HESTON & NORTON AND ORS

[2017] FamCA 154

FAMILY COURT OF AUSTRALIA

HESTON & NORTON AND ORS [2017] FamCA 154

FAMILY LAW – CHILDREN – With whom children live – Where the mother makes allegations of significant family violence and of rape against the first and second respondents – Where the allegations are fabricated – Where the mother and the second respondent carried on a secret relationship that produced two of the children – Where the three children all believe they are the biological children of the first respondent – Where the children’s primary bond is with the mother – Where the mother is unable to foster a relationship between the children and the paternal family – Where the mother poses an unacceptable risk of serious psychological harm to the children – Where the children are to live with the first respondent and spend supervised time with the mother until 2019 – Where the first respondent has sole parental responsibility for the children.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
SCVG & KLD (2014) FLC 93-582

APPLICANT: Ms Heston

1st RESPONDENT: Mr Norton

2nd RESPONDENT: Ms Zuma

3rd RESPONDENT: Ms Norton

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid

FILE NUMBER: BRC 9588 of 2014

DATE DELIVERED: 17 March 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27 February - 8 March 2017

REPRESENTATION

FOR THE APPLICANT: Self-represented

COUNSEL FOR THE 1ST RESPONDENT: Mr Jordan

SOLICITOR FOR THE 1ST RESPONDENT: V A J Byrne & Co Lawyers Pty Ltd

COUNSEL FOR THE 2ND AND 3^RD RESPONDENTS: Mr Linklater-Steele

SOLICITOR FOR THE 2ND AND 3^RD RESPONDENTS: Barry Nilsson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Slade Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

Orders

1. All previous parenting orders are discharged.

2. Mr Norton shall have sole parental responsibility for the children B born … 2005, C born … 2007 and D born … 2009 (“the children”).

3. The children shall live with Mr Norton.

4. Except as provided for in this order Ms Heston is restrained and an injunction hereby issues restraining her from contacting the children or approaching the children or from attending at or near their schools.

5. Ms Heston shall be at liberty to spend time with and communicate with the children at all such times as may be agreed in writing between Mr Norton and Ms Heston and failing agreement as follows:

   (a)       As and from 17 April 2017 by telephone or Skype on one occasion each week at 7pm;

   (b)       As and from 17 May 2017 each alternate Sunday for a period of up to three hours;

   (c)       As and from 17 May 2019 each alternate Sunday from 9am to 12pm for a period of six months;

   (d)       As and from 17 November 2019 each alternate Sunday from 9am to 5pm for a period of six months;

   (e)       Thereafter each alternate weekend from after school on Friday to before school on Monday; and

   (f)       From July 2020 for one half of school holidays.

6. The children’s time with Ms Heston pursuant to paragraph (5) (b) is to be supervised by a person and at a place as agreed between Mr Norton and Ms Heston and failing agreement at a Contact Centre as agreed and failing agreement a Contact Centre that is closest to E Town, Queensland and Ms Heston shall confirm her intention to spend time with the children by sending a text message to the mobile telephone of Mr Norton no later than 9am the day before time is to occur.

7. Any costs incurred for the provision of supervision shall be borne equally between Mr Norton and Ms Heston.

8. Ms Heston and Mr Norton shall each keep the other informed at all times of their respective residential address, email address and mobile telephone number.

9. Mr Norton shall keep Ms Heston informed of the name and contact details of any treating medical practitioner or other health practitioner providing treatment for the children and authorise those practitioners to provide information to Ms Heston relating to their treatment of the children.

10. Mr Norton shall keep Ms Heston informed of the name and contact details of any school attended by the children and authorise the school to provide a copy of school reports and school photographs to Ms Heston at her cost.

11. Ms Heston shall deliver by secure post to Mr Norton the children’s passports, birth certificates and immunisation schedules within fourteen days of the date of this order.

12. All extant applications are dismissed.

13. The Independent Children’s Lawyer is discharged.

14. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this order creates and the particulars of the consequences that may follow if a person contravenes this order, and details of who can assist parties adjust to and comply with this order are set out in the fact sheet attached hereto. These particulars are included in this order.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9588  of 2014

Ms Heston

Applicant

And

Mr Norton and Ms Zuma and Ms Norton

Respondents

REASONS FOR JUDGMENT

1. Ms Heston  is the biological mother of B, born in 2005, C, born in 2007 and D, born in 2009. It is her application for an order that the children live with her and that she be at liberty to relocate with the children to Brisbane.

2. Mr Norton  is Ms Heston’s former husband and the biological father of C. Mr Norton is seeking an order that all three children live with him in E Town where the parties and children currently live.

3. Mr Zuma is Mr Norton’s step-father and the biological father of B and D.

4. Ms Norton is Mr Norton’s mother.

5. Mr Zuma and Ms Norton jointly seek an order that the three children live with them when they are not living with Mr Norton due to work commitments. They propose that parental responsibility for the three children be shared equally between Mr Norton and Mr Zuma.

6. All three children currently believe that Mr Norton is their father and that Ms Norton and Mr Zuma are their grandparents.

7. All parties believe that B and D should be told at some point about their true parentage with the assistance of an appropriately qualified therapist.

8. The parties referred to each other throughout the trial by their first names.

significant issues

1. The parties identified the significant issues in this case as:

   a)Ms Heston’s allegation that B and D were conceived as a result of rape by Mr Zuma;

   b)Ms Heston’s allegations of being subjected to twelve years of significant family violence including rape by Mr Norton;

   c)Ms Heston’s capacity to provide for the children’s needs;

   d)The capacity of Mr Norton, Mr Zuma and/or Ms Norton to provide for the children’s needs; and

   e)The impact on the children if they are removed from Ms Heston’s care.

Background

The parties

1. Ms Heston is forty-two years of age and engaged full time in home duties. Her only income is from Centrelink and child support of $423 per week. Ms Heston and the children live in rented accommodation in E Town. Ms Heston has chronic kidney disease and was most recently hospitalised on 4 February 2017 and discharged on 8 February 2017 as a result of this condition. Ms Heston informs the Court that she requires a kidney transplant. Other than the recent hospital discharge summary there is no medical evidence before the Court in relation to her condition. The discharge summary includes this comment:

   After discussions with your family and as soon as possible please inform the renal team of your decision for ongoing treatment of Chronic Kidney Disease.

2. Ms Heston has two other children, Mr F, aged twenty-three and Mr G, aged eighteen. Mr H is the father of Mr F and Mr G. Mr F and Mr G now live independently. Mr F lives and works in New Zealand where Mr H also lives. Mr F has a three year old child, J, with his former partner, Ms K. J and Ms K live in E Town. Mr G lives in E Town and works for up to twenty hours per week.  

3. Mr Norton is forty-four years of age and continues to work as a technician and he has worked for the same employer for over twenty years. His roster requires him to work twelve hour shifts, four days on and four days off. In one week his shift commences at 5am and finishes at 5pm and in the next week he commences at 7am and finishes at 7pm alternating each week. Mr Norton lives at I Street in E Town, although within six months he plans to complete renovations to a near-by home owned by him and move there with the children.

4. Ms Heston and Mr Norton met over the internet in 2001 and commenced to live together in January 2002 when Ms Heston, Mr F and Mr G moved to Australia from New Zealand. Ms Heston and Mr Norton married in 2005. They separated in March 2014 but remained living in the same home until October 2014. In 2015 DNA testing established that Mr Norton was not the biological father of B or D.

5. Mr Zuma is seventy-one years old and retired. He migrated to Australia in 1965 from Europe and still has quite a pronounced accent. He ran his own business until about ten years ago. He has three other children all in their forties. Mr Zuma lives at I Street, E Town with Mr Norton. He wishes to maintain his existing role as grandfather to the children.

6. Ms Norton is sixty-four years old and has been diagnosed with terminal cancer. Ms Norton is being treated with palliative intent. She undergoes chemotherapy three days each fortnight. The chemotherapy occurs in the same week. On those days she is quite fatigued and can lose her voice. She has also noticed her memory is affected and she becomes easily confused. On her non chemotherapy days she is quite active even mowing her own lawn. She is able to look after herself and live independently. Her treating oncologist opined on 2 May 2016 “that her prognosis is measured in one to two years”. In his letter dated 18 January 2017 he says that “she is travelling reasonably well, she has ongoing control of her disease, her last scan in November, was stable and she has no significant toxicity”. When she gave her evidence she appeared well. 

7. Ms Norton and Mr Zuma were in a de facto relationship for thirty-four years prior to separating in January 2016. Ms Norton lives in a property jointly owned with Mr Zuma which is close to I Street. She is a frequent visitor to I Street and sees the girls each time they come over. She receives support as needed from Mr Norton, Mr Zuma and her other son, Mr L.

Mr F and Mr G

1. On 25 May 2000 an order was made by consent by the Family Court of New Zealand providing for Mr H to have access to Mr F and Mr G.

2. In January 2002 Ms Heston, Mr F and Mr G came to Australia ostensibly on a holiday. Mr H consented to the holiday. Once in Australia Ms Heston refused to return as she had commenced living with Mr Norton. She claimed she was unable to fly because of high blood pressure. Ms Heston’s mother was suspicious at the time and said to Ms Norton in a telephone conversation that she thought Ms Heston “was up to her old tricks again”.

3. Mr H commenced proceedings pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and an order was made for Mr F to be returned to New Zealand. As Mr G was born after separation it was found that Mr H did not have rights of custody in relation to Mr G. Mr F lived with Mr H in New Zealand and Mr G lived in Australia with Ms Heston until Mr H consented to Mr F returning to live with Ms Heston and Mr G in Australia in October 2002.

4. On 8 October 2002 the Family Court of New Zealand ordered by consent that the boys were to spend at least six weeks with Mr H in New Zealand each year with the cost of the first two visits and each December visit to be paid by Ms Heston. Ms Heston did not comply with the order. Mr H travelled to Australia to enforce the order and spent two weeks with the boys supervised for the first week by Mr Norton and Ms Heston’s mother. The second week was unsupervised. Ms Heston made a complaint to the Department of Communities, Child Safety and Disability Services (“the Department”) about Mr H feeding the children cold spaghetti sandwiches. Mr H made the decision not to press for access to the boys and thereafter, the boys spent no time with Mr H and have had no contact with him until Mr F renewed a relationship with Mr H in recent years.

Protection order history

1. The police have attended Ms Heston and Mr Norton’s home on two occasions. The first was in November 2012 when a verbal argument over the untidy state of Mr G’s bedroom escalated and involved both parties pushing the other and spitting at each other. The second occasion occurred when Ms Heston telephoned police to complain about Mr Norton’s play fighting with the children believing he was breaching a protection order made on 11 March 2013. The police observed the children to be in good spirits and happy and it was determined that no domestic violence had occurred.

2. On 11 March 2013 a protection order was made against Mr Norton by consent naming Ms Heston and the children as the aggrieved.  

3. In October 2014 Ms Heston obtained a variation to the protection order that required Mr Norton to leave the home. The protection order expired on 11 March 2016.

4. On 28 August 2015 Mr Zuma was served with an application for a protection order naming Ms Heston as the aggrieved. A temporary order was made in September 2015.

5. On 25 November 2015 the application for a protection order against Mr Zuma was dismissed and Ms Heston was ordered to pay costs of $6,000. The presiding magistrate found Ms Heston’s evidence to be completely unreliable and dishonest. The costs were paid by Ms Heston from her matrimonial property settlement.

6. There is no protection order currently in force.

History of time spent

1. Ms Heston and Mr Norton separated in March 2014 but remained living under the same roof until October 2014 when Mr Norton left the home.

2. In August 2014 Ms Heston returned to New Zealand for a week and the children remained with Mr Norton.

3. From 3 November 2014 until 7 August 2015 when time was suspended, Mr Norton spent time with the girls each Saturday or Sunday from 9am to 4pm supervised by Ms Norton or Ms Norton’s brother, Mr M. Mr Zuma was also in attendance on these occasions.

4. Time did not recommence until 9 October 2016 and since then the paternal family have spent each alternate Sunday with C and D from 10am until 4pm. B has only attended three occasions with the last being on 18 December 2016. The time spent with the paternal family has been supervised by Ms N, a psychologist. Mr Zuma meets the costs of supervision of $1,650 per visit as the supervisor travels from Brisbane to E Town.

Proposals of the parties and the independent children’s lawyer

1. Ms Heston proposes that the children continue to live with her and that she be at liberty to relocate to Brisbane at the end of the year. Ms Heston also proposes that she have sole parental responsibility and that the children spend time with Mr Norton, Mr Zuma and Ms Norton on a supervised basis each alternate Sunday transitioning to unsupervised after a couple of months in conjunction with the children having supportive therapy. As part of that transition process Ms Heston does not oppose the children spending overnight and extended holiday time with the paternal family but cannot say when that should occur. By the end of the trial it seemed as though Ms Heston would not oppose Ms Norton immediately spending time with the children on her own and unsupervised but no change to the orders proposed by Ms Heston were formulated.[1]

   [1] Ms Heston’s proposed order is exhibit 8

2. Mr Norton proposes that the children live with him and that he have sole parental responsibility. When his work commitments prevent his personal attendance at home he proposes that Mr Zuma and/or Ms Norton or other family members care for the children. Mr Norton proposes that the children spend supervised time with Ms Heston each alternate weekend after a moratorium of two months.[2]

   [2] Mr Norton’s proposed order is exhibit 28

3. Mr Zuma and Ms Norton propose that the children live with Mr Norton but with them when Mr Norton is at work. They propose that Mr Zuma and Mr Norton have equal shared parental responsibility for the three children and that Ms Heston spend supervised time with the children each fortnight.[3]

   [3] Mr Zuma and Ms Norton’s proposed order is exhibit 16

4. The Independent Children’s Lawyer supports a change in primary care to Mr Norton and for Ms Heston to spend supervised time with the children each fortnight. The Independent Children’s Lawyer proposes that parental responsibility for all three children be shared equally between Mr Norton and Mr Zuma.[4]

   [4] The ICL’s proposed order is exhibit 27

Conduct of the trial

1. In all cases before this Court parties are advised in writing of safety plans that can be put in place if they have concerns for their safety and I note Ms Heston confirmed that she had received a letter to that effect on 28 November 2016.

2. No request for a safety plan was received.

3. Given the nature of Ms Heston’s allegations and the fact that she was representing herself, arrangements were made to enable her cross-examination of Mr Norton, Mr Zuma and Mr H to occur via video link so that those persons were not in the same courtroom as Ms Heston during her cross-examination of them.

4. Ms Norton’s treatment regime precluded her attendance at the hearing other than on the sixth day when she was cross-examined by Ms Heston.

5. During the trial Ms Heston was granted leave to rely upon an affidavit from her mother, Ms O Heston, and her son, Mr G. She elected not to press for a subpoena to issue to Mr F’s former partner, Ms K.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[5]

   [5] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[6]

   [6] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

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

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

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

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

1. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

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

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

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

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

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

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

4. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes causing a child to suffer serious psychological harm.

5. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

6. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

7. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

9. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

10. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[7]

    [7] Banks & Banks (2015) FLC 93-637

11. In cases, such as the present, where a party submits that a child will be exposed to an unacceptable risk of harm the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[8] 

    [8]M v M (1988) 166 CLR 69

the rape allegations

1. While it is not the primary task of this Court to resolve factual disputes between the parties it is the allegations by Ms Heston that she was raped by Mr Zuma and the similar allegations against Mr Norton that occupied a significant part of the trial and submissions. The consequences of findings relating to these allegations are likely to have a significant impact, although not necessarily a decisive impact, on the determination of what will be in the best interests of the children.  

2. The respondents concede that even if a finding is made that Ms Heston has fabricated the allegations of rape it does not automatically follow that the children should be removed from her care. They argue however that if the children remain with Ms Heston they will not be able to have a relationship with the paternal family given her conduct to date and her influence over the children. They rely on the fact that B has not spent time with them since 18 December 2016 and Ms Heston’s evidence that C no longer wishes to spend time with them. They also argue that the children’s emotional and intellectual needs will be compromised if they remain with Ms Heston and refer in particular to the history of school absenteeism; B being picked up by police unbeknown to Ms Heston on 19 November 2016 at 9.40 pm; and the ongoing concerning behaviours of the children while in Ms Heston’s care.

3. Despite her insistence that her allegations of rape and abuse are true, Ms Heston contends that she wants the children to have a relationship with their fathers.  She nevertheless acknowledges that she is not currently complying with the existing order that all the children spend time with the respondents and says this is because she has been unable to persuade B to attend since December 2016. She also contends that C no longer wishes to attend.

The allegations against Mr Zuma

1. Ms Heston alleges that she was raped repeatedly by Mr Zuma both anally and vaginally from 2004. There is some inconsistency in the mother’s evidence about when the alleged rapes ceased. She has said at various stages that the rapes ceased “after five years” or upon Mr Norton talking to Mr Zuma in 2011 or not until 2012.

2. Given the frequency of the alleged rapes it might be unsurprising for there to be some inconsistencies about dates and times and even individual attacks. If the rapes did occur as alleged by Ms Heston it might also be unsurprising that she would attempt to block out particular matters and that her memory of events might return at various times and to varying degrees. It might also be unsurprising that she avoided telling anyone about the alleged rapes for fear of reprisal or embarrassment or for fear that she would not be believed. Mr V, psychologist, opines that such reactions would not be surprising in the alleged circumstances.

3. Ms Heston gives some very graphic accounts of particular rapes that were extremely violent and caused bleeding from both her vagina and anus. Again, it might be unsurprising that she does not have medical evidence to corroborate such brutal attacks if she were living in constant fear of Mr Zuma and Mr Norton as alleged.

4. However, there is a considerable body of evidence (conceded or alleged by Ms Heston) that is inconsistent with Mr Zuma being a rapist and consistent with Ms Heston and Mr Zuma engaging in an affair, which is what Mr Zuma says. For example:

   a)On many occasions Ms Heston agreed to meet Mr Zuma in remote locations. She drove herself to these locations;

   b)Mr Zuma did not make any threats of any nature if she did not attend or indeed any threats at any time;

   c)On repeated occasions he attended at her home and she would unlock her door and let him in;

   d)On repeated occasions she attended at his home and remained even after becoming aware that Ms Norton was not in attendance;

   e)Mr Zuma drove her to Brisbane so that she could undergo an amniocentesis test when she was pregnant with D. Not only did he drive her but she agreed to his coming into the examination room with her. Her explanation was that she was scared of the procedure and he was “a person that I knew”;

   f)On their way back from Brisbane she and Mr Zuma booked into a motel for the night and slept in the same room;

   g)When she suffered a miscarriage Mr Zuma came to her home to offer her support and she rationalises his presence being “someone that I knew, a familiar face”;

   h)She made a photo album for Mr Zuma entitled ‘memories’ which included photos of all the children including Mr F and Mr G;

   i)She posed in photos with Mr Zuma where they had their arms around each other and are smiling;

   j)Ms Heston’s mother gave evidence that when Ms Heston, Mr Zuma, Ms Norton and the children came to New Zealand on a holiday, Ms Heston suggested that she (Ms Heston) travel in a separate car with Mr Zuma to show him the sights while Ms Heston’s mother travel with Ms Norton and the children and this occurred. The holiday occurred in 2008; and

   k)During her submissions, Ms Heston said that Mr Zuma would give her gifts and money and tell her not to tell Ms Norton.

5. The timing of the rape allegation is also telling. When Mr Norton was going through some papers looking for his passport about eight months after Ms Heston had undergone an abortion on 9 June 2011 he found a letter from the medical centre that performed the abortion. As he had undergone a vasectomy shortly after D’s birth in 2009 he knew he was not the father so he confronted Ms Heston about it and she said that Mr Zuma was the father and he had raped her. Mr Norton says that he said to the mother that they should go to the police immediately but she made some excuse and refused. I accept Mr Norton’s evidence about the timing of the rape allegation. I reject Ms Heston’s evidence that she had told Mr Norton many years earlier that Mr Zuma had raped her and I reject her evidence that she had made a complaint of rape to police many years earlier and they had dismissed her claims saying it was a family matter. I reject her evidence because of the many inconsistent accounts by her on this issue. For instance she has said variously - that she told Mr Norton she had been raped after the first rape in 2004; that she told him only that Mr Zuma had made suggestive comments and was pestering her; that she told him of the rape when he confronted her about the termination (which is consistent with what Mr Norton says); that the first persons she told about the rapes were her solicitor and barrister at the time of the paternity testing in 2015 and had not told Mr Norton of the alleged rape because she thought he would take Mr Zuma’s side; that she told police of the rape about twelve to eighteen months after B was born; that she told police only that Mr Zuma was making suggestive comments; that she made a complaint to police in or about 2012. Her evidence is also inconsistent with her claim that she did not tell anyone because she was fearful. Further, she said that a supportive friend, Ms P, accompanied her to police. Ms P was not a witness and no explanation for her absence was provided. No evidence was produced corroborating any earlier complaint to police. In the domestic violence proceedings before Magistrate Clark on 25 November 2015 where an application for a protection order against Mr Zuma was made, a search was made by police for any such complaint having been made by Ms Heston and no corroboration was forthcoming.

6. Another matter of some significance on the issue of credit concerns Ms Heston alleging that she was first raped by Mr Zuma in or about September 2004 at I Street when she was at the property doing administrative work on the computer for Mr Zuma and Ms Norton’s business. She provides a vivid description of the house, the furniture and the violent attack to which she was allegedly subjected in the open plan dining area. However, the I Street property was not built until 2008 and Ms Heston did not undertake administrative work in the business. Despite that particular evidence in Mr Zuma’s affidavit being pointed out to Ms Heston and an opportunity provided for her to reply to that evidence, she declined to do so. She did not cross-examine Mr Zuma or Ms Norton about their evidence which conflicted with her own version. Although as mentioned above it might be unsurprising that particular dates and events are not remembered accurately, given the allegations made by Ms Heston, I do not accept that these inconsistencies fall into that category. I further note that Ms Heston gave a different account of the first alleged rape to her treating psychiatrist Dr Q and a different account again during the domestic violence hearing on 25 November 2015.

Allegations against Mr Norton

1. Ms Heston provides a detailed and graphic description of the violence she was subjected to from Mr Norton during their twelve year marriage and subsequent to their separation. She alleges that she was subjected to repeated vaginal and anal rapes, broken ribs, a broken nose, kicks to the chest etc. with many of these attacks occurring in the presence of one or more of the children including Mr F and Mr G.

2. Mr Norton denies the allegations. He concedes that there were frequent arguments and that they yelled at each other. He also says there was an occasion where they each spat at the other and pushed each other and that there were a number of occasions where he says he restrained Ms Heston as she sought to attack him.

3. There is no corroboration of any physical injury suffered by Ms Heston although given the nature of family violence that of itself might be unsurprising.

4. In relation to her allegation of repeated rapes by Mr Norton, Ms Heston says that she did not know it was wrong at the time. I find it difficult to accept this assertion because according to Ms Heston, she was raped by Mr H (Mr F and Mr G’s father) and told her parents prior to Mr G’s birth. Ms Heston alleges Mr G was conceived as a result of rape.

5. She says she did not make any complaint about Mr Norton’s conduct because she was scared of him and she was also scared that she would not be believed. I reject that evidence given her close relationship with her parents and that on her own evidence she confided in them as referred to above. Further, Ms Heston spent up to eight weeks a year with her mother either in New Zealand or in Australia. It is inconceivable that she would not have told her mother of the horrendous abuse she was enduring. It is also inconceivable that she would not have stayed in New Zealand on one of the many occasions that she had the children with her if her relationship with Mr Norton was as she alleges. In August 2014 she even left the children with Mr Norton and returned to New Zealand for a week.  

6. I also reject her evidence of being too scared to complain because in March 2013 she did make a complaint to police about Mr Norton’s behaviour resulting in him being excluded from the home. Surprisingly, she did not make any complaint about rape.

7. No allegation of rape was made until an application to vary the March 2013 protection order was made by Ms Heston on 17 October 2014. By this time Ms Heston wanted Mr Norton out of the house, wanted a property settlement and wanted to relocate to New Zealand. Mr Norton was refusing to leave the home. Her application states that she wants an ‘ouster order’. In her handwritten statement in support of that application (which she had completed before the date of the application) she says among other things that she was frequently raped by Mr Norton in the bathroom in the eighteen month period up to the date of her statement. She provides a graphic account of the rapes and how she was sometimes left bleeding.

8. That evidence is inconsistent with an account provided by her in her affidavit filed 24 October 2014 (sworn 22 October 2014):

   97. Despite me making clear to the Respondent that the marriage is over, he has continued to make various sexual advances towards me and other acts of intimidation and harassment …

   …

   99. He knows I will not be pressured into having sex with him but he continues to persist in trying to coerce me into submitting to his demands. ….

   100. His comments have caused me to be concerned that if we continue to remain in the former matrimonial home together he will eventually force me to have sex with him, against my will.

   (emphasis added)

9. On 8 September 2014 Ms Heston attended upon a counsellor and complained that Mr Norton would not leave the property but stated that she did not think he would hurt her or the children.

10. There are numerous other inconsistencies in her evidence. For example, Ms Heston alleges that Mr Norton would not permit her to work “other than at the school tuckshop”. She conceded however in cross-examination that she had worked in numerous jobs during the marriage, she had hospitality training and also worked as a cleaner in the business operated by Mr Zuma and Ms Norton.

11. She also alleges that Mr Norton “forbids her to have friends”. Mr Norton worked twelve hour days, four days on and four days off and also overtime. It is difficult to see how he could have prevented her having friends. She managed to maintain a long association with Mr Zuma unbeknown to Mr Norton. She also mentions at least two friendships she has maintained, namely, Ms R and Ms P. Ms Heston also frequented the gym.

12. Ms Heston also alleges that she was rarely allowed to return to New Zealand with the children. Inconsistent with that assertion, Ms Heston deposed in her 24 October 2014 affidavit:

    The children have a lot of friendships in New Zealand, probably more than here, from when we go to visit my mother. We go and visit my Mother in New Zealand at Christmas time and another time during the year and she sometimes comes here. We spend up to eight weeks together each year.

13. Ms Heston’s affidavit filed 24 October 2014 was in support of her then application to relocate urgently with the children to New Zealand. She sought to have that application heard on an ex parte basis.

14. Mr F says that he has never seen Mr Norton attack Ms Heston but he has witnessed Mr Norton restraining Ms Heston when she was trying to attack him.

15. Mr H describes the mother attacking him on one occasion with a pair of scissors causing him to strike out in self-defence. His evidence was not challenged.

16. Mr G supported his mother’s account of Mr Norton being a violent man who subjected all in the household to regular physical abuse. Unfortunately, Mr G presented as a witness who would do and say anything to support his mother. He kept referring to “we” and “our” indicating his complete enmeshment in the matter. What became clear during his evidence was that he was prepared to attribute to Mr Norton the very worst behaviour even where he was not present e.g. that he had broken B’s nose. He also gave an account of having witnessed Mr Norton strangle his mother to the point of her becoming unconscious. No such allegation is made by Ms Heston. He made gratuitous allegations about Mr F’s involvement with drugs in an attempt to discredit his evidence.

Allegations that Mr Norton was violent to the children (including Mr F and Mr G)

1. Ms Heston alleges that Mr Norton intentionally broke B’s nose. This has been repeated by B and Mr G as a fact. However, what is clear is that Ms Heston was not present when B suffered an injury to her nose. There is no evidence before me that establishes that her nose was broken. There was an incident recorded in the police records indicating that Mr Norton rolled over in bed and accidently hit B in the face causing her to overbalance and hit her nose on a piece of furniture. She cried and received appropriate attention. Even Mr G’s actual version is consistent with that account.

2. Ms Heston alleges that Mr Norton punched D in the nose on 5 October 2014. Again it is clear that Ms Heston was not present. There is no medical evidence to support the allegation and it is improbable that an injury would not have been sustained if Mr Norton had indeed punched D in the nose.

3. Ms Heston alleges that Mr F left home because Mr Norton threw him against a brick wall and punched him in the stomach and face. The alleged victim, Mr F, denies the allegation.  It became apparent during cross-examination that Ms Heston did not see any such thing.

4. Mr F describes Mr Norton in the following terms in his affidavit filed 21 February 2017 (affirmed 16 February 2017):

   8. … he raised myself and my younger brother [Mr G] as his own children.
   9. … he cared and provided for us the best he could throughout this whole period of time. He was like a father to me.

   10. … [Ms Heston] told me that my biological father was violent.

   11. I am deeply indebted to [Mr Norton] for everything he has done for me and my brother. He has taught me respect, how to work for things in my life, to be appreciative and to never take anything for granted.
   12. I admit I was not always the easiest child to discipline, but I do not believe that [Mr Norton] was abusive or crossed the line.
   13. … I [am] thankful of the role [Mr Norton] played in my life.
   …
   20. … he has never physically abused me. ..
   …
   27. I did not have a close relationship with my biological father growing up. I remember that when my biological father would call me, [Ms Heston] would always be close to me and tell me what to say and to hang up the telephone. I would do as she said. I knew what she wanted me to do and say. [Ms Heston] always spoke negatively about my biological father. …
   28. We relocated as children to Australia. It was to be a holiday but we were immediately enrolled in school. …
   35. I have always witnessed a loving relationship between [Mr Norton] and the children.
   38. [Mr Norton] spent significant quality time with me growing up including fishing, camping, tobogganing, kayaking and boating. I have observed [Mr Norton] spend similar time with my sisters.
   …
   40. Nobody has ever been there for me like [Mr Norton] has and continues to be.
   …
   42. … I loved him as a father and he loved me as his child.
   43. [Mr Norton] was not a step dad, he was a dad.
   44. I have not witnessed anything excessive or out of character from [Mr Norton] in raising us children.
   45. I actually perceive [him] as an incredibly patient man, …
   46. I have witnessed my sisters love for [Mr Norton]. They adore him and would wait for him to get home and play with them.

1. It was apparent during cross-examination that Mr F was uncomfortable having to be a witness in the case. He made it clear that he loved his mother and it was apparent that it was Ms Heston who had cut him out of her life not the other way around.

2. Mr F said during cross-examination that Ms Heston had told him that Mr H did not care about him and did not love him.

3. I accept Mr F’s evidence.

4. It was apparent during Ms Heston’s cross-examination of Mr F that she was incensed that he had said he was ‘indebted’ to Mr Norton. She brought up numerous things she had done for Mr F. He conceded that she had done some “great things” for him and that he was also indebted to her. Unfortunately, she also made gratuitous allegations about his drug use, some of which he conceded. It also became apparent during her cross-examination that her allegation that Mr F had been bribed to provide the affidavit was without foundation.

