George & George
[2023] FedCFamC1F 718
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
George & George [2023] FedCFamC1F 718
File number(s): BRC 4444 of 2020 Judgment of: HOWARD J Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – PARENTING – where the two children lived in a week about shared care arrangement following the separation of the parents – where the children now aged ten and eight have not seen the mother since July 2021 – where the father unilaterally stopped the children’s time with the mother – where the father failed to support and failed to facilitate the children’s relationship with the mother – a consideration of risk issues – evidence of alienating behaviour by the father – change of residence necessary – moratorium of the children’s time with the father – followed by supervised time with the father – graduating to unsupervised time – where the children will otherwise live with the mother – where the mother will have sole parental responsibility. Legislation: Evidence Act1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Cubbin & Cutler [2018] FamCAFC 84
Eagle & Scarlett (No.2) [2020] FamCAFC 291
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092
Johanson & Johanson [2022] FedCFamC1A 74
M v M (1988) 166 CLR 69
Masson & Parsons (2019) 266 CLR 554
N and S and the Separate Representative (1996) FLC 92-655
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 100 Date of last submission 11 August 2023 Date of hearing: 3, 4, 7, 8, 9, 10 and 11 August 2023 Place: Brisbane Counsel for the Applicant: Mr Balzamo Solicitor for the Applicant: Browns Lawyers Respondent Litigant in person Counsel for the Independent Children's Lawyer: Ms Oakley Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 4444 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GEORGE
Applicant
AND: MR GEORGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous orders and notations be discharged.
Parental responsibility
2.That the mother shall have sole parental responsibility for the children X born 2012 and Y born 2015 (“the children”).
Live with
3.That at the Commonwealth Court Building at Brisbane at 3.00pm on 11 August 2023 the Independent Children’s Lawyer shall explain these orders to the children, and Mr S is REQUESTED to be present and to assist with the explanation of these orders to the children, and the Manager, Court Child Services, is REQUESTED to assist with provision of an interview room for the children’s meeting with the Independent Children’s Lawyer and Mr S.
4.That the father shall leave the Court precinct immediately prior to 3.00pm on 11 August 2023 and the father shall ensure that all members of his family and his partner Ms T and her children are not in the Court precinct after 3.00pm on the day of 11 August 2023.
5.That the children shall commence to live with the mother from 3.00pm on 11 August 2023, with changeover to the mother to be effected by Court Child Services following the explanation of the orders to the children pursuant to above order 3 herein, at the Commonwealth Courts Building in Brisbane, and the Manager of Court Child Services is REQUESTED to effect changeover to the mother.
Spend time and communicate with
6.For the period of six (6) months following the date of these orders, the children shall spend no time and shall have no communication with the father.
7.For the six (6) month period referred to in above order 6 herein, the father be and is hereby restrained from permitting, causing or acquiescing in any member of the paternal family having or seeking to have contact with the children.
8.That for the six (6) month period referred to in above order 6 herein, the father be and is hereby restrained from permitting, causing or acquiescing in his partner Ms T or her children having or seeking to have contact with the children.
9.Following the completion of the six (6) month period referred to in order 6 herein, the children shall commence to spend time and communicate with the father as agreed between the parties and otherwise as follows:
(a)Supervised time facilitated by either U Contact Centre or V Contact Centre or such other professional service (but not W Contact Centre) to be nominated by the mother to the father in writing no less than five (5) months subsequent to the date of these orders, on each Saturday for up two (2) hours, for a period of twelve (12) months, and
(b)Thereafter, on each Saturday between 9.00am and 5.00pm, unsupervised, but with changeovers supervised at a professional contact service to be nominated by the mother to the father in writing by email one week prior to the date of the first supervised changeover, for a period of three (3) months, and
(c)Thereafter, from after school on Friday until before school on Monday of each alternate weekend during school terms (except for the weekend in which Mother’s Day falls during which this time is wholly suspended and the time which would have occurred on that weekend occur instead on the following weekend), on the weekend in which Father’s Day falls from after school Friday until before school on Monday of that weekend, and during school holidays at such times to be agreed in writing between the parents.
10.Unless otherwise agreed between the parents in writing, upon time for the children with the father commencing to occur pursuant to above order 9(c) herein, changeovers will commence to take place at the children’s school when on a school day, and otherwise to be conducted at a contact centre to be nominated by the mother.
11.The mother will commence to facilitate the children’s attendance as soon as possible on Ms Z, psychologist, at appointments made by Ms Z for the continuation of the children’s therapeutic family counselling NOTING THAT Ms Z will not have capacity to see the children again until the week beginning 14 August 2023 and the mother shall continue to facilitate the children’s attendance for so long as Ms Z recommends to the mother.
12.Leave is granted to the Independent Children’s Lawyer to provide Ms Z with a sealed copy of these orders.
13.The mother shall commence to attend on a psychologist or mental health social worker experienced in complex family law disputes, as soon as possible, for child guided parent therapeutic support with respect to the implementation of these orders and the children’s coming into the mother’s care, and the mother is requested to engaged the said practitioner in the week commencing 14 August 2023 and at any time thereafter pursuant to the child guided therapy work, which is NOTED permits the practitioner to conduct consultation with the children.
14.Leave is granted to the mother to provide and the mother shall provide to the practitioner she engages pursuant to above order 15 herein, the sealed Affidavits of Mr S filed on each of 21 December 2020 and 3 August 2022, the sealed Affidavit of Ms Z filed 28 July 2023 and these sealed orders, for the purpose of assisting the practitioner to become involved therapeutically.
15.The father shall commence to engage with a psychologist or mental health social worker experienced in complex family law disputes following the date of these orders and the father has leave to provide to the practitioner he engages and will provide to the practitioner, the sealed Affidavits of Mr S filed on each of 21 December 2020 and 3 August 2022, the sealed Affidavit of Ms Z filed 28 July 2023 and these sealed orders, for the purpose of assisting the practitioner to assist the father to support the children’s relationships with the mother.
16.For the six (6) months period following the date of these orders, the mother will ensure that the children’s maternal grandfather Mr AA is not present during the children’s time with her and is not in the vicinity of the children.
17.Neither parent shall use physical discipline or physical punishment on the children, and each shall use their best endeavours to ensure that no other person physically disciplines or physically punishes the children.
18.Neither parent will denigrate the other parent or the other’s family or friends to or in the presence or hearing of the children, and each parent shall use their best endeavours to ensure that no third party denigrates the other parent or the other’s family or friends to or in the presence or hearing of the children.
19.Neither parent will discuss adult issues or parenting issues with or in the presence or hearing of the children.
