Horvill and Horvill

[2007] FamCA 1009

FAMILY COURT OF AUSTRALIA

HORVILL & HORVILL [2007] FamCA 1009

FAMILY COURT – CHILDREN – With whom a child shall live - 7 yo girl and boys 4 & 18 mths – 7 yo not father’s biological child – serious allegations of sexual abuse by father & emotional abuse by mother – findings: no sexual abuse – gross emotional abuse – children to reside primarily with father – difficulties youngest child breastfed

APPLICANT: Ms Horvill

RESPONDENT: Mr Horvill

FILE NUMBER: BRF 1109 of 2005

DATE DELIVERED: 5 February 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 29 January – 2 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wiltshire

SOLICITOR FOR THE APPLICANT: A Ahmed and Co

COUNSEL FOR THE RESPONDENT: Mr Burridge

SOLICITOR FOR THE RESPONDENT: Springwood Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SBA Lawyers

ORDERS

1. Parental Responsibility

1.1That the Mother and Father have joint parental responsibility for the children, C, born … October 1999, L, born … November 2002, and S, born … November 2005.

1.2That each parent be responsible for making decisions regarding the children’s day-to-day care, welfare and development during such times as the children are in their respective care.

1. Children’s Living Arrangements

2.1     C and L

2.1.1 That C and L live with the Father from 10.00 am Wednesday to 9.00 am Sunday of each week.

2.1.2 That C and L live with the Mother from 9.00 am Sunday to 10.00 am Wednesday of each week.

2.1.3 That C and L spend the school holiday periods with their parents as follows:-

(a)The second half of all school holiday periods in 2007 and each odd numbered year thereafter and the first half of all school holiday periods in 2008 and each even numbered year thereafter with the Father.

(b)The first half of all school holiday periods in 2007 and each odd numbered year thereafter and the second half of all school holiday periods in 2008 and each even numbered year thereafter with the Mother.

(c)(i)    From 2.00 pm Christmas Day to 5.00 pm Boxing Day 2007 and each odd numbered year thereafter with the Father.

(ii)From 9.00 am Christmas Eve to 2.00 pm Christmas Day 2007 and each odd numbered year thereafter with the Mother.

(iii)From 2.00 pm Christmas Day to 5.00 pm Boxing Day 2008 and each even numbered year thereafter with the Mother.

(iv)From 9.00 am Christmas Eve to 2.00 pm Christmas Day 2008 and each even numbered year thereafter with the Father.

2.1.4 That on each Father’s Day weekend, the Father’s contact with C and L be extended that week to 5.00 pm on the Sunday.

2.2S

2.2.1 During February, March and April 2007

(a)From 10.00 am to 2.00 pm each Friday and Saturday with the Father.

(b)The remainder of the time with the Mother.

2.2.2 During May to October 2007

(a)From 9.00 am to 5.00 pm each Friday and Saturday with the Father.

(b)The remainder of the time with the Mother.

2.2.3 During November 2007 to April 2008

(a)From 9.00 am Friday to 5.00 pm Saturday with the Father.

(b)The remainder of the time with the Mother.

2.2.4 During May to October 2008

(a)From 9.00 am Thursday to 5.00 pm Saturday with the Father.

(b)The remainder of the time with the Mother.

2.2.5 Father’s Day

S shall spend Father’s Day from 9.00 am to 5.00 pm with the Father.

2.2.6 Christmas Period

S shall spend time with his parents over Christmas Eve, Christmas Day and Boxing Day at the same times as C and L, as prescribed in paragraph 2.1 of these orders.

2.2.7 From November 2008

S shall spend the same time in the households of the Mother and the Father as C and L as prescribed in paragraph 2.1 of these orders.

1. Changeovers and Transportation

Changeovers are to occur at the children’s school or day care centre or McDonald’s W… or as otherwise mutually agreed upon between the parties in writing and each party is to be responsible for transporting the children to the changeover point.

1. Communication/Special Issues

4.1Both parties are to keep the other informed of a current contact address and telephone number and will inform the other parent in writing within 48 hours of such change.

4.2Both parties are to authorise the children’s school, day care centre and medical practitioners to communicate directly with the other parent on any matters concerning the children.  This order shall operate as sufficient authority to any treating medical practitioner and school and child care centre to provide such information to both parents.

4.3The parties will communicate about issues concerning the long term care, welfare and development of the children and any proposed changes or swaps to the contact arrangements by way of a communication book which will travel with the children.

4.4That neither party use physical discipline on the children and ensure that any family members not use physical discipline on the children.

