Gomez and Easton

FAMILY COURT OF AUSTRALIA

GOMEZ & EASTON

[2017] FamCA 31

FAMILY LAW – CHILDREN – Where the mother makes allegations of physical and sexual abuse of the children by the father – Where the mother believes the children have been harmed by the father – Where the mother changed her position to seek unsupervised time between the children and the father despite maintaining a belief that he has intentionally harmed the children and will continue to do so - Where the mother alleges that the father has stalked her, hacked her phone and computer and repeatedly broken into her home and motor vehicle – Where the father denies all allegations made by the mother – Where the mother’s allegations are rejected as groundless – Where the mother poses an unacceptable risk of emotional harm to the children – Where the children are to live with the father and spend supervised time with the mother.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Briginshaw v. Briginshaw (1938) 60 CLR 336
Fardon v Attorney General (Qld) (2004) 210 ALR 50
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
Re: H& Ors (1996) 1 All ER 1
SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT:

Mr Gomez

RESPONDENT:

Ms Easton

INDEPENDENT CHILDREN’S LAWYER:

Sue Duncan

FILE NUMBER:

BRC

5038

2016

DATE DELIVERED:

27 January 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

20, 23 - 24 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bunning

SOLICITOR FOR THE APPLICANT:

Logan Legal Centre

COUNSEL FOR THE RESPONDENT:

Ms Lyons

SOLICITOR FOR THE RESPONDENT:

Keith Mole & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

Mr Gomez (“the father”) shall have sole parental responsibility for B born … 2008 and C born … 2010 (“the children”).
Prior to making any decision about a major long term issue (as that term is defined by s 4 of the Family Law Act 1975 (Cth)) in the exercise of his sole parental responsibility, the father shall inform Ms Easton (“the mother”) of the decision he proposes to make and consider any views expressed by the mother. The father shall then inform the mother of any decision made and provide reasons for his decision.
The children shall live with the father.
The father is authorised by this Order to collect the children from their school today or from such other place as may be agreed in order to give effect to this Order.
The mother is restrained and an injunction hereby issues restraining her from contacting the children’s school or the children prior to the father collecting them today or from arranging or requesting any other person to contact the school or the children on her behalf.
The mother shall do all things necessary to facilitate the transition of the children into the father’s care.
The children shall spend time with the mother at all such times as may be agreed between the parties and failing agreement as follows:
(a)       At D Children’s Contact Centre on Saturday 4 February 2017 for up to two hours;
(b)       At D Children’s Contact Centre on Saturday 11 February 2017 for up to two hours;
(c)       At D Children’s Contact Centre on Saturday 18 February 2017 for up to three hours;
(d)       At D Children’s Contact Centre on Saturday 25 February 2017 for up to three hours;
(e)       At D Children’s Contact Centre on Saturday 4 March 2017 for up to four hours;
(f)       Thereafter for the maximum time available at the E Town Contact Centre on one occasion each fortnight.
The mother’s time with the children is to be supervised at all times by a person agreed to by the father and mother and failing agreement by an employee of the D Contact Centre for so long as the mother’s time occurs at that Centre and thereafter by a person employed by the E Town Contact Centre.
The father and mother shall forthwith take all steps necessary to attend an intake interview at the E Town Contact Centre and upon the mother’s time with the children commencing at that Centre the father and mother shall each pay one half of the Centre’s costs associated with supervising the mother’s time with the children.
The father shall deliver the children to and collect the children from any Contact Centre or other place where the children are to spend time with the mother.
The father shall keep the mother informed of his residential address, email address and mobile telephone number.
The mother shall keep the father informed of a means of contacting her in case of an emergency relating to the children.
The father shall inform the mother as soon as reasonably practicable of any serious medical condition suffered by the children.
The father shall keep the mother informed of the name and contact details of the children’s doctors and other health care providers and any such person is hereby authorised to provide to the mother any information relating to the their treatment of the children with any cost associated therewith to be borne by the mother.
The father shall keep the mother informed of the name and contact details of the children’s school and the school is hereby authorised to provide to the mother a copy of any school assessments or reports and school photographs with any cost associated therewith to be borne by the mother.
The mother is restrained and an injunction hereby issues restraining the mother from attending the children’s school without the prior written consent of the father.
The mother’s application to change the children’s surname is dismissed.
All extant applications are dismissed.
The Independent Children’s Lawyer is discharged.
In the event that the mother undertakes treatment as recommended by Dr F she is at liberty to provide to that person copies of any reports produced for the purposes of these proceedings together with a copy of this Order and Reasons for Judgment.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. These particulars are included in this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5038 of 2016

Mr Gomez

Applicant

And

Ms Easton)

Respondent

REASONS FOR JUDGMENT

Mr Gomez (“the father”) and Ms Easton (“the mother”) are unable to agree about what parenting order should be made for their children, B born in 2008 and C born in 2010 (“the children”).
The father proposes that the children live with him and spend supervised time with the mother each fortnight while the mother proposes that the children continue to live with her and spend unsupervised alternate weekends with the father.[1]
[1] The father was granted leave to amend his Initiating Application by substituting the orders sought in his Amended Case Information filed 13 January 2017. The mother was granted leave to amend her Response by substituting the orders sought in her Summary of Argument filed 19 January 2017.
The Independent Children’s Lawyer proposes that the children live with the father and spend supervised time with the mother each week.[2]
[2] The orders proposed by the ICL are set out in exhibit 14.
The matter is complicated because, while the mother proposes the father spend unsupervised time with the children, she nevertheless maintains a belief that the father has sexually abused C and possibly B and that he has intentionally physically assaulted the children and will do so in the future.
The mother’s primary position up until the day before trial was that the father should spend no time with the children. It was only on 1 December 2016 that the mother said to Dr F, consultant psychiatrist, that she simply could not “comprehend” the father having unsupervised time with the children and that she “would never put them in that situation”. Her change in position was unsatisfactorily explained by her.
Despite the mother’s stated beliefs, Ms Lyons, counsel for the mother, submitted that her client does not seek a finding that the father has sexually abused either child nor that he presents a risk of sexually abusing the children. Further, while her client did press for a finding that the children had been physically abused by the father she readily conceded that her client’s evidence on this issue is equally open to an interpretation that the father was not subjecting the children to physical abuse. Ms Lyons frankly conceded that her client’s position did not make sense and submitted -“It is a mental health problem…. She is unwell”. It was her submission that the children should remain living with the mother while she accesses treatment.
Despite the concessions made in the mother’s case I nevertheless consider it necessary to review all relevant evidence in relation to the allegations made by the mother against the father.

