HORVILL & KENT; HORVILL & CARR

[2013] FamCA 826

FAMILY COURT OF AUSTRALIA

HORVILL & KENT; HORVILL & CARR [2013] FamCA 826

FAMILY LAW – CHILDREN – parenting orders – where mother presents as an unacceptable risk of psychological harm to the child.

Family Law Act 1975 (Cth) ss 60CA; 60CC; 61DA; 65DAA; 65DAC

Evidence Act (Cth) s 140

Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170;
N & S & The Separate Representative (1996) FLC 92-655;
Harridge & Harridge [2010] FamCA 445

APPLICANT: Mr Horvill

RESPONDENTS: Ms Kent & Ms Carr

INDEPENDENT CHILDREN’S LAWYER: Raelene Ann Ellis

FILE NUMBER: BRC BRC 6158
9581 of of 2011 2007

DATE DELIVERED: 25 October 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 14, 15, 16, 17 & 18 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wardle

SOLICITORS FOR THE APPLICANT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

R A Solicitors

Mr Linklater-Steele

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Burchill & Horsey Lawyers

Orders:   HORVILL & KENT

1. That the Father have sole parental responsibility for long term care, welfare and development in regards to the children, L Horvill born on … 2002 and S Horvill born on … 2005 (“the children”) including but not limited to:

   (a)The children’s education;

   (b)The children’s religious cultural upbringing;

   (c)The children’s health;

   (d)The children’s names.

2. That the Father, in exercising his sole parental responsibility shall prior to making any such decision;

   (a)Notify the Mother in writing prior to making a decision about the decision to be made and invite her to indicate her views in writing;

   (b)Inform the Mother in writing as soon as reasonably practical of the decision once made.

3. That the children live with the Father.

4. That the Mother spend time with the children supervised at the X Contact Centre (“the contact centre”) each second weekend for a period of 2 hours at a time as can be accommodated by the centre.

5. That for that purpose the parties shall forthwith:

   (a)Register at the contact centre within 7 days of the date of these Orders and bear their own costs of such registration;

   (b)Arrange an appointment/s for assessment for suitability for supervised time;

   (c)Attend the assessment;

   (d)Comply with any appointments made by the contact centre for supervised time;

   (e)Comply with all reasonable rules of the first available contact centre; and

   (f)Comply with all reasonable requests or directions of the staff of the contact centre.

6. That the Mother bear the fees/costs for supervised time.

7. That the children’s sibling R and any family member except E is at liberty to attend such visits, should the contact centre permit.

8. The children shall communicate with the Mother on the telephone at such times as the child reasonably requests and at all reasonable times but at least each Wednesday between 5:45pm and 6:00pm with the Mother initiating such call and in relation to such communication the Father shall:

   (a)Ensure that the children are available to receive the telephone call;

   (b)Arrange for the children to telephone the Mother on the following night, if for any unforeseen circumstance, the children miss the telephone call from the Mother.

9. That the Mother and Father keep each other informed of his/her current residential address and all contact telephone numbers and of any change thereto within forty-eight hours of any such change.

10. This Order is sufficient authority for the children’s school to give each party information about the children’s education progress and other school related activities and supply to them copies of school reports, photographs, certificates and awards obtained by the children at the requesting parties’ cost and both parties are at liberty to attend any school event such as parent teacher interviews, sports carnivals and productions.

11. These Orders are authority for any treating medical practitioner, specialist or dentist to release the children’s medical information to each party.

12. The father is to immediately address any major illness or accident/injury and then forthwith notify the mother and at least within two (2) hours of any medical emergency involving the children that occurs.

13. Each party shall speak to the other party respectfully and not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

14. That during the time the children are with either parent, that parent shall:

    (a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;

    (b)Speak of the other parent respectfully;

    (c)Not discuss adult issues/Court proceedings with or in the presence or hearing of the children.

15. That the Father is at liberty to provide any professional treating the children with a copy of any of the following documents:

    (a)The family reports of Mr J;

    (b)The reasons for judgment of this Court and any previous reasons and judgment of this Court pertaining to the children;

    (c)Any Orders of this Court pertaining to the Children.   

16. That any injunction issue restraining any party from taking the children to any appointments with Ms M.

17. That the Mother is hereby restrained and an injunction issue preventing the Mother, whether by her servant, agent or howsoever from contacting, or causing or inducing others to contact, the police, welfare agencies, child protection units, hospitals or doctors or any other authority or agency about the children in any way whatsoever and in particular as to:

    (a)Enquiring as to the welfare of the children or the Father;

    (b)Disseminating information about the children of the Father;

    (c)Discussing matters pertaining to the children or the Father;

    (d)In order to present the children to such authorities for investigation or abuse;

    without the prior written consent of the Father or, alternatively, with the leave of this honourable Court first obtained.

18. That the Mother is hereby restrained and an injunction issue preventing her from bringing the children in contact with Ms Carr except for with the consent and prior knowledge of the Father.

19. Neither party shall use any implement in physically disciplining the children.

20. The parties within seven (7) days of the date of this Order contact the Relationships Australia (or their nominee) on telephone number … for intake in the “Post Separation Parenting” Program or such other Parenting Orders Program as recommended by that organisation.

21. The parties shall comply with any reasonable direction of the Program Co-ordinator and in particular:

    (a)Attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

    (b)Advise the Co-ordinator of their contact telephone number and advise the Co-ordinator  of any change in that number;

    (c)Attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.

22. That, upon completion of the program, the parties shall provide the other party with a copy of the Certificate of Completion.

23. That the Independent Children’s Lawyer be forthwith discharged.

24. That otherwise all extant applications be dismissed, and the matter be removed from the list of active pending cases.

ORDERS: HORVILL & CARR

1. That the Father have sole parental responsibility for long term care, welfare and development in regards to the child Y Horvill,  (“the child”) including but not limited to:

   (a)The child’s education;

   (b)The child’s religious cultural upbringing;

   (c)The child’s health;

   (d)The child’s names.

2. That the Father, in exercising his sole parental responsibility shall prior to making any such decision;

   (a)Notify the Mother in writing prior to making a decision about the decision to be made and invite her to indicate her views in writing;

   (b)Inform the Mother in writing as soon as reasonably practical of the decision once made.

3. That the child live with the Father.

4. That the Mother spend time with the child supervised at the X Contact Centre (“the contact centre”) each second weekend for a period of 2 hours at a time as can be accommodated by the centre.

5. That for that purpose the parties shall forthwith:

   (a)Register at the contact centre within 7 days of the date of these Orders and bear their own costs of such registration;

   (b)Arrange an appointment/s for assessment for suitability for supervised time;

   (c)Attend the assessment;

   (d)Comply with any appointments made by the contact centre for supervised time;

   (e)Comply with all reasonable rules of the first available contact centre; and

   (f)Comply with all reasonable requests or directions of the staff of the contact centre.

6. That the Mother bear the fees/costs for supervised time.

7. The child shall communicate with the Mother on the telephone at such times as the child reasonably requests and at all reasonable times but at least each Wednesday between 5:45pm and 6:00pm with the Mother initiating such call and in relation to such communication the Father shall:

   (a)Ensure that the child are available to receive the telephone call;

   (b)Arrange for the child to telephone the Mother on the following night, if for any unforeseen circumstance, the child miss the telephone call from the Mother.

8. That the Mother and Father keep each other informed of his/her current residential address and all contact telephone numbers and of any change thereto within forty-eight hours of any such change.

9. This Order is sufficient authority for the child’s school to give each party information about the child’s education progress and other school related activities and supply to them copies of school reports, photographs, certificates and awards obtained by the child at the requesting parties’ cost and both parties are at liberty to attend any school event such as parent teacher interviews, sports carnivals and productions.

10. These Orders are authority for any treating medical practitioner, specialist or dentist to release the child’s medical information to each party.