20.Leave is granted to the mother to change the school at which the children are enrolled and attend, and the children shall thereafter continue to attend at the school at which the mother enrols them.
21.The mother shall advise the father in writing of the name of the school at which she enrols the children, within seven (7) days of enrolment.
22.Leave is granted to the mother to provide a sealed copy of these orders, the sealed Affidavits of Mr S filed on each of 21 December 2020 and 3 August 2022, and the sealed Affidavit of Ms Z filed on 28 July 2023 to the children’s school, and the school is REQUESTED to provide counselling and any other support able to be provided to the children regarding changes to their family structure and schooling pursuant to these orders.
23.The father be and is hereby restrained from attending at or in the vicinity of the children’s school in which they are enrolled by the mother pursuant to these orders for a period of 18 months following the date of these orders, however the father may request that the school facilitate his telephone attendance at any parent teacher event, and if that is able to be facilitated by the school, then he may attend by telephone for such event provided he gives written notice one week in advance to the mother of his intention to attend.
24.The father is hereby authorised to contact the children’s school in writing to request copies of the children’s school report cards and photograph order forms be provided to him by the school.
25.So as to give effect to these orders the father has leave to provide a sealed copy of these orders to the children’s school.
26.The father be and is hereby restrained from permitting, causing or acquiescing in any member of the paternal family attending at or in the vicinity of the children’s school in which they are enrolled by the mother pursuant to these orders, for a period of 18 months following the date of these orders.
27.The father be and is hereby restrained from permitting, causing or acquiescing in his partner Ms T (or her children) attending at or being in the vicinity of the children’s school in which they are enrolled by the mother pursuant to these orders, for a period of 18 months following the date of these orders.
28.Leave is granted to the father to contact any medical or allied practitioners on whom the children attend, about the children, and to request (at his cost if any) that he be provided by the practitioners with information or documents about the children, subject to the practitioner’s discretion, and so as to give effect to this order the father has leave to provide a sealed copy of these orders to the children’s treating practitioners.
29.The parents shall communicate together about the children in writing via the My Family Wizard App, or should that become unavailable in future, then via such other online password protected family communication App as may be agreed between the parties in writing and if no agreement then as nominated by the mother to the father in writing no less than five (5) days prior to the My Family Wizard App becoming unavailable, or in an emergency then by telephone and in writing by SMS text, and the parties shall keep each other informed of their mobile telephone numbers and notify of any change and provide the new mobile telephone number within 24 hours of such change.
30.Neither parent will send or exchange parenting messages or information to the other via or through the children.
31.Each parent will notify the other by telephone and SMS text message in the event the children or either child is hospitalised or involved in a medical or other emergency and shall provide details and particulars of such event.
32.Leave to the Independent Children’s Lawyer to provide a sealed copy of these orders to the Director-General, Department of Child Safety, Seniors and Disability Services.
33.All outstanding parenting applications be dismissed.
IT IS NOTED
A.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
B.During the course of the trial, the father, on occasions, was legally represented. Mr GG of Counsel appeared for the father on 3, 4, 7 and 8 August 2023, instructed by HH Lawyers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 11 August 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
I consider that the facts in this case are such that it has become urgent for a judgment to be delivered. I propose, therefore, to deliver my judgment now.
This is a parenting case involving two young children, X born 2012 and Y born 2015. The father and the mother, Mr George and Ms George met in high school and they seem to have lived together from 2009. They married in 2011 and they separated on a final basis on 1 March 2020. The father commenced a relationship with Ms T and she moved in with the father (with her two children) soon after the mother left the George family’s property.
After separation, by agreement between the parents, the two children lived in a shared care arrangement week about. That continued from the date of separation until July 2021. Since July 2021 the children have lived with their father and have not spent any time with their mother, nor have they communicated with their mother in any way. That is now more than two years.
Each of the parents has put before the Court a suite of orders. The ICL also has put forward proposed orders. In broad terms, the mother seeks orders that the children be returned to her care and that there be a moratorium of the time with the father for a six-month period followed by supervised time with the father for a 12-month period followed by an order for unsupervised time increasing to alternate weekends with the father with changeovers at school or at a contact centre. The mother also seeks an order for sole parental responsibility. In broad terms, these are the orders supported by the ICL.
The father, in the last iteration of his orders, seeks an interim order and he seeks various other orders in the document, which is the last exhibit in the case (Exhibit 16). The father’s view is that to remove the children from his primary care would not be in their best interests, that they are thriving in his care and that the risk to their emotional health is too great to remove them from his primary care.
These cases are decided in accordance with Part VII of the Family Law Act 1975 (Cth) (“the Act”). There are a number of important principles to be kept in mind. The sections and the subsections within Part VII are not required to be considered by this Court in any specific order: Cox v Pedrana (2013) FLC 93-537; Beckham v Desprez (2015) 55 Fam LR 310. In a case entitled Baghti & Baghti and Ors [2015] FamCAFC 71 the Full Court of this Court noted at [63] that the Court:-
“…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”
This approach is in line with previous High Court authority. In particular, in a case called Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”) at [62], Gleeson CJ, McHugh and Gummow JJ said, amongst other things:-
“[62]… A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.”
This approach was supported more recently, I would add, by the Full Court of this Court in Eagle & Scarlett (No.2) [2020] FamCAFC 291 and in Johanson & Johanson [2022] FedCFamC1A 74. All of these cases are consistent.[1]
[1] The Whisprun decision was interesting because it was 20 years after a New South Wales decision of the Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, where Mahoney J had a similar view to the High Court.
The Court is required to consider all of the various matters in s 60CC of the Act. It does not mean that the Court must specifically mention each factor. This principle was stated in many cases, including in Cubbin & Cutler [2018] FamCAFC 84.
It is always helpful when delivering a judgment to remind the parents of the objects of Part VII of the Act and the principles underlying it.
Section 60B(1) is a very important section in the Act. The first stated object of Part VII of the Act is - to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children. The High Court itself in a case called Masson & Parsons (2019) 266 CLR 554 made particular mention of that subsection.
Unfortunately for these two little ones, in recent years they have had no relationship with their mother. The Court is required to keep in mind the paramount consideration when making a parenting order, and that is - the Court must regard the best interests of the children as the paramount consideration.
How does a Court determine the best interests of the children? On the one hand, the father says their best interests will be served by staying exactly where they are. On the other hand, the mother’s view is that if they stay where they are, they will not get to spend time with the mother and they will not have a relationship with the mother.