4.5That neither party denigrate each other or any member of their family or friends in front of the children or expose the children to anyone else doing so.

4.6That each parent will give the other party the first opportunity to care for the children if they are not able to do so during school holidays.

1. That by consent, the Mother and the Father will take all steps and do all things necessary to ensure that the child, S, born S … November 2005, be henceforth known as S Horvill and, in particular, the Mother and Father shall sign the application to the Registrar of Births Deaths and Marriages to amend the Register of S’s birth accordingly.

1. That the matter be adjourned for further hearing for one day on a date to be advised upon the expiration of 12 months from today’s date.

1. That the appointment of the Independent Children’s Lawyer be extended to the further hearing date.

1. That each of the parties and the Independent Children’s Lawyer have liberty to apply on the giving of 14 days notice.

1. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Horvill & Horvill

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRF1109 of 2005

MS HORVILL

Applicant

And

MR HORVILL 

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is a most worrying case which touches upon the lives of three very young children and which requires this Court to contemplate a range of very serious issues and outcomes for these children and their parents.

2. The children in question are C, born in October 1999, L, born in November 2002, and S, born in November 2005.  The applicant mother, Ms Horvill, is 32 years of age and the respondent father, Mr Horvill, is 37 years of age.

3. The parties entered into a relationship in 1999, married in August 2002 and separated on 30 March 2005.  By the joint account of each of the parties, the relationship was one which was troubled from time to time and it is clear that there were issues between the parties which led to some serious disputes and, eventually, the relationship broke down irretrievably.

   RECORDED  :  NOT TRANSCRIBED

4. The mother has two children by a previous relationship, D, who I understand is 11, and E, who is 10 years of age.

5. It is clear from the mother's own evidence that, at the time she had the two earlier children, she struggled with the responsibilities of parenthood.  In circumstances which have not been well-explained, the mother acknowledges that she relinquished care of each of those children to her mother, who has cared for them on a largely full-time basis for the last 10 years, although I understand E now spends significant periods of time with his father.

6. The best I can understand of the reasons advanced by the mother for her decision to abandon responsibility for these children to her mother is that she felt, at the time that she had those children, that she was too young; she may, on reflection, have suffered from some post-natal depression and she quite frankly admits that, at that stage, she was perhaps more interested in partying and doing other things that young people do.  As to the mother's youth, I note that, in fact, she would have been in her early twenties when she made those decisions.

7. C is the child of a third relationship with a man who has not had any involvement in C's life, or in these proceedings.  The mother was but a few months pregnant with C at the time she commenced to cohabit with the father.  The mother and father always treated C as the father's child and C understood that Mr Horvill was her natural father throughout the period of the parties' relationship.  She referred to him as her "dad".  She is now aware that Mr Horvill is not her father, and I will return to the disputed evidence about the circumstances surrounding C's discovery later in this judgment.  Issues surrounding C's paternity add a layer of complexity to this matter.

8. S was born eight months after separation and is now only 15 months of age.  The father has been given only very limited opportunity to spend any time with S, measured only in terms of hours under supervision at a daycare centre.  S is still being breastfed by the mother and is, necessarily, almost entirely dependent upon, and singularly attached to, his mother, with very little, if any, meaningful relationship with his father at this point.  S's age, his attachments and his dependency upon his mother have added yet further layers of complexity to the case and serve to render some of the options for the future to be contemplated by the Court as potentially quite problematic.

9. At the time of separation, the mother took the two children with her and, as I understand it, the father was initially unaware of the whereabouts of the children.  The mother eventually instituted proceedings and, as the father tells the story, it was only when he was served with Court documents that he became aware of some of the allegations against him.  As a result of concerns raised by the mother, the father initially only enjoyed some limited supervised contact supervised by the maternal grandmother. 

10. As I understand it, his contact with C remained supervised until either August or October of 2005, where orders were made initially enabling the father to spend alternate weekends from 9.30 Saturday to 4.30 Sunday with C, and which orders were later extended to after school Friday and before school Monday.

11. The father has been enjoying extended periods with L and, at the present time, as I understand it, L spends similar time between each household, being approximately four nights per week with his father and three nights with his mother.

12. The father now proposes that all three children should be placed in his full-time care.  He acknowledged that there are special considerations surrounding the removal of S from his mother and that there will be a need for some transition period, although he maintains that such transition should be measured in terms of weeks, with S spending substantial time with him on a daily basis, followed by overnight contact for extended periods leading to his full-time shift to the father's household thereafter.

