it might not be an overt coaching but there’s definitely influence.
And that was then explored over a number of different questions in which the witness affirmed unequivocally that was the view she expressed based on her assessment of each of the parents and the children.
In such circumstances, I do not know that I can put as strong a weight upon the views of the children at their age as I might in other circumstances. I note their views and I note that Ms B comments that because of the views they are expressing, any change in the arrangements for the primary parent with whom the children would live would unquestionably cause distress and it would be a difficult thing to accomplish.
She does, however, say that it would be something that could be overcome in time and that, in essence, this was, and I quote from page 72 of the first trial book:
Although in my last report I stated that I could not see how an arrangement where the children spend the majority of their time with their father would work in terms of care arrangements, all options result in short-term and/or long-term negative consequences. If risks and benefits are weighed up, it is my opinion that the girls’ personality development is at significant risk if they remain in the primary care of their mother and the healthier long-term environment will be with the father. This would, no doubt, be scary for the girls, as currently they are quite fused with their mother and don’t entirely exist as separate people from her. Although transitions would be difficult, [Mr Galbraith] and the girls could access support and assistance with how to manage this.
I turn then to the second matter I have to take into account among the additional considerations and that is the nature of the relationship of the children with each of the child’s parents and other persons, including grandparents. I think I have probably said as much as I can reasonably say in relation to Ms Galbraith and the girls. As far as Mr Galbraith is concerned, his opportunities for spending time with them and of demonstrating the nature of his relationship with the children has been extremely limited in recent times.
I am satisfied, however, that he has persisted and has behaved reasonably in relation to the time that he has had available to him. I accept that there are occasions where and, in some cases unexplained occasions, in which he has not taken opportunities that he might have had in relation to the children but I do not accept that those include the time immediately after the report in which it was said that he did not see them for about five weeks. His attitude on that occasion was right, not wrong, in the light of the first report.
So far as the grandparents are concerned, their influence has been extreme in the case of Ms Galbraith’s mother who, as I indicated previously, was not a witness in these proceedings and I am astonished that that should be so. She has not been a witness when there are matters upon which she might have corroborated her daughter. And while I do not expect Ms Galbraith as a self-represented litigant to have any concept of the significance of the rule in Jones & Dunkel, which I might add is puzzling to most lawyers, it seems to me that if, in fact, her version of a number of events had been capable of being corroborated by her mother, she would have to have been the most logical witness to have been brought before the Court, particularly as, at the present time, Ms Galbraith is living with her mother and particularly as one of the pieces of background to these proceedings, which I have not yet mentioned, is that for a period of four years Ms Galbraith and her mother were deeply estranged and did not talk to each other. In fact, Ms Galbraith’s mother, Ms S, was the subject of a referral to DoCS for what was asserted to be her physical abuse of the children. Her absence is puzzling. The evidence might have been useful and the relationship between the girls and their grandmother remains, for me, something of a mystery.
So far as their paternal grandmother is concerned, Mr Galbraith was critical of his mother on a number of occasions for things she had said to the children to which Ms Galbraith took exception. I think he was justified in that and the criticism of Mrs Galbraith Senior was also appropriate and justified.
Mr Galbraith’s father is a person who has been involved in these proceedings. He has been in court each day, since he has given evidence at least, and he has been supportive. I accept that he will remain a support person, although his significance in the children’s lives is not either borne out by the evidence particularly or significant in the determination of matters that are before me today.
I have commented already about the extent to which each of the child’s parents have taken or failed to take opportunities to participate in making decisions about the children or spending time with them or communicating with them. I have made comments, in particular, about Ms Galbraith during the period of D’s time in care. I have commented in passing about the times that Mr Galbraith has not taken opportunities that might otherwise be available.
It is reasonable to say that the stressors that have been applying during the course of the breakdown of the parties’ relationship would have tested the patient of Job. They would have tested the fortitude of anyone and occasional lapses of this sort are to be expected by both parents and I make no particular criticism except to say that it does not lie on the part of the mother to say that the father has failed to do these things in the circumstances in which I outlined above in relation to her.