The legislation directs the Court to various sections, beginning with s 60CC(2) and s 60CC(2A):-
“(2) The primary considerations 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.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
The primary considerations for the Court are - the benefit to the children of having a meaningful relationship with both of their parents and, secondly, the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In applying the considerations set out in s 60CC(2), the Court is required to give greater weight to s 60CC(2)(b) - the need to protect children from the various forms of harm to which I have referred.
The additional considerations are set out in s 60CC(3) and I will come to those in due course. At this point in time, though, I want to have regard to the question of risk. The question of risk has loomed large in this case. This Court is required, when considering risks of harm to children, to give deep, careful consideration to the risks that have arisen or may arise in relation to the children. The assessment of risk has been referred to on numerous occasions in the Courts, including the decision of the High Court in M v M (1988) 166 CLR 69 (“M & M”), which whilst it was itself a case where the High Court considered a case of alleged sexual abuse, nonetheless the High Court in M & M specifically said that - courts exercising jurisdiction in family law are required to take into account, in resolving the issue relating to the best interests of children, the existence and magnitude of risks of harm to children. These are fundamental matters “to be taken into account in deciding issues of custody and access”.
So the Court made it clear that these are fundamental issues in all parenting cases involving custody and access. More recently, there has been a Full Court decision called Isles & Nelissen (2022) FLC 94-092 in this Court, which spoke about the standard of proof relating to risk. The Court adopted the previous dissenting judgment of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212. For many years, the dissenting judgment of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 has provided guidance to trial judges in Australia. The judge stated in his judgment that:-
“[12]… it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child[2]… and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm.”
(Citations omitted)
[2] At 82,713 – 82,714.
In terms of the risk, the father has run a case against the mother that the children will be at risk in her care. The father’s view is that the mother, amongst other things, is emotionally detached. The father’s view is that the mother does suffer from a mental health issue. The father’s view is that the mother smacks the children inappropriately. The father’s view is that the mother is a person who is likely to be a prostitute or at least a person who will seek money for sexual favours. The father’s view is that the mother is emotionally abusive towards the children. The father’s view is that the mother seeks parenting orders for custody of the children primarily to advance her case for a property settlement under s 79 of the Act.
There is no credible evidence that the mother suffers from mental health issues that would prevent her from parenting these children. The mother has at times suffered from some depression but she has sought assistance for that condition. There is no credible evidence that the mother is a prostitute or is likely to be a prostitute or the kind of person who would take money for sexual favours. Even if there were evidence that the mother were an adult sex worker, I can tell you that in this jurisdiction I have made many parenting orders involving adult sex workers. As with many types of employment, the most important point is that they must keep their work separate from the children. This is not the case here in any event, because the father has not proven that the mother runs a business as a prostitute.
As to the smacking, the view that I have formed is that the father and some of his witnesses greatly exaggerated the situation in relation to the smacking. The view that I have formed is that the paternal grandmother, who gave evidence yesterday by telephone, Ms C George, is the only witness called by the father who gave anything approaching a balanced view concerning the mother. Ms C George referred to the mother’s smacking of the children as, “Gentle taps. Nothing too harsh. Not abusive smacking”. That is the evidence of Ms C George. The parents and the children lived with or near Mr B George and Ms C George.
In relation to the allegation that the mother kicked the children - the very clear evidence given by Ms C George yesterday afternoon left it open for the following inference to be drawn, and I draw it – that, to the extent the mother may have used her foot to come into contact with these children, the outcome was innocuous and not something that would concern this Court in relation to the children being at risk in the care of the mother. There were other allegations of physical harm in the mother’s presence, including the children returning, apparently, with a carpet burn or two. The mother provided explanations in relation to carpet burns. I accept her explanations.
The history of this family went from a situation where the children were having week about with each parent, to the father unilaterally acting and withholding the children in July 2021. The father referred to various reasons for doing so, including the risk of running away. It was said that at or about that time, the children had returned from the mother’s care and the father was told that Y had tried to run away and, perhaps, according to the little ones, had tried to run onto a road. Y was very young at that point in time.
The evidence that I rely upon is the independent evidence in relation to this issue. I note the evidence of Ms BB. Ms BB was a counsellor at J School. She prepared an affidavit. It was filed in the ICL’s case. She was not required for cross‑examination by the mother, but the father wanted to cross‑examine Ms BB and he did so. I found Ms BB to be a credible witness.
Ms BB saw X on three occasions. During those interviews or counselling sessions, X was alone. Neither parent was with him. On 12 June 2020, paragraph 23 of Ms BB’s affidavit says “[X] reported not feeling sad or worried at mum’s house and he said each was ‘1 out of 10’.” So X rated his level of sadness at a ‘one out of ten’ and his level of worry at a ‘one out of ten’ – when at his mother’s house.
At that stage, as per paragraph 24 of Ms BB’s affidavit, “[X] reported being very worried, very sad and very happy at dad’s house and each was rated ‘10 out of 10’.”
The counsellor then says in paragraphs 25 and 26:-
“25.[X’s] ratings indicated to me that, while [X] was very happy being with his dad, he was struggling emotionally at his father’s house.
26.I have recorded that [X] said there is a ‘new person he loves (couldn’t even tell me her name!)’.”
In paragraph 27 and 28, X indicated, “… he wants to spend time just with dad sometimes” and that, “…he wanted his mother and father to be back together…”. That is not an unusual wish for little children.
At paragraph 29 of Ms BB’s affidavit she recorded that, at that stage, X:-
“… ‘feels tired and calm’ when leaving his father’s home to go to his mother’s home and that he feels ‘happy’ when leaving his mother’s home to go to his dad’s home.”
The crucial part of this evidence here, which are independent notes from midway through 2020, is that it does not ring any alarm bells for this Court in relation to problems for the boy spending time at his mother’s house. It was noted he was struggling emotionally at that time at his father’s house, “There’s a new person he loves.”
The new person he loves, I infer from the evidence, is Ms T. The view that I have formed is that for a multitude of reasons, some of which I will enunciate within the confines of this judgment, the father seriously lacks insight in relation to the parenting of the children. Within weeks of the mother departing the George family house, Ms T had moved in and within a very short period of time Ms T was referred to, certainly by one of these little children, Y, as “Mum”. There is little wonder that X was struggling emotionally at his father’s house in June 2020.
Fast-forward a year to page number 21 of 40 of the affidavit of Ms BB. Her notes from 16 June 2021 in relation to being at mum’s house: “Happy = 8”. ‘Happiness’ was still getting eight out of ten from X, two weeks before the father stopped the child going to the mother’s house. Now, there was an increase in the sad to “9”, a worried of “2” and an angry of “1”. The last two are low. He missed being at dad’s house when he was at mum’s, but at mum’s he liked spending time with mum’s parents - the two people who have been much maligned by the father and his family. I will refer to that point later in these reasons.