background

The mother was born in New Zealand in 1982 and met the father in the United States of America when she was nineteen years of age. The father was born in Latin America in 1975.
The parties married in 2001 and lived in City G, New Zealand before moving to Australia in 2011.
They separated on 21 August 2014 and were divorced on 22 July 2016.
The children have lived with the mother since separation and spent limited time with the father. From separation until April 2015 his time with the children was supervised either by the mother, possibly her parents and a number of different family friends. The mother stopped time in April 2015 and it did not resume until March 2016 and has remained supervised since that time. The mother ceased supervised time on a couple of occasions because of her belief that the supervision was not adequate. Until recently the father was spending supervised time with the children twice each week. Currently the children spend time with the father each Saturday for two hours one week and four hours the next. The cost of supervision is $70 per hour. The parties have been meeting that cost to date from funds left over from a sale of property. There is currently about $1,300 remaining.
The mother and children relocated from Brisbane to the Region H in April 2015 and lived in a refuge or refuges until November 2015. The mother and children continue to live in an undisclosed address on the Region H.
The father continues to live and work in Brisbane and is about to move into new rental premises. He works in sales and earns $55,000 per annum. He has no formal qualifications.
The mother alleges that the father subjected her and the children to family violence during the marriage by physically harming them by pushing her and either pushing or choking the children, isolating the mother from her family and friends and repeatedly making derogatory taunts to the mother by calling her names.
The mother alleges that since separation the father has stalked her, hacked her phone and computer, repeatedly broken into her home and motor vehicle and breached an undertaking and Protection Order.
The children have been interviewed by police and in C’s case this has occurred twice. No further action is proposed by police.
The children have undertaken counselling with a Ms I (in private practice), a counsellor at J Group and with a psychologist at K Group over an extended period. The children have been interviewed by Mr L for the purpose of the preparation of two family reports.
The father denies all allegations made by the mother.
The mother, until very recently, proposed to relocate with the children to New Zealand. That part of her case was abandoned.
The mother suffered a head injury in a car accident in 2003 and again later in that same year when she stood up quickly and hit her head on a door handle. She has had ongoing assessments relating to her compensation claim in New Zealand.
In September 2014 the mother underwent a ‘complex psychological assessment’ in New Zealand. At that time the mother complained of what the assessing clinical psychologist described in his report as “severe and disabling somatic symptoms” including migraines, nausea, dizziness, pins and needles in her arms, legs and head, weakness in her limbs, blurred vision and memory problems. It does not appear that the mother disclosed her recent separation from the father despite being asked about her current social situation. The report notes that “her condition has been stressful to deal with for herself and her husband” and that “there has been some strain on her and her husband due to her health condition” and “her husband had married a far more active person and it has been very tough on him to have to cope with her disability”. It appears from that report that the material cause of the mother’s continuing somatic complaints remains uncertain. It was recommended that the mother undergo a treatment regime involving psychology sessions with a psychologist experienced in dealing with somatic conditions. It is unclear what, if any, further treatment the mother has undertaken.
The mother receives an ongoing compensation payment of $34,000 per annum.
It is apparent that the mother continues to suffer debilitating symptoms as she was admitted to hospital on 31 December 2016 following “on-going headache for past month” described as “10/10” (which I take to be a measure of the pain described by the mother) with “associated photophobia, poor concentration and nausea”. The mother was discharged on 3 January 2017. She is currently taking prescribed medication to manage her migraines and to relieve nerve pain.

How parenting applications are determined

Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[3]
[3] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[4]
[4] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children;
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(emphasis in original)

Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[5]
[5] Banks & Banks (2015) FLC 93-637

Cases involving allegations of sexual or other abuse or risk of harm

The High Court said in M & M[6]:
[6] (1988) 166 CLR 69 at 76
…The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
…
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. …
The utility of the identification and assessment of an ‘unacceptable risk’ was confirmed by the High Court in Fardon v Attorney General (Qld)[7] where the then Chief Justice said:
It was argued that the test, posed by s 13(2) (of the Queensland Act) of ‘an unacceptable risk that the prisoner will commit a serious sexual offence’ is devoid of practical content. On the contrary, the standard of ‘unacceptable risk’ was referred to by this court in M & M in the context of the magnitude of a risk which would justify a court in denying a parent access to a child. The court warned against ‘striving for a greater degree of definition than the subject is capable of yielding’. The phrase is used in the Bail Act 1980 (Qld), which provides that courts may deny bail where there is an unacceptable risk that the offender will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the decision making process is a meaningless charade.
[7] (2004) 210 ALR 50 at [22]
In considering the ‘unacceptable risk’ assessment Fogarty J observed in The Marriage of N & S:[8]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges 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. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
[8] (1996) FLC 92-655 at 82713-4

Standard of proof

Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.

In Re: H& Ors[9] consideration was given to the relevant standard of proof to be applied in civil proceedings relating to an application to place a child in the ward of the relevant authority.
… Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. … Deliberate physical injury is usually less likely than accidental physical injury ... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

does the father pose an unacceptable risk of harm to the children?