13. It is submitted on behalf of the father that it will be necessary to curtail the time the children spend with their mother, initially limited to some supervised contact, to be extended after the mother has received counselling and demonstrated a capacity to modify the behaviour about which the father now complains.

14. The mother proposes that all three children should reside, at least primarily, with her.  Her case in relation to the time the children should spend with the father has been somewhat uncertain and shifting, as has the nature of her case more broadly.  In her amended application filed for the purposes of this final hearing, the mother sought orders for contact as the Court deemed fit.  During the course of her oral testimony, it became clear that the mother's real preference was that the father should not have any contact with the children, or that such contact should be limited and supervised.

15. By the time of her counsel's closing address, I gather the mother's case had become one where she was amenable to the prospect of orders for regular, generous contact between the father and the two older children, and increasing contact between the father and S, although I need to observe that the mother's position on future contact arrangements was never clearly identified and articulated.

16. The Independent Children's Lawyer recommends that the children need to be removed from the mother's care and influence forthwith and suggested a robust approach to both the transition from the mother to the father's household and in terms of the conditions to be attached to the mother's future contact.  At the same time, the Independent Children's Lawyer's recommendations did endeavour to take account of S's peculiar circumstances relating to his age and dependency upon his mother.

17. Needless to say, orders contemplating the removal of three young children, including a breastfed baby, from a mother, and thereafter severely limiting contact between those three children and their mother, are very serious orders indeed, and such orders would never be lightly made by a Court.  A review of the most serious issues in this case, and a consideration of the relevant principles in children's matters, provides an understanding of the prospect that such orders may, indeed, be contended for.

18. At the core of this case is the established fact that these children have been severely abused by at least one of their parents.  As the matter has unfolded over the almost two years since separation, it has become clear to a wide range of Government agencies and Government officers, a wide range of professionals and now to this Court, that C and L have either been the victims of gross sexual abuse at the hands of their father, or the victims of gross emotional abuse at the hands of their mother.

19. At least until the closing of the mother's case, she was alleging that the father had repeatedly sexually abused C and L.  In the case of C, the allegations of abuse included the following:  that she had been touched by her father on the outside of her pants; that the father had touched her naked private parts; that the father had attempted to insert a stick into C's vagina; that the father required C to play with his penis; that the father masturbated in front of C to a point of ejaculation and, finally, that the father had even resorted to tying up C and raping her, both in her vagina and in her anus, with such force as to cause pain and extreme distress.

20. In the case of L, the allegations included that the father had inserted his finger in the child's anus and possibly saw fit to engage in oral sex with that child.  Lately, there has been a suggestion that, even in the context of very limited supervised hourly contact, the father has displayed an unhealthy preoccupation with S's penis and anus.

21. The father vehemently denies all allegations against him in relation to the specifics of the abuse alleged.  The father counters by accusing the mother of seriously abusing the children emotionally.  He maintains that she has maliciously raised false allegations and manipulated these two young children into making grotesque allegations against their father.  He describes her behaviour as "sick" and contends that it is essential that these children be removed from her destructive influence and protected from her ongoing abuse.

22. Since very shortly after separation, the mother has steadfastly maintained that the father has sexually abused, initially, C, and eventually all three children.  She has made repeated complaints of sexual abuse to various Government agencies, including the Police department and the Department of Child Safety.  She has maintained her stand in the course of the proceedings before the Family Court and in her discussions with the experts retained by the Independent Children's Lawyer.

23. Despite some moments of uncertain vacillation in her oral evidence during this trial, the mother maintained her assertion that the father had sexually abused the children in the past and that he should, therefore, not have ongoing contact with the children.

24. In a rather extraordinary turn of events at the commencement of his final address on behalf of the mother, her counsel, Mr Wiltshire, made a clear and firm concession that, on the evidence, no case of sexual abuse had been made out against the father.  Perhaps even more remarkably, he conceded that the children had been exposed to emotional abuse at the hands of his client.  Thereafter, counsel for the mother focused his energies upon issues relating to the mother's culpability, her ability to modify her ways and a consideration of the outcomes most likely to meet the children's best interests, in all the circumstances.

25. I should say that I have described the mother's counsel's concessions as extraordinary and remarkable, not because such concessions were not appropriate on all the evidence, but because of the unusual nature of such fundamental concessions in the context of competing allegations of sexual and emotional abuse.  I am certainly not intending to bring into question counsel's judgments on this aspect of the matter, having regard to the state of the evidence which existed at the conclusion of the hearing.