At dad’s he was happy. Yes, I understand that. Ten out of ten for happy at dad’s. Eight out of ten for happy at mum’s. Not a great deal of difference, yet two weeks later the father, in what could only be described as a significant overreaction - withheld the children from their mother and set himself up as the Judge and the Court and insisted that if the mother was to see the children, then the time had to be supervised.
In terms of risk so far as the mother is concerned, the view that I have formed is that she has the capacity to parent these children and she has the willingness to facilitate a relationship between them and their father. The view that I have formed is that the mother has the capacity to deal with a very tricky situation, in the event the children move into her care. It will be difficult, make no doubt about it. The expert was clear. The mother is up to it. That is my assessment of the mother.
The mother was subjected to egregious attacks on her character during the course of this trial. She answered with good grace. She was asked about her sex life, her body, her use of the morning-after pill, whether she was a prostitute, whether she was an illicit drug taker. Subjected to egregious attacks in a situation where there is very little credible evidence to back any of it up, and this has to be kept in mind in the following context. These attacks were made by the father and his lawyers (on his instructions). In circumstances where, on the other hand, the father insists to this Court that he wants the children to have a relationship with their mother. The lack of insight is staggering.
Other issues of risk were raised - for completeness, I shall make specific findings. I find as a fact that the mother is not a person who uses illicit drugs. I find as a fact that the mother is not a person who misuses prescription medication. I find as a fact that the mother has not suffered from any untreated mental health illness. I find as a fact that the mother has not utilised smacking as a discipline technique to an inappropriate level. I find as a fact that the mother is not the sort of person who is completely emotionally detached from the children. I find as a fact she is not a person who is likely to cause them emotional harm.
As for the father’s household, I note that the father was, from all accounts, a very good sportsman who was catastrophically injured. A terrible predicament for any man to find himself in. Using a mobility aid. And he must be given credit for the strength and resilience he has shown following such a catastrophic event. He has received significant help and support from his extended family, many of whom are here today. The father’s family are to be commended for the support they have given the father. I know they have all been involved to a very high degree in relation to the children and the raising of the children. They have provided so much for them. The children lack for nothing - except the situation has become one where they do not have a relationship with their mum. Imagine if the boot was on the other foot and the mother had kept the children away from the dad and the George family? It is a very difficult situation. The children have everything they need except – a very crucial point – any sort of relationship with their mother.
In the George household, the members of the family hold similar views to the father. They are concerned about the mother. They are concerned about the mother’s mental health. Except for Ms C George, they are concerned about the smacking of the children; they are concerned about the mother’s emotional stability; they are concerned that the mother might be a prostitute or is a prostitute; they are concerned she is emotionally abusive.
The father and some other members of the paternal family are concerned about another thing. It only reared its disturbing head in the cross‑examination of the father’s partner, Ms T. It became apparent during that cross-examination that Ms T, the father’s partner, and the father and other members of the father’s family hold concerns about a risk of harm in the mother’s care, being the presence of Mr AA, the maternal grandfather. Now, the risk, such as it was enunciated, was along the lines that he is or could be the type of person who is a paedophile. That is the risk. One has to be blunt about it. That is the risk that was proffered by Ms T and, on her evidence, it is a view held within the household of the father, by certain members – including the father and the paternal grandfather.
It is a very serious allegation to make. If such an allegation was going to be made it should have been included in the evidence in chief affidavits. It should have been clearly enunciated as a risk factor. It should have been addressed squarely. It should have been put squarely in cross‑examination to the mother. It should have been put squarely in cross‑examination to Mr AA. It should have been put, because it is such a serious allegation. The rule in Browne v Dunn (1893) 6 R 67, which it is said on occasions does not always apply when evidence in chief is given on affidavit, in my view, nonetheless in such an instance it does apply because of the gravity of the allegation. My view is that it would never be sufficient to merely include such an allegation in an affidavit. It would need to be put in cross‑examination.
The difficulty here is - not only was it not in an affidavit, it was not put to the man. Section 140 of the Evidence Act1995 (Cth) relates to the standard of proof. Matters are proved if the Court is satisfied on the balance of probabilities. The Court is required to take into account various matters, including the gravity of the matters alleged, and this calls to mind, so far as the Court is concerned, important cases like Briginshaw v Briginshaw (1938) 60 CLR 336. If you make a very serious allegation about someone, it is only going to be proved if there is cogent evidence and if there is no reliance on indirect inferences. It cannot be hearsay. It cannot be suspicion or supposition. There must be clear and direct evidence. There is none of it here!
There was the incident where there was the filming of changeovers. Can I just say this about the filming of changeovers - it is never a good idea. It causes more trouble than it is worth. It causes animosity. It causes disputes to blow out of all proportion. I saw film during the course of the trial of the father filming various changeovers. On one particular day, the maternal grandfather Mr AA was filming a changeover. The paternal grandfather, Mr B George, filmed the maternal grandfather while Mr AA was filming the changeover. If it was not so serious, it would be in a Monty Python sketch. But it is serious. What stress you were all putting yourselves under - let alone the children.
It is said that one of the other younger children of Ms T was naked and ran across the driveway and was filmed during the course of the changeover. What happened next is reprehensible. Mr B George took the film or the photo that he had taken and uploaded it onto Facebook. That was bad enough. He put some words with it. It is included in an affidavit of Mr AA. I have had a look at it. A large number of people from Town CC responded. The view that I have formed is that the intention of Mr B George in doing so was to cause distress to the maternal family. The view that I have formed and the inference I draw from what happened is that Mr B George did intend that people would look at that Facebook post and draw a conclusion that Mr AA was the type of person who was likely to be a paedophile.
Social media is a very powerful thing. It cannot be misused. Matters got significantly worse for Mr B George when he was in the witness box because he took an oath to tell the truth and he was asked a direct question about it - but he denied that was his intention. I will review that evidence again in the fullness of time and in a separate consideration by the Court, I will decide whether or not the Court should refer the papers to the Commonwealth Director of Public Prosecutions for consideration as to whether untruthful evidence was given on oath by Mr B George. I do not need to decide that issue today. My findings are that Mr AA, whom I saw in the witness box, does not pose a risk of harm to these children. Mr AA may have smacked the children in the past. I heard him give evidence about what happened when X went to run on the road, the smack that was given. I heard the evidence about X being picked down off some boxes. I heard some other evidence about the allegations put to Mr AA – including giving X and his mate a smack when they were jumping over chairs and disrupting a school concert. There is no evidence that Y was ever smacked. I find that Mr AA does not pose a risk of harm to these children.