Allegations made by the mother

[9] (1996) 1 All ER 1 at 16, 17

Sexual abuse

It is the mother’s current belief that the father has sexually abused C and that he may have sexually abused B. Historically the mother also believed that the father had sexually abused B. No explanation was provided for the change in belief in relation to B.
As best I can determine, the evidence upon which these beliefs are based are as follows: [10]
100. In December 2014 … I had also been concerned for the children’s safety physically and suspected sexually from [B’s] disclosure about the boys at school, coupled with the tickling and “hands on” their private parts by [Mr Gomez] that I had witnessed.
169. On 22 October 2014 [B] told me on many different nights that boys at school had been touching his private parts. B drew pictures each time he spoke of different boys at school. …
170. On one occasion in approximately November 2014 I was holding [B] and asked him if it was just the boys at school who touch his private parts or someone else like daddy and he got an erection immediately and wouldn’t look at me. He said “just at school” and was then moving his head a lot and asked me to put him down and was covering his private parts.
171. On 12 November 2014 I witnessed [Mr Gomez] “tickling” [C]. His foot was in between her leg and his toes were tickling her tummy and his feet were rubbing against her vagina. I immediately told them to stop and told [Mr Gomez] it was not appropriate for him to touch her like that and not to do it again. He rolled his eyes and laughed.
174. On 16 March 2015 C and I were in the car going to pick up [B] from school. She asked me for a sip of my hot drink and I said no because it was tea and had caffeine in it. She asked me “is it hot?” and I said “it’s warm”. She then replied “I remember when the bath was warm and filled really high and dadda was in the bath with me. He asked me to sit on his lap. You know when I milked a cow and I squeezed the thing, the milk came out … what’s that called again? I think it’s called a wee wee … you know I squeezed it and milk came out. It was a long time ago. Like when I was 3. It truly happened Mum it did”. … [the ellipses within the paragraph, apart from the last, appear in the affidavit]
176. On 2 April 2015 [C] made further disclosures to myself. The house was broken into one night at approximately 2.50am. In the morning [C] woke up with her pants and knickers around her ankles. She told me that she had woken during the night and her knickers were around her ankles and her bottom was showing. Her blankets were in a ball across the other side of the room.
[10] Paragraph references are to the mother’s affidavit filed 13 September 2016
Mr L, family consultant, prepared two family reports in this matter, the first dated 7 January 2016 and the second dated 15 December 2016. In the mother’s interview with Mr L for the purposes of the first report the mother was asked about why she thought the father had sexually abused the children. She reportedly said inter alia:
27. … “It was the laughing I would hear when he bathed them. He was adamant he was to do the bathing. I wasn’t allowed to say otherwise. He’d say it was his quality time with them. It was the sounds I could hear from the bathroom. It was excessive laughing every day. …”
Mr L’s assessment that the “weight the mother is placing on the laughter she heard coming from the children when their father used to bath them (in respect to the belief that he sexually abused them) strikes me as approaching irrational”. I concur.
The mother also stated to Mr L that she was certain the father had sexually abused the children and no court decision to the contrary would dissuade her from that view.
The conversation between C and the mother on 16 March 2015 (referred to above) is concerning but not for the reason the mother might think. What is demonstrates to me is the preparedness of the mother to twist anything the child says to fit in with her belief that the father has sexually abused the child. It is also clear that the mother was asking the child questions and that the entire conversation is not produced. The mother leaves out what I regard to be a very pertinent piece of evidence which is only found in the Magellan Report, which states that C had been to a farm where she had witnessed a cow being milked. As the so called ‘disclosure’ that occurred during what was clearly another question and answer session, I place no weight on the statements made by the child as being indicative of her having been in some way sexually abused by the father when she was three years of age or at all.
I make further comment about the 2 April 2015 conversation (referred to above) between the mother and C later in my reasons but suffice to say I do not regard any statement attributed to the children to be a ‘disclosure’ of sexual abuse by the father.
Neither B nor C have made a statement to any person that they have been sexually abused by the father. Indeed, during her police interview in April 2015 C was asked if she had ever told anyone that when having a bath with her father it was like milking a cow and milk came out and she responded with and emphatic “NO”. She also denied that anyone had touched her on her private parts. B told police that only C and his kitten had touched him on his private parts.
There is no evidence at all that would support a finding that the father has sexually abused either child. I reject the allegations as groundless.

Physical and emotional abuse

The mother summarises her experience of the father in paragraph 25 of her affidavit filed 13 September 2016[11] in the following terms:
... I was abused both emotionally and physically during our relationship by [Mr Gomez], as were the children.
[11] Substantial parts of her affidavit were struck out by consent
I observe that a general statement such as the one just quoted is of no forensic value whatsoever.
The mother says at paragraph 28 of her affidavit filed 13 September 2016:
During our relationship [Mr Gomez] monitored who I communicated with. He monitored my phone, emails and social media websites. Sometimes instead of talking to me or verbally abusing me he would log into my computer and delete or change documents to let me know that he was always watching me.
The father denies the allegations and during cross-examination the father reiterated that throughout the marriage he and the mother shared an email address and Facebook account on the one home computer. That evidence was not challenged. He did not know whether the mother had a folder of her documents but denied changing any of them. I accept his evidence.
Under the heading “[Mr Gomez’s] Physical and Emotional Abuse” the mother provides particulars as follows:
74. He frequently called me names such a “bitch” and “fucking useless bitch” if he was not happy with something I should have done by his standards. He would often yell at me and tell me he wished he had never married me.
77. … in May 2013 [Mr Gomez] pushed me very hard with great force. We had been discussing a car he wanted to buy that I did not agree with.
78. On this occasion, [Mr Gomez] and I were in the kitchen when he pushed me almost to the ground. My whole body jarred backwards and I caught myself before I hit the ground. I felt my neck, back and limbs jar, …
80. When we were at home and no-one else was present [Mr Gomez] would often treat the children roughly and aggressively, for example he hurt the children by choking them (particularly [B] – this happened post separation on 4 November 2014 and 13 December 2014). He would regularly grab them, hurt them and push them. He would minimise this by saying they were “just playing” or if [B] told me what he had done to him he would say “don’t lie [B]” and deny it.
81. I recall that on 15 December 2012 [Mr Gomez] pushed [B] into a wall. … [the father] was in a rage and very angry. …
83. I also recall an occasion where [B] went to the park near our house with [Mr Gomez]. … I heard [B] screaming in pain. I ran to [B] and he told me that “Daddy pushed me over!” [Mr Gomez]’s response was that they had been playing soccer and he “tackled” him, even though soccer is a no contact sport. I took [B] to the doctor and it turned out he had broken his collarbone.
In her oral evidence, the mother demonstrated what she meant by ‘choking’. She demonstrated two different acts, one involving the father putting his bent arm around B’s neck while standing behind him and the other involving the father holding B’s neck with his hand while standing in front of him. She said that she had observed the father putting his arm around B’s neck on one occasion and putting his hand around his neck on several occasions. I note that this is at odds with what she reportedly told Mr L in December 2015 when she said that he “choked” B “almost daily”.
In support of her contention that the father has physically harmed C the mother relies upon a drawing by C which the mother says depicts the child’s hair being pulled by the father. The drawing shows two stick figures, one the father and the other C, according to what the mother says C told her. Both stick figures are smiling. It is unclear to me why the mother considers this drawing to have any forensic significance.
I am not persuaded that the father has physically abused the children. I consider that the mother’s observations are more likely to be examples of the father engaging in rough play with the children and reject her evidence that any discomfort or injury arising therefrom was intentionally inflicted. In particular, the occasion when B broke his collar bone occurred while he was playing a ball game with the father. It was an accident.
While calling the mother names such as alleged by her is never appropriate it is difficult to assess what if any impact this had on the mother. The use of expletives may have been common place in their household. The father admits to having called the mother a bitch on one occasion. As to the allegation that the father pushed the mother “almost to the ground” on one occasion I am unsure what to make of that. I am not satisfied on the evidence that any behaviour of the father ‘coerced or controlled’ the mother or caused her to be ‘fearful’.