26. I take the view, however, that such a concession by the mother's counsel does not absolve the Court of the responsibility to make the necessary findings in relation to such serious matters which have such fundamental significance, both now and into the future, for each of the parents and all of the children.

27. However, I am satisfied that the course of the trial and the concessions of the mother's counsel enable me to address such matters in less detail and in summary form.  All three counsel agree that, in determining what orders should be made, it is necessary for the Court to reach conclusions about the nature and extent of any past abuse, the capacity of the parents to modify their behaviour and the risks of repetition of abuse.

28. On the issue of the father's sexual abuse of any of the children, I have taken into account the following matters:

    (1)The children apparently enjoyed strong, healthy relations with their father prior to separation and the mother had never raised any concerns about any form of inappropriate touching prior to separation.

    (2)The mother asserted that her concerns for abuse were based primarily on disclosures from the children and upon some evidence of physical injury or irritation around the genitalia or anal regions.  Apart from one or two vague statements made by C, which were assessed by investigators to be incongruent and unreliable, the children failed to confirm to the independent authorities the detail of the disclosures allegedly made by them to the mother.

    (3)Apart from what now appears to have been a flawed observation by a general practitioner on one occasion, none of the physical symptoms allegedly observed by the mother have been confirmed by independent physical examination.  Given the apparent brutality of the father's alleged forced efforts at vaginal and anal intercourse with a six year old child, it is, in my view, all but inevitable that some physical damage would have been observable.

    (4)The children's presentation is entirely inconsistent with the serious allegations of abuse alleged against the father in two significant ways.

    (5)Whilst one needs to be cautious about such matters, particularly when dealing with young children who can so readily be confused and conflicted by the dichotomy between their parents as a source of abuse, on the one hand, and affection and attachment, on the other, in this case the allegations of abuse of C, in particular, are so extreme that it would have been inevitable that she would have shown some signs of fear or apprehension in the presence of the father after such a brutal attack (see the oral evidence of Ms B, clinical psychologist).

    (6)There is an absence of any sign of disturbed behaviour or sexualisation of the children which one would have expected, given the apparent frequency and severity of the alleged sexual abuse.

    (7)The father's profile and presentation is not consistent with the prospect of him sexually abusing his children.  Ms B suggested that the perpetrator of such gross, sexual abuse, particularly in the context of pending investigation and litigation, would be likely to present with discernible psychiatric or personality disorders and/or other evidence of antisocial behaviour.  Dr H, psychiatrist, evaluated the parties and found the father to be a person without psychiatric disorder, depressive cognitions or disturbed thought process.  The father impressed Ms B as a conscientious and loving parent.  The father's presentation before me was convincing.  His response to questions and his demeanour were consistent with his stated abhorrence to the suggestions of abuse levelled against him. 

    (8)The mother's presentation was largely inconsistent with the gravity of the issues being canvassed in these proceedings.  On the one hand, the history would suggest that she has been a committed, if not obsessed, campaigner to protect her children against the evils of gross sexual abuse.  Yet, in the over one-and-a-half days of oral testimony before me, her demeanour was very much matter of fact.  There was never any sign of the type of anxiety, stress, anger or resolve one might expect of a parent who had a genuine belief that, for example, her 6 year old daughter had been anally raped by her estranged partner.  That flat affect at unlikely times was also observed by other investigators. 

1. In addition to those matters, I have also taken into account the fact that the mother has made numerous complaints to welfare agencies and to the Police department and has had the child medically examined on multiple occasions, and that such complaints have been pursued and investigated by a number of Police officers and departmental officers, who have continually found that the complaints were unsubstantiated. 

2. I have also had careful regard to the thorough and well-considered analysis of Dr H, psychiatrist, and Ms B, who each had access to not only the parties and the children, but to a substantial body of evidence which has been presented to this Court.  They have each concluded that, on the information available to them, there were no reliable indicators of sexual abuse and that all three children should have the opportunity to spend unlimited time with their father.

3. In all the circumstances, I firmly conclude that the father has not sexually abused any of his children as alleged by the mother, or at all.