11. The Father is to immediately address any major illness or accident/injury and then forthwith notify the mother and at least within two (2) hours of any medical emergency involving the child.

12. Each party shall speak to the other party respectfully and not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that other do not denigrate or insult the other parent in the hearing or presence of the child.

13. That during the time the child is with either parent, that parent shall:

    (a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

    (b)Speak of the other parent respectfully;

    (c)Not discuss adult issues/Court proceedings with or in the presence or hearing of the child.

14. That the Father is at liberty to provide any professional treating the child with a copy of any of the following documents:

    (a)The family reports of Mr J;

    (b)The reasons for judgment of this Court and any previous reasons and judgment of this Court pertaining to the children;

    (c)Any Orders of this Court pertaining to the Child.

15. The parties within seven (7) days of the date of this Order contact the Relationships Australia (or their nominee) on telephone number … for intake in the “Post Separation Parenting” Program or such other Parenting Orders Program as recommended by that organisation.

16. The parties shall comply with any reasonable direction of the Program Co-ordinator and in particular:

    (a)Attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

    (b)Advise the Co-ordinator of their contact telephone number and advise the Co-ordinator  of any change in that number;

    (c)Attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.

17. That, upon completion of the program, the parties shall provide the other party with a copy of the Certificate of Completion.

18. That the Independent Children’s Lawyer be forthwith discharged.

19. That otherwise all extant applications be dismissed, and the matter be removed from the list of active pending cases.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC6158/2011 & BRC9581/2007

Mr Horvill

Applicant       

And

Ms Kent and Ms Carr
Respondents 

REASONS FOR JUDGMENT

Introduction  

1. These proceedings relate to the three children of the applicant, Mr Horvill (“the father”).  The eldest two children, L Horvill (“L”) born in 2002 and S Horvill (“S”) born in 2005 are the children of the respondent mother Ms Kent (“Ms Kent” or in relevant context “the mother”).  The youngest child, Y Horvill (“Y”) born in 2006, is the child of the respondent mother, Ms Carr (“Ms Carr” or in relevant context “the mother”). 

2. The orders contended for by all parties at the conclusion of the trial differed from those formally set out in their Application or Response.  Turning firstly to the position of the father, in his Further Amended Application filed 25 February 2013, he sought orders that he have sole parental responsibility for the children L and S, who would live with him, and spend unsupervised time with Ms Kent on alternate weekends and for one half of school holidays.  However by the end of the trial, he proposed that the only time that both boys should spend with Ms Kent should be supervised at a contact centre on a fortnightly basis, and they otherwise spend no time with her.

3. In the case of the child Y, in the father’s Amended Initiating Application filed 25 February 2013, he had proposed that he have sole parental responsibility for  the child Y, who would live with him and spend time with the mother on alternate weekends, which time was to be supervised by the maternal grandmother, Ms G.  However by the end of the trial, he was seeking orders that the only time that Y spend with the mother be supervised time at a contact centre on a fortnightly basis.

4. Therefore it can be seen that the father now seeks a similar regime of orders in relation to all three children, namely that he have sole parental responsibility for them, that they live with him, and that they spend supervised time at a contact centre with their respective mothers.  

5. Turning then to Ms Kent’s position, in her Amended Response to Initiating Application filed 15 March 2013, she had sought orders that she and the father have equal shared parental responsibility for both L and S, with L living with the father but spending unsupervised time with her on alternate weekends and one half school holidays, and S living with her and spending time with the father each alternate weekends supervised at the X Contact Centre.  However, at the commencement of the trial she indicated that she would seek orders that both children live with her and spend supervised time with the father between 2:00pm and 4:00pm every second Saturday at the X Contact Centre.  She also seeks an order that S’s surname be changed to Kent.

6. As for Ms Carr, in her response to an Initiating Application filed 20 March 2013, she agreed that the father should have sole parental responsibility for Y, live with him, and spend time with the mother (initially supervised by members of her family) but moving to unsupervised time in due course.  However at the commencement of the trial her position had changed so that she proposed that Y live with her, and spend only supervised time with the father each alternate weekend.

7. The trial of both proceedings proceeded jointly, with evidence in each trial being evidence in the other.  By the conclusion of the trial, the orders sought by the Independent Children’s Lawyer were identical to those sought by the father.

THE FACTUAL BACKGROUND

1. The background to these proceedings is quite complex.  The first layer of complexity arises from the other children who have been born to both mothers.  Ms Kent has, in addition to L and S, another four children, three of whom are older than L and S, and one of whom, R, is younger, having been born in 2008.  The two eldest of those other children do not reside with her.  The youngest two, C and R, do reside with her.

2. On the Carr side of the proceedings, there are presently another eight children of the mother, seven of whom are older than Y.  Only one of those seven older children (Z, born in 1999) resides with Ms Carr; the other six are in State organised foster care.  The eighth child is younger than Y, having been born in 2012.  He lives with the mother, who is pregnant with a further child, due to be born in December of this year.

3. The second complexity arises from previous proceedings involving the applicant and Ms Kent, the trial of which was conducted in early 2007.  Those proceedings related to L, S and C.  Although C is not the biological child of Mr Horvill, she had been raised by Mr Horvill and Ms Kent as if Mr Horvill was her father.  In those proceedings, the mother made extremely serious allegations that the father had sexually abused all three children, including tying up and vaginally and anally raping C, digitally penetrating L’s anus and perhaps engaging in oral sex with him.  It was further asserted by her that the father displayed an unhealthy preoccupation with S’s penis and anus.

4. That trial proceeded unusually in that in his closing submissions, the mother’s counsel conceded not only that no case of sexual abuse had made out against the father, but that all three children had been exposed to emotional abuse at the hands of Ms Kent.  The trial Judge, Jordan J, proceeded to make factual determinations consistent with those concessions, and in doing so made findings that the mother’s allegations were entirely false, and that she had displayed “abject insensitivity to the emotional well-being of her children by engaging them actively in a campaign designed to damage or destroy their relationship with their father.”  Jordan J concluded that the mother “did not display any .. insight or contrition at any stage leading up to, or during, the course of the trial.”

5. At para.[66] of his ex tempore reasons, Jordan J said as follows:

   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 view of their father, or any effort to interfere with, or to value with their 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.

6. As it apparent from that paragraph, his Honour’s Orders contemplated that the matter would come back before him for further hearing at the expiration of a 12 month period.  On 4 February 2008, Jordan J made final orders in substantially identical terms to those which he made in 2007.

1. The third aspect of great complexity relates to the post-2007 factual history, in that very shortly after the final orders were made in 2008, matters took a very grave turn.  By that time, the father was residing with Ms Carr and her children.  Pursuant to the Orders of Jordan J, C, L and S spent four days each week living with the father (and hence Ms Carr and her children too).  From about March 2008 until August of that year, new allegations of sexual abuse involving the father emerged.  Initially they involving two of Ms Carr’s daughters, I and A, and indeed in August 2008 the father was charged with indecent dealing with both of them.  However during the course of the police investigation, further and new allegations of sexual abuse by the father of C emerged, although the father was never charged with any offence relating to her.

2. In consequence of the criminal investigations involving him, on 7 May 2008 the father undertook to this Court by formal written undertaking  not to have any direct or indirect contact with C, L or S until the criminal investigation against him was completed.

3. Consistent with the undertaking, between August 2008 and May 2010 the father did not see C, L and S, and during that time they lived with Ms Kent.  In May 2010 a nolle prosequi was entered in relation to the charges relating to I and A.  The evidence before me does not permit any firm conclusion as to the reasons for that nolle, although it may be related to the admission by, and ultimate conviction of, Ms Carr’s eldest son, of sexually assaulting both girls.