The obligation to maintain the children is a factor I am to take into account and there is no suggestion that Mr Galbraith has not carried out his responsibility so far as Child Support is concerned. Under the Act I have to take account of the likely effect of any changes in the children’s circumstances, including the likely effect on the children of separation from either of their parents or from any other child or any other person. There is no doubt this is a major factor in this matter.
There is no question about the fact that if the children were separated from their mother by living with their father, that that would have an immediate and apparent adverse effect upon them that may take some time to overcome. It is to the parties’ credit, again, that they have agreed that they will undertake a process of therapy with Ms G to ameliorate that but I do not for one moment step back from the proposition that this is a major issue that needs to be taken into account.
Equally, if they were (if I correctly read the mother’s Orders) to be precluded from having any relationship with their father, because I believe that is really the effect of the Orders she is seeking, then, I believe, in the end, this would have an adverse effect on them for the reasons set out. I will not enumerate, from the report of Ms B the effects that their enmeshment with their mother and their lack of individualisation as a consequence of the matters relating to their mother will bring about.
I accept that Ms Galbraith denies that there is any lack of individualisation on her part with the girls but I do not accept that that is the case given the matters that have been set out in the report and commented upon in the oral evidence. To say that there will be practical difficulties and expense in keeping a relationship between the parents going is probably an understatement. The cost of the therapy is going to be significant even if the parents are successful in organising a mental health treatment plan. The continued cost to the parties in ensuring the children spend time with each other will necessarily be a drain on their resources. These are factors which, in my opinion, are relatively minor but, nevertheless, are some of the questions that need to be answered.
As a consequence of those matters, I have come to the conclusion that the children should live primarily with their father and should spend time with their mother. I want to go through the Orders that I propose to make in this regard because it seems to me that I have the duty to explain that to the parents in light of the fact that the Orders do not follow what each of the parents want. It would probably be most helpful if they had a copy of the orders so that we can go through them together.
ORDERS
The first order is that the father will have sole parental responsibility for the girls, and I have gone through that issue before, I do not need to make any further explanation. I indicated previously that I believe that issues relating to sole parental responsibility were not absolute and that there should be some qualifications to them. Each of the parents to some extent in the orders that they sought did seek to do that but these are a more substantial indication of the way in which that should occur. I indicate that the father will have responsibilities to notify, inform, authorise and consult with the mother as follows:
The father will notify the mother about any major changes relating to the children, including but not limited to significant medical treatment or requirements for education and extracurricular activities. He will notify her by email unless the parties otherwise agree.
The father will inform the mother as soon as practicable after any major events and the first is things that are happening and going to happen. The second is things that have happened.
The father will authorise any medical or similar practitioner to provide the mother information about the treatment administered or required and, in particular, the father will not change any person upon whom D is attending from time to time without giving due notice to the mother.
The father will consult with the mother about which high school each of the children will attend. In particular, the father will consider the points raised by the mother about which school would be best for the children. Ultimately, however, in these circumstances, he will make the decision. He will not change their school without giving her reasonable notice which would enable her to make an application to the Court if she wanted to do so.
I want to avoid the parents having to come back to court so order (e) provides that if there is a dispute between the parents, ultimately, there will need to be consultation but if they are unable to reach agreement, the father’s decision will prevail. And I have made a specific provision to say that neither parent will enrol the children in any extracurricular activity if it will in any way interfere with the time that the children would spend with the other parent.
And I then provide, contrary to the recommendations provided by Ms B, contrary to the recommendations of either parent as follows:
The children will have one month in which they spend apart from their mother which is consistent with the recommendation of Ms B; that thereafter, contrary to what is sought by the father and contrary to what is in some ways recommended by Ms B and certainly contrary to the mother’s view, the children will spend from Friday after school on every second weekend until the commencement of school on the following Monday with an additional day for a long weekend if it occurs. And this will continue during the periods that would be the school holidays in September, October and in the long school holidays at the end of the year, except that, in this case, the handovers will be at 3 pm on the Friday and 9 am on the Monday and will happen as they have been for periods of exchange recently at the Shopping Centre, Suburb F.
Each of the parents is required to, by my order, attend on Ms G and I will provide to the independent children’s lawyer both the material that I have referred to as being the earlier assessments of D in a printed form, together with a copy of these orders. I have, by a supplementary order which will issue tomorrow, required that Ms G return the material to the Court at the end of her treatment for destruction. I do not want it to be left around anywhere else. It is none of anyone else’s business.