Breaking into the mother’s home, motor vehicle, stalking, hacking devices etc

The mother maintains a rigid belief that the father has repeatedly broken into her home and on occasions her motor vehicle. Further, that he has hacked into her phone and computer and observed her on cameras. The evidence upon which she relies to support such beliefs is in my view far-fetched and fanciful and of no probative value.
By way of example, the mother described an occasion when she says the father broke into her home during the night and left a diary of hers open on a particular page that she said he would know had some significance for her. She did not hear any disturbance or see any evidence of anyone being in the home apart from the open diary which had a small matchbox toy car on the open page. The mother said that she knew this belonged to the father because when she asked B if it was his, B said it was not. The mother said the father had a collection of such cars when they were together. This evidence is striking for a number of reasons. Firstly, it does not appear in any of the mother’s affidavits. Secondly, the mother must have had at least a momentary thought that the car was B’s because she asked him. Thirdly, none of this was put to the father during cross-examination. Fourthly, it demonstrates the extent of the mother’s capacity to weave intricate tales to support her belief.
Another example is the evidence from the mother that the father broke into her home on 2 April 2015 in the middle of the night. She says she and the children were woken by the neighbour’s dogs snarling and a sound like a container crashing on the tiles in the bathroom. She is convinced the father not only broke into her home but in the ten minutes or so that it took her to settle the children he tidied up the bathroom so that when she checked there was no sign of any disturbance. She did not call the police. The mother says that it is her belief that the father stayed in the house (although she did not see him or hear him). She believes he entered C’s bedroom and pulled off her bedclothes and rolled them into a ball in the corner of her room and pulled her daughter’s pants and knickers down around her ankles. The mother describes C’s statement about this as a “disclosure”. I am not sure what it is supposed to be a disclosure of.
The mother also accused the father of sitting in a parked car outside a refuge she was staying in, on 17 October 2015. The mother noted the registration number and took photos. Police conducted a thorough investigation of the mother’s complaint and I accept that the car in question was rented by an interstate family who were visiting Region H and had stopped to enable the female occupant to breast-feed her baby. The father also had an alibi. Confronted with all of this evidence the mother nevertheless contends – “the driver in my opinion was either [Mr Gomez], or someone intentionally looking like [Mr Gomez]”. In the witness box the mother proffered another theory, namely, that the father and the family in the car were associated in some way. There is not a scintilla of evidence to support the mother’s theory and the police had already rejected such a notion after completing their investigations.
On 15 October 2015 a company called ‘Qld Covert Investigations’ were retained at the mother’s instigation to carry out “an electronic sweep and a physical inspection” of the mother’s accommodation. The investigation revealed “no evidence of telephone tapping or telephone bugging” and “no evidence … that would raise a concern of onsite computer monitoring or eavesdropping of the computer systems” and “no listening devices or tracking beacon found” in her car and no “suspicious frequencies originating from within the confines of the premises that would raise a concern of eavesdropping or wiretapping”.
Despite this evidence the mother persists with her allegations of electronic stalking by the father. I note that the mother did not produce any further evidence of an electronic sweep or physical inspection having been undertaken.
I am not persuaded that the father has ever broken into the mother’s home or stalked her by any means or hacked her phone or computer etc. I reject the mother’s allegations as groundless.

Protection Order

On 22 January 2015 the father provided an undertaking not to commit an act of domestic violence and not to enter the mother’s home. A Protection Order was made in September 2015 by consent without admission. The mother’s Application for a Protection Order was thereafter withdrawn. The Protection Order expired in September 2016.
I reject the mother’s allegations that the father has breached either an order or undertaking on any occasion.

Alcohol

There is no doubt, in my view, that the father did drink alcohol to excess for extended periods during the marriage and that this had a detrimental impact on his relationship with the mother and her parents. It seems that prior to separation the mother’s parents had a close relationship with the father although it was tested at times with his binge drinking behaviour.
The father admits to a period during 2008 and 2009 where he was binge drinking and staying out until the early hours of the morning on occasions. He lost his licence on two occasions in 2008 for driving while under the influence of alcohol. He also admits to a period in 2003 when he turned to alcohol as a means of coping with the mother’s then serious health issues. He admits to attending an Alcoholics Anonymous meeting “to see if he had a problem”. The very fact that he attended the meeting is telling. His medical records indicate a more substantial problem than admitted to by the father. It appears that his excess alcohol consumption was something that was occurring in 2012 in addition to the years conceded by him. At that time he was also being treated for depression.
The father says that he has given up alcohol and has not consumed alcohol for about eighteen months to two years. His medical records indicate that he told his doctor on 28 October 2015 that he last had alcohol two weeks prior. Since October 2015 the father has been subjected to six random liver function and Carbohydrate Deficient transferrin tests. Dr M opines that the results indicate that - “There is no evidence of excessive alcohol consumption or alcohol addiction”.
I am satisfied that the father’s history of excessive consumption of alcohol is not a current problem and does not pose a current risk to the children.

Counselling undertaken by the children

Ms I counselling

The mother first arranged counselling for B with Ms I because she was concerned about “sexual abuse allegations and I had also noticed [B] was affected by [Mr Gomez]’s bullying and aggressive behaviour which affected [B] at home and at school”. B attended weekly and sometimes fortnightly sessions from August 2014 to March 2015.
C attended counselling with Ms I “because I [the mother] suspected [Mr Gomez] had sexually abused [C]”.
Ms I was not a witness and any notes of hers do not form part of the evidence.

