Harrison and Harrison

[2019] FamCA 263

FAMILY COURT OF AUSTRALIA

HARRISON & HARRISON [2019] FamCA 263

FAMILY LAW – CHILDREN – Parenting – best interests of the children – allegations of family violence and neglect toward the children – where the children made claims to the Father of abuse and neglect by the Mother – consideration of the context in which the claims were made – question as to whether claims made by the children were influenced by the Father – whether there was emotional abuse of the children by the Father – consideration of the ongoing risk of harm to the children.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA.
Sentencing Act 1991 (Vic)

Morgan v Miles  (2007) FLC 93-343
U & U (2002) 211 CLR 238

APPLICANT: Mr Harrison

RESPONDENT: Ms Harrison

INDEPENDENT CHILDREN’S LAWYER: Michael Weston

FILE NUMBER: MLC 10386 of 2012

DATE DELIVERED: 18 April 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Melbourne

JUDGMENT OF: Gill J

HEARING DATE: 11-15 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Ms Carter

SOLICITOR FOR THE RESPONDENT: Ella Thompson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wiener

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Perry Weston Lawyers

Orders

1. All previous parenting orders be discharged.

2. The Mother shall have sole parental responsibility for the children Q, born … 2003, Y, born … 2010 and V, born … 2013 (“the children”), and in relation to the exercise of that responsibility;

   (a)The Mother shall advise the Father as soon as practicable as to any decisions she proposes to make in exercising sole parental responsibility and she is at liberty to take into account the Father’s response, if any, when exercising that responsibility;

   (b)The Mother shall advise the Father as soon as practicable following any determination she makes;

   (c)The Mother shall authorise any school the children attend to provide the Father with notices and school reports regarding each of the children and shall keep the Father advised as to the identity of the children’s schools; and

   (d)The Mother shall authorise Y’s and V’s general practitioner to provide information about them to the Father and shall keep the Father advised as to the identity of the practice attended by the children.

3. Y and V shall spend time and communicate with the Father as follows:

   (a)From 9am until 5pm on the first Saturday of each month save for when such time is suspended because the children are overseas;

   (b)The Father is permitted to send the children gifts, cards and letters by ordinary post, to an address nominated by the Mother, with the Mother to advise the Father within 7 days of any change to her nominated address;

   (c)At such other times as may be agreed in writing (including by text message) between the Mother and Father; and

   (d)The Father is not otherwise entitled to spend time or communicate with Y and V.

4. Handover for the time with the children in the above order shall be as agreed between the parties in writing (including by text message) and failing such agreement will be effected by:

   (a)The Mother causing Y and V to be delivered to the footpath at the front of the Father’s residence at the commencement of the time; and

   (b)The Father causing Y and V to be delivered to the footpath at the front of the Mother’s residence.

5. The Father is restrained from either audio and/or video recording the children.

6. The Father is restrained from causing Y and V to attend upon a medical practitioner or other health professional (including a psychologist or counsellor) other than in the case of an emergency, in which case he is to advise the Mother of such proposed attendance, the identity of the practitioner and the time and place of the consultation forthwith upon arranging such attendance.

7. To facilitate overseas travel for the children, the Mother is entitled to suspend one monthly visit by Y and V to the Father each calendar year.

The Court declares that

1. Pursuant to ss 7 and 11 of the Australian Passports Act2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the applicant Father to enable the children of the relationship Q, born … 2003, Y, born … 2010 and V, born … 2013 (“the children”) to obtain an Australian Passport to travel internationally, the Court makes the following orders:

The Court orders that:

1. The Mother of the children be permitted to apply for an Australian Passport to enable the children, or any of them, to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children or any of them be permitted to travel internationally without the permission of the Father.

2. It is requested that the Commission of the Australian Federal Police take immediate steps to remove the children’s names from the Watch List.

AND THE COURT NOTES:

A.The mother’s nominated address is B Street, Suburb C, VIC.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 10386 of 2012

MR HARRISON

Applicant

And

MS HARRISON

Respondent

REASONS FOR JUDGMENT

Introduction    

1. The parties to this matter are Mr Harrison, the Applicant Father, and Ms Harrison, the Respondent Mother.  There are three children of the relationship: Q, aged 15; Y aged 9; and V aged 5 (“the children”).  The current proceedings concern the parental responsibility and living arrangements of the children.

2. The proceedings occur in the context of Final Orders made by Judge Turner on 4 June 2015.  The children currently live primarily with the Mother.  Y and V spend regular time with the Father, while Q does not spend any significant time with the Father.

3. The primary factual issues in the current proceedings centre on allegations made by the Father of family violence and neglect towards the children by the Mother.  The Father’s allegations have significant implications for determining with whom the children should live with, as they raise questions as to whether the Mother presents a risk of harm to the children and/or whether the manner in which the Father elicits complaints from the children presents a risk of harm to the children.

Orders Sought

1. The orders sought are set out in full in the Father’s ‘Amended Initiating Application’ and the Mother’s ‘Amended Minute of Final Orders Sought by the Respondent Mother’.  These are provided as appendixes to this judgment.

The Father

1. By his Amended Initiating Application and Case Outline document the Father sought that the parties have equal shared parental responsibility for the children.  The Father sought that Y and V live with him, and spend time with the Mother.

2. During the hearing, it became evident that if the Father thought the Mother was harming the children, he would apply for an Intervention Order so as to suspend the Orders that provide for the Mother to spend time with the children.

3. The Father sought provisions for special occasions and changeover.

4. The Father sought provisions relating to putting the children on various government body watch lists to prevent their removal from Australia.

The Mother

1. The Mother sought sole parental responsibility for the children and that they live with her.

2. The Mother sought provisions for supervised time to be spent with the Father.

3. The Mother sought provisions to be permitted to travel overseas with the children without the permission of the Father.

The Independent Children’s Lawyer

1. Broadly, the Independent Children’s Lawyer (“ICL”) supported the orders sought by the Mother.

Material Relied Upon

1. The Father relied upon the following:

   a)   Amended Initiating Application filed on behalf of the Father on 18 July 2018;

   b)     Trial Affidavit of Mr Harrison filed on 18 July 2018;

   c)   Affidavit of Ms B filed on 18 July 2018;

   d)     Reply filed by Applicant Father on 4 November 2018;

   e)   Response Affidavit of Mr Harrison filed on 4 November 2018;

   f)   Financial Statement filed by Mr Harrison on 4 November 2018 (although this was not referred to in any significant manner during the hearing);

   g)     Notice of Child Abuse, Family Violence or Risk of Family Violence filed by Mr Harrison on 11 December 2018; and

   h)     Affidavit of Mr Harrison filed on 11 December 2018.

2. The Mother relied upon the following:

   a)Response to Initiating Application filed 24 April 2017;

   b)Application in a Case filed 24 April 2017;

   c)Affidavit of Ms Harrison filed 24 April 2017;

   d)Notice of Risk filed 24 April 2017;

   e)Application in a Case filed 27 July 2017;

   f)Section 11F, Children and Parents Issues Assessment prepared by Family Consultant Ms D dated 29 August 2017;

   g)Amended Response to Initiating Application filed 19 September 2018;

   h)Trial Affidavit of Ms Harrison filed 19 September 2018;

   i)Financial Statement filed 19 September 2018;

   j)Family Report prepared by Family Consultant Mr E dated 9 January 2019;

   k)Objections to Evidence filed 18 January 2019; and

   l)Response to Objections to Evidence 4 February 2019.

3. The ICL relied upon the following:

   a)Family Report by Mr E dated 9 January 2019; and

   b)Section 11F by Ms D dated 29 August 2017.

Litigation History Following Final Orders

1. Since Final Orders were made by Judge Turner in June 2015 the parties have been involved in litigation, firstly in relation to family violence orders and then in relation to these current proceedings. 

2. Major events in the litigation between the parties since this time are as follows:

   a)Family Violence Order proceedings were commenced against the Mother in July 2015 naming Y and Q as the protected persons.

   b)Proceedings were commenced in the family law jurisdiction by the Father on 16 June 2017.

   c)On 10 July 2017 and 30 October 2017 there was an Intervention Order Contested Hearing. 

   d)The family law matter was dealt with on an interim basis on 30 August 2017, the outcome of which was that the Father continued to spend time with the children in accordance with the structure provided for in the Final Orders, namely, with Y for four nights per fortnight and V for three nights per fortnight.[1]

   e)A Final Intervention Order was made on 15 November 2017, giving a two year Intervention Order against the Mother, until 14 November 2019.[2] All three children are named as Affected Family Members, with the Father as the Applicant and the Mother as the Respondent.[3]  These orders are the subject of a County Court appeal.

   f)The Mother has also been the subject of proceedings for the breach of the Intervention Order.

   [1] Mother’s affidavit filed 19 September 2018 [32]; also contained in Interim Orders on 27 July 2017, before Senior Registrar Fitzgibbon, which provided for the parenting Orders of 2015 to continue

   [2] Mother’s affidavit [78]; Family Report [23]

   [3] EXGH-2 Final Intervention Order dated 15 November 2018

Legal Principles

1. The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.

2. The objects and principles contained at s 60B provide that:

   (1)The objects of this part are to ensure that the best interests of children are met by:

   a.ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   a.children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b.children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c.parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d.parents should agree about the future parenting of their children; and

   e.children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. It may be observed that the objects and principles do not always point in the same direction.  In this case, the parents’ positions suggest that the various objects and principles point in different directions, particularly as they emphasise meaningful involvement and protection from harm.

4. In light of the objects and principles, the Court is required to consider the two primary considerations and the additional considerations as set out at s 60CC, to the extent that they arise in a case. Of the two primary considerations, the Court is required to place greater weight on protection of a child from harm occasioned by abuse, neglect or family violence than on the benefits of meaningful relationship with both parents. Like the objects and principles, the considerations may also point toward different conclusions as to best interests. The considerations often overlap.

5. In considering best interests, the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation.[4]

   [4]U & U (2002) 211 CLR 238

6. The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.

7. If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles as “the careful exercise of a structured discretion to determine the appropriate order to be made”.[5]  That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.

   [5] Morgan v Miles (2007) FLC 93-343

The Key Issues

1. Before embarking upon the assessment of the evidence led by the parties, it is useful to identify the key issues raised by the parties, even though they do not form an exhaustive description of the relevant considerations.

2. The central issue identified by each of the parties is that of unacceptable risk of harm.  Each parent ran a case based on the proposition that, unless the children were primarily in that parent’s care, they would be exposed to harm.  That harm, if they live with the Mother, was alleged to be harm of physical and emotional abuse.  If they live with the Father the harm was alleged to be of emotional and psychological abuse.  Closely allied to this issue is the question of the parenting capacity of each of the parties.

3. Each, in large part, based the allegation of risk on comments made by Y and V about their Mother, alleging that the Mother had caused them harm.  These comments have been made, primarily, to the Father, who has recorded a number of them and produced them to the Court.  Comments have also been made to the Department of Health and Human Services Victoria (“DHHS”).  The comments involve a range of complaints about the Mother, primarily relating to the Mother physically hurting the children, manipulating the children so that they refrain from complaining about her, and the Mother saying derogatory things about the Father’s family.

4. The reasons for the children making these reports bear heavily upon questions of parenting capacity, of both the Mother and the Father, and the benefits of a meaningful relationship with each parent.  If the reports are indicative of abuse by the Mother, then they tell strongly against her parenting capacity and raise issues around risk of harm.  If the reports are indicative of the Father’s adverse influence on the children, then they tell strongly against his parenting capacity and indicate a potential harm being done to the children.

