GRATTAN & BANCROFT
[2012] FamCA 913
•6 November 2012
FAMILY COURT OF AUSTRALIA
| GRATTAN & BANCROFT | [2012] FamCA 913 |
| FAMILY LAW – CHILDREN – Abuse – Where the children made numerous allegations of physical abuse against the father and his wife resulting in the mother detaining them in her care – Where there was no abuse but rather corporal punishment to discipline the children – Where the children provided inconsistent accounts to school counsellors, police and the Department of Families and Community Services – Where the single expert’s opinion that the maternal family had alienated the children from the paternal family was misconceived and that the children had fabricated the allegations of abuse FAMILY LAW – CHILDREN – where the children live with the mother – where the children initially spend supervised time with the father and thereafter regular, unsupervised time with him – where the initial period of supervised time will facilitate re-establishment of the children’s relationships with the father – where the presumption of equal shared parental responsibility applied but equal time or substantial and significant time with the father was impracticable – where the father’s choice to not interact with his children for almost a year significantly damaged their relationships with him – where the children expressed a strong desire to live with their mother - where the children made violent threats at the prospect of their return to live with the father FAMILY LAW – EVIDENCE – Reliability of opinion evidence of the single expert appointed under Chapter 15 of the Family Law Rules 2004 (Cth) – where the Court departed from the recommendations of the single expert – where the Court found the underlying assumptions of the single expert to be unreliable FAMILY LAW – INJUNCTIONS – Injunction made restraining either party from using corporal punishment on children – no jurisdiction to restrain mother from attending upon her treating therapist |
| Crimes Act 1900 (NSW) s 61AA Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68B, 67ZC and 114 |
| Bancroft & Grattan [2009] FMCAfam 506 Bostoi & Bostoi [2011] FamCAFC 132 Goode & Goode (2006) FLC 93-286 Jacks & Samson (2008) FLC 93-387 Knight v R (1988) 35 A Crim R 314 Marriage of L & T (1999) 25 Fam LR 590 McCall v Clark (2009) 41 Fam LR 483 MRR v GR (2010) 240 CLR 461 Slater & Light (2011) 45 Fam LR 41 U v U (2002) 211 CLR 238 Whipp & Richards [2012] FamCAFC 11 |
| APPLICANT: | Ms Grattan |
| RESPONDENT: | Mr Bancroft |
| INDEPENDENT CHILDREN’S LAWYER: | Winder Lawyers |
| FILE NUMBER: | PAC | 7060 | of | 2007 |
| DATE DELIVERED: | 6 November 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 3, 4, 5 & 6 September 2012 and 9 October 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr I. Duane |
| SOLICITOR FOR THE APPLICANT: | Peter Hamilton & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms J. McIntosh |
| SOLICITOR FOR THE RESPONDENT: | Marina Voncina Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms D. Burns |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Winder Lawyers |
Orders
All former parenting orders and injunctions concerning the children B, born … February 2001, and C, born … January 2003, (“the children”) are discharged.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
(a)On three occasions following the date of these orders, not more frequently than weekly, for a period not exceeding two hours on each occasion, at the D Town Family Support Children’s Contact Service (“the Service”), for which purpose:
(i)The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the Service;
(ii)Each party shall comply with all reasonable requests and directions of the Service;
(iii)The father shall pay any costs due to the Service for use of the venue and supervisory services; and
(iv)The dates upon, and the times during, which the children spend time with the father at the Service will be determined by the Service.
(b) Thereafter:
(i)From Friday 7.00 pm until Sunday 8.30 pm on the second, fifth and eighth weekend during each school term;
(ii)For the second week of each New South Wales school holiday period, except the Christmas school holidays, commencing at 5.00 pm on the middle Saturday and ending at 5.00 pm on the last Saturday;
(iii)From 5.00 pm Christmas Day until 5.00 pm Boxing Day each even numbered year;
(iv)From 5.00 pm Christmas Eve until 5.00 pm Christmas Day each odd numbered year; and
(v)For the last two weeks of the New South Wales Christmas school holidays, ending at 5.00 pm on the second last day before the children return to school and commencing at 5.00 pm on the day 14 days prior.
For the purpose of implementing Order 4(a), the mother shall cause the delivery of the children to, and the collection of the children from, the Service at the commencement and conclusion of the time spent by the children with the father.
For the purpose of implementing Order 4(b):
(a)The mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonald’s Restaurant, D Town, NSW; and
(b)The father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the McDonald’s Restaurant, E Town, NSW.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father each Wednesday when the children are living with the mother, between 6.30pm and 7.00pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;
(b)The mother each Wednesday when the children are spending time with the father, between 6.30pm and 7.00pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time; and
(c)The parent with whom they are not then staying, on the children’s birthdays, between 5.30pm and 6.00pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The mother shall do all things necessary to permit, and the Independent Children’s Lawyer shall do all things necessary so as to provide, explanation to the children of these orders within 7 days of the date of these orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Costs are reserved for 28 days.
Any and all other outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grattan & Bancroft has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: PAC 7060 of 2007
| Ms Grattan |
Applicant
And
| Mr Bancroft |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings involve heated dispute about with whom the parties’ children should live, notwithstanding resolution of that issue some years ago by the Federal Magistrate’s Court.
The children were living with the father pursuant to orders of that Court, but allegations made by the children to the mother in November 2011 about their physical abuse caused the mother to retain the children in her care and commence these fresh proceedings.
Over the period during which the children have since lived with the mother their relationships with the father and members of the paternal family have deteriorated.
The mother attributed that deterioration to the past harsh treatment of the children by the father and his wife and their lack of interaction with the children since November 2011, but the father refuted the allegations of abuse and blamed the mother’s deliberate or inadvertent influence of the children against him for any deterioration in his relationships with them.
The two principal themes of the proceedings were therefore the allegations of the children’s abuse by the father and his wife and, even if the allegations were unsubstantiated, the question of whether the deterioration of the children’s relationships with the father precludes their return to live with him.
Background
The parties separated long ago in 2003.
Former parenting proceedings concerning the parties’ two children, now aged eleven and nine years respectively, were concluded in April 2009 following a protracted hearing before the Federal Magistrates Court.
Parenting orders were then made providing for the father to have sole parental responsibility for the children, for the children to live with him, and for the children to spend time with the mother every fourth weekend and for half of school holiday periods.
Those orders were implemented successfully by the parties, with the father granting permission for the children to spend more time with the mother than the orders provided.[1]
[1] Mother’s affidavit, paras 13-14; Father’s affidavit, paras 28, 58-59
Relations between the parties took a dramatic turn on 11 November 2011. On that day the children reported to the mother and maternal grandmother that they had been physically abused by the father and his wife, which resulted in the mother reporting the allegations to the NSW Department of Family and Community Services (“the Department”) and the conveyance of the children to police where a criminal complaint was made. Over the course of the weekend the mother decided to retain the children in her care pending investigation of the allegations.
The police subsequently initiated apprehended violence proceedings against the father and his wife, and also against the paternal grandfather following a separate incident on 19 November 2011, but those proceedings were later dismissed.[2]
[2] Mother’s affidavit, paras 52, 72-74; Father’s affidavit, paras 67, 102;
The mother commenced these parenting proceedings on 14 November 2011, within days of the children’s revelations, seeking reformulated parenting orders on both an interim and final basis.
The matter came before the Court on 20 December 2011 at which time interim parenting orders were made following a contested hearing. Those orders provided for suspension of relevant existing orders from April 2009, for the children to live with the mother, and for them to spend supervised time with the father.
Despite provision being made for the children to spend supervised time with the father, he voluntarily decided not to implement those orders, meaning that the children have now had no interaction with the father for almost a year.
The father’s decision not to allow the children to see him was, he asserted, motivated by various considerations[3] and was not just a churlish reaction to the Court’s variation of the former orders contrary to his wishes. Still, the father did not avail himself of other opportunities to communicate with the children in circumstances when it might reasonably have been expected to occur.[4]
[3] Father’s affidavit, para 87
[4] Mother’s affidavit, paras 99-104
No criminal charge has been brought against the father, his wife, or the paternal grandfather following the official investigation of complaints made to police and the Department in November 2011.[5]
[5] Father’s affidavit, para 56
Proposal and primary evidence of the mother
The mother began the trial pressing for the orders set out within her Initiating Application filed on 14 November 2011, which essentially provided for her to have sole parental responsibility for the children, for the children to live with her, and for them to spend time with the father. The conditions under which the children were to spend time with the father, including the imposition of permanent supervision, were to be determined by the Court’s findings about whether the father posed an unacceptable risk of abuse to the children.
In final submissions the mother modified her proposal slightly by suggesting she and the father should have equal shared parental responsibility for the children.
In support of her proposal the mother relied upon:
a)Her affidavit filed on 27 August 2012;
b)The affidavit of her husband, Mr F, filed on 27 August 2012; and
c)The affidavit of the maternal grandmother, Ms G, filed on 29 August 2012.
Proposal and primary evidence of the father
The father began the trial pressing for the orders set out within his Further Amended Response filed on 13 August 2012. The father’s proposal partly reflected the opinions and recommendations of the single expert psychiatrist, Dr H, and generally provided for him to have sole parental responsibility for the children and for the children to live with him. Stringent conditions were proposed to regulate the children’s interaction with the mother. The father proposed that the children spend no time at all with the mother for six months, after which they be permitted to spend time with her, but only under supervision at a contact centre for two hours each month.
In final submissions the father altered his proposal in respect of the time to be spent by the children with the mother following the initial embargo period of six months. He proposed that the children spend supervised time with the mother for a full day once every two months over a further period of six months, and thereafter, unsupervised time for a full day once every two months confined to the D Town region.
In support of his proposal the father relied upon:
a)His affidavit filed on 29 August 2012;
b)The affidavit of his wife, Ms J, filed on 29 August 2012;
c)The affidavit of the paternal grandfather, Mr K, filed on 27 August 2012;
d)The affidavit of Mr L filed on 22 November 2011;
e)The affidavit of Mr M filed on 23 November 2011; and
f)The affidavit of Mr N filed on 23 November 2011.
During the course of the trial the father sought and was granted leave to also rely upon the affidavit of the paternal grandmother, which was not filed until 4 September 2012, being the second day of trial.
The father also relied upon the evidence of the single expert psychiatrist who prepared a report dated 23 July 2012. The single expert generally adopted the contents of that report when he was cross-examined, but as will be discussed later, he also made a number of significant concessions.
The father abandoned reliance upon the affidavit of Ms O filed on 22 November 2011.
Proposal of the independent children’s lawyer
The Independent Children’s Lawyer indicated his proposal for parenting orders in his Case Outline document, filed prior to the commencement of the trial, which orders were broadly consistent with the proposal of the father and the recommendations of the single expert. His position remained unchanged at the conclusion of the trial.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the children – primary considerations
Section 60CC(2)(a)
The children have close and loving relationships with the mother. So much was not in doubt. What was in doubt, at least in the minds of the father and single expert, was the benefit that would be derived by the children from their ongoing relationships with the mother.
The father adopted the opinion expressed by the single expert that a “reverse parenting dynamic” had developed between the children and the mother and, if it was permitted to flourish, the children would be deleteriously affected and not benefitted at all by their relationships with the mother in the long-term.[6] The mother refuted such a proposition and contended she offered the children the benefit of a loving, nurturing residential environment from which they could continue to enjoy their relationships with the father.
[6] Single expert report, lines 797-799, 837-841, 1033-1036
It was uncontroversial that the children formerly enjoyed close and loving relationships with the father[7] but that the relationships have now corroded. There was considerable debate about why that was so and the ease with which the relationships could be recovered.
[7] Single expert report, lines 886-887
The children made strongly adverse comments to the single expert about the father and his wife[8] and were observed to react towards the father in an oppositional way. They hid from him behind chairs, made loud noises, and responded caustically in conversation with him.[9] When joined in the observation session by the father’s wife and the paternal grandparents the children’s agitation increased and the youngest child began to cry. Their behaviour shocked the paternal grandparents and caused the father’s wife to weep.[10] In cross-examination the single expert described the children’s behaviour at the time as “extremely agitated and animated”.
[8] Single expert report, lines 401-451
[9] Single expert report, lines 589-621
[10] Single expert report, lines 623-649
The single expert acknowledged that the children have “now developed antipathy towards the father and [his] family” and that they “appear to be very confused”, but he concluded their negativity towards the father and paternal family was a “reflection of their emotional torment from being removed from the paternal family and a justification for this”. The single expert thought that the children still retained close relationships with the father, which have not yet been “irreparably damaged”.[11]
[11] Single expert report, lines 915-927
Axiomatically, whether the children will derive benefit from meaningful relationships with the father is wholly dependent upon reversal of the deterioration that has occurred. The single expert remained convinced that significant improvement would be realised immediately upon restoration of the children to the care of the father, but he believed comprehensive repair of the relationships would likely require professional therapeutic intervention.
If the children’s relationships with the father are successfully repaired then it follows the children will derive benefit from those relationships.
Section 60CC(2)(b)
As would be obvious, the allegations of “abuse” of the children are an important consideration in the outcome of the proceedings.
While allegations of child abuse always have been and always will be considered by the Court as highly influential in the nature of parenting orders made, it should be noted that these proceedings are determined in historical statutory context. The amendments introduced to the Act by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) do not apply. That is because these proceedings were commenced before 7 June 2012 (see items 44 and 45 of Schedule 1 to the amending Act).
Consequently, allegations of “abuse” will be assessed in light of the former definition of that term found in the Act (s 4(1)), which definition essentially amounted to a physical or sexual assault of the child (see Slater & Light (2011) 45 Fam LR 41 at [35]-[37]).
It is necessary to evaluate the evidence concerning the alleged abuse of the children with some care because the issue was hotly contested.
The first allegation of conduct potentially amounting to abuse concerned an incident in March 2011 when the eldest child complained to the mother in an email that the father had hit him with a ruler “in the balls”.[12] The mother sensibly inquired of the child whether it was accidental,[13] but there was no evidence in the mother’s affidavit of the child’s response, so it was impossible to conclude the incident was one of abuse. Nevertheless, both parties were cross-examined about the incident.
[12] Mother’s affidavit, para 20, Annexure A
[13] Mother’s affidavit, Annexure A
The mother revealed she spoke to the father about the incident, who divulged he had accidentally hit the child in the testicles when attempting to smack his bottom with a ruler as a form of discipline. The mother equivocated about whether she regarded the incident as one of abuse, but in any event, she was satisfied with the father’s explanation and took the matter no further.
Conversely, the father emphatically denied the incident alleged by the child but he was not asked about the alleged conversation with the mother over the incident. The father alleged in cross-examination he has not used physical discipline of any sort on either child since he “booted [the youngest child] on the backside” years ago prior to the last proceedings.
Obviously, the parties’ evidence concerning the incident in March 2011 is irreconcilable and the discrepancy is not readily explicable by one of them being mistaken. Most likely one of them was untruthful.
Corporal punishment of the children has not historically been an issue of tension between the parties because both of them formerly indulged in it. The mother admitted she had previously smacked the children with her hand and the father made the abovementioned admission about “boot[ing]…on the backside”.
The evidence revealed it was not until November 2011 that the issue of abuse gained momentum. It is common ground the mother made no complaint to the father about his care of the children before then.
At 11.15 am on 11 November 2011 the father delivered the children to the maternal grandmother for them to spend time with the mother. The eldest child went inside the maternal grandmother’s home, but the youngest child remained with the maternal grandmother while she conversed with the father.[14]
[14] Affidavit of maternal grandmother, paras 8-11, Annexure A (para 3)
Father’s affidavit, paras 29.22, 60
The eldest child placed a telephone call to the mother after he went inside the house, which the mother missed. She returned the call almost immediately, which the eldest child answered.[15]
[15] Mother’s affidavit, para 39
During that telephone call the eldest child reported to the mother (relevantly):[16]
“Mum, I need to talk to you. I have had a gut full of dad and [the father’s wife] hurting me and [the youngest child].”
“Dad hit me with a riding whip and all I did was climb a tree. It hurt and I hate him…he hit me across the legs and it hurt a lot.”
“Guess what…Dad kicked [the youngest child] again and he hit him with a stock whip and he hit me with it too.”
“They [the father and his wife] don’t even feed us properly.”
“The other day [the father’s wife] hit [the youngest child] and called us the F word and little liars…she smacked [the youngest child] across the back of the head and he cried all the way to school. She hit me across the back too. We spoke to [the school teacher] about it.”
[16] Mother’s affidavit, paras 39-43
The mother terminated the telephone call and considered what she should do. Shortly thereafter she telephoned the maternal grandmother and related the eldest child’s story to her.[17] That conversation occurred at 11.30 am.[18]
[17] Mother’s affidavit, para 45
[18] Affidavit of maternal grandmother, para 12
At about 12.00 noon the mother telephoned the paternal grandfather and reported the allegations to him.[19]
[19] Affidavit of paternal grandfather, para 45
The mother then telephoned the Department to report the incident, at which time the mother was engaged in discussion about whether the children were bruised and was given advice to report the matter to police if they were.[20]
[20] Mother’s affidavit, para 46
At about 12.40 pm the mother telephoned the maternal grandmother again to discuss the existence of any bruising to the children. In response to a direct question by the maternal grandmother the children told the maternal grandmother they did have bruises.[21] The evidence is not entirely clear, but the most likely inference is the children were aware they were then being questioned about whether the bruises they identified were caused by the physical abuse which the eldest child had shortly before revealed.[22]
[21] Mother’s affidavit, paras 47-48; Affidavit of maternal grandmother, para 13
[22] Affidavit of maternal grandmother, Annexure A (para 5)
The children were then taken by the maternal grandmother to the P Town Police Station.[23] During the journey to the police station both children made a litany of complaints about the father and his wife, some of which were a repeat of the eldest child’s earlier allegations and others of which were grievances about their generally disrespectful treatment by the paternal family.[24]
[23] Mother’s affidavit, paras 48-49; Affidavit of maternal grandmother, para 14
[24] Affidavit of maternal grandmother, Annexure A (para 7)
The maternal grandmother arrived at the police station at about 1.00 pm, after which both children were interviewed and they independently repeated their complaints to the police. The interviews were recorded and transcribed.[25]
[25] Exhibits M1 and M2
The eldest child confirmed the father had been hitting them “for ages”, which he later revised to an estimate of some “nine years”. Some aspects of the version given by the eldest child to police were consistent with the version he earlier gave to the mother, but other aspects were quite inconsistent. Additionally, some aspects of his complaint to police were also inconsistent with the youngest child’s version. For example:
a)He alleged the youngest child had been hit by the father with a whip the day before, in addition to the similar incident he observed a week or so before on the Q Town trip, although neither child had suggested to the mother the youngest child had been whipped the day before;
b)He alleged the father cracked the stock whip and then hit the youngest child with the whip when it cracked, which was quite different from the youngest child’s version of being hit with the handle of the whip, subsequently given to the mother;
c)He alleged he had been hit by the father with a whip the day before on his upper body, rather than across the legs as he told the mother;
d)He admitted he had no bruise from being hit with the whip the day before and said his only injury was a single bruise on the shin from being kicked by the father on the Q Town trip, about which he said nothing to the mother.
The youngest child’s interview was even more intriguing. In response to a simple question about why he had come to the police station he launched into a lengthy soliloquy of his grievances about the father and the father’s wife, which culminated in a statement of his wish to live with the mother instead of the father. During his interview he demonstrated a bruise on his left elbow and explained that he was “bashed up” by the father and the father’s wife “usually about 50 times a month”.
The youngest child’s explanation to police for the bruise on the inside of his left elbow was that it was caused by the father hitting him with a whip, which wrapped around his arm at that point. That was a significantly different explanation for the bruise from that which he gave to the mother, whom he told he was hit on the elbow with the handle of the whip when the father attempted to hit him on the bottom.[26]
[26] Mother’s affidavit, para 58
The production of documents in response to subpoenae issued during the course of the litigation revealed that both children had spoken to the school counsellor only days before the revelations to the mother and police on 11 November 2011, and made similar complaints about their ill treatment by the father and his wife.[27]
[27] Exhibits M3, M4
There is no doubt about the nature of the oral representations made by the children of their alleged abuse because they contemporaneously made similar complaints separately to the school counsellor, the mother, the maternal grandmother, and police officers. Consequently, I am satisfied the children made the allegations in the terms reported by the mother and maternal grandmother because of the general consistency between their evidence, the school counsellor’s notes and the police-produced documents.
However, the mere making of those reports by the children does not mean the reports of abuse were both truthful and accurate. It is impossible to resist the inference when observing the audio/visual recordings of the children’s interviews that they were both intent on making a case for their removal from the father’s care so they could live with the mother. Their statements, which were curiously inconsistent in some respects, were laced with hyperbole. The single expert formed a similar view when he viewed the recorded interviews, explaining in cross-examination that they seemed “well prepared with stories” and that their “colourful language” did not match their demeanour.
Both interviews were conducted by police with the children in the presence of the maternal grandmother. I do not impute her presence made the children more conscious of an expectation that their complaints to police should be generally consistent with the reports they had earlier made to the mother and maternal grandmother, since they had already independently made similar allegations to the school counsellor.
Turning to consider the veracity of the children’s allegations, there are numerous pieces of evidence proving their potential unreliability, some of which are sourced to the mother.
In the past proceedings the mother told the Federal Magistrates Court that she knew the eldest child exaggerated reports about his discipline by the father.[28]
[28] Bancroft & Grattan [2009] FMCAfam 506 at [115]
During her cross-examination in these proceedings the mother conceded her awareness that an unrelated report of impropriety previously made by the eldest child about another person was false.[29] She also admitted she had observed the youngest child fabricating stories.
[29] Exhibit M6
The father’s wife asserted that in the period leading up to the revelations on 11 November 2011 the children had been lying frequently.[30] She was not challenged about that evidence and I therefore accept it.
[30] Affidavit of the father’s wife, para 19
Photographs of the children’s bruising were taken by police following their interviews.[31] The police prosecutor admitted to the Local Court of NSW during the subsequent apprehended violence proceedings that the bruising appeared inconsistent with injury caused by any instrument or a stock whip.[32] The paternal grandfather held the same view, about which he was not challenged.[33]
[31] Exhibit M9
[32] Father’s affidavit, para 102, Annexure H, pages 99, 101
[33] Affidavit of paternal grandfather, para 42
When the children were taken home from the police station by the mother she inspected the bruising on their bodies.[34]
[34] Mother’s affidavit, para 53
The eldest child had a bruise on his knee. Possibly that was consistent with him being hit “across the legs”, as he alleged to the mother the father had done with a whip, or kicked on the shin, as he alleged to the police the father had done.
The eldest child also had bruising to his back. Possibly that was consistent with him being hit “across the back”, as he alleged to the mother the father’s wife had done.
According to both the police photographs and the mother’s evidence, the eldest child had no bruise on his left elbow, where he apparently told police he had been bruised as a result of being hit by the father with a stock whip at the equine festival.[35]
[35] Mother’s affidavit, Annexure E (page 6 of 10)
The youngest child had bruising to his back and the inside of his left elbow. When cross-examined the mother explained that the reference in her affidavit to the “inside of [his] left side” was a typographical error and was an intended reference to the youngest child’s left “arm”.
The youngest child told the police and the mother he had been hit on the arm with a stock whip and kicked on the “bum” by the father during a trip to the Q Town region in early November 2011.[36]
[36] Mother’s affidavit, paras 58-59; Exhibit M2
The bruise on the child’s left arm was possibly caused by him being hit there by the father with the handle of the whip when the father allegedly attempted to strike his bottom, as the child reported to the mother,[37] or by the unfurled whip wrapping itself around that part of his arm, as he reported to police.
[37] Mother’s affidavit, para 58
Irrespective, the bruising observed on the youngest child’s back and left arm certainly could not have been caused by him being “smacked across the back of the head” by the father’s wife or “kicked on the bum” by the father.
There is a perplexing lack of correlation between the bruising and the forms of gross abuse reported by the children, despite the children alleging to the maternal grandmother when they were asked by her that their bruising was caused by that abuse. In all probability, the bruises sustained by the children are not attributable to any abuse committed by the father or his wife, but rather to vigorous play in which the children have engaged. It could hardly be doubted that the children are active and adventurous. They enjoy rigorous outdoor activity including polocrosse, horse riding, motorcycle riding, camping, soccer, and skateboarding. They have experienced as much, and perhaps even more, injury in the mother’s care than the father’s. In the course of play since moving to live with the mother in November 2011 the eldest child has sustained a knee fracture, for which he required surgery, and a hand fracture.[38]
[38] Mother’s affidavit, paras 179, 182, 198; Father’s affidavit, para 80
The evidence suggests the mother and maternal grandmother countenance the possibility the children’s bruises were unrelated to their alleged abuse by the father. They each told the single expert the alleged abuse was “not horrible physically” and was “more emotional than physical”.[39] The mother confirmed in cross-examination it had occurred to her the children’s bruising could have been sustained in other ways, but was simply prepared to accept the literal truth of what the children said.
[39] Single expert report, lines 712-715
The mother deposed that the children independently made reports of their abuse to school teachers at their former school,[40] and the youngest child told police the abuse had been reported to the eldest child’s teacher and school principal.[41] That is not quite correct because the youngest child reported allegations of abuse to the school counsellor, who then drew the matter to the attention of the school principal.[42] The eldest child’s teacher denied any report was made to her.[43]
[40] Mother’s affidavit, para 62
[41] Exhibit M2
[42] Exhibit M4
[43] Father’s affidavit, para 23
The allegations of abuse in the nature alleged by the children were expressly denied by both the father[44] and his wife.[45] I accept the veracity of their evidence in that regard as they were each tested in cross-examination and each credibly held fast to their denials, and additionally, they each enjoyed inferential corroboration from other witnesses.
[44] Father’s affidavit, paras 44-50, 54
[45] Affidavit of father’s wife, paras 12, 13, 24
In early November 2011 the children enjoyed a camping holiday in the Q Town region with members of the paternal family and their friends. On 2 November 2011 the youngest child fell from his horse, landing on his head, back and arm. On 5 November 2011 he told the paternal grandmother that the bruise on the inside of his left elbow was sustained when he fell from his horse three days before.[46] The father, his wife, and several other witnesses called to give evidence in the father’s case saw the youngest child fall heavily from his horse on that trip causing him to cry. The bruise on his elbow was likely sustained in that way and not through abuse by the father.
[46] Affidavit of paternal grandmother, Annexure A (paras 5-7)
On 7 November 2011, when the father’s wife supposedly smacked the youngest child across the back of the head and hit the eldest child across the back before their departure for school that morning, the children were observed by the father’s brother to be “happy and cheery” and to kiss the father’s wife before they were taken to the bus stop.[47] They were not forced to walk to school that morning, as was alleged to police, because they were taken to the bus-stop by the father’s brother to catch the bus to school some 27 kilometres distant. The report of such abuse to the school counsellor was not immediate and occurred in following days.
[47] Affidavit of Mr L, paras 17-18
On 10 November 2011, when the father supposedly hit the eldest child across the legs with a riding whip at an equine festival after the eldest child had gone missing and climbed a tree, a person who assisted in the search for him saw no physical chastisement when the child was found,[48] contradicting the child’s report to both the mother and police.
[48] Affidavit of Mr N, paras 5-8
In summary then, the inconsistencies in the allegations of abuse and the shortcomings in the evidence of it may be catalogued as follows:
a)The reports of both children about the youngest child being hit on the arm with a stock whip by the father causing a bruise, either at the Q Town in early November 2011 or at all, were:
i)Irreconcilable in their detail; and
ii)Contradicted by the paternal grandmother, who was able to explain the bruise on the child’s left elbow innocently.
b)The report by the eldest child of both children being struck by the father’s wife before their departure for school on 7 November 2011 was contradicted by both the father’s wife and Mr L.
c)The assertion made by the children to both the mother and police of them reporting their abuse to their school principal and teachers was contradicted by the eldest child’s teacher, although a report was made to a school counsellor some days later.
d)The report of the eldest child to the mother about being hit across the legs with a riding whip by the father at the equine festival on 10 November 2011 was:
i)Inconsistent with his report to the police, because he informed police he was hit on the left elbow and then later on the legs in two separate incidents at the equine festival;[49] and
[49] Mother’s affidavit, Annexure E (page 6 of 10)
ii)Contradicted by the observations of Mr N, who helped search for and find him and attested to no physical discipline of the child at that time.
e)The report by the eldest child of the youngest child being whipped by the father on 10 November 2011 was uncorroborated by the youngest child. If such a grievous assault occurred, it is inconceivable the youngest child could have accidentally omitted to mention it when it occurred so proximately to their reports to the mother, maternal grandmother, and police.
f)The bruising observed and photographed on the boys’ bodies is:
i)In some respects, not necessarily consistent with the abuse they alleged; and
ii)In other respects, thought by police to be plainly inconsistent with the allegations of abuse.
The father corrected an error in his affidavit and explained that he had given a statement to the police in January 2012 in relation to the allegations of abuse made by the children. No criminal charges have been proffered against the father or any member of the paternal family,[50] implying no prosecution is intended by the authorities. That imputation is all the stronger following dismissal of the apprehended violence proceedings initially taken against the father, his wife, and the paternal grandfather.[51]
[50] Father’s affidavit, para 56
[51] Father’s affidavit, paras 67, 102; Affidavit of father’s wife, para 23;
The single expert concluded it was “highly improbable” the children’s allegations were truthful and accurate. I concur with the conclusion of improbability, but would not express it so stridently.
The available evidence does not reasonably permit a finding on the balance of probabilities that the children were physically abused by the father or the father’s wife in the heinous nature they alleged, or that the father or his wife pose an unacceptable risk of physical abuse to the children. There is simply too much inconsistency and contradiction in the evidence and too much doubt about the reliability of the children.
However, while not being satisfied about the commission of any “abuse” by either the father or his wife, I am satisfied the father probably did administer corporal punishment to the children from time to time. I do not accept his unconditional denial of using any physical force upon the children as a form of discipline.
It is not illogical, on the one hand, to accept the father’s denial of the gross physical abuse alleged by the children but, on the other, reject his denial of use of any corporal punishment at all. The father may have considered his admission to the use of corporal punishment might more easily have led the Court to an unjustified finding of the much more serious form of physical abuse alleged by the children. Impeachment of his credit on one issue does not necessarily impeach his credit on all issues. The court is at liberty to accept all, some, or none of the evidence given by a witness.
The conclusion that the father probably did physically discipline the children from time to time is based on numerous pieces of evidence, which include:
a)His admission to use of corporal punishment upon at least one child some years ago;[52]
b)The parties’ past mutual acceptance of corporal punishment as a legitimate form of discipline;
c)The father’s expectation the children will be tough and stoic, admitting he has told them “Don’t be a ‘wus’” if he perceived them to be weak;
d)The credibility of the wife’s spontaneous evidence in cross-examination of her conversation with the father in March 2011 about him having attempted to smack the eldest child on the bottom with a ruler and having instead accidentally hit the child in the testicles;
e)The evidence given spontaneously by the maternal grandmother in cross-examination about the children having complained to her about being struck by the father on various occasions over the years between 2009 and 2011; and
f)The improbability that the children’s reports of abuse in November 2011 were complete fabrications without any seed of truth and the likelihood that they were instead exaggerated reports of prior instances of corporal punishment;
[52] Mother’s affidavit, para 207
Corporal punishment administered to a child is potentially an “assault”, and therefore also potentially “abuse” under the Act, because it is conduct which generally entails intentional or reckless inducement of the punished child to apprehend immediate and unlawful violence (see Knight v R (1988) 35 A Crim R 314). The actual infliction of such violence is technically a “battery”, but ordinarily every “battery” includes an “assault”.
However, at least in NSW, depending on the circumstances, lawful correction of a child is a legitimate statutory defence to a charge of assault (s 61AA Crimes Act 1900 (NSW)). In particular, the physical force applied to the child must be reasonable having regard to the age, health, and maturity of the child and also the nature of the alleged misbehaviour (s 61AA(1)(b)) and the application of physical force is not reasonable if it is applied in such a way to cause harm to the child that lasts for more than a short period (s 61AA(2)(b)). If corporal punishment is not an “assault”, neither is it “abuse”.
Suffice to say, such observations are not intended to legitimise corporal punishment of children, which most compassionate adults would regard as unwise even if not unlawful. Rather, it is an explanation for why corporal punishment of a child does not automatically constitute “abuse” under the Act.
The finding of the father’s commission of corporal punishment, but not “abuse”, entails rejection of the children’s allegations, which raises the question of why they would have made such serious allegations against the father and his wife. The single expert said there could be a number of rational explanations but was only prepared to broadly speculate about the possibilities rather than posit an opinion about the probable explanation.
Presently, for the purposes of s 60CC(2)(b) of the Act, it is sufficient to record that, beyond the imposition of an injunction restraining both parties from use of corporal punishment, there is no need for the Court to take steps to protect the children from harm through exposure or subjection to abuse. The single expert agreed.[53]
[53] Single expert report, line 1136
The mother alleged holding other concerns about the nature and quality of the father’s care of the children since the orders were made by the Federal Magistrates Court in April 2009,[54] but I pay no heed to that evidence. The mother decided the grievances were not serious enough to act upon at the time,[55] the father was not challenged in cross-examination about those aspects of the evidence (with the exception of the incident in March 2011), and those grievances were not the subject of any submission about why the residential arrangements of the children should be reversed or why the children’s time with the father should be supervised.
[54] Mother’s affidavit, paras 18-28
[55] Mother’s affidavit, para 29
Even though the mother reported the eldest child complained to her that the paternal family “don’t even feed us properly”, there was no submission made about issues of “neglect” being relevant to the outcome of the proceedings.
There were no allegations of “family violence” said to be influential in the outcome of the proceedings.
Best interests of the children – additional considerations
Section 60CC(3)(a)
The children have made statements to the mother expressing their wish to remain living with her and avoid returning to live with the father. In response to the prospect of orders compelling their return to live with the father they have made extreme threats to run away, kill the father and his wife, and burn the father’s house.[56]
[56] Mother’s affidavit, paras 145, 146, 155, 157, 158, 161, 167
The wife’s evidence of the children’s statements is credible because the children have expressed similar sentiments at their school,[57] to the police,[58] and to independent adults.[59]
[57] Mother’s affidavit, para 163-165, Annexure J
[58] Mother’s affidavit, Annexure E (page 6 of 10)
[59] Affidavit of mother’s husband, para 67
The expressed views of the children, favouring their residence with the mother, have not been a recent phenomenon.
The eldest child was referred to the school counsellor by his class teacher as long ago as February 2010 because of his errant behaviour. He expressed a desire to the counsellor from that time on to live with the mother, whom he complained he visited too infrequently.[60]
[60] Exhibit M3
The youngest child began consulting the school counsellor of his own volition in August 2010. He too lamented not seeing more of the mother and expressed a wish to live with her. His complaints about the father’s household and his idealisation of living with the mother was a constant theme of his consultations with the counsellor.[61]
[61] Exhibit M4
The single expert doubted the genuineness of the children’s adverse comments about the father and their objectionable behaviour towards him, which he rationalised by the children being caught in “a terrible bind”.[62]
[62] Single expert report, lines 964-972
That opinion was elaborated during cross-examination, when he seriously doubted the truth of the children’s threats to run away if returned to the father, which he considered was “part of [their] hyperbole”. While he considered their threats to be alarming, he advised the threats should be regarded as “an expression of their distress, not their intent” and opined the Court should not be “blackmailed” by the nature of the threats.
The single expert’s opinion about the disingenuousness of the children’s statements and behaviour was clearly influenced by two underlying assumptions or conclusions – the first being that the children perceived their residential circumstances to be satisfactory until November 2011, or shortly prior thereto, and the second being that the children’s reports of physical abuse were false.[63]
[63] Single expert report, lines 935-964
I remain unconvinced about the efficacy of the underlying assumptions.
As to the first, the school counselling notes prove that the children were very unsettled for a long period of time before November 2011. Dissatisfaction with their parenting arrangements was being expressed by the eldest child from as early as February 2010 and by the youngest child from August 2010. It is significant that those complaints were made by the children independently of one another and to an independent person such as the counsellor. The father conceded the eldest child even mentioned to him a desire to move to the mother’s home and attend a local school in the township she lived many months before November 2011, which idea the father dismissed.
As to the second, while I doubt the children were grossly abused in the nature they alleged, for reasons already explained, I consider they probably were subjected to physical discipline which they found objectionable. So, while their allegations of abuse were likely false, the fact of their physical chastisement was still likely true.
According to the single expert, the children appear to have experienced normal cognitive and emotional development for their respective ages.[64] The eldest child is now eleven years of age. His age and level of maturity demand that some weight be reposed in his expressed views. The youngest child is still only nine years of age and is still too young for his views to carry any weight in isolation, but the fact that he has independently expressed views over a lengthy period of time that are consistent with the views expressed by his brother is a feature that justifies some attention.
[64] Single expert report, lines 935-936
As was submitted for the mother, rejection of the allegations of abuse is not of itself determinative of the matter. The consequences of forcing the children to return to the residence of the father against their vehement wishes could be highly problematic and repugnant to their best interests. The opinion expressed by the single expert about the relative ease of that process, while honestly held, could nonetheless be erroneous.
Section 60CC(3)(b)
The children’s relationships with the members of the maternal and paternal families reflect the same dynamics of their current relationships with the mother and father. They are close with the maternal grandmother but assert and demonstrate alienation from the father’s wife and paternal grandparents.
Sections 60CC(3)(c), (4)
The single expert’s evidence about the willingness and ability of the mother to promote the children’s relationships with the father was confounding. In his report the single expert acknowledged the mother represented her willingness to him[65] and he said he believed she was genuine in both his report[66] and during cross-examination. However, if not expressed, he at least implied the mother had no corresponding ability to promote the children’s relationships with the father because “her own overwhelming emotional and physical needs prevent[ed] her from being able to place the children’s needs above her own”.[67]
[65] Single expert report, lines 383-388
[66] Single expert report, lines 792-794
[67] Single expert report, lines 794-796
There is a spectre of alienation in the evidence. The children certainly appeared to exaggerate both their adoration of the mother and their criticisms of the father,[68] and some of their criticisms of the father and paternal family were made in the context of them hearing the mother and maternal grandmother express criticisms of the father and paternal family.[69] But that alone is not necessarily convincing proof of the mother’s unwillingness or inability to promote the children’s relationships with the father. Rather, her denigration of the father in the children’s presence, which has the potential to undermine the children’s relationships with the father, is a poor reflection upon her judgment as a parent.
[68] Single expert report, lines 589-720
[69] Single expert report, lines 672-720
Conclusions about the mother’s willingness and ability to promote the children’s relationships with the father are more reliably based on evidence of her conduct outside the litigation, because deeds are apt to prove more than words. The father conceded that when the parenting orders were made in the last proceedings the mother did her best to ensure smooth transition of the children’s residence to him. Since the children have been in the mother’s care under the interim orders made in these proceedings she has made arrangements for the children to spend time with the father and implored the father to contact the children,[70] but he has declined to do so. She has sent to the father, on behalf of the children, their school reports, school photographs, cards and gifts. The mother credibly acknowledged in cross-examination the children would lose an important component of their lives if they had no relationship with the father. I accept her statement of intention to promote the children’s relationships with the father as truthful. Even the father conceded the mother would find it difficult to encourage the children to enjoy relationships with him in circumstances where he refused to pursue or accept interaction with the children.
[70] Mother’s affidavit, paras 92-105
I am satisfied on the preponderance of the evidence that, despite concern about her denigration of the father, the mother is willing and able to promote the relationships between the children and the father.
Similarly, I am satisfied the father is willing and able to promote the children’s relationships with the mother. He capably did so up until November 2011 pursuant to the orders earlier made in April 2009, even enabling the children to spend more time with the mother than the orders provided. The father’s current proposal, calling for an initial embargo and then substantial restrictions on the time spent by the children with the mother, was really a reflection of the single expert’s ultimate recommendations rather than a deliberate plan to impinge the relationships between the children and the mother.
Section 60CC(3)(d)
Making orders broadly consistent with the interim orders that have been in place since December 2011 would require no adjustment by the children to any changes. Whether they continued to remain separated both physically and emotionally from the father and the paternal family would depend upon whether or not the father displayed any change in attitude to his current deliberate ignorance of the orders.
Making orders which provide for the children’s reversion to their residence with the father would certainly entail an adjustment by the children to changed circumstances. They would move back to his home and the school they attended in that area. Although the children have both made comments that literally suggest they would strongly object to those changes and actively subvert them, the single expert considered the children would be relieved to move back to the father and would adjust satisfactorily to the changes.
Section 60CC(3)(e)
There is little practical difficulty or expense involved in the implementation of a parenting regime under which the children live with one parent and spend time with the other.
The father lives in R Town, near to D Town, and the mother lives in E Town. Neither intends to move residence. Their households are some hours driving time apart – sufficiently far apart to preclude the children from spending “substantial and significant time” with the non-residential parent, but not so far apart as to preclude them spending reasonably frequent time with the non-residential parent. Transport is not an impediment for either party.
Section 60CC(3)(f)
Both parties have a proven ability to provide for the children’s physical and intellectual needs. The father did so until November 2011 and the mother has done so since then.
The real controversy in this case is the parties’ respective capacity to provide satisfactorily for the children’s emotional needs.
The repetitive complaints by the children to the school counsellor throughout 2010 and 2011 calls into question whether their emotional needs were being met in the household of the father and his wife. Their persistent complaints of dissatisfaction about varied aspects of their home life suggest the father was oblivious to their emotional stability and security. That inference is reinforced by the father’s ignorance of events at the children’s school. He was surprised when informed of the eldest child’s querulous behaviour at school and did not know the youngest child was so disturbed that he had sought out the school counsellor of his own volition.
In such circumstances it is difficult to conceive how the single expert considered the father appears to have “great insight into their needs”[71] and that the children did not have “any major problems with the father until November 2011 when the children were questioned by the maternal grandmother”.[72]
[71] Single expert report, lines 887-888
[72] Single expert report, lines 893-895
The evidence of the single expert also calls into question whether the children’s emotional needs are now being satisfactorily met in the household of the mother. It is disturbing that the children have become staunchly opposed to interaction with the father and paternal grandparents when, given rejection of their allegations of abuse as untruthful, there is no other obvious explanation for their virulent oppositional behaviour. Perhaps, as the single expert suggested, the children are embarrassed by their unjustifiable repudiation of the father.
Section 60CC(3)(g)
The background of the mother was considered by the father as an important issue in the proceedings.
The father placed considerable store in the adverse findings about the mother formerly recorded in the reasons of the Federal Magistrates Court, delivered to conclude the last round of litigation in April 2009.
The single expert also placed considerable reliance upon the opinions expressed by the single expert witness in that former litigation.
The single expert in the last proceedings was not cross-examined on her evidence, although the mother’s legal representatives had the opportunity to do so, and the single expert’s evidence was then accepted by the Court as being “unscathed”.[73]
[73] Bancroft & Grattan [2009] FMCAfam 506 at [20]
The single expert in the current proceedings quoted, in apparent acceptance of the single expert’s evidence in the prior proceedings, the diagnosis of the mother with “personality disorder of cluster B type with borderline histrionic and narcissistic features”, “dissociative or conversion disorder”, and “somatoform disorder”.[74]
[74] Single expert report, lines 129-138, 853-858
Although that diagnostic substratum was then layered with the single expert’s own observations and opinions, the underlying assumptions were an important component of the single expert’s evidence about the mother’s turbulent background and its detrimental influence upon her parenting capacity. The single expert expressed his concern about the mother’s background thus:[75]
It would seem to me that the mother has suffered a lot of loss and trauma as a teenager. The difficulty coping with these overwhelming events of her adolescence I opine then became transferred into psychosomatic symptoms as her way of coping with her underlying traumas and unresolved issues. The medical care system has become her rationale for coping with life’s stresses. Unfortunately, this doesn’t marry well with competent parenting. I note that the children have also been to doctors on a very frequent basis. This is a worrying development for the children whose development runs the risk of becoming extremely over-medicalised, which was why it was regarded in the previous judgment that the mother’s chronic pain and suffering was deleterious to the psychological wellbeing of the children…I formed the view that the mother cares a great deal about the children and does want to provide well for them. However her chronic somatic condition and her difficulties being able to support emotionally are major problems.
I therefore don’t believe that the mother is able to be the primary caring parent but I do believe she cares about the children. I believe that her contact and value for the children is purely as a contact parent (sic).
In essence this psychiatric state does raise serious concerns about her ability to parent children.
[75] Single expert report, lines 768-785, 836-838, 858-859
No other aspect of the maturity, sex, lifestyle or background of the parties or children was contended to be influential in the outcome of the proceedings.
Section 60CC(3)(h)
Neither parent identified themselves or the children as Indigenous Australian.
Sections 60CC(3)(i), (4)
The mother’s attitude to the responsibilities of parenthood must be regarded as impaired to some extent because of the manner she criticised, and permitted her husband and the maternal grandmother to criticise, the father in the presence of the children and family consultant.[76] The comments made in the children’s presence must surely have revealed to them an expectation that they were entitled to say and act as though they were frightened of the father.
[76] Single expert report, lines 657-720
The father’s attitude to the children and the responsibilities of parenthood is also impaired, but proven in a quite different way.
Following the retention of the children by the mother in November 2011 the father made a decision to sever all forms of contact with the children. His decision was not impulsive or unilateral because he discussed it with his wife and the paternal grandparents, who apparently concurred with his decision. The father described the decision as not being made “off the cuff”.
The father’s severance of all contact with the children meant that the children were then deprived of face-to-face interaction with him at the contact centre and also any form of written or telephonic communication with him. Such a decision was not necessitated by the provisional apprehended domestic violence order taken out against him by police on behalf of the children because that order was revoked as early as 29 November 2011. The interim parenting orders made in December 2011 expressly contemplated ongoing interaction between the children and the father.
The children heard nothing from the father either by telephone, email, card or letter on Christmas Day 2011, on or about 31 December 2011 when the eldest child fractured his knee and then spent several days in hospital, on 6 January 2012 when it was the youngest child’s birthday, on 8 February 2012 when it was the eldest child’s birthday, or in July 2012 when the eldest child fractured his hand.
The husband was invited by the mother on each of those occasions to establish contact with the children, but he stubbornly declined to do so.
The husband conceded the children would have been upset by his silence. Moreover, the father conceded a “lot of damage” had been done to his relationships with the children since November 2011 and that the children may now feel as though “the bridge has been burnt”. He also said he did not know whether the children would be happy about returning to live with him, but that even if they do return, it would not be easy for them and they would require counselling to help them adjust.
They were striking concessions because they starkly contrast with the single expert’s evidence to the effect that the children are resilient and would likely embrace their return to the father’s residence with some degree of enthusiasm.
In his affidavit the father deposed to three reasons for acting as he did: his desire to reduce the psychological pressure he believed was applied to the children by the mother, his desire to avoid any suggestion that he had influenced the children prior to their consultations with the single expert, and to prevent the making of further false allegations against himself and his family.[77]
[77] Father’s affidavit, para 87
In his cross-examination the father stated he made the decision to “pull away” from the children essentially for two reasons: so that they did not need to choose between their parents and to protect himself against the risk of further false allegations against him.
As was made plain by the questions posed to the father, it was hardly likely the concerns he held would be realised in circumstances where the children spent time with him under supervised conditions at a contact centre, and further, none of his concerns could adequately explain his failure to even send the children greetings by way of birthday cards.
The father’s glib and inapposite responses were that “anything was possible with the mother”, that he did not want to feel as though he was “buying them”, by which I understood him to mean he did not want to buy their affection, and he did not wish to “create more confusion” for them. The father also expressed his belief that the children would “understand one day when they are older”. I remain perplexed as to how any of those answers could satisfactorily explain his decision to sever all forms of interaction with the children.
The single expert addressed the father’s motivations in both his report and during cross-examination.
In his report, the single expert promulgated two reasons why the father declined to let the children spend time with him. The first was a reported concern about the onerous amount of travel involved for the children.[78] The second was a suspicion the father wanted to “protect himself as well as perhaps to protect the children from excessive children (sic)”.[79]
[78] Single expert report, lines 578-582, 1024-1026
[79] Single expert report, lines 902-906
The first explanation is obviously not consistent with any evidence adduced by the father, who said nothing about the allegedly onerous travel burden.
The second comment is obviously unintelligible, but whatever the single expert meant to say at that point, it is clear from his use of the word “perhaps” that it was nothing more than mere speculation on his part.
Importantly, the single expert offered no comment in his report about the repercussions for the children of the father’s decision to sever all interaction with them.
The single expert was more forthcoming about the consequences for the children in his cross-examination. He said the father’s decision to withdraw from the lives of the children would have been “very distressing and upsetting” for the children and they would have been “very disappointed”. The single expert also said the father’s decision was “puzzling”, which he found difficult to reconcile with the favourable opinion he had otherwise formed about the father’s parenting capacity.
The father denied he had made the decision to withdraw from the children’s lives to punish them for the false allegations they made against him. Although the father was not tested closely on his alleged motivations, it is difficult to resist the inference that his decision was, at least in part, a petulant reaction to the mother’s retention of them and the Court’s decision to make interim orders in December 2011 providing for the children to remain in the mother’s residential care contrary to his wishes.
Such an inference arises from other instances of disagreeable behaviour by the father, quite apart from the inadequacy of the explanations for his decision to withdraw from the lives of the children.
The youngest child had prescription spectacles, but they were not in his possession when he was retained by the mother in November 2011. The mother requested the father to forward the child’s spectacles to her for the child’s benefit, but the father refused to do so unless the mother paid him $200.[80] The father explained the spectacles were at the child’s former school, but he took no steps to recover them from the school and forward them to the mother. Although the mother may have had her own prescription for the child’s spectacles, it seems she did not procure it until later[81] and she would not have been put to the delay or expense in having it filled if the father had been conciliatory and sent the child’s existing spectacles to her.
[80] Mother’s affidavit, para 107
[81] Exhibit F3
In June 2012 the mother’s solicitors wrote to the father seeking his permission for the mother to take the children on a short holiday to Queensland, acknowledging that the requisite 28 days notice had not been given, but the father promptly replied by email flatly refusing permission because of the absence of proper notice.[82] The father’s refusal was obviously not motivated by any concern the holiday would interfere with the children’s interaction with him because, at his behest, none was occurring.
[82] Mother’s affidavit, para 106; Exhibit M11
Although it hardly needed confirmation, the single expert agreed in cross-examination that such examples of the father’s conduct would serve to obstruct the children’s relationships with him.
The mother was also apparently aggrieved by the father’s failure to permit the eldest child’s review by a paediatrician. In April 2012 the mother obtained a referral for the eldest child to consult with a paediatrician.[83] The mother’s solicitor wrote to the father’s solicitor seeking consent for the consultation to proceed, but the father simply refused and so the mother desisted from arranging the consultation. No explanation was afforded by the father for his attitude, but it is plausibly explained by his knowledge of an existing order restraining the mother from involving the children in certain medical treatment,[84] so I draw no adverse inference.
[83] Mother’s affidavit, para 196, Annexure C
[84] Order 7 made on 24 April 2009; Single expert report, lines 557-558
Section 60CC(3)(j)
Evidence about an incident involving the children, the mother, and the paternal grandparents on 19 November 2011[85] was adduced and debated, but ultimately had no material bearing upon disposition of the proceedings. The mother described it in cross-examination as a “minor incident”.
[85] Exhibit M12
Potentially it represented an incident of “family violence” because the mother felt intimidated by the behaviour of the paternal grandfather (ss 4(1) and 4(1AB)(i)), but the emphasis placed on the incident by the parties was misconceived. The mother had shortly before detained the children; she thought reasonably so, but the paternal family disagreed. Passions were inflamed. The mother and paternal grandfather both accepted in cross-examination that, with the benefit of hindsight, they acted foolishly. It was an isolated incident that occurred at the height of the families’ emotions. There was no like incident before or since, rendering it an aberration.
I am not satisfied that “family violence” is a salient feature of these proceedings.
Section 60CC(3)(k)
There is no family violence order in existence.
Section 60CC(3)(l)
Regrettably, irrespective of the orders made by the Court, there remains a distinct prospect of their failure and hence further litigation over the children.
The single expert said in cross-examination that it was now an “all or none” situation, by which he presumably meant that if the children remain living with the mother he considers it unlikely the children will recover their relationships with the father, but if the children are restored to the residential care of the father they should have very little interaction with the mother. Either way in his view, one party will be dissatisfied and distressed and the children will have lost the benefit of meaningful relationships with one or other of their parents.
The Court cannot expect success from any return to an orthodox parenting regime providing for the children to live with the father and spend time unremarkably with the mother, such as applied under the orders last made in April 2009. The children lost faith in their residence with the father and lied about his physical abuse of them to ensure, or at least facilitate, the change of their residence to the mother. If the children were returned to the residence of the father under orders similar to those made in April 2009 the arrangement would probably again fail for the same reasons that caused the first failure, since the reasons for the children’s wish to live with the mother remain unchanged. Even if the children can be cajoled to remain living with the father, the drastic curtailment of their future interaction with the mother in the manner recommended by the single expert would likely cause the children’s relationships with the mother to atrophy and cease to be meaningful in the sense that phrase has been interpreted (see McCall v Clark (2009) 41 Fam LR 483 at 507-510).
Alternatively, if the children were to remain living with the mother, the father is liable to persist with his refusal to permit them to retain their relationships with him. Whatever the father’s actual motivations, the children have been prevented from spending any time or communicating with him at all since November 2011. The children’s continued residence with the mother would signal to the father continued application of the same considerations and motivations, so from his perspective nothing would have changed. The children could therefore only recover their relationships with the father if he decided to soften his attitude, but there was little evidence to justify an inference that would likely occur.
Section 60CC(3)(m)
The father submitted in his Case Outline document that the mother’s past and ongoing addiction to pain relief medication was a significant factor in the Court’s determination of the proceedings.
There is no evidence of any “addiction” of the mother to pain relief medication.
The mother deposed to her back surgery in February 2010, the consequent amelioration of her pain, and her medication since.[86] She was cross-examined about her pain management strategies and repelled any suggestion she was over-medicated. The single expert conceded he could not say that the medication prescribed for the mother by her back surgeon and general practitioner was inappropriate to her medical circumstances.
[86] Mother’s affidavit, paras 130-144
Other aspects of the mother’s life tend to corroborate her view that she is coping satisfactorily, albeit on medication. The children have lived with her since November 2011 without incident. They presented to the single expert as physically well cared for, they attend school regularly, and the mother’s medication was not known to bear adversely upon her performance as a parent. Moreover, the mother started and continues to conduct her own burgeoning business[87] which now has 15 employees. The single expert agreed those considerations suggested the mother was functioning well.
[87] Affidavit of mother’s partner, para 93
Parental responsibility
The parenting orders previously made between the parties in April 2009 allocated parental responsibility for the children solely to the father. That is not particularly influential because of changed circumstances in the time elapsed since that decision was made and because each party now invites the Court to consider parenting orders afresh.
As already explained, I am not satisfied the father or his wife engaged in abuse of the children. There was no evidence that either parent engaged in family violence. Consequently, the presumption of equal shared parental responsibility applies (s 61DA(2)).
No aspect of the evidence leads me to conclude that the presumption of equal shared parental responsibility should be rebutted (s 61DA(4)) and so the orders therefore provide for the parties to have equal shared parental responsibility for the children.
Ultimately, the father only sought sole parental responsibility if the children were to live with him, but equal shared parental responsibility if the children are to live with the mother. The mother changed her proposal to equal shared parental responsibility regardless of the children’s residence.
The single expert recommended that the husband be allocated sole parental responsibility for the children,[88] but that was in circumstances where he also recommended the children live with the father and be quarantined from the mother for six months before their re-introduction to her on an extremely limited basis.[89] Virtual elimination of a parent from the children’s lives in that way could feasibly justify allocation of sole parental responsibility to the residential parent, but the single expert failed to expose his reasoning for that recommendation beyond simply stating that it is “not possible to have coordinated decision making between these parents”. The father could not satisfactorily explain why he should have sole parental responsibility for the children, other than by simple adoption of the single expert’s opinion.
[88] Single expert report, lines 1125-1127
[89] Single expert report, lines 1084-1095
The parties are both intelligent and both have the capacity to consult one another over issues of long-term major importance to the children, even if only in writing. They have both sent civil text messages to each other in the past and both are capable of email correspondence. The father said in cross-examination he believed he and the mother were capable of discussing matters concerning the children. The mother must harbour a similar belief, otherwise she would not have proposed equal shared parental responsibility. In such circumstances I am not persuaded the evidence justifies displacement of the presumption of equal shared parental responsibility.
Residence
Allocation of equal shared parental responsibility compels the Court to consider making orders providing for the children to live with the parties for “equal time”, or alternatively, to live primarily with one party and spend “substantial and significant time” with the other (s 65DAA).
Neither of those alternative parenting regimes is reasonably practicable because of the distance separating the households of the parties. Importantly, neither of those outcomes was proposed by either party or the Independent Children’s Lawyer and neither option fell remotely within the contemplation of the single expert as a workable regime, who recommended strongly against any shared care arrangement.[90]
[90] Single expert report, lines 1045-1046
Inevitably the children must live predominantly with one party. The father, with the endorsement of the Independent Children’s Lawyer, submitted that he must be the residential parent. The submission enjoyed the strong support of the single expert.[91]
[91] Single expert report, lines 1069-1082
It would be easy to simply submit to and abide by the single expert’s evidence, but after anxious consideration I do not find the ultimate recommendations of the single expert particularly persuasive. Before explaining why that is so, it is instructive to observe that the Court is not bound to accept or reject the whole or any part of the evidence of a family consultant, or a single expert fulfilling that role (see U v U (2002) 211 CLR 238 at 261). The Court would fall into error by simply adopting, without critical appraisal, the opinions of an expert witness as if they were an oracular pronouncement (see Whipp & Richards [2012] FamCAFC 11 at [101]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]-[44]). That is because it is the Court and not the expert vested by the Act with the discretion to make parenting orders.
The opinions of the single expert were predicated upon a number of assumptions and conclusions which were alternatively erroneous, flimsy, or unpersuasively connected to the opinions expressed. They included the mother’s past diagnosis of personality disorder, the mother’s over-medication of herself and the children, the mother’s inability to cope, and the attribution of blame to the maternal grandmother for the false allegations of abuse.
Each of those assumptions should be carefully examined.
The supposition of the mother’s personality disorder was based on the diagnosis by the single expert in the former proceedings some four years ago,[92] which opinion was based on the mother’s antecedent history.[93] There was no significant feature revealed to or by the single expert in the last four years which would permit independent endorsement of the former diagnosis. The single expert admitted in cross-examination that he would not have been able to diagnose any psychiatric or psychological condition in the mother based only upon the unremarkable manner in which she presented to him. She did not display to him any of the characteristics that would have justified the diagnosis by the single expert in the former proceedings.
[92] Single expert report, lines 125-138, 846-859
[93] Single expert report, lines 119-125, 250-270, 726-747
It should not be overlooked that the single expert also said in cross-examination that personality disorders may, but usually do not, resolve over time. The disorder diagnosed by the former single expert some years ago may therefore still afflict the mother, but I am not persuaded it can be safely presumed as an incontrovertible fact given that the single expert in these proceedings could not independently verify the disorder in the mother.
For reasons which were not explored, the single expert simply dismissed the opinions of the mother’s treating psychiatrist which were supportive of the mother, to the extent that they differed from the opinions expressed by the former single expert.[94] There may have been good reason for him to do so, but it was not explained, other than to apparently assume the mother “filters and feeds information” to that psychiatrist.[95] Even if that were true and the history received by that psychiatrist was distorted to some degree, it is a brittle basis upon which to disregard the treating psychiatrist’s opinions in all respects. The mother still consults with that psychiatrist, whose opinions must therefore be current, whereas the views expressed by the single expert in the former proceedings are now some four years old.
[94] Single expert report, lines 76-77, 164-170, 259-263, 762-766, 863-868
[95] Single expert report, lines 863-864
The single expert assumed the mother was over-medicated because of her underlying psychological condition. Again, the single expert recited the conclusions of the former single expert about the mother’s pain syndrome and medical history to a point in time some years ago[96] and then simply concluded “the medical care system has become her rationale for coping with life’s stresses”.[97] However, there is no evidence to support the single expert’s conclusion that the mother has “continued to elicit care through the medical system”,[98] at least to any unreasonable extent.
[96] Single expert report, lines 77-79, 91-96, 119-129, 253-257, 265-270, 742-760
[97] Single expert report, lines 772-773
[98] Single expert report, line 987
Although the single expert acknowledged the mother had back surgery in 2010,[99] he apparently gave no thoughtful analysis as to how the surgery may have improved the mother’s condition and wrought a change in her pain relief regime. The single expert thought the mother’s continuing treatment with fentanyl pain relief patches was “problematic” and of “great concern”,[100] but in the absence of any explanatory elaboration that seems a fragile basis for his conclusion that the mother is “probably opiate dependent”.[101]
[99] Single expert report, lines 256-257, 759-760
[100] Single expert report, lines 745-747, 808-809
[101] Single expert report, line 850, 979-980
The youngest child was born opiate dependent,[102] which is strong evidence of the mother’s opiate dependence in 2003. However, in light of her back surgery in 2010 to relieve her condition, the evidence of abatement in her use of pain medication since that time,[103] and the single expert’s concessions in cross-examination that pain management is not his area of expertise and that he cannot say the mother’s pain relief regime is not commensurate with her medical circumstances, the opinion expressed by the single expert in his report that the mother is probably still opiate dependent seems quite tenuous.
[102] Single expert report, lines 77-78
[103] Mother’s affidavit, paras 123-144
The assumption in the single expert’s report about the mother’s excessive self-medication led to another assumption that she was unjustifiably over-medicating the children.
The single expert noted the former single expert’s opinion about the mother’s tendency to “extend this preoccupation with illness to her children”,[104] the mother’s concession that she had previously been diagnosed as “Munchausen by proxy”,[105] and the father’s reports of the past medical over-servicing of the children.[106] The notation of that history then led to the bald statement:[107]
I note that the children have also been to doctors on a very frequent basis. This is a worrying development for the children whose development runs the risk of becoming extremely over-medicalised, which was why it was regarded in the previous judgment that the mother’s chronic pain and suffering was deleterious to the psychological wellbeing of the children.
[104] Single expert report, lines 126-128
[105] Single expert report, lines 389-393, 804-807
[106] Single expert report, lines 551-554
[107] Single expert report, lines 774-779
Such a conclusion is not consonant with the evidence. There is no evidence at all that the children have been taken to the doctors “on a very frequent basis” by the mother since they have been back in her care.
The father complained about the number of messages he received from the mother informing him about the children’s ailments,[108] but that is evidence about notifications rather than evidence of unwarranted treatment. There could be little doubt about the mother’s need for vigilance given the nature of the orders formerly made in April 2009.[109] The father conceded in cross-examination that he had no evidence of the children being medically over-serviced since their return to live with the mother in November 2011. The evidence only demonstrates that the children have been appropriately treated for injury incurred in play or ordinary illness.[110]
[108] Father’s affidavit, para 81
[109] Order 7 made on 24 April 2009
[110] Mother’s affidavit, paras 177-202
If the single expert’s reference to the children attending doctors on a very frequent basis related to the history antecedent to the last proceedings which culminated in April 2009 it seemingly has little, if any, relevance to current conditions. Moreover, the reference to the “risk” of the children becoming “over-medicalised” implies that the potentiality has not become an actuality. The basis for reliable prediction of such risk is absent given the apparently proportionate medical treatment of the children under the care of the mother since November 2011.
Part of the relevant history recited by the single expert about the mother seeking out medical treatment for the children without proper reason proved to be fallacious in any event. The father told the single expert the mother plastered the youngest child’s arm to make it appear as though it was fractured when it was not.[111] The single expert accepted that report as truthful and accurate[112] to then conclude:[113]
I believe the mother’s judgment about her health issues could not be trusted.
[111] Single expert report, lines 545-547
[112] Single expert report, lines 805-807, 998-1001
[113] Single expert report, lines 807-808
In fact, the report of the father about that incident, apparently heavily relied upon by the single expert, was wrong on two counts. In 2004 the child’s radiographer and general practitioner diagnosed a suspected fracture of his right elbow and the child was referred to a physiotherapist for a cast to be applied. The injury was therefore both diagnosed and treated by medical providers, upon whose advice the mother properly relied.[114]
[114] Mother’s affidavit, para 35, Annexure D; Exhibit M5
The mother also suspected some error on the part of the single expert about his assumptions concerning whether or not the eldest child was properly diagnosed in the past with ADHD,[115] but that had no bearing upon the single expert’s opinions because he was alive to the conflicting evidence on the issue.[116]
[115] Mother’s affidavit, para 33, Annexures B and C; Exhibit M7
[116] Single expert report, lines 170-173, 324-325, 388-389, 548-549
The opinion asserted by the single expert about the inability of the mother to cope with parenting was intricately bound up with his unreliable assumptions about the mother’s medical over-servicing of herself and the children.[117] If the underlying assumptions are unreliable then the opinion premised on those assumptions must also be susceptible to unreliability.
[117] Single expert report, lines 768-779, 794-796
Comparatively, other indicia in the lives of the mother and children suggest she is currently coping quite well with the parenting load. As already noted, the children are physically well cared for and their academic progress is satisfactory. Despite her full-time care for the children, the mother is still able to conduct a thriving business enterprise. The single expert conceded in cross-examination such features auger well for the mother’s capacity to cope, which concession was flatly contradictory with the conclusion expressed in his report that the mother:[118]
…has always had difficulty functioning and being able to be independent.
[118] Single expert report, line 988
Were those aspects of the single expert’s opinions not enough to arouse concerns, perhaps the most confounding aspect of the single expert’s evidence was his opinion about the false allegations of abuse made against the husband.
In his report, the single expert erroneously assumed or imputed that the children’s allegations of abuse were elicited from them by questions posed by the maternal grandmother, whom he believed “contrived” the allegations.[119] That led the single expert to conclude the maternal grandmother was motivated by a desire to have the children restored to the mother’s care and that the mother naively accepted the maternal grandmother’s distorted interpretation of the children’s statements, making her complicit in the subterfuge.[120]
[119] Single expert report, lines 811-815, 1013-1015
[120] Single expert report, lines 818-823
There could be no doubt about the single expert’s implication of deceit on the part of the maternal grandmother because he concluded that she should:[121]
…take most responsibility for this appalling act of taking the children and creating these allegations against the paternal family.
[121] Single expert report, lines 829-834
In fact, the single expert’s assumptions and opinion on the issue were seriously flawed, as he was ultimately impelled to concede.
The allegations were not “contrived” by the maternal grandmother at all. The children reported similar allegations to the school counsellor and mother before they said anything of the sort to the maternal grandmother. They then later repeated similar allegations when formally interviewed by police. Allegations of the sort of serious physical abuse made by the children, said to have caused visible injuries, would have been rightly regarded by any competent parent as extremely concerning. It would have been most surprising had the mother and maternal grandmother not acted to have the allegations properly investigated.
In cross-examination, the single expert was drawn to offer a materially different opinion on the issue from the one earlier expressed in his report. He admitted it was unlikely the children had been coached to make false allegations by the mother or maternal grandmother. Rather, he accepted the mother and maternal grandmother had each formed an honest but mistaken belief about the allegations made by the children. He was therefore forced to agree that he needed to “tone down” his original opinion about the mother being complicit in the maternal grandmother’s “appalling act” of deceit. But that was an understatement of surprising magnitude. It was a complete revision of his earlier opinion, not merely a “toning down” of it.
Suffice to say, such a reversal of opinion was dramatic because the original opinion of subterfuge formed an integral part of the foundation for the single expert’s conclusions about proper parenting orders for the children. The change of opinion could only engender the exercise of considerable caution in acceptance of the single expert’s opinions.
I am disinclined to accept the single expert’s recommendation that the children should immediately be returned to reside with the father and have their contact with the mother seriously curtailed. That recommendation was seemingly tailored by the single expert to suit his original conclusions that the allegations of abuse against the paternal family were manufactured by the maternal family for a spurious motive and that the children’s oppositional behaviour towards the paternal family was a product of their embarrassment about having been used as tools in that process by the maternal family and an attempt to justify their move to the mother.[122]
[122] Single expert report, lines 966-967, 1027-1028
I am not satisfied that chain of reasoning is correct for the reasons already explained. I have furthermore concluded, for reasons which follow, that the children’s best interests are served by orders which require them to remain resident with the mother.
The children’s wish to live with the mother was clearly and persistently ventilated by them with the parties and their school counsellor over a prolonged period of time. The mother said in cross-examination the eldest child first raised with her the prospect of him moving to live with her in about September 2009, just after she moved to E Town from the Central Coast, and then again in about mid 2011, by which time he had a friend attending a school in E Town. Indications of the children’s desire to live with the mother surfaced with the school counsellor throughout 2010. The mother credibly denied she influenced either child to approach the school counsellor and, just like the father, she was even unaware of such counselling until relatively recently. Even the father admitted the eldest child told him during 2011 that he would prefer to live with the mother in E Town, but that he rejected the child’s request or suggestion.
At some point between April and August 2011 the children moved with the father and his wife to their newly purchased property at R Town, some distance away from the property of the paternal grandparents upon which they had been living. The notes of the school counsellor disclose the children’s dissatisfaction with their new residence. The youngest child in particular expressed apprehension about his sense of security in the new home. The father said the home at R Town was “liveable” when they moved in, but the children did not seemingly have the same perception.
By November 2011 the children had lived with the father for approximately three years. By then they found it necessary to fabricate allegations about their mistreatment by the father and his wife to enhance the chance of their removal into the mother’s care.
The single expert could only speculate about the motives for the children’s fabrications but I impute that, in all likelihood, the children perceived that serious allegations of their mistreatment by the father and his wife were necessary in order to help engineer a change of their residence from the father to the mother. I accept the submissions of the mother’s counsel that the children had pragmatically assessed their residential options and selected the mother’s home in preference to the father’s. Were it not otherwise obvious, it should be observed that such a decision by the children is not inconsistent with them retaining their love for both parents.
The father asserted that the children’s agitation for the change of their residence was caused, or at least materially influenced, by the mother’s long held desire to re-contest the parenting orders made in April 2009. The submission for the father went so far as to suggest that the mother and maternal grandmother colluded to undermine the children’s placement with the father, but I reject those submissions. The single expert’s opinion about the maternal grandmother playing a role in undermining the children’s relationships with members of the paternal family[123] was discredited for reasons already explained.
[123] Single expert report, lines 1039-1043
There is little doubt the mother desired the return of the children to live with her, but there is very little evidence to infer the children were privy to the mother’s desire and acted as her accomplices to achieve that objective.
The mother was clearly disaffected with the orders made in April 2009, despite her grudging consent to them.[124] She conceded in cross-examination she had since thought about instigating further litigation in an attempt to reverse those orders, that she had discussed the prospect with her husband, and that she told the paternal grandfather of her intentions on one occasion.[125] But she also credibly said she had never discussed that intention with or in the presence of the children, and further, that to her knowledge they only became aware of her intention to contest their residence once these proceedings were commenced.
[124] Bancroft & Grattan [2009] FMCAfam 506 at [14]-[15]
[125] Father’s affidavit, para 29.14; Affidavit of paternal grandfather, para 16
It is likely the children knew or suspected before the proceedings were commenced that the mother would have preferred them to live with her, but that knowledge or suspicion is quite different from knowledge that the mother had conceived some plan to instigate fresh proceedings to achieve that goal. Only the latter would be concerning. The former is unremarkable because most, or at least many, non-residential parents would prefer their children to live with them and that fact would be known or suspected by the children. That of itself does not necessarily mean pressure is exerted upon the children to act conformably with the non-residential parent’s wishes.
Since the change of residence occurred in November 2011, the father’s decision to sever contact with the children has only served to consolidate their placement with the mother.
The prospect of the children’s return to live with the father has likely been very disturbing to them. A letter from the school reveals that the youngest child became “very concerned and worried over the custody dispute” in the weeks preceding the trial and made written plans about running away if the father regained his residence.[126] Similarly, for some weeks in advance of the trial the eldest child’s defiant and aggressive behaviour was “seriously affecting home life”, as the mother admitted to the school counsellor,[127] and was “extreme”, as the mother agreed in cross-examination.
[126] Exhibit M10
[127] Mother’s affidavit, Annexure B (page 2); Exhibit M7 (page 2)
The single expert said in cross-examination that the eldest child’s errant behaviour in the mother’s home over the weeks preceding commencement of the trial was consistent with the mother’s inability to respond to the children’s needs because of her serious psychological and physical difficulties. It may be consistent, but I am not satisfied that is necessarily the best or only explanation. The evidence of such misbehaviour just as easily exemplifies the anxiety felt by the children about their prospective return to live with the father against their wishes.
The father experienced his own difficulties in controlling the eldest child’s behaviour, suggesting the children were no more settled with him. The father conceded the eldest child had behavioural difficulties after the children moved to live with him in November 2008. The eldest child’s school report reveals that in the second semester of 2009 his “poor choices and his inappropriate behaviour” at times resulted in “time out or detention” at school.[128] Much later, in June 2011, the eldest child was suspended from school for a period of days because of his unruly behaviour. The father conceded in cross-examination the suspension was due to the child’s defiance of a teacher.
[128] Father’s affidavit, Annexure E (page 72)
The children have presented a parenting challenge for both parties. Objective appraisal of the evidence discloses the mother has proven no less capable than the father in the management of their behaviour.
The father conceded in cross-examination that the parties have quite different parenting styles. I accept the validity of that observation. The evidence revealed the mother to be more nurturing, sensitive and attuned to the children’s emotions than the father. That conclusion is exemplified by the father occasionally admonishing the children not to be a “wus”. Although the father denied he had ever directly referred to either child as “a princess”, the nature of his careful answer implied he had perhaps described them in that way to others. The father generally affects an attitude of fairness, but also uncompromising ruggedness. It is easy to envisage how the children may feel some degree of anxiety about meeting the father’s expectations of manliness and prefer the more sensitive parenting style of the mother.
The single expert opined in cross-examination that the children feel under pressure to press for their residence with the mother to please her, but I remain unpersuaded of that. I am more inclined to the conclusion that the children’s mutual desire to live with the mother rather than the father is an idea conceived for their own benefit, developed incrementally over a long period, influenced by the disparity between the parties’ demeanour and parenting styles. Further, their choice of residence with the mother has been entrenched by events over the past year.
It is uncontroversial that the children are now antipathetic towards the father and paternal family[129] and are now “clearly…dichotomized between the mother and father’s families”.[130] The single expert has failed to explain to my satisfaction why that antipathy will likely spontaneously dissolve upon their return to the father’s care. The apprehension expressed by the father in cross-examination about how complicated and difficult a process that would likely prove to be resonates with reality, particularly in light of the concession by both the father and single expert that therapeutic intervention for the children would be a necessary component of any successful restoration to the father.
[129] Single expert report, lines 915-917
[130] Single expert report, lines 942-943
The father conceded during cross-examination that his decision to sever contact with the children was a “blunt response” to their change of residence in November 2011. There is little reason to infer that the father would exhibit any greater insight or sensitivity in responding to the children’s undoubtedly complicated emotional needs were they to be restored to his care. The father said he could book the children in to see a psychiatrist who “works with children and horses” at the “equine centre”, or alternatively take the children for counselling at Anglicare, but he did not convey the impression he was committed to the sort of intense therapeutic support that the children would seemingly need in those circumstances.
Although the father asserted a belief that the mother may have fabricated the statements she attributed to the children about running away, killing the father and his wife, and burning the father’s house, he agreed it was “extremely concerning” if the children did say such things. He also agreed that in such circumstances there could be “terrible consequences” if the children were forcibly returned to live with him.
While I accept it should not be assumed the children intend to act literally as they threatened, I am satisfied the children did in fact make the statements attributed to them by the mother. As earlier recognised, the children made threats of that ilk, even in writing, at school, to the police and to independent adults. The fact that statements of such virulence were made by the children at all is cause enough for serious concern.
The father and Independent Children’s Lawyer acknowledged the removal of the children back to the residence of the father would have “large” adverse repercussions for the children in the short-term, but contended the short-term distress was less prejudicial than the long-term detriment they would otherwise experience by staying with the mother.
Their submissions rested upon the evidence of the single expert to the effect that the children would develop reasonably well with the mother in the short-term, but not in the long-term,[131] and that the children would re-adjust to life in the father’s home relatively swiftly.[132]
[131] Single expert report, lines 1031-1034
[132] Single expert report, lines 1048-1057
Of course, those opinions expressed by the single expert are only forecasts. It is entirely conjectural whether the children will react as the single expert predicts, or rather, in the resistant and oppositional way the children have threatened. Sensibly, the father’s counsel acknowledged that the evidence of the single expert was “very theoretical”, just as was submitted by the mother’s counsel.
Reasons have already been advanced about why considerable caution should attend acceptance of the single expert’s opinions. Even though I am unconvinced about the efficacy of the single expert’s opinion that the children would seamlessly settle back into residential life with the father, I do not reject his opinion out of hand. Rather, I compare it with other available evidence including, among other things, the strident opposition of the children to their return to live with the father, the scepticism of the father that restoration of the children to his care will be as easy a process as the single expert surmises, the settlement of the children with the mother over the last year, the corrosion of their relationships with the father over the past year, and the lack of objective indication that the mother is not coping with the current parenting load.
There must be considerable risk that attempted restoration of the children to the care of the father will result in failure. The single expert agreed in cross-examination it would be “counter-productive” if the children’s rejection of the paternal family was replicated in future. As was submitted for the mother, there is a real and tangible risk that the children’s forced restoration to the father would generate such an unpleasant and problematic situation as not to be in their best interests.
Conversely, aside from the single expert’s predicted eventual failure of the children’s residence with the mother, there is little evidence to objectively corroborate the existence of that risk.
On balance, the former risk seems more pronounced than the latter.
If the children’s residence with the mother did eventually fail, as the single expert predicts, the single expert regards the father as a satisfactory refuge for the children. But if the children were forcibly restored to the father in reliance upon the evidence of the single expert and that placement failed the children would then have no safety net, because the single expert regards the mother as an unsatisfactory alternative.
I am ultimately satisfied the children should live with the mother.
Other orders
Having decided the children should live with the mother, the question then arises about the children’s future interaction with the father.
The single expert considered it “highly unlikely” the children could resume spending time with the father, which opinion was apparently predicated upon his belief that the children’s relationships with the father were not promoted by the mother and maternal grandmother. I am persuaded to the conclusion that the children are more likely to willingly spend time and communicate with the father in the knowledge that their residence with the mother is now settled by the Court’s determination.
Of course the success of future interaction between the children and the father is heavily influenced by the father’s attitude. If he permits it to occur and even encourages it, without acting punitively towards the children for making plain their wish to live with the mother instead of him, then I am satisfied the children’s relationships with the father can be recovered.
There was some apparent uncertainty on the mother’s part about the manner in which the children should spend time with the father. In her Application she purported to leave the decision entirely in the Court’s hands based upon evaluation of the single expert’s opinion,[133] but in her affidavit she proposed much the same parenting regime as previously existed under the orders made in April 2009, albeit in reverse.[134]
[133] Initiating Application filed 14/11/11, Order 8
[134] Mother’s affidavit, para 204
The single expert did not turn his mind to the question of the time to be spent by the children with the father in the event of them living with the mother because his opinion remained throughout that the children should live with the father. Similarly, the steadfast proposals of the father and Independent Children’s Lawyer throughout the trial were that the children live with the father and spend very little time with the mother. Neither postulated any alternative.
Consequently, the Court is left with little evidence and no argument about the regime of continuing interaction between the children and father in circumstances where the children live with the mother. The orders directed to that issue are therefore quite arbitrary.
The parenting regime providing for the children to live with the father and spend time with the mother on one weekend each month and for some extra time during school holiday periods was working reasonably well prior to its breakdown in November 2011. It had a proven record of satisfactory implementation over the preceding three years. Subject to the father’s decision to embrace it, there is no obvious reason why the regime could not operate with reasonable success in reverse. Self-evidently, if the father adheres to his current attitude of estrangement from the children then it will not work.
Assuming the father will relent and permit the children to enjoy relationships with him, the current imbroglio between him and the children needs to be addressed. The best that can be done is for the children to be re-assured that a decision has been made for them to remain resident with the mother and achievement of their re-introduction to the father in the structured environment offered by a contact centre. The need for supervision is not due to any risk posed by the father. Rather, the contact centre simply affords an opportunity for the children to re-establish their emotional connections with the father in the perceived security of a public venue. The children have indicated to the mother their willingness to engage in that form of interaction.[135]
[135] Mother’s affidavit, para 148
Hopefully a brief introductory phase of interaction in that way will thaw their frozen relations and the family may revert to the tried and proven regime.
The best interests of the children will be promoted if they see both parents’ commitment to their re-introduction to and enjoyment of the father’s company. The parties can demonstrate that mutual commitment by equal involvement in the exchange of the children between them. For that reason the mother shall deliver the children to the father at a public venue close to the father’s home at the commencement of the time they are to spend with him and the father shall return the children to a public venue close to the mother’s home at the conclusion of the time they have spent with him. The venues are arbitrarily selected.
It seems readily apparent the children require some form of therapy to help comprehensively restore their relationships with the father and other members of the paternal family. The evidence does not, however, permit the Court to make any order prescribing the nature, frequency or duration of such therapy. It is also possible that the father decides to maintain the present embargo on interaction and communication with the children, which would render any therapy useless. In such circumstances, the submission of the children to therapy should abide the parties’ exercise of equal shared parental responsibility.
Provision is made for the Independent Children’s Lawyer to explain the orders to the children within the next seven days. An independent explanation will obviate the prospect of the children being given a biased explanation by either party.
There are other orders proposed by the parties that cannot or should not be made.
The mother sought an injunction restraining the father from “verbally abusing” the children.[136] I decline to make the order for several reasons. The term “verbal abuse” is incapable of accurate definition and so the proposed order is aspirational rather than prescriptive, rendering it incapable of enforcement. Even if the injunction was capable of enforcement, against the history of false allegations of abuse, it may be a temptation for the mother to interrogate the children about compliance and a temptation for the children to again make spurious allegations, making it fertile ground for further recriminations and litigation.
[136] Initiating Application filed 14/11/11, Order 4
The mother sought a series of injunctions restraining certain behaviour by the father’s wife.[137] The Court’s power does not extend that far because the father’s wife is not a party to the proceedings.
[137] Initiating Application filed 14/11/11, Orders 5-7
The mother proposed an order permitting the children to have telephone communication with the paternal grandparents.[138] An order cannot be properly made in those terms because it does not impose a positive obligation on either party. In any event, it is unnecessary. If the mother intends to let the children communicate with the paternal grandparents an order is superfluous. If the mother recants and refuses to permit the children to communicate with the paternal grandparents they will still be able to do so when they spend time or communicate with the father.
[138] Initiating Application filed 14/11/11, Order 9
The father proposed an order restraining the mother from attending upon her treating psychiatrist,[139] apparently in reliance upon the recommendations of the single expert.[140] The proposed order was not mentioned in final submissions and I am not prepared to make such an order in the absence of argument about the Court’s power to make such an unconditional final order. Arguably it is beyond power as an injunctive order under ss 68B or 114 of the Act, as a child welfare order under s 67ZC of the Act, and as a parenting order under s 64B of the Act (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).
[139] Further Amended Response filed 13/8/12, Order 15
[140] Single expert report, lines 865-868, 1100-1107
The father sought costs against the mother,[141] but the issue of costs was not addressed in final submissions. Any costs application will need to be made within 28 days in compliance with the Family Law Rules 2004 (Cth).
[141] Further Amended Response filed 13/8/12, Order 16
I certify that the preceding two hundred and fifty-seven (257) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 November 2012.
Associate:
Date: 6 November 2012
Affidavit of paternal grandfather, paras 61-62
Affidavit of paternal grandfather, paras 61-62
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