The view that I have formed is that he did, prior to the children being withheld, have a close and loving relationship with them. It may well be that on occasions he smacked them. It may well be they deserved it. Not everyone has the same style of parenting. That does not mean one style is right and one style is wrong. I saw film in this Court, and it is part of the evidence, of a changeover where X was reluctant to go and the maternal grandfather, Mr AA, picked him up. He was not kicking and screaming in his grandfather’s arms. He was sitting quietly and calmly with his grandfather. And Mr AA was speaking calmly to the boy and calming him down and quietening him down.
From what I saw, Mr AA was the type of person who was able to establish a rapport with the children, notwithstanding the fact that on occasions he may have, in pulling them into line, given them a smack. In this Court, I can tell you, over the last 16 years, I have seen some horrendous cases of abuse. The Court is confronted with volumes of reports from hospitals and case notes from hospitals where children have been badly treated and abused. Not one hospital note was I referred to here. Not one doctor’s note. And yet the children’s time with the mother was cut off by their dad.
Mr B George did say something in his affidavit which pretty much in my view, summed up the attitude of the George family generally. There are parallel property proceedings going on. They have been before me for Case Management. I hasten to add they will no longer be before me, because of the findings I have made in this case. I will need to recuse myself because of the findings of credit in this case. In relation to the property proceedings, in pursuing an order under s 79 of the Act, the mother has joined a large number of members of the George family. Mr B George let the cat out of the bag when he said that a good deal of animosity has come about because of the fact that Ms George, that is the mother, has joined so many members of the George family in the property proceedings.
A good deal of animosity is an understatement. I consider that the seeds of the animosity were sown some time previous, but everything came to a head, it seems to me, by mid-2021. The children were withheld only a couple of days after this Court had given a decision in relation to an application. I believe it was concerning the joinder of parties or an application for parties to be released. The finding went against certain members of the George family. It is a factor I note. I do not place any great weight on it in this case, but I note it. The more important aspect is the fact that Mr B George himself has said that a good deal of animosity has arisen because of the property proceedings.
Within the household of the father, including directly by the father himself and other family members (in which I would include Ms T and Mr B George), there has been, in my view, alienating behaviour. They have acquiesced when the children showed resistance to spending time with the mother. That is not a good parenting approach. Acquiescing to little children who might stamp their little feet and say, “I don’t want to go to see mummy”, is not a good way to parent children. It is not in their best interests.
Ms BB said that in June 2021, the little boy X was still noting eight out of ten for happy at mum’s house. Eight out of ten. It seems to me that children very often - and it’s highly likely to be the case here - will tell a parent (in this instance the father) exactly what that parent wants to hear. They will see the reaction they get and they will play it up for all it is worth. The father and other members of his household have acquiesced in the children resisting time with their mother. They have acted in such a way that it has intensified the emotions of the children. They have incited fear in the children. This is alienating behaviour and it has occurred.
Mr S also spoke about enmeshment and he said, on occasions, enmeshment is not a bad thing. It can protect people and members of families and so on. The difficulty here is that it is to such an extent that it has been to the exclusion of the mother. That is, once the mother was no longer part of the larger George family, she was cut off. The guillotine went down and the George family’s views of the mother were all aligned. Not a person to be trusted. Not a person who is responsible. Not a person who should be caring for the children. The views all aligned.
The evidence of Mr S, which I accept, is that this is the last chance for these children to have a relationship with both of their parents. This is their last chance. If the children stay in the care of the father, it is undisputed (in my view) that they will not throughout their childhood at any stage, have a relationship with their mother. That is because of the pervading view which is held by the father, his partner and the other members of the father’s family.
History is the best guide. If the father actually had the will and the capacity to facilitate a relationship between the children and their mother, that would have been occurring. They would not be in a situation where they have not seen their mother for two years. The view that I have formed is that the father presently neither has the will nor the capacity to facilitate a relationship between the children and the mother. That is the very grave risk if the children were to stay in the father’s care. If the children move to the mother’s care, they have a chance, not only of a relationship with their mother, but with their father. They have a chance at both. It will be difficult. There is a risk that they might try to run away. I heard evidence from the mother as to the steps she would take. There is a risk, although not one that I have seen any evidence to support, of possible self-harm. In terms of the running away, it was said that one or both of them in the past had attempted this, including the attempted opening of a car door by X at one stage. The difficulty is that the father and his family intensified the emotions of the children in the past. It clearly led to rash behaviour by the children. The children need to have a period of time away from their father and only be with their mother.
The risks in the mother’s household relate to those types of aspects (especially running away), but the view of the Family Report Writer, which I accept, is that those risks are worth taking for the chance that these children might have a relationship with both their parents and not just one of them. There is absolutely no doubt that there needs to be a moratorium of time. So strong are the views within the paternal household - negative views of the mother - that there must be a complete break for a period of time. Three months is not sufficient. Communication would not be permissible. It would be counterproductive, as Mr S indicated. No telephone time, no Facebook, no texting, no contact between the father or the paternal family and the children. It seems to me it has to be for six months. This was within the scope the Mr S’s opinion.
The next question is supervision. Now, when Mr S was here, he gave evidence concerning various things, including the question of supervision of time to follow the moratorium. He settled upon a six month recommendation, but he did not hear all the evidence. Now, I did direct that Mr S and others, including Ms Z, be heard out of order. That is to say, ordinarily they would be giving evidence at the end, but if the Court considers it appropriate, of course, the discretion remains with the trial Judge to call them earlier. Mr S was called on one day. He came back on another day when circumstances had changed.
The parties were given liberty to further cross‑examine Mr S at the end of all the evidence if they wanted to take up that opportunity. No one did so. Mr S, time and again during his evidence, said that the orders will depend upon the findings of the Court. That included when he had mentioned a six-month supervision recommendation. The view that I have formed, though (and I note that it is part of the submissions of the ICL and the mother, and I accept those submissions), that in the circumstances of this case the best interests of these children will be served by a 12-month period of supervision following the moratorium.
The 12 months is required for a large number of reasons; including the alienating behaviour that has occurred; the level of intense animosity towards the mother by the father and other members of his household; the lack of insight shown by the father and other members of his household - particularly in relation to the children’s relationship with their mother. In my view, after Mr S’s six month recommendation, the attacks upon the mother by the father in the course of the trial intensified. The attacks intensified significantly. There was thrown at the mother the allegation that she was a prostitute. There was thrown at the mother and the mother’s family that Mr AA posed a risk of sexual harm to the children.
These matters were not brought to the attention of Mr S. With good reason of course. They did not actually make their way in any conventional sense into the evidence in chief of the father, and the witnesses to whom I have referred were not cross‑examined about it. It was not put to the mother nor to Mr AA. So the attacks on the mother, in fact, accelerated after the evidence of Mr S. My view is that there will need to be more time of supervision than recommended by Mr S, and in the exercise of my discretion I accept the submissions on behalf of counsel for the Independent Children’s Lawyer and counsel for the mother that it ought to be a 12 month supervision period after the six month moratorium.
I am moving now (to a large extent) to s 60CC(3)(m) - other factors and matters - and I will go back through s 60CC(3) subsequently. It is said as a complaint about the mother that she failed to contact the children, even though the father gave her every chance to do so following the father withholding the children. The mother gave an explanation, including in the witness box, and I accept her evidence. I do not criticise the mother for not taking up those opportunities and I will explain why. I saw film in this Court of several changeovers, including one where the father was filming the children, who were showing resistance to attendance at the changeover. Resistance in going to their mum. The mother was concerned that if she agreed to either go and see the children at a contact centre, as offered by the father, or even tried to talk to them on the phone - the father would use it as an evidence gathering exercise to manipulate the situation and the parenting proceedings to his advantage and the evidence reveals the mother is likely to be correct in that assumption, because from what I saw, the father would film the changeovers without the mother’s knowledge on occasions and, generally, it would show the children showing some sort of resistance to going.
The mother was not to know when she filed her proceedings in July 2021, that the system of justice in this country grinds slow - but nonetheless it grinds exceedingly small. Two years have elapsed from filing to judgment. The mother was not to know it would take that long. She did take steps. She took action in the Court. That is what she did - because she could see that any other form of action by her – for example, agreeing to the father’s suggestions - would only lead to heartache for the children and for her, in attempts by the father to show how reluctant the children were to go along.
Orders were made by the Court subsequently for supervised visits with Ms DD and orders were made by the Court for therapeutic intervention with Ms Z. Such is the level of the alienating behaviour which has impacted these children that when it came to the Ms DD situation – if the children knew that the mother was in the contact centre they would not get out of the car. That is a serious poisoning of the well by the father and, I have to find, other members of the paternal family. If the children will not even get out of the car to go into the contact centre to see their mother there is something seriously wrong. There has been serious undermining by the father and the paternal family. Serious alienating behaviour.
When it came to the therapeutic intervention of Ms Z, it failed. It did not get to first base. Ms Z tried. She is very experienced. She tried. These were part of some of the recommendations of Mr S, another very experienced social scientist. Mr S had options involving supervised time. He had options involving therapeutic intervention. They failed. We are at the last chance. That was his evidence. The only way the children are going to have a possible relationship with both parents is a change of residence to the mother.
I have given very serious consideration to doing nothing and leaving the children with the father. But I know two things: firstly, that’s the easy approach. What it will lead to, though, is not in their best interests, because, with certainty, they will have no relationship with their mother. I have given serious consideration to that. I would also add that I have given serious consideration to removing the children from the father into the mother’s care and I have given serious consideration to a no time order with the father for the remainder of the childhood of these children, such is the level of alienation that has occurred – on the basis of flimsy allegations.
When I say flimsy – I know there are allegations of family violence and there are allegations of smacking and there are allegations of this and that. I have addressed those in these reasons. To the extent that they exist, they are risks that are so small compared to the very great gain of having a relationship with the mother that they really fade into the background. The father has ruminated on these things and he has built one thing up on top of another until he has come to the conclusion in his own mind that the mother is a bad person and the children ought not be spending time with her and she cannot be trusted, but the reality, when you actually examine the evidence, including the evidence of Ms C George, that there was innocuous kicking, that there was nothing abusive in any smacking that occurred, that they were a few light taps that the children received - it has been built up and built up in the father’s mind for one reason or another.
I was drawn to certain evidence referred to by the father in his submissions - which were made very admirably by his brother, Mr E George, on his behalf in difficult circumstances. I acknowledge the evidence of Ms EE, who poured a bucket of mud on the mother – this would be the only way I can describe it. Ms EE used to be a friend of the mother. She is no longer a friend of the mother’s and she said as much when I asked her. I give her evidence no weight, at least, I give it very, very little weight. It makes very little difference. The various reasons why the father wanted to call Ms EE are interesting, but they fade into insignificance when one compares them to the risk factors that I have referred to at length in these reasons.
I hasten to add that if I do not specifically refer to the evidence in detail of Ms Z or Ms FF or Mr S himself, it is not because I have not considered it. I have and I have had the very great advantage of having Mr S before me on two occasions for many hours at a time giving evidence in the witness box through the course of this past six or seven days.
I know that these little ones – looking now at s 60CC(3)(a) of the Act – have expressed various views. Their views were clear. I mean, the more recent views from the Family Report, last year of course, was they wanted to stay with their dad, they did not want to see their mum. Their views were very clearly expressed. It is said that they are more mature now and the Court should give weight to their views. I am taking their views into account. I would also note that in mid-2020 X’s views on his mum were significantly better than they are now. In mid-2021 X’s views of his mum were significantly better than they are now. I have noted that evidence and referred to it more than once in these reasons from the affidavit of the school counsellor, Ms BB.
As for X, his views about his mum have just taken a nose dive in two years. He has had no time with her in that time, but he has been within the father’s household and subject to the alienating influences to which I have referred, which undoubtedly have played a significant part in the views that he now holds. I have referred to them. I have considered them and for the reasons stated, they can only be given very limited weight because of the existence of the alienating behaviour.
Section 60CC(3)(b) of the Act considers the nature of the relationship with the child’s parents and other persons. They have a close and loving relationship with their father and stepmother. Both X and Y. They both have a close and loving relationship with their dad, with their step mum and with their stepsiblings. These are not matters I have neglected. I take them into account. I note them. Of course, they are important relationships, not to mention how important the relationships are with Mr B George and his wife and the other George family members. These are really important relationships, I know all that. They are close and they are loving.
Before the children were withheld, my conclusion is that the children had a close and loving relationship with their mother and with their maternal grandfather, Mr AA, and his wife and - her sister as well. As to the state of the relationship between the children and those persons as at today’s date, one cannot be sure. The hope is, in accordance with the evidence of Mr S, that, with time, the relationships will be rebuilt. I have faith in the capacity of the mother with her support from other family members to do so.