‘J Group’s counselling

On 15 June 2015 the mother contacted a counselling service called ‘J Group’. She informed the service that she was seeking counselling for herself and her two children. The records from the service note that the mother said the “two children were sexually assaulted by their father” and that she and the children were currently living in a refuge. Counselling appears to have commenced on the assumption that the children had been sexually abused by their father.
B and C attended at J Group for their first counselling session on 27 July 2015. They attended further counselling sessions on 3 August, 10 August, 17 August, 4 September, 11 September, 25 September, 1 October, and 16 October 2015. Each session was for fifty minutes.
I note that on 25 September 2015 B told the counsellor – “mum wants us to remember what Dad did”. On 16 October 2015 B explained a drawing that he had done in these terms – “before – with dad, happy, with comet [a kitten]. Now – driving away from Brisbane being sad. Future – reunited with Dad, comet and angel”. On a number of occasions B is described as appearing frustrated and angry during the sessions.
I note that on 7 September 2015 the following entry in the J Group records:
… mother said “don’t worry you aren’t expecting us”, she then said “[C] told me something last night and she couldn’t wait until Thursday to tell you.” Saw [C] for approx. 15 minutes spoke about [C’s] birthday and birthday cake. Therapist said, mum said that there is something that you would like to tell me. [C] said “when I went to Dad’s after we had not seen him for a long time, he gave me a hug and a kiss and Daddy kissed me for a long time”. Therapist asked can you tell me more about that and [C] shook her head. Therapist praised [C] for disclosing to her and said that she is very brave for telling me and mummy. …
I find this entry to be particularly concerning. There is nothing in what this little girl said to the therapist to indicate anything untoward and yet it is referred to as a ‘disclosure’. She is praised for being very brave. I can only imagine what messages this sends to a five year old that she has been very brave disclosing that her father kissed her for a long time after not having seen her for a long time. I wonder about the thought processes of adults hearing such an innocent statement that they would attribute some sinister meaning to those words.
I cannot help but share Mr L’s views that such organisations sometimes do more harm than good. It also lends weight in my view to Mr L’s opinion that if the children remain with the mother there is likely to be an escalation in the allegations.
What struck me most when reviewing the notes of the children’s sessions at J Group is how unsettled the children were after the mother moved them from Brisbane to Region H.
I am also struck by the fact that subsequent to the session with J Group on 7 September 2015 C was subjected to a further interview with police on 11 September 2015. The mother’s account to the police of why she had brought C to the police station relates to the alleged kiss and it is apparent that the child made statements to the mother only after questioning by the mother. Indeed, the mother even suggested the identity of the person allegedly kissing the child was the father.
The notes of the interview between the police and child and subsequent conversation with the mother forms part of exhibit 7 (NB C is referred to as ‘vic’ presumably ‘victim’; the father is referred to as ‘susp’ presumably ‘suspect’ and I.O presumably refers to ‘investigating officer’). Relevantly the notes state:
93A conducted with child who during free recall disclosed allegation. Provided that the kiss lasted for 4 hours, then counted to 50 to show amount of time. Provided that she felt scared and told the Susp to stop. Unable to elaborate why she felt scared. Vic provided that previous to this incident it had been approx.. 1 month since she had last seen the Susp. Vic was restless and would not sit still during 93A. Vic also requested toilet breaks and to go see her mother during 93A to get her lunch box. Vic was hard to keep on subject. When asked if the vic had any other concerns, the vic advised that her 6 yr old broth [B] had hit his leg into vic’s front private parts in the bath. Vic provided that she spoke to her mother who put [B] into time out. Further probing into this disclosure indicated [B] had hit accidentally kicked the vic in the private parts, with no intent. I.O spoke with the mother [Ms Easton] after and advised that nil criminal offences detected. Advised that the kiss may have been too long according to the vic’s belief, however if it had been a long period of time since the Susp had seen his daughter it was not unexpected that the susp would have acted in such a manner. Mother advised that vic had made suggestions that something further to the kissing had occurred, but when asked further would become coy and not want to talk about it. Mother given advice about manner of questioning her daughter about disclosures she makes as M. O of matter currently being investigated provides that mother asked leading questions to get information from child. …
Finally, on this issue, I note that at the time of the statement relating to being kissed, the father had not had any contact with the children since April 2015 and had had no unsupervised time with her since separation in August 2014. For the first few months after separation the father spent time with the children at the former matrimonial home while the mother was present. After that time various people supervised the time.

K Group counselling

On 22 March 2016 the mother was interviewed by a worker from the service called ‘K Group’. The mother provided background information to the service including the following:
·[Ms Easton] believes the children have experienced sexual abuse perpetrated by their father, however this was unsubstantiated by Child Safety and charges were dropped by Police due to a lack of evidence.
·[Ms Easton] and children entered refuge approximately April 2015 and things were going well until contact resumed with father in December 2015.
·[Ms Easton] reported threatening and stalking behaviour displayed by father since becoming aware of family’s whereabouts.
·The children display trauma symptoms when they are required to see their dad at supervised contact which include reports of tummy aches, vomiting and diarrhoea.
·[B] is waking multiple times a night and reports he is “scared of robbers”.
·[B] reports he is fearful of [Ms Easton] getting hurt while he is at school or he and his sister getting taken in the night or from school.
·[B] is frequently requesting to go to the toilet or sick bay during class and he has shown some school refusal of late.
·[B] is not experiencing educational difficulties and he is generally on track with milestone development.
·[C] has disclosed to her instances of sexual abuse by her father, however this has not been substantiated and [C] has not disclosed to anyone other than her mother at this stage.
·[C] will often tantrum which looks like “self-harming behaviours” e.g [C] drew multiple lines on her wrists with pen ink.
·[C] is not currently experiencing educational difficulties and she is generally on track with milestone development.
It appears the children attended twelve sessions in the period March to July 2016 with a psychologist, Ms N. Each session went for about an hour although B was resistant to attending or remaining in sessions on occasion. The mother also communicated with another worker from this service namely, Ms O, from time to time.
I note the comments of Ms N in relation to C:
Trauma processing did not take place during the intervention as there was no indication during sessions that [C] was willing or required to process any trauma she may have experienced.
In a session with B on 30 March 2016 he said – “mum feels unsafe around dad but I feel ok. He was mean to mum”.
On 10 May 2016 the mother produced some video clips. Ms N noted that the mother had “multiple video clips (5+) saved on her phone ranging from 10 seconds to 2 minutes”. It is clear from the notes of that session that the mother has been video recording, at least B, and asking him questions. When one question elicits a response that implicates the father the maternal grandmother is heard to ask B to repeat what he just said. Ms N notes that in all the video recordings B looks “flushed (red cheeks)” No recordings were produced in the trial. I assume that they were disclosed as the mother signed an undertaking as to disclosure which was filed in these proceedings on 9 September 2016. I infer that the recordings did not advance the mother’s case. It is a worry that the mother is so intent on gathering evidence that she is prepared to subject B to these practices.
After seven sessions of counselling B informed the counsellor that he did not enjoy coming to sessions as it took away other “fun times”. The sessions nevertheless continued.
At the eighth session on 31 May 2016 B wrote on the whiteboard “I don’t like [K Group]”. He said “It wastes time with friends” and that he would prefer to be playing games at home with friends. At the end of the session Ms N observed B climbing the fireman’s pole in the playground. She heard him say to his mother “I wanna kill myself”. She said he was smirking at the time.
It is significant in my view that the mother’s version of this incident is diarised by her as follows.
There were three particular days that [B] responded strongly to. One of those days was unsafe secrets and the other was safe people. On the day of unsafe secrets, [B] stayed in the session for only ten minutes (out of 45 minutes) and ran out of the room and refused to go back in. [B] then proceeded to climb a pole and told me he was going to kill himself.
When the notes of Ms N are examined it is clear in my view that B was sick of attending K Group. His statements to this effect are clear. When asked about the mother’s diary entry in the context of the counselling Mr L opined that it was possible that B was just frustrated that he had to talk about things that may not be true and has run out of the room as his best way of dealing with a sense of stress and confusion. That is certainly the conclusion I have reached and I am fortified in that view by what occurs subsequent to that session.
When told by Ms N on 12 July 2016 that the next session would be their final session both children reported being happy to be having their final session. When the therapist said that session would be conducted with the children together but there would be an opportunity to talk to the therapist alone B replied – “I don’t need that”.
At the children’s final session on 26 July 2016 the following note appears in exhibit 7:
[B] reentered the room. Clinician, [Ms Easton] and [B] discussed sabotaging behaviour. [Ms Easton] stated [B] was acting like this as he wanted to talk privately to Clinician about something. [B] was observed to state “No I don’t”. [Ms Easton] stated to clinician “he told me last night he wants to talk to you”. [Ms Easton] then stated “Tell [Ms N] what you told me” to which [B] stated “It’s just that for six weeks I’ve been asking to play Soccer outside.” [Ms Easton] was observed to shake her head and state “that wasn’t it”. …
On 4 August 2016 the mother and B attended an appointment with Ms O, the purpose of which was to discuss “a closure plan”. B was asked if he wanted to tell Ms O anything (the mother had informed Ms O that B had requested to attend the appointment and speak to her). When B was asked if he wanted to tell Ms O anything he said he did and then wrote on the whiteboard the following:
At the old house with the pool, dad said to me what happens in the past doesn’t matter and if you tell anyone I will smack you.
B was then questioned about when this occurred and he said it was approximately a year ago. When asked what happened B responded:
When dad broke my collarbone … and made me ride my broken bike … I kept tripping over.
B is then reported to have talked about a “scary phone call” the other night. B made the mother role play the phone conversation. It seems that when attempting to call the maternal grandmother a male voice was heard on the line but the maternal grandmother could not hear B. B said the voice sounded like the father. The mother then commented that this was the first time B had mentioned the voice sounding like the father but she had recognised the voice at the time as sounding like the father “when he is drinking to be honest”.
On 11 August 2016 Ms O received a phone call from a family support worker at the children’s school. She was informed that the mother had said the following:
[B] has started making disclosures to [Ms O] … I don’t think [K Group] will be able to close now … this will be good for court.
[Ellipses in original]