4. Notwithstanding the nolle, and despite his request by letter of 3 August 2010 to see L and S, that did not occur until September 2010, pursuant to an agreement struck between the parties at a Legal Aid conference.  It appears as though on 21 September 2010 the father withheld both children from their mother, and they did not see her again until March or April of 2011.  In July 2011, the mother withheld both children from the father, and they did not see him again until 13 October 2012, when they recommenced seeing him under supervision at a contact centre.  In February 2013, the parties agreed that L would reside with the father, and in about March 2013, the parties agreed that although  S would remain living with his mother, he would spend unsupervised time with the father on alternate weekends and one half of school holidays.

5. Since then however matters have not gone smoothly, in that there have been two subsequent occasions after March 2013 when Ms Kent has again withheld both children from the father, being in May and September 2013.

6. Things are no less complex on the Carr side of these proceedings.  Between March and May 2008, all eight children were removed from the care of Ms Carr (who was then, and thereafter remained, residing with the father) by the Department of Communities, Child Safety and Disability Services (“the Department”).  Part of the reason for the removal of the children included the allegations of sexual misconduct on the part of the father, and the fact that Ms Carr continued to bring her children into contact with him.

7. Between August 2008 and May 2010 the father did not see the child Y at all.  The mother did see Y, but her time with him was supervised.

8. In March 2010, the father and Ms Carr permanently separated.

9. In September 2010 the father moved to an island.  On 21 January 2011, pursuant to a plan between the Department and the father, Y was moved into his primary care, which situation continued at trial.  Since January 2011, the time that the mother has spent with Y has been, and remained at the time of trial, subject to a requirement of supervision, with the present supervisor being her mother, Ms G.

10. It might be of some assistance if I attempted to summarise the children’s living arrangements from time to time.  Turning firstly to L and S, pursuant to the orders of Jordan J, between about January 2007 and mid-2008, they lived with the father pursuant to what was, in substance, a shared care arrangement with Ms Kent.  Between August 2008 and September 2010 they were not seen at all by the father, but resided with Ms Kent.  In September 2010 they commenced spending time with the father, but were withheld by him from Ms Kent on 21 September, and only re-commenced spending time with her in March or April 2011.  They were then withheld by the mother in July 2011 and did not see the father at all until late 2012.  In March 2013 L commenced to live with the father and spend time with the mother, but S remained living with the mother and spending alternate weekend time with the father.  That was the situation at trial.

11. As to the child Y, he resided with both the father and Ms Carr until August 2008 when he was removed into State care, and remained there until late 2010.  He commenced to live with the father in January 2011, spending only supervised time on alternate weekends with Ms Carr.  That remained the position at trial.

12. An analysis of the above shows that in fact the father had all three children in his primary care for approximately six months from January 2011 until July of that year.  That only ceased when Ms Kent withheld the children L and S in that month.

THE ISSUES

1. At trial, the principal battleground was the extent to which any of the parties presented as unacceptable risks in relation to the children.  The position of both Ms Kent and Ms Carr in that respect was largely indistinguishable: each of them initially asserted that the father presented an unacceptable risk of sexual abuse and physical abuse to the children, however by the end of the trial both expressly abandoned the sexual abuse risk component of their cases. 

2. The father’s case against both of the mothers was also very similar, in that he said that both of them presented an unacceptable risk of psychological harm to the children arising from their involvement in, or generation of, spurious accusations against him of sexual and physical abuse of the children.  His case was perhaps expressed more strongly in the case of Ms Kent, whom he accused of being intent on alienating L and S from him, and having consistently attempted to do so since they separated.

THE STANDARD OF SATISFACTION REQUIRED

1. Section 140 of the Evidence Act provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)     the nature of the cause of action or defence;

   (b)    the nature of the subject-matter of the proceedings;

   (c)    the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Allegations that a parent presents of a risk of any kind of abuse to their own children are serious, and in cases such as this, the consequences can be very grave.  Consistent with s 140(2) in determining whether I am satisfied of the allegations of unacceptable risk raised by the parties against each other, I propose to carefully evaluate the evidence relied upon in support of such allegations, and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1]       

[1]See K v R 1997) 22 FAMLR 952 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

THE STATUTORY REGIME

1. A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that 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 for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or alternatively, substantial and significant time.

2. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

3. In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

4. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

DOES THE S 60DA(1) PRESUMPTION APPLY, OR IS IT REBUTTED?

The children L and S

1. As has been seen, s 61DA(2) provides, amongst other things, that the presumption of equal shared parental responsibility for a child does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who at the time was a member of the parent’s family.

2. “Abuse” is defined in the Family Law Act as, amongst other things, causing the child to suffer serious psychological harm, or serious neglect of the child.

3. I have already adverted to the extraordinary concession by the mother’s counsel at the 2007 trial that the children C, L and S had all been exposed to emotional abuse at the hands of Ms Kent.  At [32] of his reasons Jordan J said:

   As I have said, it is 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 Courtney in particular, to entirely inappropriate exercises which would, necessarily, have cause to stress and harm to the children.

4. In my view this clearly establishes reasonable grounds to believe that Ms Kent has abused either L and S themselves, or C, who at the time was a member of her family. The s 61DA presumption therefore does not apply in relation to L and S.

The child Y

1. Amongst the material in evidence before me was a “Brief summary of child protection history” apparently prepared by an officer of the Department, relating to Ms Carr.  It relevantly provides as follows:

   Ms [Carr] has been known to [the Department] since 1993 in relation to [V’s] older siblings.  During this time, there have been 14 child protection notifications recorded in Queensland with Ms [Carr] identified as the alleged person responsible.  Of these, eleven notifications were substantiated for harm or risk of harm to [N] and/or his siblings, with Ms [Carr] recorded as the alleged person responsible.  The outcomes of the substantiated notifications were as follows:

   a.      Three child protection notifications were substantiated for risk of neglect, and emotional and physical harm;

   b.     Two child protection notifications were substantiated for emotional harm, physical harm and neglect;

   c.     One child protection notifications was substantiated for risk of physical and emotional harm caused by neglect;

   d.     Five child protection notifications were substantiated for risk of emotional and physical harm caused by neglect.

   The themes of the child protection concerns received in relation to Ms [Carr] are:

   a.      Chronic neglect: lack of supervision, children roaming on the streets unsupervised, children running away, parents not following through with referrals, children presenting as unkempt and unhygienic;

   b.     Emotional harm: exposure to domestic violence between Ms [Carr] and her previous partners, emotional harm caused by sexual abuse by Ms [Carr’s] previous partner and one, [N] and [Z].

2. Based upon this it seems clear that there are reasonable grounds to believe that Ms Carr has engaged in abuse (comprising serious neglect) either of the child Y himself, or of one of his siblings, who at the time was a member of Ms Carr’s family. Therefore the s 61DA presumption does not apply in relation to Y.

CONSIDERATION OF SECTION 60CC FACTORS

S. 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. The applicant father has demonstrated deep commitment to involvement in all aspects of his three children’s lives.  He actively involves the children in many activities, for instance sporting and other recreational pursuits, has a strong interest in their education and health, and otherwise takes an active interest in their wellbeing.  It cannot be doubted that each of the children would benefit from having a meaningful relationship with the father.

2. Turning to Ms Kent, it appears clear that both L and S enjoy spending time with her, and there is a mutual loving relationship.  She has a long and significant history of meaningful involvement in their lives.  Subject to other considerations, it could not be said that there is no benefit to the children in having a meaningful relationship with Ms Kent.

3. Finally as to Ms Carr, it is plain that Y has a strong attachment to her, and that there is a mutual loving relationship between them.  Again, subject to other considerations, it seems plain that Y would benefit from having a meaningful relationship with Ms Carr.