Chronology

1. The issues raised by the parties, including the allegations of family violence and neglect, are set out below in chronological order.  Considering the reports in their chronological context allows for a holistic understanding, whereas, assessing each report individually would run the risk of decontextualising statements.  This is because the context of the all the reports helps to inform the conclusions to be drawn about each instance.

2. At various points within the chronology matters arise that impact upon the assessment of the credibility of the parties.

3. Prior to the orders made by Judge Turner, the Mother was discharged following a diversion in the Magistrates Court for unlawful assault, recklessly causing injury, contravening a family violence order on 21 February 2013, contravening a family violence intervention order on 3 February 2013 and for unlawful assault on 3 February 2013.[6]

   [6] Exhibit H16

4. Exhibit H16 also established that the Mother was convicted and fined on 19 January 2015 for contravening a family violence intervention order twice on 26 May 2014, on 31 March 2014, on 17 March 2014, and on 3 March 2014.

5. The Mother, in her oral evidence, initially denied that she has ever hit Q, Y or V.  Specifically the Mother said that she had not hit Q and had “never” hit Q.  The Mother also denied being charged.

6. However, when directed to Exhibit H…, the Mother accepted that she had struck Q on one occasion (leading to proceedings against her for assault) in 2012.  This was an occasion where the Mother pulled Q’s hair, although she claimed, without explaining how, that the Father had made her do it, and made her hit Q.  The Mother said, under cross-examination, that she did not recall if she had hit Q, but that Q had run to her Father who was recording the incident, and that it was a setup.  This was not suggested to the Father in his evidence.

7. The Mother was ultimately dealt with by means of a diversionary process by the Magistrates Court.

8. The Mother’s evidence in relation to this incident was highly inconsistent.  It may be accepted that in 2013 she struck Q.  It could not be found to be as a result of a setup on the part of the Father on the evidence that was presented.

1. The Mother also denied that she had been charged by the police in relation to the breach of intervention orders.  However when directed to Exhibit H16 she accepted that she had been charged with previous breaches of Family Violence Orders.

2. The initial denials by the Mother raise significant questions as to her credibility, calling for caution in assessing her other evidence.

3. Most of these incidents predated the Final Orders made by his Honour Judge Turner in 2015.  Those that do not, are dealt with chronologically below.  Aside from raising significant issues in relation to the Mother’s credibility, they are of limited assistance, other than as potentially useful background in assessing current complaints about the Mother.  That use is extremely limited by a lack of information about the subject matters of the charges.

4. Parenting and property proceedings were issued in the Federal Circuit Court in 2012.  The matter proceeded to a final hearing, heard before Judge Turner in November and December 2014.[7]

   [7] Mother’s affidavit filed 19 September 2018 [20]

5. Interim Orders were made on 13 November 2014 for time spent with the parties’ children and further Interim Orders made on 3 December 2014 increased the time spent with the Father.[8]

   [8] Family Report [11]

6. Final Orders were made by Judge Turner on 4 June 2015.[9]

   [9] EXGH-1 Federal Circuit Court Final Orders dated 4 June 2015

7. In summary, the Final Orders provided for the children to live with the Mother and spend time with the Father as follows:[10]

   a)Q and Y, for four nights per fortnight, one afternoon and half of the school holidays and special occasions; and

   b)V, on a graduated basis, increasing to the same structure as Q and Y, when V commences primary school.

   [10] Mother’s affidavit filed 19 September 2018 [24]

8. Y and V currently spend time with the Father in accordance with the time provided for in the Final Orders.[11]

   [11] Mother’s affidavit filed 19 September 2018 [24]

9. Q does not spend time with the Father in accordance with the fortnightly structure provided for in the Final Orders.  Q stopped spending regular time with the Father in 2014.  The Father did not then push for her to come to his home with the other children.  Q has recently started to spend some sporadic time with the Father and the paternal family.[12]

   [12] Mother’s affidavit filed 19 September 2018 [24]

10. The Father says that on 25 June 2015 the children told him that they were at home alone as the Mother had left them to go to work at approximately 8.00pm. The Mother denied ever leaving the children at home alone, asserting that she always organised for a friend to look after them.[13]

    [13] Proceedings; Mother’s affidavit filed 19 September 2018 [86d]

11. On 6 July 2015 an Intervention Order naming Y and Q as protected persons was issued against the Mother for a 12 month period.  V was not listed on the order.[14]

    [14] Father’s affidavit filed 18 July 2018 [67]

12. The Father reported that during his scheduled phone call with the children on 1 October 2015, the Mother told the children that the paternal grandmother had sent people to seize her car and encouraged Q to call the paternal grandmother an animal for doing so.  The Mother denied denigrating the Father’s family to the children.[15]

    [15] Mother’s affidavit filed 19 September 2018 [86e]

13. However, the Mother accepted that she and the paternal grandmother had a bitter relationship following the making of Final Orders, following which the paternal grandmother took enforcement steps to seize the car used by the Mother.

14. The Mother said that while she initially held bad feelings towards the paternal grandmother, she did not express this in front of the children.  Following the Orders of Judge Turner, the Father’s mother had the sheriff seize the car being used by the Mother.  In her oral evidence the Mother denied being upset at the paternal grandmother taking the step of seizing the car although she accepted that she was very upset when the sheriff came to her home.  The Mother denied telling the children that the paternal grandmother had sent people to seize the car.  The Mother also denied denigrating the Father’s family to the children.[16] Regarding the potential repossession of the car, the Mother countered that she had only explained to the children the possibility of catching public transport to school as she had problems with her car. 

    [16] Mother’s affidavit filed 19 September 2018 [86e]

15. The Mother also said that she had encouraged Q to have contact with the paternal grandmother on Mother’s Day in 2018.  This, she said, was the start of Q recommencing spending time with the paternal grandmother.  This was not the subject of successful challenge.  The Mother says that until that time Q had refused to spend time with the paternal grandmother because of what she had done to the Mother in repossessing the car that the Mother used.

16. The Mother denied that she told the Family Report Writer that her relationship with the paternal grandmother had deteriorated to the point of no communication.  I accept the Family Report Writer’s account as to the Mother’s comment and accept that comment to have properly described the relationship.  The Mother says that since Mother’s Day 2018 they have communicated for special occasions.

17. The Father stated that on 5 October 2015 Q told him that the paternal grandmother was “a witch” and “a bitch” for sending people to seize the car and that the Mother would take revenge.  He said that on 1 October 2015 the Mother had referred to the paternal grandmother as an animal. 

18. When seen in the context of the admittedly bitter relationship, it is likely that the Mother has exposed Q to the dispute between the Mother and the paternal family, given Q’s language used in respect of the paternal grandmother.

19. According to the Father, on 25 October 2015 Y told him that V was hit by the Mother and locked in the toilet the day before because she was crying.  The Mother denied hitting V, or locking her in the toilet because she was crying.[17]

    [17] Mother’s affidavit filed 19 September 2018 [86e]

20. On Christmas Eve the parties attended a late night church service.  The Father said that Y told him on 26 December 2015 that the Mother had hit him on the face and back on Christmas Eve 2015.[18]  He said Y had tears in his eyes, an observation that did not appear in his affidavit, and was first raised in cross-examination.  The Mother agreed that Y had come and sat on the Father’s lap during the midnight mass but disagreed that he had tears in his eyes.  The Father’s oral account appeared to contain fabrication, suggested by the reference to tears in Y’s eyes.  The Father’s description of his interaction with Y cannot be accepted as reliable.

    [18] Father’s affidavit filed 18 July 2018 [13]

21. Y was interviewed by Victorian Police on 27 February 2016.  The Father said that this happened because he received a call from the police to bring Y to the police station for an interview.  At this interview Y was recorded as telling the police that the Mother had struck him on the feet and that she had forced him to sleep on the road.  The Father did not think that the Mother would cause Y to sleep on the road.  This is suggestive that Y’s account to the police was at least exaggerated.

22. The Father says that in April or May 2016 Y told the Father that he did not want to stay with the Mother anymore because she had hit and slapped him on multiple occasions for no apparent reason, and threatened to break his bones if he said anything about it.  The Father reported Y’s statements to the Police.  The Mother denied hitting or slapping Y or threatening to break his bones.[19]

    [19] Mother’s affidavit filed 19 September 2018 [86h]

23. The Father produced a series of recordings of Y and V said to have been recorded from this point in time.  The Father said that these recordings took place under circumstances where the children were not aware that he was making the recording.  Until orders were made by the Court forbidding him from continuing to record the children, he made 29 recordings.  These were produced to the Court by him and became Exhibit H1, along with the transcript that he had prepared of the recordings.  His evidence was that this was the full set of recordings and that there were no others.  He denied any editing of the recordings.  The recordings were played in Court and the evidence relating to these recordings formed a substantial part of the case.

24. In some important respects the transcript prepared by the Father omitted matters that were unfavourable to him.  While he sought to explain this by saying that the transcript was only meant as a guide, the omission of matters that were unfavourable to him in what was otherwise a reasonably comprehensive setting out of the conversations leads to an unfavourable conclusion about his credibility and reliability where matters do not cast him in a good light.  This is one indicator of a need for caution when dealing with his evidence.

25. The Father said that the process for recording the children was that he would switch on his mobile phone to make the recording, either because the children started to say something (presumably that he thought was worth recording) or because he anticipated that the children would say some such thing.  He said that most of these occasions occurred when the children were in the car with him, and also occurred immediately after they came into his care, because they wished to get whatever it was off their chests.

26. Given that many of the conversations are recorded from a point part way through, there is a risk that the children were aware at times that the Father was recording them despite the Father’s assertion that they were not.  The Father’s description of how he concealed from the children the recording did not lead to confidence that he was effective in keeping this from the children.  This potential awareness may affect what the children were saying and calls for some caution about their comments.

27. The Father said that neither the affidavit nor the recordings formed a complete account of the reports that the children had made about their Mother.  This aspect of his evidence falls for comment later in the judgment.

28. On 7 May 2016, the Father made a short recording.  This was a recording of Y speaking on the telephone with the Father.  The Mother appears to be intervening in the conversation to say that the Father’s relatives were not related to the Mother and the children, saying “who is them? I don’t know them! They’re not related to us!” in reference to Y’s aunt, uncle and the paternal grandmother.

29. The Mother’s affidavit denied making negative comments about the Father’s family to Y or saying that they are “not related to us”.  She stated that she has made an effort to ensure that the children spend time with the paternal family.[20]

    [20] Mother’s affidavit filed 19 September 2018 [86i]

30. In cross-examination, the Mother initially denied that it was her voice captured on the recording.

31. However, the Mother eventually conceded that it was her voice but asserted that what was recorded was the Mother talking to someone else, in another conversation, rather than engaging in the conversation that Y was having with the Father.

32. The better understanding of the recording is that it was an intervention by the Mother in which the Mother was saying negative things about the paternal family.  The Mother’s responses about this recording undermine her credibility.

33. The Father also alleged in his affidavit that there had been a few other times since this occasion where he could hear the Mother saying that the paternal family was not related to the children, however he did not provide further specifics,[21] meaning that, in this instance, findings should not be made that these occurred.

    [21] Father’s affidavit filed 18 July 2018 [15]

34. On 11 May 2016, the Father recorded part of a conversation where he questioned Y about the Mother having smacked him the previous day.  He questioned Y about V being smacked, although he accepted that Y up until that point had said nothing about V being smacked.  He also questioned Y about another incident of smacking that had happened on another day, stating “and what is the other day that she smacked you?”, to which Y said “I forgot”.  The Father presented no evidence as to a previous conversation with Y that would explain the asking of this question.  At face value, it was the Father who introduced the idea of V being smacked and of Y being smacked on another occasion.  This means caution should be exercised in accepting what was said by Y as his own, unsullied account.

35. Despite the apparently distressing matters being described by Y, on listening to this recording, there is no apparent distress on Y's part.  This again is a reason for some caution in respect of accepting what is said in the recordings at face value.

36. The Father gave two conflicting explanations about this aspect of the recording.  The first was to assert that it did depict Y in a distressed state and that the failure of the listener to identify that Y was distressed was the result of the listener's unfamiliarity with Y.  Alternately, and perhaps conflictingly, the Father said that the report had been made by Y at a time when he was at his happiest, being happy because he had just been picked up by his Father. 

37. The Father’s evidence about Y’s distress was both internally inconsistent, and demonstrated exaggeration by him of Y’s emotional state.  This was a matter that undermined the Father’s credibility about reports being made by the children.

38. The Father cross-examined the Mother suggesting that around this time she threatened to Y that she would break his bones if he said that the Mother had hit or slapped him.

39. The Mother denied hitting Y.

40. On 24 May 2016, the Father recorded a telephone conversation he was having with Y.  He asserted in his affidavit that the Mother, speaking in the L language, had accused Y of lying.  The transcript produced by the Father, while referring to a conversation in the L language, does not make this assertion but rather asserts that the Mother was blaming Y for not eating his food.  This inconsistency undermines the Father’s account.  The call was cut off and the Father attempted to re-establish the call on the number of occasions, unsuccessfully. 

41. The Father played the recording during cross-examination of the Mother and put to the Mother that she was yelling at Y to finish up the call.

42. The Mother accepted that it was her voice talking in the L language but did not accept that it was yelling.  The recording did not depict clear yelling.  The Father’s claim as to yelling was a further example of exaggeration on his part.

43. The Mother asserted that she was saying to finish up the call as Y and V were fighting.  The Mother asserted that she was talking to herself.  She then stated that she told Y to finish up the call because they needed to get ready for bed.  The Mother said that V pressed the end call button.  There was inconsistency in the Mother’s responses about this call.

44. The Mother denied threatening that Y would not be allowed to speak to the Father for two weeks.[22]

    [22] Mother’s affidavit filed 19 September 2018 [86k]

45. On 25 May 2016, the Father made a short recording.  This recording occurs on the day following the cut off call.  It involved the Father questioning Y as to who had cut off the call.  He said that this course of action was necessitated by the need to show the Court what was happening (as presumably the Mother had cut off the call). 

46. No apparent consideration was given by the Father as to the impact this might have on Y.  In his evidence, the Father said he did not think that Y would be distressed about the questioning as he knew that the Father was trying to help him.  He also thought that Y would have been happy because the Mother had cut the line and Y had been unable to speak to the Father.  During cross-examination he prevaricated in relation to his response, saying that he was unsure if it was the Mother who had cut off the call. 

47. No benefit flowed to Y from this questioning by the Father.  This questioning by the Father directly drew Y into the dispute between the parents. 

48. On 8 June 2016, the Father made a short recording.  The recording captures a handover from the Father to the Mother, with V saying “I don’t want to go to mama”.  However, V alternates with other unrelated statements such as asking if another time they could go to Nana’s and see ‘[the dog]’.  V’s expressed reluctance on this occasion is not a matter that should attract any weight.   

49. The Father says in his affidavit that he heard the Mother say to V that “[Nana] is yucky” and then V repeatedly defending her grandmother.  This is not on the recording.

50. While the Father put the children’s bags in the Mother’s car, the recording captures V saying, seemingly unprompted, that “[Nana] is not yucky!”    

51. The Mother denied denigrating the paternal grandmother.[23]      

    [23] Mother’s affidavit filed 19 September 2018 [86l]

52. It is unclear why V was saying that Nana is not yucky.

53. On 15 June 2016, the Father made several recordings.  The first recording on 15 June 2016 is a very short statement of V asserting that the Mother had said that the paternal grandmother, Nana, was “yucky”.  Her statement was that “Mama said yucky [Nana]… that what Mama said… God will put her in punishment.  Mama said yucky [Nana]”.  No precursor to this statement is recorded.  Nothing following the statement is recorded.  It appears to fortuitously record one short part of what V was saying, reporting on her Mother.  V appears to adopt some adult language, although the evidence does not allow it to be determined who the source of the adult language was.

54. This recording lacks the immediate context before the recording and following it.  It contains nothing to indicate what prompted the statement by V.  It is unreasonable to think that this was the complete conversation that took place with V.

55. The Father gave no explanation in his affidavit of how this recording came about.  The Father has not given evidence about the balance of the conversation to allow it to be determined what had prompted V to speak in such a fashion, and to be able to infer that it was because of the Mother or some other cause

56. The Mother denied that at any stage she said that Nana was “yucky” or that she had encouraged the children to call their grandmother names.  The Mother also denied that she had called the paternal grandmother a “witch” or a “bitch”, although she conceded that she had heard Q saying that the paternal grandmother was a “witch” and had told her not to say these things in front of V and Y.[24]

    [24] T 13 February 2019

57. The recording captures Y saying that he got into trouble because V told the Mother that they had visited Nana’s place, and the Mother said to him that if they did so again “you’re in punishment and sleep downstairs forever and starve”.

58. The Mother denied threatening that Y would sleep downstairs or starve if he spoke to his grandmother,[25] and said that V and Y love the paternal grandmother.

    [25] Mother’s affidavit filed 19 September 2018 [86l]

59. Again, the Father has provided no context as to how the conversation came about, or what caused him to start recording.  Absent that evidence there is a significant question as to why Y was saying what was recorded.

60. However, not all of Y’s claims about the Mother were completely unfounded, even if potentially exaggerated.  The Mother accepted to the Family Report Writer that when Y was misbehaving she said he would have to sleep downstairs, rather than outside. 

61. In Court the Mother accepted that she said that Y would have to sleep downstairs if he did not do his homework.  She said that her tone in saying this meant that it should not have been taken to have been a threat, and that it was something that Y knew that she would never do.  Oddly, the Mother said that she did not perceive this as being a disciplinary measure.  What it leaves is a small grain of truth to Y’s exaggerated claim.

1. The Family Report Writer thought that sleeping downstairs may have been the same in Y’s mind as sleeping outside, as it would be without his Mother and sister.[26]  This interpretation appeared somewhat speculative. 

   [26] Family Report [41]

2. On 16, 18 and 20 June 2016, the Father made several recordings.  A number of the recordings consisted of V repeatedly saying “Mama said yucky “Nana”."  These repeated statements by V had the flavour of V telling on her Mother to her Father.  It was unclear why V was volunteering this information in each of the recordings.  

3. Again, there is no context provided as to what may have prompted V to say these things.

4. On 23 June 2016, the Father made a short recording.  In this recording both V and Y are making an adverse report of the Mother to the Father.  They appear to be enjoying themselves immensely, speaking in a singsong manner.

5. In the recording V states “said yucky Nana” and Y says “said the “B word””.  V and Y then alternate saying “yeah, was saying the “B word” and “Mama said the “B word””.

6. There is no distress on the part of the children as they ‘tell’ on the Mother.

7. Again there is no context to shed light upon why the children started to engage in this behaviour.

8. On 4 July 2016 the Father sought to have the Intervention Order extended to include V.  This was granted and named all three children as well as the Father as protected persons.[27]

   [27] Father’s affidavit filed 18 July 2018 [68]

9. The Father’s affidavit stated that on 29 July 2016, when he picked Y up from school Y recounted his Mother yelling at him after returning from Court the previous day.  The Mother supposedly blamed Y for having to attend Court.  This was not recorded.

10. The Mother denied blaming Y for having to attend Court.  She stated that she avoids discussing Court proceedings with the children.[28]

    [28] Mother’s affidavit filed 19 September 2018 [86m]

11. On 3 August 2016, the Father made a short recording.  The recording commences part way through a conversation between the Father and Y.  It starts with Y spelling out the letters “spin”.  The Father corrects this to “spine” although he accepts that Y had not said the word spine in the lead up to what was being recorded.  This was apparently a report by Y that he had been hurt by the Mother by being struck on his spine.  The Father said that he knew that Y was talking about an event occurring on a day shortly before the recording, where the parties had been in the Magistrates Court for intervention order proceedings. 

12. The Mother denied hitting Y on the spine.

13. The same day as the report the Father took Y to a general practitioner and obtained a mental health plan for Y to see a psychologist. 

14. The Father did not explain how he came to record Y.  He did not set out what led up to Y’s comments, or what might have prompted him to say such things.  He did not explain why he prompted Y with “spine” nor how he knew Y was referring to the day of the Intervention Order proceedings.  Y’s comments cannot merely be taken at face value, given the prompting engaged in by the Father.

15. The Mother was excluded from this process.  She was not informed by the Father that he was taking Y to a psychologist, and he deceived the psychologist as to the allocation of parental responsibility, which he represented was allocated in a manner that allowed him to take Y to the psychologist without reference to the Mother.[29]

    [29] Ex M2

16. On 31 August 2016 the Father recorded a conversation between Y and the paternal grandmother where Y complains that he was in trouble because V had told the Mother that they had gone to the paternal grandmother’s home.  Y explained that he had been smacked.  The paternal grandmother was sympathetic to him.

17. The circumstances of this recording are not identified in the Father’s affidavit.

18. The Mother did not respond to this recording in her affidavit.  It was not directly referred to in the Father’s affidavit.

19. On 3 September 2016 the Father made a short recording.  Y and V in this recording appear to compete in telling increasingly dramatic stories about bad things done to each of them by their Mother, by means of her smacking each of them. 

20. The Mother was not questioned about this recording and it does not appear in the Father’s affidavit.

21. No context for the recording, or as to what led to the children speaking in such a manner was provided by the Father.

22. On 7 September 2016 the Father made a short recording.  This recording constituted another example of V reporting her Mother.  Interspersed with other general questions about her siblings, V stated that her Mother and Q were “saying the bad words of [nana], so I’m getting them in trouble”.  V also stated that her Mother smacked her in the car despite V not eating in the car, that she was crying and that “I don’t like mama!”.

23. The Father did not reply except to V’s unrelated question of where Y was.

24. V appeared conscious that the effect of what she was doing would get the Mother into trouble, repeating that “Dad…you know mama’s saying the bad words of [nana], she’s naughty.  I’m going to God get her in punishment”.

25. The Mother denied that she hit or refused to feed V.

26. On this day the children were taken to the psychologist, Ms F, for whom the mental health plan had been obtained. 

27. Exhibit M2, the psychologist’s notes, describes that the Father and Y attended an initial counselling appointment.  It recounts that the Father described to the psychologist that the Mother hit Y with a wooden spoon, locked him outside, called him names and criticised the paternal grandmother.  Y was reported as saying “I don’t like going to see my mum” and saying that he wants to live with his Father instead.  Y described to the psychologist that the Mother would hit him and lock him outside. 

28. While the Father asserted that the children were in a waiting room when he discussed the Mother’s alleged behaviour, this is not made explicit in the psychologist’s notes which are suggestive that Y and the Father were together for this conversation.  These circumstances are again suggestive of the Father influencing Y in his complaints against his mother.

29. On 14 September 2016, the Father made a recording of a discussion about what had taken place on the previous day.  Y described the Mother smacking him on his spine and face in order to force him to say (to someone) that the Father needed to stop being rude or the Mother would call the police.  This description by Y is quite odd.  He amended this explanation to the Mother smacking him with a wooden stick because she was in a hurry to get him to before school care.  He described the smacking with a wooden stick as hard and “humungous.”

30. The Father checked Y's body for injuries and found no marks or injuries.

31. The Father’s affidavit says that on this day Y told the Father that the Mother had hit Q with some object, giving her a bruise.  The Mother denies this.[30]

    [30] Mother’s affidavit filed 19 September 2018 [86p]

32. What led up to this recording is not described by the Father.  Y’s statements are internally inconsistent as to how he says he came to be in trouble. The claim of “humungous” smacking is not supported by the presence of any mark on Y.

33. On 14 September 2016, the Father made a second recording.  This recording appears to follow the previous one, and changes the description made by Y from a smacking having occurred the previous day to having occurred the previous day as well as the day of the recording.

34. While at the start of his cross-examination the Father had denied that Y may have exaggerated some of his comments to the Father, the Father accepted that these comments involved exaggeration.  This acceptance of exaggeration was in the context of the Father having inspected Y and found no injuries following the beating described by Y.  The Father thought that Y may have exaggerated in order to get the Father's attention so that the Father would help him. 

35. On 22 September 2016 Y was interviewed by DHHS.  The context of this interview was that he had come from spending time with the Mother.  Y is recorded as having told DHHS that he felt safe at the Mother's home, and unsafe at times in the Father's home.  He reported that the Father wanted him to tell the principal that the Mother was rude.

36. The Father alleges that this interview by DHHS was compromised because Y had come from having time with the Mother, and alleged that the Mother had coached Y and bribed him with a Teenage Mutant Ninja Turtle figurine. 

37. On 28 September 2016 Y had his second session with Ms F.  Exhibit M2 shows that at the start of that interview the Father, in Y’s presence, discussed the attendance of DHHS at the Mother’s home, that Y had told him that the Mother had caused him to lie to DHHS and said that Y had said “I hate myself” and that he felt “very guilty” for lying to DHHS.  This constitutes yet another example of Y being exposed to the Father’s criticism of the Mother.

38. The psychologist, Ms F, then discussed these matters with Y after the Father left the consulting room.  Y told the psychologist that the Mother told him to say that he did not feel safe in his Father’s house and that she would give him a ninja turtle to reward him.

39. Y said that he felt safe in his Father’s house but not in his Mother’s house.

40. Y also said that he was scared that if he had told DHHS the truth he would be punished by his Mother by being locked outside on the road or hit with a wooden spoon.  He described that when he is locked outside he tells his Mother there is a stranger so that she will open the door (although this does not work) and that he stands “as a statue near the door” so that people would walk past thinking he was a statue.

41. Y told the psychologist that the Mother hits him on his face, his spine and his legs with a wooden spoon and that “when I have to see my mum I get really upset”.

42. The Mother’s affidavit denied telling Y to lie or bribing him with a Ninja Turtle figurine.[31]  During cross-examination she stated that she had promised him a Ninja Turtle Figurine weeks earlier if he completed his homework.  

    [31] Mother’s affidavit filed 19 September 2018 [86q]

43. On 3 October 2016 Y was again interviewed by DHHS.  This time he came from the Father's care and described that he had been hit by the Mother, locked outside, and that he wished that his Mother was dead.  The Father denied having coached Y. 

44. The DHHS Intake Records about the interview on 3 October 2016 describe that “The validity of Y’s disclosures was questioned by Child Protection workers due to the following:

    a)There was a lack of constancy with Y’s disclosures, he would state that his mother hit him all of the time, then some of the time, and would not be able to identify when his mother last hit him, or describe any details of a time that it had happened (where on his body, with what, where it happened in the house, reason, what was said, what happened after).  Yet, Y could identify in depth an incident that had occurred at school over a year ago, when a child hit another child in front of him.

    b)Y stated that even when his mother hit him the hardest “it didn’t hurt”.

    c)Y said that his sister had never seen or witnessed these events.

    d)Y could not identify a single positive thing about his mother.  Even children who have suffered significant harm are usually able to identify at least one positive characteristic even if this is not a constant.

    e)Y stated that his mother is a liar and that he wished she was dead.  When asked what she lies about he said that he was unsure, however, his father had told him that his mother and Q are liars.”[32]

    [32] Ex M5 DHHS Intake Records dated 10 April 2017, referring to investigation from 16 September 2016 to 4 October 2016

45. To explain this the Father pointed to the recorded conversation from 14 September 2016 where he had described that the Mother was “telling you all lies” about the Father and the paternal grandmother making the maternal grandmother ill and dying. 

46. The Father said that Y has not said to him that he wishes that his Mother was dead, and says that he is not sure if Y feels that way.

47. Having initially told the DHHS worker that he felt safe with the Mother, Counsel for the Mother observed the marked and concerning change once Y had spent time with the Father, such that he was then reporting that he wished that the Mother was dead.  This raises a significant concern that the change has come about as a result of the conduct of the Father, a concern supported by what the Father said about the Mother to Ms F in Y’s presence.

48. The Father complains that on 4, 5, 6 and 7 October 2016 the Mother left Y alone while she took Q to the railway station.  The Father did not ask the Mother about this.  The Father says that he was told this by Y.  The Mother denied leaving the children alone in the house at night unsupervised.[33]

    [33] Mother’s affidavit filed 19 September 2018 [86r]

49. On 7 October 2016 Y had his third session with Ms F.  Exhibit M2 records Y and the Father attending the appointment, Y describing his distress and feeling scared when with his Mother.  Y said that he had not been hit with a wooden spoon or locked outside but that the Mother spoke to him about “demons”.  The notes record the Father offering reassurance to Y.

50. The Father then said that Y had told him that the Mother and Q had told him that an evil clown called Pennywise, and demons, would come and get him. 

51. The Mother denied that she used disciplinary measures of locking him outside or hitting him with a wooden spoon.  She said that Y had recounted to her that the Father had told him to tell the psychologist that his Mother locked him outside.  According to the Mother, Y told the Mother that he had told the psychologist these things to make his Father happy and that the Father was sitting outside the psychologist’s appointment room so he felt that he had no choice but to say these things.[34]

    [34] T 14 February 2019

52. On 12 October 2016, the Father made a short recording, again without providing any evidence as to what led up to the recording, of Y saying that the Mother had hit him and that the Mother had said that the Father would soon go to hell.

53. The Father’s affidavit stated that Y reported being hit by the Mother for visiting his grandmother.  The Mother denied that she hit Y because he went to see his paternal grandmother.  She stated that she has no issues with the children spending time with their grandmother or other members of the paternal family.[35]

    [35] Mother’s affidavit filed 19 September 2018 [86s]

54. Y again saw Ms F on 19 October 2016.  Exhibit M2 records the Father attending the counselling appointment, with the Father expressing anger that DHHS had closed the case and his concerns about how this would look in the Family Court.  He asked the psychologist to write a letter about what had been disclosed during the sessions.

55. Y again reported distress in his Mother’s home and feeling both scared and worried.  When the psychologist raised the prospect of contacting the Mother to discuss Y’s concerns and to provide parenting support, Y and his Father told Ms F that they did not want the Mother to be contacted.  Y said he did not want his Mother to know that he was going to counselling because he would get into trouble for what he discussed.

56. The Father said that on 19 October 2016 he received a text message from the Mother accusing him of teaching Y to say things about her to the psychologist.  He says that he told the Mother to stop interrogating Y and that he would take action if Y reported to her any bad things that she had done to him.

57. The Mother agreed that she sent the Father a text message asking him to explain Y’s attendance at a psychologist.[36] 

    [36] Mother’s affidavit filed 19 September 2018 [86t]

58. On 19 October 2016, the Father recorded a short conversation with V involving V having chips from McDonald's and reporting to the Father that the Mother had said “all the bad words of [Nana]".  The Father said he then ended the recording.

59. On 20 October 2016, following a session with Ms F, and the subsequent text exchange with the Mother, the Father recorded a conversation with Y.  This was the conversation that he had labelled as 19 October 2016, although it occurred on 20 October 2016.  To do this he attended at Y’s before school care and interrogated him, recording part of the conversation.  The recording commences part way through whatever conversation was happening between the Father and Y and it is impossible to identify what Y was told immediately before the conversation. 

60. The conversation involved Y identifying that the Mother had told him to write a note and that the Mother knew about his “friend” but did not know if that was a person from child protection or a psychologist. 

61. Y said that the Mother had told him to say that he was afraid of the Father.  The Father then asked Y “did she force you to say that?".  He then asked Y a long sequence of questions about that and matters that flowed from that.  He asked Y about something that had happened the previous day and Y volunteered that Q had texted the Father.  The Father prompted Y “so your Mother told Q to text me?”.  While the Father said that Y had already told him just before this that it was Mother who had got Q to send the text, this is not plain on the recording.  He then asked Y a number of questions.  Y responded that his Mother had told him to lie, had asked him to say that he was afraid of the Father and to write a note to the psychologist to say so.  Y said that the Mother had threatened him that if he did not she would make him do “one hundred pages of homework”.  He then changed this to say “if you don't tell me what you said, I'll make you have a hundred pages of homework”.  The Father then questioned Y “what did your Mother force you to tell her yesterday?”.  Y responded that it was to say that “I'm afraid of my dad”.  The Father continued to question Y saying “because she text me and she said that you said somethings to her, so I want to know what you said?  It's okay you can tell me”.  Y then referred to having “made a big mistake… I think I made a big mistake even badder". 

62. The Father interpolated this to be a reference back to Y having told DHHS that he was not afraid of the Mother, but was afraid of the Father.  The Father says that Y refers to this as a “mistake” although the Father has recorded nothing in his affidavit evidence of Y explaining it as such. 

63. The Father prompted Y asking “so did she yell at you?” and “did she hit you?" and “were you afraid? Yesterday when you went? Were you crying?".  Y explained that V had told the Mother that child protection had visited.

64. The following exchange then took place:

    ·The Father: Okay, so what you want dada to do?  You tell me what you want me to do? 

    ·Y: To stay here every day

    ·The Father: Now, your Mother text me and she told me that I am teaching you to say things.  Did you tell her that?  Tell me it's okay darling? 

    ·Y: Yes

    ·The Father: You told her that why did you tell her that? 

    ·Y: Because I was forced to

    ·The Father You are forced to tell that? 

    ·Y: Yes.  I want you to tell the court and child protection. 

    ·The Father: So are you sure that your Mother hit you yesterday? 

    ·Y: Yeah.

65. The Father then described to the Court that it was unfair that Y was being interrogated about what he had said to the psychologist and that this constituted emotional abuse on the part of the Mother.  He did not regard his questioning of Y as emotional abuse.  The Father said he asked Y the questions because he needed to know.  He did not think that he was suggestively questioning to Y, and that he had asked questions because “I’m reading the text message from the Mother”.  He thought that something serious had happened and “could sense something serious” had happened.

66. The Father said that he would have checked to see if Y had marks on his body.  He gave no evidence that Y did have any marks.  He accepts that he has checked Y's body on a number of occasions although he could not say how many times.  He thought it might be less than ten times but he was not sure.  This incident of recording Y does not show the complete exchange between Y and the Father.  What it does show is the Father exerting strong pressure and influence upon Y to criticise the Mother.

1. The Father cross-examined the Mother, who denied that she had questioned Y, or yelled at him or hit him the previous night in relation to going to the psychologist.  The Mother’s affidavit stated that she was not aware that Y was seeing a psychologist at that point, although this appears to be inconsistent with her other evidence.[37]  The Mother said that she was unconcerned about Y attending the psychologist, but that she thought that the Father was pressuring Y, because Y had said to her “I’m really sorry …this is what Dadda told me to say.”  She said that this comment by Y was not the product of pressure by her, but rather was something that he came and told her.

   [37] Mother’s affidavit filed 19 September 2018 [86t]

2. The Mother also alleged that Y has told her that he said to the psychologist that he wanted to live with the Father because he wants to make the Father happy, because all of the children are there for the Mother and the Father has no one.  She said that Y tells her this despite knowing that it upsets her.

3. The Mother and Y have discussed what he has said to people about her.  She says that she has told Y to do the right thing because God is watching.

4. The Mother also said that she had been aware for about 6 weeks, at this stage, that Y was seeing a psychologist.  This is in contrast to her assertion that she did not know about Y seeing a psychologist until 19 October 2016, demonstrating significant inconsistency in her statements.

5. The Father recorded V on 9 November 2016 on two occasions, firstly complaining that the Mother had said “bad words of [Nana]” and that the Mother had said for her to spit on the Father.  The Father responded “okay… You don't listen, okay… That's naughty thing.  That's bad thing that she is teaching you, okay.”

6. The Mother denied telling V this.[38]

   [38] Mother’s affidavit filed 19 September 2018 [86u]

7. On 18 November 2016 the Father took Y to see Ms F.  He remained in the room at the start of the interview and, in Y's presence, told Ms F that the Mother had verbally abused and punished Y in order to find out what Y had said to Ms F in counselling.  Y said that he had been punished by the Mother making him write pages.  This constitutes a further example of the Father exerting influence over Y in a manner critical of the Mother.

8. After the Father had left the room the psychologist discussed with Y what he might do if the Mother locked him out of the home.  Y said that he wanted everyone to stop asking him questions and to leave him alone. 

9. The psychologist then spoke to the Father without Y present.  She suggested ceasing the sessions due to possible risk to Y.  The Father disagreed and said that he wanted the sessions to continue.

10. When cross-examined about Y having said that he wanted everyone to stop asking questions and to leave him alone, the Father said that he was not told this by Y and that he did not think that Y wanted the Father to stop asking him questions.  The Father then said that it was Y who initiated the topics that the Father questioned about.  This did not reflect instances where he had started recording Y without any apparent initiative being taken by Y to discuss particular matters. 

11. The Father denied training Y as to what he should say to the police. 

12. On 21 November 2016 the Father made a short recording.  The Father says that he received a text from the Mother accusing him of getting Y to say negative things about the Mother.  This text appears as Exhibit M1, although the Father indicated that there may have been other texts as well at this time.  There the Mother complains that rather than taking Y to sport on 18 November 2016, the Father had taken him to a psychologist’s appointment.  She complains that he had pressured and pleaded with Y regarding what to say to the psychologist, although it is not clear on what basis she said this.  The Mother sought the details for the psychologist and asked the Father not to damage the children.  The Father said that he was concerned, by virtue of this message, that Y was going to be assaulted by the Mother because she had questioned Y and therefore had come to know of the psychologist. 

13. The Father was questioned as to whether he bought toys for Y after this psychologist appointment.  He said that he did not think so, he did not remember, and that he did not know.  He then said it was not true that he had given Y toys in respect of the psychologist. 

14. The following morning the Father visited Y at school, before school and questioned him on a bench about what had occurred the previous day.  Y responded that he had told the Mother that he had gone to sport and not to the psychologist and said that the Mother had said that he was telling lies.  The Father prompted Y asking “did she yell at you?”.  Y responded saying that the Mother was hitting him and that he had to sleep downstairs on the couch. 

15. The Father told Y that he may report this to one of the staff from Y’s school.

16. The Father alleged that V reported being hit by the Mother on 29 November 2016 at swimming classes.  The Mother denied this.[39]

    [39] Mother’s affidavit filed 19 September 2018 [86w]

17. In the recording the Father asked Y twice “what happened yesterday?”.  Y stated that “mama asked me if I went to sport and I said yes, and she said don’t say lies, and she asked did you go to the psychologist and I said no, and she said why are you saying lies… So when I got home I had a wash and after that, I had to do lots of pages, then I had to sleep downstairs”.  When questioned about sleeping downstairs Y said yes and that he slept on the couch.  The Father asked whether the Mother yelled at Y, to which Y replied that “when I was doing the pages she was hitting me.  I had a wash and had to do… pages and I got hit when I was doing the pages… and then I had to sleep downstairs until today”.[40] 

    [40] Ex H1 Father’s transcript p 18

18. The Mother denied that she had hit Y or forced him to sleep downstairs.[41]

    [41] Mother’s affidavit filed 19 September 2018 [86v]

19. The Father regarded the text message at Exhibit M1 from the Mother as being a deceptive message and not a true reflection of who she was.  He regarded the text message as having been written in anticipation of going to Court, although there were no Court proceedings on foot at that time.  He accused the Mother, by virtue of the text message, as collecting evidence for Court. 

20. On 2 December 2016 Y and the Father attended upon Ms F.  Exhibit M2 records that Y told the psychologist that his Mother had asked him if he was attending counselling, but that he had denied it, and that his Mother had made him sleep outside for telling lies.  This account is notably different from the account given to the Father which alleged being forced to sleep downstairs on the couch.

21. The Father said that the Mother had been asking to speak to the psychologist regarding the counselling, but that he had not provided her with the details as he did not want her to be involved in the counselling.  The Father said that he thought that if the Mother was involved in the counselling she would “interrogate” and “abuse” Y.

22. The psychologist again raised involving the Mother.  She described that Y appeared to be distressed and said that he did not want her to contact his Mother because he was afraid that she would punish him.

23. As Y was leaving the session he showed the psychologist a cut on his hand and said that his Mother had hit him and caused the cut.

24. The notes are suggestive that the conversations between the psychologist and the Father happened in Y’s presence.

25. On 20 December 2016 Ms F asked to see the parental responsibility orders.  The Father told her that the Court orders were confidential.  He then sent Ms F a copy of the Health Records Act and suggested to her that she was unable to disclose her dealings with Y as it would put him in danger. 

26. On 21 December 2016 Ms F again emailed the Father expressing her concerns that the Father had engaged her without the Mother and referred him to the Practice Manager.  Ms F then suggested that she would stop counselling as Y and the Father reported negative consequences.  The Father indicated that he did not want the counselling to stop, in spite of the abuse that he was alleging that Y was suffering at the hands of the Mother.  His explanation for this was that he thought that the Mother would abuse Y whether or not he was attending the counselling and that the anti-anxiety techniques that were being taught by Ms F were of value. 

27. The Father says that on 24 December 2016 V reported that the Mother had locked her in the wardrobe and that Q had smacked her.  She again reported that Mumma and Q were saying “all the bad words to [Nana]". 

28. The Mother denied locking V in the wardrobe, saying that there was no lock or door on the wardrobe.  The Mother denied making negative comments about the paternal grandmother to V.[42]

    [42] Mother’s affidavit filed 19 September 2018 [86x]

29. On 29 December 2016, Y is recorded by the Father as complaining that he was hit for not eating chewing gum.  The Mother denied hitting Y or asking him to eat chewing gum.

30. The Father’s affidavit states that the Mother had threatened to remove Y from her vehicle, however the recording does not capture this.  The Mother denied threatening to remove Y from her car.[43]

    [43] Mother’s affidavit filed 19 September 2018 [86y]

31. On 11 January 2017 Ms F indicated that she would no longer see Y.

32. On 12 January 2017, the Father recorded Y just before he was due to be returned to his Mother following a period of school holiday time with the Father.  The recording shows Y as being obviously distraught.  Throughout the recording, amidst Y’s display of high levels of distress, the Father can be heard eating.  He makes little effort to calm Y.  The Father says that he, the paternal grandmother and Y were the only people in the room. 

33. At the commencement of the recording Y is complaining that the Mother will find out that the paternal grandmother had slept over at the Father's home.  In response to Y’s concern that “mama going to ask me… if [nana] came to have a sleepover”, the Father instructed Y to lie about this.

34. Two concerning features about the production of the transcript by the Father emerged.  At page 20 of 26 the Father records Y as saying “this is making me have a headache”.  What Y actually said is “you are making me have a headache”.  Further at page 21 he recorded Y as saying “I don't like telling people stuff or telling them what they want…… I do not like it…”.  What Y actually said is “I don't like telling people stuff or telling them what they want to hear.  I do not like it.” 

35. In relation to Y saying that he did not like telling them what they want to hear, the Father inferred that this was about the Mother rather than about the Father.  This conflicted with the context which preceded the comment by Y.  Immediately beforehand the passage is as follows:

    ·Paternal Grandmother: you have to go darling otherwise dada will fall into trouble if you not go home. 

    ·Y: I don't want to. 

    ·Paternal Grandmother: ah right you go to mumma’s and if mumma says anything you tell dada next time, that's all.  

    ·Y: no, I don't like telling people stuff or telling them what they want to hear.  I do not like it. 

36. The Father disagreed that this could have been a reference about him, saying that he was able to deduce that it was not because he understood Y's language and that if it was not understood in the manner that he asserted that was due to a lack of understanding on the part of someone as to Y. 

37. This interpretation by the Father was not supported by the recording.

38. Despite the highly distressed display by Y the Father made no report of Y identifying any problems had with the Mother on his return to the Father. 

39. It is also noteworthy that this is the only time where the Father has ever recorded Y being upset at the prospect of going to spend time with his Mother.  The Father alleges there are other unrecorded occasions of such, but his affidavit evidence reports no other occasion whatsoever.  While the Father repeatedly explained that the recordings were only examples that he took of conduct and hence not the full package of what had occurred it appears inconceivable that if Y was complaining about going back to the Mother's place that it would not have been recorded by the Father or at least contained in the affidavit.  The fact that this, of what must be hundreds of handover occasions, is the only one in which Y is described as upset in the sense of being distraught at the prospect of spending time with his Mother is significant.

40. On 14 February 2017 the Father attended at the Suburb J Magistrates’ Court in relation to extending the Interim Intervention Order.  The matter was adjourned to 10 July 2017 for a contested hearing.[44]

    [44] Father’s affidavit filed 18 July 2018 [69]

41. The Father alleges that on 21 February 2017 he witnessed the Mother locking Y in the car on a hot day.  In cross-examination the Mother denied doing so.  She denied locking Y in a car, saying that she left him in the car for a short time while she collected V from childcare, noting that there were cameras on the carpark and that the Father was present in the carpark.  However, the Mother’s affidavit stated that she did not recall the specific occasion referred to by the Father.[45] The Mother in her affidavit admitted that Y occasionally stays in the car while she collects V from childcare but stated that Y knows how to open the car door if he needs some air.

    [45] Mother’s affidavit filed 19 September 2018 [86bb]

42. The Father suggested to her that he had tried the door and found it to be locked however this material does not appear in his affidavit.

43. The Father alleged that on 2 March 2017 Y told him that the Mother told Q to push Y into the car and that Y was hurt as a result.  The Mother denied this.

44. On 10 March 2017, the Father made a short recording.  While the Mother had previously agreed to the Father taking Y to sport on the Friday afternoon when Y was otherwise due to be in her care, on 7 March 2017 her solicitors wrote to the Father notifying him that consent was withdrawn for this departure from the pattern set out in the Orders.

45. Despite this, the Father took Y to sport on 10 March 2017.  He says that he relied upon legal advice that he had received that he was entitled to do so once agreement had been received for the activity.  He did not suggest that the Mother was notified of his intention to go ahead in any event.

46. The Mother said that she never agreed to the Father taking Y to sport every Friday afternoon, only agreeing to sport when Y was in his care.[46]

    [46] Mother’s affidavit filed 19 September 2018 [86dd]

47. The Mother said that on 10 March she received a call that Y was missing from after school care.  This was preceding a weekend when the children were in her care.  Her affidavit stated that:

    I text [Mr Harrison] and asked if he had [Y].  He responded, after 45 minutes, that he did have [Y] and that I could collect [Y] from the [sports] stadium.  I told [Mr Harrison] that [Y] was meant to be at after school care, that I had not agreed to him taking [Y] during my time, and that he needed to return [Y] to after school care immediately.  When I arrived at after school care, [Y] had not been returned.  I waited for approximately 20 minutes.  I was running late to collect [V] from her child care, which was about to close.  When [Mr Harrison] finally arrived with [Y], I quickly picked up [Y's] bag and took [Y] by the arm and we ran to the car.  I said to the afterschool carer, as I left "follow the orders".

48. The Father recorded this incident.  The Mother accepted that her comment as to following the orders was directed to the Father.

49. This led to the Mother being charged with a breach of the intervention order.

50. On 31 March 2017 the Mother went to the Suburb J Magistrates’ Court in relation to the allegation that she had breached the Intervention Order by yelling to the Father to follow the orders on 10 March 2017. The charge was dismissed under Section 76 of the Sentencing Act 1991 (Vic) on the basis that although proven, it was trivial.[47] 

    [47] Father’s affidavit filed 18 July 2018 [70]

51. The Father alleges that the Mother then repeatedly hit Y on his spine and blamed him for having to go to court.  The Father reported this to the police.  The Mother denied that she hit Y on that evening.[48]

    [48] Mother’s affidavit filed 19 September 2018 [86ee]

52. Y was due to start at a new school following the April 2017 holidays, at the election of the Mother who has parental responsibility for education pursuant to the Orders of Judge Turner.  The Father had Y for the second half of the holidays.  He says that Y complained during this week that he had been hit by the Mother when he was in her care.  On 7 April 2017 the Father made an application to the Federal Circuit Court to have the Final Orders of 4 June 2015 discharged and for Y and V to live with him.  The matter was listed for hearing on 6 June 2017.[49] 

    [49] Father’s affidavit filed 18 July 2018 [41]

53. Y was interviewed by the police on 10 April 2017.  The Father then retained him, he says with the agreement of the police, until the proceedings were brought back to Court on 3 May 2017. 

54. On 11 April 2017 the police served a varied intervention order that did not allow the Mother to contact Y.

55. On 18 April 2017 the Father applied to the Magistrates’ Court at Suburb J and requested that the Family Court Orders be suspended by 21 days in order to enable the Father to seek an urgent hearing in the Federal Circuit Court.  His application to vary the Interim Intervention Order of 11 April 2017 was refused because the court did not have power to vary or suspend an Order about who a child lives with.

56. The Federal Circuit Court made Orders on 3 May 2017.  The Orders provided for the return of Y to the Mother’s care.

57. In these Orders the Court also restrained the further recording of the children and restrained the parties from taking the children to a psychologist, counsellor, mental health or social worker, police or the Sexual Offences and Child Abuse Investigation Team (“SOCIT”) without the consent of the other party or the ICL. 

58. On 3 May 2017, following proceedings in the Federal Circuit Court, the Father returned Y to the Mother’s care in a police station.  Y became upset.  The Mother stated that she tried to effect a smooth and calm handover, but that the Father was hugging and kissing Y excessively and refusing to put Y down.[50]  The Mother stated that Y had told her that the Father had told him to scream and cry in the police station so that he would not have to go with the Mother.[51]

    [50] Mother’s affidavit filed 19 September 2018 [86jj]

    [51] Mother’s affidavit filed 19 September 2018 [86jj]

59. The Father’s affidavit alleges that on 11 May 2017 V told him about being scratched by the Mother and showed him scratches on her leg.  She allegedly stated that she was scratched for being naughty.  The Mother denied that she scratched V.[52]

    [52] Mother’s affidavit filed 19 September 2018 [86ll]

DHHS home visit and interviews 19 May 2017

1. In response to a report to DHHS on 10 April 2017, about an incident alleged to have taken place on 31 March 2017 involving the Mother hitting Y, a home visit was organised to see the Mother and the children on 19 May 2017.  The DHHS worker was subpoenaed for the proceedings and cross-examined by the Father in relation to this home visit.

2. The visit was arranged with the Mother in advance.

3. The Father alleges that Y told him that the Mother threatened to hit and punish Y if he said anything bad about her, and told him to lie to DHHS.  The Mother denied that she told Y to lie to the DHHS worker or threatened to hit or punish him.[53]

   [53] Mother’s affidavit filed 19 September 2018 [86pp]

4. The interview process commenced with an interview of Q, while the Mother and the other children were upstairs.  Y was then interviewed alone while the Mother and other children were upstairs.  The Mother and V were then seen together, with Q and Y upstairs.

1. The Mother reported that upon returning to her care after time with the Father, Y’s behaviour is often aggressive and then followed by apologies “I am sorry Mama.  I have to lie about these things”.  When asked by his Mother if he loves her and wants to run away from her, Y offers repeated assurances.[81]  The evidence did not give a context for these exchanges, which have the potential to place Y under further pressure.

   [81] Family Report [39]

2. The Family Report Writer said that it is in the children’s best interests that “they live together and spend as much time as possible in strengthening their sibling bonds”.

3. The Family Report Writer recommended against resettling the children with the Father and in new schools.

Country H

1. Both the parents are from Country H.  The Father seeks a restraint on travel.

2. The Father accepted that there would be benefits to the children being allowed to travel to Country H to learn more about their culture and meet relatives.  However, he still asserted that the children should remain on the international Watch List because of threats that the Mother allegedly made over the phone to relocate to Country H.  This was not mentioned in the Father’s affidavit.  The sudden appearance of this evidence casts significant doubt on its reliability.

3. The Mother denied strongly that she had any intention of resettling in Country H as the children were born here and are performing well at school here.  She did say that she would like to take the children overseas for a holiday.

4. It should not be thought that the Mother is a flight risk on the basis of the evidence that was led.

Other matters relating to the care of the children, the nature of their relationships and the parties views on such

1. The Father challenged the adequacy of the capacity of the Mother to care for the children.  The Mother relies on people who share her home with her to provide care for the children.  The Mother denies that these people are boarders, describing them as her friends and a relative.  Despite the Family Report Writer reporting that the Mother had said these people pay rent, the Mother denies that this is the case.  It is not clear whether this is the product of confusion between the Mother and the Family Report Writer, as the Mother says that they help with household expenses, and also on occasions such as during the trial when, due to the casual nature of her work she is without income.  It does not matter whether these people pay rent or not, or are characterised as boarders, or not.  No matter was identified that pointed to this area being a deficit in the Mother’s care.

2. It was also alleged by the Father that the Mother sends the children to school and day care when they are unwell.  He produced a medical certificate that he obtained to say that V was not fit for childcare.  It did not establish that the child was unfit when sent.  The Mother denied sending the children to school or day care when they are too sick to attend.[82]

   [82] Mother’s affidavit filed 19 September 2018 [86rr]

3. Allied to this, the Father complained that the Mother had been deficient in supplying an allergy plan to after school care for Y.  He contacted the after school care about this issue, meaning that the Mother was required to produce further documentation.  He produced the medical letter that the Mother had been required to provide regarding treatment for a potential allergic reaction.  In the absence of evidence establishing any serious allergy issue, the material did not speak to any demonstrably serious shortcoming on the part of the Mother.  In context it represented interference by the Father in the Mother’s care of the children for no sufficient cause.

4. The Mother accepted that she had not told the Father about Y’s asthma tests at the end of 2016.

5. The Father also criticised the Mother in relation to changes that she has made in the schooling arrangements for the children (in the context of the allocation of parental responsibility in that area to the Mother). 

6. The Mother changed Y’s school.  The Father put to her that this was due to their involvement in the Father taking Y to sport during the Mother’s time.  The Mother nominated the sport issue as being one amongst a number.  She also identified that the location of the school was an issue.  She said that Y is now settled in his new school.  The Father complains but does not substantiate that the new school causes excessive travel for Y.  While Y may have enjoyed his previous school, no particular criticism of his current schooling arrangements is made good.  No significant issue relating to the capacity to care for the children is identified from these circumstances.

7. The Mother was criticised for changing V’s childcare.  She says this was necessitated by her financial circumstances. 

8. The Father also suggested that the Mother lacked the intellectual capacity to assist the children with their schoolwork.  This criticism was not made good.

9. The daily routine for the children in the Mother’s care involves the Mother dropping Q at the train station at 6.30am, then dropping the children at school.  The Mother then works until 4:30pm at which point she collects the children from school.  The children go to bed about 9:30pm.

10. While the Mother denied yelling at the children, or losing patience with the children, I do not accept that the house runs so smoothly, nor that the Mother’s patience is never tried.

11. This view is supported by the Mother’s concession that at times she finds Y to be difficult following return from the Father, at times being rude to her.  She also admitted that at times she does have difficulty disciplining Y.

12. The Father’s affidavit alleged that since the Final Orders of 4 June 2015 he has experienced difficulty when attempting to speak with the children during scheduled phone calls.  The Mother denied that she fails to make the children available for telephone time with the Father, or that she makes fun of him while he speaks to the children, or that she terminates the call.[83]  However, the recording where the Mother was speaking of the Father’s relatives not being related to “us” does show interference.

    [83] Mother’s affidavit filed 19 September 2018 [86ss]

13. The Father also alleged that there have been several occasions where the Mother has been late to changeover.[84]  The Mother denied being late frequently but conceded that she is occasionally stuck in traffic, stating that she contacts the Father and provides a reason if she is late.[85]  This does not establish an issue with the Mother’s compliance with orders.

    [84] Father’s affidavit filed 18 July 2018 [56]

    [85] Mother’s affidavit filed 19 September 2018 [86tt]

14. The Father’s affidavit stated that in June 2017 he did not spend time with V for one month because the Mother misinterpreted the orders.[86]  The Mother’s affidavit did not respond to this.  The Mother was not questioned about this.  It may be taken that there was some interruption of the Father’s time at that point, although the circumstances were not explored at the trial.

Discussion

[86] Father’s affidavit filed 18 July 2018 [56]

Dominant s 60CC considerations

1. As earlier identified, the determination of best interests is through the considerations set out at s 60CC of the Act.

2. A number of those considerations may be seen as dominant in these proceedings.  The most critical consideration, given the manner in which each of the parties presented their cases, is that of the need to protect the children from physical or psychological harm occasioned by abuse, neglect or family violence.  Each parties’ case alleges that the other parent presents a significant risk of such harm.  The Father alleges that the Mother is violent and threatening to the children.  The Mother alleges that the Father is abusing the children by inflicting emotional harm on them by causing them to make false complaints about her.  These matters overlap with the consideration of family violence involving the children, and the Family Violence Orders that have been made that affect the children and the parties.

3. Issues of the benefits of meaningful relationship, coupled with the assessment of the nature of the relationships between the children and each parent and the capacity of each parent to provide for the needs of the children are impacted by the question of risk which detract from the benefits.  The benefits of a relationship are also to be balanced against the question of risk.

4. The views of the children, particularly Q are also a significant consideration, as is a consideration of the changes that will be wrought upon the children by a new set of parenting arrangements.

5. All of the above matters also fall to be considered in the light of the particular characteristics of each of the children.

6. Perhaps lastly, in terms of the more significant considerations, consideration should be given to making orders that will least likely lead to the institution of further proceedings.

Findings as to abuse and issues of risk of harm

1. The pivotal issues in this case, insofar as they relate to the time that Y and V spend with their parents concern the following questions:

   a)Does the Mother present a risk of harm of physical or emotional abuse of Y and V, primarily by reason of physically hitting the children and engaging in threatening behaviour?

   b)Does the Father present a risk of psychological or emotional harm to Y and V, primarily by causing them to make false complaints about their Mother engaging in the behaviour by which she is said to be a risk?

   c)Does the conflict between the parties present a risk of harm to Y and V?

   d)How do these risks balance against benefits that Y and V might receive from meaningful relationship with each of the parents?

2. The risks posed by either of the parents are best determined by their conduct in relation to the children.

3. The Mother has been the subject of multiple proceedings against her, in relation to assault and breaches of Family Violence Orders.

4. The Mother has accepted, although reluctantly, that she assaulted Q in 2012.  It is not clear what the content of this assault was.  Whatever it was must be seen in the context of Q’s strong view, as a now 15 year old, that she should live with the Mother.  While it may have been significant at the time, it is not so significant in Q’s mind as to undermine her current relationship with the Mother.

5. Absent other evidence about this assault, and noting that it predated the current Final Orders, it should not be taken to be a matter of weight in determining whether the Mother constitutes a risk at this stage.

6. In contrast, the Family Violence Orders and breaches of Family Violence Orders post-date the current Final Orders.  The current Family Violence Order made on 15 November 2017 (the subject of appeal) is heavily reliant upon the allegations that are the subject of consideration in these proceedings.  To the extent that the Family Violence Order proceedings rely upon the children’s allegations against the Mother, they do not provide an independent basis for finding risk.  The risk falls to be determined on the basis of the underlying facts.

7. At face value, the breach of a Family Violence Order is a matter that speaks strongly to the question of risk.  Here, however, there is little detail about what constituted the breaches of the Family Violence Order. 

8. It may also be seen that at least one incident does not flow from conduct engaged in by the Mother toward the children.  That is the occasion in March 2017 when the Mother told the Father at handover to “follow the orders”.  This breach was understandably dealt with as trivial by the Magistrates Court.  The context of the Father’s taking of Y to sport contrary to the orders and contrary to any permission given by the Mother means that the Mother’s response should not be taken to be indicative of any risk.

9. The particular breaches of the Family Violence Orders are not shown to be of a character that demonstrates that the Mother is a risk.

10. That leaves the issue of whether the Mother poses a risk as reliant upon the evidence of what V and Y have said about the Mother.  The clearest and strongest evidence of what Y has said is contained in the recordings tendered by the Father.

11. The recordings, set out in detail above, provide a poor basis upon which to form a conclusion of risk.  While it is true that Y has said that his Mother has hit him, there is an absence of evidence from the Father as to how Y came to be saying such a thing, and an absence of evidence of either what he had said to Y, or Y said to him before or after the recordings.

12. It was in the Father’s hands to bring that evidence, he being the only other person present, and he did not do so.  The Father’s explanation as to lack of memory as to the specifics, where he was in the process of collecting evidence, is an insufficient explanation for the vacuum.  His explanation that these were merely examples, and that there were too many unidentified instances to set out, is also an insufficient explanation.  Under those circumstances what Y has said about the Mother should not simply be taken at face value.  It would be unsafe to conclude either that the Mother has harmed Y or is a risk of so doing based upon what Y said when recorded by the Father.

13. The evidence of what was said by Y to Ms F, the psychologist, could, absent other factors, be a matter of weight in determining whether there is a risk to Y.  She, however, was not called in the proceedings.  She was not given access to the Mother, despite her requests, when she was engaged with dealing with Y.  It is unknown what her view might be if advised of all of the circumstances that were before the Court.

14. On a significant number of the occasions of Y’s attendance on Ms F, the Father was also in attendance for at least part of the time and is recorded as discussing his issues in front of Y.  What he said to Ms F in front of Y had the potential to affect what Y might also say to Ms F about his Mother.

15. As with the recorded conversations, the Father has not led evidence as to what occurred between himself and Y in the lead up to Y’s sessions with Ms F.  For example, Y was taken to see Ms F in September 2016 following DHHS speaking with Y.  The Father alleged to Ms F (in Y’s presence) that Y had spoken to him about the interview with DHHS saying that he “hated” himself and felt “very guilty” for lying to DHHS.  Y then spoke to Ms F in interview about lying to DHHS.  The Father has not provided to the Court any details of the conversation or conversations that he had with Y about this DHHS interview.

16. Under the circumstances that Ms F was not called by the Father to give evidence, that the Father has spoken of his issues to Ms F in front of Y, and that the Father has not placed before the Court his interactions with Y surrounding the meetings with Ms F, the evidence of what Y said to Ms F should not be considered to be reliable evidence as to what has occurred between himself and the Mother.

17. Similarly, Y’s comments to the Family Report Writer about his Mother having hit him, as late as the morning of the Family Report interviews, should also not be taken as reliable indicators that the Mother has harmed him.  Two reasons emerge from the Family Report that support this conclusion.  The first relates to the Family Report Writer’s description (set out above) of Y’s account as merely replicating a previous account, and her observations as to the manner of the report by Y.  The second relates to Y’s untrue account to the Family Report Writer that the Mother had said that she would not buy him lunch.

18. This untruthfulness in Y’s account to the Family Report Writer also reinforces the conclusions as to unreliability drawn in relation to the recordings and Ms F.  If Y’s complaint about the Mother to the Family Report Writer was clearly untrue, then confidence cannot be placed on what he said to Ms F.

19. Y’s interaction with the DHHS worker in May 2017 also speaks strongly to the unreliability of his assertions about his Mother as recorded by the Father and as made to Ms F.

20. Noting the criticisms made of the interview process on this occasion, a number of observations may be made.  Firstly, although the Mother was on notice of the interview and thereby had the opportunity to influence Y, his first report was not favourable to the Mother, as he told the DHHS worker that the Mother hit him.  This is not suggestive of influence on the part of the Mother.  Secondly, when the DHHS worker interviewed him a second time, and suggested that his Mother join the conversation, he did not express to her any fear of the Mother as a reason for her not joining in.  Importantly, his response was to put his head into his hands, start to cry, and to explain that he had lied.

21. An argument that Y simply changed his response out of fear of the Mother’s entry into the interview should be rejected in the context of his apparently genuine response about lying, and the lack of any expression of fear about the Mother herself.

22. Further consideration can also be given to the lack of observation of injuries on Y despite his repeated complaints to the Father.  The Father has inspected Y for injuries and, save for one occasion, has not found any.  Accepting that assault is not always followed by visible injury, this at least means that there is no basis for suggesting the assaults by reason of observed injury.  The Father accepted that there had been no injuries on the children for the past 12 months, other than might have occurred in childcare.

23. The one positive example of injury was the “puncture” mark on Y’s hand that he attributed to the Mother.  Given the difficulties posed by the unreliability of Y’s assertions about the Mother, this tiny mark did not prove or corroborate any assault by the Mother.

24. Consideration can also be given to the significant period leading up to trial in which there were little if any complaints regarding the Mother, in the context of a ban on recording and a requirement that the Father obtain the permission of the ICL before taking a child to the police.

25. These matters cumulatively lead to two conclusions, each of which is important in determining whether either parent poses a risk to Y.

26. The first is that the evidence does not show that the Mother has engaged in the behaviour said to establish her to be an ongoing risk to the children.

27. The second is that the evidence shows that Y has lied about his Mother engaging in the conduct said to show the risk.  The two positively established examples seen in Y’s interaction with DHHS in May 2017 and with the Family Report Writer colour the other complaints made by Y about the Mother such that it should be concluded that Y has not been truthful on the other occasions where he has claimed that he has been the subject of abuse by the Mother.

28. The fact of Y lying about his Mother engaging in such conduct is not only significant in terms of considering whether she constitutes an unacceptable risk, but also significant as to the implications that it carries about the Father’s parenting, whether he is engaging in emotional abuse, and as to whether he presents a risk.

29. The Father has vigorously pursued his claims that the Mother is harming the children in this Court and in the Magistrate’s Court.  He has taken Y to the police on multiple occasions, such behaviour being curtailed by the ICL’s refusal of permission for him to do so (such permission being required by interim orders).  The Father’s claims have been pursued in the context of false claims being made by Y, false claims made generally in the context of Y being with or recently coming from the Father.  The false claims made by Y were reflective of the Father’s criticism of the Mother and, on a number of occasions can be seen to have followed prompting by the Father.

30. The results of the Father’s influence upon Y are significant.  One example is the competing DHHS interviews undertaken in September and October 2016.  In September, having come from the Mother’s care prior to the interview, he said that he felt safe with his Mother, at times unsafe with the Father but that his Father had wanted him to tell the school principal that the Mother was rude.  In contrast, when he came from the Father into the DHHS interview he said he had been hit by the Mother, locked outside, and that he wished that his Mother was dead.

1. Whether or not the Father intends to harm Y (it may be assumed that he does not) his conduct toward Y and V, and in particular Y, is harmful.  He not only exposes them to, but also involves them in his conflict with the Mother.  He damages Y and V’s relationships with the Mother in a manner likely to result in long term harm unless it is brought to an end.  As identified by the Family Report Writer, the Father’s conduct has the potential to provoke confusion, anxiety, anger, hatred and misunderstanding in Y, and poor emotional development.  Y is carrying an “enormous emotional challenge.”

2. Whatever his motivation, the Father has been emotionally abusive to Y and V, and presents an ongoing risk of harm to them.

Parental responsibility

1. It is convenient then to consider firstly what order ought to be made in relation to parental responsibility.  Given the findings as to abuse in relation to Y and V (and the Mother’s previous criminal matter involving the assault of Q) the presumption in favour of equal shared parental responsibility has no application.

2. The Family Report Writer recommended that the Court consider vesting sole parental responsibility with the parent with whom the children live.

3. Given the extreme difficulties between these parents, their levels of mistrust of each other, the nature of the accusations levelled against the Mother, the demonstrable inability to share parental responsibility as seen in the Father’s use of a psychologist for Y while excluding the Mother, it cannot be thought that they are capable of discharging the obligations that accompany a sharing of parental responsibility.

4. Further, the difficulties between the parents already overflow onto the children.  They are exposed to at least some of the hostility.  It should be anticipated that difficulties accompanying sharing of parental responsibility would also be likely to spill onto them.

5. For these reasons the suggestion raised by the Family Report Writer should be accepted.  Parental responsibility should vest in whomever the children primarily live with, which in this case will be the Mother for reasons set out below.

6. It is still important for the children that the Father know about significant matters in their lives to give him context about the children in the limited time he will spend with them.  To that end the Mother is to authorise the schools that the children attend to provide notices and school reports to the Father, and to authorise the children’s general practitioner to provide information about Y and V to the Father.  To enable this to have meaning, the Mother will be required to keep the Father informed in writing of the identity of the children’s schools and medical practices.

Who should the children live with?

1. Y and V are at risk of emotional harm while they are with the Father.  The means by which that emotional harm is inflicted primarily relates to his involving them in his criticism of the Mother being harmful to them.  At present the Father’s actions in pursuing his claims via outside agencies have been limited by the involvement of the ICL, an involvement which should not continue indefinitely.  The ICL’s involvement has not been enough to bring the Father’s influence to an end (see for example Y’s accounts to the Family Report Writer).  There is little if anything about the Father that appears to moderate the risk that he will continue to pursue his claims, as they occur in a context where he considers that Y neither likes nor loves the Mother, and although V loves her Mother, she does not like her.  The Father was asked by the ICL whether he thought that the Mother loves the children.  He said that he could not answer and that he did not know.  His assessment of the relationship between the children and the Mother leaves little room to consider that he places any positive value on the Mother for the children.

2. The set of issues that this presents were identified by the Family Report Writer as a:

   a)Risk of the Father’s failure to meet their emotional and psychological needs without burdening them with anxiety;

   b)The Father’s use of the children, in particular Y to bolster his views about the Mother creates confusion and anxiety for Y;

   c)The (consequent) risk for Y of developing anger, hatred and misunderstanding; 

   d)The risk of exposure to poor role modelling and risk of poor emotional development.

3. These matters mean that the Father’s proposal that Y and V live with him carries an unacceptable level of risk to their emotional and psychological well-being.  

4. While the Father’s proposal entails regular time with the Mother, his plan was that if issues arose he would take action to suspend the Orders in the Magistrates Court.  It is within his contemplation that further steps could then be taken to further exclude the Mother from the children’s lives.  It may be anticipated that under those circumstances the prospect of further litigation reaches a level of near certainty.  With that litigation would again come issues of pressure upon the children and further upset of their living arrangements and relationship with the Mother.

5. The Mother, on the other hand, does not pose any significant risk.  Even if her accounts of not yelling at the children are not accurate, even if there has been some physical disciplining of the children contrary to orders, and even if she has undermined the Father’s telephone contact and the children’s view of his family, any risk is of several orders of magnitude lower than that posed by the Father.  She poses no significant risk of physical or emotional harm to the children as alleged by the Father.

6. This marks the Mother out as the appropriate person for the children to live with.

What time should the children spend with the Father?

1. The question remains then of what is appropriate for the time that the children spend with the Father.

2. It must be recognised that the Father has a very important relationship with Y and V.  However, the benefits they obtain from meaningful relationship with him are significantly reduced by virtue of the unacceptable risk identified above.  The potential harm done by his undermining of the relationship with the Mother more than counteracts the benefits of spending significant amounts of time with him.  Time with the Father may be expected to be accompanied by the underlying pressure as illustrated by the evidence in the proceedings.  The difficulty that arises is that although the risk may be reduced with reduced time with the Father, whenever the children spend regular time with him they face the prospect of exposure to his influence undermining their relationship with the Mother who will be their primary carer.

3. This ongoing risk means that if time with the Father is to continue, it must continue in a manner that reduces this risk from an unacceptable level even though a significant reduction in time with him will be difficult and upsetting for both Y and V.  Such a reduction in time will also conflict with Y’s desire for an increase in time, and with the Family Report Writer’s expectation that as he reaches puberty he will desire further time with the Father.

4. The Mother’s proposal is for supervised time to occur on regular occasions.  The Family Report Writer thought that this form of time with the children would be harmful to them.  The balance must be struck in a different manner.  Although supervision may remove the risk of influence, it does so at too high a cost.

5. The reduction of risk will be effected by a combination of limiting the time, in terms of frequency and duration, that the Father is to spend with Y and V, and by continuing to impose the restraint upon recording.  As noted above, a reduction in time does not equate to a removal of all influence that the Father may exert.  It does however reduce the time and opportunity for him to do so, diluting this influence with the increased time spent with the mother.

6. Sufficient reduction in time reduces the risk to a level where the benefits of spending time with the Father outweigh the remaining risk.  Limiting time, in reducing the risk, also reduces the prospect of yet another round of litigation, by reducing the prospects of reports being made by the Father about the Mother.

7. While, ideally, handover arrangements would be made to ensure that the parents do not come into contact with one another, for example, by collection and dropping off at the school, such an arrangement would necessitate too long periods with the Father to adequately reduce the risk that he poses.  The Father’s time will be restricted to day time periods with Y and V.

8. Although the recommendation of the Family Report Writer was that such occasions occur 4 – 6 times per year, with the recognition that such would not constitute meaningful relationship, the level of risk can be sufficiently reduced by time spent at a monthly frequency.  Even at this level it should be acknowledged that the relationship with the Father may only be at the margins of what might be considered to be meaningful.  Monthly time with the Father may also be thought to provide some limited scope for maintaining relationships with the paternal family.

9. Given that Q has had little contact with the Father for a significant period, her age, and her strong views, no order should be made for her to spend time with the Father.

International travel

1. On the issue of international travel, there are strong benefits for the children in being able to travel internationally, including to Country H, where their parents come from, in order to be exposed to their cultural heritage.  The Mother should be at liberty to travel without the need for approval from the Father.  To this end, the Father’s time with the children will be able to be suspended for a period of 6 weeks in a calendar year, in the event that the children are overseas for that period.

Interplay with the family violence orders?

1. There is currently an Intervention Order in place made on 15 November 2017 for a period of two years, naming each of the three children as protected persons.  That Order is the subject of an appeal to the County Court.  Those orders provide as follows:

   the court orders that the respondent must not:

   Commit family violence against the protected person(s). Note. The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety and well-being of that family member or another person. Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.

2. The terms of the Intervention Order, if it remains following the County Court Appeal, will not conflict with the orders made by this Court.

Conclusion

1. Orders will be made for the Mother to have sole parental responsibility and for the children to live with her.  Y and V will spend time with the Father on a monthly basis.

2. The Mother will be required to keep the Father informed about certain matters concerning the children.

3. The Mother will be at liberty to travel overseas with the children.

4. The Father will be restrained from recording the children.  He will have to no right to spend time with or to approach the children outside the scope of the orders.  He will have no entitlement to visitation at sport, before or after school care or school.

I certify that the preceding three hundred and sixty-nine (369) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 April 2019.

Associate:

Date: 18 April 2019

Appendix

A. Amended Initiating Application filed 18 July 2018

1. That all previous Orders be discharged as well as the Final Orders of 4 June 2015

2. That the parties have equal shared parental responsibility for Q born in 2003, Y born in 2010 and V born in 2013.

3. That the said child Q live with the Mother.

4. That the said child Q spend time and communicate with the Father as follows:

   a)In week one- from the conclusion of school on Wednesday until 7:30pm AND from the conclusion of school on Friday until the commencement of school.

   b)In week two- from the conclusion of school on Wednesday until the commencement of school the next day

5. That the said children Y and V live with the Father.

6. That the said children Y and V spend time and communicate with the Mother as follows:

   a)In week two- the conclusion of school on Friday until the commencement of school;

7. That the children spend time with each parent as follows:

   a)With the Mother from the conclusion of school term until 12.00pm on the middle Saturday of the school holiday and with the Father from the 12.00pm on the middle Saturday until the commencement of School;

   b)During the long summer school holidays, with each parent for one half of the holidays as agreed in writing and failing agreement on a weekabout basis with the Mother to collect the children on the last day of school and changeover to occur at 6.00pm on the same day of each week thereafter.

   c)That on any of the children’s birthdays, all three children spend time from 3.30pm until 7.30pm with the parent where the child who is celebrating the birthday is not staying overnight with that day and thereafter with the other parent until 9.00am the next morning.

   d)On Mother’s Day with the Mother from 6.00pm on the Saturday prior to Mother’s Day until the commencement of school following the Mother’s Day.

   e)On Father’s Day with the Father from 6.00pm on the Saturday prior to Father’s Day until the commencement of school following Father’s Day.

   f)On Easter Sunday from 10.00am to 3.00pm with the parent they are not otherwise with on the Easter weekend.

   For Christmas:

   a)In 2018 and each alternate year thereafter from 3.00pm Christmas Eve until 3.00pm Christmas Day with the Father.

   b)In 2018 and each alternate year thereafter from 3.00pm Christmas Day until 3.00pm Boxing Day with the Mother.

   c)In 2019 and each alternate year thereafter from 3.00pm Christmas Eve until 3.00pm Christmas Day with the Mother.

   d)In 2019 and each alternate year thereafter from 3.00pm Christmas Day until 3.00pm Boxing Day with the Father.

8. That the purpose of changeovers do not occur at Day Care, School or Kindergarten changeovers should take place at McDonald’s in Suburb N.  In the event that either parent wishes for changeover to occur at another neutral venue or such location as agreed between the parties in writing.

9. Each parent is entitled to contact a child by telephone between 6.30pm and 7.00pm after the child has been away from the parent for three consecutive days and each successive three days with the parent seeking contact to make the call.

10. That either parent be at liberty to enrol the children or any of them into extra-curricular activity that occurs during the time that the child is in their care

11. That the child Y is resettled at P Primary School, Suburb N VIC and that he remains there until he commences Secondary School.

12. That the child V be enrolled at P Primary School, Suburb N VIC and the she remains there until she commences Primary School.

13. That each parent be restrained by injunction from using any form of physical force against for physical chastisement of the children.

14. That the parents keep each other informed in writing of:

    a)Any serious injury or illness affecting the children or any of them while in the care of the other parent; and

    b)Their residential address, telephone numbers and email addresses.

15. The parties are restrained from removing of the children Q, Y and V from the Commonwealth of Australia without the written consent of the other party, or order of the Court.

16. The Court requests that the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the children from Australia in breach of these orders.

17. The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States of Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain the parents from removing any of the said children from the Commonwealth of Australia.

18. Such Other Orders as this Honourable Court deems fit.

B. Amended Minute of Final Orders Sought by the Respondent Mother

Parenting orders:

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the children Q, born in 2003, Y, born in 2010 and V, born in 2013 (“the children”), and in relation to the exercise of that responsibility:

3.1.The mother shall advise the father as soon as practicable as to any decisions she proposes to make in exercising sole parental responsibility and she is at liberty to take into account the father’s response, if any, when exercising that responsibility; and

3.2.The mother shall advise the father as soon as practicable following any determination she makes.

1. The children shall spend time and communicate with the father as follows:

4.1.For up to 6 occasions each year, at a supervised contact centre, as nominated by the Independent Children’s Lawyer, at the father’s expense, if any;

4.2.At such other times as may be agreed between the mother and father.

1. The father is permitted to send the children gifts, cards and letters by ordinary post, to an  address nominated by the mother, with the mother to advise the father within 7 days of any change to her nominated address.

2. Upon the Independent Children’s Lawyer nominating the supervised contact centre, the order for his appointment be discharged.

The Court declares that

1. Pursuant to ss7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the applicant father to enable the children of the relationship Q, born in 2003, Y, born in 2010 and V, born in 2013 (“the children”) to obtain an Australian Passport to travel internationally, the Court makes the following orders:

The Court orders that:

1. The mother of the children be permitted to apply for an Australian Passport to enable the children, or any of them, to travel internationally notwithstanding that the father of the children has not signed the passport application form and furthermore the said children or any of them be permitted to travel internationally without the permission of the father.

AND THE COURT NOTES:

A.The mother’s nominated address is B Street, Suburb C, VIC.