The mother denies making the comment about it being good for court but I consider it more probable than not that she did say that because it is consistent with what I regard as her mission to gather evidence.
The mother then returned to see Ms O on 11 August 2016. Upon arriving the mother was met by both Ms O and Ms N. It is apparent from the notes in exhibit 7 that the mother was less than pleased about the psychologist being present and the psychologist left the appointment. The mother expressed her frustration that her solicitor had not been in contact with Ms O. The mother was informed that “due to the historical nature of the information provided and lack of current concerns disclosed… [K Group] will still be closing with the family as planned”. Ms O’s notes go on to say:
FC was honest with [Ms Easton] about current feelings/concerns associated with court and intentions regarding disclosures. FC observed the [Ms Easton] to start crying as FC talked and [Ms Easton] responded “I’m not making things up just to use in court”.

Evidence from supervisors

Mr P

Mr P supervised the father’s time with the children for two hours on each Wednesday and for four hours on each Saturday for approximately four months from January to April 2015. He ceased supervision as he did not consider there was any need for it. He denies telling the mother that he was uncomfortable being the supervisor due to the father’s anger in front of the children. In relation to his observations of the father and children he says:
12. During all the visits I supervised, I witnessed a relationship of genuine love and mutual affection between [Mr Gomez] and the children. They would always run to him when they were dropped off by [Ms Easton] and greet him with great joy and affection. The children were never hesitant to spend time with [Mr Gomez] and displayed sincere affection for him. This affection would include loving hugs and kisses as what I would consider to be normal displays of affection between a parent and their children.
I accept Mr P’s evidence.

Ms Q

Ms Q supervised the father’s time with the children from 23 March 2016 until 8 June 2016. In all, she supervised twelve visits. Her notes indicate a loving, comfortable and happy relationship between the children and the father. I accept her evidence.

Ms R

Ms R is employed by an organisation known as ‘D’ and this organisation was engaged by the parties to supervise the father’s time with the children from 9 April 2016 to the present. Ms R has supervised time on over thirty occasions.
Prior to commencing the supervision Ms R was told that the mother had made allegations that the father had sexually abused the children.
Ms R has supervised weekly time (sometimes twice weekly) between the father and children. On each occasion Ms R maintained contemporaneous notes of her observations which are before me. The notes demonstrate a healthy happy relationship between the children and their father. Indeed Ms R said in her oral evidence that in all the time she had been providing supervision to numerous families she has never seen a closer relationship between a father and his children than in the current case.
Ms R denied that she had left the children alone with the father on any occasion and denied there had ever been an occasion when she had to stand between the father and B to prevent the father taking B to the toilet. These are allegations made by the mother.
I accept Ms R’s evidence in all respects.

Police interviews with the children

The children were subjected to video interview with police on 11 April 2015. At that stage B was six years of age and C was four years of age. The video interviews were played during the trial. Neither child made any statement that is corroborative in any way with the mother’s belief that C has been sexually abused nor that B may have been sexually abused.
Both children denied that any adult had inappropriately touched their genitalia.[12] Both children spoke fondly about the father and how they enjoyed their time with him.
[12] B said that C and his kitten had touched his private parts
C was again subjected to interview by police in September 2015 at the instigation of the mother. No statement was made by C that corroborated the mother’s belief that she has been sexually abused.

Conclusions about whether the father poses an unacceptable risk of harm

It is not entirely clear when it was that the mother formed what I regard to be her morbid beliefs[13] about the father and why. In the period August to November 2014 the father regularly visited the former matrimonial home to spend time with the children and sometimes stayed for dinner. This apparently was at the recommendation of a counsellor the parties were seeing at the time in order to “help the children with the separation process”.
[13] This is the description used by Dr F and I accept it
The father has only spent time with the children in the company of others since separation. Initially that was the mother or family friends and thereafter in a more formalised supervised setting. Having regard to the observations of the numerous supervisors and Mr L, I find that the father has a wonderful relationship with the children and that he is a caring and loving father who would not intentionally harm the children. I reject the mother’s evidence to the contrary.
There is no reason in my view for the father to be supervised when the children are with him.