5. Ms Heston complains about a myriad of minor things e.g. that B was hit in the back of the head with a basketball (this became an allegation of a deliberate act by Mr Norton); the children were made to change their clothes for a family photograph; the children sat at a ‘kid’s table’ while the adults ate their meal at the dining room table; etc. It seems no event is too insignificant to find its way into a letter of complaint or an affidavit.

6. Ms Heston makes some vague allegations suggesting Mr Norton and/or Mr Zuma may have a sexual interest in the children. Most concerning are her actions in having B interviewed by police twice, over a vague allegation which at its highest would not amount to sexual abuse. In a letter from Ms Heston’s lawyer to Mr Norton’s lawyer dated 8 May 2015 it is said:

   …

   One of the girls reported that your client rubbed her bottom during the contact visit last week.

7. In a letter from Dr S to Ms Heston’s lawyer dated 28 May 2015 she says:

   …

   [B] told her mum that she was touched by her dad (apparently happened on 17.5.15) – he had apparently ran [sic] her hand on her shoulder went down to the bum and rubbed her. Mum reported to child services who got police involved and police questioned her and told that it wouldn’t be taken any further.

   …

8. I note the doctor’s observations that the children looked “glum during consultations”.

9. In her affidavit filed 7 July 2015 Ms Heston states:

   5. A few weeks ago [B] was very angry after spending time with [Mr Norton]. When she came home she went for a walk up the road. She then came inside and sat at the kitchen table and burst into tears. I asked her if everything was okay. She responded, “Dad had touched me”. I asked where, she would not answer me. Instead she showed me. She placed her hand on her shoulders and then moved it right down to her buttock.

   …

   8. [On 25 June 2015] [B] told me “I hate Dad; I don’t want to see him anymore”. I asked her why this was, and she started crying. She started hyperventilating. She said “we have to do jobs for Dad when we are at his place”. She said, “After we do the jobs we are rewarded by Dad”. I said, “that is good”. She said, “it isn’t the usual type of reward. He just touches us”.

   9. [C] … said, “he touches us, he rubs us and tickles us”.

10. I do not accept that any statements made by the children were spontaneous or indicative of abuse. I find that Ms Heston often questioned the children upon return from the paternal family and was prepared to attribute a sinister meaning to words that may have been used by B and C.

11. Ms Heston arranged for B to be interviewed by police in May 2015. No further action was taken. The Department conducted an investigation and concluded that the children had been emotionally harmed as a result of police interview and the ongoing conflict between the parties.

12. Despite Ms Heston being aware of this finding she arranged for B to be re-interviewed on 3 November 2016. B was subjected to an hour and twenty minute interview. What is telling is her early comment that she was there to talk about her daddy who had “touched her one time” and that she had it “in my book”. It is important to note that B had only recommenced spending time with Mr Norton on 9 October 2016 (having spent no time with him since 7 August 2015) and time spent from 9 October 2016 was supervised by a psychologist, Ms N. Ms Heston had purchased the book for B only a few weeks beforehand and it is apparent from the content of the book that Ms Heston suggested things for B to write. It is likely that Ms Heston bought the book to prompt B to make allegations against Mr Norton. Prior to referring to the book, B describes an absolute non-event where Mr Norton on one occasion moved his hand on the outside of her clothes from her shoulder to her bottom. The timing of the alleged ‘incident’ occurred when it was being supervised by Mr M. Mr M impressed as a person very conscious of what was required of him as a supervisor when he gave oral evidence.

conclusions about allegations against Mr Zuma and Mr Norton

1. I find Ms Heston to be a witness of little credit due to the many inconsistencies and frankly unbelievable assertions made by her.

2. I find that when Ms Heston is ‘cornered’ by an inconvenient truth she makes untruthful allegations in order to save face. For example, when her parents found out that she was pregnant with Mr G in circumstances where they clearly did not approve of Mr H she said she had been raped and when Mr Norton found the letter about her having undergone a termination two years after he had undergone a vasectomy she said she had been raped by Mr Zuma. I find that she falsely accused Mr H of rape in order to gain sympathy from Mr Zuma in the early stages of their relationship. This behaviour appears to be consistent with Dr T’s comments relating to pseudologia fantastica which is discussed below.

3. I reject Ms Heston’s claims of rape against Mr Zuma for the reasons identified in paragraphs 61 - 63 above and my findings of credit generally against Ms Heston. I find that Ms Heston and Mr Zuma engaged in a clandestine affair from 2004 to shortly after the time D was born and Mr Norton had a vasectomy.

4. I reject Ms Heston’s claims of rape and violence against Mr Norton (other than to the extent conceded by Mr Norton), because of the findings already made and for the following reasons, in particular:

   a)Ms Heston’s assertion that she did not know the rapes were wrong was untrue given her earlier complaint about Mr H;

   b)She did not confide in her parents when she had a history of confiding in them about similar complaints involving Mr H;

   c)Her failure to remain in New Zealand on one of the many occasions she was there with the children;

   d)Ms Heston left the children with Mr Norton for about a week in August 2014 while she went back to New Zealand;

   e)The timing of the allegations were designed to further her chances of having him removed from the house and to be able to relocate;

   f)Despite alleging she lives in fear of Mr Norton she intentionally went to the shopping centre on 18 December 2016 knowing he would be there;

   g)Mr F completely rejects the allegations of his being a witness to and victim of Mr Norton’s violence;

   h)The inconsistency between how Ms Heston describes the children’s feelings towards the paternal family and the observations of independent persons;

   i)The inconsistencies in her evidence e.g. stating she had no friends; that she was forbidden to work; alleging she had been raped after separation but elsewhere stating it was something that might occur etc.;

   j)The lack of any corroboration from her mother when Ms Heston said her mother was a witness to at least one assault;

   k)The absence of any medical evidence to corroborate her assertion that she has suffered a permanent deformity to her rib cage as a result of Mr Norton’s assault of her;

   l)Mr H’s experience of Ms Heston being the violent one and his having to restrain her (consistent with Mr Norton’s experience); and

   m)Mr F’s corroboration that he had observed Ms Heston attack Mr Norton.

5. To the extent that Mr Norton makes concessions about Ms Heston and him engaging in loud arguments, pushing each other and spitting at each other I find that there was family violence in the marriage. I find that such behaviour is likely to have been an attempt to coerce and control the other person and is likely to have caused fear. It is evident from the police records and from what the children and Mr F have said to the family report writers that they witnessed arguments, yelling and physical altercations involving both Mr Norton and Ms Heston on occasion. 

6. While finding that the mother has concocted stories against Mr Norton and Mr Zuma in order to achieve her own ends of relocating and excluding the paternal family from the children’s lives, that alone would not cause me to remove the children from her care. It is of course a significant factor.

Ms Heston’s capacity to provide for the children’s needs

1. There is no doubt that the children’s primary bond is with Ms Heston. They have lived all their lives with Ms Heston. Mr Norton worked full time and overtime during the marriage.

2. B and C are certainly expressing a wish to remain with their mother.  

3. My concerns about Ms Heston’s capacity to provide for the ongoing needs of the children arise for the following reasons:

   a)Her description of the children’s behaviour and her seeming inability to manage or address that behaviour;

   b)The history of school absenteeism for the children including Mr G;

   c)Ms Heston’s false allegations against the paternal family and her inability to foster the children’s relationship with the paternal family; 

   d)Ms Heston’s propensity to place her needs ahead of the children’s (including her proposed relocation); and

   e)Ms Heston’s history of non-compliance with court orders.

Children’s behaviour

1. In relation to the children’s behaviour Ms Heston describes nightmares; swearing; soiling and wetting of pants; fighting with each other; B wondering off; D’s statement that she wanted to kill herself; C’s statement that she wanted to stab herself; B’s refusal to spend time with the paternal family; etc. Interestingly, there is no report of bad behaviour (swearing, fighting etc.) by the children’s school.

2. B left her home unbeknown to Ms Heston on the night of 19 November 2016. She was spoken to by police and complained about being annoyed with her mother. Ms Heston had no idea B had left the house or spoken to police. There seems to be an escalation in B’s oppositional behaviour. 

Absenteeism

1. B missed fifty-six full days of school in 2016 and only attended for a short part of each day in the last term of 2016. Ms Heston attributes B’s significant absenteeism from school to her fear of Mr Norton. Even when it was made clear to Ms Heston, by the school, that that reason was not a valid excuse for B missing school Ms Heston was seemingly unable to persuade B to attend.

2. Of course it is not just B who has missed significant schooling. Mr G missed seventy-two days of school in 2014 and D missed twenty-five days of school in 2016.

Inability to foster the paternal family relationship

1. Ms Heston appears to be incapable of allowing the children to have a relationship with the paternal family. That is certainly Ms U’s view.

2. Ms Heston told Mr V in 2015 that she “despises” Mr Norton and said he has nothing positive to offer the children.

3. Ms Heston even objected to Ms Norton delivering birthday presents to B in 2016. Ms Norton had not seen B since 7 August 2015. Ms Heston then concocted a story about Mr Norton being at the school. Her source of information was said to be Mr G whom she said had been at the school but Mr G denied that in his oral evidence and said he was at work that day. I do not believe Mr G realised the significance of his denial. Mr Norton’s employer confirmed that Mr Norton had been at work all day.

4. Ms Heston appears to encourage the children to make statements about the paternal family which she either interprets in a sinister way or catastrophizes. I have already referred to the statements about Mr Norton touching them. Another example is Ms Heston’s focus on a game all the children played with Mr Norton called ‘fight to the death’. It was a physical game which Mr Norton describes as being enjoyed by the children. Mr F corroborated that to be the case. Ms Heston has used it as a platform to accuse Mr Norton of systematic torment and torture of the children. Her allegations are fanciful.

5. Ms Heston alleges that the children were terrified to walk 300 metres to school in case Mr Norton tried to take them. There is no evidence that Mr Norton has ever tried to abduct the children yet Ms Heston has seemingly been unable or unwilling to assuage the children’s stated concerns. This tendency towards hysteria is also exemplified by C’s statement that she would rather stab herself than spend time with the paternal family and D’s handing to Ms Heston a few coins and stating “take this money and get us out of here”. D was five years old at the time of this alleged statement.   

6. Ms Heston’s complete inability to reflect on whether the children are reporting things accurately to her is demonstrated when Ms Heston alleges that the children told her that Ms Norton and Mr Zuma had told them that they “did not give a fuck about them”. Firstly, I consider it highly unlikely that the children did say that to Ms Heston. Secondly, even if they did say it I cannot understand why Ms Heston would not immediately dismiss it as something unlikely to have been said. The children spent a lot of time with Ms Norton and Mr Zuma before separation. The children were at their home sometimes three times a week. They went on holidays with them. Ms Heston had included them in the school enrolment forms as emergency contacts. It is inconceivable that anything like that would have been said by the people the children know and love as their grandparents.

7. Ms U is of the view that Ms Heston has influenced the children against the paternal family. I accept that view. It is consistent with my own view of the evidence. For instance, I am troubled by Ms Heston buying a book for B to write down her grievances (mentioned earlier in the context of the police interview) and her assisting C to write a letter to Ms N saying she did not want to spend time with the paternal family. I come to the conclusion that these were direct attempts to influence the children against the paternal family.

8. As early as the first family report in 2015 Ms W noted that C confirmed in “extreme terms that she is taking the mother’s side” although she could not remember what Mr Norton had done. Ms W also refers to Mr G having been “prematurely promoted to serve as his mother’s ally”.

9. Ms Heston does nothing to reprimand the children when they refer to the paternal family as ‘the grots’. Initially, Ms Heston sought to excuse this by suggesting that it was merely a reference to some fairy tale figure and was not pejorative. Later in her evidence she claimed that both she and Mr G reprimand the children when they use this term. It adds another layer of weight to my findings that Ms Heston is unable or unwilling to foster the relationship between the children and the paternal family.

10. When the children are observed in the company of the paternal family by persons other than the mother the children’s behaviour is at odds with Ms Heston’s descriptions. For example, Ms N describes the children having a “fantastic time” with the paternal family. Ms U describes D running into Mr Norton’s arms and cuddling him and all the children enjoying their time with Mr Norton, Mr Zuma and Ms Norton. At one point in her most recent report Ms U describes an “intense sense of warmth and laughter” between the children and Mr Norton. Ms W describes B as ambivalent about her relationship with Mr Norton, on the one hand clearly wanting to have a relationship with him and on the other:

    118. … The pressure to demonstrate her loyalty to her mother stops her from being relaxed and spontaneous with her father and her father’s doting on [D] to the expense of his attention towards [B] frustrates and disappoints her.

11. Ms Heston’s actions to date belie her current stated intentions to encourage a relationship between the children and the paternal family. Her actions in preventing the paternal family from having a relationship with the girls are consistent with her history of coming between Mr F and Mr G and their father. She has also cut Mr F out of her life and that of the girls. She blocked him from Facebook and refused to provide him with a contact telephone number.

12. Ms Heston has described in her evidence feelings of anxiety at the thought of coming into contact with the paternal family. In the first family report B spoke to Ms W about her mother being fearful of leaving the house in case she runs into the paternal family. C told Ms U that her mother will worry if she spends time with the paternal family. D told Ms U that her mother had told them to misbehave for and “not be nice” to Mr Norton. She said that B and C complied with those instructions but she did not and she got into trouble from her mother.

13. Ms U was of the view, and I accept, that the children would be well aware of their mother’s anxiety and emotional state, and I would add, her views about the paternal family.  Ms U opined that if the allegations Ms Heston makes against Mr Zuma and Mr Norton are untrue the symptoms described by the mother may be “as a result of her embarrassment at the position she finds herself in”.

14. As the diagnosis by Dr Q that the mother suffers from post-traumatic stress disorder is dependent on the allegations of rape and significant violence being true, I reject that diagnosis.

15. The psychiatric evidence from Dr Q and Dr T does not enable me to make a finding that Ms Heston suffers from a mental illness. Although, I note Dr T’s comments that if a finding were made that the mother had concocted stories to undermine the children’s relationship with the paternal family, he was of the view that the mother likely suffers from a personality disorder with borderline/histrionic features and with significant elements of pseudologia fantastica. Dr T explained that pseudologia fantastica “is a pattern of behaviour where people make up stories or lies to explain circumstances in their life usually to attract the concern or adulation of others”. He opined that the significant feature of the personality disorder appears to be impulsivity and an inability to prioritise the children’s needs over her own.

16. Dr T opined that personality disorders are notoriously difficult to treat even with insight. Even if Ms Heston were to develop insight and a willingness to undergo therapy it may take years to modify her behaviour.

17. My ultimate decision in this matter does not depend on any finding that Ms Heston suffers from a personality disorder. If she does have a personality disorder it may explain her behaviour but does not excuse it.

Inability to prioritise children’s needs - proposed relocation to Brisbane

1. Ms Heston proposes to move to Brisbane with the girls. Ms Heston has no job, no friends, no family, no accommodation and no history of association with Brisbane. In her affidavit filed in support of an urgent application that she be able to immediately relocate in 2016, she stated that it was her intention to live with Mr X in Brisbane. She told Ms U as recently as January this year that it was her intention to live with Mr X upon his return from overseas. Mr X is someone Ms Heston barely knows having spent very little time with him. He is not a witness in her case. On the one hand she now says she would not live with him but on the other that she has discussed with him the prospect of his moving to E Town if she is unable to relocate. It seems that if the children remain with Ms Heston they will be subjected to considerable upheaval whether or not they remain in E Town.

1. The children have lived all their lives in E Town. B is now enjoying her new school, having commenced high school this year.  B told Ms U that she finds it difficult to meet new people and make friends. She also said she would miss her friends.

2. The girls describe a close relationship with Mr G yet he will not be moving to Brisbane.

3. Ms Heston left New Zealand in 2002 to live with Mr Norton whom she had met on the internet. After the Hague proceedings she left Mr F in New Zealand with Mr H for months even though she alleged Mr H was violent. Mr G and Mr F were separated for those months. It does not appear that Ms Heston gave any thought to the impact on the boys of her decisions.

4. History appears to be repeating itself.

Non-compliance with orders

1. Ms Heston has a history of non-compliance with court orders dating back to 2002 when she remained in Australia contrary to an order made in New Zealand that Mr F and Mr G spend time with Mr H.

2. On 23 March 2015 Ms Heston was ordered to keep Mr Norton informed about the children’s absences from school. Ms Heston did not comply with that order. I reject her evidence that she instructed her previous lawyer to inform Mr Norton on each occasion required. No letter was produced to support that contention and Mr Norton denies ever receiving such a letter. It is clear from the many letters annexed to the mother’s affidavits that her lawyers were in the habit of complying with her instructions. I find it inconceivable that her lawyer would ignore clear instructions on tens of occasions as alleged by the mother, particularly when the mother was obliged by court order to provide the information.  In any event the order was directed to the mother and once she became aware that her instructions were not being followed, as she says she did, she should have informed Mr Norton.

3. On 30 August 2016 an order was made that the children spend supervised time with the paternal family each fortnight. Ms Heston has not complied with that order. B has not attended since 18 December 2016. I do not accept Ms Heston’s evidence that B has not wanted to attend even though I accept that B has made statements to that effect. I find any statements made by B are likely to be as a result of Ms Heston’s influence. In that regard, I note Ms N’s description of B whispering to her on 18 December 2016 that she wanted to spend time with the paternal family and appearing nervous of her mother hearing. I note further that despite Ms N’s very clear advice to Ms Heston not to go to the same shopping centre, Ms Heston ignored that advice and when B saw her mother she became distressed and left with her mother.

the capacity of Mr Norton, Mr Zuma and/or Ms Norton to provide for the children’s needs

1. The children have had a limited opportunity to progress their relationship with Mr Norton since separation but I am nevertheless satisfied from the evidence of Mr Norton, Ms Norton, Mr Zuma and Mr F and the observations made by the family report writers and Ms N that they have a meaningful relationship with him and that it is a relationship that should be fostered.

2. Mr Zuma and Ms Norton have fulfilled a grandparent role to all the children all of their lives and up until March 2014 spent significant time with the children. I am satisfied that they continue to have a meaningful relationship with the children. Unfortunately, no time has been spent between B and Mr Norton, Mr Zuma and Ms Norton since December 2016.

3. There is no doubt that Mr Norton and Mr Zuma’s focus in the first two family reports was more upon how they had been wronged but I am satisfied after hearing them give evidence and from Ms U’s observations in January 2017 that they, and in particular, Mr Norton, has managed to now focus on the children.

4. I was particularly impressed with Ms N’s account of how Mr Norton dealt with the very difficult situation on 18 December 2016 when Ms Heston turned up at the shopping centre and B became distressed. He enabled B to leave without adding to her distress and was supportive of her decision.

5. I note that Mr Norton completed a course entitled ‘Focus on Kids’ conducted by Relationships Australia during April to June 2015 and attended fifteen sessions with a group called ‘Insight Men’s Circle’ designed to provide him with skills to ‘walk away stronger, wiser and more confident so that they can live, love and grow again’ during the period September 2014 to June 2015. I also note that he has undertaken one on one counselling with Mr Y, psychologist, on at least thirteen occasions. He has obviously acquired some valuable skills to assist him in his parenting.

6. Mr Zuma clearly adores the children and despite his understandable disgust at Ms Heston’s allegations of rape he impressed as now appreciating the difference between his own feelings and the need for the children to have an ongoing relationship with their mother. He presented as somewhat of a chauvinist but I do not consider that to be a factor disentitling him to have an ongoing relationship with the children. My initial impression that he did not consider he had done anything wrong (morally) was tempered upon reflection of all the evidence.  

7. Ms Norton impressed as a loving and caring grandmother with an enormous capacity for forgiveness. While she did not present in any way as unwell she obviously has a limited future capacity to assist in providing support for Mr Norton if the children were to live with him.

8. Mr Norton’s work hours do limit his capacity to take the children to school and pick them up but he does have four days off ever four days so he will be able to be significantly involved in the children’s day to day lives. I accept that Mr Zuma and Ms Norton and other family members (such as Mr M) will make themselves available to assist when he is at work.

9. Mr Zuma and Mr Norton have a surprisingly good relationship given the history. Like his mother, Mr Norton has an impressive capacity for forgiveness. He has been able to put aside Mr Zuma’s behaviour and focus on his good qualities as a father to him. He described Mr Zuma as a “great man” who had taught him a lot. Mr Norton has been able to focus on what is best for the children.

the impact on the children if they are removed from Ms Heston

1. No one could be in any doubt that removing the children from their mother will be traumatic for them. It also goes against the stated wishes of B and C.

2. It was apparent that Ms U did not favour such a course and that is understandable but Ms U did not have the benefit of hearing all of the evidence and assessing all of the witnesses. Ms U considered that the issue of paternity should be dealt with before considering a move. I cannot accept that to be in the children’s best interests given Ms Heston’s version of how B and D were conceived and my rejection of that version. Ms Heston has made it clear that she will not ‘lie’ to the children about how they were conceived. In this context I note that Mr G informed Ms U that his mother had told him that Mr H had been violent. Given Mr G’s age when he came to Australia he would not have had any independent memory of his father’s behaviour.

3. I have come to the conclusion that if the children remain with Ms Heston there is likely to be a complete breakdown of their relationship with the paternal family. If the children remain with Ms Heston their involvement in the conflict will not diminish even if they never see the paternal family because Ms Heston remains determined to pursue Mr Zuma and Mr Norton and contends that she has made a further recent complaint to police and, of course, the children would continue to have their own internal conflict about the loss of the paternal family.

4. Ms W opined that the significant psychological risks to children caught in the middle of conflict are that they are more likely to “develop academic and social problems and to experience difficulties in their emotional development and regulation (management) of their emotions especially once they reach adolescence, when anxiety and depression (sometimes expressed as aggression) are more [likely] to develop”. In my view those issues are already apparent in all three children but in particular, B.

5. The children clearly love their mother and she them. Living with Mr Norton is untested but so is living with their mother and Mr X, whether that occurs immediately and whether it occurs in E Town or Brisbane. Mr Norton will have to rely on others to assist him in his day to day parenting if the children live with him but so will Ms Heston at least in the short to medium term.

6. Ms Heston has her own significant health issues to contend with which have seen her hospitalised recently. She expects to undergo dialysis (which Ms Heston said she could undergo at home) while waiting for a kidney transplant which will require another period in hospital. I expect that once she has a transplant her functioning as a full time parent would not be seriously compromised.

7. The paternal family have acknowledged the importance of seeking professional help for the children with any transition and with how and when to inform the children of the parentage of B and D. I consider Ms Heston’s resistance to having Dr Z, psychologist, provide support for the children in accordance with Ms U’s early recommendations, regrettable. I consider this to be another example of her inability to prioritise the children’s needs.

8. The overwhelming factor, but not the only one, favouring a change in the living arrangements of the children is my finding that if the children remain with their mother they will be unable to have a relationship with their paternal family and this in turn is likely to have detrimental psychological consequences.

discussion

1. I have found Ms Heston to be a witness of little credit and I have found her to have made false allegations of the most serious type against Mr Norton and Mr Zuma. I have found her to be unable to manage the children’s troubling behaviour including significant school absenteeism. I have found her to have a history of being unable to prioritise the children’s needs and I have found her to be unable to foster the children’s relationship with the paternal family.

2. Ms Heston contends that these proceedings have been pursued by Mr Norton as “a vendetta” against her and that Mr Norton has no genuine interest in the children. I reject that claim. If there is a vendetta it is Ms Heston’s and it is aimed at removing the paternal family from the children’s lives. 

3. I make that finding for a number of reasons including:

   a)Ms Heston’s preparedness to make false allegations of rape and violence;

   b)Ms Heston’s involvement of the children in the dispute;

   c)Ms Heston’s overt dislike of the paternal family e.g. the incident witnessed by Ms N involving the children bringing home an electronic device that was not to be used by Mr G;

   d)Ms Heston’s assertion of living in fear of Mr Norton and Mr Zuma yet going out of her way to disrupt the time spent between B and the paternal family on 18 December 2016 by going to the shopping centre knowing that the paternal family would be there;

   e)The presentation of the children when they see Mr Norton and Mr Zuma as described by Ms W, Ms U and Ms N which is completely at odds with Ms Heston’s allegations that the children live in fear of them;

   f)D’s comments to Ms U that she is there to tell her about all the bad stuff about Mr Norton;

   g)D’s alleged statement that she wanted to kill herself if she had to see Mr Norton to be contrasted with her delighted reaction in seeing Mr Norton; and

   h)C’s handwritten note given to Ms N saying she did not want to see Mr Norton and Mr Zuma and the complete contrast of her having a “fantastic” time with them on that same day.

4. There is a remarkable consistency in Ms Heston’s behaviour and timing of allegations against Mr Norton compared with those against Mr H and the children’s reactions to their respective fathers or father figures. Interestingly, Mr H was not aware of any rape allegation against him until last year. He says, and I accept, that no such allegation was made in the parenting proceedings in New Zealand or in the Hague proceedings.

5. Ms Heston’s actions in the present case are consistent with her actions in excluding Mr H from Mr F and Mr G’s lives. She moved to Australia contrary to the views of Mr H and failed to return there even after the Hague proceedings resulted in Mr F returning to New Zealand without her. She failed to comply with the New Zealand orders providing for the boys to spend time with Mr H and ultimately made life too difficult for Mr H and the boys to maintain a relationship. 

6. In view of the findings made I turn to consider what orders will best promote the children’s interests.

7. Despite the orders sought by Mr Zuma and Ms Norton it is clear from their evidence and the submissions of their counsel that their primary aim is to continue their role as grandparents. There is no suggestion that their relationship with Mr Norton is in danger of breaking down, quite the contrary. I am content to find that they will provide whatever assistance may be required of them and that Mr Norton will call on them for assistance. I see no need therefore to make a formal order that the children live with them at any particular time. 

8. I consider Mr Norton is more likely than Ms Heston to value the importance of regular school attendance and that he will be supported in that by Mr Zuma and Ms Norton.

9. Overall Mr Norton impressed as having considered the difficulties that will face him if the children all live with him and of how he might address those. He demonstrated a capacity for forgiveness in relation to Mr Zuma. He said what was in the past is in the past. He impressed as genuinely wanting the mother to be involved in the children’s lives if they lived with him by expressing views about decisions affecting their lives and by spending time with them.

10. I am satisfied that Mr Norton now has the qualities necessary to best provide for the children’s ongoing needs and that he will foster the children’s relationships with all of the significant adults in their lives, including Ms Heston.

11. As I have noted, the change for the children is likely to be traumatic and they will need a period of intense support from Mr Norton, Mr Zuma, Ms Norton and importantly Dr Z. I do not consider Ms Heston to be capable at this point to support the change for the children and accordingly I consider it best for there to be a period when they do not have any contact with Ms Heston. Ms U described pros and cons with such an approach but in my view the pros outweigh the cons. They will require a period to adjust to their new living circumstances unhindered by Ms Heston’s opposition and undermining. They will no doubt miss their mother and I propose to provide for the re-introduction of contact by means of telephone and Skype prior to the re-introduction of face to face time.

12. Ms Heston gave me no hope that she is capable of or willing to change her behaviour. She has no insight into the impact of her behaviour on the children. In my view there is an unacceptable risk of serious psychological harm to the children from being exposed to Ms Heston in an unsupervised setting at this time.  I consider that there will need to be a lengthy period of supervised time between the children and their mother before moving to unsupervised time. This is to enable the children to build secure attachments and relationships with the paternal family and so that they can withstand any undermining that is likely to occur when they see their mother in an unsupervised setting.

13. I do not consider indefinite supervised time to be feasible although this is proposed by the respondents and the Independent Children’s Lawyer. The cost of ongoing private supervision is prohibitive and supervision at a contact centre will involve the children in a two and a half hour round trip.

14. I consider that once the children have experienced Mr Norton as a primary carer and feel secure in their attachment to him and the paternal family generally there could be a move to unsupervised time. The period of supervision will need to be long enough to enable the relationships to be strong and secure and also to allow sufficient time for the children to process and come to terms with the knowledge of their parentage. While I consider the timing of the provision of that information to be a matter of parental responsibility, having regard to the children’s ages, I anticipate that they will be informed within two years. 

15. As to parental responsibility the only reason proffered by the Independent Children’s Lawyer for an order that Mr Zuma and Mr Norton have equal shared parental responsibility for the children was because Mr Zuma was also a parent. But Mr Zuma is not a parent of C and none of the children know him as a parent. Although Mr Norton is not the biological parent of B and D he is known to them as their father and has fulfilled that role since birth.

16. Mr Zuma wants to maintain his role as a grandparent, at least until the children are old enough to really understand the situation. He has a good relationship with Mr Norton. I see no reason to confuse the children by having Mr Zuma and Mr Norton sharing parental responsibility for two of the three children and I see no valid reason for Mr Zuma to have parental responsibility for C.

17. As there are reasonable grounds to believe that a parent (Mr Norton and Ms Heston) has engaged in family violence the presumption of equal shared parental responsibility does not apply as between Mr Norton and Ms Heston or Mr Zuma and Ms Heston.

18. In any event given the nature of the allegations made against Mr Norton and Mr Zuma; Ms Heston’s stated intention to further pursue her allegations against them; Ms Heston’s views of the paternal family; and Ms Heston’s failure to comply with orders, I would in any event consider it contrary to the children’s best interests to make an order for Ms Heston to have parental responsibility.  

conclusions

1. Regrettably for the children I have decided that it is in their best interests to be removed from their mother and to live with Mr Norton. I say regrettable because they are likely to find the transition traumatic and it is contrary to the stated wishes of B and C. However for the reasons discussed I do not consider it to be in the children’s best interests to remain living with Ms Heston.

2. The children will need considerable support and assistance with this transition. They will have that in the form of Mr Norton, Mr Zuma, Ms Norton, other extended family, including Mr M, and Dr Z.

3. The change will happen immediately as I do not believe Ms Heston would have the capacity to assist the children with the transition. The children are at the court and will have the orders explained to them by a very experienced senior family consultant.

4. While it may fall on deaf ears I can only urge Ms Heston to reflect on her behaviour and seek professional assistance.

5. Accordingly, I make the orders as set out above.

I certify that the preceding one-hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 17 March 2017.

Associate: 

Date:  17.03.2017