S. 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The task of assessing unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In Harridge & Harridge [2010] FamCA 445 Murphy J, having recited the above passage, proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

3. I gratefully also adopt that passage as helpful in cases such as these in analysing the asserted risk.

Is the father an unacceptable risk?

1. As I have previously indicated, at the commencement of the trial both Ms Kent and Ms Carr appeared to rely upon two areas where it was said the father presented as an unacceptable risk to their children, namely of sexual abuse and of harm resulting from excessive physical discipline.  By the end of the trial, in their submissions to me, both mothers expressly abandoned any reliance upon the sexual abuse risk.  That was scarcely surprising.  Not only was there was no direct evidence of any sexual misconduct by the father, but several investigations by the Department into those allegations had never seen them substantiated, the criminal charges against the father relating to Ms Carr’s two daughters were not pursued, the allegations relating to C had never been formulated into criminal charges and Jordan J had previously found the allegations of Ms Kent of sexual abuse to be false.  There was simply insufficient evidence upon which the Court could possibly have concluded that the father represented an unacceptable risk of sexual abuse to his three sons.

2. However, and notwithstanding their concessions, in giving their evidence, both mothers showed that they firmly believed that the father had in fact sexually assaulted C and Ms Carr’s two daughters.  Ms Carr even went so far as to say that the father should be precluded from attending any sporting activity involving children, even Y’s football games.  This is a theme to which I will return when considering the extent to which the mothers presented as an unacceptable risk.

3. As to the risk of physical harm or abuse comprising an assault of the children, both Ms Kent and Ms Carr relied heavily upon this consideration.  Particularly they relied upon alleged multiple disclosures by all three children that the father disciplined them using a belt, a stick and his hand, to the point where it was said that bruises had been left on the children.  Ms Carr tendered photographs from 2012 of the child Y, some of which clearly showed bruising on his legs and body.

4. However these complaints have been the subject of several investigations.  In May of this year Ms Carr took Y to the hospital. Y had bruises on his legs, and the hospital records in evidence showed that Ms Carr told the hospital that the father has been belting Y, and that Y had stated “Dad had been hitting him and stuff.”  However interestingly the notes also record that “last time Mum saw him reports no bruises,” and “[Y] says not scared staying with dad.”

5. The investigation by the hospital identified four “injuries.”  The first was an injury to the posterior aspect of his head.  It appeared to be a one centimetre laceration.  Y described that as having been sustained when he was playing with his brother and fell into some drawers less than a week earlier.

1. The second injury was a scar on his left forearm.  Yn explained that as having arisen from an operation last year, necessitated after he broke his arm when doing cartwheels.

2. The third injuries were approximately 12 bruises between about one and two centimetres by one centimetre on both of his legs.  Apparently Y was unsure what they were from.

3. The fourth injury was a scrape on his left knee, which Y reported arose when “he fell off bike yesterday.”

4. The relevant hospital record continues “no evidence suggestive of direct abuse.  Multiple small bruises” and later “no direct evidence of injury caused by belt.”  Ultimately the opinion of the treating doctor at the hospital was “no direct evidence of trauma relating to belt or specific injuries abnormal for a seven year old.”

5. The allegations of physical abuse in relation to all three children were most recently investigated by the Department in June of this year.  By letter dated 28 June 2013, the Department advised the father that their investigation and assessment was concluded, and that the child protections concerns were unsubstantiated.  Although no doubt a pro forma letter, it states:

   This means that Child Safety Services has found that [Y], [L] and [S] have not experienced significant harm and are not at an unacceptable risk of future harm in your care.  In addition you have been assessed as a parent who is willing and able to protect your children.

6. The father’s evidence is that he has never used a belt to discipline the children directly, although he has in the past threatened to use the belt, which he referred to as “CC”.  His evidence was that although all three children can at times be challenging, he uses non-physical means of disciplining them, and on occasions when he does get angry, he will count to 10 or walk away, and then return to talk to the children, or require them to have “time out”.  He said that Y and L can be a handful and he may have to use those techniques between once or twice a week, or in some weeks, every day.

7. He was not challenged in this evidence by either of the mothers.  However Ms Carr did attempt to lead evidence from her mother’s current partner, Mr K, to the effect that he had to intervene when Mr Horvill had made threats to Mr K’s own children.  Whilst indeed Mr K did give evidence that one occasion, when his 14 year old son had an anger outburst which, despite all of the adults’ attempts to calm him, had not subsided, Mr Horvill had threatened to tie him up and hit him.  However Mr K’s evidence was also to the effect that was is the only occasion that he had ever seen Mr Horvill (whom he appears to have known for quite some time, and indeed for some time had resided with) behave inappropriately, and he had never had any concerns with Mr Horvill’s parenting otherwise, including on occasions when he had stayed with the father on the island.  It can therefore be seen that Ms Carr’s attempts to discredit the father by calling Mr K largely backfired.

8. Even if I were to accept that neither Ms Kent nor Ms Carr have had any role in the generation or articulation of the disclosures made by the boys from time to time of excessive physical discipline, the fact remains that the evidence falls far short of establishing that the father presents as an unacceptable risk of physical harm or abuse comprising assaults of the boys.  The mothers have failed to establish that to the relevant standard, and therefore I do not find that the father is an unacceptable risk.

Is Ms Kent an unacceptable risk?

1. Both the father and the Independent Children’s Lawyer contend that both mothers represent unacceptable risks of psychological harm to their respective children.  The harm is said to arise from the children being repeatedly subjected to investigations into allegations that they have been in some respect abused by their father.

2. In the case of Ms Kent, her history of allegations was already considerable by the time of the first trial in 2007.  That trial involved extreme allegations involving sexual assault of C and L, and also involved allegations relating to S, including that he had sustained a head injury by being violently shaken by the father.

3. The allegations continued after the 2007.  As early as April 2008, the mother had C medically examined for sexual abuse, albeit that the presenting symptom was that she had fallen off her bike. 

4. In cross-examination, Ms Kent conceded that although as at 2007 C did not believe that she had been sexually assaulted by the father, she now does so believe, and indeed the mother asserted that C was suffering from post-traumatic stress disorder arising from that abuse.

5. Whilst it is impossible to know the identity of notifiers in relation to the several Child Concern Reports made to the Department in relation to L and S, it is plain – and she willingly conceded in her evidence – that Ms Kent still believes that the father, or someone in his household, is sexually assaulting S, and strongly believes that the father is using excessive physical discipline on both boys.

6. However a substantial difficulty for Ms Kent’s case in this respect is her voluntarily placing L to live with the father in March of this year, and her later agreement to S commencing to spend unsupervised time with the father as well. 

7. The mother’s evidence in that respect was that L expressed a desire to live with the father so that he could protect Y from the father.  Worryingly, the first occasion that that suggestion was made by Ms Kent was during her oral evidence before me.  That was not the reason for the move which she gave Mr J, the Family Report Writer, in her interviews with him.  In those interviews she indicated that she was having difficulty disciplining L and she thought that the father would be able to do a better job of that than she could.  Moreover she expressed the view that she thought that L was playing her and his father off against each other.

8. The mother was unable to satisfactorily explain under cross-examination why it is that she did not tell the Family Report Writer of her asserted reason for L’s change of primary carer.

9. Of great concern is the mother’s selective giving of history in recent times.  On 9 August she had an interview with Mr J.  In that interview she made some mention of S’s sexualised behaviour, and there was some mention made of her concerns in relation to the father’s physical discipline of both boys.  However the overall impression gained by Mr J was that she and Mr Horvill were amicably working through the issues of parenting both boys, and that the present regime was working.  Indeed his evidence was that she was not entirely dismissive of the possibility of S going to live with Mr Horvill.