does the mother pose an unacceptable risk of psychological harm to the children

Unfortunately the children have been exposed to the mother’s beliefs that the father is a dangerous person. The mother’s various descriptions of B being frightened and anxious (including waking 1 – 4 times every night saying he is afraid or unsafe and that someone is in the house) causes me to find that he lives in a heightened state of panic because of the mother’s inability to protect him from her beliefs about the father. If the only evidence to support this finding was from the mother I might have had some hesitation in accepting what the mother said but, to some extent at least, her evidence is corroborated by her father who describes his observations of B in July 2016. He says that B was upset and unable to sleep because “he was afraid that his dad would come in the night and take him away”. And, B tells Mr L in December 2016 of his worries about robbers breaking in etc. Mr L describes B as a “generalised anxious child and I think it would not take much to raise his anxieties and worries about events in life”.
The mother confirmed in her evidence that the children have been present on occasion when the police have attended and have heard her say to the police that the father has broken into their home. It is also apparent from exhibit 7 that B was present when the mother was interviewed about her allegation that the father was sitting in a parked car across the road from the refuge on 17 October 2015. It seems B has also started to note down registration details of ‘suspicious’ vehicles.
The mother gave evidence of having a safety plan at home and at school in case the father turned up. The safety plan at school was described by her as involving the classes going into “lock down” until the danger passed.
It is clear from the mother’s evidence that she has engaged the children in interrogations and that she has on occasion suggested the answer to the children. By way of example, in the mother’s affidavit filed 13 September 2016 she deposes as follows:
168.(b)(vi) I asked [B] if he kicked his dad because of where his hand was and he nodded yes.
168.(b)(vii) I asked him if yesterday he had screamed when playing with dad because of where his dad’s hand had been and he nodded again yes.
170. On one occasion in approximately November 2014 I was holding [B] and asked him if it was just the boys at school who touch his private parts or someone else like daddy and he got an erection immediately and wouldn’t look at me. He said “just at school” and was then moving his head a lot and asked me to put him down and was covering his private parts.
255. One time I said to [B] “I am sorry your dad used to do this to you [B], but that doesn’t mean you can do this to other people.” [the mother was referring to [B’s] treatment of [C] which involved “punching, choking, smothering with a pillow and throwing her against a wall in a rage”].
256. [B] responded “dad didn’t do that to me”, very strong in his response.
265. … I asked him what he would be afraid of if his dad found him? He said “you know”. I asked him to tell me. He said “you know”. He wouldn’t elaborate further and I didn’t want to push him given his state.
I have formed the view that the mother not only interrogates the children but lacks any ability or motivation to question the accuracy of what they might say to her. By way of example, the mother says that on 26 July 2016 B told her that “when we were in the house with the pool Dad punched me in the face, with no boxing gloves on” and that the father had told him he was “watching and listening to everything we say and if I tell anyone he would hit me”. One might have thought the mother would doubt that the father had punched the child in the face given that such an act would be likely to cause obvious injury to a small child. No such injury is alleged. Not only did the mother not doubt the likelihood of such an occurrence she is likely to have encouraged the child to write it down in his ‘diary’. She annexes the relevant page to her affidavit.
According to exhibit 7 the mother said to the support worker at K Group in January 2016 that the children had not wanted to see the father in December 2015 and C had vomited several times the night before and morning of court (which I assume to be a reference to the interviews with Mr L). The children’s actual reactions to seeing the father were in stark contrast. C could not wait to see the father and both children ran to his arms. Mr L’s observations of their reaction to the father in 2016 were the same.
When asked by Mr L in December 2015 why he thought he was seeing him, B said:
36. … “Because my mum thinks he’s dangerous. My mum says for safety” .
During interviews for the second family report in December 2016 B was asked by Mr L what he thought his mother feels about him and C spending time with their father. B said:
24. … “She doesn’t even want us … she just is feeling very angry at dad and doesn’t want us to ever see him and she’s getting angry at us”.
Asked how the mother gets angry at them B said:
“She shouts at us and she tells us what to do at court and I say she can’t do that and she says you’re right I can’t tell you anything”.
B also told Mr L that his mother says “really negative things” about the father and when asked if he has any worries B replied:
26. … “Yes, like all the gangsters and murderers and that someone’s robbed into our house before and mum keeps saying it will be dad but I don’t think that because dad doesn’t even know where our house is”.
I consider it more probable than not that the mother did make the statements and behave as described by B.
Mr L opined that if the Court did not find the father represents an unacceptable risk of harm to the children it is likely the mother’s anxiety will heighten and if she were unable to manage her reactions, a change in primary care may be warranted.
In his oral evidence Mr L opined that the long term impact on the children remaining with the mother if her beliefs remained unchanged may well be dire and in particular he considered the difficulties for the children as they get older in rationalising their mother’s view of the father with their own experience of him would create a “major risk” of their developing a personality disorder.
I accept Mr L’s opinions.
Dr F clearly struggled with a diagnosis for the mother. He certainly thought she was unwell. He described her as having persecutory ideas with respect to the father which were delusional in quality. He provided a number of alternative tentative diagnoses as follows:
On cross sectional assessment I am concerned that the mother appears to have developed a psychotic illness with persecutory delusions with respect to the father with a clear propensity to jump to conclusions. This paranoid stance appears to have developed in the context of the dispute between the parties and … it would appear the most appropriate diagnosis would be of a Delusional Disorder.
Given the presence of cognitive impairments, particularly in the executive range, these morbid beliefs may also be secondary to her underlying cognitive impairment. I also note the mother describes significant depressive and anxiety symptoms in the context of post-concussion syndrome. …
An alternative diagnosis to a post-concussion syndrome may also be the development of a major depressive illness with somatic features although it would be very atypical.
After reviewing significant material provided by the Independent Children’s Lawyer Dr F opined:
… I remain concerned that the mother has indeed developed a psychotic illness with respect to her beliefs around the father and his ongoing intrusion in her life. It is my view that her beliefs with respect to the father are morbid in nature and have a delusional quality.
… The development of a Delusional Disorder may well be attributable to underlying personality vulnerabilities but may also be attributable to any underlying cognitive impairments that may be apparent, in particular executive dysfunction.
…
Certainly cross sectionally the mother did not present with any objective signs of an ongoing major depressive episode.
…
As to the presence of cognitive impairments, I am concerned that the mother performed not as well as would be expected on executive tasks. It should be noted that bedside cognitive testing is a crude instrument when it comes to assessing the presence or otherwise of significant cognitive impairments but is certainly a marker that further investigation is warranted. It would appear unlikely that the head injuries as described by the mother would account for these deficits although I must admit to having no particular expertise in such matters.
Dr F noted that if the mother’s condition is in fact a Delusional Disorder it would be very difficult to treat. He regarded the mother’s change of position regarding the father having unsupervised time as a positive one in that it may demonstrate a preparedness to acknowledge that her beliefs are not valid.
I am not persuaded that the mother has any current capacity to doubt the soundness of her own beliefs about the father and if the children remain with her it is more likely than not that her attempts to inculcate the children with her beliefs will continue. I accept Mr L’s opinion that there is likely to be an escalation in the allegations against the father were the children to remain with the mother.
I find that the mother currently poses an unacceptable risk of emotional and psychological harm to the children if she were to spend unsupervised time with them. Unfortunately, as her parents share a number of what I have found to be her irrational beliefs about the father, they would not be suitable supervisors at this time.