4. I now turn to the issue of the mother's emotional abuse of the children.  As I have said, it has been conceded by the mother's counsel that the mother has caused emotional harm to the children in the way she has managed, or mismanaged, her stated concerns about sexual abuse.  That concession is one properly made on the face of the overwhelming evidence to that effect.  Whatever be the mother's state of mind, the evidence establishes that she exposed the children, and C in particular, to entirely inappropriate exercises which would, necessarily, have caused distress and harm to the children.  Included amongst such matters are the following:

   (i)excessive questioning of the child and/or discussions of the allegations of abuse with the child;

   (ii)exposing the children to excessive interviews and investigations;

   (iii)requiring C to be subjected to excessive examination of her genitalia, including a period where the said child was examined immediately after every period of contact with her father;

   (iv)requiring or empowering C to commit to writing and to record on tape serious allegations against her father;

   (v)persisting with complaints and allegations and enlisting the children in such exercises after receiving clear warnings as to the adverse impact of such behaviour upon the children; and most gravely of all

   (vi)falsifying shocking allegations of vaginal and anal rape and requiring C to produce those heinous allegations against her father in some written form (see Exhibit 3).

5. There cannot be any suggestion that the father raped C.  There cannot be any suggestion that C had the knowledge, capacity or state of mind to even begin to invent such a story (see the oral testimony of Ms B).  Those thoughts and those written words could only have been introduced to C by her mother. 

6. As I say, all three counsel agreed that the evidence established that there had been emotional abuse of these children in the mother's household.  The differences between them rested in those arguments relating to the nature and extent of such abuse, the mother's motivation and the mother's capacity to modify her behaviour.

7. Mr Wiltshire, counsel for the mother, argues that the Court should adopt a more sympathetic view of the mother's conduct and treat it as a misguided response to the mother's genuine concerns that her children had been abused.  In terms of the future, he contends that the Court should proceed on the basis that the mother now understands the gravity of her conduct, its impact upon the children and the consequences for her and the children if she is unable to desist from her campaign against the father.

8. Counsel for the Independent Children's Lawyer and counsel for the father contend for a less generous view of the mother's past conduct and suggest that the presentation of the mother's case and the history each suggest that the mother is unlikely to change her ways and that the children remain at such risk in her care as to warrant their immediate removal and management thereafter of their contact with the mother.

9. As to the nature and extent of the past emotional abuse of the children, I find that it was both sinister and extensive.  In addition to the most serious manipulation of these children in relation to the allegations of sexual abuse, the mother has, in many other ways, displayed an abject insensitivity to the emotional wellbeing of her children by engaging them actively in a campaign designed to damage or destroy their relationship with their father.  Examples of such conduct include the following:

   (1)I find that, prior to separation, C was always treated as a child of the father and C understood Mr Horvill was her father, whom she addressed as "dad".  I accept the father's evidence and reject the mother's evidence in relation to the assertion that the father never informed C directly or indirectly during the course of any argument that she was not his child.  I accept the father’s account.  I find that, shortly after separation when C was only 5 years of age, the mother chose to inform her that Mr Horvill was not her real father and thereafter encouraged or required C to refer to Mr Horvill as "T".  Obviously, the mother chose to do so as part of her own agenda against the father, without concern about the adverse impact of such significant matters upon a very young child who was, no doubt, at that time struggling with her separation from her father.

   (2)I find, as a further example, that the mother, in a calculated way, chose to inform C of an alleged assault by the father, wherein she told C that the father had kicked her in the stomach whilst she was carrying C.  Despite the fact that C is very attached to her father and enjoys spending time with him, I find that the mother saw fit to induce C not to speak to her father on the telephone and, in fact, required her to tell her father that she did not wish to speak with him.

   (3)I find that the mother induced L to assert that Mr Horvill had requested him to hurt, or even kill, his baby brother, S.  I find that the mother induced the children to repeat some of her false allegations to the maternal grandmother and other parties.

10. Through such conduct, the mother has demonstrated a very significant failing in her parenting.  She has been prepared to actively undermine her children's emotional wellbeing for her own apparent agenda of retribution against the father.  Her strong preference, at least in relation to C and S, is that the father should not have any relationship with those children.

11. In this background, it is difficult to avoid the conclusion that the mother has deliberately chosen to continue to breastfeed S to place further obstacles in the way of the father's relationship with him.  It seems more than coincidental that the mother has elected to breastfeed S for the past 15 months and proposes to continue to do so indefinitely, until the child himself decides he will no longer take the breast, whereas in the case of each of her four previous children, she continued to breastfeed them for no longer than eight weeks.

12. I am drawn to conclude that the mother has demonstrated on a number of key occasions in her life, in a number of very significant ways, that there are serious deficiencies in her capacity to provide proper and consistent care for her children.  She was simply unable to cope with the responsibilities of parenthood and abandoned those responsibilities for each of her first two children.  She continued to struggle with parenting with C and L and resorted to excessive and inappropriate verbal abuse of the children as a means of management, as set out in the testimony of the father and his witnesses, Ms N and Ms T. 