10. Only 12 days later, on 21 August 2013, Ms Kent made an appointment for S to see a social worker, Ms M.  Her evidence was that she only made that appointment because S was showing such fear of going into his father’s care that she though it justified taking him to a mental health professional.  Of course, given that the father was only seeing S on alternate weekends, at most there could have only been one visit with the father since the interview with Mr J.  There had been no mention of any reluctance on the part of S to spend time with his father in that interview. 

11. On 3 September Ms Kent attended Ms M.  In that interview she made clear allegations of physical and sexual abuse of S by the father.  She said that when S came home from spending time with the father, he had a red and bruised bottom.  Alarmingly, Ms Kent said that S comes out to her on occasions with his pants down, and asked her to suck his penis.  She told Ms M that she believes that he does that to her because the father does it to him at his place.  She said that she thought that both boys were made to watch pornography at their father’s home.

12. The presenting behaviours which were the mother’s concern as at 3 September were S’s soiling himself, sleep problems, (particularly nightmares), punching walls while he was sleeping, an obsessive checking of locks on the doors and windows, a desire to sleep in the mother’s bed, threatening to cut himself when he is upset (and particularly holding a knife to his stomach) and calling his mother a whore and slut.  She told Ms M that she believed that this behaviour was copied from the father.

13. There had been no mention of any of these concerns to Mr J in the interview less than a month previously.   Whilst that in itself is remarkable, even more remarkable was that there was no mention of any of this material in her evidence-in-chief before me, at the commencement of which I gave her the opportunity to tell me of any significant events that had transpired since she had filed her affidavit in March of this year.

14. Somewhat fortuitously, Ms M’s evidence was interposed during the cross-examination of Ms Kent.  When that cross-examination resumed, I inquired of her why she had not included any of the material which she reported to Ms M in her evidence.  Her answer was that she did not include it because she did not think that I would believe it.  She admitted that she had selected what material she would tell me, and others, because of her concerns that it would not be believed.

15. I have considered whether Ms Kent’s arranging for S to see Ms M was perhaps a one-off strategic move designed to manufacture evidence for this trial.  In that regard, it is pertinent to note that Ms M was specifically required to be called by Ms Kent, and but for her insistence, would not otherwise have been called.  When I asked Ms Kent what evidence I could expect to hear from Ms M, it was clear that she anticipated that she would give evidence of disclosures made to her by S.  However two matters militate against such a benevolent construction of events.  Firstly, there is the clear and unequivocal warning which Jordan J gave the mother in para.66 of his reasons delivered in 2007.  Although that was admittedly in the context of a regime of interim orders which stood to be reviewed in 12 months’ time, the mother could not have been left in any doubt that continuing to have her children subjected to investigations and examinations had been plainly discouraged by the Court.  Secondly, her conduct in taking S to Ms M is perfectly consistent with the demonstrated modus operandi which Ms Kent has used, with varying degrees of success, over many years in relation to the children, namely that she seeks out persons or organisations with whom she has not previously had any association, and provides them with a detailed and alarming history involving the children, knowing full well that the organisation will notify the Department, as they are mandatorily required to.

16. Perhaps in view of this truly worrying evidence, by the time she made her final submissions to me, Ms Kent was prepared to concede – again as her counsel did in 2007 – that the effect of the inevitable investigation by the Department of these further allegations as notified to them by Ms M would be traumatic for S.  Her submission was that she had “thought about it overnight” and now wished to put all of her history with Mr Horvill behind her and start afresh.  This is of course the very technique which her counsel used – successfully – in 2007, (albeit that Ms Kent’s evidence in the witness box was that he did so without her instructions, which evidence I reject).

17. The mother’s evidence under cross-examination was that she believes that C was sexually abused by the father, and it is plain that she continues to believe that the father has abused – and continues to abuse – the boys as well.  The only conclusion which the evidence permits is that, notwithstanding her protestations in submissions, she will likely continue to seek to involve authorities in investigating complaints which she makes, or gets others to make, with little if any foundation, about the father’s misconduct toward both boys.

18. Mr J gave evidence as to the effect of those sorts of investigations upon children, including the prospect that the child will come to believe that the father in fact perpetrated abuse upon them, when it did not occur.  Indeed one needs to look no further than C to realise that, even on the mother’s own evidence, since the trial in 2007 C has come to believe that she was sexually assaulted by her father, even though as found by Jordan J, no such assault occurred.

19. In light of both Ms M’s evidence and the subsequent evidence of Ms Kent when under cross-examination, Mr J was re-called to give evidence.  In the course of that evidence he elaborated upon the sorts of outcomes which could ensue from Ms Kent’s behaviour.  He said that the boys are in the long term more likely to be predisposed to depression, suicide and personality disorders.  Likewise there are a whole range of practical ramifications, including poorer educational outcomes, psychological outcomes and emotional outcomes, both throughout childhood, adolescence and adulthood.  Mr J emphasised that even to investigate the sort of allegation which Ms Kent had made to Ms M in relation to S asking her to suck his penis, will case him distress and damage his relationships both with the mother and the father.  Given the cognitive issues which are associated with S, Mr J’s view was that to give S “a bag of guilt” with respect to the inevitable investigation could only damage him.  He emphasised that a child’s trust of their parent is a fundamental security, and one of their primary needs in development, and to strike at that undermines one of a child’s most fundamental supports.

20. Further, he could identify no reason why Ms Kent would not have been able to tell him about her concerns in relation to the father, and agreed that her interview with him was a “golden opportunity” to disclose her real concerns in relation to any sexual abuse of the children by the father.  

21. In assessing whether or not Ms Kent is intent on destroying the children L and S’s relationship with their father, I place particular significance upon her conduct from time to time in relation to not only L and S, but C as well.  As to C, it is plain that she now has no relationship whatsoever with her father, and the evidence is that she believes him to be paedophile, and that she was sexually assaulted by him.  Apparently no attempt whatsoever was made to re-establish her relationship with the father once the criminal charges in relation to Ms Carr’s two daughters had been resolved.  Further, notwithstanding the resolution of those charges, it is plain that Ms Kent actively resisted the father being re-introduced into the lives of L and S, which only occurred after a Legal Aid conference was conducted.  Moreover, the mother has a considerable history of withholding the children from the father, and facilitating no time being spend by them with him during those periods.  The clearest example of this is the 17 month period between 22 July 2011 and 13 October 2012 in which she withheld the children from the father, and denied him any contact with them whatsoever.

22. Finally, I note that despite Ms Kent’s evidence-in-chief that, towards the end of 2012 she was sufficiently happy with the way in which the father’s supervised time with L and S was progressing that she voluntarily changed that time to being unsupervised, during her cross-examination by Mr Linklater-Steele, she agreed that quite a different history was correct, and that in fact she had actively resisted the children spending unsupervised time with the father until she had finally been prevailed upon by the Independent Children’s Lawyer to agree to it in early 2013.

23. I regret that the conclusion which the evidence compels is that Ms Kent is intent on destroying the father’s relationship with his children, or in the case of C, a child who regarded him as her father.

24. By reference to the questions posed in what I might describe as the “Harridge test” I conclude as follows.  Firstly, the harmful outcome that is potentially present in this situation is the alienation of both L and/or S from their father, as has demonstrably occurred with C.  I asses the probability of that occurring as high, given the long history of conduct of the mother, either designed to, or with the nigh-inevitable consequence of, destroying the relationship between her children and the father, including the illustration of such conduct as recently as last month.

25. Turning then to the risks that are probable in the situation, in the short, medium and long term, I am of the view that the primary risk in all three timeframes is that both L and S will either have implanted in them, or reinforced, a belief that their father is a bad person and represents a risk to them.  In the medium and long term, the risk is that one or both children will come to believe the father is so bad that it was and remains unsafe for them to be with him.

26. I identify the factors that could increase or decrease the risk as primarily being the identity of the parent with whom the children live.  If they live with the father, then the risk is greatly reduced; if they live with the mother, then the risk is much higher.  The other factor which would impact upon the probability of the risk eventuating is the circumstances and duration of any time which the children spend with the mother.  There are two particular aspects of that latter consideration; firstly, the prospect that the mother would use any unsupervised time to further her agenda of diminishing or destroying the children’s relationship with the father, and secondly, the prospect that in anything other than unsupervised time, the mother would again withhold the children from the father.

27. Finally, the measures whose deployment could mitigate the risk are firstly to have the children live with the father, and secondly to have the mother’s time supervised.  Another measure that is available might be to, yet again, implement the strategy used by Jordan J in 2007, of having a regime of interim orders so as to, in effect, coerce the mother.  However it has to be acknowledged that, although it appears as though that regime worked for about 12 months in 2007, once final orders were made, the mother’s behaviour then re-surfaced.  Further, there is the need to have finality in the litigation.

28. I am mindful that a finding of unacceptable risk is a potentially grave one, because it stands to impact substantially upon the circumstances in which the mother will have involvement with the children.  However even accepting that warning, I am satisfied to the requisite degree that if she were to spend unsupervised time with L or S, Ms Kent presents as an unacceptable risk of emotional harm to them both.

Is Ms Carr an unacceptable risk?

1. In her evidence, Ms Carr adamantly asserted her belief that the applicant father is a paedophile.  She also had a strong belief that the father was physically abusing Y, even to the point that she said she believed Y is at risk of being murdered by him.

2. Because of one or both of these concerns, on two occasions this year she has withheld Y from returning to his father, even though the current regime only permits her to spend supervised time with him.

3. She was cross-examined as to whether she would concede that there were any good points at all to the father.  Even when I explained to her that her failure to make those concessions was likely to be adverse to her case, she still had difficulty in identifying, much less conceding, any good aspect to him.  Likewise she refused to concede, notwithstanding the contents of the Family Report, that the father and Y had a good relationship.  Specifically she refused to concede that the father loved Y, and expressed a positive belief that Y did not love his father, on the grounds that “he wouldn’t understand because he is only 7 years old”.

4. Apart from my poor impression of the mother in the witness box arising from such matters, there was also the highly unsatisfactory way in which she, during the course of the trial, asserted that Y was not the biological child of the father, and demanded a DNA test.  Ultimately she did not press on with that application, but it is of great concern that she apparently thought that such a ploy would tactically advantage her, or at least be relevant to the conduct of the trial.  She appeared to have no insight whatsoever into the desirability of Y having a relationship with the father, and did not appear to have even begun to contemplate the potential impact on Y of the destruction of that relationship.  Indeed she gladly volunteered that she would tell Y that Mr Horvill was not his father at the first occasion when that became conversationally appropriate, e.g, if Y remarked that he did not look much like his father.  That conduct plainly demonstrated that the mother places absolutely no value on the relationship between Y and his father, and would be quite happy to see it destroyed.

1. There are other aspects of the mother’s evidence which were concerning.  Firstly her belief that the father had sexually abused her two girls was different to what she reported to the Department in 2008, namely that she didn’t believe those allegations.  Indeed the strongest evidence of her lack of belief of any abuse in 2008 was the fact that she continued to stay with the father, even though all of her children were removed from her care.  However in her evidence, she denied that that is what she told the Department at the time, and asserted that she only stayed with the father after 2008 because she was in a difficult position at the time.  I find such an explanation fanciful at best and reject it.  On the other hand I do not doubt her present vehement belief that the father has sexually abused her two daughters.  Exactly what has caused that belief is unclear, but I assume it is likely to be events that have occurred since 2008.

2. The mother’s evidence also was that she did not accept the outcome of the 2013 Departmental investigation, which found the allegations of physical abuse of the three boys unsubstantiated, but maintained a strong belief that in fact the father had physically abused the children and would continue to do so.  Her evidence also was that she would withhold Y from the father in the future if she felt that Y needed protection from him, and would continue in the future to make complaints in relation to the father to the police and the Department, because of her belief that the father presents a risk of harm to Y.

3. It appears as though Ms Kent and Ms Carr have, since 2008, developed something of a friendship.  They will speak on the telephone two or three times a week.  On occasion, S stays overnight at Ms Carr’s home when Y is there.  However neither Ms Carr nor Ms Kent would concede that they had ever discussed this case, notwithstanding that friendship.  I reject that evidence as unbelievable.  It is inevitable that in their conversations Ms Kent and Ms Carr would discuss Mr Horvill and this Court case.  I am suspicious, but cannot conclude, that Ms Kent’s bitter hatred of Mr Horvill has rubbed off on Ms Carr, who has been suborned to Ms Kent’s vendetta. 

4. By reference to the five questions identified in Harridge, I make the following determinations.  Firstly, the harmful outcome that is potentially present in this situation is the alienation of the child Y from his father, or alternatively the relationship between them being a particularly poor one.  If the regime of orders contemplated by Ms Carr was to be made, I would assess the probability of this outcome as very high.  She sees no benefit in the relationship between Y and his father, and therefore I am of the view that she would either deliberately or otherwise bring about or not resist its destruction.  On the other hand the probability of this outcome occurring on the regime of orders sought by the father and the Independent Children’s Lawyer are very low.

5. The probable risks in the situation in the short and medium term are emotional turmoil and further educational difficulties for Y, and in the long term there are risks as identified by Mr J of real psychological harm.  I would assess those risks as very real if the regime of orders contemplated by the mother was made.

6. The factors affecting the probable risks are the extent and circumstances of anytime Y spends with his mother.  The measures available to mitigate that risk are the limitation of time which Y spends with her, and the continuation of supervision of that time.

7. Unfortunately, I think it clear that Ms Carr will not accept my decision that Mr Horvill does not present an unacceptable risk of harm to Y.  She will persist in her belief that he is a risk, and will likely continue to make complaints against him with a view to what she believes to being the truth being disclosed.  She attributes absolutely no value to the relationship between the father and Y, and therefore will not have as a consideration in deciding whether to make complaint, the prospect of destruction of that relationship.  That is likely to lead to both short-term and long-term psychological harm for Y.  Her spending anything other than supervised time with Y therefore poses an unacceptable risk of harm to him.

S.60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. Ms Kent told Mr J that she thought that L was manipulating both of his parents, and that the other children were picking up on that from him.  I accept that is likely correct.  From time to time L has expressed a wish to live with his mother rather than his father.  S has also expressed a similar wish.  There does not appear to be any consistent and clear wish that has been expressed by Y.  I am not inclined to give any weight to the expression of wishes by the children as firstly, they are likely to have no understanding of the issues involved, and secondly it appears as though they may be motivated by a desire to play their parents off each other.

S.60CC(3)(b): The nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child)

1. Turning firstly to the child L, it appears as though he has a good relationship with each parent.  There is no real evidence as to his relationships with his siblings, which causes me to think that they are probably satisfactory.  I likewise assume that he has a good relationship with both sets of grandparents.

2. The child S clearly has a good relationship with both his mother and father.  He has a good and close relationship with his younger half-sister who lives with his mother.  As with L, I assume he has a good relationship with both sets of grandparents.

3. Finally as to the child Y, it appears as though he has a good relationship with both parents, appears to have an attachment to his younger brother V.  As with the other two children, I assume that he has a good relationship with each set of grandparents.

S.60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii) to communicate with the child

1. The father has consistently tried to maximise his involvement in the lives of the children.  He spends time with L and Y in their school and regularly organises appointments with medical practitioners and therapists, even for S (who at the time of these reasons does not live with him).  It appears as though he is determined to be a part of their lives.

2. Ms Kent also appears to have attempted to have involved herself to the maximum extent that she can with the children.  That said, she did voluntarily pass the primary care of L to the father earlier this year, and whilst thereafter spending time with him, appears to have permitted the father to take up most of the running in relation to both his and S’s health and therapeutic issues, seemingly because the father has a better ability to attend to such.

3. Ms Carr has no real involvement in the medical or other therapeutic issues with respect to Y.  Nonetheless it is clear that she enjoys spending time with and communicating with Y.

S.60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. The father has plainly fulfilled his obligations to maintain the children when they are in his care, but does not appear to have made any significant contribution to their maintenance when they are not in his care.  The same may be said of both Ms Kent and Ms Carr.

S.60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. I have already recited the history of to-ing and fro-ing of the children between the parents, from which it is plain that all of these children have extensive histories of sudden and complete separations from one or both of their parents.    Whilst it is likely that a further change in primary care in relation to any of the children would have some effect on them, that must be seen in the context where there has been repeated changes of primary care in the past.

S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The only practical difficulty and expense here relates to the fact that the father lives on an island, with the attendant cost of ferry travel when the children come to or leave the island.  However that is not a major consideration.

S.60CC(3)(f): The capacity of:

(i)  each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. Turning firstly to the father, there is no reason to doubt that he has a good enough capacity to provide for the needs of all three children.  Whilst there is some doubt as to whether he would be able to manage all three together, I note that he did so, seeming without any negative effect, for about six months in 2011.  Perhaps in the past he has demonstrated a poor appreciation of the emotional needs of the children by on one occasion withholding them from Ms Kent, however to the extent that one can compare his conduct with hers, his is of far less significance.  Apart from that withholding, he otherwise appears genuinely desirous of fostering relationships between the children and their respective mothers.

2. Ms Kent has a dubious capacity to provide for her children’s emotional needs.  Not only were there the extensive complaints that were the background to the 2007 trial before Jordan J, but since then there has been a steady trickle of issues that have been raised with relevant authorities.  Further, there is her repeated withholding of the children from the father.  Worryingly she appears to have no insight into the effect on the children of the parental conflict, or the impact of the investigation of her complaints from time to time (notwithstanding her submissions to the contrary in Court on the last day of trial).  I therefore conclude that she cannot adequately contemplate, and hence provide for, the emotional needs of the children L and S.

3. As to Ms Carr, inevitably there must be real concerns in relation to her parenting capacity arising out of the long and considerable involvement of the Department with her family.  Further, she appears to have no understanding of Y’s need for a relationship with his father, and completely discounts the quality of the existing relationship.  She appeared to have no real appreciation of – or even concern about – the likely effect on Y of her proposed change in his primary care.  I therefore conclude that she has real difficulty in providing for the needs of Y.

S.60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. This is not applicable in this case.

S.60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

1. This is of some relevance in that that father identifies as Aboriginal (apparently arising from his mother’s side) but there is little if any evidence as to his participation in Aboriginal culture, or indeed as to the means by which he would promote the children enjoying Aboriginal culture.  I therefore give little if any weight to this consideration.

S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The father has consistently demonstrated himself to be a good enough parent.  The only criticism which could be levelled at him relates to his withholding of the children from the mother on one occasion.

2. As to Ms Kent, whilst perhaps her attitude to the children per se is not troubling, her attitude to the responsibilities of parenthood is very troubling.  In part she appears to see the children as vehicles for maintaining conflict with the father, perhaps with a view to punishing him for what she believes to have been his past misdeeds.

3. Ms Carr’s attitude to the responsibilities of parenthood must have a substantial cloud over them by virtue of her extensive involvement with the Department over many years.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. This is not relevant in this case.

S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter.

1. This is not relevant in this case.

Section 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Given the highly unsettled backgrounds which these children all have, it is plainly desirable that there be a minimal prospect of any future litigation involving them.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. There are four other matters which I think are relevant in this case.  The first is the father’s uncertainty as to where his future residence may lie.  Particularly he is conscious that there are advantages and disadvantages to maintaining his residence on the island.  I think it would be likely better for the children if they were to maintain living there, principally because the father there has the support of his parents, who reside upstairs from him.  The father’s capacity to cope without the support of his parents is relatively untested.

2. The second additional relevant fact or circumstance is the father’s proposed housing for the children.  There is little clear evidence as to what that housing comprises, other than it is said to be a flat beneath the house where his parents reside.  Given that since March of this year, he has had both L and Y living with him, it appears to be at least adequate to house an adult and two children.  I assume that a third child will no doubt place additional pressure upon that accommodation, and perhaps this is part of the reason why Mr Horvill is contemplating moving from the island to the mainland.

3. The third matter is that the father is proposing that he alone should manage three behaviourally difficult boys.  That said, I acknowledge that he appears to have done a reasonable job of it for six months in 2011.

4. The fourth matter is that Ms Carr is expecting a new child in December.  In the past she plainly has had difficulty raising multiple children.

WEIGHING THE S.60CC FACTORS – WHAT IS IN THE CHILDREN’S BEST INTERESTS?

Parental responsibility

1. Given the extensive history of hostility between the parties, I do not think it can sensibly be contended that they could possibly exercise joint parental responsibility.  It cannot be in any of the children’s best interests to have decisions made in relation to their long-term care welfare and development the subject of protracted and marked hostility.  Parental responsibility should reside with whoever is the primary carer of each child.

With whom should the child L live?

1. The child L has been living with the father since March of this year, pursuant to agreement with the mother.  I find that the mother agreed to that course, not because of any desire on the part of L to protect the child Y, but rather because his challenging behaviours had finally proved too much for her, and she genuinely believed that the father could make a better job of it.  Moreover, as I have found, the mother would present as an unacceptable risk of psychological harm to both L and S if they were to live with her, and that is a matter which must be given very great weight.

2. In my view it is L’s best interests that he live with the father, and I will so order.

With whom should the child S live?

1. The mother’s recent behaviour in taking S to Ms M, and giving her a history vastly different to that which she either gave to Mr J, or to me in evidence, underscores the present and great risk which her behaviours pose to him.  Her protestations during submissions that she wanted to start afresh must be given no weight whatsoever, given that that is precisely what she said to this Court in 2007, and yet thereafter failed to do.  The Court cannot countenance the ongoing impact on S’s life by the mother’s behaviour.  It is in his best interest that primary care change to the father, and he live with him.

2. In saying that I am not overlooking his attachment to the mother and indeed his attachment to his younger sister.  However the diminution of those relationships does not outweigh the need to protect S from the likely harm arising from his mother’s conduct.

3. During the course of submissions, I raised with the parties whether, in the event that I were to conclude that S should live with his father, that transition should be delayed until the end of the school year.  Mr Linklater-Steele, in my view correctly, identified that there may in fact be advantages for S re-familiarising himself with the island school before the commencement of the next school year.  Therefore I am not inclined to delay the change in primary care of S, which change should be made forthwith.

With whom should the child Y live?

1. I have already determined that Ms Carr presents as an unacceptable risk of harm to Y if she were to spend anything other than supervised time with him.  Whilst I accept that Ms Carr’s conduct to date has not been as extreme as that of Ms Kent has been in relation to L and S, there are however other negative aspects to Ms Carr, principally being her protracted and considerable record with the Department or its New South Wales equivalent, and the fact that, even now, many of her children remain in State based care.  Worryingly there is a further child due in her household in December, against a background where she has not been able to care for multiple children in the past.

2. Further, Y has now been living with the father in excess of two and a half years, and appears to be settled and going well.  There is no sound reason to change that.  In my view it is in his best interests that he continue to live with the father, and I will so order.

What time and in what circumstances should L and S spend time with Ms Kent?

1. In 2007 the mother must have been left in no doubt that she needed to stop manufacturing or promoting complaints of misconduct by the father against the children, with a view to them being investigated by the relevant authorities.  That was not the first occasion she had been so warned; prior to 2007 she had been warned by both police officers and Departmental officers that if she persisted in her behaviours, they would intervene.  Notwithstanding those three previous warnings, the mother has not changed her behaviour.  The only way in which the children can be adequately protected is if their time with her is in a strictly supervised environment.

1. I am acutely conscious that this will inevitably curtail the quality of time which the children are able to spend with her, and particularly the quality of time they are able to spend with their maternal grandparents and other siblings in the mother’s care, or in the care of other family members.  Indeed Mr J was cross-examined by Ms Kent as to the likely effect on S of the restriction both in terms of time and quality on S’s time with his sibling and grandparents.  Mr J’s evidence was that while he may well have an emotional response and grief, if he is stable, safe and in a supportive living environment, the risk of long term harm ensuing is not great.  Whilst I do take that evidence into consideration, the primary concern that I have is to ensure that both L and S are protected from any psychological harm arising from the long standing regime of the mother involving authorities investigating complaints about them, with a view to extracting some form of retribution upon the father.

2. Moreover, the mother’s consistent history of withholding the children for long periods of time and not promoting any form of contact between the father and them while doing so, must be put at an end.  The only way in which that can be achieved is if the circumstances in which she sees the children negate that possibility.

3. I accept that it is likely that as the children mature, the value which they derive from supervised contact centre time with their mother will diminish, and in that regard note the evidence of Mr J that the children are unlikely to need protection in the form of professional supervision from about their mid-teens.  However not only is that not sufficiently precise to found a temporal limit being placed on the order now, but I am particularly mindful that S has developmental cognitive issues, the prognosis of which remains completely untouched by any evidence.  It is therefore appropriate that the orders be cast in a way that continues until the children turn 18.

4. It therefore follows that the children’s time with the mother must be supervised in a professional environment and I will so order.

What time and in what circumstances should Y spend time with the Ms Carr?

1. Although Ms Carr’s conduct to date perhaps is not as heinous as and protracted as that of Ms Kent, nonetheless for the reasons given earlier in these reasons, I find that Ms Carr presents as an unacceptable risk of harm to Y if she spends anything other than supervised time with him.

2. I have thought carefully about whether or not an opportunity such as that afforded to Ms Kent by Jordan J in 2007 should be extended to Ms Carr.  Mr Linklater-Steele, who appeared as counsel for the Independent Children’s Lawyer, submitted to me that making such an order would be a mistake.  Upon balance, given the factors I have previously adverted to, I agree that professional supervision is in Y’s best interest.  Particularly I am mindful of the mother’s evidence that when Y spends time with her (and seemingly her supervisor mother) she would regularly check him for any signs of abuse by the father, and if signs were potentially identified, photograph them.  Moreover, there is the mother’s recent attendance with Y at the Hospital in the course of her investigation into suspected abuse by the father, and further the occasions even this year when she has withheld Y from returning to the father when he was spending time with her, even for as long as week.  Not only did the supervision of her mother not effect any dissuasion from such conduct, it appears as though she was supportive of it.  Most worrying, is the mother’s evidence that she will continue to look for signs of abuse whenever Y spends time with her, and will not hesitate to either withhold him if she thinks that appropriate, or notify the relevant authorities with a view to having her suspicions investigated.  None of this gives me any hope that the sort of opportunity afforded to Ms Kent by Jordan J in 2007 is appropriate in this case.   There will therefore be an order that Y’s time with his mother be supervised at a contact centre.

3. In making that order I am again acutely aware that it inevitably will reduce the quality of time he can spend with his mother, his siblings, and his grandparents.  That is greatly to be regretted, but inevitably and unavoidably arises as a consequence of the need to protect him from harm at the behest of his mother.

4. Again I am conscious of Mr J’s evidence that the need for protective supervision of children abates when they are in their mid-teens, but for the same reasons I was disinclined to make any temporal limitation on the supervision orders in relation to L and S, I decline to make any such limitation in relation to Y either.

Phone contact

1. I am persuaded that it is appropriate that the children should have the capacity to speak with their mothers as proposed by the Independent Children’s Lawyer, namely at such times as the child requests but at least for 15 minutes midweek.  There will be an order in those terms.

Injunctions

1. The Independent Children’s Lawyer proposes that there be injunctions restraining both mothers from contacting police, welfare agencies, child protection units, hospital or doctors or any other authority or agency about the children, without leave of the Court first obtained.  In my view, even though such an order is extreme, as regards Ms Kent it is warranted.  She has an appalling history of beguiling hitherto uninvolved organisations or entities with complaints that the father is abusing the children, so as to have them notify the Department and hence cause a Departmental and/or Police investigation.  She simply cannot be trusted with the ability to make such complaints in the future.  Moreover, to ensure that the order extends to those who may choose to act at her behest, it should be cast in a way to prevent her encouraging or inciting others to assist her in the process of making the notifications or complaints.  The order should however, permit notifications or complaints to be made either with the written consent of the father or the prior leave of this court.

2. On the other hand I am not persuaded that Ms Carr’s history is so extreme as to warrant an injunction against her.  Her behaviour to date is not of the same order as that of Ms Kent’s, and whilst her conduct is regrettable, does not justify an injunction in the terms proposed by the Independent Children’s Lawyer.  Moreover, her opportunity to investigate Y will be severely curtailed by virtue of her time with him being supervised, which should reduce substantially any basis for complaint.

3. Finally there is an order proposed that neither party use any implement in physically disciplining the children.  In my view that is an appropriate order given the allegations that have been made against the father in the past, and his express disavowal of ever having used a belt on the children.

Other orders

1. I am persuaded that the balance of the orders sought by the Independent Children’s Lawyer are in the best interests of the respective children, and will so Order.

2. I am not persuaded, particularly given that in 2007 the mother consented to Y being known as Y Horvill, that there is any warrant for now changing his surname.

3. Finally the father and Independent Children’s Lawyer seek an order restraining either party from causing S to attend further upon Ms M.  That might be thought a most unusual order, given that Ms M is a social worker in the employ of the State Government.

4. I am conscious that Ms M is not a party to these proceedings, and has no notice of this proposed order.   She was simply a witness in the proceedings.  I therefore propose to be somewhat more guarded in what I say about her than might have been the case had the situation been otherwise.

5. Ms Mgave evidence that she had, in her capacity as a social worker, diagnosed S as suffering from Post-Traumatic Stress Disorder.  I pressed her as to the way in which she satisfied herself that the relevant diagnostic criteria were established.  It became patently obvious that she could not have in fact been satisfied of at least two of the relevant criteria under DSM V.  Nonetheless, it appears as though she has since September been allegedly “treating” S for Post-Traumatic Stress Disorder, and is apparently intent on continuing to do so.

6. Mr J, the Family Report Writer, is a qualified psychologist.  In his evidence, he strongly doubted that S had Post-Traumatic Stress Disorder.  In that regard, it will be appreciated that Mr J had seen S on two occasions in the course of preparing his reports.

7. I strongly doubt whether the training of a social worker is sufficient to equip them to make psychiatric or psychological diagnosis.  Moreover, it is plain that the diagnosis of Ms M is seriously flawed.  Even she admitted that the process by which it had been arrived at was not rigorous.  Whilst there is no direct evidence before me that purported treatment for a non-existent psychological condition is dangerous to a child, I am prepared to infer that there is sufficient risk attendant upon any such treatment to make its administration not in the best interests of the child.  I therefore am persuaded that the unusual injunction sought by both the father and the Independent Children’s Lawyer should be made. 

CONCLUSION

1. For these reasons there will be orders substantially in the terms proposed by the Independent Children’s Lawyer, save that there will be no injunction restraining Ms Carr from contacting police, welfare agencies, child protection units, hospital or doctors or any other authority or agency as proposed by order 17 of the draft orders.     

I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 October 2013.

Associate: 

Date:  25 October 2013