I have provided in subparagraph (e) that for the first week of the end of term 3 holidays in the year 2016, the children will start to spend time with their mother from after school on Thursday until the following Monday. This is not a recommendation either parent sought or one that Ms B provides. It does, however, ensure that this gives the mother time to spend some of the school time with the children and is in accordance with the broad provisions of the Act relating to substantial and significant time, although I recognise that this does not constitute substantial and significant time.
Also contrary, I think, to the recommendations of any of the others, it seems to me the children should be spending time with their mother during school holidays and paragraph (f) says that that should start with the holidays at the end of term 1.
I then make provisions about specific days such as Father’s Day, Mother’s Day, Christmas Day and Easter Sunday, Easter Sunday not now necessarily falling within school holidays in every year. Those are, to some extent, arbitrary determinations simply because there is no right or wrong way of dealing with it and I am trying to provide certainty rather than anything else. I have, however, provided in order (k), nothing prevents the parents from agreeing to an alternative arrangement and, in particular, for example, that there is nothing to stop the parents agreeing to share Christmas Day and Easter Sunday if that becomes something that they feel they can do.
I make provision for birthdays in (l) and (m) for the children; not for the parents.
Communication. I provide in order (4) that the parents will share equally the prepaid cost of phones for each of the children.
I provide in order 5 that neither parent will prevent or allow anyone else to prevent the children from calling the other parent at any time. That is the children’s choice. The children are specifically authorised to contact the other parent by telephone, Skype or Facetime at any time. The mother may call the children on Tuesday nights and Thursday nights at 6.30 pm for a period not exceeding 15 minutes when the children are with the father. And this occurs but rarely, but the father may telephone the children during school holiday periods when they are with their mother at 6.30 pm for a period not exceeding 15 minutes on each of the Tuesday and Thursday evenings.
Neither parent will solicit or permit any other person to solicit telephone calls to a parent or to that person from either of the children. This means that neither parent is to say you must ring me tomorrow morning; the children being able to ring any time they like. Nothing, however, prevents the parents from varying these communication arrangements by consent.
The mother is restrained from attending the children’s school except by prior arrangement with the father whose consent will not be unreasonably withheld. That does not exclude the mother from attending ordinarily scheduled parent-teacher interviews or functions at the school to which the parent body as a whole is invited.
Only the parent with whom the children are currently staying will accompany the children to extra-curricular activities unless the parents otherwise agree and the children are free to communicate with the other parent by email but not use any other social media unless the parents otherwise agree.
I have imposed restraining orders in 15, 16 and follows, to deal with the fact that the parents are not to discuss these proceedings or the judgment in this matter with either or both of the children. The children are restrained from showing or causing anyone else to show them documents in these proceedings. Each of the parents is restrained from saying unkind or unpleasant things about the other parent or his or her family, associates or partner or permitting any other person to do so in the presence or hearing of the children. I digress to say and I did not mention in the course of my judgment and I should have, that given the evidence that I heard from the father’s, (self-described by her) girlfriend, I do not regard her as being a significant person in the children’s lives at the present time.
The mother is hereby restrained from taking the children for medical or psychological or psychiatric treatment or assessment or further counselling or therapy except that which is contemplated within these orders or upon which the parties agree about prior to the commencement or commitment to such treatment.
And I have imposed, without being asked by either party but I think it is appropriate, a restraint preventing either parent from removing the children from the Commonwealth of Australia and I have made an order that would place the children on the watch-list for another three years which would involve that if they were at the airport, they would be stopped at the gate.
That concludes, substantially, the Orders I have made. I accept that these are Orders that are very distressing to Ms Galbraith. I accept that that is so. I can only say that I have given this matter very careful thought over a long period and I have listened carefully to the evidence that has been given in the course of the proceedings. I have read and looked at the material that has been filed and relied upon by the parties and the conclusion I reach is the conclusion I honestly believe to be right in the interests of the children. This matter is now adjourned.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 9 September 2015.
Associate:
Date: 8 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Injunction
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Appeal
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Costs
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