I pause there to note the mother, to her credit, has agreed to the recommendation of Mr S that her father not be involved for six months, not for any heinous reason relating to the unfounded allegations suggested, on the part of the father’s side, but because the children in their own minds have built up Mr AA as some sort of harmful figure, no doubt enthusiastically influenced by the members of the paternal family. They have built up in their own minds that he is a person not to be trusted; he is a person of danger. So that there is not too much for the children to deal with, the mother has agreed, at least, to an order that her father have no contact with the children for six months following the date of this order today. That is a sensible concession by the mother.
Section 60CC(3)(c) of the Act concerns the extent to which each of the parents have taken or failed to take the opportunity to participate in decision making. Now, since the separation, I would note, for instance, the important decision, I think it was by the father, to move the children’s school and I do not make any particular findings about it, except I accept the mother’s evidence that her views were not given much weight or credence by the father. There was the question of a medical procedure involving X - a decision made by the father and reported to the mother without any proper consultation. The father, obviously, spends time and communicates with the children and has done so on a daily basis. The mother, because of the father’s conduct, has been prevented from doing so; although, she certainly has wanted to. I reiterate what I said earlier about the mother’s reactions to the father’s offers of time. I rely on those reasons here, of course.
It will be apparent that I am going through the legislative pathway for completeness. Many of the matters to which I have referred touch upon a great number of these subsections. The likely effect of changes in circumstances, I have covered that. These children in their own best interests have to change residence for the reasons I have stated. They will be very upset. They will be distressed. I have taken all that into account. They will miss their father, they will miss the step family, they will miss the George family. I understand all that. I have considered it carefully. I have had a long time to consider it, sitting here listening day after day to all of this evidence.
Section 60CC(3)(e) of the Act is not particularly relevant, as presently advised. I have already considered s 60CC(3)(f) regarding the capacity of these parents to provide for the emotional and intellectual needs of the children. I have made it clear my view in relation to the father’s capacity to provide for their emotional and intellectual needs. The father and his family have provided for the needs of the children in all respects, except they have excluded the mother and the maternal family and that has been a very large omission on their part and it is not in the best interests of the children. I have had regard to the age of the children and so on.
My attention has not been drawn to any evidence that would make s 60CC(3)(h) relevant as it deals with Aboriginality or Torres Strait Islander heritage.
As to the attitude to the children and the responsibilities of parenthood: I have touched on that enough. I have certainly considered it, and it specifically says “as demonstrated by each of the parents”. It has been a very serious omission and flaw on the part of the father to fail to facilitate the children’s relationship with their mother.
As to s 60CC(3)(j) and s 60CC(3)(k) of the Act, relating to family violence - there were various allegations concerning family violence. There is in existence a family violence order stating the mother and Mr AA as the respondents and the father as the aggrieved and there was a trial on domestic violence and findings were made against the mother and Mr AA - I have had regard to that. I have had regard to the allegations. It is one of the considerations that this Court takes into account in crafting a parenting order in the best interests of the children. I have not neglected that evidence. I am aware of it and I have considered it.
Section 60CC(3)(l) of the Act: whether it would be preferable to make an order least likely to lead to the institution of further proceedings. I will put it this way. A final order is less likely than an interim order to lead to the institution of further proceedings. An interim order will just lead to further litigation, obviously. It will keep going. There will be continued dispute and distress and upset. It is just not appropriate for there to be an interim order and, indeed, Mr S commented on that, as well. I accept what he had to say.
I do consider that the moratorium and the supervised time is important, because that also is less likely to lead to the institution of further proceedings. It is less likely, because it will ensure that the children are no longer exposed to alienating behaviour, at least over that 18-month period, and will hopefully get things back on an even keel, so far as they are concerned, relating to, in particular, having a relationship with their mother and having a relationship with their father.
I understand the risks that Mr S at some length explained - that this may not work, that it may damage the children’s relationship with their father and their mother, but in weighing all of these things up and in weighing the evidence of Mr S up, the view that I have formed is that the preponderance of the evidence leads me to conclude that the approach I have outlined is in their best interests. It has to be given a chance – a serious chance. It can only be given a serious chance with a six month moratorium and twelve months of supervision.
As to the other relevant sections in Part VII - this is not the sort of case where there can possibly be an order for shared parental responsibility. The fathers’ view of the mother is so vehement and so negative that he does not take her views into account and he will not, in my view, take her views into account. The father thinks so little of the mother that he has not facilitated the relationship between the children and their mother for two full years.
In those circumstances there is no chance that they will be able to discuss things sensibly and negotiate outcomes. I know that there is evidence of the parenting app and I know that they have communicated on this and the father has sent information to the mother and that is all very interesting, but at the end of the day it is one thing to send information on a parenting app. It is another thing altogether to actually facilitate a child’s relationship with their mother. The very big issue is the inability to facilitate the relationship.
I note the presumption of equal shared parental responsibility of s 61DA of the Act. It is rebutted, because I am not satisfied it would be in the best interests of the children, for the reasons stated, for the parents to have equal shared parental responsibility. In those circumstances, it is not necessary for the Court to consider s 65DAA(1)(a) of the Act in any event. The types of orders proposed by those sections would not be in the best interests of the children for the many reasons that I have already enunciated. My view is I do not need to provide any further reasons about that.
I agree with the submission for the ICL that the father’s reaction was disproportionate to the risk. I think I already said as much.
I would add, my attention was drawn to a notice of risk filed by the father 25 August 2021. A Senior Judicial Registrar in this Court made an order that the father had until 30 February 2022 to file and serve an affidavit relating to those risk factors that he had raised in that notice of risk, but he did not do so. There is no adequate explanation for that in my view.
As to the schooling, these are matters for the mother. That is to say, which school they go to. I agree that they should change schools, because the current school is where Ms T’s children are at and there cannot be any crossover from one family to the other. It will not be in the best interests of X and Y. It will be difficult to change schools, I understand that. I have taken that into account.
I have not specifically made mention of the evidence of all of the witnesses in this case and nor am I required to. The view that I have taken is that I have referred to those parts of the evidence and to those witnesses required for the determination of the significant issues before the Court.