The father’s capacity to be the primary carer of the children

As already stated I am satisfied that the children and the father have a close and loving relationship but they have only spent limited time with the father since separation. By all accounts he manages the children well in these limited settings. He has undertaken numerous parenting courses since separation and demonstrates a clear desire to be the best parent he can.
I certainly gained the impression, particularly from the family reports, that the father was a reluctant applicant to change the children’s primary care arrangements but in the end felt he had no other option given the mother’s inability to promote his relationship with the children.
A move from their mother will be a significant change for them. Apart from her morbid obsession with the father she is by all accounts a wonderful mother as acknowledged by the father. Having said that, I note the mother has experienced difficulties at times in providing care for the children because of her somatic symptoms. Most recently she required admission to hospital for four days. It is troubling, although not surprising, that the father was not made aware of her predicament. It was perhaps fortunate that her parents happened to be in Australia and were able to care for the children.
Mr L’s assessment is that the children will cope with the change of primary care and change of school. I accept his evidence.
As the mother uprooted the children from Brisbane in 2015 and moved to Region H, a change in primary care to their father will involve another change in school as well as home. The father is about to move into a new rented home and has made arrangements for the children to attend the local school. He says his mother and sister are effectively on stand-by to travel to Australia to provide some initial support. He also says that his new employer has indicated a preparedness to be flexible with his working hours so he can take the children to school. While I have no evidence from the employer or his family members I am prepared to accept that the father will take all steps necessary to assist the children in what will be a very big change for them.

what order will best meet the needs and interests of the children at this time

I have considered a number of options.
Firstly, making an interim order leaving the children with the mother to enable her to submit to treatment and continuing the father’s supervised time with the children. I have rejected this option because it is entirely unclear whether the mother’s beliefs, which I find to be irrational, are amendable to change with treatment. If she does suffer from a Delusional Disorder, Dr F considers such disorders are notoriously difficult to treat. The best he can say is that a suitably skilled psychiatrist will know within approximately three months of treatment whether the mother is amenable to treatment. Understandably, he was unable to say how long treatment would need to continue. Of course a Delusional Disorder is only one of a number of possible conditions that may explain the mother’s morbid beliefs about the father. There is just too much uncertainty about the first option and it still exposes the children to living in the heightened state of anxiety with the mother constantly on the look-out for evidence that supports her beliefs. I am not prepared to leave the children with the mother and just ‘see how it goes’.
Secondly, I have considered making the order proposed by the mother at the outset of the trial, but for the reasons just stated in relation to the first option I do not consider this to be viable. The mother, in my view, has no capacity to cope with the father having unsupervised time given her continuing stated beliefs. The risk of harm to the children would be even greater than under the first option.
Thirdly, I have considered making an interim order for the children to live with the father and spend supervised time with the mother but again for some of the reasons stated in relation to option one I do not consider this to be a viable option. Further, I consider it important for the children to have some stability and for the parents to be relieved of their involvement in litigation.
Finally, I have come to the conclusion that the best outcome for the children in the circumstances of this case is for them to live with the father and have supervised time with the mother. While ongoing supervision is not ideal it is the best outcome in the circumstances of this case. I consider the disappearance of the mother from the children’s lives to be a far greater risk of harm than coping with ongoing supervised time with her. Mr L was of the view that the mother’s very good relationship with the children would be able to be maintained with some contact. I accept his evidence. Dr F considered ongoing supervised time between the mother and children would be a “major strain” for the mother without treatment. I expect it will be, but the mother says she is currently seeing a counsellor (of some sought) and has not indicated an intention to cease to do so.

While the order I propose to make is a final order, it has often been noted in this jurisdiction that no parenting order is truly final. In the event that the mother can demonstrate a significant change in her circumstances i.e. that she no longer holds her irrational beliefs about the father, she may be able to persuade a future court to reopen the parenting arrangements so as to remove the need for supervision.
I do not propose to make an order that the mother attend upon a psychiatrist or any other medical practitioner as proposed by the Independent Children’s Lawyer. That is a decision entirely for the mother.
In relation to the time to be spent by the mother with the children the father submits that the long term cost of having a private supervisor is prohibitive. The current hourly cost is $70. The parties only have about $1,300 left in trust from which to continue to meet the costs of supervision. It is proposed on his behalf that supervised time occur at a contact centre once the money is depleted. I propose to accede to that submission. It will no doubt take some time for a contact centre to be in a position to offer the parties a place so I will order that they enrol and undertake any intake session as soon as possible.
As I expect the mother will find the change in primary care to be very challenging I consider the first several periods of time she spends with the children to be for a relatively short time. If the supervisor agrees I see no difficulty in one or other of the mother’s parents accompanying her after the first occasion.

parental responsibility

Given the nature of the mother’s beliefs I have no confidence that these parties have any capacity to confer and reach joint decisions about major long term issues in relation to their children. It would not be in the children’s best interests for such an order to be made.

name change

The mother reverted to her maiden name upon her divorce from the father on 22 July 2016 and now seeks an order that the children’s surname be changed to a hyphenated surname, Gomez-Easton.
In support of the name change Ms Lyons for the mother submitted:
If the mother's maiden name was included for the children it would show the children that they obviously have two parents ... and show by way of representation that they have a mother and a father and maternal and paternal heritage and I take it no further than that.
I have no doubt the children know they have two parents. The mother says in her affidavit, the children are aware that their surname is ‘Gomez’. They are both at school and known by that surname. They are known in the community by the surname ‘Gomez’ e.g. they are registered at the local medical practice as ‘Gomez’.
The mother says that it was something the children want. I reject that. In that regard I note the evidence from Ms Q (a supervisor of the children’s time with the father for a period in 2016) where she records as follows:
Daughter said that she would like her last name to be same as mums and mum asked the lawyer, son said he wants his dads last name. dad managed conversations well saying their names are decided by mum and dad and then changed the topic.
(errors in original)
I do not accept that C was expressing an independent wish to change her surname to her mother’s current surname. If what C says is accurate she has been exposed to some discussion about a name change. The record certainly does not support the mother’s evidence of the children wanting a hyphenated surname. B clearly stated he wanted his father’s surname.
In any event, my order will provide for the children to live with the father. I do not regard a name change to be in the children’s best interests.

conclusion

For the reasons stated I propose to order that the children live with the father and spend supervised time with the mother. The father will have sole parental responsibility and there will be no change to the children’s surname.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 January 2017

Associate:

Date: 27 January 2017

[2017] FamCA 31

27 January 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies