Halley and Halley

[2011] FamCA 71

FAMILY COURT OF AUSTRALIA

HALLEY & HALLEY [2011] FamCA 71

FAMILY LAW – CHILDREN - Best interests – Sole parental responsibility – No face-to-face contact – finding of substantial risk of psychological, emotional and physical harm of the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Halley

RESPONDENT: Ms Halley

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: MLC 13613 of 2007

DATE DELIVERED: 17 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 18, 19, 20, 23 & 24 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart

SOLICITOR FOR THE APPLICANT: Kordell Lawyers

COUNSEL FOR THE RESPONDENT: In person on 18, 19, 20 and part of 23 August 2010, no appearance on 24 August.

SOLICITOR FOR THE RESPONDENT: n/a

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Spehr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Saines Lucas Solicitors

Orders

IT IS ORDERED THAT

1. All previous parenting orders in relation to the children of the marriage A born … May 2001, B born … February 2003 and C born … October 2004 (“the children”) be and are hereby discharged.

2. The husband have the sole parental responsibility of and for making all decisions with respect to the children.

3. The children live with the husband.

4. The children not spend face to face time with the wife other than as may be agreed in writing between the husband and the wife.

5. The wife communicate with the children as follows:

   a.by telephone of up to 20 minutes duration with the husband to facilitate the children in making the call:

   (i)on each of the children’s and the wife’s birthdays; and

   (ii)on Mother’s Day, Easter Sunday and Christmas Day between 10:00am and 7:00pm;

   b.by card or gift on each of the occasions referred to in sub-paragraph a.  hereof;

   c.by e-mail initiated by the wife on not more than one occasion in each calendar month; and

   d.as may be otherwise agreed in writing between the husband and the wife.

6. For the purpose of ensuring the wife's compliance with paragraph 5 hereof, the husband be and is hereby authorised, at his sole discretion, as follows:

   a.to monitor such telephone calls and terminate them if reasonably necessary for the children’s wellbeing; and

   b.to first read any written correspondence sent to the children and supervise the same if reasonably necessary for the children’s wellbeing.

7. The husband and the wife each keep the other advised of their current residential address, home and mobile telephone numbers and e-mail addresses.

8. The wife be and is hereby restrained by herself, her servants and agents as follows:

   a.spending time or communicating with any of the children other than in accordance with these orders;

   b.attending any school, school event or like activity other than in accordance with these orders;

   c.criticising the husband, the husband’s current wife Ms D, or any member of their families in the presence or hearing of the children;

   d.discussing any issue or showing any document directly or indirectly relevant to these proceedings with any of the children; and

   e.in the event that the wife spends any time with the children in accordance with these orders, taking the children or any of them to any psychologist, social worker, medical practitioner or like professional other than in the event of a physical emergency in which case she inform the husband thereof as soon as absolutely possible.

9. The husband be and is hereby required to -

   a.forthwith advise the wife of any health issue concerning any of the children which requires hospitalisation; and

   b.instruct and authorise any school or kindergarten attended by any of the children to provide to the wife at her expense copies of all reports and school and kindergarten photographs of and relating to the children as soon as practicable after preparation thereof.

10. The husband be and is hereby authorised to provide a sealed copy of these orders to the principal or head of any school or kindergarten attended by each of the children.

11. All parties forthwith return all copies of subpoenaed and exhibited documents to the Court in accordance with the order made on 9 August 2010.

12. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders

13. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

14. General liberty be reserved to all parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC13613/2007

MR HALLEY

Applicant

And

MS HALLEY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

introduction

1. The parties commenced their relationship in 1998.  They separated under the one roof in approximately August 2006 and finally separated physically in September or October 2007.

2. The parties have three children by their relationship presently aged 9, 8 and 7 years.  Following the separation, the children lived in the primary care of the wife.  However, the wife unilaterally placed them in the husband's sole care in March 2008 and they have remained living in his home since that time.  At the end of this trial I made interim orders, pending the delivery of these reasons for judgment, ceasing all time spent and communication between the wife and the children.

3. The most important single issue to be considered in determining the best interests of the children has been the wife's psychological and emotional health which has fundamentally adversely impacted on those best interests.  In my view, but for that issue these proceedings may well not have occupied any Court time at all.  Regrettably, that issue has led me to the determination of these applications on the basis that the interim orders should be made final.

Credibility

1. It is necessary to make certain general findings with regard to the issue of credibility of the main witnesses in these proceedings.

2. I regret to find that the issue of the wife's psychological and emotional health impacts directly on her credibility in these proceedings.  While I do not find anything deliberate on her part, her health problems have resulted in her lacking insight and perception which, in turn, have resulted in a fundamental distortion of the relevant facts pertaining to the best interests of the children.  Accordingly, I have been unable to rely on most of her evidence.

3. By contrast, the husband and his present wife, Ms D, have been open, insightful and perceptive in their approach to the best interests of the children and to their evidence in these proceedings.  To the extent that their evidence conflicts with the wife's evidence, I prefer their evidence unless otherwise found.

4. In my recital of the relevant facts below, I will refer to a considerable volume of documentation, including letters and e-mails between the wife and the principal and other staff of the school attended by two of the children, together with various file notes from that school and from other sources.  That documentation details complaints and disclosures made by the children to various people, together with the wife's views of the various events and the way she and the children were allegedly being treated.  To the extent that the documentation contains reports of disclosures to third persons when the wife has not been present, there is no evidence to suggest that such reports are inaccurate in any way. I accept that such disclosures were made.  I will consider their significance below.

5. Documentation which reports on other events is relevant to instances both when the wife was present and not present. Again, there is no evidence to suggest that events which are reported at which the wife was not present did not occur.  To the extent that there are events at which the wife was present, in circumstances in which she presents a version which is different to that which is documented, I prefer the documented version on the same basis as my general finding of the wife's credibility.

The parties

The wife

1. The wife was born in Australia in 1975 and is presently aged 35 years.  Her occupation is Registered Nurse.  It appears that she has had a number of relationships since the parties separated. 

The husband

1. The husband was born in England in 1972 and is presently 38 years of age.  His occupation is Manager.  His marriage to Ms D took place in September 2008. 

The parties' relationship and children

1. The parties commenced living together in 1998 and married in April 1999.  They separated under the one roof in August 2006 and physically separated in September or October 2007.  They have lived separately and apart since that time.  A Decree of Divorce was pronounced on 22 May 2008.

2. The husband and Ms D commenced living together in March 2007 which was during the period of separation under the one roof referred to in the previous paragraph. The circumstances of the commencement of that relationship are, at least by way of inference, relevant to the breakdown of the parties' relationship although not necessarily causal.  It was not submitted that I need to make any finding on that or any other fact relating to the parties' relationship breakdown.

3. The parties have three children by their relationship, all of whom are the subjects of these proceedings.  They are:

   ·    A who was born in May 2001 and is presently aged nine years:

   ·    B who was born in February 2003 and is presently aged eight years; and

   ·    C who was born in October 2004 and is presently aged six years.

The trial

1. This trial was conducted over a period of five days.  The husband and the Independent Children's Lawyer (ICL) were represented by counsel and the wife represented herself.  During the mid-morning break on the fourth day of the trial when she was being cross-examined, the wife left the courtroom and did not return for the rest of the trial.  She left a note for me on my Court Officer's desk to which I will refer below.  The matter was stood down for a short period to allow the ICL to contact the wife by phone. When the matter resumed the ICL reported that the wife had advised her that she would not be taking further part in the proceedings. The trial continued to its conclusion including expert evidence and final submissions.

2. Following the conclusion of the Court hearing of these applications, I received written submissions, importantly including one from the wife, to which I will refer below. Otherwise, the wife has not played any further part in these proceedings.

Relevant facts

1. As will be detailed below, this matter has a long history in which the Department of Human Services of the State of Victoria (DHS), have investigated protective concerns with regard to the wife's parenting of the children.  The first of those concerns following the parties' separation was an intake report on 19 November 2007.  The report noted concerns about the wife's mental state, particularly in light of angry outbursts.  It was determined that there was insufficient information to support a finding of a risk of significant harm to the children from the wife.

2. Proceedings commenced between the parties in the Federal Magistrates Court on 31 December 2007 when the husband applied for equal shared care of the children.  On 28 February 2008 an interim order was made for the parties to share the care of the children.

3. The husband claimed, and I accept, that in March 2008 the wife unilaterally placed the children in his sole care.  He described her as having “sporadic and unpredictable” times with them at school.

4. Ms D has three children by a previous relationship who live in the same home as the husband and the subject children.  Those children are a son aged 12 years and twins who are aged 10 years.  Accordingly, as of March 2008 the husband, Ms D and six young children lived in the same home.  As a result, Ms D ceased her employment outside the home to care for the children on a full-time basis.  She has continued to do that until the present time. Ms D’s three children spend time with their father on alternate weekends.

5. It appears that while the children lived in the primary care of the husband, the wife spent time with them, apparently on each alternate weekend and for several hours on each alternate Wednesday.

6. Mr P is a highly experienced clinical and forensic psychologist practising frequently in this jurisdiction.  The parties engaged him to prepare a family report.  On 21 May 2008 he delivered his first report and noted that the wife had refused to be involved in interviews for it.  The wife wrote a letter to Mr P which was referred to in evidence.

7. On 31 July 2008 orders were made by consent for the wife to spend time with the children during the day.

8. In July or August 2008 A commenced counselling.  She was experiencing behavioural issues including lying, tantrums and not sleeping.  She had one session with a counsellor and then commenced seeing Ms M.  A continued to see Ms M who has given both written and oral evidence in these proceedings.  I will refer to Ms M further below.

9. On 2 April 2008 the wife filed a Response seeking substantive orders which would effectively permit her to relocate with the children to live in France.  That appears to have arisen out of her having formed a relationship with a French national.

10. Ms D swore that on 19 August 2008 the children returned home from spending time with the wife in a distressed state.  Their distress arose out of a fight which they said they had witnessed between the wife and the man with whom she was then, by his admission, having a relationship. The children complained that there was considerable yelling and use of “grown-up words” and that they were frightened.

    They told me that their mother had packed up all her things and put them in the car and had no room for them so left them out on the lawn in the dark. They said that their maternal grandmother came along some time later and picked them up from outside the house.  [C] wanted to “grow up” and “fight” [the wife's boyfriend], [B] worried that her mother would “go to jail” and [A] was generally upset and kept saying that she did not want to see [the boyfriend] anymore.  All three had nightmares and were clingy that night.

    This incident, which I accept occurred, is particularly material to the allegation made by the husband that the wife has constantly exposed the children to harm arising from successive relationships which she has developed with various men.

11. Mr P prepared a second report in September 2008.  Both parties participated in the preparation of that report.

12. The wife swore that she was going to marry a man by the name of AL to whom the children were introduced in the school holidays of September/October 2008.  However, they were also introduced to a man by the name of JK.  Further, the children reported to the husband and Ms D that the wife's boyfriend, AW, stayed at the wife's home from time to time.  It also appears that in October 2008 the wife may have been engaged to a man by the name of BR.

13. The issue of the wife introducing the children to various partners was particularly highlighted in the evidence with regard to Mr GM.  The DHS file contains a reference to interview between an officer and the wife on 13 April 2010.  The reference notes that the wife would be moving in with Mr GM at the end of the week.  The wife informed the DHS worker that Mr GM had a past Child Protection history.  Consequently, DHS searched its records regarding Mr GM.  Those records noted that in January 2005 DHS had substantiated allegations against Mr GM for sexual penetration of a 14-year-old, sexual molestation and a “likelihood of significant harm due to sexual abuse (x 3 children).” On 21 May 2010 the wife consented to an injunction restraining her from bringing any of the children into contact with Mr GM.

14. On 17 October 2008 an order was made for the wife to spend overnight time with the children.

15. On 4 November 2008 the children reported that they had been introduced to the wife's friend, Mr IE.  They described IE and the wife as “cuddle friends”.  C reported the wife as having pushed his face into his dinner because he did not want to eat it.

16. As part of the preparation for the trial referred to below, the wife was referred to Dr Y, a clinical and forensic psychologist.  Dr Y prepared a report which is dated 24 November 2008 which is evidence in these proceedings.

17. Further expert evidence was obtained from Ms M relating to A by way of report dated 2 February 2009.

18. In December 2008 and February 2009 there was a trial before McGuire FM.  On 3 April 2009 his Honour delivered judgment.  He ordered that the parties equally share parental responsibility for the children provided that the husband was authorised to enrol them in a named school and kindergarten.  The children were ordered to live with the husband and spend time on effectively every alternate weekend together with school holidays and special occasions with the wife.  Orders were also made for the wife to communicate with the children by telephone.  The wife was restrained from denigrating the husband or Ms D and the parties were required to enrol in mediation or a similar process.  The wife was also required to enrol in a recognized post-separation parenting course.  A was required to continue with a named psychologist.

19. Importantly, McGuire FM ordered the dismissal of the wife's application to relocate with the children to live in France.  His Honour held:

    When the application came before the Court and the relocation did not appear to be likely to succeed, at least in the short term, the result was effectively that the mother chose to spend minimal or no time with the children.  The effect of that decision by the mother on her relationship with the children has been dramatic.

    I note that I have had a similar experience with the wife choosing to absent herself from these proceedings when she discerned that they were unlikely to produce the result which she sought.

20. The consequence of the orders referred to above was for the children to leave the school and kindergarten which they were then attending.  That occurred on the last day of the second semester.  The wife conceded that she went to the children's school, was crying and told the children to say goodbye to their friends.

21. In accordance with the Court’s orders, the husband enrolled A and B at a Catholic school (“the school”).  The enrolment was to commence at the beginning of the third semester which was July 2009. From the outset and before the children had commenced that enrolment, the wife communicated with the school in an ever increasingly belligerent manner, making demands and effectively accusing the principal and staff of incompetence in various ways.  The exhibited documents contain large numbers of examples of the wife's behaviour.  I turn to an examination of some of those documents.

22. On 29 April 2009 the wife wrote to the school principal confirming an earlier telephone conversation with regard to the enrolment of A and B.  In the second paragraph of that letter and following the wife wrote:

    [The husband's] solicitor has accused you of reporting my demeanour to be "quite irrational" during this phone conversation.  I would like to know if in fact this is what you reported to [him] or his representatives.

    As a result of our phone conversation you indicated that he would keep me informed with developments with regard to my daughters' enrolment.  To date, I have not heard from you and have not received a handbook you indicated I would receive by mail.

    Of course you are aware I am not at all pleased with Federal Magistrate McGuire's decision.  My daughters are happy to continue at [the current school], however we are left with no choice but to move to [the Catholic school].  Hence, [A], [B] and myself will draw on the positives of this decision and proceed in a forward direction.

    The letter then sought an arrangement for the wife to meet the school principal together with the children’s teachers and a small group of friends.  She wrote:

    I do not anticipate that you will need to contact [the husband] in order to advise him of our plans.

1. On 26 May 2009 the principal wrote an e-mail to the wife advising of arrangements for orientation days for A and B.  In reply the wife wrote:

   I find it unacceptable you allowed [Ms D] to accompany [A] and [B] for a tour around the school when I had first suggested this, and was my place to do so as having equal parental responsibility to [the husband].  It was important for my daughters to show me their new school so that they could see the "fears and concerns" (as according to [the husband]) of their mother be relieved before their eyes.  I hope this was not your suggestion to [Ms D] to "get in" before I did.  I am competitive on the sports field and have high expectations of myself but that's where it ends.  I am not about to compete with [Ms D] … at [the school]. … As you explained of yourself - people choose to like or dislike you.  I am no different - people choose to like or dislike me also.  I think you’ll agree, sometimes people choose to dislike you simply because they are jealous.

   You must remember that I am the biological mother of these children.  [Ms D] is the stepmother.  Different perhaps if [the husband] accompanied the girls to tour the school.  When [A] and [B] are with me they are not at all happy about changing school.  This reduces them to tears and three of the four nights they just spent with me saw [A] getting out of bed upset, and [B] one night.  I sympathise with them and point out some positive aspects of [the school].

   [A] also asked me how soon I can go back to court to fight for more nights together.  While [the husband] and [Ms D] have an obvious dislike for me, I would like you to remember that my children do not.  They do not understand why.  Why about many, many things.  [The husband] and [Ms D] have tried very hard to alienate me as these children's mother.  Be aware that I am ready to pouce (sic) legally on any person who chooses to join this pack mentality.

   In the same e-mail, the wife referred to the principal's belief “that the students (sic) well-being takes precedence, followed by the parents (sic) interests,” … .

2. On 30 June 2009 the wife wrote to the principal. She enclosed a copy of a letter she had sent to the acting principal of the school which the children were leaving, that letter also being quite accusatory.  She acknowledged that A had “really enjoyed her orientation days” at the school but was concerned that “[B] unfortunately did not give too much away!” She noted concerns of the children that they were changing schools and had serious doubts that A -

   … will gain the confidence to come to you or [the teacher] and say to (sic) much, but I would appreciate very much if you [and the teachers] could infrequently ask the girls how they are, how they are enjoying their school, how things are going at their homes.  If there is some information you receive which you do not wish to share with me but is of a serious nature, I trust you will inform Child Protection Services as is your obligation.  This may all become a little clearer when [C’s] progress is handed over from his Kinder teacher.

   In the same e-mail, the wife also complained that she had not been consulted or given an opportunity to complain that Ms D’s children were in the same colour house group as were A and B.  She continued:

   My children still consider themselves to be independent of their other family, and I feel we should encourage the continued social and emotional growth they would have had at [their previous school] without being reliant on older siblings.  For this reason, I ask you to avoid placing them in the same groups and consider changing my daughters to a different house group please.

3. It appears that there was a break in A’s attendance on Ms M.  In approximately June or July 2009 A resumed her consultations with her.  The husband swore that this had occurred because A was quiet and withdrawn and was not using some of the techniques which Ms M had taught her to enable her to show her emotions.

4. On 20 July 2009 the wife filed a further Initiating Application in the Federal Magistrates Court which she amended on at least two subsequent occasions.  Specifically, the wife did not apply for the children to live with her but rather sought orders with regard to attendance upon various professionals together with issues of communication between herself and the children.  In response, the husband sought that the wife's application be dismissed.

5. On 21 July 2009 the children were not made available for telephone communication with the wife.  That was the subject of a subsequent contravention application brought by the wife.  In late July 2009 there were significant volumes of documentation filed in the Federal Magistrates Court.

6. On 3 August 2009 the wife wrote to the principal.  She complained that a class teacher had prevented her from attending the school because she had attended on a day other than when she is entitled to.  She made further complaints about the teacher who had allegedly greeted her -

   … with a rather sarcastic hello.  I find this approach unnecessary and I am not going to tolerate this behaviour.  A stark contrast to [B’s teacher], if [A’s teacher] is intent on treating me in a discriminatory manner, I will have [A] removed from her room.

   Likewise, your introduction of me in the school newsletter … has not gone unnoticed.  I have had several members of the school community phone or approach me to voice their opinion of your wording.

7. The principal responded to the wife by letter dated 7 August 2009.  In my view, that letter is written in a conciliatory tone and seeks to answer the various complaints previously made by the wife in a positive and informative way.  The wife responded to that letter on 31 August 2009, again in a somewhat accusatory way.  Amongst other matters, she referred to her mobile telephone having been “misplaced” in the school grounds several days earlier.  She asked the principal to place an advertisement in the school newsletter -

   “… asking for the voluntary, anonymous return of my phone.  Fortunately, another member of the school community witnessed the person who picked up my phone and reported this to the police.  If my phone is not returned to the school by 3:30 p.m. Friday I will be pursuing legal action.

   The wife told the principal that she and the husband were returning to Court because the husband was trying to stop her from coming to the school on days when the children were not in her care.

8. On 13 August 2009 Ms D took the children to school.  She swore, and I accept, that A was crying when she dropped her off and when asked by the principal what was wrong she told him and Ms D that she did not want to go to her mother's place because her mother hurt her and A had to roll herself into a ball on the floor to protect herself.  Later on that day the principal telephoned Ms D to tell her that A had settled down but that a few days earlier B had approached him and told him that she was worried for A.

9. The exhibited documents include one written by A on 25 August 2009 addressed to the principal.  I now quote it including the various entirely understandable errors being the writings of a then eight-year-old child.

   I don't want Mum to come to school because she is MEAN to us.

   I don't wont to go to Mum's house because she drags us, chasers us Smack us and yels at us around the house.  Thank you OK cache you later.

   from [A].

   A included a drawing at the bottom of that document.  It depicts herself apparently being chased by her mother.  A balloon from the mouth of her mother includes the words “you better run” and from A’s mouth “ahh”.

10. The document referred to in the previous paragraph poignantly captures one of the fundamental themes in this matter.  For whatever reason, from A’s point of view her relationship with her mother has broken down to the extent that A is frightened of her mother. 

11. Ms D took A to a General Practitioner on 27 August 2009.  Ms D sat in a waiting room outside the surgery while A consulted the doctor and was able to hear what was said.  Ms D swore that A had told the doctor that she did not want to go to her mother's home because her mother hits and hurts her and chases her around the house and she has to curl up into a ball to protect herself.  Despite this evidence, a second intake report to DHS concluded that there was insufficient information to require intervention.

12. On 1 September 2009 DHS prepared a third intake report.  It was alleged that Ms D had tried to strangle C with a seatbelt.  DHS assessed the matter as not containing sufficient information to require intervention.  The whole context of the evidence leads me to the inference that the complaint was made to DHS by the wife.  There is no credible evidence to support the allegation.

13. In his affidavit of evidence in chief the husband swore to the children having made certain disclosures to him on 14 September 2009.  Because of their importance, I quote it in full as follows:

    25. On the 14 September 2009 both girls reported that the weekend with their mother was one of the worst in a long time. Both girls reported:

    (a)That the wife hit them both, often and for reasons not apparent to them.

    (b)That [A] is hit harder, more severely and more frequently than the other children.

    (c)That [A] got into a ball to protect herself lots of times over the weekend.

    (d)That [C] was smacked on the shoulders by the wife.

    (e)That [B] was looking at a photo of [A] and her when she was a baby and a photo of me and her as a baby and she was crying. The wife asked her why she was crying and she replied that it was because she missed Dad. For that the wife smacked her repetitively. The while she was crying she was made to do her school reader aloud to the wife.

    (f)A man that they met once briefly stayed overnight at their mother’s every night.

    27. Also on the 14 September 2009:

    (a)The girls told me that when they have been visiting their maternal grandparents, the wife smacks them and the grandparents just watch.

    (b)[B] told me that she told her grandparents that she does not like it when her Mum smacks her and they told her that her Mum was a good mother and [B] should be grateful that she cares enough about her to smack her like that.

14. On 18 September 2009 Ms D received a telephone call from an officer of the Child Protection Unit of DHS.  The officer informed her that they had received more than one notification with regard to A and her mother and that they would probably not be pursuing an investigation of those notifications because of the proceedings in this Court and because there were protective adults caring for the children.

15. On 24 September 2009 McGuire FM restrained the parties from inflicting any form of corporal punishment on the children and otherwise reserved judgment.  That judgment was delivered on 23 November 2009.  His Honour made orders which were very similar to those referred to above.  The wife appealed against those orders.  The appeal was heard by O'Ryan J and was dismissed on 26 August 2010.

16. McGuire FM, in his reasons for judgment delivered with the orders referred to in the previous paragraph, held in part as follows:

    27. … The mother candidly admits that since the final orders of 3 April 2009 she has been taking the children to a psychologist mainly Ms [F].  It is clear that the mother has done so without the knowledge or consent of the father.

    28.  I have serious concerns as to the mother's behaviour in this regard, particularly given the evidence of [Ms M], psychologist, at the final hearing earlier this year in respect of [A’s] delicate mental and emotional state.  The clear evidence of Ms [M] was that the child's emotional difficulties related to the nature of her relationship with her mother. …”

17. On 8 October 2009 the principal informed the husband that A and B had both told him that their mother had hit them on several occasions over the September/October school holidays and that A was dragged from the car by her upper thigh by their mother at a public car wash.  During the ensuing week, the children spoke to their father about another man as being their mother's boyfriend.

18. On 14 October 2009 A and B told their father that they had spoken with the principal about them being hit many times over the previous weekend and that their mother had taken them to “[V’s] shop” where the mother yelled, kicked boxes and threw a tin at the counter.

19. The children spent four hours with their mother on C’s birthday in October 2009.  Two days later A wrote a letter to Ms M saying that at that birthday her mother had hit her “a lot”.  A asked her father why she had to go to her mother's home and get hurt.  B confirmed the wife's hitting of A and C said: “Mum ruined my birthday”.

20. On 22 October 2009 a fourth intake report to DHS was assessed as having resulted from the ongoing conflict in these proceedings.

21. On 23 October 2009 the wife met with the principal at the school.  For some inexplicable reason, she brought all three children with her to that meeting.  The wife confirmed that meeting by letter to the principal dated 28 October 2009.  She alleged that Ms D had coerced and forced A and B to write the letters and drawings complaining about her.  She was angered that she was not allowed to see those letters or any response by the teachers.  She denied that she intimidated the teachers.  She threatened:

    In a Court of Law you and [the teacher] will be forced to answer many questions.

    I will not tolerate the continued discrimination against me, or my children.

    In my view, that letter, which is very lengthy, is accusatory and intimidating.  If the relationship between the wife and the school, particularly the principal, had not broken down by this time, the meeting and subsequent letter referred to in this paragraph undoubtedly created that breakdown.

22. The exhibited documents include notes from the school's file relevant to A and B.  In one note, dated 29 October 2009, the class teacher reported A as saying that her mother had told her that Ms D is “mean”.  In the next note, in the words of the class teacher -

    [A] said mum pulled her ear and tried to choke her over the weekend.

23. During her cross-examination, I asked the wife, in relation to the matters referred to in the previous paragraphs, whether she felt that the school was being influenced against her.  She responded:

    Yes. I think at that time the school would not have been involved in the coercion.

    In response to a further question from me with regard to when the wife believed that they had become so involved, she responded:

    I would say towards the end of the school year and definitely at the start of this year.

24. Subsequent to A and B having spent time with the wife between 22 and 26 October 2009 they complained to their father that the wife had grabbed A around the neck because she would not get into their mother's bed for a cuddle.  They also complained, amongst other things, that -

    ·    the wife had pulled A’s hair and had hurt her;

    ·    they had stayed overnight at the home of the wife's boyfriend and the wife had pulled A’s ear and hair and hurt her; and

    ·    when the wife attended Parent Help at the school she had told both B and A that they were not to give any more notes or have discussions with the principal or B’s classroom teacher.

25. The children spent 5-9 November 2009 with the wife.  On 5 November 2009 B wrote to the principal:

    I forgot to say Mum said no more letters.  Mum pulled my ear and my hair and tried to chock (sic) me and I don't like it!

    Upon their return from that weekend B had a bruise under her eye.  In the circumstances I am not able to make a sufficient finding with regard to that matter.  However, A complained to the husband that the wife had grabbed her by the throat and lifted her from the ground because she had refused to come into her bedroom and that their mother had repeatedly hit them hard causing them pain and distress.

26. One of the more concerning disclosures by the children was made on their return from the weekend referred to in the previous paragraph.  A and B told the husband that their mother had held C’s head under the water in the bath because he was taking too long to wash his hair.  They reported that C had soap in his eyes and was crying which made the wife angry.  It was at that point that she allegedly held C’s face and head under the water.  B reported to the husband that C was crying, coughing and kicking.  B was distressed and thought that C was going to die.  B demonstrated what occurred on A.

27. On 11 November 2009 A wrote a letter to her class teacher stating that her mother had said that the teacher was mean and that the principal was in big trouble.  A wrote:

    last weekend mum puled (sic) [C’s] head down in the water which wouldn't be good … p.s she smacked and yelled at us.

28. The wife denied the children's allegations referred to the previous paragraph.  She swore that there had been occasions on which she had helped the children wash their hair and that they had soap in their eyes.  She swore that she needed to wash the soap from their eyes.  In doing that C may have had his head under the water for a short period but it was not intentional on her part.

29. The allegations referred to in the previous two paragraphs are very serious.  In the circumstances, I have decided not to make a clear finding with regard to those facts.  While the children's allegations are serious and apparently consistent, I am not persuaded that the wife would have deliberately held C’s head under the water in the bath.  I am prepared to give the wife the benefit of the doubt because her explanation appears to be plausible. 

30. As already noted, McGuire FM delivered judgment and made final orders on 23 November 2009.  His Honour ordered that the husband and wife equally share parental responsibility of the three children save that the husband was authorised to enrol them in the specified schools.  The children were ordered to live in the primary care of the husband and spend effectively every second weekend from after school on Thursday to the beginning of school on Monday together with half school holidays and further time on special occasions with the wife.  Provisions were made for changeovers which did not otherwise take place at the children’s school.  The wife was restrained from denigrating the husband and Ms D and was further restrained from providing the children with any document prepared or used in the proceedings and otherwise in anyway discussing the proceedings or their content with any of the children.  Various orders were made with regard to the children's attendance on medical and dental practitioners together with a continuation of the restraint against inflicting any form of corporal punishment on the children.  In particular, the wife was restrained from taking the children to any psychiatrist, psychologist, councillor, social worker or other behavioural scientist without the express written consent of the husband.

31. The parties consented to an order that they be restrained from spending time with the children at their school or kindergarten other than in accordance with changeover arrangements and at times when the children were otherwise in the care of their respective periods.

32. On 25 November 2009 the wife attended A’s class for Parent Help.  A complained to the husband that her mother had told her that her father, Ms D and the principal and teacher were “mean” and otherwise criticised the school to A.  As a result, A did not want to go to school the next day because the wife was scheduled for Parent Help again.

33. The children spent the weekend of 3-7 December 2009 with their mother.  On their return to their father's home, A reported that her mother had told her that she had had coffee with a schoolteacher and that they are now friends and that the teacher won't believe anything A tells her in the future.

34. On 11 December 2009 there was a fifth DHS intake report.  This concerned the issue of C’s head being held under the water in the bath as discussed above.  Again, DHS elected not to pursue the matter because the children were living in the primary care of their father and Ms D and there were proceedings before this Court.

1. This matter came before McGuire FM again on 21 December 2009.  The wife's application to vary parenting orders was dismissed as was the husband's oral application to suspend the wife's time with the children.  The husband's amended response was taken as a fresh application and orders were made for the filing of affidavit material.

2. On 31 December 2009 the husband filed a Notice of Child Abuse in the Federal Magistrates Court.  Because of its importance and relevance to these proceedings, it is necessary to quote the particulars of alleged child abuse which are as follows:

   1.      Between 19 November 2009 and 23 November 2009 [the mother] grabbed the child, [A] born […] May 2001, by the throat on 3 occasions.

   2.      Between 19 November 2009 and 23 November 2009 [the mother] forcibly held the head of the child, [B] born […] February 2003, underwater in the bath.

   3.      Between 19 November 2009 and 23 November 2009 [the mother] forcibly held the head of the child, [B] born […] February 2003, underwater in the shower on more than one occasion.

   4.      Between 19 November 2009 and 23 November 2009 [the mother] forcibly held the head of the child, [C] born […] October 2004, underwater in the shower on more than one occasion.

   5.      Between 5 November 2009 and 29 November 2009 [the mother] forcibly held the head of the child, [C] born […] October 2004, underwater in the bath such that his sister, [B], thought he was going to die.

   6.      Between 5 November 2009 and 8 November 2009 [the mother] did an act or a thing or omission to cause the child, [B] born […] February 2003 to incur bruising under her eye.

   7.      Between 5 November 2009 and 8 November 2009 [the mother] repeatedly hit the child, [B] born […] February 2003, hard with her hand or fist, causing her pain and distress.

   8.      Between 5 November 2009 and 8 November 2009 [the mother] repeatedly hit the child, [A] born […] May 2001, hard with her hand or fist, causing her pain and distress.

   9.      On Sunday 8 November 2009 [the mother] grabbed the child, [A] born […] May 2001, and whilst holding her by the throat, lifted her feet off the floor causing the child pain.

   10.    Between 22 October 2009 and 26 October 2009 [the mother] grabbed the child, [A] born […] May 2001, by the throat.

   11.    On 23 October 2009 [the mother] pulled the hair and ear of the child, [A] born […] May 2001 causing her pain.

   12.    Between 22 October 2009 and 26 October 2009 [the mother] pulled the hair of the child, [A] born […] May 2001 causing her pain.

   13.    On the […] October 2009 [the mother] repeatedly hit the child, [A] born […] May 2001 with her hand or fist, causing her pain.

   14.    Between 8 October 2009 and 12 October 2009 [the mother] repeatedly hit with her hand or fist the children, [A] born […] May 2001 and [B] born […] February 2003 on various parts of their bodies, causing them pain.

   15.    Between 17 September 2009 and 26 September 2009 [the mother] on more than one occasion hit with her hand or fist the children, [A] born […] May 2001 and [B] born […] February 2003 on various parts of their bodies, but mainly their shoulders causing the children pain.

   16.    Between 17 September 2009 and 26 September 2009 [the mother] dragged the child, [A] born […] May 2001 by her upper thigh, from the car, causing the child pain.

   17.    Between 9 September 2009 and 13 September 2009 [the mother] on more than one occasion hit with her hand or fist the children, [A] born […] May 2001 and [B] born […] February 2003 on various parts of their bodies, but mainly their shoulders causing the children pain.

   18.    Between 9 September 2009 and 13 September 2009 [the mother] hit the child [C] born […] October 2004 across the shoulders.

   19.    Between on or about June 2009 to the present date [the mother] has on many occasions repeatedly hit the child, [A] born […] May 2001 with her hand or fist on various parts of the child’s body including her head causing the child pain and to roll into a ball on the floor covering her head with her arms to protect herself.

3. The husband swore the following in his affidavit of evidence in chief:

   13.  When the children returned from spending the January 2010 school holidays with [the wife], they said that they had gone away with their mother and [IE].  They said that [A] was left alone with [IE] because she was “naughty” and that [IE] had hit her.  [A] and [B] said that they were hit a lot by [the mother].  [C] got a boogie board for a present and [A] and [B] got no presents because they keep opening their mouths to [the husband], [Ms D] and [the principal].

4. The children's complaints about their mother to their father were further particularised by the husband and Ms D in their respective affidavits of evidence in chief.  In that regard, I refer to paragraph 46 and following of the husband's affidavit and paragraph 8 and following of Ms D’s affidavit without quoting them.  They continue on the same theme of hitting, denigrating and otherwise treating the children in ways which I will develop below as being totally contrary to their best interests.  Very similar matters are referred to in exhibits from the files of the principal and the class teacher.

5. The wife has relied on several affidavits as her evidence in chief in these proceedings.  At no time has she challenged the proposition that the evidence by and on behalf of the husband has been correctly reported.  Rather, she has taken issue with the truths of the contents of those allegations.  By virtue of the way in which I propose deciding these applications, I find it unnecessary to make findings on each denial sworn to by the wife.  Rather, I am approaching her evidence on the basis that she has either denied or not admitted every significant allegation made against her. 

6. The orders made by McGuire FM on 23 November 2009, particularly with regard to the wife's right to spend time and communicate with the children, were, at the time of the commencement of this trial, the current orders.  The wife continued to spend time with the children in circumstances in which complaints made against her continued similarly to that outlined above.

7. Following the making of those orders the proceedings continued in the Federal Magistrates Court until 25 February 2010 when McGuire FM transferred them to the Magellan list in this Court.  Various procedural orders were made over the following months and the matter came on for trial before me on 18 August 2010.  As I have already noted, the wife absented herself during the mid-morning break on the fourth day and I proceeded to conclude the hearing in her absence.  The note referred to above, which was left for me by the wife, was dated Monday 23 August 2010 and read as follows:

   Dear Justice Mushin,

   In the best interests of the health and well-being of my children, my own and that of my unborn child, I will not be taking any further part in this trial.

   Sincerely, [the mother].

8. During the final submissions of counsel for both the husband and the ICL, application was made for me to make an order against the wife pursuant to the provisions of section 118 of the Family Law Act 1975 (the Act).  I raised the question of whether these proceedings could be considered to be “frivolous or vexatious” in accordance with the meaning of that term in the section.  Counsel sought the opportunity to research the matter, as a result of which I made orders for the filing of written submissions.  Those orders were served on all parties including the wife.  Counsel for both the husband and the ICL indicated that they did not seek to make any further submission and did not further press the application.

9. The wife made a written submission which was not restricted to the issue referred to in the previous paragraph, while my order for filing of written submissions was so restricted. Prior to reading those submissions I provided the solicitors for the husband and ICL an opportunity to object to my reading them.  No objection was taken and in light of the wife's absence from the last part of the trial I have treated her written submissions as being at large and have considered them on all issues without restriction.  Accordingly, I have treated the document as a relevant document which will be retained on the court file in the usual way.  However, the wife sought to make at least one other written submission which I have declined to read.

10. The wife's written submissions referred to in the previous paragraph have concerning aspects to them.  She wrote -

    …but the people who are representative of the Australian legal system cannot control their bias.  Distinctly, the husband has not thought it necessary to point out what he wants, because as he knows as has been clearly evident all along, he always gets what he wants.

    The wife referred to herself as -

    … an old fashioned girl living in a modern world and you all have difficulty dealing with that, much more than I!

    …

    I will get my story across, I am determined.  I want the community to understand the workings of the court so that they have reason to doubt all the convictions from the more recent of Mr Farquarson to Ms Chamberlain.

    You really surprised that parents are fleeing the country, driving into dams and jumping off bridges to keep the children away from the other parent?  The scariest, most distressing thing about that court building for me is enduring the anger and outrage in the corridors.  Parents who have had decisions made against them for no good reason other than the driven bitterness of the other parent expressed through the Orders of someone in your position simply because you take a liking to one party or the other.

11. Later in the submissions, the wife wrote:

    One or two or three of them [the children] will be mentally ill and perhaps suicidal or committed suicide, enduring a teenage pregnancy, or turning to alcohol and drugs for comfort.  When they are destroyed by their father because of your decision and the path of court proceedings stemming back three years, they will be desperate for assistance or rescuing.  I will be there for them.

12. In reference to her departure from the trial on the fourth morning, the wife wrote:

    you have taken my children, punishment perhaps even for walking out of court on 23 August 2010, four days into the trial.  I could not continue to put my children, myself or my unborn child through further stress, especially of the further seven days you were predicting.

13. Later in her written submissions the wife referred to various parts of the evidence, suggesting that it “didn't seem worth it” to make various points challenging them.  She wrote:

    Even with all your experience Justice Mushin, you run a circus.  Despite knowing the truth, it's a good time to run with the pack.  A pack of animals and parasites, because at the end of the day there is strength in numbers.

14. The wife's failure to participate in the last part of this trial has undoubtedly created difficulties for her.  While she had cross-examined both the husband and Ms D, she did not avail herself of the opportunity to cross-examine any of the experts who, in my view, are important in my consideration of these applications.  Accordingly, the evidence of those witnesses has gone relatively unchallenged as counsel for the ICL had determined that it was in the children's interests to essentially support the husband's case.  Further, the wife did not take the opportunity to make final oral submissions together with both counsel.

15. Moreover, the wife's written submissions quoted above are very concerning.  They typify her lack of insight and perception with regard to their children's needs and the impact her behaviour has on them.

16. At the conclusion of the hearing, counsel for the husband made an oral application that I suspend all orders for the wife to spend time and communicate with the children on an interim basis.  That application was supported by the ICL.  I acceded to that application and made interim orders accordingly.  I indicated that I would give reasons for the making of those orders.  These are those reasons as well as the reasons for the making of the final orders which I will pronounce in due course.

The expert evidence

1. I have previously referred to the expert evidence of Dr Y, Mr P and Ms M.  Dr Y was not required for cross examination but I have included consideration of his written evidence.  I determined that Mr P and Ms M should give evidence together, albeit that Mr P’s evidence was in the form of a family report and Ms M’s evidence was as a treating psychologist of A.  That course was taken by agreement of counsel for both the husband and the ICL, the wife having previously declined to take further part in the proceedings.

2. I have also had the benefit of a report prepared by the Child Protection Case Manager and the Child Protection Team Leader of DHS.  That report was tendered to the Family Division Children's Court on 21 May 2010.  While it was not specifically prepared for this report, I have found it to be of significant assistance.

3. I will refer to all of the expert evidence as part of my consideration of the best interests of the children discussed below.

The parties' proposals

1. At the commencement of the trial, counsel for the husband informed me that her client's primary position was that the children live in his primary care and that I order that the wife not spend any time with the children.  The husband's secondary position was that any time to be spent by the wife with the children be supervised.  However, no proposal was made as to the identity of a supervisor or the circumstances in which that supervision might take place.

2. At the commencement of the trial counsel for the ICL supported the husband's proposal that the children live in his primary care.  She also proposed a suspension of the wife's time with the children for several months.  At the end of the trial the ICL supported the orders sought on behalf of the husband for a total suspension of all the wife's time with the children.

3. The wife's amended minute of proposed orders essentially sought that the children “live in equal shared care” between the husband and the wife.  The wife also sought that the parties have joint parental responsibility of and for the children.  The sharing of care was to be on a weekly basis with a changeover at school each Wednesday.  The wife also proposed an equal sharing of school holidays together with other matters which are not presently necessary to detail.

Discussion

1. The relevant legislation pursuant to which I must decide these applications is contained in Part VII of the Act.  The primary provision is that I must regard the best interests of A, B and C as the paramount consideration in my determination.  Paramount means “most important” rather than “sole”.

2. I am then required to consider the objects of Part VII of the Act and the principles underlying those objects.  The essence of this provision is to ensure the children have the benefit of a relationship with both their parents, that they are protected from physical and psychological harm or being exposed to abuse, neglect or family violence; that they receive adequate and proper parenting and the parents fulfil the duties and meet their responsibilities in their upbringing.

3. The principles underlying the object apply other than in a circumstance where it would be contrary to a child's best interests for that to occur.  Children are entitled to know and be cared for by both parents, to spend time on a regular basis and communicate with parents and other people significant in their care and to enjoy their culture and like matters.  Parents have a corresponding obligation to share the duties and responsibilities of parenthood with regard to the care, welfare and development of their children.  Again, I emphasise that those objects and principles apply in circumstances other than if I consider them to be contrary to the best interests of any of the children.

4. The Act contains a presumption that parents will equally share parental responsibility of and for their children.  The provision relating to that presumption is rebuttable in the following circumstances:

   61DA(2) The presumption does not apply if there are reasonable grounds to believe that parent of a child (or a person who lives with a parent of a child) has engaged in:

   (a) abuse of the child or another child who, at the time, was a member of the parents family (or that other person's family); or

   (b) family violence.

   …

   61DA(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

5. “Abuse” is defined in section 4(1) of the Act as follows:

   an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs … .

   The second part of that definition refers to the child being involved in "sexual activity" which is not relevant to these applications.

6. “Family violence” is defined in the same section of the Act as follows:

   family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.

7. On the basis of my previous finding that the various disclosures reported by witnesses in these proceedings made by the children to them have not been challenged as being incorrect reports, I find that there is evidence that the wife has perpetrated assaults and family violence on all three children.  The assaults relate to the disclosures of hitting by all three children and particularly A and B, together with the allegation that the wife held C’s head under the water in the bath.  However, the fact that the various witnesses have correctly reported the disclosures does not, of itself, mean that the disclosures are factually accurate.  It is therefore necessary to consider the question of the rebuttable presumption of equal shared parental responsibility not only as it concerns the questions of assault and family violence but also the question of whether shared parental responsibility is in the best interests of the children.

8. In order to consider the best interests of the children, I am required to have regard to the various matters in section 60CC of the Act to which I now turn.  Those matters are divided into primary and additional considerations.

9. I first consider the primary considerations.  The first of those is -

   the benefit to the child of having a meaningful relationship with both of the child's parents … .

   I am satisfied on all of the evidence that as a matter of principle it would be to the benefit of all three children to have such a relationship with their parents.  However, as I will discuss below, there are negative aspects to the relationship between the wife and the children which significantly questions that benefit.

10. The second primary consideration is -

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

    I have already referred to the evidence with regard to abuse and family violence.  In my view, in addition to those matters, there is a substantial risk of the wife causing the children psychological and physical harm.  I will discuss that issue as part of my further determination of the children's best interests as they are impacted upon by the additional considerations.

11. I now turn to a discussion of the additional considerations referred to in the legislation.  In doing so I must have regard to the expert evidence of both Ms M and Mr P.  Both those witnesses are highly experienced and competent.  While noting that the wife did not avail herself of the opportunity to cross-examine either of them, their credibility, competence and professionalism have not been questioned.  I accept their evidence in its entirety.

1. Regrettably, my determination has the result of preventing the wife from having any face-to-face contact with any of the children.  That includes her attending the school or kindergarten, sporting events and all other occasions.  Any breach would be a breach of an order of the Court which would expose the wife to potentially severe penalties.

2. As discussed above, evidence was led during the trial to satisfy me that since the parties separated, the wife has had many partners.  One of them in particular, Mr GM, appears to pose a significant risk to the children arising out of his previous Child Protection history.  While the orders which I will make do not provide for the wife to spend time with the children except with the written permission of the husband, I note that I would expect no such permission to be given in the case of Mr GM.

3. Finally, I realise that the wife is going to be extremely unhappy and resentful with, and of these reasons for judgment and the orders which I make a pursuant to them.  From her point of view, I understand that.  However, I point out to her that if she were to take notice of these reasons for judgment and particularly the expert evidence given during this trial, she may well see it as being within her children's interests to seek professional assistance in overcoming her problems.  In that event, I would hope that she might put herself in a position of re-establishing a strong and positive relationship with her children which would particularly be for their benefit.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  17 February 2011