I know that the father had, apparently, some other text messages and a number of documents. When the father had legal representatives in the trial, a number of things occurred. They applied for an adjournment, I believe, which was ruled on at the time. I do not need to go over that. Reasons were given on that occasion, primarily relating to, amongst other things, the delay that it would impose. At some stage my attention was drawn to the fact that the father had other documents that he wanted to put before the Court, but, as I said - in two rulings thus far already - in relation to those documents and in relation to an affidavit that apparently was put on the portal last night by the father, litigation must be conducted in an orderly way. Litigation must be conducted in a way that is fair to all of the parties. That is to say, if a person has evidence to put before the Court, it must be done in a timely manner and in accordance with the directions of the Court. The Court issued directions a long time ago in relation to the preparation of matters for this trial. The father filed a trial affidavit on 13 July 2023 and then a couple of weeks later filed another one on 25 July 2023, and I read it into the record previously, but I will do so again for the purpose of these reasons. In the second affidavit of evidence in chief - first of all, it was filed contrary to the trial directions. Secondly, none of the other parties objected so I let it in, as it were. Thirdly, in paragraph 2 the father said:-
“I refer to my affidavit of evidence in chief filed in this honourable Court on the l 3th July 2023. Although that affidavit was prepared by a lawyer. I have had the chance of reading it and considering it further. I realise I should have told the Court several other relevant things and explained myself clearer.”
That was the chance for the father to put before the Court, and to the other parties, all of his evidence. All of the things he thinks the lawyer might have left out - that is when he should have put it in. He did not do it. If I had permitted those documents, whether they be text messages or other documents, to be relied upon through the course of the trial, an unfair situation would have arisen, because the mother would not have had an opportunity to consider them and respond properly and adequately by way of affidavit or in some other way. Litigation is not run according to Rafferty’s Rules, but in accordance with proper process and Court directions. The filing of an affidavit on the day that judgment is due after the conclusion of all the evidence and the submissions will not pass muster. The evidence is over. The trial is over. You cannot file an affidavit on the day of judgment. I will say the following again - for the purpose of these reasons - documents and text messages that were not filed in accordance with the directions have not been taken into account by the Court. I do not think I can put it any clearer. The fact that some documents can be tendered in Court is neither here nor there. In this Court, in this jurisdiction, it cannot be trial by ambush. There needs to be proper evidence in chief provided so the other side have a chance to respond. I really cannot say that in any other way.
I would note for the record that there has been a regrettable series of events relating to the father and his lawyers in this trial. He showed up with lawyers on day one, Mr JJ as solicitor from HH Lawyers and Mr GG as counsel - who has been at the Bar a very long time. They stayed. They represented the father and, in my view, quite adequately, until on 4 August 2023 before lunch the father sacked his lawyers and they wanted to go. The lawyers sought my leave to go. I even gave them leave to go, but the father re-engaged them after lunch on 4 August 2023 and the lawyers came back and they stayed for a while longer - a number of days - until the father again sacked them on 8 August 2023 at about 11.30 am. The Court was told by Mr GG that there were reasons why he needed to seek leave to withdraw. In accordance with the usual practice, I did not ask him what those reasons were. The leave was granted and the lawyers left. Regrettable.
I would add - in relation to any disputed evidence that the father may maintain he did not get before the Court - text messages or even some other documents could really only be minor issues in relation to the overwhelming weight of the evidence in this case. The overwhelming weight of the evidence in this case points in one direction. The direction is that these children, when in the care of their father these past two years, have been subjected to alienating conduct. They no longer have a relationship with their mother and the only chance they have of having a relationship with their mother (and with their father) is if the Court makes the orders now that the Court has indicated that it will.
No number of other documents, it seems to me, would be likely to impact the Court’s view one way or the other in the face of the overwhelming weight of the evidence and findings made by the Court.
In relation to the orders to be made, I have got Exhibit 7, which is the Independent Children’s Lawyers orders. Orders will be made in accordance with the Independent Children’s Lawyers draft orders 1 and 2. Order 3 will read, at 3.00pm 11 August 2023 - so that the Independent Children’s Lawyer can explain these orders that have been made in relation to the children -the Independent Children’s Lawyer shall meet with the children at this building and Mr S is requested to be present and to assist with the explanation of these orders to the children and the manager of the Court Child Services is requested to assist with provision of an interview room for the children’s meeting with the ICL and Mr S.
Order 4 ensures, that following the making of this order, the father is ordered to leave the Court precinct. That means not only the building, but the precinct, immediately. The father is required to ensure all members of his family and his partner, Ms T, and her family and children are not in the Court precinct after 3.00pm today 11 August 2023. The children are to commence to live with their mother from 3.00pm 11 August 2023. That is, of course, order 5.
In relation to order 5, the sealed order will be provided shortly to the Court Child Services and to the parties. Order 6 will be made as a moratorium of time. Order 9(a) will read “twelve months of supervision” in accordance with the reasons that I have given. Order 7 is made, as well. The father be and is hereby restrained from committing, causing or acquiescing in his partner, Ms T, or any other members of the paternal family having or seeking to have contact with the children.
Then it’s following the completion of the six-month moratorium. The Independent Children’s Lawyer’s draft orders in relation to supervised time stays the same. My intention is to put in place orders that will have a six-month moratorium, 12 months supervision and I will retire shortly to perfect those orders, but they will be effective as I read them out now. Orders will issue.
In my view, each party has had a chance to make submissions about these orders already and I do not need to hear from anyone else about it and I accept and adopt those submissions made on behalf of the ICL for the reasoning in relation to 10(c) of the Independent Children’s Lawyer draft orders and the school holidays order will stay as drafted there.
The various other draft orders of the Independent Children’s Lawyer are appropriate.
Further, by way of reasons – after the supervision it will not immediately go to overnight time - there will be a three month unsupervised period from 9.00am to 5.00pm day visits on a Saturday (Order 9(b)). Changeovers at a contact centre for three months. Copies of the orders shall be given to Mr S.
The father has requested photos and updates. I think updates are problematic. Such has been the level of the criticism that updates are problematic. As to photographs, it is only a six month period. There will be a school photograph that he can access. I am very concerned at the extent to which the father has gone to try to keep the children away from their mother and I am very concerned at the extent of the criticism of the mother by the father. Every possible conceivable criticism has been mounted. Everything but the kitchen sink has been thrown at the mother and her family and I am concerned about any possibility in this moratorium and supervision period of any more ground or possible fertile ground for the father to criticise the mother, whether it be related to a rash on their face or the haircut they got or a graze on their arm. No orders in relation to provision of information from the mother to the father in the period of moratorium. It is not in their best interests, in my view. The father can access their school information and school photos, if they are taken and, anyway, in six months time at the contact centre, the father will see the children.
Now, I wanted to add further by way of reasons, I am well aware that the Courts do not like long-term supervision orders. I am well aware and I have taken all of that into account, but for the reasons that I have stated in the circumstances of this case the twelve month period is necessary to serve the best interests of these children. There being nothing further, I will stand down and the orders will be perfected.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 11 August 2023
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