13. I accept that, in 2003, as a measure of the extent of the mother's struggle with the children and the depression associated therewith, she made an attempt on her own life.

14. The arrangement entered into by the parties by agreement after the mother’s discharge from hospital represented evidence of the mother's acknowledgement of, firstly, her own struggles with the care of children and, secondly, of the fact that the father is, indeed, capable of providing primary care to young children.

15. By her conduct described earlier in this judgment, the mother has demonstrated a serious deficiency in her capacity to meet the emotional needs of her children and to protect them from emotional harm.  I agree with the assessment of Dr H that the mother is simply unable to support her children in having a close and continuing relationship with the father.

16. The above findings relate to two key components identified as the primary matters for consideration within the provisions of s 60CC of the Family Law Act.

17. As to the father on these points, I agree with the assessments of Dr H and Ms B that, firstly, the father would be able to support the children having a close and continuing relationship with the mother and, secondly, that he presents as a conscientious and loving father.

18. I take particular note of the fact that the father has undertaken a number of parenting and personal development courses designed to enhance his personal and parenting skills. 

19. I find that he has not sexually abused the children in the past and that he has not exposed them to emotional harm. 

20. In contemplating the parenting orders to be made in this matter, in addition to taking into account the aforementioned weighty matters, I take the additional matters into account:

    (a)The children are too young to take account of their views.

    (b)C is primarily attached to her mother.  She has an important and close attachment to her father and a significant attachment to her maternal grandmother.

    (c)L is probably equally attached and dependent upon each of his parents.

    (d)S is overwhelmingly attached to, and dependent upon, his mother, even for his daily sustenance.  His relationship with his father is limited and tenuous, although he is not a stranger to him.

21. A change of the children's living arrangements would not greatly affect the two older children.  L has enjoyed a largely shared care arrangement for over 12 months and C has spent significant time in each household.  However, one of the many significant challenges in this case are the options and implications of removing S from his mother's primary care.  There are obvious health and practical issues which flow from the fact that he continues to be breastfed and Ms B explained that sudden disruption to primary attachments for very young children can expose such children to the adverse effects of a resultant sense of abandonment and insecurity.  In other respects, the parents live in close proximity and there are not any logistical considerations of consequence.

22. I am satisfied that the parents have similar ability to adequately meet the children's day-to-day needs.  I have discussed at length the differences between the parties in terms of their capacity to meet the children's emotional needs.

23. I have concluded that the children's welfare would be best served by being placed in the primary care of the father.  He is as well-equipped as the mother to attend to the children's daily needs.  He is much better placed than the mother to nurture the children's emotional wellbeing.  History has clearly demonstrated that the mother has frequently, and to serious degrees, compromised her children's welfare to meet her own needs.  The children are much more likely to have a meaningful relationship with each of their parents if they are in their father's primary care.  The children are likely to have better prospects of a happy, emotionally healthy life in the father's household.

24. That broad determination brings into focus the consequential vexed questions of (1) giving effect to the transition between households and (2) what time should the children spend in each household and what terms and conditions should be imposed.

25. As I said earlier, counsel for the Independent Children's Lawyer and the father suggest, firstly, that the Court should adopt a robust approach in terms of removal of S from the mother and, secondly, that the Court should adopt a cautious approach to the mother's future contact with the children.  They base those submissions on the gravity of the mother's past abuse, the risks of ongoing abuse while the children are in her care, and the improbability of the mother modifying her behaviour.

26. There can be no doubt that the level of the mother's emotional abuse of the children as described in this judgment was most serious indeed.  Equally, there can be no doubt that emotional abuse of children is a most serious crime against them and this Court must take its obligation to protect children from such harm very seriously indeed.

27. Happily, the indications at present are that there is little evidence of signs of obvious harm occasioned to these young children, although it is likely that the children would have been left with some levels of emotional damage to be carried into the future, given the gravity and frequency of the described abuse.  Equally, there can be no doubt that, if the children continued to be exposed to such behaviour by their mother, it is inevitable that serious damage would be occasioned to the children's emotional growth and/or to the children's relationship with at least one of their parents.

28. Counsel for the mother argued that his client should be given another chance and that, with the prospect of the ultimate sanction of loss of a relationship with her children, the mother is unlikely to take that risk and repeat such behaviour.

29. The difficulty with that proposition advanced by her counsel is that the mother did not display any such insight or contrition at any stage leading up to, or during, the course of the trial.  That proposition had all the hallmarks of being the invention of her counsel, who found himself in a difficult place after the mother's case had closed and after it became apparent that the evidence against his client was overwhelming.  There was no application by the mother to reopen her case, so I heard nothing directly from her.  Further, the evidence would indicate that the mother has been subjected to most serious threats of sanction in the past and they have not succeeded in bringing about any change.

30. Firstly, the mother's continual complaints and resultant extensive investigations led most of those involved to become acutely concerned about the mother's behaviour and the emotional harm being caused to the children.  She was strongly advised to desist from such behaviour, culminating in the case of one police officer threatening to prosecute her in the event of her failing to desist.  It is to be noted that the mother's conduct continued after that threat.

31. In April of 2006, the Department of Children's Services convened a meeting with the mother for the express purpose of advising her of their conclusion that her conduct was emotionally abusive of the children and, further, that if there was evidence of a continuation of such conduct, it may well result in the Director-General considering intervening to have the children removed from the mother.  It is to be noted that the most serious allegations relating to the alleged rape emerged after that meeting.

32. It is submitted by counsel for the Independent Children's Lawyer and for the father that, in those circumstances, the Court could not have any confidence of any capacity on the part of the mother to modify her behaviour and that, in that context, the risks of harm to the children were simply too high.

33. In this difficult case, this aspect of the matter presents the Court with a most difficult balancing act.  The Court has a primary obligation to protect children from the prospect of harm.  The Court also has a responsibility to ensure that, in most circumstances, children should be enabled to have a meaningful relationship with both of their parents.  What is clear in this case is that I am dealing with three young children who love their mother very much and need their mother very much.  It is clear that they want to spend significant and meaningful time with her.

34. Unfortunately, when one puts to one side the issue of the mother's capacity to accommodate the children's relationship with the father, she has, in other respects, provided well for her children.  She presents as a mother who loves her children and has much to offer them.  As I said during the course of these proceedings, these children would do best if they were given the opportunity to have a meaningful relationship and healthy, safe, significant time in both households.

35. I am satisfied that all of the children would react badly to any substantial limitation of their time with their mother.  In the case of S, the implications are very significant indeed.  I am confident that, if the father could be satisfied that the children were not going to be exposed to further emotional harm and his relationship with his children was not undermined, he would support the notion of these children spending significant time with their mother.  Indeed, it is to be noted that, in the course of the last family report by Ms B, and notwithstanding his knowledge and understanding of the gravity of the mother's behaviour, he was still contemplating the prospect of a shared care arrangement.

36. The options available to me to deal with this difficult question of ongoing abuse include either forthwith removing the children from the mother and severely limiting her contact thereafter with them in the hope that the mother would seek help and demonstrate an improved approach to her responsibilities to the children's emotional wellbeing, or the other option is to enable the children to continue to spend substantial and significant time with their mother in the hope that she will desist from manipulation of the children, and to monitor that situation and intervene at the first sign of any problems.

37. Neither option is without its risks to the children.  I have taken account of the fact that, despite a lack of evidence to this effect, it is inevitable that the mother will now see that her past conduct has resulted in her loss of the primary care of all three of her children.  That will be very, very difficult for her and, obviously, a most significant event in her life.  The mother will need to appreciate that, if such conduct has had such a drastic outcome for her and her children, any continuation thereof will have even greater implications.

38. If evidence emerges that the mother continues to raise false allegations, continues to have the children subjected to investigations and examinations, or that there is any suggestion of indoctrinating the children with false negative views of their father, or any effort to interfere with, or devalue the relationship between the children and the father, such conduct would almost inevitably result in her time with the children being severely limited in terms of time and highly regulated in terms of close supervision.  To be clear to the mother, it would be my contemplation that any repetition of such behaviour would result in the mother's ongoing contact with her children being likely to be limited to an hour or two under supervision at a contact centre.

39. Whilst one can have concerns about the mother's capacity to change, it is to be noted that, in large part, she has complied with Court orders in the past, notwithstanding her own strong preferences not to allow C to have any ongoing relationship with Mr Horvill. 

40. As I say, the risks of further emotional abuse are very significant indeed.  The risks of severely disrupting and curtailing the children's relationship with their mother are also likely to cause these children significant hardship and a sense of loss.  I would propose to have the matter monitored as it were, over the next 12 months and return for further hearing by me in 12 months' time.  I would propose to request the Independent Children's Lawyer to remain in the matter for that further 12-month period and I propose to empower the father and the Independent Children's Lawyer with the opportunity to apply to this Court within that 12-month period should there be any evidence of harm being occasioned to the children during the time they spend with their mother.

1. I acknowledge the force of the submission made by counsel for the Independent Children's Lawyer and the father as to the likelihoods and the risks, and I acknowledge that the orders I propose to make are far from foolproof.  However, I hope that, with those safeguards in place, the risk is more limited.  I am satisfied, on balance, that the risks associated with the children being in the mother's care in those circumstances are just outweighed by the risks for the children associated with a sudden and significant reduction in their relationship with their mother.

2. I propose to make orders which will see C and L spend the same amount of time with their father as has been the case with L in more recent times. 

3. The position of S is much more difficult.  The aim is to produce an outcome where all three children will spend four nights with their father and three nights with their mother.  In my view, it is not appropriate that that transition for S be rushed.  In my view, that transition should be effected in a way which has proper regard to his age, dependency and the fact that he has been breastfed to this time.

4. On the issue of breastfeeding, I note that he is already taking solids and that the father has already successfully fed him on occasions with the bottle.  Whilst the mother may have a genuine preference to continue to breastfeed S, children of all ages are required to make the transition associated with weaning.  Any preference the mother may have must be measured against the imperative for S to spend more time with his father and more time with his siblings in the father's household.  I have no doubt that there is no physical bar to making appropriate arrangements amongst the wide range of sustenance options available for infants S's age. 

5. I am more concerned about notions relating to the abrupt removal of infants from their primary care-giver.  I am not satisfied that such an abrupt removal is in S's best interests.  The reality is that S is not at risk of emotional manipulation in the way his older siblings were exposed to, having regard to S's tender age.  S needs to get to know his father, to spend time with his father, to develop attachment, reliance and security in his relationship with his father and he needs to have a gradual introduction of extended periods separated from his mother.  Ms B suggested the transition could be appropriately managed over the next 18 months or so, and I propose to largely adopt the model prescribed by her in paragraphs 10.3.4 and 10.3.5 of her report dated 6 November 2006.

   RECORDED : NOT TRANSCRIBED

1. I propose to make orders which will provide for S to spend half a day from 10 am to 2 pm - these are really suggestions and I am happy to hear from either of the parents about the detail - but a program something like half a day on specified hours that might best suit the parties and S twice per week during the months of February, March and April; for a full day from 9 to 5 two days per week for the six months May, June, July, August, September and October; then from 9 am  - I thought, perhaps, Sunday to Monday, but maybe Friday 9 am to 5 pm Saturday for the months of November, December, January, February, March and April; and then from 9 am Friday to 5 pm Sunday for the months of May, June, July, August, September, October the next year, and thereafter on the same regime as C and L, and that the children spend half their school holidays with each of their parents, with S's half school holiday regime to be introduced once he is on the four/three routine, the same as C and L.

2. I propose to list the matter for hearing on a date to be advised for one full day on a date as close possible to 12 months from today's date.

3. I propose to give each of the parties and the Independent Children's Lawyer liberty to apply on the giving of 14 days' notice.  I direct that, if possible, any applications listed pursuant to such liberty be listed before me.

4. I extend the appointment of the Independent Children’s Lawyer to the further hearing date. 

5. I propose to make an order for joint parental responsibility.  That matter has not been significantly addressed in the evidence, or by the legal representatives for the parties or the child.  Given that this matter is subject to review and subject to liberty, I propose to err in favour of having such a joint parental responsibility order in place in the hope that once, no doubt, the difficulties of this litigation and the challenges of the decision made by the Court in this litigation subside, the parties will eventually see fit for the benefit of all three children to put in place a system which enables each of them to be involved in all important decisions relating to the future of the children.  If that proves not to be viable, then that can be a matter again addressed on the next return date.

6. I propose to have a look at those orders and make sure that, as S is spending increasing time with the father, it is during periods when the father has C and L, so that that will give the children the opportunity to spend their time together.  All three children will be together during those times they are with the mother and the aim is to increase the time that there will be three children together in the father's household.

   RECORDED : NOT TRANSCRIBED

1. It is important that this regime be followed and not disrupted.  I am anticipating the two older children will have shared holiday time between households, but it is important that S's increasing time with his father be a continuum and not disrupted, and then, as I say, he will start to have shared holiday time after the end of next year, from November of next year on.

RECORDED : NOT TRANSCRIBED

1. I should also indicate that I propose to make an order by consent relating to the registration of S in terms of the consent order signed by the parties and the Independent Children's Lawyer.

RECORDED : NOT TRANSCRIBED

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: